The de Silva report presents a challenge to the legal establishment and others in Northern Ireland over how to proceed in the light of the UK government’s refusal to hold a public inquiry. Accountability concerns are not confined to history. They remain a live issue today since the devolution of policing and justice. One of the key issues is to how to subject the police and security service’s covert operations to critical examination to prevent such gross abuses in future. “Moving on” is surely not good enough; if the operatives in 1989 can get away scot free, the temptation to abuse will remain with their successors, whatever new “guidelines” say. On the other hand, a wide degree of secrecy is still essential and will be maintained, however loud the human rights or politically motivated protests.
But all hope is surely not lost. De Silva provided a great deal of material to work on, as BBC reporter John Ware points out in the Daily Telegraph. Ware’s reporting was crucial in securing the conviction of Ken Barrett for the murder of Pat Finucane. From the de Silva report, he now highlights the issue of deniability and lack of curiosity of ministers over the Security Service’s failure to warn Finucane of the imminent attack on his life.
The Finucane family said the de Silva review was a “sham” and a “whitewash”. I beg to differ. I think it is the most revealing critique of security and intelligence governance since Lord Butler’s inquiry into MI6’s gossamer-thin intelligence on weapons of mass destruction in Iraq….
Finucane was shot on February 12 1989. Five days later, a Northern Ireland Intelligence Report (NIIR) was compiled, a regular form of briefing sent to ministers. At the time, ministers were being asked by the Irish government about protection for other Republican lawyers.
However ministers were left off the distribution list for the NIIR of February 17. Had they been included, they would have discovered that MI5 had known for seven weeks that Finucane was being targeted.
Likewise, de Silva reveals that the defence secretary, Tom King, was never told that Military’s Intelligence’s key agent, Brian Nelson, who helped target Finucane, was engaged in conspiracies to murder Republicans. When King discovered that Nelson’s intelligence was not being used to prevent UFF attacks, his request for an investigation as to why was ignored.
This is why de Silva finds “no overarching state conspiracy” to murder Pat Finucane. The problem was not that ministers were directing agents like Nelson, but that ministers had very little awareness of, or influence over, their actions.
Ministers displayed a staggering lack of curiosity. In what I take to be a searing rebuke, de Silva says there was a “wilful and abject failure by successive governments” to run agents lawfully.
For de Silva reveals that, while unsighted on the details of criminality that agents were engaged in, ministers did know that agents were generally operating without a legal framework and that there was a “chronic need for new guidelines”.
Agent-running seems to have wallowed in this grey area until 2000, when the 1998 Human Rights Act came in. Why wasn’t anything done until then? Perhaps it suited governments to maintain this grey area or, as de Silva puts it, “to facilitate political deniability rather than creating mechanisms for an appropriate level of political oversight”.
Does this account make a public inquiry more likely? I doubt it. Today’s ministers emphasise that accountability has improved and that a framework conforming to the European Convention of Human Rights and the UK Human Rights Act has been created , making such abuses less likely. Until the next one, sceptics would say.
How has MI5 accountability improved? It was a former head of the anti- terrorism branch of the Met who warned after the 7/7 inquests that MI5 would have to get used to producing evidence in court. That was much later in England and over jihadism.
In NI the devolution of police and justice reserved MI5 accountability to Westminster as national security” even though it operates locally in conjunction with the PSNI in the anti-terrorist field hitherto covered by the old Special Branch. This leaves a gap which clearly can be exploited. The Detail usefully carries a 105 page report by the lawyers’ campaigning group the Committee for the Administration of Justice (CAJ) The Policing You Don’t See” which concludes that the lack of local accountability is “a disaster waiting to happen.”
While then Prime Minister Tony Blair gave assurances that all PSNI officers would remain under the control of the Chief Constable and the Policing Board, the documents obtained by CAJ paint a very different picture.
“This ( assurance) is contradicted by these documents which in effect stipulate that PSNI officers, up to and including the Chief Constable, working on national security matters are not accountable to the Policing Board but rather to the NIO.”
The lack of local accountability is a familiar complaint which will probably never be satisfied and is a matter of dispute between the political parties they might prefer not to heighten.
It’s not clear to me what is “the disaster waiting to happen” which greater accountability might forestall. The CAJ may really be seeking the limitation of MI5’s role to providing information to the CID or indeed its complete removal. The requirement for MI5 to give witness protected evidence in court however is surely reasonable following evolving practice in England and locally.
Aside from a Finucane public inquiry, other methods should be examined such as reopening the inquest with disclosure of the Stevens and de Silva files made available, this time with Article 2 the right to life of the European Convention of Human Rights, in play. Less elaborate than a public inquiry perhaps but one which would satisfy the key demand for the examination of witnesses.