McDowell urged IRA suspects pardon
Published 18/07/2014 | 15:33
Former justice minister Michael McDowell privately appealed for fugitive IRA suspects to be granted royal pardons.
The arch-critic of Sinn Fein and the Provos - who once compared the republican movement to Nazis - was attorney general at the time.
Documents uncovered in the furore over the controversial on-the-runs (OTR) scheme show he told his British counterpart Lord Williams that the UK government should use the contentious measure during a critical stage in the fledgling peace process.
Confirming his approach, Mr McDowell told the Press Association both governments were trying to bring top republicans "in from the cold" at the time.
"Neither the Shinners (Sinn Fein) nor the Brits were very happy with the idea so that was the end of it," he said.
The face-to-face meeting took place in London in November 2000.
Mr McDowell said he suggested the royal pardon be used for a handful of "household names" suspected of IRA activities who were deemed critical to peace efforts, rather than a general scheme.
"They (the British government) said there were difficulties with particular people - and it was only a handful of people they were talking about.
"I said why can't you use the prerogative of mercy, the royal pardon. He (Lord Williams) said there were legal reasons they couldn't and that was the end of that."
Mr McDowell said his knowledge of the law of pardon brought him to the suggestion, as an alternative to legislation which would have run into difficulties.
"There was discussion as to what the consequences would be if there were people who came in from the cold to the political system," he said.
"People who were liable for arrest. That was the issue."
During his time in government, Mr McDowell SC, a former Tanaiste, was regarded as the then coalition's fiercest critic of Sinn Fein and the IRA.
The ex-leader of the now defunct Progressive Democrats compared the republican movement on one occasion to the Nazis.
All three denied the allegations.
In one of his many attacks, Mr McDowell alleged the IRA was involved in criminality at Dublin Port.
The remarks prompted a furious response from Sinn Fein's now Deputy First Minister of Northern Ireland Mr McGuinness, who described Mr McDowell at the time as an "ignorant and irrational man" who had lost sight of the peace process.
Responding to the revelations on the royal pardon suggestion, Mr McDowell said there is an "element of absurdity" to pursuing historic Troubles-related crime including by British forces and the IRA.
"I'm inclined to believe it's better to simply draw a line across the page and say that's over now," he told the Press Association.
Furthermore, he said there was informal agreement among authorities in Dublin at the time that certain figures would not be arrested south of the border.
"Generally speaking there was a consensus in the Republic that the police would no longer be prosecuting historical cases," he said.
In a memo from the Northern Ireland Office (NIO), part of evidence from the collapsed trial of a man accused of the Hyde Park bombing, it was suggested the IRA had been exploiting their leverage during talks with the UK government to secure arms decommissioning.
It added: "On 29 November 2000 the Irish Attorney General... said to Gareth Williams (former British attorney general Baron Williams of Mostyn) that we should revive the use of the royal prerogative to grant pre-conviction pardons.
"This would mean that even where the prosecution felt unable to discontinue proceedings on evidential or public interest grounds, the Secretary of State would be able to enable the individual to return to Northern Ireland. There would be no need for fresh legislation."
British ministers at that time agreed not to pursue the option.
Current Northern Ireland Secretary Theresa Villiers has said the royal prerogative of mercy was used on 16 terrorism-related occasions to shorten sentences, not to cancel offences and not by her government.
Mr McDowell is now working as a barrister.
His suggestion to the UK was revealed in a memo from a senior official in the NIO which has been obtained by a committee of MPs probing the OTRs controversy.
The British document said: "Our attorney subsequently advised that, as a matter of law, the power, though not used since the 19 (sic) Century, probably still existed.
"But he noted that reviving it would be highly contentious and there could be no certainty about what view the courts would take."
On Thursday, the findings of a judge-led review into the OTR scheme described it as lawful and not an amnesty.
This 2002 NIO paper noted that the 1998 Good Friday Agreement which largely ended violence did not include an amnesty from justice.
But it said: "Ever since 1998, the Provisionals have been chiselling away, exploiting their leverage over decommissioning to advance their objectives."
It added that repeated private commitments were eventually turned into public commitments during 2001.
"Ministers are also prepared to revive a use of the perogative dormant since the nineteenth century as part of the overall package."
The Hallett report said the process for dealing with fugitive republicans was not secret but was conducted under the radar.
Sinn Fein submitted the names of candidates to receive a letter of assurance to the government, the police checked if they were wanted and if not they received a standardised letter.
The NIO associate political director who wrote the 2002 memo about the history of the OTR scheme, William Fittall, said: "The grinding and only partially avowed private process of checking Sinn Fein within the present law continues."
His report revealed that a top civil servant carried out "arrests" as part of a secret scheme to allow on-the-run IRA men to come back to Northern Ireland.
Douglas Bain, who was then a senior official in Northern Ireland's Prison Service and is now the Stormont Assembly's commissioner for complaints, took on the powers of a prison officer to formally detain republican fugitives on Christmas Eve in 2000.
The IRA men, who would have been due early release under the Good Friday Agreement, were handed temporary release applications to fill out.
The Sentence Review Commission, which decided if paramilitary prisoners could be freed early, had already indicated that their petitions would be approved if they came back to Northern Ireland.