Oral evidence: Administrative scheme for ‘on-the-runs’, HC 177Wednesday 19 November 2014
Oral evidence, 19 November 2014.
Witness
Sir Jonathan Phillips KCB, former Permanent Secretary, Northern Ireland Office, gave evidence.
Chair
If we could get straight on, sorry for the delay, Sir Jonathan, but thank you very much for joining us. Again, can I offer you the opportunity to make a very brief opening statement?
Sir Jonathan Phillips
Thank you very much, Chairman. I was Political Director at the NIO from early September 2002, taking over from Bill Jeffrey in that role. I became Permanent Secretary in December 2005, and departed from that position on 6 May 2010. I am very grateful to the Committee for seeing me after publication of the Hallett report[20], because that does enable me to say that, with very few caveats, I think that her report is a good account of what happened in the particular case of John Downey and, with the benefit of hindsight, what might have been done better in terms of an end-to-end process for administering the OTR scheme, as it has come to be described. Before I get into a little bit of the detail, if I may, I want to begin by very strongly agreeing with the comment made by Lady Justice Hallett in paragraphs 10.71 and 10.72 of her report, to the effect that this, along with many other issues with which a number of members of the Committee will be familiar, was part of a peace process that involved many messy compromises and ambiguities. From my perspective, the most important end product of that process was the preservation of lives that would otherwise have been at risk, and for that reason I am pleased to have played a small part in it. I have followed a number of the Committee’s evidence sessions, though not all of them, and, since the handling of the Downey case in relation to the OTR scheme occurred during my tenure as Permanent Secretary, I would like to put on record for the Committee, and for the avoidance of any doubt, and particularly in the light of some comments made in the earlier session today, some of the key comments, facts and conclusions from Lady Justice Hallett’s thorough and authoritative account as they relate to the role of NIO officials. First, it has been suggested that the NIO ignored or did not properly respond to a letter from the Attorney General to Peter Hain in February 2006[21], which said that Downey and a number of others remained wanted at that point. This is wrong. As the Hallett report sets out, the Attorney General or his officials would write to the NIO listing people as wanted or not wanted, once the police and the DPP had done their checks. The Attorney’s letter to Peter Hain of February 2006 was simply reporting the status of individuals to the NIO, so that they could be told they were wanted or not. So that letter did not require a reply and, in line with it, Sinn Féin were told, in March 2006, that, along with two other individuals, Downey remained wanted. Secondly, it has been suggested that an NIO official, Mark Sweeney, whose name has been mentioned a great deal, altered a letter provided by the PSNI to the DPP in respect of Downey[22]. That suggestion is also and entirely wrong. The Hallett report sets out very clearly what happened. How the scheme worked was that the NIO were only sent letters from the Attorney’s office listing people as wanted or not wanted once the PSNI and DPP had completed their checks. The NIO then sent those people classed as not wanted standard letters, which said, among other things, that the PSNI were not aware of interest in them from another UK police force. The wording of those standard letters was basically settled in 2001, though it was revised on occasions later, and a selection of those letters are, of course, included in the Hallett report, including the one sent to Downey. On 7 June 2007, the Attorney’s office sent the NIO a long list of names that they had been told by the PSNI and DPP were no longer wanted, but they asked the NIO to check with the PSNI that they had definitely done checks with other UK forces about those people. The NIO sought that assurance from the PSNI, and Peter Sheridan wrote to Hilary Jackson, a senior official at the NIO, on 27 June[23], stating explicitly that checks with other UK forces had been done for all individuals that the PSNI had reported to the DPP as not wanted. That letter is reproduced at paragraph 6.55 of the Hallett report. Lady Justice Hallett says, “Anyone at the NIO reading that letter … would have been assured that checks in relation to external police forces within the UK had been made and that the PSNI regarded such checks as being their responsibility”. After that, on 11 June, the Attorney’s office sent a further letter to the NIO, which, for the first time, included Downey in a list of 10 individuals described as no longer wanted. The NIO checked again with the PSNI about that further list of names, and were assured again, in an email exchange[24], that checks had taken place with other UK forces. Standard letters were then issued by the NIO to Sinn Féin for Downey and several other individuals, stating that the PSNI were not aware of interest in them from other UK police forces. So, to be clear, no one in the NIO altered any letter from the PSNI. Officials in the NIO, acting on a suggestion from the Attorney’s office, asked the PSNI to confirm that they had checked the status of two long lists—the second list of individuals, which included Downey—before issuing standard letters. The PSNI confirmed for both lists that they had, and that is set out at length in chapter 6 of Hallett. Thirdly, it has been suggested in some questioning in Committee that Mark Sweeney or the NIO knew that John Downey was wanted at the point that the letter was sent to him in July 2007, and I have to say that that is not the case. Downey received a letter because he was on a list of people confirmed by the PSNI as not wanted, and Hallett says explicitly that the suggestion that the NIO were querying the PSNI’s checking because they had a particular suspicion about Downey’s status is, in her words, “not credible”. Indeed the chronology is clear that officials started to query the PSNI’s checks before they received the list of names that included Downey in July. Finally, it has been suggested that it was somehow improper or unlawful for officials to ask whether the PSNI had carried out those checks with other police forces, and Lady Justice Hallett is quite clear that she does not regard the conduct of NIO officials—or, indeed, of the PSNI or the DPP’s officials, or the Attorney General’s officials—as unlawful. She describes the queries from the NIO to the PSNI team about external checks as “an attempt by the NIO to ensure that they could be confident about the accuracy of the information provided to them”. Lady Justice Hallett makes no criticism either of Mark Sweeney or any other NIO officials over the issue of a letter to Downey; in fact, she notes a number of attempts to establish that checks that were supposed to have been carried out by the PSNI had definitely been done, and I hope that the Committee will pay very careful attention to Lady Justice Hallett’s clear elaboration of those facts. I want to go on to make one very brief final and important point.
Chair
If you could be very brief, please, because we are very short of time.
