Canadian judge Peter Cory has attacked plans to use the Inquiries Bill to limit the powers of a public inquiry into the murder of Belfast solicitor Pat Finucane.
His views were backed the US envoy to Ireland, Mitchell Reiss, at a Congressional hearing in Washington.
The Inquiries Bill had its second reading in the House of Commons on Tuesday.
Hull North MP Kevin McNamara’s speech bears quoting at length:
The Bill provides Members with a first-hand opportunity to witness the clash between our democratic ideals and the legacy of Britain’s imperialist role in Ireland, where the principles of good governance have collided with sordid self-interest and manifest contempt for human rights and the rule of law. The admirable purposes of the Bill have been corrupted by the refusal of the defence and intelligence establishments to come clean over their collusion with loyalist paramilitaries in the murder of defence solicitor Patrick Finucane. I do not believe that the protection of undercover agents has ever been a prime consideration, but there has been an attempt to hide implications of policy and its implementation. Successive Governments have permitted, wittingly or unwittingly, an undercover war in Northern Ireland to be conducted outside democratic control. I believe, as does the former Metropolitan Police Commissioner Sir John Stevens, that agents of the Crown have engaged in systemic collusion with paramilitary groups and pursued a policy of unlawful killing and extra-judicial assassination.
There can be no doubt about the depth of that collusion. In the case of Mr. Finucane, it was a British intelligence agent, Brian Nelson, working undercover in a paramilitary organisation, who selected the solicitor as a target and supplied logistic information to the gang that carried out the attack. It was a Royal Ulster Constabulary agent who, in his capacity as a quartermaster for the Ulster Defence Association, was in charge of the supply and disposal of illegal weaponry used to effect the murder. The murder was not a mystery. The paramilitary who pulled the trigger on Patrick Finucane in front of his family made a full confession to the police. The police officer who took that statement alleges that RUC special branch agents recruited Ken Barrett as an informant and destroyed the tape. As a result of Sir John Stevens’s investigations, Ken Barrett confessed in court and was sentenced to 22 years’ imprisonment for the murder of Pat Finucane last September.
We therefore know the identity of all the individuals involved, but we do not know what the policy was, who decided it, who made the decisions to implement it, who hid it, who told lies in court about one individual—a colonel, whose name we were not given—allegedly saving a dozen lives or more, and a whole host of matters that are still relevant.
Because of the confusion and lack of confidence in respect of the death of Pat Finucane, the Irish and British Governments agreed at Weston Park to the demands—mainly of the Social Democratic and Labour party—for a full public inquiry, if an independent outside judge recommended one, into the deaths of the various individuals that, it was put to them, required particular investigation because of the collusion of the security forces.
A year later, a Canadian judge, Mr. Justice Peter Cory, was appointed to conduct the investigation. In April last year, he concluded that the security forces were, at the very least, aware of the plan to murder Patrick Finucane and that they failed to intervene. He recommended a public inquiry. This is what Mr. Justice Cory said about the Bill before us:
"I don’t know how any self-respecting Canadian judge would be part of it in light of the restrictions on independence it would impose."
He went on to say:
"If this Act had been in place at the time to set up an inquiry I don’t think that there is a judge who would take it on. Its provisions are too restrictive. Independence would be impossible."
The judge continued:
"My view of the proposed legislation is that it would be extremely difficult to have a public inquiry that would be in any way significant."
Those are all statements that he made to The Irish Times.
If that is Mr. Justice Cory’s opinion, can the Under-Secretary of State for Constitutional Affairs, my hon. Friend the Member for Tottenham, assure us that the Irish Government, who are a party to the Weston Park agreements and who agreed to Mr. Justice Cory’s appointment, are satisfied that the terms of the Bill fully meet the undertaking that they gave to the participants at Weston Park? A straight yes or no from the Minister would be welcome.
