The British government has faced strong criticism in recent years for its unseemly partisanship in dealing with Northern Ireland’s political actors, as manifested in the confidence-and-supply agreement between Theresa May and the Democratic Unionist Party after the 2017 election. But Boris Johnson and his Northern Ireland secretary, Brandon Lewis, have now united all of the region’s main parties, from Sinn Féin to the DUP, in opposition to their amnesty plan for Troubles-related killings.
The new DUP leader, Jeffrey Donaldson, described a cross-party discussion with Lewis last Friday as ‘robust’. The tone of an article by Lewis in the Sunday Telegraph, with its rather petulant invitation to critics – ‘if they have a better way of dealing with Northern Ireland’s legacy issues, please, tell us’ – will not have improved the mood. In a repeat of the pattern established during the final phase of Brexit negotiations, Johnson’s government has elevated British political considerations above any concern about stability or consensus on the other side of the Irish Sea.
Johnson’s speech to the House of Commons announcing the plan last week included a gratuitous provocation that will have played well with the right-wing press:
The sad fact remains that there are many members of the armed services who continue to face the threat of vexatious prosecutions well into their seventies and eighties. We are finally bringing forward a solution to this problem, to enable the people of Northern Ireland to draw a line under the Troubles and to enable the people of Northern Ireland to move forward.
In reality, no court of law has found the small handful of prosecutions brought against ex-soldiers to be ‘vexatious’ in any way.
One case arising from the killing of the Official IRA leader Joe McCann in April 1972 recently collapsed because the judge ruled that statements given by two soldiers accused of shooting McCann when he was unarmed were inadmissible. Soon afterwards, the Public Prosecution Service decided to drop the cases involving two other veterans, known as Soldier F and Soldier B, who were accused of murdering civilians on separate occasions in Derry in 1972. The trial of Soldier F – subsequently named in parliament by the SDLP politician Colum Eastwood – was the only criminal case linked to the Bloody Sunday massacre, more than a decade after Lord Saville’s report and David Cameron’s acknowledgment that the 14 people killed by British soldiers that day were innocent.
Whether or not the decisions made in these cases were correct, the judges and prosecutors were clear about their reasoning. They argued that the statements originally taken from the soldiers in 1972 could not be used because they were not made under caution. If that argument is legally sound, it speaks to the shoddy investigative processes of the early 1970s, when nobody in the British security forces wanted to see soldiers put on trial for murder. Edward Heath’s government endorsed Lord Widgery’s transparently dishonest report on the Bloody Sunday killings.
There was nothing ‘vexatious’ about seeking to make amends after an unconscionable delay, even if the legal effort could not scale the barriers deliberately put in place more than four decades ago. The fact that the former soldiers are now of pensionable age, which their supporters in the British media have been so keen to stress, merely underlines how long the families of the victims have been waiting for justice. Lord Widgery’s report remained the authorised version of events until 2010, despite all the evidence to discredit his findings. The relatives of those killed in the Ballymurphy massacre in August 1971 only received acknowledgment that they were ‘entirely innocent’ in May this year (along with an apology from Boris Johnson that they found ‘totally unacceptable’).
There was never a single, overarching process designed to resolve questions of justice or recover the truth. It has been a fragmented, ad hoc affair, involving various official bodies: the Historical Enquiries Team (HET) created by the Police Service of Northern Ireland to investigate cold cases; the office of the Northern Ireland police ombudsman, which has produced several reports; separate investigations conducted by judges, lawyers and police officers tasked with looking into some of the most controversial episodes of the Troubles, from Bloody Sunday to the assassination of the solicitor Pat Finucane.
In 2014, the then Northern Ireland secretary, Theresa Villiers, denounced a ‘one-sided approach which focuses on the minority of deaths in which the state was involved rather than the great majority which were solely the responsibility of the terrorists’. This skated over the fact that many investigations have examined allegations of complicity between the state and loyalist paramilitaries and found ample evidence of it. Villiers called for ‘a proportionate focus on the wrongdoing of paramilitaries, rather than the almost exclusive concentration on the activities of the state, which characterises so many of the processes currently under way’.
The figures do not support her claim about the focus of inquiries. By 2017, the HET had completed investigations of 1615 cold cases involving 2051 deaths. Almost two-thirds of those cases – 1038 – were attributed to republicans. Only 32 were attributed to the British Army, with loyalists accounting for the rest, apart from nine where the perpetrator was unknown. To the extent that there has been a focus on the record of the state in some high-profile inquiries, that simply reflects the prior record of impunity.
Bloody Sunday was far from the only instance of mass killing during the Troubles. It was, however, the only time when employees of the British state, officially tasked with maintaining law and order, killed innocent people in front of the world’s press. Lord Saville’s inquiry took so long because there were so many witnesses and so much documentary evidence to sift through. There would have been no need for Saville to exert himself if Widgery had delivered a legal report rather than a political one in 1972.
Throughout the conflict, the British and Irish states dealt with the IRA as a criminal conspiracy and sought to put its members behind bars with all the resources at their disposal. It wasn’t necessary for IRA members to fire a gun, plant a bomb or transport illegal weaponry: membership of the organisation was a criminal offence in its own right. Thousands of men and women served prison sentences in connection with the IRA campaign, many for long stretches.
There was no amnesty for IRA prisoners after the Good Friday Agreement: they were released on condition that they supported the agreement, and liable to rearrest if they had any connection to dissident republican activity (a clause the authorities have invoked in a number of cases). The HET has devoted considerable energy to investigating unsolved killings linked to republicans. The idea that IRA members have received a free pass while soldiers and policemen face disproportionate scrutiny is simply untrue.
There was never any chance that British soldiers would serve lengthy prison sentences: even if a prosecution were successful, the age of the defendants would militate against that. What the victims’ relatives were really seeking was some acknowledgment of accountability from the state itself. Nuala O’Loan, the first police ombudsman, condemned the plan unveiled by Johnson and Lewis as a ‘terrible, terrible betrayal of the victims and their families’. It certainly won’t help them to ‘draw a line’ or ‘move forward’. But that isn’t what Johnson’s government is trying to achieve.