Sir Jonathan Phillips
It will be brief. So far as the officials involved in the Downey case are concerned, it is important to note that they were acting within the framework of the scheme as it had evolved since 2001, and that is using the language that Lady Justice Hallett herself uses. As I hope I made clear at the beginning of these remarks, I agree with her conclusions about where the errors were made in relation to the Downey case. As I also said at the beginning of that statement, I also, for one, acknowledge that the risks attaching to the operation of the scheme generally could have been mitigated more effectively with a better end-to-end process and, with that in mind, I do regret that the operation of the scheme could have led to the outcome that has caused such further pain to the victims of the appalling crimes with which John Downey was charged. Thank you very much. Could I just add one detail? I did receive a copy of the bundle from the NIO.
Chair
Thank you for that. Can we come to the letter that was sent by Lord Goldsmith to Peter Hain? First, it is written—and it is not clear who wrote on it—“for advice and draft reply, for Secretary of State’s signature”, so there was some intention within NIO to reply to it. I do not think whether there should have been a reply or not is quite the important point; I think the important point is that I think you said that the NIO were not aware of Mr Downey being wanted. I think you said that, but this letter on 28 February 2006 says very clearly, “Downey is wanted for arrest and questioning in respect of serious terrorist offences”. Does that contradict what I thought you said?
Sir Jonathan Phillips
No, you are not contradicting what I said. I said precisely that: that the 2006 letter from the Attorney was handled entirely properly.
Chair
No, about the NIO not knowing that he was wanted. It says that it informed the NIO that he was wanted.
Sir Jonathan Phillips
The 2006 letter did say, yes, and, in accordance with that, as I said in my statement, the NIO told Sinn Féin that he was not free to return.
Chair
How did it move to the point where he was free to return, then?
Sir Jonathan Phillips
That is the whole chronology, which I have outlined and which Lady Justice Hallett sets out in great detail, in 2007.
Chair
We have not heard the evidence given to Lady Justice Hallett, and we are not looking into Lady Justice Hallett’s report; we are looking into what happened. The fact that that was held in secret really compounds the whole misery connected to this scheme. I am trying to ascertain here whether it is the NIO’s responsibility, because they sent the letter to Mr Downey and they were told that he was wanted for terrorist offences. They may have gone back to the police, or they may not have gone back to the police, in between the two letters, but they did know he was wanted for serious terrorist offences.
Sir Jonathan Phillips
In 2006, that was the position.
Chair
The letter went out in 2007.
Sir Jonathan Phillips
The position of a number of individuals during the whole history of the scheme, as we know from the Hallett report, changed over time. When the process in relation to John Downey was picked up in 2007, the sequence is very clearly set out in chapter 6 of the Hallett report. The NIO, as she concludes from her evidence-taking, was not drawing on the letter from the Attorney at the beginning of 2006, when it sought to check with the PSNI that they had checked with other UK forces. They were acting on a prompt from the Attorney’s office, which may well have been because the letter from the PSNI to the Attorney’s office, to which she makes reference, did not make explicit reference to other UK forces. The NIO, then, was prompted by the Attorney, which I think is the explanation for their action in 2007 in checking what the status of John Downey was at that time. If I can just go back to the point you made about the letter from the Attorney having written on it “advice”—I have forgotten the precise words but I think you said “advice”.
Chair
“For advice and draft reply, for the Secretary of State’s signature.”
Sir Jonathan Phillips
That is a pretty standard formula that a private office might use, not itself having the expertise in the particular area of the office’s work, and it would be for officials to judge whether the letter required advice or draft reply. Indeed, letters came in from the Attorney’s office during the whole operation of the scheme, variously from the Attorney of the time or from officials.
Chair
He wrote to the Secretary of State regularly.
Sir Jonathan Phillips
Sometimes letters came from the Attorney to the Secretary of State, and sometimes from an official in the Attorney’s office. I think, as Lord Goldsmith, who was the Attorney involved at the beginning of 2006, said to the Committee, he would not himself have expected a response to that letter. It was not sent to instigate a dialogue; it was part of an ongoing process in which—
Chair
That is a point but I do not think it is the main point. I think the main point is how we go from Downey being wanted in respect of serious terrorist offences to not being wanted. It is a huge leap, and I am struggling to bridge that gap. I do not know whether other members of the Committee are, but we will open it up to further questions.
Kate Hoey
I will go first because I know my colleague has a lot of very detailed questions, which I completely concur with. Can I just very quickly, first: have you shared your statement that you have read out so eloquently to us with anyone else?
Sir Jonathan Phillips
I have shown that statement to Mark Sweeney, yes, of course, since I have been so concerned about the way in which—
Kate Hoey
It does seem like you are here to defend Mark Sweeney. We would love to have Mark Sweeney in front of us, and then we could listen to him and, presumably, take his evidence and be confident. The more people like you, with the greatest respect, Sir Jonathan, are trying to seemingly keep Mark Sweeney from us makes us feel there is something to hide. The fact that you have admitted that you have shared that with him is incredibly helpful. Thank you very much indeed.
Sir Jonathan Phillips
Let me just add, though, that I am not seeking to keep anybody from you. I am well aware that there is correspondence between the Committee and the Secretary of State.
Kate Hoey
How are you aware of that?
Sir Jonathan Phillips
Because you mentioned it in your letter.
Kate Hoey
Yes, but you have not seen it.
Sir Jonathan Phillips
I have not seen it.
Lady Hermon
Sir Jonathan, could you just confirm whether, in fact, Mark Sweeney approached you and asked to see your statement, or have you been in conversation? You have obviously been in conversation with Mark Sweeney to take his view and then communicate it to us in a very, very lengthy statement.
Sir Jonathan Phillips
Yes.
Kate Hoey
How long and how recently have you had this chat with Mark Sweeney?
Sir Jonathan Phillips
I would need to check my diary but I think I had a first conversation with him about a fortnight ago, and then, more recently, in the course of last week.
Lady Hermon
Did he offer amendments to your statement when you sent him through a draft, or was it sent through as a draft and he then was free to amend it?
