Review of ‘on the runs’ will run into the ground

Politicians and commentators in Dublin and London were up in arms last week about the "on the runs" (OTRs) arrangement administered by the Northern Ireland Office (NIO) in association with Sinn Féin. Most seem now to have calmed down. One reason may have to do with realisation that this has not been the first time NIO ministers have treated legal niceties and even the law itself as a nuisance to be ignored and that in previous instances they had happily gone along with this approach.

The OTR arrangement was made in 2006 following Sinn Féin's withdrawal of support for a Westminster Bill that would have given members of the security forces the same immunity from prosecution as was being extended to Republicans. In the same year, Peter Hain, secretary of state at the time the OTR arrangement was put in place, found himself in trouble with the courts over his appointments of RUC widow Bertha McDougall as interim victims' commissioner and of two members of the Portadown Orange Order to the parades commission.

McDougall's appointment was queried by Brenda Downes, whose husband had been killed in 1984 by an RUC plastic bullet. She alleged the appointment had been made not, as the law required, because McDougall had been assessed as the most suitable person for the job but for improper political reasons. Rebuffed by the NIO, Downes sought a judicial review.

In court in November 2006, Hain insisted there had been no improper political involvement and no political group had been consulted. DUP MP Jeffrey Donaldson then told journalists his party had been "fully consulted".

Faced with this, NI civil service head Nigel Hamilton presented the court with an affidavit, which he testified had been seen and approved by Hain, admitting the DUP had “suggested” McDougall in the first place.

Judge Paul Girvan declared the previous explanation "evasive, misleading and in certain respects wrong" and ordered an "immediate and searching inquiry at the highest level". Hain responded that he'd think about it.

The judge retorted: “The papers and manner in which [Hain] met the legal challenge raised serious issues as to whether there was an attempt to allow the court to be misled.” He disabused Hain of the notion that it was for him to decide whether an inquiry should be held.

Earlier that year, the Garvaghy Road Residents’ Coalition had challenged the appointments of Don Mackay and David Burrows to the parades body, suggesting these had been improperly made for political reasons.

Letters inviting applications had been sent to the loyal orders, claimed the Garvaghy residents, but not to any equivalent nationalist group. This time the NIO’s sworn evidence was that Hain had been unaware of the invitations to the orders and that the men’s membership of the Orange Order had played no part in their appointment.

It then emerged that Hain had approved a draft letter to “community leaders” inviting applications, the community leaders being the leaders of the four main parties, the four main churches and the three main loyal orders.

In the High Court, Justice Declan Morgan described the NIO's apparent belief that the appointments were in order as "inexplicable". The case wound its way to the House of Lords, where the Law Lords said "no reasonable person" could accept Hain's and the NIO's version of events.

Judge-led review
Neither matter brought Hain to grief. The McDougall case was disposed of through a "review" that found Hain had acted with good faith. He may well be confident that the "judge-led review" of the OTR scheme will have a similar, positive outcome.

In his 2012 autobiography, Hain’s attitude to the courts’ strictures came through in a description of Judge Girvan as “off his rocker” and a suggestion that his rulings might have been motivated not by considerations of justice and legality but whether “in common with other high earners he had been unhappy about my reforms of the property tax system”.

A threat by Northern Ireland attorney general John Larkin to charge Hain with scandalising the courts attracted a barrage of criticism, some would say abuse, from politicians and journalists across Britain and Ireland and came to nothing.

Hain resigned from the British cabinet in 1998 following claims that he had not fully reported the funding of a bid for the Labour leadership. A parliamentary inquiry ruled his offence had been technical.

A technical breach of parliamentary regulations in Britain and you’re out, at least for a time. But play fast and loose with the law in Northern Ireland for political reasons – no problem.

The promised review of the OTR affair will go nowhere.