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Challenges to the British perspective on human rights in the devolved nations

British exceptionalism, human rights and the accountability of the state in the case of Bloody Sunday in Northern Ireland

Exceptionnalisme britannique, droits humains et responsabilité de l’Etat dans le cas de Bloody Sunday en Irlande du Nord
Charlotte Barcat

Résumés

Cet article se penche sur le cas célèbre de Bloody Sunday, vu à travers le prisme de l’Article 2 de la Convention Européenne des Droits de l’Homme et du Human Rights Act, dit du « droit à la vie ». Il vise à démontrer que cette étude de cas est particulièrement pertinente lorsqu’il s’agit de mettre à l’épreuve le discours sur un supposé « exceptionnalisme britannique », souvent repris à son compte par le Parti conservateur, qui tend à prétendre qu’il existerait une culture indigène de protection des droits humains au Royaume-Uni, rendant superflue voire nocive l’intervention de règles venues d’institutions européennes. Le cas de Bloody Sunday n’est pas forcément le premier qui vient à l’esprit lorsque l’on parle de l’Irlande du Nord et de la Convention Européenne des Droits de l’Homme. Pourtant, il est légitime de penser que la Convention, ainsi que le Human Rights Act, ont joué un rôle important pour obtenir l’ouverture d’une seconde enquête publique sur le sujet (l’enquête Saville), permettant au moins que la version officielle de l’événement selon l’Etat britannique soit révisée en faveur d’une version davantage en adéquation avec la réalité des faits, après des décennies de déni officiel.

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Introduction

  • 1 Vernon Bogdanor, The New British Constitution, Oxford: Hart Publishing, 2009, 55, emphasis (...)
  • 2 Feargal Cochrane, Northern Ireland: The Fragile Peace, New Haven: Yale University Press, 20 (...)
  • 3 With the major difference that, unlike the Northern Ireland Assembly, the Westminst (...)

1When speaking of human rights issues in the UK, Northern Ireland is probably the most likely to provide examples which undermine the narrative of Britain as a harbinger of human rights. It seemed quite obvious to Vernon Bogdanor, who wrote in The New British Constitution: “It could be argued that rights in Britain, with the significant exception of Northern Ireland, were better protected than in many countries with codified constitutions”.1 Thus, it is not surprising that integration of the ECHR into Northern Irish law should have been made a condition for the signing of the Belfast Agreement (or Good Friday Agreement), which officially brought the “Troubles” in Northern Ireland to an end on April 10, 1998, after thirty years of conflict.2 The Human Rights Act (HRA) did more than integrate the ECHR into Northern Irish law, as it also integrated it into UK domestic law at large.3

  • 4 See the introduction of this volume for more details about statements by Conservative (...)
  • 5 The European Convention on Human Rights (ECHR) originated from the Council of Europ (...)

2Yet, from its inception but with more insistence since 2005, the European Convention on Human Rights (ECHR) and the Human Rights Act (HRA) have often been criticised by British politicians, especially members of the Conservative Party.4 Underpinning their discourse was a myth known as “British exceptionalism”: the belief that the UK, having a long-established and prestigious native tradition of rights protection going back to the Magna Carta, and a strong claim to the title of “oldest democracy in the world”, would be intrinsically capable of protecting human rights, without needing to be bound by human rights legislation originating from a European body – in this case the Council of Europe.5

  • 6 The ECtHR fell short of calling the 5 techniques “torture”, though it considered they still (...)

3Among the many events that involved allegations of human rights violations by the British state in Northern Ireland, some are best known for having actually been taken to the European Court of Human Rights (ECtHR) in Strasbourg: the “Hooded Men”, who were arrested in 1971 after the introduction of internment without trial, and submitted to “deep interrogation”, obtained with the support of the Republic of Ireland a ruling from the ECtHR that the UK had violated Article 3 of the ECHR, which prohibits torture as well as “inhuman and degrading treatment”.6 This paper, however, will focus on another case: that of Bloody Sunday (January 30, 1972) in Derry/Londonderry. This case, although well-known, has not often been analysed in relation to the ECHR and the HRA, and yet, this article aims to show that it is relevant to assessing their impact.

  • 7 John Johnston was shot once in the leg and once in the shoulder on Bloody Sunday, and died (...)
  • 8 Lord John Passmore Widgery, Bloody Sunday: Lord Wigdery’s Report, 1972, London: Her Majesty (...)
  • 9 See for example: Samuel Dash, Justice Denied: A Challenge to Lord Widgery’s Report on “Bloo (...)

4“Bloody Sunday” was the name given to Sunday 30 January, 1972, when the British army killed 13 civil rights marchers and wounded at least 17 others7 in the city of Derry/Londonderry during a protest against internment without trial. In addition to the loss of life and injuries, Bloody Sunday was also characterised by a major controversy regarding the events themselves: soldiers claimed to have fired in self-defence, while civilians claimed the victims had been unarmed. This led to a parliamentary resolution setting up a public inquiry, the Widgery Inquiry, on February 1, 1972. The Widgery report, published on April 18, placed most of the blame on the marchers, cast doubts on the victims’ innocence in spite of not finding any clear evidence that they had fired at the soldiers, and largely exonerated the army from breaking the rules of engagement (which defined when soldiers were allowed to fire at civilians).8 The findings of the Widgery Inquiry were a harsh blow to both the civil rights movement and the victims’ relatives. Although several very detailed analyses of the Widgery Inquiry and of its report exposed their many flaws in the weeks and months that followed, no action was taken by the British government to address them.9

  • 10 David Cameron, House of Commons debates, vol. 511, June 15, 2010, “Saville Inquiry”, col. 7 (...)
  • 11 Stephen Baker & Greg McLaughlin, The British Media and Bloody Sunday, Bristol: Intellect Lt (...)

5It was only in 1989 that victims’ relatives and local activists, with the help of human rights lawyers, began to set up a campaign, which officially became the Bloody Sunday Justice Campaign in 1992. The start of the campaign was difficult, with Conservative Prime Minister John Major repeatedly refusing to re-open an inquiry throughout 1993. This changed only in 1998, with the return of Labour to power after 18 years in opposition. The new Prime Minister, Tony Blair, had been clear in his commitment to relaunch the peace process, and eventually agreed to introduce a resolution in Parliament to set up a second public inquiry on January 29, 1998 – an unprecedented decision in the history of the UK. It would be officially named “The Bloody Sunday Inquiry”, but became known as the Saville Inquiry, after Lord Mark Saville, the judge who was given the task of chairing the inquiry. The Saville report, published on June 15, 2010, departed completely from the Widgery report by finding that the firing on Bloody Sunday had been unjustified and that none of the victims had posed a threat to the soldiers at the time they were shot. In a speech in the House of Commons, the newly appointed Conservative Prime Minister, David Cameron, offered an official apology in the name of the British government.10 The report was very well received by the campaigners and mostly by the press, although right-wing newspapers, especially the Daily Mail and the Daily Telegraph, tended to denounce the criticism against the army.11 Since then, some of the victims’ relatives have tried to move forward with prosecutions, but ran into even bigger difficulties, and were still waiting to see a soldier in court in 2022, 12 years after the Saville report and 50 years after Bloody Sunday.

6In terms of human rights, Bloody Sunday, as an example of the state killing its citizens, constituted an “Article 2” issue: Article 2 of the ECHR and from 1998, of the HRA, protects the “right to life”. It is arguably a very good case against which to test British claims of “exceptionalism”, and to show the value of legislation such as the ECHR or the HRA in safeguarding human rights in the case of Northern Ireland. First, it will be necessary to provide background about the self-representation of the British state and the myths upon which it is built: British exceptionalism, but also, in the case of Northern Ireland, the idea of a state acting as a neutral arbiter in a conflict between two communities (also known as the “internal conflict” or “honest broker” interpretation). Then, we will see why the Saville Inquiry can be seen as an “Article 2 inquiry” with procedures that were largely inspired by ECtHR jurisprudence as well as the HRA. Finally, when testing the claims of British governments that the British parliamentary tradition alone can best protect rights, it will be interesting to analyse the major difficulty that acknowledgment of wrongdoing by the army presents for the British state.

Self-representations of the British state

7In “The Magna Carta’s Tainted Legacy: Historic Justifications for a British Bill of Rights and the case against the HRA”, Colin Murray explains how the discourse used by the Conservatives under David Cameron and Boris Johnson tended to insist that the UK, because of its history, could legitimately claim to have a sort of ingrained understanding of human rights:

  • 12 Colin Murray, “The Magna Carta’s Tainted Legacy: Historic Justifications for a (...)

David Cameron […] has maintained that fair hearing rights, habeas corpus and protections against torture are ‘sewn into the fabric of our nation, so deep we barely even question it’, suggesting that adherence to the ECHR is distorting this understanding of rights. In claiming that ‘this country has always been a beacon for liberty and democracy’, government ministers have reached back centuries to the ‘tradition embodied in Magna Carta, the Petition of Right, the Bill of Rights, the Claim of Right and other statutes’. 12

8This “British exceptionalism” is also deliberately framed so as to suggest that human rights standards coming from European institutions, whether it is the ECHR, the Strasbourg Court, or the HRA, are foreign imports, which are presented at best as superfluous, and at worst as harmful to the protection of rights in the UK:

  • 13 Ibid., 35.

