NI Affairs Committee On The Runs report – an example of something being “hidden in plain sight”

The NI Affairs Committee’s 111-page report into The administrative scheme for “on-the-runs” [PDF] will take some time to read and digest.

In the meantime, picking out a few of its 62 conclusions and recommendations …

2. It is clear that Sinn Féin pushed for OTRs to be dealt with at the highest level, and that promises were made by the Prime Minister as a result of the pressure put upon HM Government by Sinn Féin. Over the years, Tony Blair put in much effort to ensure those promises were fulfilled, but did so without telling other Northern Ireland party leaders about the exact nature of the administrative scheme. (Paragraph 47)

3. The role of the Irish Government also gives rise for concern, as the December 1999 letter highlighted that it was pushing for cases which had not even been tried in the United Kingdom courts to be completely dropped. It appears that the Irish Government was, in effect, trying to persuade HM Government to introduce an amnesty for republican terrorist suspects. (Paragraph 48)

The scheme remained “largely invisible”

7. One of the most controversial issues within the Belfast Agreement was the early release of prisoners, but at least it was publicly disclosed in the Agreement which itself was endorsed by referendum and enshrined in statute. By contrast, the administrative scheme for OTRs, also a highly controversial scheme, remained largely invisible for some 14 years. (Paragraph 61)

The scheme was “extraordinary”.

12. The direct involvement of Secretaries of State for Northern Ireland, Officials in the political directorate in the NIO, and even No. 10 Officials, in the criminal justice process was recognised as being extraordinary by many witnesses. We understand that the circumstances after the Belfast Agreement were also extraordinary and given the lack of confidence Sinn Féin, at that point, had in the criminal justice system in NI, we recognise that an extraordinary process was required. However once Sinn Féin had signed up to support policing in NI this scheme should have reverted to more normal criminal justice processes. We also consider that the extraordinary nature of the scheme should also have required all those involved to put in place thorough processes to ensure that the identified risks of damaging the criminal justice processes were mitigated as far as possible from the start. It is greatly regrettable that this was not done. (Paragraph 75)

13. It is apparent to us that different Secretaries of State played significantly different roles in the scheme. Those who were in post at the initial stages of the scheme were very knowledgeable about it, as was Peter Hain, a long serving Secretary of State for Northern Ireland. His evidence appears to have been heavily relied upon by Judge Sweeney in the Downey judgment. Those involved later in the scheme seemed to be much less well informed about the detail of the scheme, and did not have the same role with regard to individual OTRs. This may have been because the scheme had become firmly established by the time they became the Secretary of State and it continued to be operated by NIO Officials. It was wrong the final scheme continued without the full involvement of successive Secretaries of State. (Paragraph 76)

15. Whilst the scheme may not have given Sinn Féin exactly what they wanted, it was designed to go well beyond the terms of the Belfast Agreement early release scheme to cover a much wider range of people. It allowed people to return to the UK, without going through any judicial process. It also allowed prison escapees to return to the UK, without serving the remainder of their sentence or being charged with escaping from prison. (Paragraph 86)

In hindsight, the scheme was “hidden in plain sight”.

16. Only with the benefit of hindsight, can it now be seen that there were several indications that an administrative scheme for OTRs was in operation, including, for example, from Ministers’ responses to Parliamentary Questions; the scheme was therefore an example of something being “hidden in plain sight”. (Paragraph 104)

17. Whilst we accept that some disclosure had been made about dealing with OTRs, these have tended to be incomplete accounts of what the scheme fully entailed. Indeed, some of the disclosures to Parliament, both in response to Parliamentary Questions, and to questions raised by our predecessor Committee, leave out some key information about how the scheme worked, and in his judgment Mr Justice Sweeney commented: “At a meeting with the [Secretary of State for Northern Ireland] in May 2001 Mr Adams expressed the view that, in terms of Republican confidence, it would be better if there was an invisible process for dealing with OTRs”. It is clear the intention was that the people of Northern Ireland and other political parties were kept in the dark about the scheme to the greatest possible extent. (Paragraph 105)

18. In section 8.54 of The Report of the Hallett Review, it is stated that “there was sufficient information in the public domain to alert the close observer of political affairs in Northern Ireland to the fact that some kind of process existed by which OTRs could submit their names for consideration by the police and prosecuting authorities”. We disagree. Even Owen Paterson, who had been shadow Secretary of State for Northern Ireland since 2007, told us he did not know about the scheme until he actually became Secretary of State in 2010. (Paragraph 116)

