Can the bar on disclosure on national security grounds be lifted to boost the chances of agreement in the interparty talks?

Proposals for lifting the bar on official disclosure on the grounds  of “national security” have been made by Prof Kieran McEvoy and  the group of human rights lawyers with established reputations in dealing with the past.  For nationalists in the interparty talks this issue  is holding up progress and is a bone of contention with the DUP and the British government.  Although keeping their heads down, this is one issue where the Irish government are not at one with the British, having unsuccessfully pressed for full disclosure on what is known about the Dublin and Monaghan bombings of 1974.

Rather than fixing on leadership and planning and “spectaculars,” Mc Evoy and co are focusing on what should be disclosed to victims and survivors about their injuries or the death of their loved ones. They favour dropping the criteria for national security altogether and substituting a bias in favour of disclosure, subject to “redactions” – blacking  out – of material ruled on by a senior judge.

“The  independent judicial mechanism tasked with reviewing decisions on information redaction should involve an adversarial process wherein the respective arguments of the HIU, government departments and the public interest in disclosure would be tested ( in private hearings ).

At the end of the process, for relatives and survivors, the state would be required to:

Identify the organisation, group, or state agency involved.

  1. b) Describe the nature of the wrongdoing including;
  2. i) The nature of acts of commission or omission.
  3. ii) Whether any relevant action or omission by a public authority was lawful (including, in particular, whether any deliberate use of force was justified in the circumstances).

iii) Whether any action or omission of a perpetrator was carried out with the knowledge or encouragement of, or in collusion with, a public authority.

  1. iv) Whether the actions investigated had or may have been wholly or partly motivated by racial, religious, or other sectarian factors.

  2. c) Make clear the chains of command of the persons directly involved in the wrongdoing and, in the case of state involvement, the supervisory systems, or lack of them, that existed.

  3. d) Indicate whether the actions investigated were or may have been connected with other offences or actions (whether or not already investigated), and

  4. e) Detail the legislative, regulatory or policy gaps that allowed the wrongdoing to occur.

Crucially, the onus would shift from the state as sole arbiter, to the judge.  It is still not clear to me on what basis the state could object and the judge would redact. It seems that the state would still feel obliged to identify a threat to national security for the judge to  make a ruling. The most obvious is whether a threat is still active today. Disclosure campaigners would hope that judges would accept that most if not all threats have been lifted at least for “non combatants”. But what about former and present members of the security forces and former paramilitaries who could conceivably be traced from the reports to families, however carefully couched according to the lawyers specifications? Or wrong assumptions made? Revenge attacks are not unknown.

Families of course can always decline information on the grounds that the identity of the victim gives the best clue to his or her killing and it might be best or at least less painful, to let sleeping dogs lie.

Presumably it would be hoped that robust criteria for withholding information would be established early in the process and obviate the need for legal contests in what could be hundreds of cases. ( see appendix:  Draft Criteria for Restrictions on Disclosure from the HIU to Families)

While criteria for disclosure in the McEvoy proposals would apply equally to the police and the army as well as MI5, the security service is regarded as the main arbiter of national security. They routinely apply the principle of  “ neither confirm nor deny (NCND). For the authorised history, ” Defence of the Realm”  by Christopher Andrew published in 2009, the director general of MI5  laid out the “ policy on disclosure.”   This was seen as marking the start of a new era of relative openness.  This is the nearest we get to an official  working description of  how national security is applied.

Targets

 As for the more recent period, the text explicitly identifies as targets certain individuals or organisations, whom it is obvious, from what has already been officially disclosed, must have been the subject of Service interest. Given the previous official disclosures, there is no requirement to apply NCND to protect these targets from disclosure. A small number of targets are identified for the first time in the History on the basis that the case for identifying them in this context is so strong, and the direct damage caused by so doing so small, that it is judged exceptionally that NCND need not be applied to protect them from disclosure.

In the case of target organisations, these disclosures are almost exclusively confined to the naming of senior leadership figures who were the subject of Security Service interest. In every case, the departure has been made after very careful consideration, on the basis that it is judged essential to the aims of the History and represents the outer limit of what can properly be disclosed without damaging national security, taking into account the continuing importance of NCND to the ability of the Service to perform its functions.

