Omagh inquiry raises doubts about legacy bill

Northern Ireland Secretary Chris Heaton-Harris announced an inquiry into the Omagh bombing last week, almost 25 years after the Real IRA attack that killed 29 people, and two unborn children, on 15 August 1998.

Although this was the worst death toll of the entire Troubles, the only person ever convicted of the bombing was released on appeal. Several other attempts at prosecution have since failed, though four men were held responsible in a civil case brought by families of the victims.

The new inquiry reflects longstanding concern that intelligence was available that could have prevented the bombing. In October 2021, the Northern Ireland High Court identified four issues which could give rise to a breach of the state's responsibility under Article 2 of the European Convention on Human Rights.

the handling and sharing of intelligence;

the use of cell phone analysis;

whether there was advance knowledge or reasonable means of knowledge of the bomb; and

whether disruption operations could or should have been mounted, which may have helped prevent the tragedy.

Kevin Fulton

Concerns about agent intelligence go back to a 2001 report by Policing Ombudsman Nuala O'Loan, who found that an RUC informant known as Kevin Fulton passed on information about dissident activities which should have resulted in further action. She nevertheless concluded that this would probably not have stopped the bombing.

The police response to the report described Fulton as unreliable, stating that significant parts of his information were wrong or implausible. It did acknowledge 'an unacceptable failure of procedures' in dealing with his reporting, but stressed this has had no relevance to the bombing.

David Rupert

A warning from another informant only became public in 2006.  This was David Rupert, an agent working variously for the FBI, the Garda and MI5. Rupert emailed MI5 on 11 April 1998 stating that dissident republicans were targeting Omagh. His information, was apparently acted on, but not passed on to the RUC. It is thought to have concerned a different cell from the one which carried out the bombing, but it has been suggested that it might have alerted police officers to the threat.

Detective Sergeant John White 

In 2002, the Policing Ombudsman told the Irish Government of allegations that the Garda had failed to pass on relevant intelligence. Detective Sergeant John White claimed that one of his informants had learned on 24 July 1998 that a car was to be stolen for a spectacular bombing. He alleged that Detective Chief Superintendent Jennings told him to allow the car to go through to Northern Ireland, in order to protect his informant.

A panel convened by the Irish Government rejected these allegations in the Nally Report, which suggested they were motivated by White's prior arrest in a separate investigation. A new inquiry about what Irish security forces knew is nevertheless under consideration.

GCHQ

Another piece of the jigsaw emerged in 2008, when the BBC's Panorama programme reported that GCHQ was monitoring the phones of the bombers. RUC Special Branch was allegedly told that the signals intelligence agency had missed the significance of key conversations on the day of the attack.

How public an inquiry?

The Omagh inquiry will clearly touch on very sensitive intelligence matters, and Chris Heaton-Harris warned that some of it in will not take place in public. His description of the process as an 'independent statutory inquiry' could be seen as a tacit admission that public inquiries as they were once understood have not existed since the Inquiries Act 2005. That legislation originated in wrangling over the Pat Finucane case, a Troubles killing in which state collusion has since been, to some degree, officially acknowledged.

It is significant that Heaton Harris chose not to refer the Omagh inquiry to the Independent Commission for Reconciliation and Information Recovery (ICRIR), to be established by the Northern Ireland Troubles (Legacy and Reconciliation) Bill currently going through Parliament.

He gave three reasons for this:

the ICRIR has been designed to consider cases that occurred before the Belfast Good Friday Agreement, that is 10 April 1998. It is a well established approach to distinguish between cases that happened before the Agreement and afterwards and I do not think we should change that approach now and the legislation setting the ICRIR up has yet to pass into law.

Secondly, an independent statutory inquiry is an appropriate forum for examining the large volume of national security sensitive information which the Court has deemed to be at the core of the question as to whether or not the bomb could have been prevented. A disclosure protocol will be agreed between the inquiry and all relevant partners to take account of the national security sensitive material involved in this case.

Thirdly, the inquiry will involve next of kin, and will be open to public scrutiny where possible.

The first of these is superficially the most plausible, but essentially arbitrary. If the ICRIR were a desirable model, it could easily be finessed given that the Agreement did not come into force until 1999, the year after it was signed.

The second issue, the volume of sensitive information involved, will surely arise in other Troubles-related cases. If nothing else, the Northern Ireland Secretary has provided an excellent reason why the Pat Finucane case should be dealt with by an inquiry rather than the ICRIR.

The third reason is the most troubling. Many cases that come before the ICRIR will involve next of kin, and most will warrant public scrutiny. After all, the mechanisms that will be replaced by the ICRIR include inquests, which are supposed to provide transparency to next of kin and the public. Given that the Northern Ireland Secretary has questioned the ICRIR's ability to do this for the Omagh families, it's hard to see why relatives in other cases are expected to have confidence in the Commission.

Chris Heaton-Harris has done the right thing by ordering an independent inquiry into the Omagh bombing. He should consider what the logic of that decision means for the legacy bill.