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

6  Devolution of Policing and Justice

223. Responsibility for policing and justice was devolved to the Northern Ireland Assembly on 12 April 2010; the Department of Justice was set up, and David Ford MLA, the Leader of the Alliance Party, was elected as the Justice Minister.

224. Details of the Downey judgment emerged on the 25 February 2014. The Justice Minister told us he did not hear about the scheme until a few days before this was made public. He stated:

    prior to the Downey judgment becoming public, I was unaware that such a scheme was in operation. 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, before it became public on Tuesday 25 February.[144]

225. Initially there was some confusion over whether the scheme was or was not devolved; in a Statement to the House on 25 February 2014, the Secretary of State, Theresa Villiers MP, indicated that the scheme was devolved, saying:

    As policing and justice have been devolved issues in Northern Ireland since 2010, any further requests for the scheme, or clarifications on whether particular individuals remain wanted for arrest, should be directed to the PSNI and devolved prosecuting authorities.[145]

However, in a further Statement to the House, the Secretary of State confirmed that the current Government continued the scheme from May 2010, stating:

    On coming to office in May 2010 my predecessor was made aware of a list of names submitted by Sinn Féin to the previous government under an agreement they had reached to clarify the status of so-called 'On the Runs'.[146]

She also confirmed that neither the Justice Minister, nor the First Minister, were told about the scheme, stating, "I should also make it clear that, to my knowledge, this government did not inform either the First Minister or the Northern Ireland Justice Minister of this scheme."[147] The fact that the First Minister was not told, even on Privy Council terms, about the scheme was, we believe, an insult to him personally, and to his Office.

Why was the scheme not devolved?

226. Some of the arguments that we have heard as to why the scheme was not devolved in 2010 are set out in the paragraphs below.


227. Whether or not the scheme was to be devolved in 2010, was discussed within the NIO. The Permanent Secretary in the Department of Justice, Mr Nick Perry, who had previously worked in the NIO, told us that a decision not to devolve responsibility for the scheme was taken on the basis of legal advice. He told us:

    the Ministers who had responsibility for this issue had decided that it would not devolve. They took that decision, I believe, on the basis of legal advice and the Law Officers supported that advice. It simply had not transferred across to the Department of Justice.[148]

By convention, that legal advice has not been released, and we have not had access to it.


228. National security issues were not devolved to the Northern Ireland Assembly, when policing and justice was devolved. In the Report of the Hallett Review, Dame Heather Hallett offered what she describes as the arguments the NIO put forward for not devolving the scheme in 2010. Her Review stated:

    Accordingly, it is an excepted matter by virtue of paragraph 17 of Schedule 2. The argument is along these lines: the scheme evolved as part of the peace process. It was one of a number of measures designed to ensure the implementation of the Belfast Agreement (also known as the Good Friday Agreement) and the end of terrorism. The scheme, therefore, had and has the potential to affect national security.[149]

229. Owen Paterson, who was Secretary of State just after policing and justice had been devolved, told us that his Government saw the issue of OTRs as one to do with national security. He stated:

    We saw it as an issue of national security that had come out of these very difficult negotiations that the last Government had conducted with the Irish and American Governments, and it just was not appropriate. I cannot remember a single person at that time suggesting that we should have handed over this issue to the very new devolved Minister.[150]

Should the scheme have been devolved?

230. During the course of this inquiry, we have also heard some evidence which suggests the scheme should have been devolved. The Report of the Hallett Review states that:

    Opinions vary on whether the administrative scheme should have been devolved to the Northern Ireland Executive in April 2010 as part of the devolution of criminal justice and policing. Anything that is not expressly 'reserved' or 'excepted' is considered to be devolved. Primarily, the argument turns on whether the administrative scheme is part of the 'normal criminal justice process' and therefore devolved, or whether it relates to 'national security' (i.e. terrorism) and is therefore 'excepted'. If 'excepted', only primary legislation in Westminster can transfer it.[151]

231. Time and time again we have been told that the police, the DPP(NI) and the AGO's Office are following the normal criminal justice process in the job they are carrying out, which adds weight to the argument that the operation of the scheme should have been devolved.

232. Another argument that could be made with regard to whether the scheme should have been devolved stems from the fact that Mr Paterson planned to devolve the scheme in 2012. In his evidence, he stated:

    In summer 2012, I did, and I said, "We are getting nowhere with Sinn Féin. You and I agree there cannot be an amnesty. Is there any other way forward?" Having discussed it with him, we both agreed the best solution by then, as devolution of policing and justice had satisfactorily gone through and David Ford's position was well established, was that it was appropriate to go to the local Minister.[152]

233. If something is an excepted matter, then only primary legislation in Westminster can transfer it. It is clear to us that no legislation was planned when Mr Paterson was going to devolve the scheme in 2012—he had already written to Gerry Adams stating that he should bring any further cases to the devolved institutions.

234. Finally, we heard that the final Sinn Féin list was passed to the PSNI the day before the devolution of policing and justice. The then Chief Constable, Matt Baggott, stated:

    At the end of that process, we were asked to review some 38 names. These were names that had been previously submitted and I would probably describe it as a completion of the review process. It was the tail-end; it was a reconciliation. A day before devolution was agreed, I took those names and we put them into a pre-existing review process.[153]

If the NIO thought that the scheme was not going to be devolved, then there would have been no need to pass over the names on that day, as they would have known the scheme would stay within the NIO. The suspicion must be that the NIO believed that the scheme was going to be devolved, resulting in a haste bordering on the cynical.

235. We believe an opportunity was missed in 2010 to inform Northern Ireland parties, other than Sinn Féin, about the scheme, as well as devolve responsibility for it. Had the scheme been devolved earlier, the scheme would have become public knowledge much earlier. Justice Minister David Ford has made it clear that a scheme like this would not have been allowed to continue under his watch. He told the Northern Ireland Assembly Justice Committee on 3 April 2014 that "there will be no such scheme in the devolved sphere while I am Minister of Justice."[154]

236. Devolving the scheme would at the very least have given someone, potentially the Justice Minister himself or one of his senior Officials, the chance to take control of the scheme as a whole, and end it. The peace process in Northern Ireland was not in peril in 2010 and it would not have come tumbling down, if the OTR scheme had ended then.

237. The status of the letters after the devolution of policing and justice should also be called into question. Given confusion and differing opinions on whether the scheme was devolved or not, we question the legitimacy of the NIO for continuing with the scheme after that point.

144   Q1186 Back

145   HC Deb, 25 February 2014, Col 17WS [Commons written ministerial statement] Back

146   "Villiers: Further statement on OTR Scheme", Northern Ireland Office press release, 27 February 2014 Back

147   "Villiers: Further statement on OTR Scheme", Northern Ireland Office press release, 27 February 2014 Back

148   Q1025 Back

149   The Hallett Review, The Report of the Hallett Review, July 2014, para 9.58 Back

150   Q2671 Back

151   The Hallett Review, The Report of the Hallett Review, July 2014, para 2.73 Back

152   Q2791 Back

153   Q678 Back

154   Northern Ireland Assembly, Oral evidence taken before the Committee for Justice, 3 April 2014 Back

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Prepared 24 March 2015