Will the Finucane Public Inquiry lead to “the truth” at last?

Photo courtesy Pacemaker 

Twenty years after it was first recommended, a public inquiry into the  murder of Pat Finucane has been granted at last, as a unique one -off. Hopes  are raised for the exposure of the extent of collusion, “ not just who pulled the trigger but who pulled the strings”  The decision comes at an awkward moment of change in dealing with the past. Labour’s pledge to repeal the Legacy Act is pending. Inquests and civil actions will be restored. But the legacy commission, the awkwardly  named Independent Commission of Information on Information Retrieval and Reconciliation  (ICRIR) will be retained as the investigative body with we’re told, enhanced powers.

Straight away  every part of unionism  raised the cry of two tier  justice. If Finucane merited a public inquiry why not the  Kingmills massacre of 11 Protestant workman  or any of the 1000 odd cases extant against the IRA?   Why are they consigned to the second best of the legacy commission?

 Because  a promise of a PI was  wrongly denied says Hilary Benn, the secretary of state,  granted now in the interest of maintaining public confidence – ( keeping the government’s word) ; and because the  absence of due process  over the years was found to be in breach of a battery of top level court decisions in Belfast, London and Strasbourg, although without specifying what form it might take.  Benn might have added that the inclusion of Finucane in the ICRC ‘s portfolio after it’s  long and tortuous legal history would have massively overshadowed its work.  Even more to the point,  the Finucane family would surely have settled for nothing less.  They  would not have asked the ICRIR to take it on and would have refused to cooperate if the Secretary of State had asked the Commission to do so.   It is therefore absolutely a political decision.

 Why so long a  delay?  What are the hopes for the Finucane Inquiry and can they ever be satisfied?

The trials of UDA agents Barrett, Nelson and Stobie  had to be concluded.

The three Stevens inquiries from the 90s to 2003  uncovered strong material on collusion.

The Cory review of   six cases  in 2004 shocked the NIO by recommending four PIs.  Ironically  they were privately expecting Finucane to be the one dead  cert.

In 2005 the Finucane family turned down the PI offered by secretary of state Peter Hain under the new Inquiries Act  which allowed ministers to limit the cost and duration of inquiries after the five years and £195mn cost of the Saville  Inquiry into Bloody Sunday. In retrospect Hain found their refusal “understandable.”

Why should they trust the British state that had killed Pat?

But the reason for this restriction was to enable the security forces to provide key evidence without compromising sources or methods and therefore their ability to continue confronting terrorism.

In 2011 David Cameron  broke the news of the de Silva review of the case  to Mrs Finucane at a meeting in Downing St. He seemed taken aback when she contemptuously rejected it. The following account by human rights campaigner Jane Winter who was present as told to  Barry MCaffrey, has never been contradicted.

When the family were given the unexpected news that they were being refused a public inquiry, Mr Finucane’s brother Martin asked Mr Cameron: “Is somebody standing in the way? Is it the MoD?”

Recalling the Prime Minister’s response, Ms Winter said: “Cameron went completely off script at that point and he said `look, the last administration couldn’t deliver an inquiry in your husband’s case [he was addressing himself to Geraldine Finucane] and neither can we.

“Because there are people all around this place, [10 Downing Street], who won’t let it happen.”

Ms Winter said that as the Prime Minister made the admission he raised a finger and made a circular motion in the air.

“That’s what he actually said. That’s my clear recollection.”

This morning the Finucane family is back in London – this time to hear the outcome of Mr De Silva’s review of the official government papers into the solicitor’s 1989 murder.

Recalling Cameron’s surefootedness over his public apology for Bloody Sunday  the previous year,  his expectation of  impressing the Finucanes with an implied MI5 veto is staggering.

The crux of the matter – then as now – is government invoking national security –  as a genuine issue or as cover up? And how can national security be invoked when the techniques of informer handling have extensively – and arguably damagingly – been revealed?  In trials, in thematic inquiries like Kenova and in journalism, a great deal  is known about  the web of collaboration between sections of the security forces and loyalist and republican paramilitaries.  It’s almost a commonplace to say that any reading of incident accounts reveals at best a chaotic system developed  ad hoc by different bodies, the RUC Special Branch, army intelligence and MI5  which lacked both legal cover and accountability and was often beset by  bitter rivalry. How else can the firing of the RUC’s record office in Carrickfergus be explained?

The hope of a new generation of inquiry is to join up the dots and achieve accountability up to ministerial  level ; or indeed to expose its absence by default or to achieve deniability. An intriguing question is: did the Finucane family receive new guarantees of disclosure that have persuaded them to agree an inquiry under the same  2005 Act they rejected from Peter Hain nineteen years ago?

The legacy commission (ICRIR) under the former chief justice Declan Morgan is taking great pains to  dispel scepticism about its effectiveness and encourage victims and relatives to take part in its process. Earlier this month  in a new document on its website, it set out its powers of disclosure and recovery.

The Commission will send the specific sensitive information and set out its reasons for wanting to disclose or publish it to the Secretary of State. The Secretary of State then normally has 60 days to respond with a decision. The Secretary of State can only prohibit disclosure if in their view disclosure would prejudice, or would risk prejudicing, the national security interests of the UK. If they decide to prohibit disclosure they must give reasons, unless in doing so that would also risk prejudicing the national security interests of the UK. Such decisions can be challenged on appeal and in the courts.  . Where the decision relates to sensitive information that the Commission had proposed for disclosure so it could be included in a final report of the Commission, the report must include a statement of the decision of the Secretary of State and any reasons. The Commission will also set out its views on the matter.  Decisions can be challenged in the courts..,

In other words “ national security” remains a factor but specific reasons must be given  for invoking it to deny access. The Commission – and presumably others – can challenge them in  the courts..

There is  course a completely different narrative  to the collusion theme. embraced  by unionists  and defenders  of the security forces. Some  of it has been told in court. In Brian Nelson’s trial…

The prosecution alleged that Nelson failed to alert his handlers to all the assassination plans of which he was aware.^[7] Gordon Kerr (“Colonel J”), a senior officer, who was later investigated himself, testified on Nelson’s behalf. Kerr claimed that Nelson had warned the Intelligence Corps of more than 200 murder plots by loyalist death squads, including one which targeted Sinn Féin leader Gerry Adams. Kerr claimed that Nelson’s warnings allowed the British Army to prevent all murders but three.^{n in}

In “Secret Victory : the intelligence war that beat the IRA”     William Matchett a former Special Branch  officer  and now an international security consultant concluded..  

..Special Branch saved in the region of 16,500 lives. Of 58 insurgents killed in 40 separate covert operations between 1974 and 1992, 83% had weapons or explosives and all but one was confirmed as an active member of his terrorist organisation.

During the period when they were accused of operating a shoot-to kill-policy, Special Branch’s covert operations, even when the SAS was involved, had an arrest rate of 96%.

How lives were saved is not always clear. In cases of republican informants, the interim Kenova report on Stakeknife concluded more lives were lost than saved.

How will  victims’ responses be affected by the endemic political controversy at the  heart of the legacy process? Only  through  the ability of the recovery process to persuade or compel perpetrators to come forward.  The amended legacy process will be laid out in the coming months. It can then be put to the test.