Bloody Sunday Memorial Lecture
Derry
28th January 2005 --
“Thank you for that very kind
introduction.
Distinguished Guests, Ladies and
Gentlemen, it is a very great honour to be asked to deliver the Bloody Sunday
Memorial Lecture. I know that I follow a line of very distinguished speakers
that have given this lecture in previous years and I consider it a privilege to
be included among them. I think this lecture is particularly special because it
takes place here, in Derry, and is in memory of an event that played a hugely
significant role in shaping the history of Ireland in modern times. On Sunday,
January 30th 1972, as people died on the streets of this city, a
profound change was wrought in all our lives as a conflict was set in motion,
the effects of which are still felt keenly to this day. It was not just that
people lost their lives on the streets of Derry that day; the British State lost
control for all to see and it was because of this that things would never be the
same again. The State was revealed in its true form by the act itself and in the
aftermath, as it tried to cover up the damage through a skewed public inquiry
that was rife with deception and misinformation.
In the programme for this year’s
commemorative events I read the following piece:
“Had
Lord Widgery in 1972 acknowledged the truth of what happened on Bloody Sunday,
it may not of itself have fundamentally changed the nature of the British State
or its role in Ireland. It would however have made it harder for that
state to continue to sell the lie that its army was an impartial ‘peacekeeping’
force. ”
This statement highlights an important
aspect of the British State and the nature of its Government here in Ireland. If
one understands the observation being made in this statement, that
acknowledgment by Widgery of what really happened on Bloody Sunday would have
made it harder for the state to inhabit the role of “impartial ‘peacekeeping’
force”, one comes very close to understanding the nature of the presence of
Britain in Northern Ireland over the last 40-odd years. That presence and the
manner in which it has been maintained and enforced over our lifetimes is almost
a barometer of the quality of British democracy over the last four decades. If
you really want to know how democratic Britain has been since 1968 or so, look
at what they were doing here. We have been their political, legal and
constitutional guinea pigs for as long as many of us can remember and for a lot
longer than that. We have provided them with a yardstick by which to measure how
they would like to govern and be governed. They should be thanking us. Instead
of thanks, however, we got something very different: tighter and tighter forms
of control, in ever more lethal forms. Insofar as British rule in Ireland is
concerned, the barometer does not reflect favourable democratic weather.
I have come to know quite a bit about one
particular form of control over the years, as have all of you here and, sadly,
as have many others that have gone before us. That form of control is the
British policy of collusion with Loyalist paramilitaries, a policy that promoted
and facilitated the infiltration of army personnel into paramilitary
organisations in order to control them, their targeting and killing of citizens.
The policy also promotes and facilitates the gathering of ‘intelligence assets’;
people that are already members of paramilitary organisations who agree to
become informants for the State. These people were centrally involved in
paramilitary activity and often were killers themselves. They were also known to
be such by the State that employed them and were not viewed as much of an asset
unless they were centrally involved. Or, to put it another way, unless they had
been responsible for significant numbers of killings and would continue to be
involved in lots more, thus providing valuable, up-to-date information, a
commodity that was certainly prized as more valuable than human life.
This is a policy that has existed in
Ireland for over 30 years. The emanations of the State that have implemented and
controlled the policy over the years have shifted and changed, as they must in
order to keep the policy hidden. But the policy remains fundamentally the same
and it always produces the same result: those who would oppose the will of the
State are removed, cleanly, efficiently, with minimum repercussions for the
State and a healthy dose of plausible deniability as well. The policy is a
system that is ingenious in its simplicity but its effect prevents any kind of
admiration, because the effect is what we have had to bear for many years: the
murders of our families and our friends. The statement I quoted earlier wondered
aloud about what would have happened if Lord Widgery had acknowledged the truth
about what happened on Bloody Sunday in 1972; what would have been the result, I
wonder, if all the ingenuity that went into building and creating the
infrastructure of collusion had been used to devise a solution to the conflict?