First, Magna Carta’s indigenous character has been used as a rallying cry against the incorporation of the ECHR’s “foreign” legal values through the HRA. Second, because the HRA has been characterised as alien to the UK’s constitutional landscape, Magna Carta supports claim that the UK has a unique history of constitutional liberty. This lays the groundwork for a Bill of Rights which reduces substantive rights protections and side-lines the Strasbourg Court. Third, the Conservatives’ claims that the UK’s constitutional history makes it a particularly trustworthy country when it comes to upholding human rights challenges the underlying ethos of international human rights protections.13

9It is important to point out here one of the characteristics of the conflict in Northern Ireland, which is that it came to an end with no clear winner, and without any significant break that could have amounted to a change of regime at the top of the state: even though the Good Friday Agreement involved the setting up of new devolved institutions for Northern Ireland as well as bodies for cross-border and British-Irish cooperation, at the UK level, no major change took place in terms of political institutions or of the parties that alternated in power. As Marie Breen Smyth pointed out, this has an impact on the question of truth recovery in relation to truths that are uncomfortable for the state:

  • 14 Marie Smyth, “Truth, Partial Truth, and Irreconcilable Truths: Reflections on the (...)

A further function of truth recovery is that it serves to inject into the dominant historical discourse, which typically omits entirely certain aspects of the past, accounts of hidden, shameful, and underrepresented past events. Part of the process of regime change involves re-writing history to include those aspects of the past that the ancien regime wished to deny or hide. In Northern Ireland, however, this is not a straightforward matter since the ancien regime remains a much more central part of the new regime under the power-sharing arrangements of the new Assembly, than the South African National Party did even under the transitional Government of National Unity. 14

10This fundamentally impacts mechanisms for accountability, understood here as meaning acknowledgment of the facts (or “truth”) and the holding to account of those responsible (or “justice”), since there is continuity between the governments who were in power at the time of the conflict, and those that have to deal with the demand for accountability.

  • 15 Graham Dawson, Making Peace with the Past? Memory, Trauma and the Irish Troubles, Mancheste (...)
  • 16 John Whyte, Interpreting Northern Ireland, Oxford: Clarendon Press, 1990, 194, 202.
  • 17 Ibid., 203.

11The myth of “British exceptionalism” and the self-representation of the British state as a benevolent, naturally protective institution is reminiscent of another myth, specific to Northern Ireland, which Graham Dawson calls the narrative of the “honest broker”: this narrative frames the British state as a neutral mediator in the Northern Irish conflict, simply trying to keep the peace between two “warring tribes”.15 This representation can be considered as a declination of John Whyte’s “internal conflict” interpretation. In his seminal 1990 book Interpreting Northern Ireland, attempting to classify academic literature on the Northern Ireland conflict, and the various interpretations found in this literature, Whyte had concluded that the “internal conflict” interpretation had become dominant among academics. Although he noted that it had been “surprisingly late in emerging” next to the “traditional nationalist” and “traditional unionist” interpretations, he asserted that “the dominance of the internal-conflict approach was assured by the early 1970s, and has continued unabated since”.16 Moreover, he added, “Nor is the popularity of the internal-conflict approach confined to writers. It had spread to politicians”.17

12Bill Rolston, writing in 2002 about the role of the state in the conflict, shared this opinion that the “internal conflict” interpretation had indeed become the dominant one:

  • 18 Bill Rolston, “Assembling the Jigsaw”, op. cit., 88.

The role of the British state in the Irish conflict in the last three decades is frequently underplayed. While the conflict raged, two discourses fought for supremacy. One emphasised the role of imperialism, focused on the role of the state in the continuing conflict and explained ethnic division as the consequence of centuries of colonial intervention and repression. The other stressed the ethnic division, seeing communal conflict as solely internal (even if rooted in ancient colonial experiences) and atavistic. In the ‘internal conflict’ approach, the British state was judged to be the neutral umpire between two warring tribes. In many ways, the latter discourse won out, helped not least by journalistic and academic accounts.18

13Dawson concurred in 2007, looking less at academic literature and more at the narratives perpetuated by the British state itself:

  • 19 Graham Dawson, Making Peace with the Past?, op. cit., 94.

When the British Army was reintroduced into the streets of Derry and Belfast in August 1969, it entered the conflict zone with well-established strategies of legitimation, honed by extensive experience of colonial counter-insurgency warfare, designed to install an official narrative of events and secure its reproduction as the dominant memory. The British state represented its military involvement in Northern Ireland as a narrative about ‘keeping the peace’ between ‘two warring tribes’, and ‘restoring law and order’ [...]. This was emphatically not ‘a war’ but a policing operation in support of the civil authorities.19

14This type of narrative tends to erase the role of the British state as an active participant in the conflict.

  • 20 David McKittrick & David McVea, Making Sense of the Troubles: A History of the Northern Ire (...)
  • 21 Michael McKeown, “Post-Mortem. An examination of the patterns of politically associated vio (...)
  • 22 Marie Therese Fay, Mike Morrissey & Marie Smyth, “Mapping Troubles-Related Deaths in (...)
  • 23 “Sutton Index of Deaths”, op. cit.

15Yet, the British state undoubtedly was an active participant. During the period 1969 to 1998, the dates which are traditionally taken to mark the beginning and the end of the “Troubles”, it is estimated that over 3,600 people lost their lives in conflict-related incidents.20 Among the various databases that have attempted to compile and analyse the numbers related to deaths resulting from the Troubles, we will rely here on three sources: Mapping Troubles-Related Deaths in Northern Ireland 1969-1998 by Marie Therese Fay, Mike Morrissey and Marie Smyth (1998), “Post-Mortem” by Michael McKeown (2009, including deaths from 1969 to 2001), and the “Sutton index of deaths” on the CAIN website (which also includes deaths from 1969 to 2001 and is still being regularly updated). These indexes of Troubles-related deaths find slightly different figures depending on their methodology and the time span they cover, yet they broadly concur about the proportion of deaths attributable to various agents in the conflict. Thus, although they all find that the majority of the victims were killed by Republican paramilitaries (55 to 58% of the total21), followed by Loyalist paramilitaries (27-29%), victims of the army still make up a sizeable group: around 10-11% of deaths in the conflict were caused by members of the security forces – with the British Army alone being responsible for 8 to 9% of total deaths. Sutton numbered 294 people killed by the British Army, McKeown 302, and Fay, Morrissey and Smyth, 318.22 Furthermore, Sutton’s index established that more than 50% of the victims of the British Army were civilians (excluding paramilitaries), and among them, 85% belonged to the Catholic community.23

  • 24 Bill Rolston, “Assembling the Jigsaw: Truth, Justice and Transition in the North of (...)
  • 25 Graham Dawson, Making Peace with the Past?, op. cit., 97.
  • 26 Ibid., 84.

16Because of the high death toll, of the presence of numerous witnesses and of many reporters, Bloody Sunday was one of the most “public” of these cases of state killings in the conflict. Thus, as both Rolston and Dawson respectively note, an event like Bloody Sunday “made it difficult to sustain the fiction of state neutrality”24, and “threw that narrative into crisis”.25 When the justice campaign began to demand that the British government set aside the Widgery report, and re-assess the responsibility of its army in the event, one of the reasons why the state resisted was that this “required a major shift […] away from the State’s ideological self-representation as honest broker and towards an admission of its role as an active party to the conflict”.26

17Thus, as a much-publicised and particularly embarrassing case, Bloody Sunday is particularly relevant when it comes to testing the claims of the UK being a country that can adequately protect human rights such as the “right to life”.

The Saville Inquiry as an “Article 2” inquiry

18The UK signed the European Convention of Human Rights in 1950, long before the events of Bloody Sunday took place in 1972. In the case of Northern Ireland in the 1970s, the UK had sought a derogation from certain provisions of the Convention. For example, the British government was clearly aware that the policy of internment without trial was theoretically not compatible with some of the rights protected by the ECHR, namely the right to liberty (Article 5) and the right to a fair trial (Article 6). Indeed, as Brice Dickson explains, the UK had secured the possibility of derogating from applying these articles, invoking the “emergency” created by the paramilitary threat in Northern Ireland:

  • 27 Brice Dickson, The European Convention on Human Rights and the Conflict in Northern (...)

[The European Court] held that […] the UK had validly derogated from the application of those Articles because on 27 June 1957 it had lodged with the Council of Europe a notice under Article 15 of the Convention declaring that there was a ‘public emergency threatening the life of the nation’, and this notice had never subsequently been withdrawn, even during the years when internment was not practised.27

  • 28 Idem.; Martin J. McCleery, Operation Demetrius, op. cit., 18-19.

19The British government kept the Council of Europe regularly informed of any significant development, as they did on August 20, 1971 when they wrote to the Secretary General to justify their decision to introduce internment on August 9.28

20In the case of Bloody Sunday, however, the article that could apply was Article 2, also known as the “right to life”:

  • 29 European Court of Human Rights, “European Convention on Human Rights”, 1950, <https://www (...)

