RESTRICTIONS ON DISCLOSURE OF INFORMATION (Hansard, 12 May 1999)

§ Dr. Godman
I want to impress on my right hon. Friend the Minister of State my view on the relationship of subsection (2) to subsection (1). I am running the risk of sounding heavy handed in respect of the commissioners, but the provision of information to members of a victim's family must be treated with extreme sensitivity. Subsection (2) states: Subsection (1) does not prohibit the disclosure to members of a victim's family of— (a) the fact that relevant information has been provided to the Commission". I have no quarrel with that, but it adds: (b) the place where, according to the information, the victim's remains may be found. A number of Northern Ireland Members have made the point that the IRA is more than capable of supplying disinformation in such matters. The subsection refers to where the victim's remains may be found. It is important that the disclosure of such information is handled with sensitivity so that the hopes of a victim's family are not dashed because the remains of their loved one are not found where the information claimed that they were located.
The families have a right to such information—that goes without saying—but this whole question must be handled with extreme sensitivity in case the IRA gets up to its vicious games of disinformation. I make that plea to my right hon. Friend on the issue of the location of victims' remains.

§ Rev. Martin Smyth
I appreciate the hon. Gentleman giving way on that point, because I raised it earlier. The Minister said that the money will have been well spent if 365 a body is found, but the harsh reality is that money could be wasted. I share the hon. Gentleman's concern that a relative's expectations that a victim's body has been found may be raised, and such information should not be released until we are sure of a body's location.

§ Dr. Godman
My concern, which the hon. Gentleman mentioned, is that the interests of the families are not damaged. To my mind, the question of cost—speaking as a Back Bencher, not as a Minister—is inappropriate, if not irrelevant, in such cases. I agree with him that, if the family can be contacted only when the evidence is definitive concerning the location of their loved one—

§ Mr. Maginnis
I am grateful to the hon. Gentleman for giving way, because he may wish to consider a point arising from that. Clause 5 states: No relevant information provided to the Commission shall be disclosed to any person", but we should project that proviso to a situation in which information is provided on which action is taken, only to discover that it is inaccurate. Are we not to be told, as members of the public, that the very families for whom the Bill is designed—so we are told—are being held to ransom by the tendering of false information?

§ Dr. Godman
That is a fair comment. Given the terrible suffering of the families over many years, they may be willing to gamble, but let me give the hon. Gentleman an example.
I spoke to a young woman whose father was abducted in Crossmaglen. His car was found south of the border. That young woman told me that neither she nor anyone else in her family has any idea of where her father's body may lie. My suggestion may be entirely inappropriate, but might not it be better to contact the family once the body has been found? That may be difficult—after a few years, the identity of a body may require verification, perhaps through personal possessions such as a wedding ring or a wallet found on it—but, in my view, the family could best be approached when verification was sought through personal possessions found on or near to a body.
I know that my right hon. Friend will take my views on board as a genuine attempt to help the families in such circumstances. We must avoid, at all times, the raising of their expectations only for them to be dashed by the authorities themselves.

§ Mr. Hogg
I should like to explore with the Minister the exact extent of the prohibition on the disclosure of information. I go back to the point on which I have already addressed the Committee—on eight or nine occasions, according to the Under-Secretary. He was exaggerating a trifle, but no matter.
If we are to have such a procedure, we must safeguard the right of the accused. In the early part of the debate, the Under-Secretary told my right hon. Friend the Member for North-West Cambridgeshire (Sir B. Mawhinney) that the commission would pass information on to the police, or to the prosecution authorities, who would communicate that information to the defence, if they believed that it was of value to the defence.
I want to be absolutely certain that nothing in clause 5 prohibits the process of communication between the commission, the prosecution and the police, and 366 subsequently to an accused person or to an accused person's lawyers. I am perfectly well aware that the phrase "relevant information" is narrowly defined in clause 1(3). On one interpretation of clause 5, there is nothing to prevent the commission from communicating information to the prosecution authorities—whether they be the police or the prosecution services—and thereafter to the defence, if that material is helpful to the defence.
That is a perfectly proper interpretation of clause 5, but there is another: the commission cannot communicate information to the police or to the prosecution services other than for the purpose of facilitating the location of the remains. I suspect that that is the wrong interpretation, but we need the Minister's guidance. We want the commission to be able to give more information than that.
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> If the Under-Secretary's assurance to my right hon. Friend the Member for North-West Cambridgeshire is to have any value, the commission must be able to communicate to the prosecution authorities, and then to the defence, material that may be helpful to the defence in asserting the defence. We must be sure that nothing in clause 5 prohibits that. I do not think that there is anything, but we need a specific assurance on that point.