In order for the British State to succeed
in maintaining its policy of collusion for so many years, it is imperative that
it maintains a central fiction at all costs. That fiction is the creation and
maintenance of the illusion of being present in the midst of the conflict but
not actually participating in it or being responsible for it. It is not possible
to overstate the importance of maintaining this fiction to the British
Government. It is the most important task any minister, any official, any
servant of the Crown can have for as long as they do anything associated with
the affairs of Northern Ireland: maintain the fiction; protect the illusion; do
not allow the truth to be exposed. If it is exposed, you see the truth: the
reality that exists behind events like Bloody Sunday, or the murder of my
husband, Pat Finucane.
If what my family and I have been doing
for the last sixteen years achieves nothing else, it must achieve clear
demonstration to every citizen in Ireland, Britain and beyond, that the image
the British Government has tried to maintain about itself in relation to this
country is a sham and a lie. They are just as much to blame for the conflict
that has ravaged our homes; that claimed so many lives; that forced us to live
in fear. They are just as responsible as the others they continually blamed for
the conflict, be they Republican paramilitaries, Loyalist paramilitaries or
whomever. The British Government contributed to and prolonged the conflict for
its own purposes and now that processes of restoration and repair have begun, it
seeks to prolong the illusion just enough to write its own role into history as
the saviour of us all. Indeed, we should be saved from their tender mercies. I
think there is a way to do this. We must counteract their lies with the most
obvious but potent weapon of all: the truth. The truth will be their undoing. I
will not stop until I have succeeded in bringing the truth to light.
It has been a very long fight, both for
my family and the many families I see here that were bereaved on Bloody Sunday.
As they sit here, almost 33 years to the day after the events of Bloody Sunday
itself, I wonder to myself whether I will find myself, one day, in the same
position. I wonder if I will find myself 33 years on from the murder of my
husband, without answers and with the weight of a flawed inquiry bearing down
upon me. I wonder this because of the piece of law that the British Government
is in the process of trying to implement. The Inquiries Bill is being enacted to
provide a framework within which all future inquiries into matters of urgent
public importance will operate. It will repeal the existing Tribunals of Inquiry
(Evidence) Act 1921 and, according to the Government, will
“provide a single, UK-wide framework
that would be suitable for any future statutory inquiry into events (including
alleged events or omissions) that have caused public concern. It draws together
and simplifies the complex collection of legislation on inquiries, and fills
some gaps in areas where no suitable legislation currently exists.”[1]
On one level, this description sounds
reasonable and on that same level, it is broadly accurate. It is, however,
another illusion, as we shall see.
A slightly more detailed analysis of the
inquiries Bill and what it does was recently published by the British
Parliament’s Joint Committee on Human Rights in its fourth report. It summarises
the purpose of the bill in the following way:
“The [Inquiries] Bill establishes a new single statutory framework
for inquiries, replacing disparate provision for inquiries spread over a number
of Acts… It confers a power on Ministers to establish an inquiry, in
response to public concern… It is of particular significance that the Bill
removes the power for Parliament to establish an inquiry under the Tribunals of
Inquiry (Evidence) Act 1921. Under clause 2 of the Bill, an inquiry has no power
to determine civil or criminal liability. It may, however, determine issues of
fact from which liability may be inferred by others.”[2]
In relation to the details of the Bill
and how it will affect the operation of inquiries, the Joint Committee’s
assessment continues as follows:
“The Bill sets out a framework for the appointment of inquiry chairmen and
members, the setting of terms of reference, and the conduct of inquiry
proceedings. It confers powers on the Minister in relation to the conclusion or
suspension of an inquiry, and allows for restrictions on public access to
inquiry proceedings, and on disclosure of evidence to the inquiry. It makes
provision for the publication, and restrictions on the publication, of reports
of inquiries. Particular provision is also made for inquiries within the
responsibilities of the devolved administrations.”[3]
The removal of the power to establish an
inquiry from Parliament, described by the Joint Committee as “of particularly
significance”, represents a fundamental shift away from the democratic framework
that now exists and should be a cause for concern. The reason put forward on
behalf of the Government for this change is that the
“1921 [Tribunals of Inquiry] Act is no
longer the norm for inquiries; most are established by Ministers with no
Parliamentary involvement.”[4]
Although this statement is true, it makes
no reference to the fact that four inquiries have been established in recent
years under the Tribunals of Inquiry Act by way of a Parliamentary resolution:
the Waterhouse Inquiry, the Dunblane Inquiry, the Shipman Inquiry and the Bloody
