HL Deb 24 May 1999 vol 601 cc678-713

5.50 p.m.

House again in Committee on Clause 2.

Lord Tebbit moved manuscript Amendment No. 3A:

Page 2, line 34, at end insert— ("( ) No order may be made under subsection (5) unless the Secretary of State is satisfied that all witnesses giving evidence to the Bloody Sunday Inquiry will be guaranteed anonymity.")

The noble Lord said: As I was abroad last week and, therefore, unaware of the accelerated progress of the Bill, I was unable to table this amendment until this morning. So it is a manuscript amendment. For the convenience of the Committee, I shall read through the wording of my amendment, which reads: Page 2, line 34, at end insert— ("( ) No order may be made under subsection (5) unless the Secretary of State is satisfied that all witnesses giving evidence to the Bloody Sunday Inquiry will be guaranteed anonymity")".

My amendment is about justice. It is about justice in Northern Ireland. I know that my noble friend Lord Campbell of Alloway objects to it, not because he is against justice but because this is a somewhat untidy way, to a lawyer's mind, of legislating to achieve justice. However, if untidiness is the price that we have to pay for justice, it is a price that I, at least, am willing to pay.

The Bill before us now is about "The Disappeared" and about sheltering from justice those responsible for the disappearances, provided that they reveal the locations of the bodies of those whom they murdered. I should say in passing that I hope that General Pinochet is not receiving copies of the Hansard reports of our debates. Surely to contemplate the differing standards of treatment given to the friends of this country and the enemies of this country would be a cruel and unnatural punishment.

The renewed inquiry into the events of so-called "Bloody Sunday", some 30 years ago, can be described either as a sop to the IRA, or as something akin to the recovery of the remains of "The Disappeared"—an effort to discover the truth about what happened on that day and to understand how the deaths were caused—in order to give satisfaction to the bereaved of that day.

Let us accept that second explanation, for it brings this most closely into a parallel with the Bill. Then let us contrast the protection given to deliberate, sadistic murderers—that is, the IRA—and to soldiers who were trying to do their duty in extremely difficult and dangerous circumstances. Almost all of those soldiers—indeed, perhaps all of them—are now retired from the Army. Many are married with families. A good number married Northern Ireland girls from either side of the religious divide. Those wives have borne children. As I said, they have families. Some of their families are living in areas which are still effectively controlled by the IRA; that is to say, areas where punishment beatings and other sanctions against those who offend the IRA are still being carried out.

I hesitate to prejudice the safety of those wives and families by even referring in too great a detail to the links which some of them have with Republican families. But I know of at least one case regarding a former soldier. He is expecting to be called to give evidence and he has every reason to fear for the safety of his family, should his identity become known.

What are we to do about such people? Unless those men are granted anonymity, the IRA will be given, by courtesy of the Government, a hit-list of victims. Perhaps I may remind Members of the Committee that the IRA is still fully armed; indeed, not a gun, a bullet, or an ounce of semtex has been given up. It is still fully operational and, as Ministers know, it is still engaged in reconnaissance and preparation for the resumption of hostilities should it not gain its way. It is still in control of what it calls its "areas" and its "people".

Today, the legal status of the military action, which is being taken in Serbia, is still somewhat unclear to me. The airmen who are carrying out the policies of the Government, and who inadvertently kill innocent civilians in Serbia and in Kosovo, are given anonymity. Whoever programmed in error the missiles with the address of the Chinese Embassy is protected. Those concerned killed innocent civilians, but their names are not to be known. Whether it is because there is a fear that reprisals might be taken against them or whether that decision has been taken merely on the principle that their names should not be given, I do not know. Why are the Paras to be treated differently from the IRA or our soldiers and our airmen who are carrying out the Government's instructions today? What message will this inquiry give to those soldiers and airmen who are today fighting on behalf of Her Majesty's Government and who may be fighting in far more dangerous circumstances at some time in the future? Will their anonymity be taken aside when it suits the Government?

My amendment would not in any way affect this Bill, unless the Government choose it so to do. Indeed, there would be no change to its provisions. There is nothing in it about the location of bodies nor about the protection against justice for the terrorists. It is very simple: it merely requires that Her Majesty's Government treat our soldiers with at least part of the courtesy and the respect which they give to the IRA. I beg to move.

6 p.m.

Viscount Cranborne

I asked my noble friend Lord Tebbit whether he would allow me to group my Amendment No. 13 with his manuscript amendment. I am glad to see that he nods his head and confirms that that is so. I hope therefore that the Committee will allow me to speak not only to his amendment but also to my Amendment No. 13. I hope that the Committee will approve of that because, quite apart from anything else, it should save a little time.

During the course of some of the remarks that I ventured to make on Amendment No. 1, which stands in my name, I detected a feeling—this was expressed most strongly by the noble Lord, Lord Redesdale—that I had been gratuitously offensive to the Government. I hope that I made it clear that the last thing in the world that I wanted was to make any personal remarks about the noble Lord, Lord Dubs, for the reasons I explained. My charge against the Government is not that they are nasty, but that they are too nice. They are too nice to deal with gangsters, whether they be in the Balkans or in Northern Ireland. After all, I venture to suggest with the greatest of respect to the Minister, that prolonged exposure to the niceties of parliamentary procedure and the way we conduct our politics here is not a good preparation for dealing with cut-throats. If I may say so, that is greatly to the credit of the Government.

As I rise to support my noble friend's amendment, I feel most strongly, for the reasons he explained, that what is sauce for the IRA goose should certainly be sauce for the parachutists' gander. I shall not repeat my noble friend's remarks in which he made a connection between the two cases, as I believe that that connection was perfectly clear.

My amendment is not as specific as that of my noble friend. Had I not had the opportunity to group my amendment with that of my noble friend, I would have said that Amendment No. 13, which gives the power to anyone who applies to the commission to force the commission to disclose the name of any person providing relevant information to the commission, was directed at exactly the same spot as my noble friend's Amendment No. 3A. If the Minister had been so kind as to give the same amount of protection to the former British soldiers who will be forced publicly to give evidence under their own names to the noble and learned Lord, Lord Saville, I would have withdrawn my Amendment No. 13.

I hope therefore that the Minister will recognise—as my noble friend said—that the Government, like all of us, pay tribute to the extraordinary gallantry and courage of the people we in this Parliament send to do difficult and dangerous jobs on our behalf. No one is more forward in paying that tribute than the noble Lord, Lord Dubs. However, I have to say that those words are often belied—I am afraid I do not except Conservative governments from this accusation, any more than I do Labour ones—by the substance of what governments commit. Under the circumstances which my noble friend has described, it is inevitable that those who served in Northern Ireland for 30 years of the Troubles, those who are still serving, and indeed those who are about to serve, will wonder whether the words which governments of both persuasions have poured on to our Armed Forces in tribute are words that are meant when it comes to the point and when political expediency dictates the opposite.

If my noble friend's amendment fails, we should be aware that whatever the rights and wrongs of Bloody Sunday, it is perfectly possible that the noble and learned Lord, Lord Saville, will find that the Parachute Regiment is innocent—I know that that is not a fashionable point of view, but it is perfectly possible that it could be innocent—in which case innocent people would be exposed (particularly those who live in the Province) to the kind of dangers that my noble friend enumerated. If it is found guilty, the sin would be just as great because it is not for us to rely on the IRA to exact its own particular kind of retribution. We must hope that any punishment that is meted out—or is thought right to be meted out—should be according to the law of this land rather than the law of the gun and the armalite.

For all those reasons, I hope that the Government will realise that they are not playing in the play-pen of Westminster where a standard gavotte is danced—and thank goodness it is. We are dealing here with the world of gangsters, just as we are in the Balkans. For those who want to defend the liberties which this Parliament has historically defended, that requires the kind of tough-minded approach which I fear governments of both persuasions have failed to show. It is by being nice rather than by being nasty that we deliver ourselves into the hands of the terrorists.

Lord Merlyn-Rees

I agree with the purpose of the manuscript amendment moved by the noble Lord, Lord Tebbit, which seeks to give anonymity to those who appear before a judicial inquiry. However, my concern is that governments have not yet intervened in Northern Ireland in the procedures followed by a judicial inquiry. I suspect that my noble friend will say that there is a great difference between the commission, where the rules can be laid down by Parliament, and telling a judge how to run his inquiry. Therefore, as much as I want to see anonymity granted to the Parachute Regiment and to any other soldier, I believe that my noble friend may have to recommend that the manuscript amendment should not be accepted.

Lord Elton

Does the noble Lord accept that law made by Parliament provides anonymity to victims of, for instance, rape? There is nothing unusual in what is proposed.

Lord Merlyn-Rees

I was coming to ways in which we could circumvent the provision. I am grateful for the noble Lord's comments. I should know that in the House of Lords there are others who are knowledgeable about this subject. I shall proceed. The purpose of the manuscript amendment is to provide a means whereby the soldiers of the Parachute Regiment can gain anonymity. I hope that my noble friend will describe to the Committee means by which anonymity can be provided for the soldiers of the Parachute Regiment in the inquiry into Bloody Sunday. So much flowed from Bloody Sunday; the parliament of Northern Ireland was ended by a Conservative government as a result of what happened in that and other incidents.

I ask my noble friend what he can offer us in this regard. What can he tell us can be done? Could rules which provide anonymity be laid down for the judicial inquiry? Even Amendment No. 13 provides that anyone can appeal to the commission to ask for informants' names to be disclosed. I would not walk around Northern Ireland for long if I had asked for such disclosure. We place those people in great danger also. That is the nature of Northern Ireland; it is a place apart, which is not to be confused with this part of the United Kingdom in this respect. Some 3,000 people have been killed over a period of 25 years. Governments of all persuasions have failed in one sense to overcome the problems in Northern Ireland. I hope that my noble friend the Minister will suggest means by which that can be done because such is the purpose of the amendment. People such as myself support it emotionally, even though we may not be able to support it in practical terms.

