JM Thorn

14 August 2007

One of the recurring questions raised during the period of the peace process has been how to deal with the legacy of “The Troubles”,  while not destabilising the present political settlement.  Defined as “dealing with the past” this centres on issues such as recognition and support for the victims of violence, and the uncovering of the truth behind particular controversial events. 

Over the past ten years various devices have been employed to resolve this.  The most common of these is the enquiry.  The British Government has established a number of enquiries to investigate matters such as Bloody Sunday and state collusion in murder.    On a more ad hoc basis, the office of the Police Ombudsman has investigated and published reports on the RUC/PSNI investigation of the Omagh bombing and the UVF murder of Raymond McCord Jnr.  Both these reports were damning of the state security forces, exposing negligence, cover-up and conspiracy. The McCord report revealed that the police protected an agent within the UVF even though he was involved in at least ten murders.  Despite their findings, nothing has followed from the publication of the Police Ombudsman’s reports.  After the ritual hand wringing from Sinn Fein and the SDLP, and the ritual denunciations from the Police Federation and the unionist parties, the reports are left to gather dust.  Moreover, the British government explicitly absolves those state personal involved.  The former RUC/PSNI chief constable Ronnie Flanagan, who presided over the non-investigation into the Omagh bomb, was promoted to the Inspectorate of Constabulary.  The former heads of the RUC Special Branch, who handled the agent with the north Belfast UVF and who refused to co-operate with the Ombudsman’s investigation, were commended by the NIO security minister for serving with “distinction”.

The reaction of the British Government reveals that it has no intention of making any state security personnel responsible for the crimes they committed.  The enquiries it has announced are just a cosmetic exercise to give the impression that it is addressing the demands of nationalists and human rights organisations.  In addition, these enquiries are deliberately constructed in such a way as to prevent the truth coming out – their task is the very opposite of the one they are purporting to perform!  The response of the British Government to a recommendation from Judge Corey that enquires be established into the murders of Pat Finucane, Rosemary Nelson and Billy Wright, was to introduce legislation that ruled out the submission of any evidence to these enquires that  would jeopardise “national security”.  Any enquiries conducted under the terms of this legalisation will be completely toothless.  Only one of these enquiries (the one into the murder of Billy Wright) is under way, but already it has been informed that police documents relating to the case have been lost.

The excuse given for delaying an enquiry into the murder of Pat Finucane was that there was an ongoing investigation and the possibility of court proceedings.  However, this possibility was extinguished with the recent announcement from the Public Prosecution Service (PPS) that no state security personnel would face prosecution for this murder and a number of related murders, including the Sean Graham bookmaker’s massacre on the Ormeau Rd in 1992.  Relatives of the victims were awoken in the early morning by police officers who called at their homes to deliver a letter from the PPS.  The letter bluntly informed them that there would be no prosecutions of police who supplied the weapons involved in the massacre. 

The possibility of charges against police and army personal arose from a series of investigations by the former head of the Metropolitan Police John Stevens into claims of collusion.  An edited version of his report on the third and final investigation published in 2003 stated that elements within the RUC and the British Army had aided Loyalists in the murder of Catholics in the late 1980’s.  The focus of this inquiry was the role of the British Army's surveillance operations at that time, especially the Force Research Unit (FRU).   Nine former members of the covert agency, including its ex-chief Gordon Kerr, were questioned, as well as seven police officers and one civilian.  Also under investigation were three top UDA men who worked for the intelligence services - Brian Nelson, who supplied information to the FRU, Ken Barrett, who later admitted shooting Pat Finucane, and William Stobie, loyalist quartermaster and RUC informer who was shot dead by loyalists when they feared he was about to testify against them.  Stevens said the Finucane killing could have been prevented, and claimed his investigations were wilfully obstructed and misled.  During one of the investigations his offices, in the centre of RUC headquarters, were burnt down.  The DUP said his work was a "waste of taxpayers’ money". 