ARTICLE 2
Right to life
1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.29

  • 30 Tribunals of Inquiry (Evidence) Act 1921, National Archives, March 24, 1921, <www.legislati (...)
  • 31 Lord Cyril Barnet Salmon, Royal Commission on Tribunals of Inquiry, 1966 : Report of the Co (...)

21However, the victims and victims’ relatives did not at first attempt to take the case to the ECtHR, as the government’s immediate reaction was to introduce a resolution in Parliament to set up a public inquiry into the events. Public inquiries are a typically British instrument which, at the time, were set up under the 1921 Tribunals of Inquiry (Evidence) Act.30 A tribunal of inquiry under this Act was given wide-ranging powers (in particular, to enforce attendance of witnesses and hear them under oath, and to compel the production of documents) and almost complete discretion as to what procedures it would adopt. A tribunal of inquiry is not a trial: its task was to seek the truth, and not to punish. As such, it could produce a report attributing responsibilities, but could not give a verdict of guilty or not guilty, let alone pass a sentence. Crucially, however, such tribunals were the highest possible form of authority in terms of establishing facts about an event, and there was no appeal from their findings.31

  • 32 See for example Dermot Walsh, The Bloody Sunday Tribunal of Inquiry: A Resounding Defeat fo (...)

22Much has been written about the numerous shortcomings of the Widgery inquiry and its report.32 Lord Widgery, who was in charge of the first inquiry, made many controversial choices: holding the hearings in the Protestant town of Coleraine instead of Derry/Londonderry, sitting alone as the only member of his tribunal, giving an equal number of legal representatives to the soldiers and to the victims’ families (who were far more numerous), as well as not taking any statements from the wounded who were still in hospital, and refusing to take into account a great number of civilian written statements collected by the Northern Ireland Civil Rights Association in the aftermath of the event. Once its conclusions were officially published and accepted by Parliament, the victims’ families were left with the understanding that there was no other possible remedy.

  • 33 Dermot Walsh, Ibid., 285-289.
  • 34 Charlotte Barcat, “Bloody Sunday, Human Rights Discourse and the Role of the Irish Governme (...)

23It is important to note that there were attempts to bring the Bloody Sunday case to the ECtHR. First, the Republic of Ireland tried to add the victims of Bloody Sunday in an interstate case against the United Kingdom started in 1971, but the case was dismissed for not having demonstrated that all domestic remedies had been exhausted. Later, in 1994, the campaign for justice did try to take the case of Bloody Sunday to the European Court of Human Rights following a refusal from the British government to reopen an inquiry, but the application was dismissed on the grounds that too much time had elapsed since the exhaustion of domestic remedies.33 Thus, no major breakthrough happened until the late 1990s. After years of campaigning, and after securing the help of the Irish government and of the Northern Irish nationalist negotiators to put pressure on Tony Blair’s government in the context of the peace process negotiations, the victims’ relatives obtained a second inquiry in January 1998.34 A few months later, on April 10, 1998, the Belfast Agreement/Good Friday Agreement was signed, with a pledge from the UK to pass legislation that would incorporate the protections contained in the ECHR into Northern Irish law. The Human Rights Act received Royal Assent on November 9, 1998, and would come into force in October 2000.

24Another important development which happened roughly in the same time frame was the establishment of a jurisprudence in the ECtHR regarding Article 2. As seen above, the article explicitly forbade a state from taking the lives of their own citizens outside of the exceptional cases listed. However, in addition to this “negative” obligation, from the mid-1990s, the ECtHR had begun to interpret the article as carrying a “positive” obligation as well: if citizens had been killed by state forces, the state had a duty to set up an independent and effective inquiry into the events – the reasoning being that ensuring accountability was essential in protecting the right to life, as explained by Christine Bell:

  • 35 Christine Bell, “Dealing with the Past in Northern Ireland”, Fordham International Law (...)

 The decisions in all four cases [Jordan, Kelly, McKerr and Shanaghan v United Kingdom] extended the jurisprudential direction toward interpreting Article 2 by requiring the State to move beyond negative enforcement, involving restraint in the use of lethal force, to positive enforcement, involving establishing adequate mechanisms for accountability after a killing by an agent of the State.35

25In his book Public Inquiries, which gives an extremely detailed and comprehensive overview of the functioning of public inquiries in the UK, Jason Beer gives a summary of the six criteria which ECtHR jurisprudence has established for an inquiry to be considered article-2 compliant:

  • 36 Jason Beer (ed.), Public Inquiries, Oxford: Oxford University Press, 2011, 271- (...)

The authorities must act of their own motion […].
The investigation must be independent […]
The investigation must be effective […] in the sense that it is capable of leading to a determination (in a case involving the death of a person caused by an agent of the State) of whether or not the force used was justified and to the identification and punishment of those responsible […]
The investigation must be reasonably prompt […]
There must be sufficient public scrutiny of the investigation and its results […]
There must be involvement of the next of kin [of the deceased] to the extent necessary to safeguard their legitimate interests.36

  • 37 Public Record Office of Northern Ireland, PRONI CENT/1/26/51A, June 30, 1997, 12, <https:// (...)
  • 38 European Court of Human Rights, McCann and Others v United Kingdom, September 27, 1995, htt (...)
  • 39 European Court of Human Rights, Jordan, Kelly, McKerr & Shanaghan v United Kingdom, May 4, (...)
  • 40 Lord Mark Saville, “Opening Statement”, April 3, 1998, The National Archives, <https://weba (...)

26It may seem strange to say that the Saville Inquiry was an “Article 2” inquiry, or that it owed its existence to the almost contemporaneous passing of the HRA: indeed, the HRA had not yet come into force when the inquiry was set up. Besides, in the most recently released archives of the Northern Ireland Office and of the Irish government, discussions in the months preceding the inquiry indicate no specific awareness of the HRA as weighing in favour of setting up an inquiry. It is true that the Saville Inquiry was set up almost 10 months before the passing of the HRA, but the bill was already in the works by then, and the HRA was mentioned in at least one document, in relation to employment rights – but not when the same document addressed Bloody Sunday.37 A most likely explanation is that the ECtHR jurisprudence affirming the procedural requirement attached to Article 2 had not yet been firmly established: only the first decision laying the ground for this interpretation of the convention had been handed down before January 1998.38 The three most significant decisions on this issue were taken in 2001, so the government may not have been aware of this dimension yet.39 The HRA or Article 2 of the ECHR were not mentioned either in Tony Blair’s speech in the House of Commons when he introduced the resolution proposing to set up the inquiry. They were not explicitly part of the inquiry’s terms of reference, which were only to inquire into “the events of Sunday, 30th January 1972 which led to loss of life in connection with the procession in Londonderry on that day, taking account of any new information relevant to events on that day”.40 They were not referred to in Lord Saville’s opening speech for the inquiry, on April 3, 1998. This absence was not surprising, as one could hardly have expected a bill that had not yet been passed into law in official statements – although human rights might have been mentioned.

27However, this does not mean that the ECHR and the HRA played no part in the Saville Inquiry. Indeed, in an interview given to Richard Susskind in 2003, Lord Saville himself made it clear that he saw his inquiry as an “Article 2 inquiry”:

  • 41 Richard Susskind, The Susskind Interviews: Legal Experts in Changing Times, London: Sweet (...)

[Richard Susskind]: You mentioned the human rights dimension a couple of times. There’s an Article II issue?
[Lord Saville]: Yes. I don’t think anyone in the Government realised when they set this Inquiry up that it is in fact what one could describe as an Article II Human Rights Act inquiry. […] So, this is possibly the first Human Rights Act inquiry that has taken place, although I don’t think it really dawned on the Government when they asked me to do it that they were doing it for Article II reasons.41

  • 42 Lord Mark Saville, William Hoyt and John Toohey, Report of the Bloody Sunday Inquir (...)
  • 43 For a more detailed look at all these decisions, see Charlotte Barcat, “The Bloody Sunday I (...)
  • 44 Lord Mark Saville, William Hoyt and John Toohey, Report of the Bloody Sunday Inquir (...)
  • 45 For more details on this, see Charlotte Barcat, “The Bloody Sunday Inquiry and the (...)

