A Belfast solicitor who is representing the widow of murdered Miami Showband lead vocalist Fran O'Toole has expressed incredulity and anger that the British government is prepared to ban civil cases relating to Troubles killings.
Michael Flanigan, who has a practice on the Falls Road in west Belfast, has complained to both the British government and the Department of Foreign Affairs in Dublin about what he says are "very draconian" measures to overturn more than 800 years of British civil law dating back to Magna Carta in 1215.
On the 46th anniversary of the Miami Showband murders, Mr Flanigan has urged the British government not to press ahead with proposals announced by northern secretary Brandon Lewis earlier in July.
Mr Lewis characterised the proposals as the "best way to help Northern Ireland move further along the road to reconciliation".
However, Mr Flanigan argues that preventing people from bringing civil actions would be wrong. “Instead of helping bring about reconciliation, it would just simply create a fresh injustice.”
There was considerable opposition to Mr Lewis’s proposals to bring in legislation in the autumn to impose a statute of limitations banning all prosecutions of Troubles-related killings and other crimes.
But what caught lesser attention, and what has worried Mr Flanigan and other lawyers, is an added proposal by Mr Lewis to end to all legacy inquests and civil cases relating to the Troubles.
Mr Flanigan explained that Valerie O'Toole's case has been nine years in the legal system and finally is listed for hearing in the High Court in Belfast in mid-December. But Mr Lewis's proposals, which are scheduled to become law in the autumn, have cast doubt on how that case might proceed.
“It would be a complete and utter travesty if this lady was deprived of her right of a hearing; it would be just outrageous,” he said. “The British government is prepared to use its parliamentary majority to push through legislation that is extremely backward.”
The Miami Showband killings were one of the most notorious incidents of the Troubles. On July 31st, 1975, a minibus carrying five members of the popular band was flagged down at what appeared to be an Ulster Defence Regiment (UDR) checkpoint as they were returning to Dublin from a gig in Banbridge, Co Down.
But it was in fact an Ulster Volunteer Force operation. The UVF gang planned to plant a bomb in the minibus that would explode later, conveying the impression the band were carrying explosives for the IRA. But the bomb exploded as they were putting the bomb on board the vehicle, killing two of the UVF men.
Singer Fran O'Toole, guitarist Tony Geraghty and trumpeter Brian McCoy were then shot dead by other members of the gang. Singer and saxophonist Des Lee and guitarist Stephen Travers were wounded but survived.
Three men, one former and two serving UDR soldiers, were convicted for the murders.
The UVF killers were members of the Glennane Gang, comprising loyalist paramilitaries who worked with rogue members of the UDR and Royal Ulster Constabulary.
The Glennane Gang is believed to have been responsible for about 120 murders, the overwhelming number of them of Catholics with no republican paramilitary connections.
Fran O’Toole’s widow, Valerie, who later remarried and is now living in Canada, received just £6,000 for her husband’s murder through the North’s criminal injuries scheme.
“This is not civil litigation being used as a truth recovery process. This is civil litigation being used to compensate people for loss,” said Mr Flanigan.
“We are trying to put the person back in the situation they would have been in if her husband had not been killed, and to work out loss of earnings,” he added.
“This is something they are entitled to. To be deprived of your right to be compensated for loss is outrageous. To stop what we say are well-founded claims is very draconian.”
Mr Flanigan said one of the grounds for the case is that the British ministry of defence is “precariously liable” for the actions of their soldiers, the same principle, for example, by which Catholic dioceses were sued for the actions of priests who abused children.
Mr Flanigan also claims the ministry of defence was responsible for “negligent vetting” in recruiting soldiers who were of such murderous loyalist paramilitary disposition.
The PSNI also are part of the action, being sued on the basis that the RUC, the force’s predecessor, failed to adequately investigate the robbery of weapons from the UDR that were used in the Miami attack, and also that they failed to properly vet the UVF killers who were in the UDR and part of the attack.
While much of the focus has been on what has been characterised as a “de facto amnesty” for all potential criminal cases relating to the Troubles, Mr Flanigan said he fears that many people had “not got their heads around” how the British government also was seeking to do away with civil cases.
“You can’t be allowed to pass legislation to say, ‘Oh I can’t be sued anymore’. That is not the way it works.”
He found it "almost incredible" that the British government would seek to go down this route. He also expressed surprise that British prime minister Boris Johnson, a Conservative who prided himself on how he valued tradition, would agree to such a fundamental shift in law.
“It is the sort of thing that you would see in some former Soviet bloc countries where people acted in a very dictatorial matter. It is very strange that he would go down this line.”
Mr Flanigan said London must scrap its plans and that Dublin must exert pressure to convince it not to press ahead with its proposals.