3 Knowledge of the scheme |
88. Much debate has been generated about whether
the scheme, or elements of it, have been deliberately kept secret
or not. Many witnesses gave us varying accounts of their knowledge
of the administrative scheme and the comfort letters.
The general issue of OTRs
89. It is clear to us that it was widely accepted
that the issue of OTRs needed to be dealt with. All political
parties were aware that Sinn Féin were looking for a resolution
to the issue of OTRs, because it had been openly discussed since
1999. Indeed, a number of parties put forward suggestions as to
how the issue could be resolved.
Knowledge of the administrative
90. In the eyes of many observers, the Northern Ireland
(Offences) Bill was HM Government's only proposed scheme for dealing
with OTRs and, apart from Sinn Féin, they did not know
that a separate administrative scheme had been in operation for
OTRs since 1999.
91. Unlike the terms of the early release scheme
in the Belfast Agreement, the full details of the administrative
scheme were not released publicly and any information that was
disclosed was released in an ad hoc way over many years.
DISCLOSURE TO PARLIAMENT
92. The answers to several Parliamentary Questions
gave some indication as to the nature of the scheme, and we will
not attempt to reflect on them all; however, the following questions
stand out as being particularly important.
|Mr. Barnes: To ask the Secretary of State for Northern Ireland by what process suspected terrorists who are wanted for alleged crimes are having prosecutions against them stopped; and if he will list their names, giving in each case the details of the charges that are being dropped and the known paramilitary affiliations. 
Jane Kennedy: Where decisions as to prosecution arise, the prosecuting authorities, who act independently of Government, reach decisions in accordance with the Test for Prosecution.
In the light of the proposal emerging from the Weston Park talks, the Government have agreed to provide new arrangements to facilitate the return to Northern Ireland of persons who may otherwise be liable to possible prosecution in respect of certain qualifying offences. We are currently considering the mechanism for delivering this.
93. The above answer gives some details of the scheme, highlighting
that the prosecuting authorities are looking at some cases and
making decisions on them. However, most importantly, the answer
states "We are currently considering the mechanism for delivering
this", pretending that towards the end of 2001, there was
not already an ongoing process. By this stage, at least 18 people
had in fact been cleared for return and the Royal Prerogative
had been used in 10 cases. It is clear that a mechanism for delivering
the scheme was already in place.
94. The Parliamentary Question quoted most often
in relation to OTRs, from 1 July 2002, states the following:
Mr. Quentin Davies: To ask the Secretary of State for Northern Ireland if he will make a statement on his plans to inform persons suspected of involvement in terrorist activities that their cases will not be pursued. 
Dr. John Reid: We are still considering how best to implement the proposals which we and the Irish Government made in relation to this following the Weston Park talks. In the meantime, any inquiries received in relation to individuals wishing to establish whether they are wanted in Northern Ireland in relation to suspected terrorist activities have been communicated to the Attorney-General, who has referred them to the prosecuting authorities and the police.
We are clear that this answer refers to individuals having their
names checked by the relevant authorities, but it does not reflect
the fully-fledged scheme that had emerged by this point. We accept
that the answer to his later question (below) does give some additional
details. However, in this answer, the dropping of extradition
cases, which was the policy announced by his predecessor on 29
September 2000, is confused with cases were there was not sufficient
evidence to prosecute. For example, Rita O'Hare's extradition
was dropped but she remained wanted. This answer adds to the confusion
and lack of clear details released about the scheme.
Mr. Quentin Davies: To ask the Secretary of State for Northern Ireland (1) how many people suspected of involvement in terrorist activities have been informed
by the Northern Ireland Office since 10 April 1998 that they are no longer wanted by the prosecuting authorities; 
(2) how many people residing outside the United Kingdom and suspected of involvement in terrorist activities have been informed by the Northern Ireland Office since 10 April 1998 that if they return to any part of the United Kingdom their cases will not be pursued by the prosecuting authorities. 
Dr. John Reid: As a result of inquiries received and referred to the prosecuting authorities and the police, 32 individuals have been informed over the past two years that they are not wanted for arrest in relation to terrorist offences. In accordance with the policy announced by my predecessor on 29 September 2000, an additional 25 persons, who had left Northern Ireland without completing their sentences, have been informed since then that they can return to Northern Ireland without serving more time in custody and that the prosecuting authorities and police have confirmed they will not face fresh charges.
95. Later responses from other Northern Ireland Secretaries of
State, most notably by Peter Hain, are less than helpful and are
certainly incomplete. For example, the following exchange in our
predecessor Committee, in 2005, suggests that those being considered
for OTR legislation were not submitted by way of Sinn Féin
lists. Since the Downey judgment, we know this is not the case.
