Sir Keir Starmer’s Northern Ireland veterans’ tsar has branded plans to axe a law protecting Troubles veterans from prosecution as “immoral” and “two-tier justice”.
David Johnstone, the veterans’ commissioner for Northern Ireland, said that repealing the Legacy Act would lead to “vexatious lawfare” against former soldiers.
He told The Telegraph that up to 70 former soldiers would be forced into the dock “for doing their jobs” fighting the IRA on behalf of the British government.
Mr Johnstone, a former Army reservist, was appointed by Hilary Benn, the Northern Ireland Secretary, in January to act as an independent voice for veterans.
He has demanded that the Government abandons its plan, claiming that it will lead to a situation where former IRA terrorists have legal protections not afforded to veterans.
The high-profile intervention will be another blow to Labour’s legislative agenda, as the proposals face mounting opposition and protests by the Armed Forces community.
Parliament will hold a debate next month after a petition demanding protections for veterans against Troubles prosecutions garnered more than 145,000 signatures.
The 2023 Legacy Act put an end to fresh historical inquests into deaths that occurred in Northern Ireland during the Troubles, as well as civil actions.
It created the Independent Commission for Reconciliation and Information Recovery (ICRIR), which would review deaths and serious injuries that occurred during the conflict.
However, Labour pledged in its manifesto to scrap the legislation, which it said was unpopular with Irish political parties and victims’ groups as well as being incompatible with the European Convention on Human Rights (ECHR).
The plans to repeal the legislation have caused alarm among veterans, who are worried that they will be forced into legal proceedings for actions they took decades ago.
Speaking to The Telegraph, Mr Johnstone said that it was wrong to persecute veterans for “doing their jobs” when many Troubles-era attacks on British soldiers were never investigated.
He said: “It’s lopsided, it’s two-tier justice, and if the Government thinks that they can reverse this and there not be pushback from veterans, well, I think they’re in for a surprise, because veterans are just not going to stand for it.”
Mr Johnstone added: “The pressure is on that this British Government should not make reversals that will put soldiers in the dock for doing their jobs.”
He estimates that 33 inquests would “almost certainly” be allowed to proceed if the legislation is repealed, around half of which involve state forces pulling the trigger.
“You could be looking at 50, 60, 70, soldiers having files passed to the PPS [Northern Ireland’s public prosecution service], many of them ending up in the dock,” he said.
Mr Johnstone said that repealing the law as the Government plans to would lead to a “lopsided” approach to post-Troubles justice.
One of the most controversial elements of the 1998 Good Friday Agreement saw paramilitary prisoners released from jail as part of securing an end to the conflict.
The Commissioner said: “The then-Labour government came to the society in Northern Ireland, and said, ‘Look, in order to have peace, you must accept terrorists being let out of jail… royal pardons, effective amnesty for terrorists’.
“Then there was the decommissioning of weapons, which meant that the evidence that could have put terrorists in prison was destroyed.
“So society was asked to accept all of those things. And yet, 27 years on, we have this ongoing vexatious lawfare which is targeting and demonising those who wore the uniform.”
He continued: “It was a legal Act of Parliament that sent them here. When they went out on the ground, and particularly the incidents that are caught up in these inquests, those soldiers were given orders by superior officers, and they carried out those orders.
“So the demonisation and this attempt to rewrite history is really why there is such a pushback among veterans.”
One of the men who could be caught up in the courts is Glen Espie, formerly a part-time soldier of the Ulster Defence Regiment, who survived two revenge murder attempts by the IRA.
Mr Espie took part in an SAS operation in Loughgall, Co Armagh, in March 1987, when an IRA unit mounted a gun and bomb attack on the local police station.
All eight members of the unit were shot dead after a gun battle. A civilian was also killed.
Mr Johnstone warned that Loughgall will be “one of the first inquests that will come down the line” if the Legacy Act is repealed.
“Where is the inquest into the attack on Glen Espie and the many other thousands of people who lost their lives in Northern Ireland and many, many more who are injured and who carry the scars of the Troubles?”
