House of Commons - The administrative scheme for "on-the-runs"

The administrative scheme for "on-the-runs" - Northern Ireland Affairs Contents

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 scheme

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. [12932]
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.[58]

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. [63943]
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[59].

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; [63945]
(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. [63942]
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.[60]

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[…][61]

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 delivery—not promises—from Sinn Féin on policing and respect for the rule of law, and then a commitment from all the parties to a power-sharing Executive.[62]

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]. Others disagree."[63]

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 scheme.

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:

100. The current First Minister and leader of the Democratic Unionist Party, Rt Hon Peter Robinson MLA, told us:

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 judgment."[66]

RUC GC/PSNI

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[67], 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 Parliamentary Answers.

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 manner"[68]

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".

105. 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".[69] 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.

The letters

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 letters'.

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."[70]

RUC GC/PSNI

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."[71] 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 stated:

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. He said:

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".[74]

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."[75] 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."[76]

THE PUBLIC

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) reports.

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 2010.

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

59 HC Deb, 1 July 2002, Col 136W Back

60 HC Deb, 1 July 2002, Col 137W Back

61 Oral evidence taken on 26 October 2005, Session 2005-06, Qq32-33 Back

62 HC Deb, 11 October 2006, Col 291 Back

63 The Hallett Review, The Report of the Hallett Review, July 2014, para 8.45 Back

64 Q784 Back

65 Q1437 Back

66 Q1186 Back

67 Consultative Group on the Past, Report of the Consultative Group on the Past, January 2009 Back

68 Downey Disclosure Documents, Peter Hain Witness Statement to Mr Justice Sweeney, 30 January 2014 Back

69 Judiciary of England and Wales, 'The Queen-v-John Anthony Downey', 21 February 2014, para 52 Back