Some of us have emotions about this matter. My father was a private soldier in Dublin an 1916. When I was studying Irish affairs in school, my father said to me, "I realise what a mess the British Government made of it in 1916, by executing the mutineers''—or whatever is the correct word. Thirty or 40 years later on an airfield in Naples, when shelling or anti-aircraft fire was causing problems, and I considered that I had not joined the Royal Air Force to be in that sort of position, the Catholic padre said to me, "The Irish problem wouldn't have existed if it had not been for 1916". I said to the padre, "The last thing I'm worried about at the moment is what happened in Dublin in 1916".

Governments of all persuasions can make mistakes. I have always worked on that assumption. Holiness about Irish affairs ill becomes any politician on this side of the water. However, I believe that the principle, if not the precise amendment, put forward by the noble Lord, Lord Tebbit, should have the support of the Committee. I ask my noble friend the Minister to be positive and to say what can be done to protect persons giving evidence before the inquiry.

Lord Molyneaux of Killead

What has been said thus far should convince all of us that when governments of any complexion institute inquiries, they ought to get right before they begin the ground rules of what might be called the "standing orders" for the protection of all concerned. I know that philosophy would not appeal to my noble and learned friends but, as a layman, that seems prudent and a necessity to me.

The main thrust of the Bill is to avoid publication of the identities of some who are murderers and who are known to be murderers, with the object of protecting terrorists from the due process of law. The purpose of the amendment proposed by the noble Lord, Lord Tebbit, which I am happy to support, is to preserve confidentiality with regard to the names and addresses of all witnesses giving evidence to an inquiry, thereby protecting such witnesses from assassination by terrorists. There is not a shadow of doubt that that would be the outcome unless we can avoid the trap into which the inquiry has got itself.

The noble Lord the Minister will probably maintain, rightly, that the present rules may not empower Her Majesty's Government to implement the amendment. In the past, governments have employed what one might call "fast-track" procedures. Shortly after I was honoured to enter your Lordships' House, it spent a great deal of time discussing and eventually approving the European Convention on Human Rights, which has a provision to remedy a defect within 48 hours. I respectfully suggest—as did the noble Lord, Lord Merlyn-Rees—that we would all support the Minister if he could give an undertaking that there is the possibility of providing, by some legal method, protection for those who will unfortunately be in the front line, whether they are proved innocent or guilty.

6.15 p.m.

Lord Mayhew of Twysden

I endorse the remarks of the noble Lord, Lord Merlyn-Rees, about the likely consequences for witnesses who have given evidence without the benefit of anonymity in some circumstances. I endorse also the comments of my noble friend Lord Tebbit about the inevitable perception that will flow because of the contrast between the protection offered under the Bill and that withheld in the case of the Bloody Sunday Inquiry. I add a small gloss: not only is anonymity to be withheld but the evidence that has to be given without the benefit of anonymity will in all circumstances have to be given in the city of Londonderry. It does not need the experience of the noble Lord, Lord Merlyn-Rees, or other of your Lordships to know the dangers to which that will give rise.

I have always greatly regretted that it was said by all sides when the inquiry was announced, by way of justification, that it is essential to get at the truth. Most of your Lordships realise that one cannot get at the truth after eight years, let alone 28 years. What one can get at is whether or not evidence has been presented that could sustain a prosecution, given that the burden of proof rests on the prosecution. A tribunal could say that the prosecution's case was made or that the evidence was not sufficient. We are told that the inquiry is to get the truth.

There will be a stark contrast between the carefully honed, beautifully dove-tailed statements in evidence which, if not instigated by the IRA, will at least have been rehearsed by the IRA. Those who are called to give evidence and who were in the Armed Forces—and that goes far beyond the Parachute Regiment—will have time and time again to say, "It is too long ago. I do not remember. Somebody who could vindicate what I say is dead or is not available". Day after day, the media will be drawing attention to that contrast. In the eyes of some of the media, it will be a question of whether or not British soldiers have proved themselves innocent—something impossible to do and which in our jurisdiction, fortunately, no one is called upon to do.

As the rationale of the immunity afforded under the Bill is that one cannot expect people to come forward and give information unless they are given anonymity, among other protections, similarly an enormously heavy burden rests upon the shoulders of the noble Lord, Lord Dubs, who we all so greatly respect in seeking to argue against the case that has been made.

It was perfectly possible—it remains perfectly possible—to instruct the tribunal that evidence shall be given with the benefit of anonymity. That instruction should have been given before and it could be given now. If that takes a bit of time, I would still support the amendment. It can be overturned in another place or be got rid of in some other way, if the necessary procedures to secure the same result can be achieved through the workings of ministerial channels.

Earl Attlee

I am grateful to my noble friend Lord Tebbit for moving the amendment with his usual clarity and vigour. His key point is that retired and serving members of Her Majesty's Forces and others will be exposed to unnecessary danger. That applies especially to persons who live in the Province in peace.

We need to make progress tonight, so I shall not weary the Committee with a detailed speech. I fear that the Minister will be unable to explain why, when giving information to inquiries and commissions, terrorists will enjoy anonymity while members of Her Majesty's Forces and others will not. The Minister will say that anonymity is essential if the commission is to obtain the information that it desires. Surely information is all that the Bloody Sunday inquiry requires as well. If my noble friend is minded to test the opinion of the Committee, I and my noble friends will support him.

Viscount Brookeborough

I support the amendment. Apart from the fact that evidence will be given, on the one hand, by soldiers and, on the other hand, by terrorists, there are other great differences between the two groups. The people who will come forward to give information about the bodies will be either murderers or associates of murderers who were involved in the killing of people and the disappearance of their bodies. They are, if you like. very much on the ball in that particular game. The soldiers should obviously have anonymity. Any inquiry will want to interview soldiers who were widely dispersed from the events of Bloody Sunday—they may have been drivers who delivered soldiers to the scene two hours before the event or they may have been taking food to soldiers throughout the day—and an incredible number of people will be interviewed who were simply not associated with the action on the ground, every single one of whom will be exposed. We must have an amendment such as this if we are to expect our soldiers to carry out their duties again.

The inquiry will be based on whether at the time a soldier reacted in circumstances in which he believed people's lives were under threat. It may be discovered that one or two soldiers over-reacted, but we cannot expose every soldier who took part in Bloody Sunday and who is alive today. We must give anonymity. I support the amendment.

Lord Vivian

I strongly support the two amendments. I think the Committee is aware that I am deeply disturbed by the Bill. I patrolled the streets of Belfast in I973 and 1974. If I had had to explain the provisions of the Bill to my soldiers, I would have found it very difficult. The Bill can only damage the morale of our servicemen, especially in relation to the inquiry chaired by the noble and learned Lord, Lord Saville. By disclosing the name of any person providing relevant information to the commission, there is some likelihood of building up a case against murderers. However, I must stress, as have some of your Lordships, that to allow anonymity to the IRA or to those providing relevant information and to reject it for those members of the Armed Forces who were carrying out their duties and who may be witnesses in the Bloody Sunday inquiry, is nothing but scandalous.

It is especially so in this shameful inquiry when the security services have already stated that any witness who is named will face a significant terrorist threat. If the Government are to allow anonymity for the IRA, only one conclusion can be drawn: that the Government are prepared to protect the IRA and yet sacrifice the lives of our servicemen. If the amendments are put to the vote, I shall support them.

Lord Redesdale

I am grateful for the fact that the two amendments are grouped together. I had slight difficulties with Amendment No. 13 which, without the clarification, I believed was a wrecking amendment which went to the heart of the Bill.

We on these Benches have considerable support for the idea of anonymity for those giving evidence to the inquiry. However, the problem with the amendments is that they deal with an entirely different situation from that set out in the Bill and perhaps should be brought forward in a different format. Therefore, we cannot support the amendments.

Lord Elton

The issue seems simple. The Bill as drafted offers almost certain security from prosecution for known terrorists and something approaching the certainty of a death sentence for people who were trying to protect Her Majesty's subjects.

Lord Glentoran

I have to declare an interest as a former Para. I spoke strongly against the setting up of the new inquiry into Bloody Sunday. At the time I warned the Government that it would cause them nothing but trouble. I ask the Government to think about what will happen if we do not achieve anonymity for those giving evidence and one or two or more are murdered by the IRA. What about their families? I support the amendment of my noble friend Lord Tebbit as a mechanism for gaining anonymity for those expected to give evidence to the inquiry chaired by the noble and learned Lord, Lord Saville.

Lord Dubs

Perhaps I may deal, first, with Amendment No. 3A. The inquiry under the noble and learned Lord, Lord Saville, is totally independent of the Government. I have a difficulty in that I cannot comment on its proceedings or its decisions. If the Government were to dictate how the inquiry should be conducted, we could no longer maintain that the inquiry was totally independent.

Lord Swinfen

Perhaps the noble Lord will allow me to intervene. If Amendment No. 3A is passed and becomes part of the Bill, and assuming that the Bill is passed into law, would not the judge conducting the inquiry have to follow the dictates of the law as passed by Parliament and therefore grant anonymity?

Lord Dubs

The answer is probably not; he would not. It is an independent inquiry. Another outcome of passing Amendment No. 3A would be this: the amendment would not place a duty on the Saville Inquiry, but would prevent the commencement of the commission's task; the commission to be set up under the Bill would be unable to start its work. That may be the intention of some of your Lordships but, taking the speeches at face value, which I always do, it seems to me that the more likely outcome would be that the commission would not proceed.

Perhaps I may draw the Committee's attention to another point. I understand that last Friday some paratroopers requested a judicial review of the decision of the Saville Tribunal. That is still pending. I tried to find out a few minutes ago whether the court had reached a decision; I understand that it has not. That is a further difficulty. I am not saying that we are barred from discussing the matter, but there is a difficulty in that the Paras have adopted a course of action that they would normally be advised to adopt in the circumstances in which they find themselves. The Government will let that particular process take its course. We cannot tell the noble and learned Lord, Lord Saville, how to conduct his inquiry, but I am sure that he will quickly be made aware of the arguments used in the Committee today.

I am afraid that I cannot help. I wish that I could be more helpful to my noble friend Lord Merlyn-Rees who asked for guidance on the matter. I am afraid I cannot be helpful. I have stated the Government's position. My answers are determined by the independence of the inquiry and the legal action initiated by the Paras.