Sunday Inquiry. This list has an obvious common theme, as all were major events
of urgent public importance that required the utmost in scrutiny and
investigation. The Waterhouse Inquiry concerned allegations of child abuse in
state care in North Wales. The Dunblane Inquiry involved the murder of 16
children and a teacher by a person with a firearm he obtained legally. The
Shipman Inquiry concerned the activities of Dr. Harold Shipman, who is believed
to have murdered as many as 215 of his patients while in practice as a GP. The
Bloody Sunday Inquiry investigated the killing of 14 people and the wounding of
13 others in Derry by the British Army’s Parachute Regiment. All of these
inquiries are self-evidently matters that need to be properly investigated using
a special mechanism because they fall outside the means of investigation
normally employed to address crime or death. Indeed, all of these matters are
required by either Article 2 or 3 of the European Convention on Human Rights to
provide an investigation that meets an appropriate standard and if normal means
are inadequate, a special inquiry may be required.[5]
Immediately after the initial publication
of the Inquiries Bill, the London-based human rights organisation, British Irish
Rights Watch (BIRW), commented as follows:
“If passed, the Bill will make far-reaching changes to public inquiries. Indeed,
it is not an exaggeration to say that it will spell the end of public inquiries
altogether, which is perhaps why the word ‘public’ does not appear in the title
of the Bill.”[6]
BIRW describes the Inquiries Bill as a
fundamental shift in accountability, with an analysis that continues:
“The power to establish inquiries where there is “public concern” will lie with
government Ministers… The Tribunals of Inquiry (Evidence) Act 1921 is to be
repealed… Inquiries into matters of “urgent public importance” will no longer
require a resolution of both Houses of Parliament and Parliament will no longer
have the power to establish a public inquiry.
Reports of inquiries under the new Act will be made to the Minister
rather than Parliament…This means that inquiries into major matters will no
longer be answerable to Parliament, but to the Executive, i.e. the government of
the day. This is a fundamental
constitutional shift which is highly undesirable in a democracy.”[7]
It is difficult to exaggerate the
significance of the shift in the power structure that this Bill would entail.
The most important feature of the 1921 Tribunals of Inquiry Act is that it
represents an independent mechanism of control upon the legislature. If the
Government succeeds in repealing this act and implementing the Inquiries Bill in
its place, then all inquiries in future will be within Government control and
Parliament – the forum for the elected representatives of the people - will be
powerless. This is indeed highly undesirable in a democracy.
The origin of the Inquiries Bill has its
roots in the Weston Park talks that took place in 2001 between the British and
Irish Governments and the various local political parties. The two governments
were unable to agree on a way forward to deal with several contentious cases in
which inquiries had been sought. All of the cases – Pat Finucane, Rosemary
Nelson, Billy Wright and Robert Hamill – had been the subject of vigorous
campaigns by their relatives and had assumed an importance in the context of the
peace process as a whole. The cases
could not be allowed to fester indefinitely since only further damage would have
been caused, so the Governments hit upon a compromise: the appointment of a
judge of international standing that would review all of the evidence and decide
whether the evidence merited a recommendation for a public inquiry.
It is now a well documented matter of
public record that the judge of international standing appointed by the two
Governments was Judge Peter Cory, former Canadian Supreme Court judge.[8] He reviewed all
relevant State documentation about the circumstances surrounding the murder of
my husband. His brief was clear: he was to examine the documentation to see if
there was any evidence that, if proven or accepted by a public tribunal of
inquiry, could constitute evidence of collusion. If he found such material, he
was to recommend a public inquiry to examine the evidence.
When Judge Cory finished his work in
October 2003, he delivered his reports to the British Government for
publication, a commitment that was part of the Weston Park Agreement. They both
agreed that, “[t]he relevant Government will publish
the final reports (but not the documents on which they are based) subject only
to any necessary adjustments to ensure that the privacy and right to life of
individuals is protected…”
The reports presented to the British
Government were not published for six months after they were submitted. In fact,
I ended up having to take the Government to court to try to force them to
publish the report on my husband’s case. In the course of that case, the
Government claimed on affidavit that,
“[t]here are complex legal and human rights considerations that must be resolved
before publication to prevent the risk of a successful challenge that would stop
publication.”[9]
What was actually happening behind the
scenes was an intense process of consultation and discussion about what could be
published and what was to be withheld, ‘in the public interest.’ These
discussions were taking place with, among others, Army Intelligence, MI5, and
the Inquiry team led by the Commissioner of the Metropolitan Police, Sir John
Stevens.
