For the victims and survivors of the Troubles, justice delayed is the same as justice denied
There is no perfect way of dealing with the past; sometimes you just have to get on with it, writes Alban Maginness
It is not often that the head of the judiciary becomes involved in public debate, but last week the Lord Chief Justice, Sir Declan Morgan, expressed frustration and publicly urged our political leaders to come to an agreement to expedite legacy issues.
He referred to the fact that, in February last year, he publicly stated that the remaining legacy inquests — 56 of them involving 98 deaths — could be dealt with within five years if he received the appropriate funding from the Executive.
He was ready to set up his own specialist unit to address the backlog of legacy cases. To date, he said, he had not received a response to his request and expressed his “deep frustration”. He stated: “A lack of resources has constrained our ability to deal with the backlog of legacy inquests.”
He said in the same interview with the BBC that there must be concerns whether inquests into some of the most controversial killings of the Troubles would ever be completed, but said it was down to political leaders to resolve their differences and find a solution.
He further stated that it was “very difficult to see how ordinary people can be expected to wait much longer”.
Legacy inquests, along with hospital waiting lists and education cuts, are more collateral damage arising out of the unnecessary stalemate and political paralysis at Stormont. The major players are still at one another’s throats, indifferent to the negative impact on ordinary people’s lives.
While some take the view that the past should be let go and that we should build a future without looking back, it has been proven time and time again in other post-conflict situations that the past must be addressed in some form or other.
This happened in South Africa as a planned way forward. But in Chile and Argentina there were no such plans agreed and it became unsustainable for there not to be a process for addressing the past. It became clear in these places that it was simply politically impossible to successfully move on without dealing officially with the past. There is no perfect formula for doing this, but it has to be done.
Unsurprisingly, here we still have not reached a fully agreed position, despite various attempts, including the Haass/O’Sullivan talks in 2013.
The Fresh Start Agreement between the DUP and Sinn Fein in November 2015 was the last attempt. There it was agreed, in outline at least, that an historic investigations unit should be set up, along with an oral history archive, but the final details were not agreed.
The British Government also committed itself to funding legacy issues through the Executive. It is to this funding that Sir Declan Morgan referred.
Yet nothing has been done by the Executive with legacy inquests since the Fresh Start Agreement and the issue has been left to fester, due in the main to the DUP refusing to agree to the release of the necessary funds to the courts.
Arlene Foster, as First Minister, specifically blocked a request for funding of £10m for the judicial initiative.
While the initial responsibility for funding the legacy inquests lies with the Executive, the ultimate responsibility for this most certainly lies with the British Government, as it is the member state that has the legal responsibility under Article 2 (the right to life) of the European Convention on Human Rights.
Now that well over a year has passed since the Lord Chief Justice outlined his scheme, it is surely time for the British Government to act.
In no other democratic country would the central government kowtow to the arbitrary and obdurate dictates of a party like the DUP and ignore the reasonable suggestion of the most senior judicial figure in the jurisdiction.
The Secretary of State, James Brokenshire, could — and should — unilaterally provide funding for the initiative, but, inexcusably, has chosen not to do so, thereby frustrating the hopes of the families of victims of the Troubles that they could achieve some closure over the next five years of their declining lives.
James Brokenshire lamely claims that any settlement of this issue must be within the context of a wider political agreement on how to deal with the past. In short, he has unfairly handed a political veto to the DUP on legacy inquests and dealing with the past.
The fact is that there is a binding and solemn legal obligation on the British State and Government to ensure inquests into some of the most controversial killings of the Troubles.
Not to do so in a timely and effective manner is legally unacceptable, contrary to Article 2, and frustrates the legal process.
Enough is enough. It is time this was done.