Perhaps I may turn to Amendment No. 13, which would reverse the intended outcome if it were taken at its face value. The Committee will be aware why this amendment is also unacceptable to the Government. It would negate the purpose of the Bill. Those with direct information about the locations of victims' remains will not come forward if there is a possibility that their identity will be disclosed. I am sure that the noble Viscount, Lord Cranborne, is aware of the argument because he took part in the Second Reading debate when the argument was deployed.

I see no reason why those with indirect information—perhaps an intermediary, which is conceivable—should have their names publicly known unless they are happy for that to be the case. The Committee will be aware that the Attorney-General has already given an undertaking—

Viscount Cranborne

I am most grateful to the noble Lord for giving way. I am delighted to hear that he sees no reason why conveyers of information should want their names to be known. How would he feel if he were a former Para? Would he not feel exactly the same way?

Lord Dubs

I do not think it is appropriate for me to comment. It is an independent inquiry. I am quite sure that the Paras and their legal representatives can speak for themselves. The whole point of an independent inquiry—I am sorry to labour the point—is that the Government do not seek to influence the procedures or the outcome of the inquiry. That is the position the Government adopt and that is the position that I am endeavouring to explain to the Committee. I am sure that the Committee understands it and accepts it.

Lord Tebbit

I may be wrong in this matter but I believe that the original Widgery Inquiry into these events was an independent inquiry and had a requirement to give anonymity to those who gave evidence. Did that suddenly make it not independent?

Lord Dubs

No. I bow to the noble Lord's memory of the details of the Widgery Inquiry. But that was an independent inquiry. It came to one conclusion as to the basis on which evidence would be given to it and the Saville Inquiry has come to a different conclusion as to the nature of the procedures under which Paras or their representatives give evidence. It is as simple as that. They are both independent and they are acting slightly differently from each other.

Lord Molyneaux of Killead

I apologise for interrupting the noble Lord. Is he saying that one government can give terms of reference to an inquiry which they establish and another government can give a different set of terms of reference and guidelines to an inquiry? Can there be a contradiction or is there—I hope that noble Lords who are learned in the law will forgive me for my ignorance—a standard set of terms of reference for all inquiries?

Lord Dubs

As far as I am aware, there is not a standard set of terms of reference. Each inquiry that is set up by any government is treated on its merits in terms of the procedures under which it will operate. It so happens that the Saville Inquiry has decided to operate in a particular way.

Viscount Brookeborough

I am probably being naïve about this but perhaps I may ask a question. On the one hand, the Minister says that the Government cannot interfere with this inquiry because it must be independent. Is it not true that with regard to the criminal law and terrorist events the judiciary is independent? I am not quite sure what gives the Government the power to provide anonymity to terrorists within the terms of the Bill when they do not have the power to suggest that the commission should do this in secret. I do not understand.

Earl Attlee

I have to confess that I failed to declare an interest as a serving officer in the Territorial Army. The Minister said that the amendment would stop the commission from being set up. That may be the case, but the Committee is right to explore the inconsistencies between the commission and the inquiry. Furthermore, my noble and learned friend Lord Mayhew explained to the Committee how the amendment could be disposed of if it were agreed to today.

Lord Dubs

I have almost lost the thread of the various comments that were made, so I apologise if I do not deal with them fully. Perhaps I may return to Widgery. As far as I have been informed, the Government did not indicate at the time that Widgery was to operate in a particular way. The method of operation of the Widgery Inquiry was determined by Widgery himself. It was as much out of the Government's powers to influence as it is out of the present Government's powers to influence the nature of the Saville Inquiry. I hope that that helps.

Would the noble Viscount, Lord Brookeborough, mind repeating the point he made so that I can do justice to it? I apologise for having lost the thread of his point.

Viscount Brookeborough

How can it be that the judiciary of this country is independent of the government of the day yet the Government are prepared to interfere by directing that no evidence that is obtained or might be obtained as regards the discovery of the bodies may be used in a criminal court to obtain a conviction? They have directed that. Yet when the commission is simply a commission of inquiry, the Government, although they have the power to give it guidelines along which it must work, appear not to be willing to direct that the people giving evidence may do so anonymously. Is it a fact that in law or constitutionally they may not do so?

Lord Dubs

At one level, the noble Viscount asks a deeply philosophical question. I am not sure that this is the appropriate time for me even to endeavour to answer it even were I capable of doing that or qualified to do it, which I am not sure that I am. This Bill affects criminal procedures. It is not concerned with the independence of the judiciary. The Bill simply lays down certain elements to do with how criminal proceedings might arise or the basis of the evidence on which they might arise. Those are set down in statute. It is the rule of law in so far as if Parliament chooses to pass the Bill it determines how a particular commission will operate and how the courts would operate in relation to evidence that might come before them.

Lord Carrington

I have some knowledge of this subject as it so happens that I was Secretary of State for Defence at the time of Bloody Sunday. I remember very well the problems and horrors as a result of it. The noble Lord will have heard the feeling of the Committee on this subject. He is—I am sorry for him in a way—in a rather lonely situation. May I ask him this direct question? Do the Government believe that these soldiers should have anonymity? If they do not believe that, they should do nothing. If they believe that they should have anonymity, they should do something about it.

Lord Dubs

The Government do not have a view on that.

Noble Lords


Lord Dubs

The Government do not have a view on the way in which the noble and learned Lord, Lord Saville, is conducting his inquiry. But, as I said earlier, some of the Paras themselves have initiated judicial review proceedings precisely on this issue. Even if the Government had a view, it would surely be proper for the Government to await the outcome of the judicial review proceedings before even commenting. But in any event it is not appropriate for the Government to comment in such instances. I give way to the noble Baroness.

Baroness Park of Monmouth

I am sorry to interrupt the noble Lord and I thank him for allowing me to intervene. I wish to make two points. First, is there any reason why, independent though the inquiry is, the Government should not say to the noble and learned Lord, Lord Saville, "This is the effect of the decision you have made at a time when it is particularly offensive that there should be this double standard"? Surely there is nothing to prevent the Government from putting that fact before him and leaving him to consider it. Secondly, it seems entirely wrong that the only thing that should have been done should have been done by the Paras. Something should have been done by the Government, as my noble friend Lord Carrington said.

Lord Dubs

The noble Baroness puts me in yet another difficulty. All I would say is that, given the strength of feeling expressed in this debate, it is inconceivable that the noble and learned Lord, Lord Saville, would not be made aware of what had been said and that he himself would not consider the arguments that have been put forward. That surely is the proper way forward—for the noble and learned Lord, Lord Saville, to take into account what has been said in the House in a debate of this kind. I do not think it is useful for me to add much to that.

Lord Marlesford

I wish to ask the Minister a very simple question. Does he agree that the decision to set up the inquiry into Bloody Sunday was a political decision? It was not a judicial decision to set it up. At the time that political decision was made, did the Government not take account of the issue of anonymity? The noble Lord says that the Government now have no view on anonymity. It is inconceivable to me that that was not one of the issues that was considered in deciding whether or not to have such an inquiry at all.

Lord Dubs

The question was asked: Why did the Government set up this inquiry? The Government felt that it was proper to do so and that it was proper that the inquiry should be independent. The inquiry is under way and I really do not think that it would be helpful for me to get into the realm of speculation. I am not aware of all the detailed discussions that may or may not have taken place within government at the time the inquiry was set up. I do not know in how much detail that was considered, or whether it was simply felt, "Let Lord Saville himself decide how best to conduct the proceedings"—

Lord Swinfen

In an answer to the noble Viscount, Lord Brookeborough, a few minutes ago, the noble Lord the Minister said that once this Bill is passed, any evidence gathered when the remains were found could not be used because the provisions would be in statute. Earlier in this debate I asked the noble Lord whether, should this amendment be passed into the Bill and should the Bill become law, that would not become binding on the judge carrying out the inquiry. The noble Lord the Minister said "no". Why is statute predominant in one case and why does statute not dominate in the situation that I suggested? Surely they are both the law of the land and therefore the judge undertaking the inquiry would have to do what the law of the land said at the time.

Lord Dubs

I would ask the noble Lord to read the wording of the amendment standing in the name of the noble Lord, Lord Tebbit. Perhaps it would be helpful if I read it out, because I think it gives the answer. The amendment says: ("( )No order may be made under subsection (5) unless the Secretary of State is satisfied that all witnesses giving evidence to the Bloody Sunday Inquiry will be guaranteed anonymity".) The onus is on the Secretary of State to be satisfied before taking further action; the onus is not on the noble and learned Lord, Lord Saville, to behave in any particular way, if this amendment were to be passed.

I think that is very clear. It is surely the intention that the noble Lord, Lord Tebbit, had in mind when he put down his amendment. It was never intended to insist that the noble and learned Lord, Lord Saville, should behave in a certain way even if we had the power to do so. It was intended to put a constraint on the way the Secretary of State acted.

Viscount Brookeborough

May I ask one last question? Am I right in saying that the commission may possibly reveal a criminal act on the date of Bloody Sunday? If it does, would not that become a judicial issue? Under the circumstances, does not the Minister agree that there should be anonymity, in exactly the same way as there is to be for the Provisional IRA with regard to the bodies? However, it will then be too late: they will already have lost their anonymity in the inquiry.

6.45 p.m.

Lord Dubs

I am not sure that I can make any new point in answer to the noble Viscount's question. Let me restate what I said earlier: the amendment does not place any duty on the inquiry to grant immunity. It is as straightforward as that. It places a duty on the Secretary of State in relation to what she has the power to do, but it does not impose any duty on the inquiry. Perhaps I may say, to be as helpful as possible, that the inquiry was set up because there appeared to be new evidence about the events of 30th January 1972. The Government decided to set up the inquiry. They also decided that the best way to investigate the matter would be by way of an independent judicial inquiry. That is what is happening.