MI5 updated their procedures to take account of  Islamist terrorism, MI5 officers began to give evidence in court behind screens.

  If the information in question is sensitive, such as the identity of an agent (CHIS) or details of a sensitive investigative technique, its disclosure could cause real damage to the public interest in the protection of national security. In such cases, the prosecutor may apply to the judge for authority to withhold the material. Such applications take the form of a claim for public interest immunity (PII).

Claims for PII in relation to our material are made on the basis of a certificate signed by the Secretary of State, usually the Home Secretary. In deciding whether a claim is appropriate, the Home Secretary has to carry out a careful balancing exercise. The competing public interests in the administration of justice and the protection of national security must be weighed. This exercise takes account of detailed advice from prosecuting Counsel on the relevance of the material to the issues in the case.

If the Home Secretary considers that the balance favours non-disclosure, a claim for PII will be made. But the decision on a PII claim is ultimately one for the trial judge alone. The courts, not MI5 or the government, ultimately decide what must be disclosed in a particular case.

The McEvoy  proposals similarly invoke judicial process, but applied retrospectively to the Northern Ireland legacy.   Basic questions arise: would greater disclosure of  how MI5 and the RUC Special Branch penetrated the IRA  be regarded as jeopardising  anti-jihadist intelligence -gathering today?  Or is the state  hellbent on concealing  the true extent of criminal collusion, as Sinn Fein and others allege?

It still comes down to  judgments on whether the direct damage to “national security”  is  small” in a small number of cases and more fundamentally, whether the state can be trusted.  And for the McEvoy proposals to apply to our legacy cases, the criteria would still have to explained albeit in a closed legal hearing. But once out, could they be remain restricted?  Why should they be?   When disclosures are made to families, leaks will surely become a flood. Are we prepared for this – the authorities in particular – or will they continue to keep a lid on it?

There may also be quite separate reasons for genuine discretion, such as  be careful what you wish for, like the shock of unsuspected betrayal. These are not considered here.

At the moment we are in a chicken and egg situation. The test of the British government’s good faith in promising full cooperation with the proposed independent Historical Investigations Unit can only be tested if it is set up. As things stand, it can only be set up when the DUP and Sinn Fein lift their blocks on implementing the legacy package as a whole as laid out on the Stormont House Agreement.  Sinn Fein require the British Government to remove the blanket bar on disclosure on unexplained national security grounds, of which they are at present the sole arbiter.

As a footnote… Theofficial historian of  MI5 Christopher Andrew who published  in 2009 summarised his  conclusions on the Troubles to Mark Hennessy of the Irish Times

MI5 knew “more about Nairobi than it did about Belfast at the start of the Troubles. It was an imperial intelligence agency. People looked forward to nice postings, with a nice social set. Belfast was alien territory,” says Andrew.

So unwelcome was Belfast to MI5 officers in the 1970s and 80s, that postings there “had to be written into their contracts”, he says.

Though he accepts his arguments will not change those of a fixed mind, he insists that the security service was not involved in a shoot-to-kill policy in Northern Ireland. “I am entirely convinced of that, but I don’t expect to be particularly persuasive.”

In 1992, MI5 took over the lead intelligence role, shortly before the IRA embarked on its bombing campaign against the city of London and infrastructure targets.

“This was the point that the IRA came closest to winning,” says Andrew, pointing to the Baltic Exchange and Nat West bombings in 1992 and 1993, along with warnings to international banks to quit their bases in London.

The attacks did major damage, but it could have been even worse: more than 30 attacks were foiled. The IRA returned to the campaign in 1996, after it ended its 17-month ceasefire. There were attacks on Manchester and Canary Wharf. It was by then planning an attack on London’s electricity system, which MI5 and other agencies foiled with Operation Airlines after a suspected IRA bomber was spotted taking up residence in Tooting Broadway in the city.

The peace process was aided during this time, he believes, by MI5’s “calculation that the people they were dealing with” in the IRA and Sinn Féin “had not had their judgment completely brutalised.

“One of the things that make possible the end of the Troubles is that the principals, or, at least, some of the principals, were not corrupted by violence. Usually, it corrupts people in ways that make it impossible to build things like the Good Friday agreement.”

 

 

 

 

 

 

Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London