Andrew Johnson

9th January 2006

The row over the Northern Ireland (Offences) Bill, currently making its way through the British parliament, is a striking illumination of the real dynamics of the post-Good Friday process. The bill, emanating from an agreement between the British government and the Provos at the Weston Park talks in 2001, reveals more than the republican leadership might like about the deals they have signed up to and the mess of pottage they have got in return for their surrender.

The bill supposedly regularises the status of On The Runs (OTRs), republicans facing outstanding charges should they return to British jurisdiction. It has been claimed by the Provo leadership that their status forms an anomaly, given that republican prisoners were released years ago. The number of OTRs is disputed, and further complicated by the fact that many of these republicans have been living scattered around the world for decades, have made new lives for themselves and are in no hurry to return to the north. Martin McGuinness stated that he expected dozens rather than hundreds to take advantage of the legislation. Unionists, predictably, have reacted with apoplexy, and unionist organs like the News Letter have run banner headlines about the prospect of hundreds of Provo killers being amnestied.

But to a large extent this is just the unionists being unionists. In point of fact, the OTRs would not be amnestied. While in the Free State Bertie Ahern is putting arrangements in place to grant presidential pardons to republicans who meet the government’s political criteria – in other words, they are fully signed up to the peace process – the British have instituted a different system. First the republicans would have to apply to a special tribunal, consisting of a single retired judge sitting without a jury. If the judge then found them guilty they would be given a criminal record and released on licence under the Good Friday arrangements.

Internment in reverse

The licensing system, decried by unionists as an amnesty, actually operates as a form of reverse internment. Released prisoners can at any time be returned to prison by the Secretary of State, whether or not they have been charged with any offence – the British plenipotentiary can intern them at his pleasure on grounds of “intelligence”. How this works in practice was shown by the case of former IRA bomber Sean Kelly, a hate figure for unionists. Kelly was imprisoned in June last year under murky circumstances – Chief Constable Orde said he was only following orders, proconsul Hain cited “intelligence” and BBCNI’s Brian Rowan, a favoured outlet for deniable police stories, made a vague report about a dossier on Kelly’s activities. In fact it is almost certain that Kelly was imprisoned as a sop to the DUP, who had long been demanding his arrest. Then a month later Hain ordered Kelly’s release, transparently to help Adams in the run-up to the IRA’s disbandment statement. The whole farce did Hain immense damage on both sides.

The political corruption of the licensing system, and criminal justice in general, is even more blatant when we come to the UDA. If your name is Johnny and you make a nuisance of yourself, you will be jailed on a trumped-up charge while your former associates carve up your criminal empire. If your name is Jackie and you are a good boy, your criminality will be unpunished and millions of pounds will be gifted you under the guise of “confidence-building”. If your name is Andre and you find yourself being picked up and then released on a regular basis, it is to be hoped you are smart enough to take the hint.

Sed quis custodiet ipsos custodes?

The big problem for the republican leadership came when the British published the legislation on 9 November. It then turned out that the British had included members of their own forces in the legislation. Peter Hain stated baldly that no member or former member of the RUC or British army should have to spend a day in prison for their actions. Taken together with the Inquiries Act 2005, which enshrines in law the government’s right to refuse to have an inquiry if it is not so minded, this amounts to a real amnesty and paves the way for any number of cover-ups at a time when some of the less salubrious parts of the dirty war having been coming out.

This went down like a lead balloon with groups like Relatives for Justice and the Bloody Sunday families, who form a key part of the traditional republican base. In the meantime, the SDLP, desperate to win back some of the legions of votes it has lost to Sinn Fein, entered the fray with a lot of high-minded and incoherent flummery about everyone having to face the rigours of the law, enforced of course by the Continuity RUC which the SDLP so vehemently supports.

Faced with this pincer movement on both its “old” and “new” wings, the gyrations of Sinn Fein were a marvel to behold. First they claimed the Brits had pulled a fast one, and they had been unaware that state forces would be included in the legislation. This means that either they are lying through their teeth and were aware of the British plans – the most likely scenario – or their negotiators were too naïve to suspect the Brits might do something like this. In any event, they continued to support the bill while grousing about British bad faith. A few days later, aware that this tack wasn’t working, Adams demanded that the bill be rewritten so as to exclude state forces. This didn’t work either, and finally, on 20 November, Sinn Fein announced it was withdrawing support for the legislation. The British government, meanwhile, presses ahead with the bill, hoping no doubt to create facts in the form of republicans applying under the scheme.

What does this tell us? The number of OTRs was small in the first place. It is common knowledge that OTRs, by keeping a sensibly low profile, have been able to return to the north temporarily to visit their families for years now, with the authorities turning a blind eye. The number who want to return permanently to the north must be vanishingly small. But, for the convenience of a handful of their activists, the Provo leadership was willing to hand the British a “get out of jail free” card and deny the demand for justice of a large section of their supporters – although they would still have hypocritically claimed to support the relatives’ campaigns. This whole sorry affair really says it all about the current state of republicanism.