To conclude my remarks, which deal with the substance of Amendment No. 13, one needs to ask what effect the amendment would have on the Bill before us. The amendment has a very wide scope and it would allow anyone to ask the commission for the names of the persons from whom it has received relevant information. A commission would be required to disclose that information, regardless of whether the person seeking it has a legitimate interest. Further, I would say to the noble Viscount that one needs to know to what legitimate use the information would be put. The information given to the commission will not itself be admissible in criminal proceedings. I believe that the arguments to justify both amendments contain serious weaknesses and that the implications of our passing them are serious. I believe that the amendments ought not to be accepted and I invite the Committee to reject both amendments.

Lord Mishcon

Before the noble Lord the Minister sits down, I believe that I am the only person speaking from these Benches so far—I beg your Lordships' pardon, I am wrong; I believe that there was another speaker who I am sure said things much better than I shall say them. However, I believe that the sentiment of the Committee has been expressed in a way which is very clear; namely, that a duty is owed to the Paratroopers about whom we have been talking. There is no doubt about that.

From these Benches, speaking only as an individual and having no other right, I would have thought it was unanimous that justice should be done so far as those Paratroopers are concerned. When you talk in terms of justice, you talk in terms of justice that would be administered by a judge in charge of the inquiry. There is nothing—would my noble friend not agree?—to stop counsel, who undoubtedly will be appearing for those Paratroopers—indeed, we understand that lawyers have already been engaged on an application for judicial review—from making a submission at the very start of the inquiry that anonymity should be granted. That is the way to proceed, I respectfully suggest, with faith in the judge to have precisely the same views of fairness as this Committee has.

Lord Dubs

I thank my noble friend for that information and the answer is, yes; he is absolutely right. I should like, if I may, to add one or two further comments because I believe there are questions which I have not answered as fully as perhaps I might have done. The noble Baroness, Lady Park of Monmouth, asked whether the Government should not have taken the necessary steps to bring about a judicial review of the procedures. Only the Paras really have the necessary standing to bring about a judicial review. The Government have no standing in respect of that decision at the inquiry.

Perhaps I may also make it clear that if Parliament decided—Parliament being sovereign—that it wanted to change the law, it could put any specific duty on an inquiry that it wished. These amendments do not do that: that is my point. However, the Government believe that it is better for the inquiry to be independent and to be free to decide for itself how it operates. That is the Government's position. Of course, it is perfectly possible for Parliament to think otherwise and to put forward specific legislation for this or any other inquiry. I hope that Parliament would not he so minded. I give way to the noble Viscount.

Viscount Cranborne

I am grateful to the noble Lord. I understand that the Committee wants to get on. However, the noble and learned Lord, Lord Saville, has already said in answer to inquiries that he is not minded to do what the noble Lord, Lord Mishcon, suggested. That of course adds to our anxieties.

Lord Dubs

So far that is what he has said, but there is of course the judicial review process and the noble and learned Lord, Lord Saville, might change his mind if he felt so inclined. That is why I said that, of course, he would take note of the debate which has taken place in the Committee this afternoon. The Government's position is clear, and I would urge the Committee to reject both amendments.

Lord Tebbit

I should like, first, to express my gratitude to all those who have taken part in the debate on these amendments and, most particularly, if I may say so, to the noble Lords, Lord Merlyn-Rees and Lord Mishcon, for making plain their feelings about this matter although they feel they cannot follow me into the Lobby this evening—for I will undoubtedly seek to divide the Committee on this matter.

Let me emphasise that it is not just the soldiers who will be put at risk. Soldiers are used to being put at risk and they do not complain too much about it. It is when their wives and their children are put at risk that they complain. We know that those given protection under this Bill as it stands are murderers to a man, or to a man and a woman perhaps.

We also know that, even if the soldiers in this inquiry under the noble and learned Lord, Lord Saville, are shown to be lily-white and innocent as new-born babes, once their names are known to the IRA they will be on a hit list.

Lord Redesdale

I apologise for intervening. The noble Lord has indicated that he intends to divide the Committee. As a consequence, will the Long Title of the Bill also have to be altered?

Lord Tebbit

I believe that on matters of that kind we should defer to the judgment of the Clerks of the House and others rather than the noble Lord.

The noble Lord, Lord Dubs, for whom I have every sympathy—he finds himself in a very exposed and difficult position this evening—told the Committee that it would not have been possible to give instructions on these matters. I find that pretty incredible. As a former Secretary of State, before I appointed anyone to conduct an inquiry, I would discuss with that person the manner in which he would conduct it. If I was not satisfied that that inquiry would be carried out in an appropriate manner in my judgment, I would not accept it.

The argument that the noble and learned Lord, Lord Saville, cannot be told is pretty thin. The noble Lord the Minister has just said that, if Parliament enacted a provision that these witnesses should be given protection, they would be. If this amendment were to be carried, that would be an option for the Government. The noble Lord shakes his head but that would be so, and I have every reason to believe that the Opposition would not obstruct a measure to that effect.

I believe that it was the noble Lord, Lord Shepherd, who suggested it was inevitable that, if the amendment in the name of my noble friend Lord Cranborne was accepted, it would be reversed in the other place, so there was no point in carrying it. I am fairly sure that, if my amendment is accepted this evening, it will be reversed in another place. But the noble Lord, Lord Dubs, also advanced the argument that the noble and learned Lord, Lord Saville, would hear what had been said in the Committee this evening and would undoubtedly take it into account. Quite so. I believe that he would especially take it into account if he could see from the Division list that those who had voted for this amendment vastly outnumbered those who had voted against it. The noble Lord shakes his head, but even the noble and learned Lord, Lord Saville, might be more impressed by people going through the Lobby than people on the Benches nodding their heads sagely. That is the only way that we can give him the flavour of the views of the Committee. Therefore, seek the opinion of the Committee.

6.53 p.m.

On Question, Whether the said amendment (No. 3A) shall be agreed to?

Their Lordships divided: Contents, 114; Not-Contents, 126.

Division No. 2
Abercorn, D. Lucas, L.
Addison, V. Lucas of Chilworth, L.
Ailsa, M. Luke, L.
Allenby of Megiddo, V. Lyell, L.
Anelay of St. Johns, B. McConnell, L.
Astor of Hever, L Mancroft, L.
Attlee, E. Marlesford, L.
Beaverbrook, L. Masham of Ilton, B.
Belhaven and Stenton, L. Massereene and Ferrard, V
Biddulph, L. Mayhew of Twysden, L.
Biffen, L. Mersey, V.
Birdwood, L. Miller of Hendon, B.
Blatch, B. Milverton, L.
Bledisloe, V. Molyneaux of Killead, L.
Boardman, L. Monro of Langholm, L.
Bowness, L. Monson, L.
Brabazon of Tara, L. Montrose, D.
Bridgeman, V. Morris, L.
Brookeborough, V. Mountevans, L.
Brougham and Vaux, L. Moynihan, L.
Burnham, L. [Teller.] Munster, E.
Buscombe, B. Napier and Ettrick, L.
Cadman, L. Northesk, E.
Caithness, E. Nunburnholme, L.
Carew, L. O'Cathain, B.
Carnegy of Lour, B. Oxfuird, V.
Canington, L. Palmer, L.
Chalfont, L. Park of Monmouth, B.
Clark of Kempston, L. Pearson of Rannoch, L.
Coleridge, L. Pilkington of Oxenford, L.
Cooke of Islandreagh, L. Platt of Writtle, B.
Cope of Berkeley, L. Rathcavan, L.
Cox, B. Rawlings, B.
Craig of Radley, L. Reay, L.
Cranborne, V. Rennell, L.
Darcy de Knayth, B. Ridley, V.
Davidson, V. Roberts of Conwy, L.
Denham, L. St John of Fawsley, L.
Dixon-Smith, L. Seccombe, B.
Dunleath, L. Shaw of Northstead, L.
Elton, L. Skelmersdale, L.
Fookes, B. Stewartby, L.
Gardner of Parkes, B. Strange, B.
Glentoran, L. Strathcarron, L.
Harding of Petherton, L. Strathclyde, L.
Harlech, L. Suffolk and Berkshire, E.
Henley, L. [Teller.] Swinfen, L.
Higgins, L. Tebbit, L.
HolmPatrick, L. Thomas of Swynnerton, L.
Hooper, B. Trumpington, B.
Howe, E. Vivian, L.
Kinnoull, E. Wade of Chorlton, L.
Laming, L. Walker of Worcester, L.
Lauderdale, E. Weatherill, L.
Lawrence, L. Westbury, L.
Leathers, V. Wharton, B.
Leigh, L. Young, B.
Acton, L. Archer of Sandwell, L
Addington, L. Avebury, L.
Ahmed, L. Bach, L.
Alli, L. Barnett, L.
Amos, B. Bassam of Brighton, L.
Berkeley, L. Lockwood, B.
Blackstone, B. Lofthouse of Pontefract, L.
Blease, L. Longford, E.
Borrie, L. Lovell-Davis, L.
Bragg, L. Macdonald of Tradeston, L.
Brooke of Alverthorpe, L. McIntosh of Haringey, L.
Brookman, L. Mackenzie of Framwellgate, L
Brooks of Tremorfa, L. McNair, L.
Burlison, L. McNally, L.
Carter, L. [Teller.] Maddock, B.
Christopher, L. Mallalieu, B.
Clinton-Davis, L. Merlyn-Rees, L.
Cocks of Hartcliffe, L. Meston, L.
Crawley, B. Mishcon, L.
David, B. Molloy, L.
Davies of Coity, L. Monkswell, L.
Davies of Oldham, L. Morris of Castle Morris, L.
Desai, L. Morris of Manchester, L.
Dholakia, L. Murray of Epping Forest, L.
Dixon, L. Newby, L.
Donoughue, L. Nicol, B.
Dormand of Easington, L. Peston, L.
Dubs, L. Pitkeathley, B.
Evans of Parkside, L. Ponsonby of Shulbrede, L.
Evans of Watford, L. Prys-Davies, L.
Ewing of Kirkford, L. Ramsay of Cartvale, B.
Falconer of Thoroton, L. Randall of St. Budeaux, L.
Farrington of Ribbleton, B. Razzall, L.
Geraint, L. Rea, L.
Gladwin of Clee, L. Redesdale, L. [Teller.]
Glanusk, L. Rendell of Babergh, B.
Goodhart, L. Richard, L.
Gordon of Strathblane, L. Richardson of Calow, B.
Goudie, B. Rogers of Riverside, L.
Gould of Potternewton, B. Sainsbury of Turville, L.
Grenfell, L. Sawyer, L.
Hanworth, V. Scotland of Asthal, B.
Hardy of Wath, L. Sefton of Garston, L.
Harris of Greenwich, L. Sewel, L.
Harris of Haringey, L. Shepherd, L.
Haskel, L. Simon, V.
Hayman, B. Simon of Highbury, L.
Hilton of Eggardon, B. Stone of Blackheath, L.
Hogg of Cumbernauld, L. Symons of Vernham Dean, B.
Hollis of Heigham, B. Taylor of Blackburn, L.
Howie of Troon, L. Thornton, B.
Hoyle, L. Thurso, V.
Hughes, L. Tordoff, L.
Hughes of Woodside, L. Uddin, B.
Hunt of Kings Heath, L. Walker of Doncaster, L.
Islwyn, L. Warner, L.
Janner of Braunstone, L. Watson of Invergowrie, L.
Jay of Paddington, B. [Lord Privy Seal.] Wedderburn of Charlton, L.
Whitty, L.
Williams of Elvel, L.
Jeger, B. Williams of Mostyn, L.
Jenkins of Putney, L. Winchilsea and Nottingham, E.
Judd, L. Winston, L.
Kennedy of The Shaws, B. Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

