Rights NI is delighted to welcome this guest post from Brian Gormally, director of CAJ.
“There is a relentless campaign, led by the UK Government and supported by some elements in Northern Ireland, to suppress the truth about the activities of state agents during the conflict. The aim is to ensure impunity for any crimes and human rights violations committed by servants of the state, whether policemen, soldiers or secret agents. This is the latest stage in this epic cover-up, using the deliberately undefined concept of ‘national security’ to stifle a proper investigation.”
The above is how CAJ reacted to the news that Secretary of State Theresa Villiers had issued a certificate claiming there were national security issues involved in considering whether there should be a fresh inquest into the Loughgall killings in May 1987. The effect of this was to remove the decision about whether there should be a fresh Inquest from the hands of the local Attorney General and give it to the “Advocate General for Northern Ireland” who is actually the UK Attorney General, newly appointed Jeremy Wright.
It is a big claim that the UK Government is leading a campaign to cover up the past crimes of its agents. However, CAJ is a cautious organisation, not given to conspiracy theories, and we have been researching this area for years. Later in the year we will be publishing a detailed commentary on the various mechanisms that are supposed to be dealing with the past. Our conclusion is that a fair-minded assessment of this evidence cannot support a conclusion that a “package of measures” is being deployed in good faith by the UK government and is only held back by the complexity of the issues, cost and lack of consensus among Northern Ireland politicians. Rather, we think that the evidence points to a common purpose between the UK government, the security establishment and elements within the PSNI to prevent access to the truth and maintain a cover of impunity for state agents. Here we give a brief synopsis of the evidence for this “relentless campaign” of cover-up.
The UK Government
At the top of the list is the UK Government, understood as an enduring institution, no matter which party or coalition is in power. Perhaps the most powerful and all-pervading element of the apparatus of impunity is the “national security” doctrine. Humpty Dumpty said: “When I use a word it means just what I want it to mean, neither more nor less.” The UK Government has adopted this Through the Looking Glass philosophy when it comes to national security since there is no definition and the term is deliberately kept flexible. Yet any matter which touches upon this concept is reserved to central government and in its name it can deploy huge powers of direction and concealment.
In its name the Secretary of State can direct or veto any action by devolved Ministers and departments, and can direct or curtail investigations by the Human Rights Commission and the Police Ombudsman. The secret Security Service (MI5) has already been given strategic control of “national security” policing. Furthermore, a wide range of agencies, including the police and prison service, must act as “officers of the Secretary of State” when carrying out tasks which impinge upon national security and report to him or her rather than to the local accountability mechanisms.
Secret courts are now available in civil proceedings and are beginning to be used in hearings relating to state conduct during the conflict. The power of Public Inquiries to expose state wrongdoing has been massively curtailed by the 2005 Inquiries Act which gives the Government the power to interfere with and direct Inquiries at every stage. Even with that, the current Government has flatly refused to allow an Inquiry into the death of Patrick Finucane and cited cost in turning down many other requests for Inquiries. A squeeze on resources is also used to cripple the effectiveness of some investigatory mechanisms such as the Police Ombudsman and inquests.
In general, the deliberate delays in the 13 years since the European Court of Human Rights demanded proper investigations in a string of “legacy” cases, constitute a major element of the cover-up.
The Security Establishment
This is an inexact term for an amorphous and shadowy series of structures and networks. We do, however, see actions which may or may not be the result of political direction but which are implemented at official level. Take, for example, the various memoranda produced by the Northern Ireland Office designed to restrict access to and reporting on “national security” matters. Without any statutory basis, these assertions of control are typical products of a bureaucracy devoted to secrecy and exclusivity.
The “lowering of independence” of the Police Ombudsman, well detailed by CAJ and others at the time, was clearly the result of the actions of a web of influence that included Northern Ireland Office officials, ex-Special Branch officers, serving policemen and the then postholder himself. This cosy working relationship was directed to restricting the scope of investigations and minimising criticism of the RUC.
Another example was the failed attempt last year to prevent families and their lawyers accessing court and inquest papers held in the Public Records Office. At another level entirely, in 2013 it was revealed that the Ministry of Defence was illegally holding a huge secret archive of material which should have been passed to the Public Records Office, including a mass of material transferred there when the Army headquarters in Northern Ireland had closed down four years before. That came on the back of the 2011 disclosure that the Foreign Office had deliberately concealed a mass of archives on colonial operations. These actions of concealment demonstrate that the culture of cover up extends beyond Northern Ireland affairs but it provides a natural home and welcoming context for the local efforts to conceal records in order to subvert the proper investigation of past crimes here.
The whole of the PSNI is not inimical to the proper investigation of past crimes. There are, however, groupings of officers who are responsible for the series of bad decisions and negative actions which have damaged efforts to investigate the past. It is now beyond doubt that the Historical Enquiry Team (HET) has become an obstacle in the way of the search for truth. Accepting that some families have been satisfied with the information they have received, the HMIC Report demonstrated bias in state involvement cases and a range of other failings leading to a suspension of much of its work. The PSNI must take responsibility for managing a deeply flawed process for over a decade.
All PSNI intelligence material is under control of C3 branch of the PSNI. The staffing of this unit by ex-RUC Special Branch officers, many of them “re-hired” and hence civilians not subject to the Police Ombudsman, has been documented by the HMIC Report and the Chief Coroner, amongst others. The delays, over-classification and major redactions which are the result, affect all forms of investigation, present and future. Every day that the PSNI fails to bring in some independent oversight over the intelligence archives weakens the perception of its commitment to impartial and effective policing.
This is a brief overview of what we are coming to call the “apparatus of impunity.” It is our experience, backed up by that of other NGOs, lawyers and most importantly victim families, that every piece of information about past misconduct by state agents has to be fought for. There is a constant battle going on, in the courts, the media and the legislatures, between those who want justice and those who want impunity. This is not a battle over different versions of history, nor is it the result of a witch hunt against past state agents; it is a central question of human rights.