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Dealing with Troubles legacy overshadows Theresa May’s deal with the DUP

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    • Irish Foreign Minister Charlie Flanagan arrived in Belfast on Monday morning, June 12, to discuss issues surrounding a likely agreement between the UK Conservative party and Northern Ireland’s Democratic Unionist Party to form a government.

    A spokesperson for Downing Street said on Saturday, June 10 the DUP had agreed to a “supply and confidence” deal for its 10 members of parliament to support the 318 Conservative MPs in government.

    After meeting with Secretary of State for Northern Ireland James Brokenshire and Northern Ireland’s political parties at Stormont Castle, Flanagan said the political landscape had changed over the weekend but “the issues remain the same” for the future of the power-sharing government.

    Flanagan said the burden was on the parties to restore the devolved government before the June 29 deadline, but he expected “rigorous impartiality” from Brokenshire in any talks. He said the Good Friday Agreement demands both the British and Irish governments remain impartial.

    On Sunday, Irish prime minister Taoiseach Enda Kenny spoke to Theresa May about the proposed supply and confidence arrangement. A statement said Kenny “indicated his concern that nothing should happen to put the Good Friday Agreement at risk and the challenge that this agreement will bring.”

    Speaking after the talks on Monday, Colum Eastwood, leader of the moderate nationalist Social Democratic and Labour Party, called for an independent chair for the talks process.

    Gerry Adams, president of the hardline Irish republican party Sinn Féin, said on Sunday that “the parties should consider inviting an independent chairperson to oversee proceedings,” adding that his party raised this at the beginning of the talks process.

    DUP MP Nigel Dodds on Monday reiterated that the party wants devolution restored, and objected to Sinn Féin’s criticism of Brokenshire, but did not address Eastwood’s comments.

    Rigorous impartiality

    Flanagan’s use of the term “rigorous impartiality” comes from the Good Friday/Belfast Agreement signed by both governments and endorsed by most political parties, but not the DUP. The agreement was overwhelmingly approved by the people of Northern Ireland in a referendum.

    Article 5 of the agreement says “the power of the sovereign government with jurisdiction there shall be exercised with rigorous impartiality on behalf of all the people in the diversity of their identities and traditions.”

    Before the general election, Secretary of State James Brokenshire was already under fire from nationalists for a lack of impartiality, leading to Northern Ireland’s most senior civil servant, Sir Malcolm McKibbin, taking over the chair. McKibbin delayed his retirement until June 30 in order to see through the negotiations. 

    Brokenshire’s position on dealing with legacy issues from The Troubles were possibly the most divisive, but he also issued a statement during the general election campaign questioning Labour leader Jeremy Corbyn’s views on the Irish Republican Army.

    Under current legislation, Brokenshire is obliged to call new Assembly elections if no agreement is reached by June 29.

    The St Andrews Agreement removed the authority of the UK government to return Northern Ireland to direct rule, but the Conservatives, backed by the DUP, may opt for “creeping direct rule,” as an anonymous DUP negotiator told The Guardian in April. Nationalists flatly oppose any imposition of direct rule from London.

    Speaking about Sinn Féin, DUP leader Arlene Foster said Monday: “If others decide that they are not coming back into the devolved administration here in Northern Ireland then those issues will have to be dealt with at Westminster.”

    Brokenshire said on Sunday that the June 29 deadline is “final and immovable.”

    Legacy cases from The Troubles

    One of the most divisive issues among Northern Ireland’s political parties is legacy cases, covering more than 960 killings that happened during The Troubles. Sinn Féin has accused the DUP and British government of failing to uphold agreements on legacy cases, some of which are more than 40 years old..

    Some legacy cases involve allegations of collusion between British security forces and paramilitary groups in Northern Ireland. The 2014 Stormont House Agreement provided for the creation of an independent Historical Investigations Unit to investigate the killings, as well as funding for new inquiries.

    The agreement has not been implemented, and legacy cases are currently investigated by a dedicated Police Service of Northern Ireland branch.

    In February 2016, Lord Chief Justice Sir Declan Morgan called for a dedicated Legacy Inquest Unit to investigate 56 remaining cases involving the deaths of 95 civilians, IRA members, Loyalists and soldiers during the Troubles. He requested £10 million in funding.

    The Stormont Executive’s rules required both Foster as First Minister and Deputy First Minister Martin McGuinness to approve the proposal’s inclusion on the Assembly agenda. On May 3, 2016, the BBC reported that Foster blocked the proposal. The DUP said it would impact the Executive’s ability to deal with innocent victims.

    The following week, the DUP retained all 38 of its seats in the Assembly election and Foster returned to her position as First Minister.

    The Northern Ireland Office had previously said it would not allocate more funding for police investigations, citing a request by Foster. The NIO said the Department of Justice and wider Northern Ireland Executive (led then by Foster) were responsible for PSNI funding.

