16 May 2019

Whatever Penny Mordaunt’s intentions, a solution for Northern Ireland veterans remains unlikely

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The new defence secretary, Penny Mordaunt, has recently announced proposed new laws that could protect members of the armed forces from being pursued for alleged historical offences committed on duty abroad. This ‘statutory presumption’ against prosecution will not apply to incidents that took place in Northern Ireland, where two former soldiers are already awaiting trial after Troubles-related investigations.

The government is currently finalising its response to a consultation into proposals for dealing with the legacy of the past in the province. These include a controversial plan to establish a Historical Investigations Unit (HIU), which critics believe will focus limited resources on investigating the comparatively small number of killings that were the responsibility of British troops, rather than the overwhelming majority of murders perpetrated by terrorists.

During her announcement, Ms.Mordaunt acknowledged the threat posed by an unbalanced approach to Troubles prosecutions. She called for legal safeguards to prevent repeated investigations into incidents involving servicemen and women. “It is not going to be resolved overnight,” the Defence Secretary said, “it is a personal priority of mine that we get this resolved and we stop this chilling effect that is claiming veterans who really deserve our care and respect.”

Ms. Mordaunt says she will liaise with Karen Bradley, the Northern Ireland secretary, to make sure that the interests of troops who served in Ulster are prioritised by the government. However, the Conservative MP and former army captain, Johnny Mercer, believes the planned legislation should cover incidents in the province and his position is supported by the DUP.

“Northern Ireland represents a particular challenge,” Mercer told Sky News. “The way that conflict was framed at the time, it was not classed as a war even though it had many traits of wartime activity.” The MP for Plymouth Moor View has promised he won’t vote for any government legislation, other than Brexit related bills, until historical prosecutions of service personnel cease.

The DUP, which is in electioneering mode ahead of next week’s European election, issued a blunt and accusatory response to the Defence Secretary’s plans. Its MP, Gavin Robinson, alleged that the proposals were “driven more by leadership ambitions within the Conservative Party and jockeying for position than … providing protections for veterans.”

Yet, the DUP’s preference for exempting servicemen and women from prosecution is not supported by every politician in Northern Ireland, even those who are unionists and ex-soldiers. The rival Ulster Unionist party’s Stormont Assembly team includes veterans like Doug Beattie MLA, who won a Military Cross in Afghanistan, and Andy Allen MLA, whose legs were amputated above the knee, after he was blown up by a Taliban I.E.D. in Helmand province.

Beattie believes that the proposed legislation would amount to a “virtual amnesty” if it applied to Northern Ireland. On Twitter yesterday, he criticised the DUP for demanding measures that would inevitably “cover terrorists”, arguing that, if they included Ulster, Mordaunt’s plans would become a “statute of limitations by another name” and “create an equivalence” between troops and members of paramilitary groups.

The UUP’s position is that anything that resembles an amnesty or statute of limitations for troops effectively prevents further investigations into terrorist murders. Sinn Féin would then be completely free to perpetuate the fallacy that the IRA’s campaign was a justified reaction to state violence. The Ulster Unionists argue that the solution is to balance investigations fairly, rather than stop prosecutions entirely.

According to this analysis, the main threat to soldiers comes from the government’s legacy consultation, whose structures are based on the Stormont House Agreement that the DUP and Sinn Féin signed in 2014. The HIU is the centrepiece of these plans and it is likely to take on the PSNI’s lopsided caseload, as well as hundreds of allegations against the Royal Ulster Constabulary. Doug Beattie believes it’s ironic that the DUP supports a statute of limitations, while it is partly responsible for a body, “whose caseload would see the reinvestigation of every Troubles-related killing by the military and police, while ignoring many terrorist atrocities”.

Victims’ groups suspect that the new legacy structures will leave them searching for truth and justice, while investigations continue to focus on the small number of deaths caused by the security forces. The consultation document includes a ‘non-criminal misconduct charge’ targeting police officers alive and dead, that is likely to be used to blacken the names of former members of the RUC, who served bravely protecting lives and property.

The state was responsible for 10 per cent of killings that took place during the Troubles and all of them are being investigated, even though many will have been lawful. In contrast, the IRA was responsible for two thirds of deaths, the vast majority of them unsolved, and every one of them was murder. Just 45 per cent of the caseload involves these republican killings and the prospect of convictions is remote.

Penny Mordaunt may want to confront this glaring unfairness, but it won’t be easy to do. The current talks to restore power-sharing in Northern Ireland are linked closely to tacit understandings on legacy and any attempt to address the imbalance in Troubles’ investigations will infuriate Sinn Féin.

There is a contradiction in the government’s stance: the Defence Secretary talks about protecting soldiers who served in Northern Ireland from prosecution, while the Northern Ireland Secretary puts the final touches to proposals likely to make them the target of more investigations. For veterans who want assurances that they will not be pursued, as well as victims of terrorist violence who want justice, a feasible solution seems as far away as ever.

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Owen Polley is a writer, commentator, consultant, and the co-author 'An Agenda for Northern Ireland After Brexit'