When the reports were eventually
published on 1st April this year, the version of the report by Judge
Cory on my husband’s case was the most heavily censored of all. On that day,
Paul Murphy MP, the Secretary of State for Northern Ireland, made a statement in
the House of Commons to accompany the release of the four reports. He confirmed
that Judge Cory had recommended inquiries in all four cases that he had
investigated in Northern Ireland. He said that the Government proposed to
establish inquiries in three of the cases immediately. In the cases of Robert
Hamill and Rosemary Nelson, these would be established under the Police
(Northern Ireland) Act 1998. In the case of Billy Wright, the inquiry would be
held under the authority of the Prisons (Northern Ireland) Act 1953.
In the case of my husband, the Secretary
of State said:
“In
the Finucane case, an individual is currently being prosecuted for the murder.
The police investigation by Sir John Stevens and his team continues. It is not
possible to say whether further prosecutions may follow. The conclusion of the
criminal justice process in this case is thus some way in the future. For that
reason, we will set out the way ahead at the conclusion of prosecutions.”
The prosecution he spoke of was that of
Ken Barrett, a member of the UDA gang that was responsible for Pat’s murder. His
prosecution concluded on 16th September 2004 when he pleaded guilty
to Pat’s murder. This would appear to have cleared the way for the establishment
of a public inquiry as recommended by Judge Cory in 2003, almost one year
before. However, the Government did not announce an inquiry at that point.
Instead, the following statement was issued on behalf of the Government by the
Secretary of State for Northern Ireland, Paul Murphy MP on 23rd
September 2004:
“[T]he Government has taken into account the exceptional concern about this
case. Against that background, the Government has concluded that steps should
now be taken to enable the establishment of an inquiry into the death of Patrick
Finucane… In order that the inquiry can take place speedily and effectively and
in a way that takes into account the public interest, including the requirements
of national security, it will be necessary to hold the inquiry on the basis of
new legislation which will be introduced shortly.”
The new legislation that the Secretary of
State referred to was, of course, the Inquiries Bill. After the Government’s
statement had been released, the Secretary of State explained that the
legislation was necessary in order to ensure that the inquiry would be able to
get to the truth of what happened. He said:
“Because
…. this stuff is going to be held in private, and dealt with in private, it
means the independent tribunal will be able to get more effectively at that
evidence and the witnesses they will need to call to get precisely at the
truth…”[10]
When the Secretary of State was asked what he meant when he
referred to material that would have to be heard in private, he continued:
“[M]uch of the material that would have to be examined in this inquiry is highly
sensitive to national security issues. For example, many of the operational
techniques that would be discussed in the inquiry would be used currently in the
war against terror, for instance…”[11]
What the
Secretary of State seems to be saying therefore is that the techniques and
practices which were investigated by Judge Cory in his investigation and
previously by Sir John Stevens in his investigation, are still being used today,
in the war against terror. It is an interesting revelation by the Secretary of
State, that he should confirm the Government to still be involved in the kinds
of activity that contributed to the conflict here and bringing it overseas. In
the time that has passed since Paul Murphy made that statement, we have seen
what some members of the British Army have been capable of in the name of the
war against terror. However, the description Sir John Stevens gave of these
kinds of techniques, in summarising the work of his investigation team, says it
best:
“My Enquiries have highlighted collusion, the willful
failure to keep records, the absence of accountability, the withholding of
intelligence and evidence, and the extreme of agents being involved in murder.
