Social ConteXt of the Law: Historic Trials of Soldiers

Sir Geoffrey Nice: The evening’s Social Context of the Law event concerns the deployment of members of our armed forces to Northern Ireland during the Troubles between August 1969 and July 2021. The April 1998 Good Friday Agreement left controversial legacy issues concerning accountability for possible crimes, especially alleged unlawful killings by and against all parties.

In July 2021, Boris Johnson’s government considered whether restorative justice would be preferable to criminal trials, generating criticism and anger from Northern Ireland’s political parties, from the Irish government and from families on all sides of those who’ve been killed and injured in the Troubles. Johnson’s Northern Ireland Troubles Act provided conditional immunity from prosecution for those who cooperated with investigations conducted by a newly established commission.

The Northern Ireland High Court and the Northern Ireland Court of Appeal found conditional immunities and other provisions of the Legacy Act to be incompatible with the European Convention on Human Rights. That led to this Labour government’s Bill – still working its way through Parliament – which will replace parts of the earlier Act, and indeed repeal some.
Is the proposed legislation fair and proportionate? Does it undermine the spirit of the Good Friday Agreement? Will it violate the principle that in the United Kingdom crimes such as murder are without restriction of any statute of limitations? Will the state be able to draw a line under the Troubles and move forwards for victims and veterans in the spirit of truth and reconciliation?

Will the state be able to draw a line under the Troubles and move forwards for victims and veterans in the spirit of truth and reconciliation?

Sir Nick Parker: This is not simply a technical legal issue, nor is it just about Northern Ireland. Nor is it about veterans, or servicemen and trials. This is a constitutional question about security, lawful authority and the democratic state. We can only judge the lawful use of force if Parliament, public debate and the legal process understand the context.

Northern Ireland sat awkwardly between policing, insurgency and concurrent evolving legal circumstances and frameworks, and this makes retrospective judgment hard. The key issue is that endless re-examination will weaken trust in the lawful authority of the state, and its moral legitimacy, and this has significant long-term implications for the security of the state.

Starting by looking at the human dimension – I am not seeking sympathy, nor am I suggesting immunity for those who served the state. Accountability is key, but the context is equally critical. The operational reality in Northern Ireland was extremely complicated. When you’re dealing with an insurgency, you tend to be reactive, because the insurgent normally has the initiative, and the consequences of tactical action by a soldier on the street will resonate in Whitehall, at the strategic level, rapidly. Democratic societies deliberately ask young people to make morally dangerous decisions that no court or seminar can ever properly recreate.

Now, the limits of resolution are clear, but our effectiveness along with the police brought all sides to the negotiating table and resulted in the Good Friday Agreement. It was a deliberately ambiguous solution to an intensely complex issue. And it was a remarkable shift from the gun to the ballot box, hugely successful. But its ambiguity is being exploited. Reconciliation becomes a battleground. And all attempts to produce some sort of truth and reconciliation structure have failed over the years. The Northern Ireland Troubles Bill brought in by the previous government was a clear attempt to do that. But there was no definitive political leadership from Westminster to use the Good Friday Agreement to draw a line under this endless search for retribution from all the sides involved in the conflict. I believe that post-conflict democracies have to decide whether an endless retrospective process is still serving peace, or has it actually become part of a continuing conflict?

So, what is the state’s obligation? In the current Bill passing through Parliament, some protections have been introduced which are, in my view, merely procedural protections inside process. I’m not arguing for immunity, but I’m asking for clarity and amendment to this Bill, which serves other political purposes. The Bill must state that only will servicemen or women be brought to account if there is compelling new evidence that has been scrutinised by a Supreme Court judge or somebody in the England and Wales judicial system. The issue here is not whether wrongdoing should be accountable, but it’s whether a democracy can distinguish between criminality and lawful service which has been carried out under its authority.

This isn’t just about the past. It is also about the strategic context in which we deliver security in an uncertain world. We have to have credible deterrence and defence. This isn’t just about kit, tanks, ships. This is about a willingness of our servicemen and women to fight. The idea of retrospective scrutiny in a hugely complex future security environment is terrifying to those who serve. The future depends on trust in the moral authority of the state, and this process risks undermining that. So, can a democratic state ask young men and women to exercise lawful force on its behalf while offering them no meaningful certainty that their actions will not remain open to reinterpretation for many years?

This isn’t just about the past.
It is all about the strategic context in which we deliver security in an uncertain world.

John Finucane MP: One of the difficulties in legacy discourse is that the conversation has increasingly become framed almost exclusively around whether former soldiers should continue to face investigation or prosecution decades after the conflict. The deeper question is whether any democratic society genuinely committed to the rule of law can credibly maintain that state actors should enjoy a lesser degree of scrutiny or accountability than anyone else involved in a conflict. That is not an anti-military position, but it is a constitutional one.

It is important to state that we are speaking about a very small percentage of the many thousands of British military and intelligence personnel deployed in Ireland over a period spanning almost 40 years. But where there exist credible allegations of murder, collusion, unlawful killing or serious criminal wrongdoing, those matters must be capable of independent scrutiny and lawful investigation.
It cannot be disputed that unlawful killings occurred during the conflict. Nor can it be disputed that, in many cases, there was collusion between state agencies and loyalist paramilitaries. And, in some instances, with Republican actors also. These are matters established across inquiries, inquests, judicial findings, ombudsman investigations and official state reports. In relation to the murder of my own father, Patrick Finucane, then British Prime Minister David Cameron formally apologised on behalf of the British state and referred to what he described as “shocking levels of collusion”. Yet despite that acknowledgement, there has never been meaningful accountability for the broader system of collusion surrounding his murder or indeed many, many others.

