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.”

 

 

 

 

 

 

  • Jollyraj

    “There will be no progress on any of the difficult issues until unionists recognise the rights of nationalists to sovereignty.”

    What does this mean, exactly?

    “They cant / wont at present because they see this as a slippery slope to recognising the greivances of the civil rights marchers.”

    Which of the grievances of the civil rights marchers have not been addressed?

  • Oggins

    AAA mainland, you are living in your definition of what the world is. The world is not black and white as you define. Right and wrong has never applied in the history of the Irish and British conflicts. In the real world rarely does this happen. How often do we see those who claim moral authority apologies when they mess it up? How many of the world leaders have said this for some of the stupidity in the past 100 years?

    To remove the state from any process and to defend the state is wrong. They too were involved in serious crimes and scenarios. Do i want the state to walk through the streets whilst we chuck eggs and boo them, no. What i want is all sides to agree a process to allow all people to move on.

    You want a process in which only two parties are involved. Your living in denial and rose tinted view of the states involvement.

    The process above in the article which should be discussed is a mechanism to allow progress. To allow ALL to move forward and accept that right and wrong accepts were completed and to give all closure.

    The bottom line is, you have only discussed one aspect of the above (security), attacked SF and defended the state. What you should be doing is moving your political views and discussing the article as mechanism to move us all forward.

    As stated i believe what is on offer is a good starting point, from a seemingly respected source. What is your view on the process. Please don’t go on about state or the blame game

  • Oggins

    AAA my word, you just automatically go SF on everything. You need to move on for the good of all. It’s called the peace process. It is called 20 years of slowly working out the issues the conflicts for the benefit of all. You want sack and ash, it won’t happen.

    Your refusal to discuss the article is alarming and to automatically bring everything back to SF is obsessive.

    Aga in, what do you think of above as mechanism? Do you feel it would help all to move forward?

  • Karl

    It means that until unionists accept that it is not disloyal or rebellious to aspire to determine their own destiny and that Irish nationalism and culture is as legitimate as unionist, until they drop the ‘we the people’ guff and until they recognise that the NI consists of 2 equal national aspirations then there cant be progress.

    None of the greivances of the civil rights marchers remains unaddressed. Unfortunately events and time have moved things on. As usual, had unionism listened at the time and granted the reasonable demands a lot may have been prevented. As it was, those marchers were beaten off the streets and the situation developed a life of its own which neither side was able to control.

  • grumpy oul man

    Did they stand beside and make common cause with bombers and killers.
    Yes they did, often.
    Did they form a terror group, yes they did.
    Did they refuse to comdem loyalist terrorists. Yes

  • Skibo

    MU how can you count the PFC as selective, surely they represent their clients. As for SF they are a Republican political party. I assume they are representing the rights of their electorate to get justice. It it not the job of Unionist political parties who stand in opposition to Republicanism to represent the victims of Republicanism?
    If they see that the actions of the British government is holding up justice for the people they represent, why are they not putting pressure on the British Government to agree a system to release the information and remove the log jam?

  • Skibo

    MU are you forgetting the British Government? They have a responsibility to release information to assist the relatives of victims of the security services. They also have considerable information on intelligence services that ran operatives in both the Republican and Loyalist movements.
    Is SF corrupt or are they not prepared to allow the British Government off the hook with the “in the interest of national security” claim?
    It would be interesting if and I mean if the British government release information on intelligence, it turns out that Unionist politicians alive or dead had information on terrorist actions and did not divulge the information.

  • Skibo

    MU never mind what the state owes Republicans or Loyalists, what do they owe the victims. They are the ones looking closure.
    You talk about the right thing and then give an immunity to the British Government to do what is right.

  • The Irishman

    Excellent post.

  • MainlandUlsterman

    You’re not reading what I’m writing – no immunity to the state, just reasonable withholding of some information (probably quite a lot, realistically) on genuine national security grounds.

  • MainlandUlsterman

    I think I made my point – the article is fine as far as it goes but it continues the focus on state actions. Really that’s a side show, 95 per cent of what we’re all waiting for is not covered. We are waiting for the paramilitaries – and SF is protecting them.

  • The Irishman

    Well said.

  • Jollyraj

    What you are saying makes no sense, Karl (though the presence of the Shinner approved slogan ‘beaten off the streets does give some clue what you’re up to).

    You have two key demands. One is the conveniently vague waffle that unionists “accept that it is not disloyal or rebellious to aspire to determine their own destiny and that Irish nationalism and culture is as legitimate as unionist….
    then there cant be progress.”

    I think everyone accepts that. There is nothing to stop you being and feeling Irish.

    The second is that the grievances of the civil rights must be addressed. They have been addressed. Decades ago. As you say yourself:

    “None of the greivances of the civil rights marchers remains unaddressed.”

    You, like Sinn Fein, are bluffing, Karl.

  • MainlandUlsterman

    Just explaining why the SF arguments on this aren’t persuasive and won’t get anywhere – and protecting decent people who were always against terrorism from being dragged through the mud by the terrorists’ cheerleaders. Does it not offend you? If not, why not?