28Besides, in addition to the statement made by Lord Saville himself, the fact that the Saville Inquiry was intimately connected to Article 2 issues was visible in documents from its initial phase, when the tribunal had to determine its own procedures and policies on representation, public access, anonymity, etc. In the numerous debates, and sometimes court cases which arose from this initial phase, the tribunal frequently referred to the HRA, showing that the requirements of delivering an “Article 2-compliant” inquiry were constantly on their mind while deciding on procedures.42 Article 2 was also at the heart of the many judicial review procedures which took place between 1999 and 2002, with several legal challenges being brought against the tribunal of inquiry by the soldiers.43 These cases revolved around the tribunal of inquiry’s decisions not to grant them anonymity (whereas the Widgery Inquiry had, referring to them only through ciphers) and to require of soldiers that they give evidence in the Guildhall in Derry/Londonderry, like most of the other witnesses. The inquiry invoked what it saw as its mission to deliver an Article 2-compliant inquiry, which meant the principle of “open justice” had to be respected (corresponding to criterion 5 above, “sufficient public scrutiny of the proceedings”). The soldiers also invoked Article 2, but to argue that the inquiry had a duty to avoid unnecessarily endangering their lives, and that taking away their anonymity and making them give evidence in Derry/Londonderry was a failure to take the necessary precautions to protect them from harm.44 The tribunal lost all of these cases, which meant that the soldiers retained their anonymity, and their hearings took place in London. It could be argued that the various judicial review decisions against the tribunal and in favour of the soldiers do not support the idea of the HRA providing proper protection for victims of the state – as the position of the victims’ families on anonymity and venue were always overruled by the British courts. Still, these cases must not overshadow the fact that the inquiry went to huge lengths to avoid reproducing the shortcomings of the first inquiry, and to meet the criteria of an Article 2-compliant inquiry. Compared to the Widgery Inquiry, the Saville Inquiry opted for 3 judges to chair the tribunal instead of one (with William Hoyt and John Toohey joining Lord Saville), granted much more legal representation to the victims’ families, sat in Derry/Londonderry for most of its hearings and made all of its rulings and hearings available online (thus ensuring better “public scrutiny”), and chose to collect all available evidence in spite of the daunting task this represented.45 The cost of the inquiry (£198 million) and its duration (12 years), which were often criticised by both the Conservative Party and the right-wing press, were largely the result of these decisions. The duration could be conceived as being in contradiction with criterion 4 (being “reasonably prompt”), but was arguably connected to the specificities of the case: the amount of evidence accumulated over the years, the fact that many narratives had been woven throughout the years and had to be examined, and finally, the fact that the families had already been waiting for over 26 years as a result of an inquiry which had been done too fast (3 months).

29Thus, Article 2 and the knowledge of both ECtHR jurisprudence, and of the implications of the HRA, have undoubtedly guided the Saville tribunal’s interpretation of its terms of evidence. The Tribunals of Inquiry (Evidence) Act 1921, by itself, did not specify any of the procedural requirements that the Saville tribunal chose: as shown by the Widgery precedent, an inquiry held under the same Act could end up being completely different in terms of procedure.

The difficulty of obtaining accountability from the state

30One of the reasons to think the safeguards present in the HRA are not superfluous is that, in spite of the mostly positive reaction to the publication of the Saville report, the political evolution between then and 2002 seems to have gone rather in the direction of restricting accountability for agents of the state.

31In 2005, as the Saville Inquiry was still under way, the UK Parliament repealed the Tribunals of Inquiry (Evidence) Act 1921 and replaced it with the Inquiries Act 2005. The measures contained in the act, which increased the control of the executive over the inquiry, attracted much criticism. One of the most vocal critics of the new legislation was Lord Saville himself:

  • 46 James Dingemans & Richard Lissack (eds), Public Inquiries, Oxford: Oxford Unive (...)

I take the view that this provision makes a very serious inroad into the independence of any inquiry; and is likely to damage or destroy public confidence in the inquiry and its findings, especially in any case where the conduct of the authorities may be in question. […] To allow a minister to impose restrictions on the conduct of an inquiry is to my mind to interfere unjustifiably with the ability of a judge conducting the inquiry to act impartially and independently of Government, as his judicial oath requires him to do.46

32The Act was also criticised for the same reasons by Amnesty International, as well as Judge Peter Cory, but is still in place today.

  • 47 David Cameron, House of Commons debates, June 15, 2010, op. cit.
  • 48 Author’s notes from attending 2010 commemoration events.

33When the report was published in 2010, David Cameron’s apology, in which he famously called Bloody Sunday “unjustified and unjustifiable”, was completely unexpected for many in the nationalist community of Derry/Londonderry.47 Indeed, during the annual Bloody Sunday commemoration of January 2010, the probable return of the Conservatives to power after the May 2010 general election had been a source of worry for the members of the Bloody Sunday Justice Campaign: the Conservative Party had always been more reluctant than Labour to change the official position on Bloody Sunday, had consistently refused to reopen an inquiry when in power, and had constantly criticised the work of the inquiry during the 12 years it had lasted. The campaigners’ worry about the release of the report being handled by a Conservative government was reflected in the slogan of the 2010 Bloody Sunday commemoration, “Set the Truth Free”, intended as a plea to Lord Saville to finally release the report, even in defiance of the government if necessary.48 David Cameron’s apology thus did come as a welcome surprise to many of the Bloody Sunday campaigners.

  • 49 David Cameron, House of Commons debates, vol. 511, June 15, 2010, col. 741.

34Still, the amount of attention given to the apology obscured other important aspects of David Cameron’s speech. The Conservative Party’s criticism of the inquiry’s cost and duration found an echo in the following statement: “It is right to pursue the truth with vigour and thoroughness but let me reassure the House that there will be no more open-ended and costly inquiries into the past”.49 Thus, the acknowledgment of the facts as contained in the Saville report, and the praise for the work of the inquiry were accompanied by a clear statement never to repeat the same exercise in the same conditions again.

35Another passage in David Cameron’s 2010 speech is worthy of attention, as it clearly fed into the “honest broker” myth. First, he attempted to portray the British state as a champion for the truth:

  • 50 Ibid., col. 760.

I would say that we can take some pride – as can the former Government – in the fact that, in the end, the British state has gone to huge lengths to get to the truth about what happened on Bloody Sunday, and that an earlier report from an earlier inquiry has effectively been laid aside and replaced by a much fuller and clearer one. Not many states in the world would do that, and I think that we should see it as a sign of strength that we have done it.50

36This self-congratulatory statement is hard to reconcile with the facts, when replacing the Saville Inquiry in its historical context: the inquiry was granted only reluctantly, 26 years after the events. It took 9 years of intense lobbying and campaigning by the victims’ families, with the support of human rights advocates, as well as nationalist and left-wing politicians (especially John Hume of the SDLP, Martin McGuinness and Gerry Adams of Sinn Féin, and then Labour backbencher Jeremy Corbyn), and of the Irish government, to convince the British government to take this step.

  • 51 Ibid., col. 741.
  • 52 Julieann Campbell, Setting the Truth Free, op. cit., 70.
  • 53 John Deering, “Success at Last for the Bloody Sunday Relatives”, The Irish Times, December (...)
  • 54 Patrick Mayhew, House of Commons, January 12, 1993, “Oral Answers to Questions”, vo (...)
  • 55 National Archives of Ireland, NAI/TAOIS/2021/99/2, January 31, 1997, <https://cain.ulster.a (...)
  • 56 Public Record Office of Northern Ireland, PRONI/CENT/1/26/59A, January 6, 1998, <ht (...)
  • 57 National Archives of Ireland, NAI/TSCH/2021/100/1, January 21, 1998, <https://cain.ulster.a (...)

37In an attempt to claim part of the credit for his own party, David Cameron’s speech comes perilously close to rewriting history: “John Major said he was open to a new inquiry. Tony Blair then set it up”.51 In reality, John Major’s attitude from 1992 until 1997 had been to repeatedly refuse the opening of a new inquiry. His only concession had been to state, in a letter to the families on January 20, 1993, that all the victims should be regarded as innocent.52 This in fact arguably constituted no progress since December 1974, as it was exactly the position already taken by Harold Wilson’s government back then, when a statement was issued to grant financial compensation to the victims’ relatives. In spite of still standing by the Widgery report, that statement had already acknowledged that all the victims should be regarded as “not guilty”, in the absence of evidence to the contrary.53 Moreover, John Major’s very limited admission was quickly followed, the next day, by a statement by Secretary of State for Northern Ireland Patrick Mayhew, that it would be “unwise” to re-open an inquiry.54 Only at the very end of his premiership did John Major give a very slight opening, largely in reaction to the pressure placed upon him by the Irish government: Taoiseach John Bruton had ordered for a detailed report to be compiled, gathering all the mounting evidence that a complete reassessment of the Widgery report’s conclusion was necessary. John Major then promised to keep “an open mind” and the UK government shifted its attitude from refusing an inquiry outright, to saying “no options [had] been ruled out”.55 This can hardly be described as “accepting the principle of a new inquiry”, however. In truth, not even Tony Blair’s government enthusiastically embraced the idea of a new inquiry. Recently released records show that it took intense pressure by both Secretary of State for Northern Ireland Mo Mowlam, and by Taoiseach Bertie Ahern, to convince the Prime Minister to grant the inquiry56 – a decision that was made only a few days before the 1998 commemoration, after Ahern had made it clear that the Irish government was about to make its own damning report on the failings of Widgery public.57 Thus, government archives confirm that, far from having been facilitators in getting to the truth, as celebrated by David Cameron, successive British governments, especially Conservative-led ones, had rather played the part of an obstacle to the setting up of a new inquiry.

  • 58 Rory Carroll, “Ministers reject calls for public inquiry into Pat Finucane murder”, (...)
  • 59 BBC News, “Ballymurphy: Judge hits out at Ministry of Defence”, BBC News, <https://www.bbc. (...)
  • 60 Christine Bell, “Dealing with the Past in Northern Ireland”, op. cit., 1105.

