(by Ed Moloney, Sunday Tribune 21 April 2002)
Lawyers for the British government were apparently preparing a two-tier defence against civil litigation in the Republic over the Dublin and Monaghan bombs depending on whether the British government or individual soldiers and policemen were blamed for the attack, according to a confidential letter written by the British Treasury Solicitor's office to the Foreign Office which has been obtained by the Sunday Tribune.
While the Whitehall lawyers would have prepared a defence of "sovereign immunity" if lawyers for the dead and injured of the 1974 bombings had cited the British government as legally responsible, they would have taken a very different approach had individual members of the security forces been named in legal proceedings in the Dublin courts.
In those circumstances, named soldiers or other security force members in Northern Ireland alleged to have assisted or taken part in the attacks would have been disowned by the British who would, the letter says, condemn their involvement and say that the bombings "could not be regarded as an aspect of State activity". It appears from the correspondence that the British lawyers would probably have claimed instead that such security forces members were acting "on a frolic of their own", as the Treasury Solicitor's letter put it.
On the other hand, if the civil action was against the British government then, according to advice given by the government's Dublin legal advisers, the defence would be to dispute whether the Dublin courts had jurisdiction over the matter. This would have been a way of introducing the "sovereign immunity" argument.
Seen in a cynical light, the defence amounts to planning to hang individual security force members out to dry if they were the subject of legal action but shielding behind the controversial state immunity doctrine if the British government itself was targeted.
It appears that the British government's plan to disown the security force members was inspired by the so-called "Weir affidavit", a lengthy statement made by a former RUC officer and convicted murderer, John Weir which was cited by lawyers acting for the Dublin-Monaghan relatives. Weir claimed that the 1974 bombings were carried out by Loyalists who were assisted by UDR and RUC officers with the possible foreknowledge of military and police intelligence. He claimed that British intelligence knew the identities of the bombers within days of the deaths.
The Treasury Solicitor's letter is undated but was apparently written not long after October 14, 1999 by an official called Sean Martin to a Paul Berman who was a legal adviser to the Foreign and Commonwealth Office. The letter was hand-delivered to the Foreign Office, a possible sign of its sensitivity.
The text of the letter:
THE TREASURY SOLICITOR
Queen Anne's Chambers, 28 Broadway, London SW1H 9JS
DX 123242 St James's Park Direct Fax: 210 3410 Switchboard 0171 210 3000 (GTN 210)
Direct Line: 0171 210 3358
Mr Paul Berman
Assistant Legal Adviser
Foreign and Commonwealth Office
London SW1A 2AH
By hand
Please quote: L99/6410B/SEM/D1
Your reference:
Date: April 21, 2002
-
Dear Paul
RE: Irish Republic - 1974 Bombing
I enclose a copy of David Clarke's letter to me of 14 October and enclosures. Mr Clarke addresses our questions as to the scope of sovereign immunity and whether we should nominate solicitors to accept service of any proceedings.
As to the availability of sovereign immunity in the present circumstances, it may be that we will face an argument that the members of the scurity forces alleged to be involved in the bombings were not acting in accordance with 'government policy' and cannot therefore benefit from the defence. In the McElhinney case, the Court accepted that Williams, the British soldier, was 'acting within the sphere of governnental or sovereign activity'. Similarly, in Schmidt, the Court appears to have accepted that the act of the officers were ones of 'policy of a government and did not lie in the commercial arena.'
The question may be whether the relevant persons can be said to have acted 'on a frolic of their own': see page 16 of the Schmidt transcript. If there was evidence that members of the security forces had assisted or been involved in the 1974 bombings, we would presumably argue that such involvement was condemned by the British government and could not be regarded as an aspect of State activity. We may need to consider how we would wish to defend proceedings where individual soldiers are named as defendants, and the possibility that the claimants might be able to pursue proceedings against individual soldiers but not the British Government.
Mr Clarke advises that we nominate McCann Fitzgerald to accept service of any proceedings, subject to an express statement that we dispute jurisdiction. Mr Clarke points out that there may be some doubt that such a qualification will operate in all circumstances, but concludes that the practical advantages of nominating slicitors is considerable. I agree with that advice. If the claimants intend to serve individuals as well as British government departments, it would be easy to see communication difficulties arising.
I should be grateful if you would let me know how you would like to proceed.
Sean Martin
for the Treasury Solicitor
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