THE PAT FINUCANE ARCHIVE

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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 30^th 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 1^st 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 16^th 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 23^rd 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.

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