38In other recent cases, too, the British state has been less than willing to grant Article 2-compliant inquiries, as shown by Northern Ireland Secretary of State Brandon Lewis’s refusal to hold a new public inquiry into the murder of solicitor Pat Finucane, in spite of a UK Supreme Court ruling saying that it should do so (and that the previous inquiry had not satisfied the standard required by Article 2 obligations).58 Another issue is the willingness of the Ministry of Defence to cooperate with such inquiry: the inquest into the “Ballymurphy massacre”, a case with strong similarities to Bloody Sunday as it involved the killing of 10 civilians in Belfast in August 1971, also by British paratroopers, complained of the Ministry of Defence’s lack of cooperation, bordering on obstruction59 – a problem which was also raised during the Saville Inquiry.60

  • 61 Lord Mark Saville, William Hoyt and John Toohey, Report of the Bloody Sunday Inquiry, (...)
  • 62 For a detailed explanation of the reasons why the 17 other soldiers considered by the (...)
  • 63 Public Prosecution Service, “Prosecutions of Soldier B and Soldier F to be discontinued aft (...)
  • 64 BBC News, “Rally in support of Bloody Sunday soldier”, BBC News, April 27, 2019, <h (...)

39Going back to the case of Bloody Sunday, the next step for the campaigners was to try to obtain prosecutions against those responsible. The Saville report had identified several instances of unjustified firing by individual soldiers, and placed most of the blame on the shoulders of the soldiers’ commanding officer on the ground, Lieutenant-Colonel Derek Wilford, for endangering the lives of civilians by sending his men deep into the Bogside area of Derry/Londonderry while the crowd had not yet dispersed.61 However, the standard of evidence to be met for criminal prosecutions is much higher, and the type of evidence which can be ruled admissible in a trial is much more regulated, than in a public inquiry. Thus, the Public Prosecution Service announced in 2019 that only one soldier – known as Soldier F – would be prosecuted for the murders of James Wray and William McKinney and attempted murders of Patrick O'Donnell, Joseph Friel, Joe Mahon, Michael Quinn and a fifth unknown person.62 In the summer of 2021, other cases against ex-soldiers collapsed due to a lack of admissible evidence, which, in turn, led the PPS to also discontinue the proceedings against Soldier F, before being forced by a ruling of the High Court in Belfast to reverse this decision in March 2022.63 The prosecution of soldier F has led to much controversy in the UK and in Northern Ireland, with calls to stop prosecutions against soldiers and sometimes demonstrations in support of soldier F and of the Parachute Regiment.64

  • 65 This bill was eventually passed in September 2023 under the Sunak government, and the Starm (...)
  • 66 Museum of Free Derry, “A Pinochet + Amnesty – Part I”, YouTube, <https://www.youtube.com/wa (...)
  • 67 Amnesty International Ireland, “Statute of Limitations is Unacceptable Betrayal of Victims” (...)
  • 68 Jude Webber, “Human rights chief attacks plan to ban Northern Ireland Troubles prosecutions (...)

40In this context, the commemoration of the 50th anniversary of Bloody Sunday, held in January 2022, was dominated by disillusionment with the British judicial system. The slogan, painted on the Free Derry Wall, was: “There Is No British Justice” – a far cry from the atmosphere of vindication of the 2011 commemoration, which had followed the release of the Saville report. Moreover, another issue was on everyone’s lips: concerns and anger about the plans for a “statute of limitations”, unveiled by Secretary of State for Northern Ireland Brandon Lewis in July 2021, and then introduced in the House of Commons in May 2022 as the “Northern Ireland Troubles (Legacy and Reconciliation) Bill”.65 These plans aimed at shielding ex-soldiers who had served in Northern Ireland from any future prosecutions against them. One online event called the plans a “Pinochet + amnesty”, referring to Chile’s use of amnesty laws following the fall of the dictator’s regime, and concluded that the plan outlined by the British government was, in fact, worse: unlike the Pinochet amnesty, which only applied to part of the period of the conflict, and excluded certain crimes from immunity, the Johnson government’s plans would have applied to the whole of the Troubles and to all crimes.66 It is worth noting that these plans were opposed by all the Northern Irish parties, whether nationalist or unionist, and also attracted condemnation from numerous victims groups and NGOs, such as Amnesty International.67 In September 2021, the Council of Europe’s Commissioner for Human Rights, Dunya Mijatovic, had said the proposals would most probably constitute a violation of Article 2 of the ECHR: “The blanket, unconditional nature of the amnesty in your proposal effectively means that none of those involved in any serious violation will be held to account, leading to impunity”.68

41One of the major arguments used by the Johnson government in their defence of their plans for a “statute of limitations” was that the “passage of time” had made it almost impossible to secure convictions. For example, Brandon Lewis said during the debate on the Legacy Bill in the House of Commons:

  • 69 Brandon Lewis, House of Commons debates, vol. 715, “ Northern Ireland Troubles (Legacy an (...)

The current system is broken. It is delivering neither justice nor information to the vast majority of families. The lengthy, adversarial and complex legal processes do not offer the most effective route to information recovery, nor do they foster understanding, acknowledgment or reconciliation. Faith in the criminal justice model to deal with legacy cases has been undermined. The high standard of proof required to secure a successful prosecution, combined with the passage of time and the difficulty in securing sufficient evidence, means that victims and their families very rarely, if ever, obtain the outcome they seek from the process.69

42At first glance, this may have seemed like a reasonable argument: it is undoubtedly true that asking witnesses to remember events decades after they happened, and to gather evidence so long after the facts, when several of the key witnesses and actors may even be deceased, poses a real problem. Still, using this argument to deny victims a public inquiry or prosecutions is problematic when the “passage of time” is precisely the result of the state failing to provide accountability for the events in a timely manner.

  • 70 The Sunday Times Insight Team, “Insight on Bloody Sunday”, The Sunday Times, April (...)
  • 71 “Ministry Says Report Not Independent”, The Irish Times, June 8, 1972, 9.
  • 72 Walter Ellis, “Coroner’s Remark Sparks Call from SDLP”, The Irish Times, August 23, (...)

43In the Bloody Sunday case, there was no lack of detailed criticisms and challenges to the official version, to the Widgery inquiry and to its report. Among the various attempts to denounce the shortcomings of the latter, it seems impossible for the government not to have been aware of the article published by the Sunday Times Insight Team, of the work of Simon Winchester for The Guardian, or of law professor Samuel Dash’s report for the International League of the Rights of Man – all of which offered very detailed criticism of the Widgery Inquiry and its report.70 The report by Samuel Dash was sent by the National Council for Civil Liberties to the Secretary of State for Northern Ireland, but the reaction of the government, through the Ministry of Defence, was to dismiss the report as lacking independence, without responding to any of the specific points made by Samuel Dash.71 Another highly publicised statement was made in 1973 by Hubert O’Neill, the Londonderry Coroner, who called Bloody Sunday “sheer, unadulterated murder”, prompting many comments from all the main Northern Ireland political parties, but none from the British government, as noted by the Irish Times.72 Therefore, British governments were well aware of the existence of a strong body of criticism over the Widgery inquiry and report, and the fact that decades passed without the issue being remedied was hardly inevitable – it was indeed the result of the choices made by successive British governments to refuse to take into account such criticisms.

  • 73 Jessica Elgot, “Troubles investigations are skewed against veterans, May says”, The Guardia (...)
  • 74 Karen Bradley, “Oral Answers to Questions”, House of Commons, vol. 640, May 9, 2018, col. 6 (...)
  • 75 Vincent Kearney, “Troubles legacy cases bias disputed by figures”, BBC News, Februa (...)

44Another frequent argument against prosecutions is the idea that there is a disproportionate focus on accountability regarding the actions of state forces – as opposed to paramilitaries. For example, Prime Minister Theresa May, in May 2018, declared: “the only people being investigated for these issues that happened in the past are those in our armed forces or those who served in law enforcement in Northern Ireland”.73 During the same period, Karen Bradley, the Secretary of State for Northern Ireland, lamented a “disproportionate emphasis on the actions of the military and law-enforcement bodies during the troubles, and really very little emphasis on the actions of paramilitary terrorists, who were responsible for 90% of the killings”.74 These statements were factually incorrect: only about 30% of legacy cases under PSNI investigation were in fact about security forces.75

  • 76 HUMAN RIGHTS WATCH. 1994. Northern Ireland: Continued Abuse by Both Sides. Helsinki (...)

45Besides, there is a major blind spot to this argument: it disregards the fact that prosecutions against state forces are taking place now because they were almost impossible during the conflict, which was not the case for paramilitaries – even though it must be acknowledged that numerous cases of paramilitary killings have indeed remained unsolved. A report published by Human Rights Watch in 1994 identified 350 victims of the British army during the conflict between 1969 and 1994, and only 4 soldiers being convicted during that same period. The maximum sentence served by a soldier was 5 years in prison.76 Even during the peace process, declassified government records show that the main reason behind Tony Blair’s initial reluctance to grant a second inquiry was the fear that it would lead to prosecutions – with Secretary of State for Defence George Robertson trying to steer the government’s decision towards an apology, rather than an inquiry or even a more limited “review”, in a letter to Northern Ireland Secretary of State Mo Mowlam:

  • 77 Public Record Office of Northern Ireland, PRONI/CENT/1/26/59A, June 19, 1997, <(...)