Sir Jonathan Phillips
He has offered me points to be included in this.
Lady Hermon
That is absolutely outrageous, Sir Jonathan, I have to say. I am deeply annoyed by that. I have been extremely critical in Committee of what Mark Sweeney did. He is entitled to a right of reply. I am very keen that he comes and he gives evidence publicly, and replies to all of my criticisms, because I think that is the proper course of action.
Kate Hoey
Can I just ask: what is your relationship with Mark Sweeney?
Chair
Sorry.
Kate Hoey
Sylvia does not mind me asking.
Lady Hermon
No, I do not.
Chair
If I could just chair the meeting, because we have very little time.
Kate Hoey
Sorry, Chair.
Chair
Can we have questions for Sir Jonathan?
Kate Hoey
I would like to know what your relationship is with Mark Sweeney? How do you know him, at this moment?
Sir Jonathan Phillips
I see him very occasionally, perhaps once every 18 months or so, as a former close colleague.
Lady Hermon
But he was able to tweak your statement to this Committee. That would have been helpful, I think, Sir Jonathan, had you explained that at the very beginning.
Sir Jonathan Phillips
I said at the very beginning that I wanted, as the Permanent Secretary of the time taking responsibility for the actions of the Office, which is a well-known Whitehall convention, to make some comments about the particular remarks made about NIO officials, and he has been the most frequently named, although, clearly, in this story, there are other NIO officials.
Lady Hermon
I think that that should have been made clear to us, but it is on the record now, Sir Jonathan. Could I just ask if, in fact, you have also spoken to anyone else—for example, the current Secretary of State, Theresa Villiers? Has she seen your statement?
Sir Jonathan Phillips
I have not spoken to Theresa Villiers.
Lady Hermon
Or anyone else in the Northern Ireland Office?
Sir Jonathan Phillips
About this statement?
Lady Hermon
About this statement.
Sir Jonathan Phillips
I have not spoken to anyone else in the Northern Ireland Office about this statement.
Lady Hermon
Not necessarily about this statement; about what you were going to say today. Have you been in touch with the Northern Ireland Office to get their line to take?
Sir Jonathan Phillips
In the course of receiving the email from an official in the Northern Ireland Office sending me papers, and telling the Northern Ireland Office that I had received those papers, or at least in the administrative arrangements for this hearing, I have made clear that I intended to make a statement, and I said that, having heard the reference to correspondence between the Secretary of State and the Committee in the hearing last week, I intended to make mention of it. I did not ask to see it, and I have not seen it.
Lady Hermon
You have suggested in your statement that it was entirely wrong to suggest that Mark Sweeney had altered a letter. I think I am reading it correctly. Could you just explain what legal authority Mr Sweeney had, as an official in the Northern Ireland Office, to phone an Assistant Chief Constable of the PSNI, bearing in mind operational independence of the police, and not even speak to ACC Sheridan but to speak to a staff officer, and also email? What legal authority did Mr Sweeney have for doing that?
Sir Jonathan Phillips
The legal authority is clearly set out in, I think, chapter 9 of Hallett, and I do not have anything to add to it. He is an official who asked a question prompted by the Attorney’s office about whether certain checks had been made.
Lady Hermon
Just explain, then, the process running up. The scheme had been existing from 2000; we are now in 2007. What was the running order normally? Sinn Féin would feed in the names.
Sir Jonathan Phillips
The process is very clearly set out in the Hallett report.
Lady Hermon
Just tell us what it was, briefly. Just summarise it. Names were submitted.
Sir Jonathan Phillips
Names were sent in.
Lady Hermon
To the Northern Ireland Office?
Sir Jonathan Phillips
The Police Service considered those names and wrote to the DPP, back to the Attorney, with the NIO acting as the transmitter of information at the end of the process.
Lady Hermon
Was it not a bit unusual for Mark Sweeney, then, to take it upon himself to directly contact the PSNI and ACC Sheridan’s office? Had he done so before?
Sir Jonathan Phillips
It would have been a great dereliction of duty, would it not, and this Committee would have been horrified, I think, had it discovered, as Lady Justice Hallett discovered, that the NIO had been prompted by the Attorney’s office to check whether the wider checks had been made, and he or his colleagues had failed to do so?
Lady Hermon
Why did he not go back the normal route, which was the DPP, the Attorney General and the PSNI?
Sir Jonathan Phillips
I would have to go back to documents to be sure of the precise accuracy of what I am saying, but I am as clear as I can be without doing that that the way in which the prompt came in from the Attorney’s office was a suggestion that the NIO checked again with the PSNI.
Lady Hermon
Was that because there were two letters that were dated 20 July 2007—two different letters that could have gone to Mr Downey? One had the text of what ACC Sheridan had said—that Mr Downey was only wanted within the jurisdiction of Northern Ireland—and the alternative was the amended version, courtesy of Mr Mark Sweeney? Were there two different letters?
Sir Jonathan Phillips
No. This is at risk of introducing yet further confusion. The letters that went from the NIO at the end of all this process were pretty much standard letters. When I say “pretty much”, I say “pretty much” to cover the fact that they evolved a little bit over the periods into 2001, but they were standard letters. If the message going to the individual was “You are not wanted”, that would be in a standard form; if the message was “You are wanted”, that would be a message that would go to Sinn Féin, and there would not be a letter in the form of a letter to an individual. It is just not correct to—
Lady Hermon
Could I just repeat my question? Were there two letters, both dated 20 July 2007, with different content?
Sir Jonathan Phillips
No.
Lady Hermon
Absolutely not?
Sir Jonathan Phillips
No.
Lady Hermon
That is really very interesting indeed. You have praised the Hallett report regularly. I wonder: could you just accept that Lady Justice Hallett does note that the PSNI were not aware of letters sent from the Northern Ireland Office until December 2011—four years after Mr Downey had received his letter?
Sir Jonathan Phillips
I do.
Lady Hermon
You have praised the Hallett report, and that is contained in the Hallett report. You would confirm that.
Sir Jonathan Phillips
I do, absolutely, yes.