§ Mr.Öpik
I am surprised by the right hon. and learned Gentleman's concern, because the Bill is clear cut. I am not sure why he is concerned because, having read the Bill, I am not. I have tried to understand his concern, as he has expressed it repeatedly. The Bill seems pretty self-explanatory, but then I am not a lawyer.
I slightly take issue with the hon. Member for Greenock and Inverclyde (Dr. Godman). The important point is that, if I were in the position of the families of "The Disappeared", I would want to know that information had been disclosed which could lead to the discovery of a body, even if eventually that hope were dashed. I would feel robbed of that hope if I were not given that information. The hon. Gentleman made a fair point, and it is difficult to empathise with the families given the stress that they are under, but I think that in their position I would ask to be kept informed, even if it turned out that the information was wrong. To that extent, I think that this provision is reasonable.

§ Mr. William Ross
The clause provides quite a lot of protection for the murderers, in that it prohibits the disclosure of the identity of the persons who are providing the information. I should be grateful if the Minister would confirm that that is so. It also protects those who may have killed, as evidence that may come forward by association with the informant will also not be available. It does not tell us who is to recover the body. It provides that members of the victim's family can be informed of the approximate site of the buried remains. Will the servants of the commission or the police carry out the recovery? We should be told.

§ Mr. Ingram
We do not know the extent or the nature of the information that will be given to the commission; that is in the hands of others. We are not in receipt of that information; we have not seen its colour or shape, even at this stage. The commission will take receipt of the information, and its main function will be to facilitate the 367 location of the remains. It does not have the means to recover the remains, so it will pass the information to the appropriate authority, which will be the RUC or the Garda Siochana.
The Garda Siochana may not have the necessary expertise. Specialist excavation equipment may be required, or the use of Army personnel or specialist technicians. We can only speculate on that. That is why the Bill refers to agents, and gives everyone protection. The commission will receive information and pass it to the appropriate authority. The RUC or the Garda Siochana will recover the remains if they have the resources. If they have to call in special expertise, they will do so because the objective is to recover the remains.
Running parallel with that is the need, as my hon. Friend the Member for Greenock and Inverclyde (Dr. Godman) said, to handle the matter sensitively. We have been closely involved with the families to try to understand what they want, which is early information. It would be wholly wrong if information were leaked and the media were ruthless—although I hesitate to use that word. Their interest is in the dissemination of news, not the sensitivities of the families. If they got hold of the information, they would make it headline news immediately, perhaps before the families received it. The commission must be quick to give the families the information that it has to hand, to tell them what has happened and to keep them up to speed with all the processes.
The people who will undertake the excavation will also have a responsibility. I can speak only for the RUC, but I know that the Garda Siochana will also operate sensitively and will be aware of the need to assist the families through the process.

§ Mr. Hogg
I am sure that the right hon. Gentleman will come to the point that I made shortly, so I shall not trouble him with that, but I want to touch on the point that he is making now. For understandable reasons, there is a prohibition on the giving of information that may distress the families. I do not see in the Bill any method for enforcing that prohibition. Disclosure, which is not authorised, but is indeed prohibited, under clause 5, is not an offence. What would happen if it became apparent that a member of the commission or, more likely, a third party communicated to the press information that should not be communicated by reason of the prohibition? There is no means in the Bill to take action against that person.