It is important to understand the background to the Bill. Following the conviction of Mr. Barrett, my right hon. Friend the Secretary of State for Northern Ireland came under considerable pressure. It had been the Government’s policy that they could not hold any public inquiry into the death of Mr. Finucane until all outstanding criminal matters had been disposed of. Mr. Justice Cory did not accept that, but nevertheless that is what happened. When Mr. Barrett was convicted, my right hon. Friend the Secretary of State finally announced an inquiry into the Finucane killing that month.
Everybody expected that the inquiry would be held on the principles of the Tribunals of Inquiry (Evidence) Act 1921. However, my right hon. Friend immediately qualified the announcement by asserting that the inquiry could be established only after the passage of the Bill before us, which would guarantee that the inquiry would hear most of the important evidence in private. What degree of public confidence is created by reluctantly conceding an inquiry and immediately qualifying its openness and transparency?
I should compliment the Finucane family on their astounding dignity and determination. Their grief at losing a loving husband and father has been compounded by the duplicity of those who are ultimately accountable for his death, by the failure to uncover the truth, by the failure to bring those responsible to justice and by the refusal of the intelligence and security forces to bring their operations under democratic control or behave according to the rule of law. That must have been an enormous additional weight on their emotions, which the family could well have done without, when all they were asking for was the application of the rule of law.
I should at the same time compliment my colleagues in the SDLP on their tenacity in continuing to pursue the matter of the Finucane, Hamill, Nelson and other inquiries over a long time until they eventually received an undertaking from the Prime Minister.
When the Public Administration Committee set out to examine the options for reform of the antiquated patchwork of legal provisions for public inquiries, I doubt whether my hon. Friends and other colleagues could have imagined the minefield that they were walking into, where the James Bond world of Robert Nairac meets the despicable trade of Dirty Harry. I pay tribute to the work of the Committee and the care with which it considered the role of the public inquiry in providing a critical component of the framework of checks and balances that is required for effective government and democratic accountability.
I recognise the quality of the evidence given to the Committee by Members of the House of Lords and others who were able to reflect upon and draw lessons from their own experiences of chairing some of the most important and influential inquiries of the past 40 years. Their lordships’ considerations on public interest stand in stark contrast to the narrow and defensive framework of the Bill.
I refer the House to the correspondence between the Under-Secretary of State for Constitutional Affairs, my noble Friend Baroness Ashton of Upholland, and Lord Saville of Newdigate. I shall not examine all the minutiae of the correspondence, partly because of the time that would be required, but with regard to the Bill, Lord Saville wrote:
"As a judge, I must tell you that I would not be prepared to be appointed as a member of an inquiry that was subject to a provision of this kind"—
That is a reference to clause 17. He continued:
"This is because I take the view that it is for inquiry panel itself to determine these matters, subject of course to the right of those concerned to challenge in court any ruling that it may make or refuse to make."
That was in his letter of 26 January. There was a full and detailed reply from my noble Friend, but on 23 February Lord Saville wrote back:
"Once again, may I thank you for . . . addressing in detail my concerns. Sadly, they remain and accordingly I have decided to make them public."
When my hon. Friend the Minister replies to the debate, can he tell the House whether Lord Saville, who has great experience of inquiries, is now completely satisfied as to the contents of the Bill and has no lingering problems with it? If requested, and subject to the approval of the Lord Chief Justice, would Lord Saville agree to chair another inquiry, if the present one has not wearied him a little of public inquiries?
Two questions arise. Does the legal framework for public inquiries need to change? The answer is yes. Does the Bill answer that requirement? I think that it does not.
In the confused history of the powers of different Departments to initiate inquiries, an inquiry under the 1921 Act was the gold standard, despite all the problems associated with it. Under the 1921 Act, the proposal for an inquiry had to be endorsed by both Houses of Parliament—Parliament was involved. Such tribunals were equipped with powers to summon witnesses and demand evidence, and reluctant Ministers and officials could be charged with obstruction. Such an inquiry was chaired by a distinguished judge in order to establish its independence and guarantee its authority.