I believe […] that a review would be fraught with difficulties and that the balance of risk against potential benefits argues strongly against it. I can, however, see much merit in an apology as an alternative, provided that, as you suggest, it expresses regret rather than ascribes blame. A heartfelt apology should, in my view, be the Government's last word on the subject.77

46There has, therefore, always been a very strong resistance to any possibility of army or ex-army personnel being prosecuted for Troubles-related offences.

  • 78 Karen Bradley, House of Commons debates, vol. 655, March 6, 2019, “Stormont House Agreeemen (...)
  • 79 Regarding army planning, see Niall Ó Dochartaigh, From Civil Rights to Armalites: Derry and (...)
  • 80 See for example Robert Lindsay (Lord Balniel), House of Commons debates, vol. 830, “Norther (...)
  • 81 Stephen Baker & Greg McLaughlin, The British Media and Bloody Sunday, op. cit., 29-49.

47Another argument against prosecutions is that putting individual soldiers on trial is inappropriate and unfair, as they were acting in the name of the state and had no say in the political or military decisions that were made. For example, on 6th March 2019, Northern Ireland Secretary of State Karen Bradley stated in the House of Commons that killings by the security forces during the Troubles “were not crimes”, but “people acting under orders and under instruction and fulfilling their duties in a dignified and appropriate way”.78 Karen Bradley subsequently apologized for her comments when faced with the outrage they triggered. Still, there are undoubtedly legitimate questions to be raised as to whether it makes sense to prosecute individual soldiers for actions undertaken in service of the state. The soldiers serving in Northern Ireland were, indeed, carrying out operations that were the result of high-level decisions and planning, both within the government and within the army.79 Although the actions committed by certain soldiers, like Soldier F, could be seen as examples of individual excesses, portraying Bloody Sunday as a tragedy caused solely by “rogue” elements in the army makes little sense. Beyond the actions of the soldiers on the day, the most problematic aspect of the state’s behaviour was arguably its response in the aftermath. The army’s narrative on Bloody Sunday was defended by members of the government in Parliament,80 and virtually sanctioned afterwards by the Widgery report. The conclusions of the report were accepted by the overwhelming majority of the British press81 and by the British Parliament, and the commanding officer of the 1st Battalion of the Parachute Regiment, Derek Wilford, was even awarded an OBE in October 1972, only 10 months after Bloody Sunday. Successive governments then stuck by the Widgery report, using it as a reason to reject a new inquiry until 1998.

  • 82 Eamonn McCann, “How Saville cleared the innocent but let the guilty men off the hook”, The (...)

48Yet, no reflection on possible systemic failings was ever on offer from the British government. Even the Saville Inquiry was given very restrictive terms of reference, which the tribunal interpreted as not including any kind of assessment on the conduct of the Widgery Inquiry, nor any remit to consider the question of whether Bloody Sunday might have been the result of systemic issues – something which the tribunal also argued would have made the task impossible and fit for a historian rather than judges. This “narrow” approach received some criticism, particularly from Derry activist and writer Eamonn McCann, but also from academics like Niall Ó Dochartaigh.82

  • 83 David Cameron, House of Commons debates, vol. 511, June 15, 2010, “Saville Inquiry”, (...)

49Indeed, one of the effects of the report taking a “narrow” approach was that it allowed the government to accept its findings, without having to question the policy of the government, or even the way the army operated in Northern Ireland at the time. On the day of the publication of the report, David Cameron emphasized that Bloody Sunday had been an exception and was not representative of the role played by the British Army in Northern Ireland: “Let us also remember that Bloody Sunday is not the defining story of the service that the British Army gave in Northern Ireland from 1969 to 2007. […] Our armed forces displayed enormous courage and professionalism in upholding democracy and the rule of law in Northern Ireland”.83

  • 84 Stanley Cohen, States of Denial: Knowing about Atrocities and Suffering, Cambridge: Polity (...)

50In the typology of official denial designed by sociologist Stanley Cohen, we could argue that this statement, on the spectrum from denial to acknowledgment, falls into the category of “partial acknowledgment”, and more specifically, of “spatial isolation”: “Spatial isolation: Yes, the alleged event happened, but is ‘only an isolated incident’. This is not systemic or normal; the circumstances were special; the victim was atypical; any violations arose from ‘individual excesses’ within the ranks of the security forces and are not condoned by the government”.84

51Of course, there is no doubt that Bloody Sunday was one of the worst cases of unjustified killings of citizens in Northern Ireland, and that it was, in this way, “exceptional”. Still, portraying it as tragic exception and an isolated event is questionable. Although it did not attract as much media attention at the time, the killing of 11 civilians over 3 days in Ballymurphy, in Belfast, also by soldiers of the Parachute Regiment, in August 1971, bears a striking resemblance to the case of Bloody Sunday. The question of whether Bloody Sunday could have been avoided, had there been accountability and lessons drawn from Ballymurphy, cannot be summarily brushed aside. It would, however, require a major departure from the narratives pushed by representatives of the British government until 2022.

Conclusion

52Overall, despite the differences between Conservative and Labour governments, the case of Bloody Sunday suggests that there was a degree of consistency in resisting demands for a revision of the deeply flawed first inquiry report, as well as in placing a high priority on shielding ex-soldiers from prosecutions. Such a case study thoroughly undermines the claims of “British exceptionalism” regarding the British state’s inherent ability to respect human rights – indeed, it rather shows that even with the UK being a signatory to the ECHR, it can still take decades of energetic campaigning to obtain acknowledgment and accountability in cases that involve state actors. Legitimate concerns about also protecting the human rights of soldiers who were acting in the name of the state, as well as exhortations to leave the past behind tend to obscure the main problem: the difficulty of identifying responsibilities, attributing blame and ensuring accountability when dealing with the consequences of high-level decisions made by state actors. The suggested “statute of limitations” showed that for the British government, the temptation to protect the rights of its agents at the expense of the rights of the victims is always strong. It remains very hard for British governments, especially Conservative governments, to be critical of the army or to acknowledge, for example, that official denial and lack of accountability of state forces may have been a systemic problem during the Troubles.

53It is all the more difficult for the Conservative Party, as polls show overwhelming support for this position among Conservative voters: a YouGov poll from May 2021 showed that a whopping 71% of Conservative voters supported the idea of an amnesty for soldiers (while only 8% opposed it) – very different from Labour supporters, among whom support was only at 29%. Thus, in addition to the ideological element of Conservative loyalty to the army, there are also obvious electoral dividends to be gained from opposing prosecutions against soldiers.

54The case of the Saville Inquiry shows that the HRA, and Convention rights more generally, seem to be a necessary protection – in fact, rather a minimal one – to allow victims of the state to pursue accountability. The “native” British mechanism of the public inquiry showed its fallibility with the Widgery Inquiry. One of the crucial differences between Widgery and Saville, apart from the political context, was that while they were both set up under the same Act, only the Saville tribunal’s practice was informed by late 1990s-early 2000s ECtHR case law, as well as by the newly passed HRA.

55Thus, the myth of “British exceptionalism” does not sustain scrutiny. In fact, Fionnuala Ní Aoláin and Colm Campbell identified a paradox in the attitude of democratic states to human rights violations:

  • 85 Fionnuala Ní Aoláin & Colm Campbell, “The Paradox of Transition in Conflicted Democracies (...)

[…] while the scale of human rights violations which have taken place in the democratic context may be lesser than those experienced in an authoritarian regime, the impact of these violations in the democratic state may be proportionately more corrosive than elsewhere. In a democracy, the failure of the rule of law runs counter to societal expectations; by contrast, in an authoritarian state, the concept ‘rule of law’ may have little popular resonance. Finally, institutional change in the democratic transitional context poses the problem of acknowledgment. Institutions must affirm that they were either or both complicit in conflict and inadequate to respond to the community needs in which they were situated. Both conclusions are problematic for the liberal rule of law state in ways that they are not for the authoritarian state in transition.85

56Thus, the idea that a state with a strong democratic tradition and a long tradition of human rights protection would be less in need of externally-imposed safeguards, such as the ECHR, than an authoritarian state, might be less obvious than it seems: although the temptation of crushing dissent might be lesser in a democratic state, the refusal to contemplate the fallibility of its own political system still makes it prone to shunning accountability.

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Notes

1 Vernon Bogdanor, The New British Constitution, Oxford: Hart Publishing, 2009, 55, emphasis added.

2 Feargal Cochrane, Northern Ireland: The Fragile Peace, New Haven: Yale University Press, 2021, 301.

3 With the major difference that, unlike the Northern Ireland Assembly, the Westminster Parliament has the final say on whether to change legislation that might be declared incompatible with the ECHR by the courts.

4 See the introduction of this volume for more details about statements by Conservative politicians against both the European Convention on Human Rights, and the Human Rights Act, and the repeated promises to either amend or repeal the Human Rights Act.