§ Mr. Ingram
That was referred to on Second Reading. I appreciate that the right hon. and learned Gentleman did not participate in our examination of that possibility. If it was an agent of the Crown—a police officer or a member of the Ministry of Defence—who revealed the information and we were aware of that, that person would be the subject of disciplinary proceedings. Right hon. and hon. Gentlemen often proudly tell us that they have received leak from Government sources. That is stealing, and if they have received a leak from someone in the Northern Ireland Office or the RUC, that person is in breach of regulations. If the person's identity were made known to the Government, or to the Chief Constable if it was an RUC officer, we would be obliged to act under the disciplinary code.
368 We cannot prevent every eventuality. We hope that those who act in the name of the Governments understand the sensitive nature of the information. The prime purpose of the legislation is to protect the interests of the families, and to give then comfort and uccour. If information given by the IRA is used to exploit the situation and to make the RUC or the Garda Siochana look foolish, that would come to light very quickly. What publicity benefit would the IRA gain from that?
We could spend a long time trying to think of various eventualities. I have not done so, because I do not know what information will be provided. We may not be given any more information than that the remains are at site X. The commission then has an obligation to disclose it. The minute the information is passed to the RUC, if it discovers that it is relevant to a case in which there is a defence interest, under existing legislation it is obliged to make it available to the Director of Public Prosecutions and to go through the process that we have discussed at length. That is the chain through which the information will be made available.

§ Dr. Godman
My intervention is prompted by the thought that, ideally, it would be better for the authorities to tell a family that they had disinterred a body that they believed to be the remains of their son, father or brother and that they required some form of identification, such as dental records.
A few years ago, two friends of mine were swept off a trawler in the Arctic and were drowned. Their bodies were eventually dragged up by a Russian trawler. The authorities told my friends' widows, "We believe that we now have the bodies of your husbands, but we require certain identification—for example, dental records." Once that identification was forthcoming, the bodies were returned to the United Kingdom, and the two men were given Christian burials.
Surely it would be best for the authorities to approach a family saying, "We have found a body, and we genuinely believe, on the basis of information that we have received, that it is the body of your loved one".

§ Mr. Ingram
We should be careful not to present ourselves as experts. None of us have really been through the process. I understand my hon. Friend's analogy, but the way in which he says that this should happen could be seen as prescriptive. The commission has already been given an onerous task, as have those working alongside it to help families. I referred earlier to the need for an inter-agency approach. All the necessary agencies are now in place: whatever information is required—social work support, access to dental records or access to DNA testing—all the Northern Ireland departments are there to provide it, and to deal with any eventuality.

§ Mr. Thompson
Will the Minister confirm that the commission can give relatives only two pieces of information? It can say that it has received information, but not what that information is; and it can say where a body is located.

§ Mr. Ingram
In one sense, that is strictly true. Restrictions are placed on the commission. We must be careful about discussing such matters on the Floor of the House, because families will obviously want to know the 369 precise position in relation to certain aspects of the Bill. We do not know what questions those families will raise, and we do not know what demands will be placed on the commission, but the clause restricts the commission by preventing it from giving evidence that would work against other clauses in the Bill. That is specific; and then there is all the handling not just of the commission, but of those involved in working on the site and those—representatives of either the Garda Siochana or the RUC—who are keeping the families closely involved in the process.

§ Mr. Hogg
I do not think that the Minister's reply to the hon. Member for Greenock and Inverclyde (Dr. Godman) is accurate. The prohibition clause refers to "relevant information", which is defined in clause 1(3) as information as to the whereabouts of the remains of a victim of violence". That is what is prohibited. I should have thought that it would be open to the commission to give the family of the deceased information about how the deceased died, because that is not "relevant information" as narrowly defined in clause 1(3). It is possible, however, that the phrase "No relevant information", for the purposes of clause 5, has a meaning different from that defined in clause 1(3). My substantive question is this: can the commission give information to the police and the prosecution authorities on, for instance, the manner of death?