  • Jollyraj

    I find it quite ironic that SF cheerleaders are still dealing in this ‘step up to the plate’ line despite the recent demise of Martin McGuinness and the absolute lack of interest they showed in encouraging him towards enlightening us all. Unless there are some Boston tapes type confessions squirreled away then a man who could have filled in many of the blanks about Republican terrorism has been allowed to shuffle off this mortal coil after decades of failing to disclose anything at all. Let’s be honest, Sinn Fein are now blatantly bluffing. You’re making some excellent points and, despite the usual Republican tactic of piling on when someone is telling uncomfortable truths and trying to wear him/her down through attrition it’s important to make sure the smokescreen doesn’t work. Bravo!

  • Jollyraj

    “As for SF they are a Republican political party. I assume they are representing the rights of their electorate to get justice”

    They aren’t representing the rights of the electorate, though. Many, many people suffered at the hands of the terrorist group that morphed into present day Sinn Fein – what are SF doing for IRA victims and their families?

  • Oggins

    Does it offend me no. I am more caring about finding a solution to put a line in the sand. As said loads of times, a lot of wrong was done by all and closure is required.

    So will you answer my questions on the mechanism as defined above, and Has been asked about 3/4 times.

    Would you support the mechanism or what changes would you suggest?

  • Jollyraj

    How so?

  • MainlandUlsterman

    If you are not nationalist at all, my apologies. But otherwise, it’s not diversionary, it’s at the core of analysing narratives of the Troubles that focus strongly on state wrong-doing. Non-acceptance of the legitimacy of NI has undoubtedly affected the approach to the Troubles of many who take that line. In particular it causes wrongs by state actors to get disproportionate focus in comparison to non-state actors, and for people to take an unsympathetic approach to the problems and dilemmas faced by people in the security forces.

    The result of that is the committing of a great unfairness to them – a casual maligning of their work, which today continues to cause much pain, sadness and even bitterness to tens of thousands of public servants who served the community with great restraint, bravery and distinction.

    Whether you are a nationalist yourself or not, I’m sure you’ve noticed this casual disregard for decent people doing a decent and hard job is habitual in much nationalist discourse. It is hugely problematic. I get the sense many nationalists now have so convinced themselves of their own righteousness – and the bogey man myth about the security forces – that they are unlikely to even recognise this as a problem. But it is, and it needs stating so people can start to reflect on it and perhaps start to deal with it. Just giving the mass of decent people in the security forces who acted decently their due could have a wonderfully transformative effect.

    Instead SF seems to have locked its sights on them and much of nationalism has backed it up. They are no longer actually killing them, but they are attacking them still. It really needs to stop. They need to focus on the wrong-doers, wherever they are and be fair about it. Fat chance of that.

  • Skibo

    How can the state be under threat by releasing information that could be over forty years old?

  • Skibo

    You are still in denial that nothing will be released without a system of releasing all information or at least the information that an independent Judge could decide would not effect National security.
    Could you go to the Loyalists and ask them to produce their information?

  • Skibo

    First of all, do you believe that the victims of IRA violence are SF voters?
    Secondly, I believe that SF have said that Republicans will not be found wanting if a system can be agreed. The ball is in the British court, resolve the issue of legacy.

  • Skibo

    All this could be resolved by the British Government opening the files on legacy. It will not go away any other way.
    Call their bluff!
    As for the Nationalists convincing themselves of anything, that has more to do with living inside the nationalist community during the troubles, something you would not be aware of.

  • Karl

    I dont like SF at all. Boom tish.

    Upon unification I will happily join the queue to put SFs left wing, economically illiterate nonsense on the nearest non tyre burning pyre .

    Unfortunately for now I think they are the best chance of making unification happen because they appear to be the only party that wants it.

    Bluffing? Time will tell

  • Skibo

    Your bar of acceptable use of violence seems to vary as to whether the protagonist is wearing the uniform of the state or ordinary clothes.

  • Jollyraj

    I can how you’d say that if you don’t read my posts, yes.

  • Jollyraj

    “First of all, do you believe that the victims of IRA violence are SF voters?”

    Of course not! The raped does not vote for the rapist.

    Do you believe Sinn Fein has no obligations towards IRA victims? And if not why not – because there’s no votes in it?

  • MainlandUlsterman

    Indeed, the false narratives were quickly forged then. My dad was witness to it on several occasions.

  • MainlandUlsterman

    By giving up intelligence sources and breaking deals with informers. That affects informers now, here, today. The intelligence services can’t operate unless those thinking of turning know they can trust the deal they are offered.

  • Skibo

    Sorry JR, I assume you are using a mobile and that just didn’t come out right. Come again?

  • Skibo

    MU some of those same informers were fed to the lions to protect the identity of others. How can an informer from forty or fifty years ago still be a threat to the state?
    Surely anyone who needs protection would be whisked away to somewhere in England and given a new identity, is that not how it works?