Q32 Lady Hermon: You have referred to `on the runs' as a category of people and you have from time to time referred to the fact that you will be taking advice from the PSNI. Can you give a categorical assurance that those who appear within the list of `on the runs' will not be a list submitted by Sinn Féin or Loyalist paramilitary organisations, but will genuinely come from the PSNI?
Mr Hain: These are people whom the police suspect of committing crimes, in some cases very serious atrocities. That is the basis upon which they will be defined and selected.
Q33 Sammy Wilson: What you have said seems to be at variance with what the police are indicating. As far as the police are concerned, they have actually suggested that the names which were first given and the names which first appeared on this whole `on the runs' issue were given by the IRA. Indeed the police were surprised at some of the names; they did not know the people who were named were actually people they should be looking at and searching after. So could you just confirm for us whether there was at any stage in this process a list of names given by the IRA which then provoked the promise to introduce this legislation?
Mr Hain: I have not seen such a list, if that is the question you are asking. Have there been discussions, including with the police and including with Sinn Féin? Yes, of course there have[
96. A prominent example of an answer to a Parliamentary Question
that leaves out some of the key detail is the following from 2006:
Mr. Robinson: Is the Secretary of State aware of how damaging it would be to the prospects for restoration if the Government were to return to the issue of on-the-run terrorists being given what amounts to an amnesty? Although we welcome the earlier answer from the Minister of State that no legislation is to be brought before the House, will the Secretary of State reassure the House and settle the nerves of my colleagues and me by assuring us that no other procedure will be used to allow on-the-run terrorists to return?
Mr. Hain: There is no other procedure. There is no prospect of an amnesty. The legislation was tried; it was withdrawn when support for it collapsed, not least in this House, and we have absolutely no intention of bringing legislation back. That, I think, should reassure the hon. Gentleman. What we shall look for in the next few days is deliverynot promisesfrom Sinn Féin on policing and respect for the rule of law, and then a commitment from all the parties to a power-sharing Executive.
97. Given that, in late 2006, meetings to setup Operation Rapid
had already taken place, and that this Parliamentary Answer did
not give any details of that, this deprived Parliament of the
chance to properly scrutinise the OTR scheme, and the commencement
of Operation Rapid. We note that the Report of the Hallett Review
states, "Mr Hain has argued that these answers were strictly
accurate given the context of the questions [the withdrawal of
a Bill which would have provided a legislative amnesty for OTRs].
DISCLOSURE TO POLITICAL PARTIES
98. In our evidence, we have heard from several party leaders
regarding their knowledge or, rather, lack of knowledge of the
99. Lord Trimble, former First Minister of Northern
Ireland, and leader of the Ulster Unionist Party from 1995 until
2005, when asked about the circumstances when he first heard about
the scheme, said:
At the time of the Downey judgment. When that
became known was the first I had heard of it. I was quite shocked
to find that it had been operated since 2000. Between 2000 and
2005, I have not tried to count how many times we met either the
Secretary of State for Northern Ireland or the Prime Minister,
and at no time was any hint dropped to us about the existence
of this scheme.
100. The current First Minister and leader of the
Democratic Unionist Party, Rt Hon Peter Robinson MLA, told us:
My first knowledge of the OTR letter scheme came
in the days immediately before the publication of the Downey judgmenttwo
days before, when we were given advance notice. At no point before
that had it ever been indicated to me or, to the best of my knowledge,
any of my party colleagues that such a scheme was in operation.
The Justice Minister, David Ford MLA, was also only
made aware of the scheme at this point. He told us, "I first
became aware of the scheme when I received a telephone call from
an NIO Official on Friday 21 February to brief me about the Downey
101. The police knew that the investigations they
undertook were part of some sort of administrative scheme. Whilst
they did not know the full end-to-end processes involved, they
were aware that their role was to look at names which were provided
to the NIO primarily by Sinn Féin, to see whether those
individuals named were wanted. They were not aware of how that
status was being communicated to Sinn Féin.
WIDER PUBLIC KNOWLEDGE
102. There has been some information circulated in
the public domain about OTRs. As well as the disclosures to Parliament,
some journalists and reports, such as the Report of the Consultative
Group on the Past,
have endeavoured to disclose details over a long period of time
(1998-2014). Many of the articles had only a small amount of detail
about the scheme and did not give a clear view of what was happening,
especially when we read them alongside some of the less than helpful
103. We also note that in his witness statement to
the Downey trial, Peter Hain stated that one of the exceptional
features of the scheme was that it "progressed in a non-public
104. 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".