7.2 p.m.

Clause 2 agreed to.

Clause 3 [Admissibility of evidence in criminal proceedings]:

Lord Molyneaux of Killead moved Amendment No. 4:

Page 2, line 35, leave out ("not")

The noble Lord said: I shall curtail my remarks in view of the progress on the Bill still to be made.

Amendments Nos. 4 and 5 seek to transform into positive form a clause which is at present wholly negative. The entire clause is an affront to the rule of law of the United Kingdom. It amounts to the suppression of facts, blatantly informing Her Majesty's judges that they must suspend the principles of justice to placate those known to the intelligence service as terrorists, some of whom would be guilty of murder and worse.

Subsection (1)(b) adds to the offensive provision by asserting that, any evidence obtained (directly or indirectly)",

may not be admissible. That would appear to place any court in the position of being challenged to prove that indirect information stemmed from the operation of some part of the Bill. I suggest that the court would be placed in an impossible position.

Amendment No. 6 is linked with Amendments Nos. 4 and 5. As if the cover-up provisions of Clause 3(1) were not enough, giving as it does immunity for persons who were possibly connected with the torture and murder of their victim, there is an absolute ban on the disclosure of information which might expose them to prosecution. But then subsection (2) guarantees that, although information may not be made known to the authorities, it will be made available for the defence if the accused for any criminal offence considers that the information might assist in his defence. As drafted, Clause 3 protects an accused from evidence obtained but provides him freely with such evidence, rigidly withheld from the courts, if he feels that disclosure would assist him in escaping justice. I beg to move.

Lord Dubs

Clause 3 provides the first key protection for relevant information provided to the commission. It is a fundamental principle of the Bill that no one should be disadvantaged by the giving of information to the commission. After all, the purpose of the Bill is to provide a mechanism which will facilitate the provision of information about the whereabouts of the remains to the commission so that the many, many years of suffering endured by the families can finally be brought to an end.

If we were to legislate in the way suggested by the noble Lord, Lord Molyneaux, in Amendment No. 4 without the necessary protection which this clause provides, it is certain that information would simply not be forthcoming. It is for that reason that I cannot accept the first of this group of amendments. It would negate the purpose of the Bill.

On Amendment No. 5, we believe that it is essential in securing the confidence of those who hold the information about the location of the victims' remains to impose the evidential restrictions set out in Clause 3. As I have stated, without this assurance it is likely that no relevant information would be forthcoming.

The amendment would render evidence inadmissible only in criminal proceedings relating to these victims. I can understand the intention of the noble Lord, Lord Molyneaux, in tabling this amendment and his reasons for doing so but, in our view it would undermine the inadmissibility protections to such an extent that those with the information would refuse to come forward, thereby again negating the purpose of the Bill.

I bring Members of the Committee back to the underlying principle of the Bill: that no one should be disadvantaged by providing relevant information to the commission about the location of these remains. Some noble Lords no doubt find the limited protections in Clause 3 at the very least regrettable. But I hope that they will agree they are an essential requirement if we are to achieve the desired purpose of the Bill. For that reason, I cannot accept Amendment No. 5.

Having resisted those amendments, I also urge the Committee to resist Amendment No. 6. I am sure that the noble Lord, Lord Molyneaux, would not wish to prevent information which could acquit an innocent person from being adduced in criminal proceedings. I am afraid that that is the risk if Amendment No. 6 were to be accepted. I should also point out that Clause 3(2) is based on a similar provision in the decommissioning legislation which Parliament has, of course, approved.

1 hope that in the light of that, the noble Lord will feel able to withdraw the amendment.

Lord Molyneaux of Killead

As the Minister pointed out, Amendment No. 6 in particular was designed to draw attention to the anomaly that, whereas protection could be given to murderers by withholding or concealing information, if the same murderer discovered that it would be to his advantage for the information to be disclosed, presumably even in open court, he has the option of doing so.

I cannot conceal my disappointment. However, in view of the fact that all three of my amendments run counter to the Bill as debated in another place and thus far in this Chamber, I have no option but to withdraw the amendment.

Lord Fitt

I associate myself with the amendments moved and spoken to by the noble Lord. I realise that we cannot have a vote. The time for that has passed. But I wish to associate myself with those amendments.

Baroness Farrington of Ribbleton

Those amendments are not before the Committee. It is not possible for noble Lords to speak to an amendment unless it is put before the Committee. I understand that those amendments have not yet been moved.

Amendment, by leave, withdrawn.

[Amendments Nos. 5 and 6 not moved.]

Clause 3 agreed to.

Clause 4 [Restrictions on forensic testing]:

Baroness Park of Monmouth moved Amendment No. 7:

Page 3, line 15, after ("inquest,") insert ("or to satisfy any legal requirement arising on or connected with possible claims under legislation relating to compensation,")

The noble Baroness said: This is a brief amendment to attempt to make some use of the Bill. I recognise that, as the Minister said in another place: The post-mortem report will usually be read out in open court and questions put to the pathologist".

However, it is not clear under what circumstances it may be used. I note also that the Minister, when rejecting the clause on compensation put forward in the other place by Mr. Lembit Öpik said: the families of persons whose remains were recovered would not fall within the compensation scheme because of the three-year time limit".

But he also said: We have asked Sir Kenneth Bloomfield to undertake a detailed examination of the compensation scheme and its fitness for its purpose".—[Official Report, Commons, 12/5/99; cols. 363–75.]

I tabled the amendment to ensure that should changes in the law of compensation be made which could favour these unfortunate families, the right to information relevant to compensation would already appear on the face of the Bill. It is particularly important since the review is taking place now.

However, I have one concern on which I should be glad of reassurance from the Minister. Sir Kenneth. Bloomfield is reviewing the existing compensation scheme and has acquired, as part of his excellent work on his report We Will Remember Them, a considerable knowledge of the problems of victims, including those of the Disabled Police Officers' Association on whose behalf I shall be approaching both the noble Lord and the Minister for victims in the near future.

Now Sir Kenneth has been named as one of the two commissioners charged with dealing with the IRA on the question of the location of victims, can the Minister assure us, first, that his new task will not place such a burden of work on him that the review of compensation and much else that he is doing for victims, not just for families, will be shelved or seriously delayed? Secondly, can he assure us that his new task will not be held to disqualify him from working for victims in general on grounds of conflict of interest?

Finally, I wish to remind the noble Lord, whose genuine concern for the families and victims of terrorism we recognise, that under Article 5(5) of the Convention on Human Rights, which is part of the Human Rights Act 1988: Everyone who has been the victim of arrest or detention in contravention of the provisions of this article, the right to liberty and security, shall have an enforceable right to compensation". That should surely apply to the family where the victim is no longer alive to make any claim. I beg to move

Lord Redesdale

I have put my name to the amendment. I realise that as the review of compensation procedures is now taking place, the Minister may not be able to give us any reassurance on the future provision of compensation for victims' families. As I spoke on the subject on Second Reading, I wonder whether the Minister can indicate any movement as regards compensation for the families? Can he give an assurance that if compensation is available he will make every effort to supply it to the families, considering that during the past few years they have suffered intimidation and threats if they talked about their loved ones?

Lord Molyneaux of Killead

I support the wisdom of the noble Baroness, Lady Park, and agree with what has been said by the noble Lord, Lord Redesdale, in identifying a serious gap in Clause 4. She and I know from long experience that flaws in compensation legislation are too numerous to catalogue. Endless complications, totally unexpected, are a common feature in nearly all such cases. Those engaged in litigation will demand much more than meaningless phrases such as "it is believed that" or "there is reason to assume". There must be something more specific because such phrases will be of no avail. Only verifiable facts will suffice. Those facts can be obtained only under the headings of paragraphs (a) to (f). However, the Bill as it stands would suppress such information. Like the noble Baroness, Lady Park, I take the view that there is an unanswerable case for the adoption of her amendment and I strongly support it.

7.15 p.m.

Lord Dubs

The noble Baroness's amendment cannot be accepted by the Government for two reasons. First, it undermines the likelihood that the Bill will result in the remains of victims being located. Secondly, it would not in fact assist the families should they wish to make a claim for compensation.

The purpose of the Bill is to find the remains of victims and to end the suffering of their families. As I said during our Second Reading debate, achieving that aim is a delicate balance, but our starting point for the limited protections at Clauses 3, 4 and 5 of the Bill is that no one should be disadvantaged by the giving of information to the commission. Clause 4, therefore, places restrictions on forensic testing on the remains of the victims and items found during the search.

