No one is above the law – but British soldiers must be treated fairly
London, 2022. British army veterans march from Trafalgar Square demanding that the Government end all prosecutions of Northern Ireland veterans (Karl Black / Alamy)
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When Mr Justice Lynch found Soldier F not guilty of murder and attempted murder last month, he effectively drew a double line under any further trials of British military veterans relating to the Troubles.
Flying in the face of good legal practice, the pursuit of a conviction 53 years after the events of Bloody Sunday suggests that political pressure was more powerful than the pursuit of justice. Mr Justice Lynch put the matter quite clearly when he said: “To convict, it has to be upon evidence that is convincing and manifestly reliable. The evidence presented by the Crown falls well short of this standard…”
This trial sums up the dilemma that successive governments have faced since the Good Friday Agreement: how to treat British soldiers fairly. Terrorists were pardoned or released from prison while British soldiers waited anxiously for a knock on the door.
No one is above the law, but the administration of the law must be on a level playing field. No objective commentator would condone the activities of certain members of the British army in January 1972. Eventually in 2010 the Saville Inquiry reported unequivocally that the army had been at fault and quite properly the then-prime minister David Cameron apologised in the Commons. It was a black day for the army and more particularly for the Parachute Regiment.
Of the fatalities during the Troubles, 90 per cent were at the hands of the terrorist groups
However, Bloody Sunday, and a very few other incidents where soldiers have been accused of acting unlawfully, must not define the reputation of the British army during the 38 years of Operation Banner between 1969 and 2007. The vast majority of soldiers got up in the morning to do their duty diligently and within the law. This contrasts with nationalist and loyalist terrorists who set out to maim and kill. Of the fatalities during the Troubles, 90 per cent were at the hands of the terrorist groups. Most of the other 10 per cent occurred during incidents involving the army or police operating within the rules of engagement.
The unlevel playing field is the direct result of the professionalism of the army and the police. Detailed patrol and incident reports were written and filed securely. The terrorist groups kept no such records. Over the years, investigators have always begun their inquiries by interviewing soldiers and police personnel who have never known if they were considered to be suspects or witnesses. Many old soldiers have now died not knowing the answer to that question.
The Northern Ireland Troubles (Legacy and Reconciliation) Act of 2023 resolved this issue for veteran soldiers by the ending of further criminal trials and inquests. But under increasing political pressure, the process has now begun to repeal the act. A new bill has been introduced to amend the 2023 legislation and improve its ‘truth recovery’ ambition – but the safeguards for old soldiers have been removed.
The desire by the Secretary of State for Northern Ireland Hilary Benn that the future arrangements should be agreed by both London and Dublin takes the safety of its former soldiers out of the sovereign hands of their own government. Ministers were keen to announce six protections for former soldiers, but they do not appear on the face of the amended legislation.
If MPs do not seek their inclusion, I am certain that peers in the Upper House will endeavour to do so. And there is a wider issue here – if potential recruits to our armed forces do not believe that their government will stand by them when performing their duties in a lawful manner, why risk joining in the first place? Short-term political issues must not be allowed to prejudice the future security of our nation.
Lord Dannatt is a crossbench peer who served as Chief of the General Staff from 2006 to 2009