5 The European Convention on Human Rights (ECHR) originated from the Council of Europe, and the Human Rights Act (1998), although it is an act of the UK Parliament, integrated into British domestic law the vast majority of the provisions contained in the ECHR.

6 The ECtHR fell short of calling the 5 techniques “torture”, though it considered they still violated Article 3 as they amounted to “inhuman or degrading treatment”, see European Court of Human Rights, Ireland v United Kingdom, January 18, 1978, <https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57506%22]}>.

7 John Johnston was shot once in the leg and once in the shoulder on Bloody Sunday, and died from a cerebral tumour on June 16, 1972. He is considered by the Bloody Sunday Justice Campaign as the 14th victim of Bloody Sunday, which explains why the figure of 14 killed is sometimes given rather than 13. The Saville Report concluded that his death was not directly connected to Bloody Sunday. However, John Johnston’s relatives dispute this and still assert that the physical and psychological traumas suffered on Bloody Sunday were a major factor in his premature death.

8 Lord John Passmore Widgery, Bloody Sunday: Lord Wigdery’s Report, 1972, London: Her Majesty’s Stationery Office, 2001, 97-100.

9 See for example: Samuel Dash, Justice Denied: A Challenge to Lord Widgery’s Report on “Bloody Sunday”, New York: Defence and Education Fund of the International League for the Rights of Man, 1972; Sunday Times Insight Team, “Insight on Bloody Sunday”, The Sunday Times, April 23, 1972, 10.

10 David Cameron, House of Commons debates, vol. 511, June 15, 2010, “Saville Inquiry”, col. 739, <https://hansard.parliament.uk/commons/2010-06-15/debates/10061522000002/SavilleInquiry>, accessed August 14, 2022.

11 Stephen Baker & Greg McLaughlin, The British Media and Bloody Sunday, Bristol: Intellect Ltd, 2015, 53-75.

12 Colin Murray, “The Magna Carta’s Tainted Legacy: Historic Justifications for a British Bill of Rights and the case against the Human Rights Act” in Frederick COWELL (ed.), Critically Examining the Case Against the 1998 Human Rights Act, New York: Routledge, 2017, 44.

13 Ibid., 35.

14 Marie Smyth, “Truth, Partial Truth, and Irreconcilable Truths: Reflections on the Prospects for Truth Recovery in Northern Ireland”, Smith Studies in Social Work, vol. 7, n° 2, 2003, 212-213.

15 Graham Dawson, Making Peace with the Past? Memory, Trauma and the Irish Troubles, Manchester: Manchester University Press, 2007, 81.

16 John Whyte, Interpreting Northern Ireland, Oxford: Clarendon Press, 1990, 194, 202.

17 Ibid., 203.

18 Bill Rolston, “Assembling the Jigsaw”, op. cit., 88.

19 Graham Dawson, Making Peace with the Past?, op. cit., 94.

20 David McKittrick & David McVea, Making Sense of the Troubles: A History of the Northern Ireland Conflict, London: Penguin Books, 2001, 377.

21 Michael McKeown, “Post-Mortem. An examination of the patterns of politically associated violence in Northern Ireland during the years 1969-2001 as reflected in the fatality figures for those years”, CAIN Web Service (Conflict Archive on the Internet), 2009, <http://cain.ulster.ac.uk/mckeown/mckeown01.pdf >, accessed on August 14, 2022, 18; “Sutton Index of Deaths”, CAIN Web Service (Conflict Archive on the Internet), <https://cain.ulster.ac.uk/sutton/>, accessed on August 14, 2022. Marie Therese Fay, Mike Morrissey & Marie Smyth, “Mapping Troubles-Related Deaths in Northern Ireland 1969-1998” (extracts), CAIN Web Service (Conflict Archive on the Internet), 1998, <https://cain.ulster.ac.uk/issues/violence/cts/fay98.htm>, accessed on August 30, 2025.

22 Marie Therese Fay, Mike Morrissey & Marie Smyth, “Mapping Troubles-Related Deaths in Northern Ireland 1969-1998”, op. cit. ; Michael McKeown, “Post-Mortem”, op. cit., 14; “Sutton Index of Deaths”, op. cit.

23 “Sutton Index of Deaths”, op. cit.

24 Bill Rolston, “Assembling the Jigsaw: Truth, Justice and Transition in the North of Ireland”, Race & Class, n° 44, 2002, 88.

25 Graham Dawson, Making Peace with the Past?, op. cit., 97.

26 Ibid., 84.

27 Brice Dickson, The European Convention on Human Rights and the Conflict in Northern Ireland, Oxford: Oxford University Press, 2012, 63-64.

28 Idem.; Martin J. McCleery, Operation Demetrius, op. cit., 18-19.

29 European Court of Human Rights, “European Convention on Human Rights”, 1950, <https://www.echr.coe.int/documents/d/echr/Convention_ENG>, accessed August 4, 2022.

30 Tribunals of Inquiry (Evidence) Act 1921, National Archives, March 24, 1921, <www.legislation.gov.uk/ukpga/1921/7/pdfs/ukpga_19210007_en.pdf>, accessed August 4, 2022. The Act has since been repealed and replaced by the 2005 Inquiries Act.

31 Lord Cyril Barnet Salmon, Royal Commission on Tribunals of Inquiry, 1966 : Report of the Commission under the Chairmanship of the Rt. Hon. Lord Justice Salmon, London: Her Majesty’s Stationery Office, 1966, 43.

32 See for example Dermot Walsh, The Bloody Sunday Tribunal of Inquiry: A Resounding Defeat for Truth, Justice and the Rule of Law, Derry/Londonderry, Bloody Sunday Trust, 1997; Irish Government, Bloody Sunday and the Report of the Widgery Tribunal: The Irish Government’s Assessment of the New Material: Presented to the British Government in June 1997, Dublin, Government Information Services, 1997.

33 Dermot Walsh, Ibid., 285-289.

34 Charlotte Barcat, “Bloody Sunday, Human Rights Discourse and the Role of the Irish Government in Lobbying for a Second Inquiry”, Études irlandaises, n° 50-1, 2025, <http://journals.openedition.org/etudesirlandaises/19559 ; DOI : https://doi.org/10.4000/144cp>, accessed August 25,2025.

35 Christine Bell, “Dealing with the Past in Northern Ireland”, Fordham International Law Journal, vol. 26, n° 2, 2002, 1133.

36 Jason Beer (ed.), Public Inquiries, Oxford: Oxford University Press, 2011, 271-274.

37 Public Record Office of Northern Ireland, PRONI CENT/1/26/51A, June 30, 1997, 12, <https://cain.ulster.ac.uk/proni/1998/proni_CENT-1-26-51A_1997-06-30.pdf>, accessed October 14, 2023.

38 European Court of Human Rights, McCann and Others v United Kingdom, September 27, 1995, https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57943%22]}, accessed August 4, 2022.

39 European Court of Human Rights, Jordan, Kelly, McKerr & Shanaghan v United Kingdom, May 4, 2001, <https://hudoc.echr.coe.int/eng-press#{%22itemid%22:[%22003-68397-68865%22]}>, accessed August 4, 2022.

40 Lord Mark Saville, “Opening Statement”, April 3, 1998, The National Archives, <https://webarchive.nationalarchives.gov.uk/ukgwa/20101103103937/http://www.bloody-sunday-inquiry.org/inquiry-background/opening-statement/index.html>, accessed August 14, 2022.

41 Richard Susskind, The Susskind Interviews: Legal Experts in Changing Times, London: Sweet and Maxwell, 2005, 229.

42 Lord Mark Saville, William Hoyt and John Toohey, Report of the Bloody Sunday Inquiry, The National Archives, June 15, 2010, vol. X, <http://webarchive.nationalarchives.gov.uk/20101103103930/http://report.bloody-sunday-inquiry.org/>, accessed on August 14, 2022.

43 For a more detailed look at all these decisions, see Charlotte Barcat, “The Bloody Sunday Inquiry and the Saville Report”, op. cit.

44 Lord Mark Saville, William Hoyt and John Toohey, Report of the Bloody Sunday Inquiry, op. cit., append. A2.46, par. 67-69 ; append. A2.48, par. 57.

45 For more details on this, see Charlotte Barcat, “The Bloody Sunday Inquiry and the Saville Report: Declaring Innocence, Attributing Blame, and the Limitations of Public Inquiries”, The Irish Review, n° 45, 2012, 34-4

46 James Dingemans & Richard Lissack (eds), Public Inquiries, Oxford: Oxford University Press, 2011, 25.

47 David Cameron, House of Commons debates, June 15, 2010, op. cit.

48 Author’s notes from attending 2010 commemoration events.

49 David Cameron, House of Commons debates, vol. 511, June 15, 2010, col. 741.

50 Ibid., col. 760.

51 Ibid., col. 741.

52 Julieann Campbell, Setting the Truth Free, op. cit., 70.

53 John Deering, “Success at Last for the Bloody Sunday Relatives”, The Irish Times, December 20, 1974, 8.

54 Patrick Mayhew, House of Commons, January 12, 1993, “Oral Answers to Questions”, vol. 217, col. 485, <https://hansard.parliament.uk/%E2%80%8CCommons/1993-01-21/debates/084f2470-f758-4eff-8b3f-bae87f5e1b68/CommonsChamber>, accessed on August 14, 2022.

