Boutcher vs Benn: a legacy of conflict in the courtroom

Out of sight and certainly out of the minds of the rest of the United Kingdom, a constitutional crisis is rumbling away in Northern Ireland that ought to matter to everyone.

To the Northern Ireland Office, the Chief Constable of the PSNI, Jon Boutcher, has had the effrontery to challenge MI5’s veto on what information should be disclosed to the families of relatives who were murdered with the involvement of state agents. These were agents that either MI5 or, more usually, Special Branch and the military employed during the conflict.

It is this issue – of who ultimately has the final say over disclosure of secret intelligence – that more than any other has paralysed the vexed question of  how to deal with the conflict’s many still killings that remain unsolved.

This week, the matter came before the Supreme Court in London. Although the High Court and the Court of Appeal have sided with Boutcher in favour of more disclosure to relatives in several yet to be held inquests, the Northern Ireland Secretary Hilary Benn has been persuaded by the men in suits to dig in, as has been the case with all his predecessors.

On Wednesday Sir James Eadie, the bullish KC acting for the Government, made the extraordinary suggestion that Boutcher might even consider resigning if he couldn’t accept the Secretary of State’s decision over what constitutes a threat to national security.

Nothing electrifies a public spat quite so much as those two words: National Security.

For when the Crown submits to the highest court in the land that a Chief Constable — a Chief Constable no less! — might want to pack his bags because he disagrees about how to safeguard the nation, it implies that a metaphorical fox has been let loose in the henhouse of state security.

Of course, the idea that Boutcher might be some kind of latter-day subversive in police uniform is preposterous. Prior to becoming Chief Constable, working hand in hand with MI5, he locked up a load of Al Qaeda terrorists.

But now he’s come to Belfast, the securocrats don’t like him anymore because he’s upset business as usual, the first Chief Constable to publicly challenge their status quo.

For his part, Eadie is the kind of barrister who dominates the court: fluent, a master of detail, exuding a level of confidence that says: “I could be where your Lordships are sitting but I choose to carry on doing what I’m doing.”

The money, of course, is also very much better – in Eadie’s case several times better.

On Wednesday Eadie accused Boutcher of “playing politics” by usurping Benn’s role in deciding what does and does not constitute a threat to national security.

Eadie didn’t say what sort of politics, but I assume he meant that he sees Boutcher so openly siding with conflict victims as a kind of popularity ploy.

If so, it was a cheap shot by Eadie, an otherwise classy courtroom performer.

I got the impression that Lord Hodge agreed.

“I wonder if that’s a fair characterisation,” his Lordship interjected. “I mean, presumably, the Chief Constable is wanting to do as much as he can to reassure all the communities in Northern Ireland about the fairness of policing.”

That does indeed seem to be what Boutcher has been about.

The continuing wrangle over the legacy of the Troubles is inhibiting the recruitment of nationalist officers, essential to closing the divisions in Northern Ireland society.

The case before the Supreme Court goes to the heart of Boutcher’s attempts to free Northern Ireland from decades of paralysing government secrecy.

It concerns the 1994 sectarian murder of Paul “Topper” Thompson by a Loyalist death squad, in which a state agent, or agents, are suspected to have been involved.

Boutcher had prepared a summary or “gist” of the intelligence available in his murder, telling the Coroner Louisa Fee that he was satisfied that this limited disclosure would not breach national security.

Advised by MI5, Benn disagreed and judicially reviewed the Coroner’s decision to release the “gist.”

Benn lost in both the High Court and at appeal, which is why the case has ended up at the Supreme Court. Upon the outcome of the Thompson case, however, depend several other inquests into murders involving state agents.

A “gist” produced at the inquest into the 1997 murder of Sean Brown, a 61-year-old Gaelic Athletic Association  official, revealed that more than 25 people had been linked by intelligence to his death, including several state agents.

Last April Mr Justice Kinney, a High Court judge acting as Coroner, said he was unable to continue the inquest because of the sheer scale of confidential material being excluded by the Government under a ministerially signed public interest immunity certificate.

He suggested there should instead be a public inquiry to “examine the full circumstances of the killing”.

Boutcher supported the judge, arguing that gists can safely be disclosed without compromising national security. To suggest otherwise was “poppycock”.

He also pledged “unfettered and unredacted access” to PSNI files about the case, saying the Brown family had been “failed by the establishment”.

Boutcher’s own unfettered turn of phrase is not the kind of language the securocrats who’ve ruled the roost for decades are used to.

He complains that nowhere else in the UK is NCND (Neither Confirm Nor Deny) applied as extensively as it is in Northern Ireland.

And it is a fact that, advised by MI5, ministers have routinely refused to neither confirm nor deny if state agents were involved in unsolved murders from the conflict.

Over the years, the NCND protocol has morphed into a robotic mantra chanted by securocrats, and used to obscure, as Boutcher has put it “wrongdoing by the security forces or serious criminality by agents”.

He has emphasised that he has no intention of identifying agents by name, thereby posing no threat to national security. Instead, he argues that, 27 years after the end of the conflict, relatives have a right to know if the State played a role in the murder of their nearest and dearest.

On Thursday, Eadie inched back by making it “absolutely clear, no one on this side – is suggesting that the Chief Constable needs to or should resign”.

In using the word “resign” in his previous day’s submission, Eadie said he’d merely been pointing out that resignation was an “option” for someone if their “conscience dictates that you can’t carry on as it were, with that disagreement in place”.

Be in no doubt, however: if the securocrats could get rid of Boutcher, they would.

On that front, Benn’s predecessor Chris Heaton-Harris opened the batting by referring to Boutcher’s “unwelcome” comments on legacy. He also expressed his “deep concern” at a “developing trend” towards departures from the NCND policy in legacy inquests.

This provoked a salty reminder from Boutcher that as Chief Constable he is “independent of the executive and not subject to the direction or the control of government ministers, department or agencies”. He added: “Furthermore, I am under a duty to maintain this independence and I also have no intention of breaching this duty.”

Judges are, of course, also robustly independent. So it might appear mischievous of me to point out that Lord Sales — one of the Supreme Court justices adjudicating the landmark Thompson case — advised the Blair Government on how to safeguard NCND in a case which some lawyers have described as an “elaborate legal charade”.

No mischief is intended. I have no doubt that Lord Sales will adjudicate entirely on the merits of the case.

I just observe that, as the then so-called “Treasury devil”, it was advice from the then Philip Sales that allowed the then Government to preserve NCND so that it could continue to protect Freddie Scappaticci from being officially confirmed as the murderous agent known as Stakeknife – a protection that MI5 bizarrely continues to this day.

It’s this kind of thing that gets noticed in large parts of Belfast, and the wrong end of the stick is taken.

On this occasion, the  court might have selected its panel of Justices — well, more  judiciously, let’s say.

Details of Lord  Sales’s advice and the exceptional lengths to which the government went to protect NCND in this alleged “legal charade” were set out here in the Irish News last March.

John Ware is an author and journalist. He was an investigative reporter for BBC Panorama from 1986-2012.

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