Lady Hermon
Why do you think the letters were kept secret from the PSNI and kept secret from leaders of other political parties, apart from Gerry Adams?
Sir Jonathan Phillips
There are three points that you have touched on there. The first is a point that you allude to and that I think is important to make. In my view, the PSNI’s knowledge of the existence of the letters is not at the heart of this issue. What is at the heart of this issue is whether the PSNI knew that, at the end of process of checking, the result of that process was communicated to the individual.
Lady Hermon
Why were they not told, Sir Jonathan?
Sir Jonathan Phillips
Let me just pause on that point. As Lady Justice Hallett also notes in her report, it is inconceivable that that point was not well understood in the PSNI in a process that had been going on for a number of years.
Lady Hermon
Sorry, Sir Jonathan, but which Chief Constable of the PSNI—or, indeed, Ronnie Flanagan of the RUC—confirmed that they knew that letters were sent out?
Sir Jonathan Phillips
No, forgive me. I said that there is a point that you have alluded to, because I do not think that letters are at the heart of it. It is the question. The first question is: did the PSNI know that the outcome of this whole process of consideration of an individual case was communicated to the individual? In theory, of course, that could have been done entirely orally. As everybody knows, it was not; there was a written process. On that first point, however, it is inconceivable that the PSNI did not know that the information was being given. On the second, I entirely agree with what Bill Jeffrey said in the earlier session today; namely, it would have been much better, from the outset of this process, if it had been end-to-end, and if the letters that were sent by the NIO had been copied to, amongst others, the PSNI.
Lady Hermon
Why do you think that did not happen? You are a very experienced civil servant; why would you think that did not happen?
Sir Jonathan Phillips
I do not know. I think there was not, again—
Lady Hermon
A cover-up?
Sir Jonathan Phillips
No, there was not a cover-up at all.
Lady Hermon
There was not a cover-up.
Sir Jonathan Phillips
Absolutely not.
Lady Hermon
No one from the Northern Ireland Office, no Secretary of State, John Reid in replies to parliamentary questions—they all accidentally forgot to mention the words “letters have been sent to OTRs”. Is it not a strange coincidence that they all seemed to have amnesia at the same time?
Sir Jonathan Phillips
I think that we are conflating two things. One is the process that would have been better had letters been copied from the NIO to a range of other parties, who would have treated them with the degree of sensitivity that was required. There are questions of integrity at stake here. The suggestion is, I think, that the NIO, over a period of years, deliberately chose not to copy letters—
Lady Hermon
That is what I am asking you, yes.
Sir Jonathan Phillips
—because they did not trust the other actors in the arrangement to treat them with due sensitivity. Irrespective of the political context, due sensitivity would have required due sensitivity in relation to each individual. I have to say, just as Hugh Orde, to take one particular Chief Constable who has given evidence to you, has spoken of his confidence in the integrity of the people with whom he dealt in Government, I would send the compliment in the other way too. There would have been no doubt, given the role of the RUC and the PSNI in Northern Ireland over many years, that its integrity on a matter like this would have been trusted absolutely.
Lady Hermon
Absolutely. We know that they started in 2000—Number 10 and Jonathan Powell signing off the first two—and the only evidence that Lady Justice Hallett could find in the PSNI was in December 2011. For 11 years, then, even though the Northern Ireland Office has a huge regard, as I would expect, for Hugh Orde, the PSNI and other Chief Constables, the Northern Ireland Office deliberately never let on that there were letters going to OTRs. That is the case.
Sir Jonathan Phillips
As a matter of fact, the word “letters” was never used in the public domain.
Lady Hermon
For 11 years.
Sir Jonathan Phillips
I would, however, go on and say that, during my period—and maybe you are going to move on to this—the description of the scheme that was in the public domain in 2002, before my time—that is to say, Secretary of State John Reid’s answer to a parliamentary question—was very clearly alluded to by Peter Hain.
Lady Hermon
Absolutely, and John Reid’s reply to a Parliamentary question from Quentin Davies, now repeated by Peter Hain to me as the North Down MP in the spring of 2007, was on 1 July 2002. By July 2002, we discover from the wonderful Hallett report, as you keep praising it, Sir Jonathan, that almost 60 secret letters had been dispatched. How is that so carelessly omitted from John Reid’s parliamentary reply to Quentin Davies’s question? That same omission happened when Peter Hain replied to me in 2007. Why do you think that would be?
Sir Jonathan Phillips
I do not think it was careless.
Lady Hermon
It was deliberate—exactly.
Sir Jonathan Phillips
I do not sense some point here beyond the comment that has been made in many of your sessions that this was not a secret scheme; it was a sensitive scheme. Letters were not mentioned later on because they had not been mentioned earlier, and they were not mentioned in the first significant parliamentary answer on this at a period before I was involved.
Chair
If I can just come in on that point on “a sensitive scheme”, this goes to the heart of our inquiry, really. If this is about letters written to completely innocent people, what is there to be sensitive about?
Sir Jonathan Phillips
The letters were written as part of a process that I think was very well described in the evidence session that you had with Dominic Grieve, the former Attorney General, as to what might have been taken from the receipt of such a letter. You would not, I think, in the normal course of events, leaving aside the unusual circumstances of this scheme, expect that a private letter to an individual would be put in the public domain. As Lady Hermon suggests, there is a quite separate question about why the existence of letters in general were not referred to in the public domain.
Lady Hermon
Ever.
Chair
By officials or by politicians, it has to be said.
Sir Jonathan Phillips
I think that is the case.
Lady Hermon
Was this an issue that was discussed with any of the Secretaries of State who you worked with? You worked with many.
Sir Jonathan Phillips
What do you mean by “this issue”?
Lady Hermon
OTR letters. What was the briefing to every incoming Secretary of State? Did you mention the letters?
Sir Jonathan Phillips
Briefing for incoming Secretaries of State described the scheme and the way in which it operated.
Lady Hermon
You described the scheme. Could I just ask you again, because the key is the secret letters: did you mention the letters?