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.
106. A key element of the scheme was sending administrative
letters, signed by NIO Officials, to those who were deemed either
"wanted" or "not wanted".
DISCLOSURE TO PARLIAMENT
107. We are highly critical of the fact that further
disclosure was not made to Parliament about the existence of 'comfort
DISCLOSURE TO POLITICAL PARTIES
108. None of the leaders of Northern Ireland political
parties we heard from (DUP, UUP, SDLP and Alliance Party) were
aware of the so-called 'comfort letters'. It is apparent that
only Sinn Féin were aware of them. When former Prime Minister
Tony Blair was asked directly if he ever mentioned the scheme
to the prominent loyalist leader, David Ervine, he could not confirm
he had told him. He stated, "I didn't tell him about the
scheme, but he knew about the on-the-runs."
109. Sir Ronnie Flanagan, who was the first Chief
Constable to preside over the scheme, told us that he did not
know that the NIO were sending out letters to those not wanted,
but that he "had an awareness that letters of the type that
I am describing would certainly have been contemplated, and I
would not have had a difficulty with that."
There was not, however, an awareness within the PSNI [which succeeded
the RUC in 2002] as to the end product of the scheme.
110. Other PSNI officers told us that there were
not aware that a letter had been sent from the NIO. Sir Hugh Orde
We did not know they [the letters] were there.
We did not know they existed. One of my frustrations about the
judgment was one of the observations I think that was persuasivefar
be it from me to second-guess the judgein the judge's mind
was, when the information went out that was not right, it was
not corrected. I cannot correct what I do not know.
111. Former Chief Constable (now Sir) Matt Baggott
told us the PSNI thought there must have been a way of informing
OTRs of the outcome of their investigations. They did not think
this would have been done by letter. He also told us that, had
he known they were being informed by letters he would have ensured
there was more discussion over the consequences of a mistake.
Obviously 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.
112. The Report of the Hallett Review made it clear
that the first evidence they could find of the PSNI knowing about
standard text of the OTR letters was in December 2011, some eleven
years after they had first been used to give comfort to OTRs.
The Report states, "the PSNI were not aware of the 'normal
text' terms of the letters of assurance until December 2011".
SECRETARIES OF STATE
113. As we have discussed in Chapter 2, not all Secretaries
of State had the same level of knowledge about the scheme and
what was fully involved in it. During the Labour administrations,
all of the Secretaries of State, with the exception of Paul Murphy,
knew about the letters sent to Gerry Kelly of Sinn Féin
from the NIO Officials.
114. During the current administration, Rt Hon Owen
Paterson MP, told us that he did not see a single OTR letter during
his time as Secretary of State, and his evidence leads to some
confusion as to whether he actually knew about the letters at
all. When questioned on whether he asked about the mechanism of
communication between the NIO Officials and those in receipt of
a comfort letter, he stated "I knew my Officials were talking
to Sinn Féin; that was what I had inherited. That was the
system that had worked through the whole period that the scheme
had been in operation."
He went on to say that he "knew my Officials were responsible
and were talking to the political parties on a regular basis.
How they communicated I left to them."
115. There was no disclosure whatsoever to the general
public about OTR letters, although some individuals had specific
knowledge of the scheme through Historical Enquiries Team (HET)
116. 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
117. 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".
118. 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.
119. Due to
the fact that the detail of the scheme was not fully disclosed,
it prevented citizens from seeking to judicially review the legality
of the scheme, or the decisions made with regard to whether an
individual would receive a letter or not. The criminal justice
system in the UK is based around transparency with details of
individuals arrested and charged being made public and trials
also being open to the public. This transparency is key for public
confidence in the fairness of the system. The secrecy of the administrative
scheme runs counter to this need for transparency and in our view
should have been fully disclosed from the start.
58 HC Deb, 27 Nov 2001, Col 768W Back
HC Deb, 1 July 2002, Col 136W Back
HC Deb, 1 July 2002, Col 137W Back
Oral evidence taken on 26 October 2005, Session 2005-06, Qq32-33
HC Deb, 11 October 2006, Col 291 Back
The Hallett Review, The Report of the Hallett Review, July 2014,
para 8.45 Back
Consultative Group on the Past, Report of the Consultative Group on the Past,
January 2009 Back
Downey Disclosure Documents, Peter Hain Witness Statement to Mr Justice Sweeney,
30 January 2014 Back
Judiciary of England and Wales, 'The Queen-v-John Anthony Downey',
21 February 2014, para 52 Back
The Hallett Review, The Report of the Hallett Review, July 2014,
para 7.48 Back