These serious acts and omissions have meant that people have been killed or
seriously injured.”[12]
It is not difficult to understand why the Government should wish to keep those
sorts of ‘operational techniques’ to itself! The limited amount of disclosure of
such techniques that have taken place so far in the case of my husband’s murder
and others has not brought praise from the international community. But it is
the repeated assertion of the British Government that the inquiry will be
capable of getting to the truth by using this new legislation that is most
perplexing. It is a position that does not measure up when scrutinized in
detail. The Inquiries Bill grants the power to a Government minister to limit an
inquiry through restrictive terms of reference[13], to curb
investigations by limiting available funding[14], to censor or
withhold the final report of the inquiry[15] and even control and
limit the very evidence the inquiry can consider by
issuing restriction notices,[16] which are of
indefinite duration except in certain cases when they will last for thirty
years.[17]
How could any inquiry be reasonably expected to get to the truth under the
weight of such a law? Everything in this bill seems to be geared toward
limitation and restriction; there is little to suggest that this new form of
inquiry can be anywhere near as effective as a 1921 Act inquiry. It would appear
that, in fact, the last thing Tony Blair wants is a law that makes inquiries
effective, for Pat Finucane’s case or any other.
The reality is that an inquiry becomes
little more than a Government-controlled charade when established under the
authority of this legislation. It is not a public inquiry. It is established by
Government, regulated by Government and controlled by Government throughout. In
the last few days, the Parliamentary Joint Committee on Human Rights considered
these various provisions in light of the legal obligations upon the state and in
particular, the obligations created by Article 2 ECHR. The Joint Committee
stated:
“The right to life under Article 2 ECHR
imposes on the state, both negative obligations not to take life intentionally,
and positive obligations to protect life. The positive duty to protect life
implies a duty to investigate unnatural deaths, including but not confined to
deaths in which state agents may be implicated.”[18]
Much of what the Committee had to say
about the Inquiries Bill was general in nature, but they did consider my
husband’s case, as follows:
“It appears from a recent Government statement that it is the intention that the
Inquiries Bill should provide the framework for at least one inquiry intended to
satisfy the Article 2 duty. The death of Patrick Finucane, a Northern Irish
solicitor murdered in circumstances involving allegations of collusion by
members of the security forces, resulted in a judgment of the European Court of
Human Rights that there had not, so far, been a sufficiently effective and
independent investigation into the circumstances of the death to satisfy Article
2.”[19]
The Committee continued:
“Article 2 requires an investigation that is independent from
those implicated in the events under scrutiny. The investigation must be
independent both institutionally and in practice. Therefore, the institutional
connections of an inquiry panel established under the Bill with the appointing
Minister must be assessed against this standard. The degree to which the Bill
may allow for inquiries which lack independence in practice must also be
considered.”[20]
It is at this point that the Committee
considers the provisions of the Bill that provide Government Ministers with
powers to control the various aspects of inquiries. In relation to the issue of
restriction notices, the Committee stated:
“We are concerned that a wide-ranging
power to issue restriction notices, remaining with the Minister once the inquiry
is in being, may compromise the independence of the inquiry, contrary to Article
2 ECHR. We have written to the Lord Chancellor to seek clarification as to why
it is necessary for the Minister, as well as the Chairman, to retain such
powers, and how they can be justified in light of the need for independence in
inquiries which engage Article 2 ECHR.”[21]
In
relation to the issue of publication of the inquiry’s final report – another
matter where Ministers are granted controlling powers – the Committee stated the
following:
“Under clause 23 of the Bill, it is
the default position that the Minister is responsible for the publication of the
inquiry's report. The Chairman may become responsible for publication by
arrangement with the Minister either before or during the inquiry… Under clause
23(4) the Minister, if he or she retains the duty of publication, may withhold
material from publication, where this is required by law, or where it is
considered to be necessary in the public interest. In determining the public
interest, regard is to be had to the extent to which non-publication would
inhibit the allaying of public concern; confidentiality; and any risk of harm or
damage that could be avoided or reduced by withholding publication… We
are concerned that this degree of ministerial discretion as to publication of
the conclusions of an inquiry puts at risk both the independence and the
appearance of independence of the inquiry, and may fall short of compliance with
Article 2 rights in inquiries where those rights are engaged. We have written to