19. We have found no evidence that, beyond Sinn Féin and the NIO, anyone else knew about the precise use of letters, issued on behalf of HM Government, to alert someone as to whether they were “wanted” or “not wanted”. (Paragraph 117)

20. It is important to make clear at this point that the PSNI knew nothing about the content of the letters sent from the NIO to Sinn Féin until December 2011. This is one of the major failings of the scheme. (Paragraph 118)

23. The letters themselves, and subsequent statements by the PSNI and NIO, have left it unclear quite what “new evidence” would be required for a prosecution to be brought against a recipient of one of the letters. This issue is key and should have been addressed before the text of the letters was decided so that all involved were clear regarding what could and could not be considered. This issue exposes again the lack of care that was taken in designing the scheme. This is a point which needs to be clarified, particularly given the statement by the PSNI that 95 recipients of letters are potentially linked, by intelligence, to almost 300 murders. (Paragraph 141)

24. Sinn Féin stated that it was “impossible to overstate the importance of the assurances” the letters gave. It is unclear whether this means Sinn Féin took the letters to have some legal status beyond being a simple statement of facts at the time, but it is difficult to see how the letters could have been thought to have such significance if taken purely at face value. The fact that Gerry Kelly refused our invitation to give public evidence has denied Sinn Féin the opportunity to explain what assurances they had been given by HM Government as to the status of the letters. (Paragraph 146)

26. The Government should set its mind to ensuring that all necessary steps are taken, including, if necessary, introducing legislation to ensure the letters have no legal effect. (Paragraph 157)

37. If the PSNI had known about the entire scheme and had been involved in checking the letters sent to OTRs, it is almost certain that the Downey judgment could have been prevented. Matt Baggott, former Chief Constable of the PSNI, told us that, “with the benefit of hindsight, had we known there were letters, could there have been a bigger conversation about the implications if a mistake had been made”. We agree with this comment. (Paragraph 207)

43. Whilst there is no suggestion that the scheme was actually illegal, it would be difficult to say that the scheme is unquestionably lawful in every case and this might have given an aggrieved person an opportunity to have a decision made by a Minister quashed in judicial review proceedings. Secrecy denied this opportunity. However, we are pleased that cases for judicial review have now been brought given the wider public understanding of the scheme. We are also concerned that the availability of this scheme to only one section of the community, and even then only effectively at the whim of one political party, raises questions about equality rules in Northern Ireland. (Paragraph 220)

55. Having looked at all of those documents which have been made available to us, we have concluded that pre-conviction pardons were not used in relation to OTRs. (Paragraph 288)

56. We welcome the fact that the Hallett report recommended that a central register of RPMs [Royal Prerogatives of Mercy] be drawn up for Northern Ireland, and are pleased that HM Government has already accepted this recommendation, although this information will not be provided retrospectively. In the interests of transparency, and given that the names of those who received the use of the RPM are already in the public domain, however, we recommend that the Secretary of State should publish this information retrospectively. (Paragraph 296)

57. We recommend that HM Government confirm which OTRs received the RPM, as the provision of such information could not jeopardise any future prosecution of those individuals. (Paragraph 298)

58. Whilst the name of those who received a RPM have been disclosed in court cases, the Secretary of State has refused to name which of those are OTRs. We find this wholly unacceptable. (Paragraph 299)

59. Where the RPM has been used in Northern Ireland in the past, we believe HM Government should publish the names of those people, and list what they received the RPM for, and we recommend that the names of any future recipients of the RPM in Northern Ireland should be required to be published in the Belfast Gazette. (Paragraph 300)

Sinn Féin’s lack of evidence to the inquiry hampered the committee’s ability to fully understand the OTR scheme.

60. We have previously noted that Sinn Féin were not getting what they wanted from the letters, which was, effectively, an amnesty. It has been suggested that the letters were only sent to those people who had the status of “not wanted”, but we find it somewhat difficult to follow the logic that Sinn Féin would have been kept on board by the NIO sending letters to not wanted people. (Paragraph 313)

61. Without being able to question Sinn Féin about exactly what assurances they thought they were being given by HM Government through these letters, we are not convinced that the OTR letters were deal breakers. It appears to us that Mr Blair was saying that it was necessary to find a solution to the OTR issue in order to keep Sinn Féin on board, and while it was too difficult to legislate for an amnesty, this scheme served as a substitute, a distraction, which kept Sinn Féin in the peace talks. However, it looks to us that the two processes became blurred. (Paragraph 314)