On the runs deal: Sordid and shabby or legal and proper?

Lady Justice Hallett was appointed to look at the scheme dealing with On the Run paramilitary suspects

Anyone looking at Dame Heather Hallett's review into On The Runs for an assessment of the moral righteousness of the government's approach to the peace process will be disappointed.

Judge Hallett describes the treatment of the On The Runs as "unprecedented".

However, she says it is for "others to judge whether or not the political imperative justified the introduction of this extraordinary... scheme for extraordinary circumstances".

She also declines to judge whether the confidentiality attached to the scheme was justified by concerns that publicity might have had a negative impact on the peace process.

Lady Justice Hallett notes that some regard the deal on paramilitary fugitives as sordid and shabby, whilst others maintain it is legal and proper.

For a middle ground view, she quotes someone who wrote to her arguing that "history teaches us that peace settlements are often messy compromises with ambiguity and grey areas as necessary evils on the road to peace".

Whilst the report offers no definitive judgment on the Machiavellian approach of Downing Street and the Northern Ireland Office, it does shed more light on the formulation of the On The Runs policy.

'Important issues'

The government felt it had to deliver on OTRs in order to secure first IRA decommissioning, then Sinn Féin's acceptance of the police.

Judge Hallet said: "It is clear from the account of my interviewees that Sinn Féin considered this to be one of a number of important issues and one strand of a process which would lead ultimately to the decommissioning of arms."

Others reckoned a higher price could be extracted.

In 2002 Alliance's Eileen Bell told Tony Blair, face to face, he should insist on the return of those exiled from Northern Ireland by paramilitaries.

At the same meeting Mrs Bell's leader, David Ford, indicated he could accept a scheme similar to the Good Friday Agreement early releases.

Other politicians who had contact with the government on the issue included the SDLP's Alex Attwood, who enquired on behalf of the family of someone who had skipped bail back in the 1980s, and the former Ulster Unionist leader David Trimble.

According to Judge Hallett's report, Lord Trimble gave his name to a so-called "Trimble option" under which fugitives might return and plead guilty before being released on licence after serving a "notional sentence".

But there's no doubt the main impetus came from Sinn Féin who were submitting increasingly long lists of fugitives.

Forced to withdraw

In September 2005 the IRA completed its disarmament, according to the Canadian General John De Chastelain.

But the OTR issue had still not been resolved. Indeed, four months later Peter Hain was forced to withdraw his controversial OTR bill from the House of Commons.

Whilst decommissioning may have been achieved, brokering republican backing for the police and restoring devolution remained UK government priorities.

After the St Andrew's talks, hosted by Tony Blair and Bertie Ahern in 2006, Sinn Féin voted for the first time in its history to back the police.

Seven days after the January 2007 special ard fheis (conference) on policing, the PSNI began "Operation Rapid," the controversial phase of the OTR scheme which involved deeming Hyde Park suspect John Downey as not wanted.

Judge Hallett notes that "while no document I have seen, or evidence I have heard, reveals that this was direct reason for Operation Rapid commencing a few days later, it does not appear to be a coincidence".

The focus has been on the apparently illogical decisions made by police officers and civil servants trying to work a scheme "without any proper structure or policy in place".

However, it's as well to remember these officials were following orders from the top.

Political insights

Indeed, the Hallett report quotes Tony Blair telling Gerry Adams in December 2006 that he has "always believed that the position of OTRs is an anomaly which needs to be addressed. Before I leave office I am committed to finding a scheme to resolve all the remaining cases".

Whether the real politik justified the introduction of a scheme which, unlike the early releases, was not backed by legislation or a referendum, will be a topic MPs on the Northern Ireland Affairs Committee might wish to pursue should they ever get Tony Blair in front of them.

There are also a couple of other interesting political insights in the Hallett report.

One is the aversion of the UK government to a Truth Commission for Northern Ireland because "the government could not countenance any comparison with the government of South Africa under the apartheid regime".

Another is the footnote which points out that the Good Friday Agreement early release scheme does not apply to offences committed before 1973.

That means if anyone was arrested for one of the 722 murders committed between 1969 and 1972 they would, theoretically, have to serve their full sentence.

During those years, according to "Lost Lives," republicans were blamed for 413 murders (including the disappearance of Jean McConville) and loyalists for 147 murders.

The Northern Ireland Office says the Labour government gave royal pardons to some individuals who had served more than two years but weren't covered by the official Good Friday Agreement scheme.

In the light of the On The Runs controversy, the current government would be likely to think long and hard before it granted a similar royal pardon to anyone convicted of an early Troubles offence in the future.