§ Mr. Ingram
I do not know how the commission would have information about the manner of a person's death unless information of that nature was given to it. It would not establish the criteria.
I may have misunderstood the right hon. and learned Gentleman—I hope he will forgive me if I have—but he referred to the commission in the context of the manner of death, and the where and the when. That information will emerge from the inquest, which is public, and is not the commission's responsibility. It will emerge later, once the remains have been found. It will then become the property of the family of the deceased, and of anyone else who has a similar interest. All that the commission can impart to families is that it has information, and the place where the victim's remains may be found.
As my hon. Friend the Member for Greenock and Inverclyde implied, the sensitivity of the matter means that we should not be too prescriptive or explore the situation too deeply. To do so would place a terrible onus on the commission. It would not want to close the door on families, but I do not think that they should be given more information. There are words of comfort that those who are part of the overall operation may think it helpful to offer, but any provision would have to be very narrow and restrictive. I cannot begin to speculate on what such a provision could be. We must be restrictive about the information that the commission can impart so that our provision does not conflict with other elements of the Bill.

§ Mr. Hogg
What the Minister has said so far has a good deal of substance, but will he address the point that I put to him earlier? If the commission had information about, for instance, the manner of death which might help the defence, would it have the right to communicate that 370 information to the prosecution authorities and, through those authorities, to the accused and the lawyers of the accused? That is the argument that the Under-Secretary presented to my right hon. Friend the Member for North-West Cambridgeshire (Sir B. Mawhinney).

§ Mr. Ingram
The commission is different from the RUC. The RUC would know that a court case was in progress, and that relevant information was involved. That is a duty placed on the RUC in this part of the criminal justice process. The knowledge base, as it were, would not necessarily reside with the commission. There might be awareness, in which case the commission would be covered by other legislation. It would then have to examine what it was entitled to do and what it was restricted in doing, and—as the right hon. and learned Gentleman knows—would have to comply with all the law of the land, not just the legislation with which it was having to deal in that instance.
I do not envisage circumstances in which the commission would necessarily know that a court case was in progress in the High Court, and the information would be relevant. The RUC would quickly become aware of the information, because it would be passed to it so that it could take the necessary action to recover the remains. Let us not discuss whether that would happen within minutes, within hours or within days, but it would happen very quickly. As I said earlier, we must bear in mind the possibility of leaks to the media. The commission must get the whole operation under way quickly, and the victims' families must be notified and advised as soon as possible.
I hope that that answers the right hon. and learned Gentleman's question. I will read what he said; I do not know whether he said it eight, nine or 10 times, but my hon. Friend the Under-Secretary said that we would consider it carefully, and that we would return to it if that proved necessary. However, we do not believe that the arguments advanced by the right hon. and learned Gentleman force us to do so.

§ Mr. Thompson
Does the Minister agree that, because of the severe limitations, the families are likely to be very disappointed at how little information they receive? Does that not go completely contrary to the recent Macpherson report on the death of Stephen Lawrence, where the police were severely criticised because they did not feed as much information as possible to the relatives?

§ Mr. Ingram
I think that we are chewing over the matter somewhat. The hon. Gentleman is not having to deal with the families—please do not say that the families might be disappointed. They find themselves in traumatic circumstances. Some of them have been subjected to false hopes before.
I have tried to explain the sensitive way in which the matter will be handled. I have much confidence in those who are acting in the interests of the Governments in this case to deal with all that. The professionalism of those who have to deal with the matter has stood the test of time and should not be subjected to the implied criticism that the families will be disappointed. I ask the hon. Gentleman please not to discourage the families any more than is necessary.

§ Mr. Thompson
It is a matter not of questioning anyone's competence, but of the law and of the legal 371 requirement as to how much information the families can receive. That is the issue, not whether the people involved are professionals.

§ Mr. Ingram
The hon. Gentleman has not tried to amend the legislation to increase the amount of information given. Perhaps that is because he accepts the arguments. We now have an argument for argument's sake. The clause specifically deals with the legalities, sensitivities and practicalities of the matter. I have set out how we are handling it, taking an inter-agency approach to try to ensure that we have worked out every possible eventuality, so that, from minute one, we are ready to act to help the families. I have every confidence that that will happen. On that basis, I commend the clause to the Committee.