55 National Archives of Ireland, NAI/TAOIS/2021/99/2, January 31, 1997, <https://cain.ulster.ac.uk/nai/1997/nai_TSCH-2021-99-2_1997-01-31.pdf>, accessed October 14, 2023;

Public Record Office of Northern Ireland, PRONI/CENT/1/26/49A, February 27, 1997, <https://cain.ulster.ac.uk/proni/1997/proni_CENT-1-26-49A_1997-02-27.pdf>, accessed October 14, 2023.

56 Public Record Office of Northern Ireland, PRONI/CENT/1/26/59A, January 6, 1998, <https://cain.ulster.ac.uk/proni/1999/proni_CENT-1-26-59A_1998-01-06.pdf>, accessed October 14, 2023.

57 National Archives of Ireland, NAI/TSCH/2021/100/1, January 21, 1998, <https://cain.ulster.ac.uk/nai/1998/nai_TSCH-2021-100-1_1998-01-21.pdf>, accessed October 14, 2023.

58 Rory Carroll, “Ministers reject calls for public inquiry into Pat Finucane murder”, The Guardian, November 30, 2020, <https://www.theguardian.com/uk-news/2020/nov/30/ministers-reject-call-for-public-inquiry-into-pat-finucane>, accessed on March 20, 2022.

59 BBC News, “Ballymurphy: Judge hits out at Ministry of Defence”, BBC News, <https://www.bbc.com/news/uk-northern-ireland-45440133>, accessed on March 20, 2022.

60 Christine Bell, “Dealing with the Past in Northern Ireland”, op. cit., 1105.

61 Lord Mark Saville, William Hoyt and John Toohey, Report of the Bloody Sunday Inquiry, op. cit., vol. I, chap. 4, par. 4.15-4.25.

62 For a detailed explanation of the reasons why the 17 other soldiers considered by the PPS could not be prosecuted, see: Public Prosecution Service, “Bloody Sunday – Summary of Decisions Not To Prosecute”, March 14, 2019, <https://www.ppsni.gov.uk/files/ppsni/publications/Bloody%20Sunday%20Summary%20of%20Reasons.pdf>, 1-2, accessed on August 25, 2023.

63 Public Prosecution Service, “Prosecutions of Soldier B and Soldier F to be discontinued after PPS review”, July 2, 2021, <https://www.ppsni.gov.uk/news/prosecutions-soldier-b-and-soldier-f-be-discontinued-after-pps-review>, accessed on March 16, 2022; Public Prosecution Service, “PPS statement on the prosecution of Soldier F”, September 22, 2022, <https://www.ppsni.gov.uk/news/pps-statement-prosecution-soldier-f>, accessed September 22, 2022.

64 BBC News, “Rally in support of Bloody Sunday soldier”, BBC News, April 27, 2019, <https://www.bbc.com/news/uk-northern-ireland-48077712>, accessed on August 14, 2022.

65 This bill was eventually passed in September 2023 under the Sunak government, and the Starmer government has since pledged to repeal it, but this article does not deal with events beyond September 2022.

66 Museum of Free Derry, “A Pinochet + Amnesty – Part I”, YouTube, <https://www.youtube.com/watch?v=b_6066HO1UY>, accessed February 2, 2022.

67 Amnesty International Ireland, “Statute of Limitations is Unacceptable Betrayal of Victims”, Amnesty International, July 14, 2021, <https://www.amnesty.ie/northern-ireland-statute-of-limitations-is-unacceptable-betrayal-of-victims/>, accessed on March 16, 2022.

68 Jude Webber, “Human rights chief attacks plan to ban Northern Ireland Troubles prosecutions”, The Financial Times, September 23, 2021, <https://www.ft.com/content/05a33623-9b7e-400e-9171-6b46d80556a4>, accessed on March 16, 2022.

69 Brandon Lewis, House of Commons debates, vol. 715, “ Northern Ireland Troubles (Legacy and Reconciliation) Bill”, May 22, 2022, col. 175-176, <https://conservativehome.com/2022/06/09/brandon-lewis-my-northern-ireland-legacy-plan-no-longer-will-our-veterans-be-hounded-for-about-events-that-happened-decades-ago/>, accessed August 10, 2025.

70 The Sunday Times Insight Team, “Insight on Bloody Sunday”, The Sunday Times, April 23, 1972, 10; Simon Winchester, “The Hardest Report to Take”, The Guardian, April 20, 1972, 13; Samuel Dash, Justice Denied, op. cit.

71 “Ministry Says Report Not Independent”, The Irish Times, June 8, 1972, 9.

72 Walter Ellis, “Coroner’s Remark Sparks Call from SDLP”, The Irish Times, August 23, 1973, 8.

73 Jessica Elgot, “Troubles investigations are skewed against veterans, May says”, The Guardian, May 9, 2018, <https://www.theguardian.com/uk-news/2018/may/09/cabinet-divided-over-plans-to-investigate-unsolved-ni-killings>, accessed on March 16, 2022.

74 Karen Bradley, “Oral Answers to Questions”, House of Commons, vol. 640, May 9, 2018, col. 661, <https://hansard.parliament.uk/Commons/2018-05-09/debates/96F401BF-CC2F-4A7A-A208-1199480A6B9F/OralAnswersToQuestions#contribution-9C857F6F-208E-4274-B373-2E5741A9D5A1>, accessed on August 14, 2022.

75 Vincent Kearney, “Troubles legacy cases bias disputed by figures”, BBC News, February 2, 2017, <https://www.bbc.com/news/uk-northern-ireland-38844453>, accessed March 20, 2022.

76 HUMAN RIGHTS WATCH. 1994. Northern Ireland: Continued Abuse by Both Sides. Helsinki : Human Rights Watch.

77 Public Record Office of Northern Ireland, PRONI/CENT/1/26/59A, June 19, 1997, <https://cain.ulster.ac.uk/proni/1999/proni_CENT-1-26-59A_1997-06-19.pdf>, accessed October 14, 2023.

78 Karen Bradley, House of Commons debates, vol. 655, March 6, 2019, “Stormont House Agreeement”, col. 945, <https://hansard.parliament.uk/commons/2019-03-06/debates/63BF8914-DC20-419C-A2F0-D91521845987/StormontHouseAgreementLegacy>, accessed on August 14, 2022.

79 Regarding army planning, see Niall Ó Dochartaigh, From Civil Rights to Armalites: Derry and the Birth of the Irish Troubles, Basingstoke: Palgrave Macmillan, 2005 (2nd edition), 269-288.

80 See for example Robert Lindsay (Lord Balniel), House of Commons debates, vol. 830, “Northern Ireland”, February 1, 1972, c.  270-271, <https://hansard.parliament.uk/commons/1972-02-01/debates/3a33a535-f2bf-41a8-b7f8-4b1165ca050b/NorthernIreland>, accessed August 4, 2022.

81 Stephen Baker & Greg McLaughlin, The British Media and Bloody Sunday, op. cit., 29-49.

82 Eamonn McCann, “How Saville cleared the innocent but let the guilty men off the hook”, The Belfast Telegraph, June 25, 2010, <http://www.belfasttelegraph.co.uk/opinion/columnists/eamonn-mccann/howsaville- cleared-the-innocent-but-let-the-guilty-men-off-the-hook-28543353.html

>, accessed August 4, 2022; Niall Ó Dochartaigh, “Politics of Bloody Sunday Left Untold”, The Guardian, June 16, 2010, <www.guardian.co.uk/commentisfree/2010/jun/16/bloody-sunday-saville-inquiry>, accessed August 4, 2022.

83 David Cameron, House of Commons debates, vol. 511, June 15, 2010, “Saville Inquiry”, col. 741.

84 Stanley Cohen, States of Denial: Knowing about Atrocities and Suffering, Cambridge: Polity Press, 2001, 113-114.

85 Fionnuala Ní Aoláin & Colm Campbell, “The Paradox of Transition in Conflicted Democracies”, Human Rights Quarterly, vol. 27, n° 1, 201.

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Charlotte Barcat, « British exceptionalism, human rights and the accountability of the state in the case of Bloody Sunday in Northern Ireland »Revue LISA/LISA e-journal [En ligne], vol.23-n°60 | 2025, mis en ligne le 01 décembre 2025, consulté le 16 décembre 2025. URL : http://journals.openedition.org/lisa/17853 ; DOI : https://doi.org/10.4000/157i5

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Charlotte Barcat



Charlotte Barcat is an associate professor in UK politics and history at Nantes Université, France. She specialises in the history and politics of contemporary Northern Ireland. Her research focuses on the peace process, on dealing with the past and on issues of truth and justice. She has published several research articles on the second Bloody Sunday Inquiry, also known as the Saville Inquiry (1998-2010). Her research was supported by the RFI Alliance Europa between 2018 and 2022, and she is currently part of the CRINI research unit and of the Jean Monnet Centre of Excellence UNIPAIX, focusing on developing peace studies in France through a pluridisciplinary approach.

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