Mr Johnstone grew up in Northern Ireland and is himself a former soldier, having signed up for the Royal Irish Regiment Reserves in 1988, before going on to serve in Iraq in 2004.
As part of his role, he has spoken to many ex-servicemen who served during The Troubles, now mostly in their seventies and older, who fear ending up in court.
“I don’t know any veterans that are afraid of the truth. But veterans, as far as they’re concerned, followed the law. They were given orders.
“In that scenario there’s something immoral about dragging them through a legal process, particularly when it’s clear it is just part of a wider vexatious lawfare.”
In February last year, the High Court in Belfast ruled that elements of the Legacy Act passed by the Tories breached the ECHR.
Opponents who brought the legal challenge said that the parts of the legislation breached Articles 2 and 3, the Right to Life and the Prohibition of Torture.
Veterans’ concerns have become more acute after an inquest earlier this year ruled that SAS soldiers were not justified in opening fire and killing a gang of IRA men in Clonoe, Co Tyrone, in 1992.
Kevin Barry O’Donnell, Sean O’Farrell, Peter Clancy, and Patrick Vincent died after carrying out a machine gun attack on the nearby Coalisland RUC station during which 60 shots were fired but nobody was injured.
The coroners’ report cites previous judgements on whether the use of force was compatible with Article 2 of the ECHR.
While the Government has challenged the ruling and plans to submit it for judicial review, Mr Johnstone said that the judgement had “set alarm bells among the veteran community”.
Mr Benn told the Commons in December that he would seek to “correct the mistakes of the previous government’s approach, ensure compliance with the ECHR, and deliver on what this Government has promised”.
But Mr Johnstone said: “The ECHR was not designed to be applied to terrorists. It was designed for innocent people”.
The commissioner has met with Mr Benn in person twice, and the subject of the second meeting was specifically how to deal with legacy issues.
“There’s no doubt that his ear is open to receiving the information about the feelings of veterans,” Mr Johnstone said.
But he added: “The default seems to be, ‘Well, it was in our manifesto, we’ve promised to do this, therefore we have to do it’, as opposed to, well that promise may have been made in good faith during the campaign, but you must face the reality of now.”
The commissioner also warned that scrapping the Act would have a detrimental effect on recruitment to the military.
“Why would any young person want to join the military, if 50 years after an incident, in say, Ukraine, or whatever operational environment, there could be a knock at the door in the middle of the night and you’re dragged through court proceedings potentially charged with murder,” he said. “It just defies belief.”
Mr Johnstone mentioned the case of Dennis Hutchings, a Troubles veteran who died in 2021 aged 80, while he was on trial in Belfast over a 1974 shooting.
He also recalled appearing at a ceremony commemorating the 80th anniversary of VE Day, and meeting an elderly veteran who served in Operation Market Garden in the Netherlands.
“The contrast between a man who is lauded for answering the call of his nation and going to Market Garden in the Second World War, and then Dennis Hutchings, who was only 20 years younger, dying in a hotel room on his own, dragged through 10 years of court for what?” he asked.
“For answering the call of his nation, donning the uniform and following orders.”
Mr Johnstone said: “Surely as a society, we’re better than that, and this is why I feel like the Government has to really take a step back.”
Mr Benn insisted that the Government was right to scrap the effective Troubles amnesty.
He said: “The Legacy Act has been rejected in Northern Ireland and found by our domestic courts to be unlawful, not least because it would have offered immunity to terrorists. Any incoming government would have had to repeal unlawful legislation and it is simply wrong for anyone to suggest otherwise.”
He said that the Government’s commitment to veterans in Operation Banner [the deployment of British troops to Northern Ireland] was “unshakeable”
He added: “The Legacy Act did nothing to help our veterans – it offered only false and undeliverable promises.
“I and the Defence Secretary are engaging with our veterans community and with all interested parties over future legislation, and we will ensure that there are far better protections in place.”