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Secrets need not be compromised by more candour

By Liam Clarke

Published 19/11/2015

The inability to agree on the past leaves a big gap in the "fresh start" document that has left victims on all sides feeling gutted.

Under the rejected proposals bereaved families who wanted to could opt into a system whereby they would seek information from perpetrators in return for a legally binding agreement that the details would not be used for prosecution.

That is unlikely to fly. We saw at the Bloody Sunday Inquiry, where there was a broadly similar rule, that many people, including the Deputy First Minister, held back from answering questions for fear of incriminating others or giving information that would allow the police to follow up clues.

Any offender going to a solicitor for advice would be told not to co-operate and to let the solicitor deal with the queries. A rare person might take the risk, but it would be unexpected.

That is not what agreement broke down over, though. The problem was that the British State in the person of Theresa Villiers was able to withhold information on the grounds of national security.

I have been subject to a few actions under the Official Secrets Act myself, and the secrets being preserved about the Troubles are basically sources and methods (largely the identity of agents or placing of bugs) or material that could endanger good relations with a foreign nation. That could happen if the Republic or some other country had helped do something they distanced themselves from.

With most people who died in the Troubles gone 40 years or more, that may not be so much of a problem now. The positions of long dead bugs or the names of long dead agents would not necessarily start civil war at this stage.

We need a review mechanism, and during the talks the Police Ombudsman was put forward as a suitable person to make the call.

According to sources at the talks, Ms Villiers was willing to consult the Ombudsman but insisted on making the final decision herself. Most countries would do this and, at this stage, the Ombudsman does not have the power to insist on information from anyone but the police.

Control of national security, much like command of the Army or the power to declare war, is a UK Government function that will never be devolved. The old Stormont regime tried for control of the Army here. It was not only refused, but dissolved.

It should still be possible to fudge the difference between advice and decisions. There could also be an appeal mechanism where the two disagreed.

Other people could perform this role, for instance former Ombudsman Baroness O'Loan or a Commonwealth figure. Yet Michael Maguire, the Police Ombudsman, is in post, and he commands public confidence.

This is worth exploring a great deal further.

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