An inquest opened in Belfast on November 30 to investigate the deaths of ten people killed in controversial circumstances in 1971. Yet despite a delay of over 40 years, the coroner was unable to set a date for a hearing due to the absence of funding.
This is not an isolated case. There are currently 56 cases involving 97 deaths in which the families of victims of the Troubles in Northern Ireland are still waiting for inquests, of which 22 have been waiting for over 40 years. They include the families of those killed in some of the most controversial cases of the conflict, including the Ballymurphy Massacre in 1971 when ten people were allegedly shot by the British Army in West Belfast, and the Kingsmills Massacre in 1976 when ten protestant workmen were allegedly shot by the Irish Republican Army (IRA) on their way home from work in South Armagh.
These so-called “legacy inquests” are simply one aspect of an ongoing battle over how to deal with the past in Northern Ireland.
A troubled legacy
In 2015, the Lord Chief Justice of Northern Ireland, Declan Morgan, indicated that all outstanding legacy inquests could be completed within five years, but that additional funding would be required.
Under the Fresh Start Agreement reached in 2015, the Westminster government agreed to make £150m available to fund four bodies set up to deal with the legacy of the past. These four institutions, created under the 2014 Stormont House Agreement, are the Historical Inquiries Unit, the Independent Commission for Information Retrieval, the Oral History Archive, and the Implementation and Reconciliation Group.
The Lord Chief Justice requested that £10m of this be released to allow the inquests to proceed. But his request was blocked by Northern Ireland’s first minister, Arlene Foster, from the Democratic Unionist Party. The reason she gave, in May 2016, was that the process was imbalanced, focusing on victims of alleged state violence at the expense of victims of IRA violence, many of whom have also not seen justice for their relatives. Such an imbalanced approach, she feared, would amount to a rewriting of the past.
Part of the concern relates to the function of an inquest under the 1998 Human Rights Act, which extended the powers of coroners to investigate controversial killings. Prior to the Act coming into force, coroners could not express any opinion on who was responsible for a death, nor a view on questions of criminal or civil liability. As a result of the Act, however, the function of an inquest was extended to include investigating the broader circumstances in which the death occurred. An inquest is now an integral element of the right to life as it helps to determine whether or not the use of lethal force was absolutely necessary in the circumstances of the case. This means a coroner could rule that a death is the state’s fault.
This applies whether the state was directly responsible for the death, as in the case of civilians allegedly shot by soldiers, or indirectly responsible, as in cases where there is a suggestion that the security forces could have or should have prevented an attack from occurring. This second category is particularly controversial in Northern Ireland as it appears to move responsibility for murders carried out by paramilitaries onto the local security forces, the Royal Ulster Constabulary.
The fear that such inquests might be a means of rewriting history has left some families caught in the middle of a political battle over how to deal with the past in Northern Ireland. The government will not release funding until political agreement is reached on the terms of the legacy inquests. This means that individual cases are delayed indefinitely while the political stalemate continues.
In an attempt to force progress, a number of families have sought leave for judicial review to try to force the executive to release the funding. This will be heard on December 14.
The Lord Chief Justice has been clear that he is under a legal obligation arising from the Human Rights Act to complete these inquests within a reasonable time. In November 2016, a UN rapporteur urged the government to release the funding requested by the Lord Chief Justice.
But the political pressure continues to build. The deputy first minister, Sinn Féin’s Martin McGuiness, is furious at the failure to make progress. Foster has remained silent on the issue since making her initial statement, and the secretary of state for Northern Ireland, James Brokenshire, continues to insist that political agreement must be reached before the funding will be released.
The law and the politics of the past remain inextricably entwined. Dealing with the past will always rewrite history, but injustice must be acknowledged where it occurred. The challenge is to find a way to ensure that the process is not one-sided. The fear of imbalance will become self-fulfilling if there is no engagement on new ways to meet the needs of the victims and survivors from all political communities.