At the conclusion of his inquiry, Stevens forwarded twenty-five files to the PPS; lawyers advised him that they contained sufficient evidence for prosecutions.  These files included ones relating to the murders of solicitor Pat Finucane by a loyalist gang, most of whom were security force agents of one kind or another, and of Gerard Slane and other nationalist victims of the UDA.  The PPS rejected all these, claiming that there was no basis for the prosecution of police and army personnel.  Its statement arrogantly pointed out that there was “no offence of collusion" and that there was insufficient evidence of "manslaughter by gross negligence".  There is an offence of conspiracy to murder, but the PPS statement made clear that this hadn’t even been considered. 

This whitewash was compounded by the details included in the statement about the circumstances surrounding a number of loyalist murders.   The PPS revealed that weapons deactivated after Stobie, a former UDA quartermaster, gave them to his police handlers in 1989 were later used in loyalist killings. The Stevens team uncovered evidence that two of the batch were either partially or fully deactivated before being handed back to Stobie.  One of the guns, a Browning pistol, was later reactivated and used to kill Catholic man Aidan Wallace in west Belfast in 1991.  Less than three months later, the same weapon was used in the Sean Graham's bookmaker’s massacre, when UDA gunmen shot dead five people.  Despite being able to track the movement of these weapons the PPS claimed there was no evidence Stobie was supervised in relation to the guns, and no means of identifying the senior officers who gave orders in relation to them. 

The decision of the PPS not to bring charges stretches incredulity to breaking point, but is certainly not unprecedented.  It is the latest in a long line of overtly political decisions by state prosecutors in the North.  On numerous occasions, charges were dropped and trials abruptly halted when there was the possibility that information embarrassing to the Government would be revealed in court.  The notable thing about this case is that it has taken place after the supposed reform of the north’s judicial system, a provision within the Good Friday Agreement that was trumpeted by nationalists as a massive gain.  The decision of the PPS not to prosecute demonstrates that this reform has been largely cosmetic, and that the judicial system is still under the political direction of the British Government.  This explains why the reaction of the SDLP and Sinn Fein was relatively muted.  To make an issue of it would only have highlighted their own failures.  After ritual hand wringing the matter was quickly dropped.  Indeed, a few days after the PPS statement Sinn Fein was holding a joint meeting was the PSNI chief constable in west Belfast.  Clearly, nothing is going to deflect them from integrating themselves into the structures of the northern state. 

However, the ongoing revelations about state complicity in murder do have the potential to destabilise the current political settlement.  This is because they are not just about the past, but also the present.  All the institutions and many of the personnel that have been implicated are part of the peace process.  Anything that discredits them also erodes confidence in the process. This is particularly true of the British Government, which is its ultimate guarantor.  It is a concern that is motivating the call for enquires into the past to be brought to a halt. This has reached a crescendo in recent months. 

In a lecture to the University of Ulster, the former most senior Catholic civil servant in the North, Maurice Hayes, called for a halt to inquiries.  He justified this on the basis that they risked destabilising the newly formed power-sharing executive. When pressed on the issue his argument was reduced to just two words – “stop poking”.  Al Hutchison, the Police Oversight Commissioner, reiterated this essential message.  His role is to assess the degree to which the PSNI has achieved the targets set out in the Patton proposals for police reform.  However, he departed significantly from this remit in his final report by warning that policing reforms could be damaged by continual investigations of events in the past.  A few weeks after this report he was appointed the new Police Ombudsman.  His appointment was welcomed by unionists.  The DUP’s Ian Paisley Jnr said Hutchinson would represent “a non controversial start”.  In the context of policing, non-controversy can only mean not probing claims of state collusion. 