Sir Jonathan Phillips
Secretaries of State were, of course, aware that letters were sent.
Lady Hermon
Interestingly enough, some of our Secretaries of State, for whom I have huge regard, including Paul Murphy, appeared not to have heard of them, and I have no reason to doubt his word at all. I put that on the record: no reason at all. He appeared not to have any awareness of OTR letters being issued during his period.
Sir Jonathan Phillips
I watched, rather than read, Paul Murphy’s evidence[25], and I agree with the thrust of it: that, during his time as Secretary of State—and he arrived in October 2002, just at the point at which the institutions were about to collapse—the focus was on a much more, if you like, strategic aspect of the OTR problem: namely, whether or not it would be possible to find a legislative solution, and that gave rise to the paper which was published alongside the joint declaration at the beginning of May 2003[26] and then, of course, went onwards towards legislation in Peter Hain’s time.
Lady Hermon
Could you just confirm, then, that the OTR letters just moved through the Northern Ireland Office. In terms of the tight little number of people who knew about the letters, how many would you estimate knew about the letters within the Northern Ireland Office?
Sir Jonathan Phillips
I am not going to make a guesstimate.
Lady Hermon
Half a dozen?
Sir Jonathan Phillips
I am not going to make a guesstimate of that kind. Over the period of my time in the office, given the people at different levels would see papers, file papers and so on—
Lady Hermon
I was thinking more about Paul Murphy’s period in office, because you did say that you watched rather than read his evidence. I think that is what you said.
Sir Jonathan Phillips
Correct.
Lady Hermon
And that what he described really coincided with your recollection of the time, because, in fact, there were other priorities at that time. I am asking you: during Paul Murphy’s time, is it correct that the Northern Ireland Office officials—or official, if there was one for responsible for signing off these letters—simply continued with that scheme without a word to Paul Murphy, the Secretary of State?
Sir Jonathan Phillips
I have not gone back myself and double-checked in preparation for this hearing—there is a limit to how much preparation one can do—but I would be confident that, if you asked the Northern Ireland Office to check the files, you would find that the incoming first-day briefing for Paul Murphy covered this, as it should have done.
Lady Hermon
Covered “this”?
Sir Jonathan Phillips
Meaning the scheme and its operation.
Lady Hermon
The scheme and its operation.
Sir Jonathan Phillips
Including letters, to be absolutely precise.
Lady Hermon
Could you just confirm for the record that you also accept that ACC Sheridan, in July of the vital year, 2007, when Mr Sweeney had phoned his private office and emailed his private office, had no awareness at all that NIO officials were signing off letters? Could we just have that on the record?
Sir Jonathan Phillips
Sorry, what question are you asking me? I do not know what his state of mind was. If you are telling me that that is what he said, in terms, then I accept that that is his state of mind, yes.
Lady Hermon
We are talking here about the Hallett report. The Hallett report confirms that there was no evidence that the PSNI knew about the OTR letters until December 2011.
Sir Jonathan Phillips
With respect, the Hallett report says that, in relation to 2011, the PSNI had not been shown the text of the standard letter, and that is the first time they saw the text. I think that is what the Hallett report says on that point. I thought your earlier question was: was ACC Sheridan aware in 2007 that letters were sent? I have accepted absolutely the criticism, which is implicit in the Hallett report—and I think you make explicit—that it would have been far better had those letters been copied to the PSNI and the other participants in the process from a very early stage.
Lady Hermon
Would you accept, Sir Jonathan, that this was a very sensitive and very controversial scheme of letters to facilitate progress in the peace process, and particularly decommissioning by the IRA? Would you accept that?
Sir Jonathan Phillips
I do.
Lady Hermon
How, then, do you address the criticism in the Hallett report about the Northern Ireland Office that the review “was concerned not to be able to find any record of earlier written notification” about at least 12 OTRs—this is paragraph 4.128. Again, the review concludes, “This would illustrate the inadequate system of record-keeping on the part of the NIO.” How on earth did the NIO end up with such a poor record-keeping system for such a controversial and highly sensitive secret scheme?
Sir Jonathan Phillips
I accept the criticism that, in some cases, the record-keeping, as it has been investigated by Lady Justice Hallett, was not as good as it should have been. I cannot offer you an explanation for that, but it is a fact and I do not seek to—
Lady Hermon
Do you think it was carelessness or was it deliberate?
Sir Jonathan Phillips
I am absolutely sure it was not deliberate.
Lady Hermon
Why do you say that with such passion? You said that almost as a dismissal.
Sir Jonathan Phillips
Because I worked with a group of officials in dealing with this and many other strands of the peace process, and I judged their integrity to have been of the highest order.
Lady Hermon
You must have been very surprised, then, by the criticism in the Hallett report.
Sir Jonathan Phillips
I was disappointed by that criticism in the Hallett report, but I did not take it as a criticism of the integrity of the office; I took it as a criticism of the administrative efficiency of an element of the office at a particular point. Can I just come back to this question of who knew what about communication as opposed to the precise text of the letter? If you look at 5.12 of Hallett, there is an email that went to ACC Sheridan, which makes it clear, as she says, that PSNI was well aware of the involvement of the NIO, and specifically, the involvement of the NIO in a process of informing Sinn Féin as to whether individuals were wanted or not wanted. That is a really rather important point.
Lady Hermon
It is really a very important point because, of course, the PSNI did have meetings. There were representatives of the Northern Ireland Office at meetings with representatives of the DPP and, at times, the Home Office and the Attorney General’s office. Yes, they were all there. That is not in dispute. What is in dispute is that ACC Sheridan’s office, on roundabout 20 July 2007, was not aware that a letter was going to be issued by the Northern Ireland Office and it was going to amend the information supplied by ACC Sheridan.
Sir Jonathan Phillips
Chairman, I do not want to have to repeat everything that I said in my statement, which I think will be captured, but the NIO did not alter a letter. The NIO checked with the PSNI, at the suggestion of the Attorney General’s office, and only then, having had it confirmed, as Lady Justice Hallett acknowledges, that checks had been carried out properly, writes the standard letter.