The noble Baroness's amendment would widen the circumstances in which forensic testing could be conducted. It would allow the families to commission testing for the purpose of making a claim for compensation. I shall turn in just a moment to why I do not believe that the amendment would assist the families.

My fundamental difficulty with the amendment is that it would make it very unlikely that information would come forward. It would enable testing to take place outside the confines of the inquest process, with the attendant risk that information other than that necessary for the inquest would be discovered and disclosed. That cuts across the principle that no one should be disadvantaged by the giving of information to the commission. It defeats the purpose of the Bill and it is self-defeating because, if the location of the graves are not found, there would be no remains or items on which to conduct tests.

I have considered carefully the practical benefit to the families should this amendment be accepted. But I can find none. The issue of compensation arises in two ways: through the statutory scheme and through the possibility of civil proceedings.

During our Second Reading debate and in another place, the Government have said that they believe that the families are time-barred from receiving compensation under the statutory scheme. The ability to conduct forensic testing would not alter that position given that the date of death would be a matter fully aired at the inquest. Extra testing would not be necessary. In any event, the ability to commission tests would not be relevant to a claim under the statutory scheme, even if the time limits did not apply.

It may be open to the families to commence civil proceedings if other information is available to them and if the courts are willing to use their discretion to waive time limits. I do not see, however, how this amendment would assist the families in any such civil action. They will already have available to them the inquest findings and are free to use them in civil proceedings. This amendment does not seek to widen the information which might be gained by the families from forensic testing.

Under this amendment, forensic testing remains limited to the information available at the inquest; that is to say, the identity of the victim and how, when and where he died. The amendment is aimed ultimately at compensation, but the amendment would not help to establish the identity of the persons responsible for the killing and it would not therefore assist the family to establish against who an award of compensation should be made. More fundamentally, without an idea of the identity of the person responsible, there would not be a defendant against whom proceedings could be brought.

I was asked about the possibility that Sir Kenneth Bloomfield might suggest changes to the statutory compensation scheme. Yes, that would enable the people claiming under the terms of the Bill to benefit from any changes in the compensation scheme suggested by Sir Kenneth and brought into effect. I was also asked about the many responsibilities placed upon Sir Kenneth Bloomfield. I understand that he is happy to take on the role of commissioner and that it would not in any way be detrimental to his review of compensation. In other words, Sir Kenneth Bloomfield is happy that he will not be over-burdened by his new responsibility.

For the reasons I have given, I hope that the noble Baroness will feel able to withdraw the amendment with the assurance that the inquest findings are available to the families.

Baroness Park of Monmouth

I shall withdraw the amendment, particularly in view of the lateness of the hour. But I am deeply disappointed by the Minister's response. I had hoped he would say that the Government would take steps to change the compensation laws. That may be what he meant when he suggested that Sir Kenneth Bloomfield may recommend it. I hope that that means that the Government would listen to him favourably. But it seems to me that it would not be asking too much to have that assurance given to us because this is an important issue. We are totally debarred from advancing the interests of the families because of the other issues involved in the Bill. That no one should benefit but the evil ones seems to me quite wrong. I hope that the Minister will be able to ensure that we have a positive statement of support from the Government on the issue of compensation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 4 shall stand part of the Bill?

Lord Molyneaux of Killead

I regard Clause 4 as the core of this extraordinary measure. It is made all the more alarming by the remarks of the Northern Ireland Minister, Mr. Ingram, in another place. When asked about the dangers of setting an undesirable precedent, in response to a question from one of his own Back-Benchers, the Minister said: there are no such things as absolutes. We are dealing with a sensitive and difficult subject which we must address in the best way available to us. As for setting precedents, the Bill deals with a specific set of circumstances and it is not for me to determine".—[Official Report, Commons, 10/5/99: col. 38.] He went on to say that he could not give an assurance that this Bill would not be built upon by others at some stage in the future.

We have already seen how Ministers have used non-traceability of weapons legislation as a precedent for this clause. Will this Bill in turn, which is much wider and more objectionable than the weapons model, be used as a means of doing the will of criminals and terrorists in the future?

In addition, I must draw attention to the absence of any safeguards against what one might call vexatious claims in regard to the location of remains. I know that terrorists' code-words are in fairly common use in contacts between certain authorities. I do not doubt that in the course of the secret bargaining between the aforementioned MI6 and Sinn Fein/IRA, some thought may have been given to the opportunity for cheating. For example, if the foundations of the waterfront building or a section of a busy motorway, as has been referred to earlier, are alleged to be the burial place of remains, will expensive explorations be initiated? Will the families involved be informed? It would seem to me to be the depth of cruelty for families to be given false information and then have to wait for a long time before they know whether the claim or the information can be substantiated.

Finally, in regard to identification of remains, will the Minister inform us—and I am sorry to bounce this on him—whether the testing of remains will include DNA testing? Unlike the general run of forensic investigation, DNA would provide the only certain means of convincing families that the remains were really those of their own loved one.

Viscount Cranborne

I rise briefly to ask a question additional to those which the noble Lord, Lord Molyneaux, has posed. Will the Minister tell the Committee what would be the position of the commission and, indeed, the instructions to the commission were it to turn out, as a result of forensic testing, that the information and forensic tests would put the authorities in a position to clear an innocent person who had already been convicted? Is there enough latitude in the Bill to permit that or would a vow of silence be maintained on that matter?

Lord Monson

Perhaps I may put one question to the Minister before he replies to my noble friend and to the noble Viscount. Clause 4 prohibits the families of victims from carrying out or commissioning forensic tests to ascertain whether, for example, their loved ones had been tortured or where they were imprisoned before being murdered. Let us suppose that one or more of those families, after the Bill becomes law, says in effect, "To hell with the Act. We will go ahead with our investigations whatever the Act may say". Will they be committing a criminal offence? I imagine not, because no penalties are laid down in the Bill and I cannot recall ever coming across a criminal offence where no penalties for transgression are specified? Perhaps the Minister will tell me either whether I am correct in my assumption or whether I am mistaken and if so, exactly how I am so mistaken.

Lord Fitt

The noble Lord, Lord Molyneaux of Killead, has brought to the notice of the Committee a question which is disturbing many people in Northern Ireland. This Bill is referred to as the Location of Victims' Remains Bill. I understand that at the beginning, it was suggested that it should be called the Location of Bodies Bill. Where are those bodies going to be? As the noble Lord, Lord Molyneaux of Killead, said, they may be under a stretch of motorway or a major building. In fact, the noble Lord will know that in today's press in Northern Ireland, rumours are circulating that a major road outside the city of Belfast has beer built on some of those bodies.

The noble Lord, Lord Molyneaux of Killead, has quite rightly referred to the fact that the location of the bodies may be pointed out by the IRA, and it may be an extremely inaccessible location. Will the Government bear the expense of shifting whatever needs to be shifted or using whatever machinery is necessary to bring those bodies from where they are at present to give them back to their loved ones?

One can readily understand that if the IRA, the terrorists, brutally tortured their victims and killed them, they will not be very concerned about giving them a decent burial, even by IRA standards. They will want to get rid of the bodies, particularly at the time they committed the murders. In those circumstances, the terrorists, were hoping that the bodies would never be found.

The families of those victims will be greatly distressed by the fact that they are unsure whether or not the bodies or bones, or whatever the remains may be, belong to their loved ones—those who have been murdered. It is only right that the Government should acquiesce in the requests which have been made that DNA testing should be carried out; that the remains which have been located should be identified as such to the families who have fought for so long to have those bodies identified.

7.30 p.m.

Earl Attlee

I shall be brief. Unfortunately, I shall have to be content with the Question that Clause 4 stands part of the Bill. Opposing the Question would wreck the Bill and, despite our distaste for it, we are not prepared to do that.

The noble Lord, Lord Molyneaux, mentioned DNA testing. I would be very unhappy if the Minister could not assure the Committee that DNA testing will be undertaken. As the noble Lord, Lord Molyneaux, stated, that is a reliable test and may be the only one available.

Lord Dubs

As with Clause 3, this provision is an essential element of the Bill to ensure that information is forthcoming to the commission. The starting point for these limited protections is, as I have said on other occasions, that no one should be disadvantaged by giving information to the commission.

The construction of the clause is similar to the equivalent provision in the decommissioning legislation, but it may help noble Lords to read it in the following way. Subsection (2) provides that forensic testing for the purpose of the inquest is allowed. The inquest test may determine the identity of the deceased; how, when and where he died. That would also deal with the question of DNA testing. If thought appropriate—it would be the coroner's decision—the coroner could subject the remains to DNA testing for the limited purposes of establishing who the deceased was and, as I have stated, how, when and where he died.

Subsection (1) provides that testing for other purposes is not allowed. The other purposes are then listed at paragraphs (a) to (f). Subsection (3), however, allows an item to be tested to determine whether it can be safely removed. The reasons for that are clear.

In an earlier debate, the noble Baroness, Lady Park, tabled an amendment which provided me with an opportunity to confirm that the inquest findings will be available to the families and that there is no bar on the use of those findings in civil proceedings. At the end of the debate the noble Baroness asked whether the Government would give an undertaking as regards giving effect to the findings of Sir Kenneth Bloomfield in his review of compensation arrangements. The noble Baroness will be aware that governments cannot commit themselves in advance of a review to giving effect to the outcome of such review. Sir Kenneth Bloomfield is proceeding in good faith. We are pleased that he should be doing so, but I do not believe I can go further than that as regards the possible outcome of his inquiry.

Baroness Park of Monmouth

I thank the Minister for giving way. I perfectly understand his comments. However, I should very much like to hear a powerful statement from the Minister that the Government intend to urge that it should be so.

Lord Dubs

I am reluctant to do that for the following simple reason. If Sir Kenneth Bloomfield has been asked independently to review the compensation arrangements, it would not be helpful if in the middle of the review I make announcements intended to influence him. It would surely be discourteous to him, at the very least, to be given a remit and then to have his position undermined by statements made by me from the Dispatch Box. It is a discourtesy which I do not wish to enter into.

