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

9  Role in the Peace Process

301. The evidence in the disclosure documents suggests that dealing with the issue of OTRs was certainly an important issue for Sinn Féin in its dealings with the Blair government, and therefore a major bargaining chip for the Government. Sinn Féin raised the issue repeatedly at a high level with the British and the Irish Governments and at bilateral talks such as at Weston Park. As we mentioned earlier, in his written statement for the Downey judgment, Gerry Kelly stated:

    Sinn Féin for whom I speak in this statement emphasises that it is impossible to overstate the importance of the assurances given to the 187 recipients, which included John Downey, being maintained. These were essential in the achievement of the series of agreements and that began with the Good Friday Agreement in 1998, and were consolidated in the St Andrews Agreement in 2007.[195]

302. Nevertheless, during his evidence, Tony Blair told us that Sinn Féin were not, however, getting what they wanted from the scheme:

    The idea from the very beginning was to try to deal with it by way of a comprehensive scheme, so that you would have a proper and full way to deal with all those people—those people who might be wanted for questioning or who might be charged, and also those people in respect of whom the prosecuting authorities might decide that there is insufficient evidence to charge them—that is, anyone who might be roughly within that category of people who could be wanted in respect of terrorist offences but had not been convicted. They were known colloquially as the "on-the-runs".

    Essentially, over the period of time that I was Prime Minister we tried to find a way to deal with it comprehensively, but were unable to do so. What we were able to do was review those cases, or have the prosecuting authorities review the cases of people who might or might not be charged, and then those people whom the prosecuting authorities decided that they did not want to charge would be informed of that decision.[196]

303. We have been told that the scheme was purely administrative and only dealt with matters of fact on any particular day. Consequently, the comfort letters made no material change in the case against individuals. Lord Mandelson described them as "sub-optimal, from Sinn Féin's point of view would be the expression I would use".[197] Sinn Féin themselves have said that the letters were so important, and so critical to the peace process, that it could have collapsed without the letters being issued. These two positions seem irreconcilable; however, Lord Mandelson probably best summed up the situation when he said, "something can be both sub­optimal and necessary to keep in place"[198]

Would Sinn Féin have walked away?

304. The question whether Sinn Féin would have walked away from the peace process, if the OTR scheme and its secret letters from the NIO had not been in existence, has had mixed responses.

305. Early on in this process, 1999-2000 seems the most likely time that one could make this political argument. The political situation at the time was difficult, the Belfast Agreement had only been signed in April 1998, but had not yet been fully implemented. The early release of prisoners had not yet happened, the Northern Ireland Assembly was not fully up and running until December 1999, and the Patten Reforms of the RUC had not yet been implemented.

306. The biggest argument against the scheme being a "deal breaker" is the fact that Rita O'Hare who was, in effect, was the person responsible for the start of the whole process, was neither given a letter nor was able to be processed through the administrative scheme. Despite this, Sinn Féin did not walk away from the peace process.

307. We also asked previous Secretaries of State whether they thought Sinn Féin would have walked away if the OTR scheme had not been in place. Lord Mandelson, Secretary of State from October 1999 until January 2001, told us:

    It is very difficult. You are not conducting a laboratory experiment here. If I had done absolutely nothing, they would have taken it very badly. The pressure on me would have greatly escalated, and it was quite strong as it was. Would they, at the end of the day, have walked away and brought the institutions down? In my judgment, no, even though they felt very strongly about it and they felt it was very important.[199]

308. Peter Hain, Secretary of State between May 2005 and June 2007 told us that "it was essential for Sinn Féin to have that reassurance."[200]

309. Owen Paterson, Secretary of State from May 2010 until September 2012, when asked whether the process was a deal breaker, told us:

    At the time I came along it certainly was not, but I cannot comment on what the preceding Labour Secretary of State was faced with when negotiating. By the time I came in it obviously was not a deal-breaker; it was a constant irritant.[201]

310. Tony Blair, when he gave evidence, was unequivocal about the importance of the letters, stating that the:

    […]issue of on-the-runs was absolutely critical to the peace process and at certain points became fundamental to it. If I had literally been saying, "We're not dealing with this at all, in any way at all," I think—you can never be sure of these things—it is likely that the process would have collapsed.[202]

When then asked whether, without the letters, Sinn Féin would have walked away, his answer was "Correct."[203]