Very often, the reason these cases remain live today is because the original processes lacked independence, credibility or rigour. Bloody Sunday is one such clear example. The Widgery Tribunal was presented at the time as authoritative and conclusive. Yet decades later, the Saville Inquiry fundamentally dismantled its conclusions and established that those killed were unarmed and that the shootings were unjustified and unjustifiable.

The actual prosecution figures themselves are worth reflecting upon. Since the Good Friday Agreement, there has been one conviction of a former soldier, connected to the conflict, for manslaughter. One. And no custodial sentence followed. The Secretary of State also confirmed that of the current live prosecutions relating to the conflict, the overwhelming majority concern non-state actors. That reality sits in stark contrast to the public narrative here that former soldiers are uniquely persecuted by the legal system.

Accountability before the law cannot become conditional upon the identity of the suspect. That is where some of the historical asymmetry in this debate becomes important. Academics estimate that during the conflict more than 15,000 Republicans were imprisoned alongside many thousands of Loyalists. The British state demonstrated enormous capacity to surveil, investigate, detain, interrogate and prosecute. At the same time, however, the state itself occupied an entirely different position from every other actor in the conflict. It controlled policing, it controlled intelligence, it shaped emergency legislation, it shaped the legal framework through which the conflict was administered, and in many respects, it shaped the architecture of accountability itself.

That distinction matters enormously. Because this is not simply a debate about individual soldiers. It is a debate about whether the state itself can ever be meaningfully accountable before the law when the state is also the institution defining the limits of accountability. Ultimately, I suspect most families affected by the conflict understand that no legal process can undo their loss. But many still believe that truth, accountability and equal application of the law remain essential if reconciliation is to have any durable or credible foundation. And the real test for any democratic society is not whether it applies those principles when it is easy or politically convenient. It is whether it is prepared to apply them consistently even when the scrutiny falls upon the state itself.

Lord Falconer: This is SUCH an important issue, and it determines the extent to which our society is willing to adhere to the principles of law and not simply do that which is politically convenient. During the Troubles in Northern Ireland, 3,520 people lost their lives. Between August 1969 and July 2007, 1,441 UK military personnel died. The rest who died were civilians. And of those civilians who died, 301 of them were killed by the British military.

Can we just wipe the slate clean on both sides and say, ‘OK, we’re not going to investigate any more whether the military and the state apparatus was guilty of murder, or other crimes and equally we’re not going to investigate any more whether people who weren’t part of the state apparatus were guilty of crimes.’ I don’t think that we can, and there is absolutely no support in Ireland, both sides of the border, for such a wiping of the slate clean.

Listening to both John and Nick, they both clearly accept, rightly, there can be no abandoning of the criminal law. And the criminal law has got to be enforced fairly and equally to all. I understood Sir Nicholas Parker to be saying he does not want immunity from prosecution for the military. What he wants is a degree of understanding that there will be pressures on the military that might make acts done 50 or 60 years ago look criminal now, when with a proper understanding of the context at the time there would be circumstances – for example genuine fear or an understandable spur of the moment reaction there was legitimate a self-defence, and it wasn’t a crime. And moreover, he makes the very valid point that soldiers serving their country need some sense, after a possible crime has been investigated and they have not been charged, that the same facts will not be raked over again.

Both points have validity; I completely agree that the context has got to be looked at in considering whether there is a crime, and the same investigation should not be repeated.

But there is absolutely no doubt that what some agents of the state did was unequivocally murder, or collusion in murder.

But there is absolutely no doubt that what some agents of the state did was unequivocally murder, or collusion in murder.

I was the Solicitor General at the time that the British state decided it would revisit the Widgery Inquiry into Bloody Sunday. The Widgery Inquiry, which is a short, absolutely appalling, document by the Lord Chief Justice of England and Wales and in effect an apologist for the way that the military behaved, not an objective judge of their conduct. And the last part of that inquiry contains a description in which even Lord Widgery acknowledges that a number of the deaths at Bloody Sunday were people shot in the back whilst running away. If you have a situation where the Lord Chief Justice himself becomes an apologist for criminal behaviour, then faith in the criminal justice system will be completely gone.

What the government has tried to do in its new Bill is get rid of the ‘immunity for everybody’ approach contained in the previous Bill, which has rightly been struck down by the courts. You cannot expect to be protected by the criminal law, whether or not you’re a soldier, if it can be set aside for political expediency as a result of pressure from the media. As part of a mega peace deal, amnesty is significant and sensible. Because of a political campaign which the Daily Mail supported, no. It does not mean the law cannot be improved.

But the criminal law cannot be set aside wholesale. Patrick, John’s father, was a solicitor who was engaged in defence work, defending many people who had been charged as a result of their involvement in the Troubles, and he was gunned down by gunman, assisted by agents of the state. Of course we should understand context, and we should not subject uniformed and other agents of the state to repeated investigations on the basis of the same material.

We shouldn’t have immunity. We should have an understanding of context, just as there should be in any prosecution.
I also think it’s right that if the matter has been already investigated by a genuinely independent investigative body, then there needs to be new evidence before the particular person, whether a soldier or somebody else, should be investigated again.

I think the Bill is the right Bill. I think we should certainly talk about whether or not the protections for everybody are enough, but broadly the principle of the Bill is right.

General Sir Nick Parker KBE CBE DL
Former Commander Land Forces

John Finucane MP
Sein Féin, Belfast North
The Rt Hon the Lord Falconer of Thoroton
Former Lord Chancellor and Secretary of State for Justice

Sir Geoffrey Nice KC

For the full video recording:
innertemple.org.uk/historictrials