When the people’s right to know does not have to await due process

AT THIS stage, most readers probably feel there is little more to be said about the recent controversy between Michael McDowell and Frank Connolly. The issues have been fairly well aired on both sides.

However, as the saga draws to a close, at least for the Christmas break, there is one contribution I’d like to add and that is to refute two bizarre notions which seem to have gained some currency during the last week or so.

Firstly, it has been suggested that, irrespective of the quality or extent of the information he or she has, a minister cannot allege that a person was involved in a criminal act unless that person has had the opportunity of due process in a criminal court where the offence against him or her has been proved beyond reasonable doubt.

The second is that what Michael McDowell has done in his spat with Frank Connolly is unprecedented or somehow a dangerous precedent. Neither assertion stands up to close scrutiny.

There have been many precedents for a member of the cabinet doing something similar to what the Minister for Justice has just done. Firstly, Michael McDowell himself has done it before.

Last February, initially in a radio debate on Today FM and later in comments to other media, McDowell named Gerry Adams, Martin McGuinness and Martin Ferris as members of the IRA army council. He cited security briefings as the source of his information.

In doing so he was making a very serious charge of involvement in terrorist and criminal activity against a sitting Dáil deputy and two people elected to the Northern Ireland Assembly and the Westminster parliament.

However, notwithstanding the drastic nature of what he had done, McDowell’s action was met with general approval across the political spectrum (with the obvious exception of Sinn Féin) and was the subject of largely positive editorial comment.

The three men in question denied the allegation vehemently, but the minister persisted. Many people who now attack McDowell over what he recently said about Frank Connolly - including some in Fine Gael - applauded him last February for making this more serious allegation against Martin Ferris, Gerry Adams and Martin McGuinness.

Michael McDowell is not the only minister ever to put security information into the public domain. Bertie Ahern has also done this kind of thing.

Earlier this year, the Taoiseach made an even more dramatic allegation of criminal activity against both Adams and McGuinness - and again he cited security information as the basis for his claim.

Speaking on the radio news programme This Week last January, Bertie Ahern said it was his information that leading figures in Sinn Féin with whom he had been negotiating in the peace process must have known in advance about last December’s Northern Bank robbery.

The Taoiseach thereby accused them of advance knowledge of a very serious crime which not only involved the robbery of millions of pounds but also kidnapping and abduction. At times the Taoiseach’s remarks were typically disjointed, but among the phrases he used when talking about the robbery were the following: “I do think the information I have now is fairly extensive... it would be my assessment that the people I was talking to must have known... this was an IRA job. This is a job which would have been known to the leadership; this is a job which would have been known to the political leadership.”

In case there was any doubt who he was talking about, at the end of that section of the interview he confirmed that the people he was saying knew about the bank robbery were Gerry Adams, Martin McGuinness and Gerry Kelly. Again these three men strongly denied the Taoiseach’s allegation, but Bertie Ahern has not retracted it.

The occasions when security information or information gathered during a criminal investigation are put into the public domain other than during a court case have been rare, but it has been done and it is not solely a recent phenomena.

On May 6, 1970, the then Taoiseach, Jack Lynch, issued a press statement at about three o’clock in the morning informing the nation that he had sacked two of his ministers, Neil Blaney and Charles Haughey. Later that day, Lynch told the Dáil he had acted because security forces had informed him about an alleged attempt unlawfully to import arms from the continent.

THE Arms Trial crisis is one of the most controversial events in this country’s recent history and there are many different versions of what actually happened in the weeks leading up to May 6, 1970. However, it subsequently emerged that the then Fine Gael leader Liam Cosgrave, to whom word of the plot had been leaked by security sources, had informed Lynch about the matter a few hours before the Taoiseach sacked the ministers.

Mind you, some have suggested that Lynch was not surprised by what Cosgrave told him because he knew about it already from Peter Berry, secretary of the Department of Justice. Some have also contended that Cosgrave went to Lynch with the information about the arms importation plot only after he (Cosgrave) had unsuccessfully attempted to get two newspapers to print the story.

However, what is not disputed is that Lynch took the drastic step of sacking two cabinet ministers even though neither minister had been convicted of a criminal offence, or had the opportunity to avail of the due process which some now suggest must be extended before such an allegation can be made.

Later that month, Charles Haughey and Neil Blaney, together with three others, were charged with conspiring to import arms in contravention of the Firearms Act 1925. However, none of them was ever convicted. The charges against Blaney were subsequently dropped at district court level and the following October, Haughey and the other three defendants were acquitted.

To my mind, Lynch was right to sack Blaney and Haughey in May 1970 and to put the information he had about the alleged arms importation plot into the public domain.

To my mind, Bertie Ahern was right to put into the public domain the information he had about the Sinn Féin leadership’s advance knowledge of last December’s Northern Bank robbery.

To my mind, Michael McDowell was right last February to put the information he had about Martin Ferris, Gerry Adams and Martin McGuinness being on the IRA army council into the public domain. He was also right in recent weeks to put the information he had about Frank Connolly into the public domain.

Of course putting security information or information gathered from criminal investigations into the public domain outside of a courtroom should make us uncomfortable. There are times, however, when our democracy dwells in uncomfortable circumstances. A minister’s power to do it is not absolute, since he will rightly be held politically to account if his information is wrong or if he overstates it. This kind of thing should be done rarely, but sometimes it does need to be done.