Michael McDowell argued as attorney general in 2000 that the British government could avoid a struggle to pass Westminster legislation to give “on-the-run” IRA members an amnesty.
Instead, Mr McDowell, who is now a member of Seanad Éireann, repeatedly suggested that the British could use a centuries-old law to grant pardons without prosecuting any of them. This seems to have been met with astonishment by British officials.
The difficulties posed by Sinn Féin’s demands for “on-the-run” IRA members – some of whom were sought for offences such as murder – to be given guarantees features in British archive files released on Tuesday.
The treatment of the IRA “on the runs”, better known simply as “OTRs”, became a major controversy in 2014 when it was revealed that nearly 300 IRA members had been given so-called “comfort letters” saying they were not then wanted by British police.
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The issue emerged in February 2014 when John Downey, an alleged IRA member, faced trial in London for the July 1982 Hyde Park bombing, which killed four British soldiers and seven horses.
His Old Bailey trial collapsed when it emerged that he had received his comfort letter in 2007 even though there was an active warrant for his arrest. The trial judge halted the trial after ruling this was an abuse of process.
Under Mr McDowell’s proposal in 2000, which went farther than the comfort letter tactic later used, the British government would have been able, he said, to avoid bringing strongly opposed immunity legislation before Westminster.
The idea “first surfaced” at a meeting between Irish and British officials in Dublin in early November 2000 when the British side was told Mr McDowell believed London could grant “pardons before convictions” to IRA members.
The proposal was outlined in greater depth to the British side in November 2000 at “a hastily arranged” meeting, where Mr McDowell was described in a British note as being “quite a student of the English legal system, and admired its flexibility”.
However, British officials doubted the idea from the off, saying a royal pardon could be used only after sentence, while a free pardon could expunge the effects of a conviction.
Mr McDowell came back to his idea when he was included in the Irish delegation, which included Bertie Ahern, then taoiseach, which travelled from London with British prime minister Tony Blair for an EU meeting in Zagreb, Croatia, shortly afterwards.
Here, Mr McDowell again argued that wanted IRA members could be given “a prosecution amnesty”, citing the decision by the British not to prosecute Soviet spy Anthony Blunt for treachery.
“His basic thesis seemed to be that our legal system was sufficiently flexible to allow immunity to be granted without the need for primary legislation,” the Northern Ireland Office’s political director, Bill Jeffreys, told an official in the British attorney general’s office.
He said he had told Mr McDowell his proposal ran counter to the views of the British attorney general, who was “unwilling” to give immunity to individuals on general public interest grounds.
However, if Mr McDowell was arguing that the Northern Ireland secretary of state could “pre-empt prosecution in a whole class of cases” then that would be “an entirely new departure”.
Widening the grounds for immunity “seemed to me to run entirely against the trend, and would be very difficult to justify in today’s conditions, when we would be expected to seek the necessary powers from parliament”, Mr Jeffreys also said.
Separately, the files also show the efforts Sinn Féin made to ensure leading IRA figures in the United States such as Gabriel Megahey would not be deported. Now, 25 years later, they are now facing fresh expulsion attempts by Donald Trump’s administration.
Bill Clinton, US president at the time, had wanted to “tie off the loose end” created by the six men’s issues before he left office, fearing the incoming George W Bush presidency would be less sympathetic.
In 1997, US secretary of state Madeleine Albright “persuaded the US attorney general to suspend deportation action” against the men on “the foreign policy grounds that it would contribute to the NI political process”.
The importance of the OTR issue to Sinn Féin is evident throughout the files, with the party’s Gerry Kelly “grumbling” to Northern Ireland Office officials “that the lack of movement was causing Sinn Féin great difficulties”.