The Bill will take the initiative away from Parliament. It will allow a Minister to pick his own tribunal chair and instruct the tribunal chair on how to regulate access to the inquiry and whether to exclude the public. It will allow the Minister, or change of Minister, to step in and alter the structure or even the terms of reference of an inquiry. It will allow a Minister to suspend an inquiry or terminate it before completion, and a Minister could also limit—censor—publication of the inquiry report. It will give a Minister powers to dismiss and replace a tribunal chairman on a number of grounds, including that of a difference of opinion about the interpretation of the terms of reference.
It is little wonder that many distinguished judges have raised the question whether they would serve on an inquiry established under such legislation, believing that such an inquiry might be compromised from the outset—Mr. Justice Cory concurs with that assessment. It is true that the ever-evolving effectiveness of judicial review and the monumental protection of the Human Rights Act 1998 provide a safeguard against ministerial abuse, unreasonableness and arbitrary decision making that would have been undreamt of by the legislators who framed the 1921 Act. That is welcome, but it is still a long and cumbersome procedure to go to Strasbourg, despite the incorporation of the ECHR into our legislation.
When the Under-Secretary of State for Constitutional Affairs, my hon. Friend the Member for Shipley introduced the Bill, it was regrettable that he did not refer to the severe concerns of the Joint Committee on Human Rights, of which I am honoured to be a member. The Committee raised many real problems about the Bill, which the Lord Chancellor’s long and detailed reply did not completely overcome.
It is surprising that the Bill does not offer more. It has little to say about the public interest, openness and transparency, the human rights framework within which it will operate and, in particular, the role and rights of victims. It has been introduced because the intelligence services fear an open inquiry into the murder of Pat Finucane held under the 1921 Act. That concern reflects not a need to protect agents at risk, but a desire to prevent the intelligence services’ operations and methodology from being subject to public scrutiny, which is not the right way in which to assist victims of criminal activity in which agents of the state are implicated and to which successive Governments have turned a blind eye. That is not the right way to address truth, recovery and reconciliation in Northern Ireland or to approach legislation, and I see no reason further to delay an inquiry into the death of Pat Finucane. The Bill has been rushed because of the death of Pat Finucane. It should be withdrawn, and the next Parliament should consider the matter, because there is no immediate demand for a major Bill on inquiries.
The Joint Committee on Human Rights has produced a substantial report, which I recommend to those hon. Members who have not read it. In particular, it draws attention to our obligations under the ECHR. It is a tragic reality that many of the most pressing circumstances leading to the establishment of a public inquiry involve the loss of life of an individual or of a group of individuals—sometimes the number of victims is very large. A civilian police investigation and a coroner’s inquest may provide an adequate remedy for the families of those who have died, but in many instances, the call for a public inquiry is a result of the failure of the established mechanisms to provide that remedy. Where that is so, the jurisprudence of the European Court is clear that the procedural requirements that it has established for the conduct of an effective investigation will apply to the tribunal itself.
Article 2 of the convention covers any investigation into the loss of life. My hon. Friend the Member for Newry and Armagh (Mr. Mallon) has already given the conditions that must be met in order to satisfy its requirements, so I will not go into them any further. Article 3, on torture and inhuman or degrading treatment, may also be involved, as may article 6 on the right of a fair trial, which in this context means the proper holding of a tribunal and the degree to which an inquiry can attribute guilt and blame and recommend bringing those responsible for events or actions to justice and to trial. That element is lacking from the Bill.
This Bill has been pushed through not to establish a proper inquiry system, which we do need and requires proper examination and consideration in light of the important report by the Committee chaired by my hon. Friend the Member for Cannock Chase (Tony Wright), but to try to deal with the case of Patrick Finucane, which could have been adequately dealt with under existing legislation. It is being done in this manner not to bring justice but because the Government—who were not responsible for the circumstances and were not in office when the events took place—are worried that a stone might be unturned and the worms, filth and dirt that might be revealed are such that they want to keep them covered up. That is not the right way to purge these excesses from our system. I believe that we can go back to the ideals of democracy, openness, transparency and the rule of law that first brought me into this House nearly 40 years ago.
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