Lady Hermon
Sir Jonathan, you have had the conversations with Mark Sweeney. Did Mark—
Sir Jonathan Phillips
With respect, Lady Hermon, I have read the Hallett report.
Lady Hermon
However, you have also had the benefit, which we have not, of talking to Mark Sweeney. I have read the Hallett report as well, and the Hallett report does not answer this question. That is why I am asking you, because you have had the benefit of talking to Mark Sweeney, which we have not. That is: did Mark Sweeney, when he phoned and emailed ACC Sheridan’s office, explain why he wanted that information?
Sir Jonathan Phillips
I have not asked that question.
Lady Hermon
Did he explain that he was going to put it into a letter to Mr Downey?
Sir Jonathan Phillips
I have not asked that question.
Lady Hermon
Did he explain that he was going to alter the text that ACC Sheridan had prepared?
Sir Jonathan Phillips
With respect, I have to say that he is not, in any description of his role, altering a letter which ACC Sheridan wrote. That is not how the process worked. He carried out a check to ensure that the information which ACC Sheridan had sent to the Attorney General’s office properly indicated that checks with other forces had been carried out.
Lady Hermon
Did Mark Sweeney add anything—any sentence—to ACC Sheridan’s original draft letter, or the standard letter?
Sir Jonathan Phillips
I am sorry. I do not know how to answer this. He did not have a text from ACC Sheridan. He had a standard format.
Lady Hermon
Did he amend it? Did he amend the standard format?
Sir Jonathan Phillips
The answer to that is I have not looked at the two documents one alongside the other to be able to answer your question, but my belief is that the letter he sent was in standard form. If it was not in standard form, I am absolutely clear, from the way in which the Hallett team went about their enquiries, that that would have been a matter on which they commented. I am as confident as I can be, without, as it were, putting it on oath, that it was a letter in standard form.
Lady Hermon
I think you mentioned there were two there.
Chair
We have to wind up fairly soon. Nigel.
Nigel Mills
We have all evening, surely. We have plenty still to ask. I am just trying to get the sequence of dates right in my mind, Sir Jonathan. You took over in 2002, was it?
Sir Jonathan Phillips
September.
Nigel Mills
The scheme was running in its original format then. It went quiet in 2003 and not much happened until the bill failed and Operation Rapid got started.
Sir Jonathan Phillips
Yes, it started moving before what we have come to know as Operation Rapid, but broadly speaking, yes.
Nigel Mills
When you took your office as Political Director, were you a little surprised by this scheme or were you familiar with it before you appeared in that job?
Sir Jonathan Phillips
No, I was wholly unfamiliar with it. Indeed, I came to the Northern Ireland Office without any previous experience in that Department, so the whole thing was new.
Nigel Mills
Do you recall thinking, “This is a bit unusual. I had best be careful”?
Sir Jonathan Phillips
To be candid, I do not recall giving it a great deal of thought when I arrived, because we were on the verge of what was widely predicted to be a collapse of the political institutions. I do not need to rehearse the history of how that happened, but it happened a very few weeks after I arrived in the Political Director’s post and, frankly, responding to that took all my time and energy. In addition, it became clear that an element—one of many elements but an element—of dealing with that political crisis and the negotiations that followed was trying to put in place a legislative scheme, which I referred to earlier in this evidence.
Nigel Mills
We can fast-forward through to the collapse of the amnesty bill in Parliament. The then Prime Minister decided to bring back this administrative scheme, in effect, and speed it all up, so that it is dealt with before he leaves office. Do you recall what your thoughts were and how you handled that situation back in 2006, I guess it was?
Sir Jonathan Phillips
There were conversations with the various actors in that particular drama. I was not involved in all of those, by any means, because it was a subject that was handled on a day-to-day basis by others in the office. I was then operating as Permanent Secretary with a wider set of responsibilities, so inevitably some subjects were delegated. I think I was present at a meeting in the autumn of 2006, which is referred to in the Hallett report, which involved the Secretary of State, the Chief Constable and various others—probably the Attorney’s office and so on—to consider how the scheme could be speeded up. That, of course, has to be seen in a very important context which was then emerging—the prospect of talks at St Andrews; the requirement in order to make the St Andrews Agreement effective—the requirement to have Sinn Féin’s support for the policing settlement in Northern Ireland, following the Belfast Agreement and the Patten Report, and so on—which absolutely confirmed that an element in that process was an attempt to see whether anything could be done, as I said, to speed up the operation of the scheme. This may not be quite as distant as some other memories, although it is quite a number of years ago now: one thing that I am pretty clear on from that meeting is that Hugh Orde indicated very strongly—and quite consistently with the nature of his evidence to this Committee—that whatever steps were taken had to be taken absolutely within the law and the prerogatives of the different parties to the consideration of cases; in other words, there was going to be no question of the operational integrity of PSNI being compromised.
Nigel Mills
I presume you can see how some people might fear that the amnesty bill fails and we get this, “What else can we do? Let us just do a quick-and-dirty and rush through these letters, and that will be good enough.” Presumably, that is not something that you would agree was a fair interpretation.
Sir Jonathan Phillips
I would not, because, as I think has been clear from a number of evidence sessions, the scheme did not and could not deal with quite a number of cases where individuals were wanted. The scheme, as set out in 2003—the bill to which you have referred—was an attempt, albeit unsuccessful, to deal with those cases. Speeding up the administrative scheme was not, as it were, an alternative to that—it could not be.
Nigel Mills
But it was, in fact.
Sir Jonathan Phillips
No, it was not, in effect.
Nigel Mills
The bill failed and the scheme was reactivated and turbocharged. It looks like an alternative, does it not?
Sir Jonathan Phillips
To those who were party to the conversations—and I do not need further to put on record the integrity of the different parties to this process—I do not think that is how it could have operated, let alone did operate.