the Lord Chancellor asking why this degree of discretion is considered to be
compatible with Article 2 ECHR. We have sought reassurances from the Lord
Chancellor that the responsibility for publication would be allocated to the
Chairman at the outset of any inquiry which engaged Article 2, and that
consideration will be given to making provision to this effect on the face of
the Bill.”[22]
(bold emphasis in original text)
In
relation to the issue of withdrawal of funding, both temporary and permanent,
the Committee had this to say:
“Under clause 36, the Minister may
withdraw funding from an inquiry where he or she believes that the inquiry is
operating outside its terms of reference, or is likely to do so. The Minister
must provide a notice to the Chairman of the inquiry, specifying this belief and
the reasons for it. The Explanatory Notes observe that: ‘the withdrawal of
funding may be temporary and the Minister will resume funding if he is satisfied
the inquiry is working back within the terms of reference.’ Whilst the terms of
reference of an independent inquiry may be open to differing interpretations,
their interpretation and application should be a matter for the Chairman of the
inquiry, if independence is to be maintained. We are concerned that this
provision undermines the role of the Chairman of an inquiry in interpreting and
applying his or her terms of reference, and leaves open the possibility of undue
ministerial influence on an inquiry. We have written to the Lord Chancellor
expressing this concern, and asking why clause 36 is considered to be compatible
with Article 2 ECHR.”[23] (bold emphasis in original text)
One
could continue highlighting the many criticisms and concerns the Joint Committee
has with the Bill but I think that the point is clear at this stage. This Bill
is not a blueprint for cogent and effective inquiries that will get to the truth
of matters of urgent public importance. It is nothing more than a charter for
concealment and protection of the State, its mechanisms, its ‘operational
techniques’ and its servants and agents. This does not come as any surprise to
us here in Ireland and certainly not to the people of Derry, but one can only
hope that this Bill will be realised by the people of Britain as a bridge too
far in the pursuit of control by the Blair administration.
In all of this, we are dealing with
British democracy. When he established the Bloody Sunday Inquiry, Tony Blair
made the following statement in the House of Commons:
“Bloody Sunday was
different because, where the States’ own authorities are concerned, we must be
as sure as we can of the truth,
precisely because we pride ourselves on our democracy and respect for the law,
and on the professionalism and dedication of our security forces.”[24]
It is
hard to square this statement with what the Government is now proposing. It is
possible that Mr. Blair has changed his mind. Perhaps he never believed it to
begin with. It is, however, highly likely that, in the case of Pat Finucane, the
British state might not survive a proper public
inquiry because of what they have to hide. In the course of the Bloody Sunday
Inquiry, many organs of the British establishment came to the defence of the
soldiers and the state. Politicians spoke out, newspapers mounted campaigns, the
soldiers themselves even took legal proceedings and all in the name of an
establishment that was 30 years old. The same sort of resistance has been
encountered by the families of those killed in the Dublin & Monaghan Bombings of
1974 and the investigations by former Irish Supreme Court Justice, Henry Barron.
In light of those experiences, the reason for the Inquiries Bill starts to
become very clear. The barometer that we have always provided for British
democracy starts to register a measurement of what the state will do to protect
itself and the measurement is clearly, ‘whatever it takes.’
In October 2004, my family and I
travelled to Downing Street to discuss our case with the British Prime Minister,
Tony Blair. We made it clear to him that the murder of Pat Finucane was a matter
of international interest and that the world would judge Britain harshly if its
response to this case was found wanting.
The assurances offered by Mr. Blair many
times at our meeting did nothing to reassure me or my family. In fact, Mr. Blair
tried to persuade us in the manner least likely to succeed, by assuring us that
we could trust him to do the right thing. Then the Inquiries Bill was published
and with it came the confirmation of what we had feared for some time: that the
Government was not interested in openness and accountability as much as it was
in maintaining control. The truth had to be controlled. The mask could not be
allowed to slip. I didn’t believe Tony Blair in London. I don’t believe him now.
If an inquiry of the sort contemplated in the Inquiries Bill is established to
investigate my husband’s murder, I will not participate.
Instead, I will continue on. My family
will continue on. The families of the victims of Bloody Sunday know all about
this, indeed, all bereaved families that live here have had to carry on in their
own ways. Perhaps the only worthwhile thing British rule did give us was
resolve, and I am resolved to pursue the truth.
It remains to be seen whether Britain, its Government and its Prime
Minister, can say the same.
Thank you very much.”
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