311. He also contradicted Lord Mandelson's conclusions that they would not have walked away, stating that:

    I don't know whether they would have walked away at the time when he was Secretary of State for Northern Ireland. At the beginning of this process, when we were first dealing with this in 1999, it was absolutely crucial. Towards the end, it became absolutely central to getting Sinn Féin on board for policing. It we hadn't got the deal on policing, we could not have set up the institutions as we did finally in May 2007 and we wouldn't be where we are today.[204]

312. Tony Blair also told us that, even though the scheme was not giving Sinn Féin what they wanted, that these letters were important to show that they were doing something to deal with OTRs. He stated:

    at least you were then doing something on this issue when you were not able to do the larger thing that people wanted. In other words, you were keeping the thing moving even though, all the way through, what Sinn Féin was saying was: "This is not good enough. It is not right. You promised, but you have not delivered. What are you doing? You said at Weston Park that you would do it, but you are now not doing it. You are only dealing with these cases in a piecemeal way." At least you were able to say that there was something that was happening. I accept that, as we got to the end of this and it accelerated—particularly when we came to what was, after the Good Friday Agreement, possibly the most difficult negotiation, in late December 2006—it did matter that we said, "Okay, we cannot do anything other than this—what we are doing already—but we'll accelerate it." That, again, was an important part of bringing them on board for this final bit; but these are difficult judgments.[205]

313. We have previously noted that Sinn Féin were not getting what they wanted from the letters, which was, effectively, an amnesty. It has been suggested that the letters were only sent to those people who had the status of "not wanted", but we find it somewhat difficult to follow the logic that Sinn Féin would have been kept on board by the NIO sending letters to not wanted people.

314. Without being able to question Sinn Féin about exactly what assurances they thought they were being given by HM Government through these letters, we are not convinced that the OTR letters were deal breakers. It appears to us that Mr Blair was saying that it was necessary to find a solution to the OTR issue in order to keep Sinn Féin on board, and while it was too difficult to legislate for an amnesty, this scheme served as a substitute, a distraction, which kept Sinn Féin in the peace talks. However, it looks to us that the two processes became blurred.

Damage to the justice system

315. When examining the role this scheme has played in the peace process, it is important to look at the impact of the revelation of the scheme, since the Downey judgment was made public. Arguably it had greatly damaged public trust, especially in light of the secretive way in which the administrative scheme operated.

316. Moreover, witnesses have told us that the emergence of details of the scheme has played a part in damaging public confidence in the justice system. When asked whether he thought the process had genuinely damaged public confidence in the legal process in Northern Ireland, Barra McGrory told us:

    I think that is a statement of fact that I would have to agree with […] As a prosecutor, I simply have to agree that it is not a process that sits well with the prosecutorial function.[206]

317. Sam Pollock, Chief Executive of the Northern Ireland Policing Board stated:

    The issue is around 220 people on the run outside the jurisdiction, in some cases for many, many years. That is what is exceptional, has damaged the public confidence and is causing the concern in this particular case; the openness of it.[207]

Damage to the relationship between the Assembly and the NIO

318. We have also heard concerns expressed that the scheme has damaged relationships between the Northern Ireland Assembly and the NIO. David Ford, the Minister for Justice in Northern Ireland told us:

    I do not believe it has put the devolution and the position of the Minister in serious jeopardy, but it is an issue that shows how much the past is continuing to impact on the work we're doing. There have been a number of statements from Government Ministers which have talked about the responsibility of the devolved authorities. I picked up one particular media interview in the immediate aftermath of the Downey judgment where the Deputy Prime Minister referred to the devolved authorities. Now, it was clear, if you looked at the detail of it, that he meant the police and the PPS, but the problem is that, in this building, when you talk about the devolved authorities, people tend to assume that you mean the Assembly, the Department of Justice or the Justice Committee. That is the challenge.[208]

319. Whilst we consider that damage has undoubtedly been done to public confidence in the criminal justice system, time alone will tell if future openness and honesty will repair that damage. In addition, we expect all future UK Governments of whatever complexion will ensure that such a one-sided and secretive scheme of letters does not happen again.

195   1 Gerry Kelly MLA (OTR0014) Back

196   Q3655 Back

197   Q2983 Back

198   Q2983 Back

199   Q2970 Back

200   Q1757 Back

201   Q2720 Back

202   Q3661 Back

203   Qq3661-2 Back

204   Q3663 Back

205   Q3690 Back

206   Q1336 Back

207   Q1549 Back

208   Q1233 Back

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© Parliamentary copyright 2015
Prepared 24 March 2015