There was some concern in another place that while Clause 3 of the Bill enables a defendant to adduce evidence in criminal proceedings, Clause 4 does not allow the defendant to commission forensic testing in his defence. I referred to this issue at Second Reading, but should like to take this opportunity to reinforce the fact that conducting forensic tests may throw up intelligence or information which would be disadvantageous to those giving information to the commission. Allowing forensic testing other than for the purpose of the inquest could result in no information being provided. Clause 4 is one of the key provisions of the Bill. Without it, the fact is that information is unlikely to reach the commission and the suffering of the families will continue.

I have been asked one or two specific questions. I have dealt with the question of DNA testing. If there is difficulty about finding where the bodies are, as was mentioned by the noble Lord, Lord Fitt, or, indeed, whether the commission has been given misleading information about the location of the bodies, the commission will have to come to a view as to how to handle that. Clearly, if the information appears to the commission to be misleading, it will not want to take further action. However, that is for the commission to decide.

There might be a cost of recovery. The sad fact is that we simply do not know where the bodies are. People have suspicions, and rumours, unfortunately, abound. However, the precise purpose of the Bill is to establish where the bodies are. Each case will have to be considered to determine the problems and costs involved in attempting to recover the bodies. To give a blanket answer would not be helpful. It is up to the commission to take that work further in the light of the information that it has.

Another aspect concerns informing the families. It is my understanding that it is the wish of the families to be informed of where the remains might be, once information comes to the commission. From the point of view of the families, I understand that that would be preferable to not carrying out a search. The families accept that they might have to wait for the results and that there could be disappointments in the process, but they want to be involved in this from the start. That is information given to us by the families. If it is their wish to be informed, even if some of the information may then be rather difficult for them to deal with emotionally, I do not believe it is appropriate for anyone to deny them that information. Of course there can be difficulties, given the examples quoted by the noble Lord, Lord Fitt. The commission would have to use its discretion and be sensitive in such circumstances, as I am sure it would be. Having disposed of those arguments, I beg to move.

Lord Monson

Before the Minister sits down, he has not answered my question about what happens to somebody who contravenes the provision of Clause 4. Has a criminal offence been committed and if so what penalties can be imposed, if any?

Lord Dubs

My understanding is that a criminal offence has been committed but I am not totally clear as to the penalties. Here we have in statute a clear statement of how the commission should behave. If it ignores that, it is in breach of the statute. Therefore, I would judge that to be a criminal offence.

Lord Monson

I should like to give the Minister a little more time in which to receive his reply. Does he know of any other instance where a criminal offence is laid down in statute without any penalties being specified?

Lord Dubs

My knowledge of other comparable situations is so limited that even if I say I do not know of any it does not mean that there are not any; it simply means I do not have the breadth of information with which to answer the noble Lord's question.

I say this to be frank. In contrast to what I believed to be the case a few moments ago, I understand that it would not be an offence if the commission was in breach. That is why there appeared to be no penalties. I am sorry if I misled the Committee. It was entirely unintentional. I have now been informed that it would not be an offence.

Lord Molyneaux of Killead

The Minister has done his best to reassure us on certain vital matters. This short, mini-debate has been useful. I thank the Minister for his courtesy.

Clause 4 agreed to.

7.38 p.m.

Lord Carter

It may be for the convenience of the House if I say that the noble Lord, Lord Meston, has kindly agreed to withdraw his Unstarred Question. Another date has been found for it. I am sure the House will be extremely grateful to him and agree, through the usual channels, that there will be no dinner break. We will finish debating this Bill and go straight on to the Tax Credits Bill.

Clause 5 [Restrictions on disclosure of information]:

[Amendments Nos. 8 to 11 not moved.]

Baroness Park of Monmouth moved Amendment No. 12:

Page 3, line 28, at end insert— ("( ) Subsection (1) shall not prevent either the family or the state, once remains have been found and identified, from such action either to commemorate the victim or to publicise the event as they may think fit.")

The noble Baroness said: My object in tabling this amendment is to ensure that the IRA will not be able to use the restrictions on disclosure of information to prevent the families from burying their dead how, when and where they wish; nor the state and the media from stating and writing about the victims as they think fit.

The Explanatory Notes state that this subsection is intended to prohibit the disclosure of relevant information other than for the purpose of facilitating the location of the remains and to prevent disclosure of such information to a third party with no legitimate role in the process of locating the remains. The Minister explained in some detail in our discussions on Clause 4 the further extensions of that decision.

I suppose we have to accept that if the press is able to be present when a body, on information given, is discovered and disinterred, the IRA would simply not provide the location. I see some sense in that. But I fail to see why, The prohibition on disclosure will continue to apply after information has properly been passed by the Commission to a third party, such as the police"; that is, after the recovery of the remains from the secret location.

Can a family, receiving back the remains—perhaps only a few bones—be required to say nothing, ever, about the fact that they were found, say, in a concrete mixer or some other burial place which denied them all dignity? My main object is to ensure that the IRA will not get away with ordering the families to have midnight services with no publicity and to say nothing about an event which has utterly destroyed their lives I do not propose to press this amendment, but it is a point I wish to make about which I feel very strongly. I beg to move.

Lord Fitt

The terrorists who murdered these victims have already said that they will tell us where the bodies are, but in so doing they have demonised their victims. They said that the people they murdered were guilty of some offence against the IRA: that they were traitors or broke some of the laws laid down by the IRA.

It is well known that when the IRA has murdered someone and that person is buried, very few people will attend that funeral. That is not because they do not want to; hundreds and indeed thousands may want to attend the funerals about which this Bill is concerned. But there is still intimidation in Northern Ireland. If ordinary people associated themselves with the funerals of the victims they would be putting themselves in danger of further intimidation by the IRA. One has only to think of Eamon Collins, a former IRA man who was murdered recently in Newry. Few people attended his funeral. One needs only to recall the brutality with which his death was carried out. The IRA made contradictory statements; that is, that it would not prohibit any decision made in relation to the funerals.

The relatives of the victims, when they receive back the bodies, should be entitled to bury those remains in whatever way they think fit. In doing so I urge the people of Northern Ireland to turn out in force to attend those funerals, to show their distaste for what has happened.

Viscount Cranborne

I support my noble friend's amendment for exactly the reasons she gave, and for the reasons given also by the noble Lord, Lord Fitt. It would be helpful if the Minister, in his reply, was able to give us a reasonably full account of the conditions imposed by the IRA.

A number of newspaper reports over the past few weeks have made extraordinary reading, suggesting that all sorts of conditions would be imposed on the families as to how they could bury the remains of their relatives—those conditions being imposed by the murderers. That gives a new and dark meaning to the Alice in Wonderland politics of Northern Ireland.

It would be helpful if the Minister were, first, able to assure us—I am sure that he will be able to do so without equivocation—that the Government have not been party to promoting conditions of that kind as a means to coming to agreement with the murderers; and, secondly, to give us some account, in so far as he has been able to glean it, of the internal conditions imposed through intimidation by the IRA and its representatives on the families of the victims, particularly those victims who live in easy reach of IRA intimidation, as set out by the noble Lord, Lord Fitt.

I hope that the Minister will also make clear that the Government will do everything they can to publicise what those conditions are, and to express their contempt for anybody who imposes those conditions. I hope also that they will invite as many Members of your Lordships' House who are able to do so to attend as public a funeral as possible in the event of those funerals taking place.

7.45 p.m.

Viscount Brookeborough

I support this amendment. In following the noble Viscount, Lord Cranborne, I take this opportunity of saying a little of what I said at Second Reading because I produced the newspaper reports mentioned. Several noble Lords after Second Reading said that reporters are reporters. There were numerous reports and one cannot discard that issue in quite such a simple way as saying, "They are reporters". One was a Guardian reporter; so it was not just the Province's press; neither was it a one-sided issue within the Province, be it on the so-called "Unionist" press.

At Second Reading, I was reported as saying, This is not the Real IRA".—[Official Report, 18/5/99; col. 175.] I repeated "real IRA" a couple of times, but Hansard took it to be "Real IRA" (with a capital "R") when I meant, "This is the Provisional IRA truly". The Real IRA is a different issue. I am not even sure whether it is on cease-fire; it may be. The consequences of the Provisional IRA, the people who murdered these people so many years ago, issuing threats and trying to organise what goes on, must mean that they are not renegade groups; they are the centre core. Are they on cease-fire or are they not? If not, what are the Government going to do about it?

Lord Monson

Like other Members of the Committee throughout the Chamber, I thoroughly support the amendment of the noble Baroness, which she moved extremely well. I suggest that if she fails to receive a satisfactory assurance from the Minister that this amendment is unnecessary, she may reconsider her decision not to seek to divide the Committee.

Lord Blease

It must not be forgotten in this aspect of the work of the commission that it will be managed and advised by the RUC, which will be given the task of looking after this aspect of the matter. The commission will not be left completely alone in terms of advising the relatives and others.

A further aspect is that the commission will be advised about the form of funeral arrangements or commemoration arrangements and that that will be a family matter in which it would not interfere. Families will know whether or not it is wise to have large gatherings or mass funeral arrangements, or whether the arrangements should be private.

Baroness Park of Monmouth

I thank the noble Lord for giving way. His use of the word "wise" proves my point.

Earl Attlee

I am grateful to my noble friend Lady Park for moving this amendment. The noble Lord, Lord Fitt, inadvertently referred to the "laws" of the IRA. I am sure that he will agree with me that only Parliament and in due course the Assembly can make laws; terrorists make illegal diktats.

My noble friend made an important point and I hope that the Minister can reassure us that there will be proper funerals in accordance with the families' genuine expectations.

Lord Molyneaux of Killead

I support the amendment because it would give essential protection to the families. The noble Lord, Lord Fitt, has testified to the bullying and sheer intimidation of families in the aftermath of the abduction and torture of their relatives. In several cases this was the only publicity, coming from deliberately leaked information from terrorists, giving details of how the victims were tortured to death. As the noble Lord stated, the object is to terrify the Roman Catholic population into remaining silent. I know from bitter experience of similar practices employed by so-called Loyalist killers against their communities.