Even if Al Hutchinson does defy these expectations his capacity to probe will be severely limited. The outgoing Ombudsman, Nuala O'Loan, has warned that unless the office is resourced properly, there would be no investigation of alleged police involvement in murders.   She has also expressed "grave concerns" about the transfer in October of primacy in national security matters from the PSNI to MI5.  While the Ombudsman has a legal right of access to all material held within PSNI, it will not have such a right when MI5 take charge.  Therefore, in terms of resource and remit, the Police Ombudsman is being significantly diminished.  Again, the British Government is responsible for this.  PSNI chief constable Hugh Orde has also added his voice to the attack on enquiries.  He told the Policing Board that meeting the demands of fresh probes into controversial murders and unsolved killings were drawing away resources from day to day operations. 

All of this adds up to a concerted attempt to stop even the relatively limited scrutiny that has been placed upon the state.  As political cover for the ending of enquires the British Government has offered a number of alternative devices for “dealing with the past”.  The first of these has been the creation of the post of Victims Commissioner.  This task of this office holder is to ensure that victims of “the Troubles” are being properly treated by the institutions, such as the health service and compensation agencies, they have dealings with. It is essentially a welfare role.  However, was corrupted right from the start by the British Government.  The appointment of the first Victims Commissioner, Bertha McDougall, was seen as a blatant political sop to the DUP.  It was later revealed that the then Secretary of State Peter Hain personally accepted her CV from Ian Paisley.  The case shows how far the British would go to accommodate the DUP and its view of what constitutes a victim.  For the DUP there is a hierarchy of victims that has police and army victims of Republicans at the top and Catholic victims of loyalists at the bottom.  Victims of state violence don’t get any recognition.  This thinking underpinned the report published by Bertha McDougall during her brief tenure as Victims Commissioner. 

Raymond McCord applied for the post when it was re-advertised.  Despite having campaigned tirelessly over many years to uncover the truth behind the murder of his son, he didn’t even get to the interview stage.  The official reason for his rejection was that he wasn’t considered to have a sufficient understanding of the Troubles.  It is reported that an American academic and former local TV presenter are front-runners for the post!  As in the appointment of the new Police Ombudsman, the Government is looking for someone who won’t rock the boat. 

In one of his last acts as Secretary of State Peter Hain established a consultative group whose task is to find the best way to deal with the legacy of the Troubles.  This group is chaired is co-chaired by seasoned political fixers Denis Bradley and Lord Eames, and made up of Catholic and Protestant worthies from the fields of sport, charity and academia.  It contains no victims or victims’ representatives.  An indication of the thinking behind this group was given by Eames when he stated that its objective was to put the “collective memory” of the past into “its proper prospective."

The most coherent response of Sinn Fein to this issue has been to call for a truth commission.  This suggestion was put forward by Gerry Adams at a recent rally in Belfast.  Addressing the two thousand people who had taken part in a “March for Truth” to City Hall, he called for the establishment on an international panel to examine the events of the past. All this was rather vague and lacked conviction.  Obviously, Adams was trying to make an association with the Truth and Reconciliation Commission (TRC) in South Africa.  However, it must be remembered that the experience of the TRC for victims of apartheid was disappointing.  Only a partial account of events was uncovered, while those that bore most responsibility for the crimes of the state went unpunished.  All the politicians, police and army chiefs had to do to walk away with an amnesty was to mutter a few platitudes.   Yet, there is no prospect of people in Ireland witnessing even this ritual.  The TRC in South Africa was a product of the achievement of basic democratic rights and the demise of the old regime.   In Ireland, the struggle for national liberation has been totally defeated; there is no pressure on the British to concede anything.  This is why they can resist calls for the actions of the state to be investigated.  Also, given their overriding imperative to keep the political settlement intact and accommodate the DUP, Sinn Fein are not going to press for anything that could be destabilising.  The fact that they actively supported the police in meetings around the North immediately after the announcements about the Finucaine and Ormeau cases means that they have privately accepted the need to bury the past and are trying to disguise this reality from their supporters. The party of government holds a rally and its main suggestion is that its supporters wear a black ribbon!  Gerry Adams vows to reach the truth but adds that it could take a long time. Don’t hold your breath!