Nigel Mills
You heard Sir Bill’s evidence earlier that the reason he thought the risks that a Downey-type mistake would not happen were the careful nature of the reviews and the very thorough nature of the work. Were you not worried that the wonderfully named Operation Rapid effectively meant that that thorough, careful work just was not possible in the new timescale, and that, therefore, this scheme just became so inherently risky that it should not have been handled in that way?
Sir Jonathan Phillips
No. I was not involved in all the conversations that took place from the autumn through to the beginning of 2007. I was conscious of a determination on the part of the Attorney General, the DPP and the PSNI that their integrity, to use a simple word, would not be compromised. I was conscious of a question of resource; that is to say, a team, as it turned out, needed to be created to take consideration of cases forward. I was also conscious of something that I think is true throughout the history of this scheme, and that is that the NIO had to be very careful not to be seen to be or perceived as being a party interfering with those prerogatives of independence. With the benefit of hindsight, maybe we took that too seriously; that is to say, it would have been better had we been a little more intrusive as to process. Then the risks that that carried or could have carried in relation to perceptions of interference with proper due process were quite considerable, so I think, had we recognised the need to put a better framework in place, it is quite a complex process to imagine how that might have been achieved without damaging the prerogatives of the various agencies.
Nigel Mills
You can see how people get a bit concerned, I think, because, on one level, you have the police, through the Historical Enquiries Team, conducting a review of all 3,000 murders and trying to work out whether there is any evidence to bring a prosecution. We are now told that the PSNI want to do a full review of all the letters, and that will take them at least three years with some kind of dedicated resource. Yet, in a matter of a few months, we have managed to issue quite a lot of letters without reference back to the Historical Enquiries Team. It looks like this was a bit of a, “Let us have a skim of these files and we will just write off as many as we can”. It has that feeling, does it not?
Sir Jonathan Phillips
I agree very much with what Peter Sheridan said to you last week[27]: that it is very important to wait and see what that review shows before one comments, because this was not a process that was being overseen by the NIO. It was a process being undertaken by the PSNI and we were responding to the results of that process. I really do not want to make judgments in advance of seeing the analysis.
Nigel Mills
Perhaps it is another three years forward before we find out.
Chair
I think Drew Harris suggested that, at the moment, with current funding, it could take up to nine years[28]. Nine years, compared to Operation Rapid, is a huge difference, potentially.
Sir Jonathan Phillips
That, of course, is outwith my discretion, but it is the case that we cannot make a certain judgment—and this is, I think, a point that Peter Sheridan was making last week—about the impact of the Operation Rapid approach until that analysis has been done.
Nigel Mills
Could I just put to you a question about one of Justice Hallett’s conclusions at paragraph 10.66, where she says, “The administrative scheme was not unlawful in principle”? There are enough caveats in that to make you wonder. She could have said “The administrative scheme was lawful”, so she has added “not unlawful” and “in principle”. What do you think she was trying to get to by those caveats?
Sir Jonathan Phillips
I do not know. You would have to ask her.
Nigel Mills
I would read “in principle” as saying that perhaps, in theory, nothing was wrong here, but the way it was carried out was perhaps not quite how it ought to have been.
Sir Jonathan Phillips
I can speculate where the words are unambiguous, but not where there is that degree of ambiguity.
Nigel Mills
With all these years of hindsight and all these reviews, you would say the scheme was lawful.
Sir Jonathan Phillips
I would.
Nigel Mills
You would not have had to use all those qualifiers.
Sir Jonathan Phillips
But I am not speaking as a High Court judge.
Chair
Nigel appreciates she was carrying out an inquiry. You are speaking as a witness to a Select Committee.
Nigel Mills
If you were speaking as the then Permanent Secretary whose Department was signing these letters—
Sir Jonathan Phillips
The point I am making, Mr Mills, is that she has a very sophisticated legal training, which I do not.
Nigel Mills
It is a pity she will not come and answer that question. I am intrigued as to why she chose those words. I assume she chooses her words her carefully and, if she thought the scheme was lawful, she would have just said that.
Chair
Thank you. Because of earlier delays, we have overrun, but thank you very much, Sir Jonathan, for coming.
Oliver Colvile
Can I just make a point
Chair
We will be inquorate in 30 seconds’ time.
Oliver Colvile
It was just a very quick point, and it was this: this is the only public inquiry into this matter. This is the one opportunity that those people in Northern Ireland have seen as to how this whole operated and to see something being asked in public and talked about. I really do urge everybody who has given evidence to understand that this is the one thing where they have an opportunity. Everything else to do with the Hallett report and things like that is done behind closed doors, and nobody has seen as to how the questioning is done. Thank you very much indeed, from my point of view, for being so honest with us.