The state surely has a responsibility and an obligation to apply the heaviest possible sanctions against those who seek to silence families who may be fortunate enough to gain possession of the remains of their loved ones? That duty must be discharged, whatever shady deals may already have been agreed between the various agents who worked together to produce this obnoxious Bill.

Lord Dubs

I very much sympathise with the concerns of noble Lords and the concerns expressed by the noble Baroness, Lady Park.

We were all aware of the rumours that the families of the victims were yet again to be treated cruelly by those responsible for the deaths of their loved ones. It was said that they were not to be permitted to hold the funerals of their loved ones in public but were expected to bury their dead in secret.

I am sure that when we read those comments in the papers, every one of us was appalled. I do not know specifically of any family who has been pressed in that direction. I am not saying that it has not happened because some of the pressures in Northern Ireland do not always surface publicly or become known to the Government, but I am not aware of any conditions that have been imposed on the families except those contained in the limited protection afforded by the Bill. I can give the assurance that the Government have not been party to any conditions that have been placed on the families.

The view of the Government is that it would be wholly wrong to deny the families the opportunity, with their friends and community around them, to lay their loved ones to rest in a proper, public manner. If that is their wish, then surely that is their right. I utterly condemn any suggestion that anyone should seek to interfere with the family's right in that respect, and I say that in the strongest possible terms.

I accept the concern that there are those who would seek to have these families forgotten once their remains are returned. There are people who have a vested interest in that approach, but people cannot be forced to forget, and it is no part of the Government's intention to wipe the face of these victims from memory.

The intention of the amendment is understood, and I have absolutely no quarrel with it. However, it is not necessary to include this permissive power in the legislation. There is nothing in the current legislation to prevent the family or the state from taking action to commemorate the victims or to publicise their fate. The Government are totally against anyone who would seek to apply pressure on the families in an effort to prevent them burying their loved ones as they wish.

Viscount Cranborne

The noble Lord has been extremely patient, if I may say so. Can he give an undertaking that if families were to be intimidated and if they asked for protection in order to allow them to conduct a public funeral, that protection would be forthcoming?

Lord Dubs

The RUC would take the strongest action against any intimidation of any sort, with the support of the Government. If there was evidence of such intimidation or if the RUC came to hear of it, it would be empowered to take the strongest possible action to resist that intimidation on behalf of the families. That gives the noble Viscount a clear assurance.

Baroness Park of Monmouth

I thank all noble Lords who have supported the amendment, and I thank the Minister for his reply. However, I find it impossible to understand, since he clearly accepts that the spirit of the amendment is right, why it cannot be incorporated in the Bill. If it were contained in the Bill the families would have something to appeal to in law, whereas the Minister is suggesting that they could go and tell the RUC. All noble Lords know that that is precisely what they dare not do. That is why I am urging that their clear right to take certain action should appear on the face of the Bill, with the implication that if people challenge that right, they will be in breach of the law.

I will not divide the Committee at this hour, although I am tempted to, but I beg the Minister to accept the amendment. There is nothing in it which the Government do not agree with; hence I cannot see why he cannot accept it.

Lord Dubs

I thank the noble Baroness for giving way. The argument in support of the amendment is that people must not behave in a manner which is already criminal. It is already criminal to intimidate people in the way we have discussed. We do not need therefore to put on the face of new legislation that something is a criminal offence when it is already a criminal offence and when the RUC does its best to stop that type of offence from taking place.

Baroness Park of Monmouth

I will not prolong the discussion, except to ask: how is it, if it is already unlawful, that it has been happening for goodness knows how many years, with no one having anything in the way of protection? If the provision is contained in the Bill it will be much more difficult for people to break the law rather than to say that it is something that is not done. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn

Clause 5 agreed to

[Amendment No. 13 not moved.]

Clause 6 agreed to.

Baroness Park of Monmouth moved Amendment No. 14

After Clause 6, insert the following new clause—


(" .—(1) Sections 3 to 5 of this Act shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint. (2) No order may be made under subsection (1) unless the Secretary of State has laid before each House of Parliament a report setting out why, in his opinion, the provisions in question are compatible with the Convention rights, as defined in the Human Rights Act 1998, and that report has been approved by a resolution of each House.")

The noble Baroness said: The amendment is intended to challenge the statement on the face of the Bill that it is compatible with the Human Rights Convention embodied in the schedule to the Human Rights Act 1998.

I should like to cite some of the rights and freedoms that are breached. Article 2.1 states: Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally, save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law".

Article 3 states: No one shall be subjected to torture or to inhuman or degrading treatment or punishment".

Article 5 states: Everyone has the right to liberty and security of person".

How does that square with the IRA's admission of so-called execution of its victims? Do the families who have been terrorised into silence all these years and consistently intimidated for no other crime than the wish to know whether their sons, husbands or mothers were alive or dead have no rights under Article 5?

Article 17 places a duty on the two Governments and states: Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention". Are the two Governments not in dereliction of their duties?

Lord Mayhew of Twysden

Can I assist my noble friend, while she is looking for her notes, by saying that the point she is making is a very important one for the Government to take on board; namely, that the interpretation of the Convention on Human Rights must never be made in a narrow and legalistic manner; after all, it is not written in narrow and legalistic language; it is written in very broad, conceptual language.

Therefore, is not my noble friend making an important point? She asks the Government not to look narrowly at the application of the convention in the context that we are discussing under her valuable amendment, but to look, with a broad and generous mind, to see whether or not the convention also applies to those in whose interests the Bill is brought forward—namely, the relatives. They have so far been denied what one had always thought of as a fundamental human right; that is to say, the right to know the whereabouts of the bodies of those who have been wantonly murdered. Is that not the thrust of the matter?

Baroness Park of Monmouth

I thank my noble and learned friend for that intervention.

Lord Molyneaux of Killead

Like the noble and learned Lord I, too, support the proposed new clause, especially subsection (1). I am also much interested in subsection (2) of the amendment. On the face of the Bill the Minister has provided the required certificate which reads: In my view the provisions of the Northern Ireland (Location of Victims' Remains) Bill are compatible with the Convention rights". I do not for one moment doubt the sincerity of the noble Lord's assurance in that certificate. However, whatever side we may have been on during our earlier arguments today, I am sure we would all agree that this is a Bill the like of which has not been seen since Norman times. I have Norman blood in my veins, so that is perhaps why it rankles with me. However, the convention which may be called upon to adjudicate has a reputation for acting in most peculiar ways. Therefore, I agree with what the mover of the amendment and the noble and learned Lord have said. I fear that we have not seen the last of this Bill.

Baroness Park of Monmouth

With the leave of the Committee, perhaps I may complete what I intended to say earlier, and I shall be very brief. My question is: are not the two Governments in dereliction of their duty to the majority in condoning what the IRA has done in destroying the rights and freedoms of both the dead and their families? I put it to the Minister that, on a number of accounts, the Bill is not compatible with the convention statement of rights of the victims, the families or the law-abiding members of the community.

Unless she can produce cogent counter-arguments, the Secretary of State should surely be acting in conformity with Section 19(1)(b) of the Human Rights Act, which requires her either to make a statement of compatibility, which she has done and which I challenge, or, to, make a statement to the effect that although [she] is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill". That is what the Act provides. That is what the Act requires and it would be true. I urge the Minister to recognise that, or to explain just how the Bill is compatible. I beg to move.

8 p.m.

Lord Dubs

The noble Baroness's amendment would require the Secretary of State to lay before Parliament a report on the compatibility of Clauses 3 to 5 of the Bill with convention rights. The report would then have to be approved by the affirmative resolution procedure. Only then could those clauses be brought into force. That would, of course, create a delay in information reaching the commission, but I leave that aside at this stage.

The noble Baroness will be aware that both the Secretary of State and I have given our opinion in the matter of compatibility with the convention by signing the required statement under Section 19 of the Human Rights Act. That statement appears on the face of the Bill. I should point out to the noble Baroness that I was given a detailed assessment of the Bill in relation to various elements of the human rights convention. I felt that I had to consider the matter in complete detail before it would be proper for me to sign, as I have signed, the certificate which now appears on the face of the Bill. I considered the matter in some detail and followed the very complicated arguments that were put to me, but I was satisfied that I could sign the statement now on the face of the Bill, which states that the provisions of the Bill are compatible with the convention rights.

The purpose of a Section 19 compatibility statement is to focus the Government's and, in turn, Parliament's attention on convention issues at the pre-enactment stage. The requirement which the noble Baroness seeks to impose through this amendment would not be consistent with the scheme of the Human Rights Act, as it would shift the debate on convention issues to the post-commencement stage. If queries are raised as to compatibility with the convention rights during debates on a government Bill, the Minister in charge will do his best to answer them. Under the Human Rights Act, it will ultimately be for the higher courts, and the courts alone, to rule on whether a particular measure is incompatible with the convention rights by the Human Rights Act.

Therefore, even if the Committee were to accept the amendment, which I suggest would not be helpful, I believe that the noble Baroness would not really achieve her main intention; namely, compatibility with the human rights convention. Surely that is something that should be done before the Bill is even presented to the House rather than being done at the end of the proceedings when it has been passed.

The most fundamental rights of the victims of these dreadful murders were violated by terrorists when those people were abducted, tortured and murdered. That is quite a separate question to that now before the Committee when we consider whether the scheme of the legislation is compatible with the Government's obligations under the European Convention. We are satisfied that the rights of the families in particular are respected by the Bill.

Baroness Park of Monmouth

I should like to thank all those who have spoken in support of my amendment, especially my noble and learned friend who saved my life earlier when I lost my place. I listened to what the Minister said with great interest. I find it deeply interesting that all his legal advisers saw no incompatibility between the provisions of the Bill and those in the Human Rights Act. It will make me look at the Human Rights Act with much greater care in the future.

However, I accept that it is not possible either to divide the Committee or, indeed, to pursue the amendment further. My object was to bring out, as I hope I have, the very real incompatibility which undoubtedly exists, at least in any lay mind, between human rights and what we are doing in this Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 agreed to.

House resumed: Bill reported without amendment. Report received.

Then, Standing Order No. 44 having been dispensed with (pursuant to Resolution of 20th May), Bill read a third time, and passed.