  • Skibo

    Again the derogatory comments. I do not see how you keep getting away with such examples.
    I believe that SF obligations are towards getting information for those victims of Security and Intelligence operatives.
    If they can use the information that the IRA have to make the British divulge that, then that is how negotiations work. You do not give away your main card in a game of poker.

  • MainlandUlsterman

    It’s not so much the individual people, though there is that. What would be compromised is much bigger than that – it’s the ability of intelligence services to be able to credibly offer anonymity and protection to individuals they are seeking to turn within terrorist groups. The loss of credibility would damage their ability to recruit informers well beyond N Ireland. Put yourself in the shoes of someone who’s got mixed up with Al Muhajiroun, is having doubts, has been approached and is thinking of feeding intelligence back to MI5. You want assurances and you want to believe those assurances. MI5 being forced by a court to reveal its sources is going to be enough to convince our doubting terrorist that helping the authorities is not worth the risk because they can’t protect you.

  • grumpy oul man

    Right so unless SF support the rights of IRA victims then they don’t represent the electorate (of course you represent the SF electorate) then by extension if the DUP don’t support the rights of victims of state (and it’s loyalist tools) violence then it isn’t representing the electorate.
    You are a very confused person.
    Oh did you manage to work out that Argentina thing.
    Remember read things twice.

  • grumpy oul man

    So all nationlists who want to know why the state murdered people are not interested in the truth but merely on a anti state agenda.
    How secterian and ignorant a statement.
    Of course you as a unionisms and a supporter of the state have no such agenda.

  • grumpy oul man

    Give us your timeline of the troubles please.
    That is a Olympic standard false narrative.
    How does it go .
    It started with the provost and everything done by unionists (murder, discrimation, attacks on houses and civil rights March’s)didn’t have any effect on things.
    Isn’t that your version.

  • Skibo

    MU information can be released without revealing the name of the informant. There are informants that have been exposed and have been given new lives in Britain.
    You are putting excuses up for not giving victims closure.

  • MainlandUlsterman

    Well, that truth has come out. I wonder if The Keep was referring to the full extent of Finucane’s relationship with the IRA? That’s equally interesting. Not expecting much assiduous research from the PFC on that one, ironically.

  • MainlandUlsterman

    Fair point on BS and often made. Less often pointed out is default approach to truth over Troubles incidents from Republican community. That is, less than open and forthcoming with the facts. Deeply hypocritical of them to practise habitual cover-up and lying over IRA activities then act the outraged defender of Truth when their intended victims, trying to do undercover policing under threat of death from said paramilitaries, don’t divulge every detail of their work. Really stinks.

  • Barneyt

    you should not be able to derive as you do from my remarks, unless you are willing my words on to the screen. I do not regard the PSNI has having been involved in the conflict to the same degree as their RUC predecessors. Many agencies that represent the state yo-yo’d between roles i.e. law enforcement and off-piste engagement, either sanctioned or not. That entitles them to be labelled as I do “combatants” as they elected to engage at that level. I have not deemed the PSNI in that same light.

    Groups that considered themselves to be revolutionary combatants or protectors of their culture and people made the same contradictory journey between (what could be argued to be) legitimate guerilla activities and if you like, revolt. They also enaged in activities that caused terror and were are indicriminate and direct, which in those instances, rendered them terrorists. They rightly get labelled as terrorists for those deeds, as the RUC, UDR, British Army do combatants for the path they took. The state is as guilty of terror too.

    It depends on your ability to look independently at a conflict, and it does not have to be on this island. We look back now at how armies dealt with desserters. We are horrified, however it was accepted as the norm and we write it off as “well there was a war on”. If you look at certain deeds committed by say the UVF and IRA, you can put them in context of the campaign they were involved in, without necessarily supporting them.

  • MainlandUlsterman

    Barney, I think that’s an example of what annoys me so much about even the supposedly moderate nationalist discourse around the Troubles. It still gives the security forces so little credit for their work and sacrifice (“the path they took”, as if the IRA campaign was something the security forces chose) and at some level it still buys into the idea it was “war” and therefore we should be less harsh in our judgment of the paramilitaries for that reason.

    It all sounds very emollient but beneath the surface it is utter rot. There was no excuse for the terrorism, and pretending they’re in a “war” so they can put a bomb under a policeman’s car or go and shoot a Protestant farmer is just pathetic excuse-making. On the one hand you’re condemning terrorism but on the other hand you’re allowing terrorists respectability and even justification by buying their “war” excuse. Because if you’re in a war, you are allowed to summarily kill enemy “combatants” (hence my sensitivity around the use of that word – it is a word that trusses up the country’s police and army personnel and presents them as fair game for anyone wanting to kill them).

    It’s great that you’re against terrorism but it’s not enough just to say that. To be genuinely against them you have to not let them blame-shift or wriggle off the hook. It’s OK to have criticisms of the security forces too – they weren’t perfect – but please don’t fall for the terrorist line that we have to accept the terrorists’ self-definition, or “put them in context of the campaign they were involved in.” No. That is flakey and not making your mind up.