    “The Government has made it clear that there is an additional £150 million available over five years to support new bodies to be set up to investigate the past,” the NIO said.

    The cases included around 50 murders connected to a British Army agent called Stakeknife, the full investigation of which could cost around £35 million.

    Northern Ireland coroner says teenager shot by soldier in Derry in 1972 was “totally innocent”

    The PSNI said in December it expected to spend around £50 million on legacy cases over the next three years. Assistant Chief Constable Mark Hamilton, head of the PSNI Legacy Investigation Branch, said: “We just don’t feel that the best solution for Northern Ireland is that these issues are still led by us for years and years,” adding that investigations could take “a decade, two decades.”

    In September, Lord Chief Justice Sir Declan Morgan said dealing with the backlog of cases was a matter of urgent concern and called on the Executive to fund the inquests. He warned that it could take decades to hear the remaining cases, which “would not comply with the legal requirement to deal with the backlog of cases within a reasonable time.”

    Controversial killings

    Three former British Army soldiers are being prosecuted in connection with Troubles killings. Dennis Hutchings is charged with attempted murder for firing at John-Pat Cunningham as he ran away from an Army patrol in 1974. Cunningham was killed, but prosecutors say it is uncertain if Hutchings or another soldier fired the fatal shot.

    Two British Army veterans are charged with the murder of Joe McCann, an IRA member. McCann was unarmed when soldiers shot and killed him on April 15, 1972.

    A week after Martin McGuinness resigned as Deputy First Minister in January 2017, Conservative MP Gerald Howarth accused the head of Northern Ireland’s Public Prosecutions Service of supporting Sinn Féin against former British soldiers accused in connection with Troubles killings.

    Using parliamentary privilege, Howarth claimed PPS director Barry McGrory warned news agencies that he would take legal action if their articles “alleges a lack of impartiality,” the BBC reported on January 17.

    Howarth said the alleged letter was an attempt to constrain the ability of MPs to support former British soldiers who may be charged in connection with legacy cases.

    McGrory represented Martin McGuinness in the Saville Inquiry into the events surrounding Bloody Sunday in 1972, which found that McGuinness, then an IRA commander in Derry, did not “engage in any activity that provided any of the soldiers with any justification for opening fire.” British soldiers opened fire at a civil rights protest in the city on January 30, 1972, shooting 28 people and killing 14.

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    Calls for a public inquiry into Bloody Sunday were rejected by Conservative Prime Minister John Major but his successor, Labour’s Tony Blair, set up the Saville Inquiry in 1998.

    The findings of the Saville Inquiry were released in 2010 by Conservative Prime Minister David Cameron who said: “I never want to call into question the behaviour of our soldiers and our army, who I believe to be the finest in the world … but the conclusions of this report are absolutely clear. There is no doubt, there is nothing equivocal, there are no ambiguities. What happened on Bloody Sunday was both unjustified and unjustifiable. It was wrong.”

    Accusations of bias by investigators

    Other Conservatives in the Houses of Commons and Lords have accused legacy investigators of focusing too much on former British soldiers and ignoring atrocities committed by the IRA and nationalist terrorists.

    They maintain that British Army soldiers responsible for deaths in The Troubles were acting lawfully and in the interest of the state.

    McGrory told the BBC that allegations of bias inaccurate, and the cases of former British soldiers made up “a tiny number of cases” the PPS handles every year.

    “I have been a professional lawyer for 30 years, during which period I have represented loyalist paramilitaries, republican paramilitaries, members of the DUP, the Official Unionist Party, members of Sinn Féin,” he said.

    The PPS’s role in the Troubles cases is to only determine if there is a case to answer. McGrory did not prosecute the cases in court.

    McGrory said on May 17 that he will step down as Director of Public Prosecutions when his term ends this September.

    On January 28, Secretary of State for Northern Ireland James Brokenshire wrote in The Telegraph that it was clear the Troubles investigations were not working, and “the current focus is disproportionately on those who worked for the state,” British soldiers and former members of the RUC.

    In a letter to Army veterans on March 9, Theresa May said her government was concerned that the system for dealing with legacy cases was “unbalanced” and “not working well in anyone’s interests.”

    Theresa May re-appointed Brokenshire to the position on June 11.

    Police statistics

    PSNI figures published by the BBC in February showed that killings by the British Army accounted for about 30 percent of its legacy investigations.

    Of the 1,118 killings PSNI teams are investigating, 530 are attributed to Republican paramilitaries, 271 to Loyalist paramilitaries, and 354 to the security forces. It is not known who was responsible for the other 33 killings.

    The 1,118 cases are those not reviewed by the Historical Inquiries Team. Of the 1,615 cases completed by the HET, 32 were attributed to the British Army, while 1,038 were attributed to Republicans and 536 were attributed to Loyalists. The HET did not determine who was responsible in nine cases.

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