Chair
Thank you very much, Sir Jonathan. Oral evidence: Administrative scheme for ‘on-the-runs’, HC 177 16 [1] A link to the transcript of Jonathan Powell’s oral evidence to the Northern Ireland Affairs Committee on 8 September 2014 can be found here: http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/northern-ireland-affairs-committee/administrative-scheme-for-ontheruns/oral/12393.html [2] A link to the Hallett Review report can be found here: http://www.hallettreview.org/report/ [3] Peter Sheridan’s letter to the Department of the Director of Public Prosecutions (6 June 2007) can be found here: http://www.parliament.uk/documents/commons-committees/northern-ireland-affairs/Peter-Sheridan%e2%80%99s-letter-to-the-Department-of-the-Director-of-Public-Prosecutions-(6-June-2007)%20.pdf A link to the letter from the Northern Ireland office to Mr John Downey of July 2007 is provided here: http://www.parliament.uk/documents/commons-committees/northern-ireland-affairs/Cover-letter-from-NIO-to-Gerry-Kelly-and-John-Downey-OTR-Letter-July-2007.pdf [4] Lord Reid’s response to Quentin Davies on 1st July 2002 can be found here: http://www.publications.parliament.uk/pa/cm200102/cmhansrd/vo020701/text/20701w35.htm#20701w35.html_sbhd2 [5] The memo from Bill Jeffrey re: conversation with Jonathan Powell, 20 July 2000, can be found here: http://www.parliament.uk/documents/commons-committees/northern-ireland-affairs/Memo_from_Bill_Jeffrey_re_conversation_with_Jonathan_Powell_,_20_July_2000.pdf [6] The minutes of the meeting between Peter Mandelson, Secretary of State, and Martin McGuinness on 25 August 2000 can be found here: http://www.parliament.uk/documents/commons-committees/northern-ireland-affairs/Minutes%20of%20the%20meeting%20between%20Peter%20Mandelson,%20Secretary%20of%20State,%20and%20Martin%20McGuinness%20in%20August%202000.pdf [7] The letter from Lord Goldsmith to Peter Hain (February 2006) can be found here: http://www.parliament.uk/documents/commons-committees/northern-ireland-affairs/Letter-from-Lord-Goldsmith-to-Peter-Hain-February-2006.pdf [8] A link to the letter from the Northern Ireland office to Mr John Downey of July 2007 is provided here: http://www.parliament.uk/documents/commons-committees/northern-ireland-affairs/Cover-letter-from-NIO-to-Gerry-Kelly-and-John-Downey-OTR-Letter-July-2007.pdf [9] The letter from Tony Blair to Gerry Adams, 5 May 2000, can be found here: http://www.parliament.uk/documents/commons-committees/northern-ireland-affairs/Letter-from-Tony-Blair-to-Gerry-Adams-5-November-2000.pdf [10] Lord Reid’s response to Quentin Davies on 1st July 2002 can be found here: http://www.publications.parliament.uk/pa/cm200102/cmhansrd/vo020701/text/20701w35.htm#20701w35.html_sbhd2 [11] A list of recipients of the Royal Prerogative of Mercy can be found in Rodger's (Robert James Shaw) Application [2014] NIQB 79: http://www.courtsni.gov.uk/en-GB/Judicial%20Decisions/PublishedByYear/Documents/2014/%5b2014%5d%20NIQB%2079/j_j_STE9288Final.htm [12] The transcript of Lord Mandelson’s evidence to the Committee on 4 November 2014 can be found here: http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/northern-ireland-affairs-committee/administrative-scheme-for-ontheruns/oral/15095.pdf [13] A link to the transcript of Jonathan Powell’s oral evidence to the Northern Ireland Affairs Committee on 8 September 2014 can be found here: http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/northern-ireland-affairs-committee/administrative-scheme-for-ontheruns/oral/12393.html [14] The transcript of Peter Robinson’s evidence to the Committee on 10 June 2014 can be found here: http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/northern-ireland-affairs-committee/administrative-scheme-for-ontheruns/oral/10426.pdf [15] The transcript of Lord Trimble’s evidence to the Committee on 13 May 2014 can be found here: http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/northern-ireland-affairs-committee/administrative-scheme-for-ontheruns/oral/9593.pdf [16] The terms of reference of “Operation Rapid” can be found here: http://www.parliament.uk/documents/commons-committees/northern-ireland-affairs/Operation-Rapid-Terms-of-Reference.pdf [17] A link to the transcript of the oral evidence from Sir Ronnie Flanagan GBE QPM, former Chief Constable, Royal Ulster Constabulary GC/Police Service of Northern Ireland to the Northern Ireland Affairs Committee on 30 April 2014 can be found here: http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/northern-ireland-affairs-committee/administrative-scheme-for-ontheruns/oral/9013.html [18] The transcript of Dominic Grieve’s oral evidence to the Northern Ireland Affairs Committee on 2 July 2014 can be found here: http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/northern-ireland-affairs-committee/administrative-scheme-for-ontheruns/oral/11189.html [19] A link to “The Queen v John Anthony Downey, Judgment: Abuse of Process” can be found here: http://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Judgments/r-v-downey-abuse-judgment.pdf [20] A link to the Hallett Review report can be found here: http://www.hallettreview.org/report/ [21] The letter from Lord Goldsmith to Peter Hain (February 2006) can be found here: http://www.parliament.uk/documents/commons-committees/northern-ireland-affairs/Letter-from-Lord-Goldsmith-to-Peter-Hain-February-2006.pdf [22] Peter Sheridan’s letter to the Department of the Director of Public Prosecutions (6 June 2007) can be found here: http://www.parliament.uk/documents/commons-committees/northern-ireland-affairs/Peter-Sheridan%e2%80%99s-letter-to-the-Department-of-the-Director-of-Public-Prosecutions-(6-June-2007)%20.pdf A link to the letter from the Northern Ireland office to Mr John Downey of July 2007 is provided here: http://www.parliament.uk/documents/commons-committees/northern-ireland-affairs/Cover-letter-from-NIO-to-Gerry-Kelly-and-John-Downey-OTR-Letter-July-2007.pdf [23] The letter from Peter Sheridan to Hilary Jackson, 27 June 2007, can be found here: http://www.parliament.uk/documents/commons-committees/northern-ireland-affairs/Letter-from-Peter-Sheridan-PSNI-to-Hilary-Jackson-27-June-2007.pdf [24] The email exchange between the NIO and PSNI (13-14 June 2007) can be found here: http://www.parliament.uk/documents/commons-committees/northern-ireland-affairs/Email_Exchange_between_NIO_and_PSNI_(_13_-_14_June_2007_)_.pdf [25] The transcript of Paul Murphy’s evidence to the Committee on 15 July 2014 can be found here: http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/northern-ireland-affairs-committee/administrative-scheme-for-ontheruns/oral/11406.pdf [26] The Proposals in relation to On-the-Runs (OTRs) (April 2003) can be found here: http://cain.ulst.ac.uk/events/peace/docs/biotrs010503.pdf [27] The transcript of Peter Sheridan’s evidence to the Committee on 11 November 2014 can be found here: http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/northern-ireland-affairs-committee/administrative-scheme-for-ontheruns/oral/15306.pdf [28] The transcript of Drew Harris’s evidence to the Committee on 4 November 2014 can be found here: http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/northern-ireland-affairs-committee/administrative-scheme-for-ontheruns/oral/15103.pdf