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Lord Cope of Berkeley: My Lords, my noble friends who have spoken are united in wishing to see the release of these soldiers. I have sympathy with the amendment that has been moved by my noble friend Lord Tebbit. This has become a complex matter, although at heart it is simple. I believe that the House would be considerably assisted in considering the different ways in which these two soldiers might regain their freedom if it knew how long the review by the Secretary of State would be likely to take.

It is obvious to me that the review of the Secretary of State--whether it started on 3rd June, as the Prime Minister said, or on 6th July, as appears to be the case--must be completed well before this Bill leads to any release of terrorists who are supposed to have renounced terrorism. When the Bill has achieved Royal Assent a new commission has to be selected and assembled and has to set up shop, as it were. A good number of rules have to be set down for that commission under Schedule 2 to the Bill. The commission must then ask for and receive applications. Only then can it begin to consider the applications made to it and reach decisions. Beginning as it would at least three weeks later than the Secretary of State began her review, it would be amazing if the Secretary of State's review did not finish before the new commission got to the point of releasing anybody. That is one way in which the guardsmen may obtain their freedom.

The background to this matter is the respect and admiration that we all have for the work of the security forces. For some three decades we have placed young soldiers in the most difficult and dangerous position. Many have lost their lives in our service and in defence of democracy. The Army and the other Armed Forces in support of the RUC have shown exemplary restraint in their behaviour. I observed that over a number of years, not only when I was security Minister in Northern Ireland. For all that time we have asked individual private soldiers to place themselves in an incredibly difficult and dangerous position. Both in training and in action the necessity for restraint, the cadre system and so on have been drummed into them daily until they are second nature. I do not believe that any other army in the world has that capacity to carry out sensitive

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individual peace-keeping operations. That is why there is such intense sympathy for these two individuals, given the position in which they find themselves.

As has been spelt out again this afternoon, the legal complications have become very great. Whatever arrangements are made to release them, through whatever mechanism--clearly a number are available--we hope that the guardsmen will be released as soon as that can be arranged. Many of us in your Lordships' House, regardless of the difficulties of this amendment, wish to send a strong signal to that effect. That is why I support the amendment.

Lord Dubs: My Lords, I am sensitive to the strength of feeling that has been expressed in this House today and on a number of other occasions regarding the two guardsmen. We have debated the matter several times in recent months and I am aware of your Lordships' feelings about the case. However, I made it clear when we debated this matter last week that the Government could not accept this amendment or any amendment like it. That remains the case.

The amendment would depart entirely from the terms of the Bill that is before your Lordships' House. It imposes a condition that was not contemplated by the Good Friday agreement or by any of the parties to that agreement. Indeed, the amendment attempts to make the implementation of the Good Friday agreement hostage to the release of two prisoners.

Many noble Lords here today have pressed the case for the early release of the guards both with myself and with my right honourable friend the Secretary of State. They have done so in a measured way and have deployed arguments that are related to the cases. No suggestion has been made that the release of the guardsmen should be bartered for the release of other prisoners--and that is how it should be. It is a testament to those noble Lords who have spoken on behalf of the guardsmen that, although there is great strength of feeling, that feeling has not clouded their judgment of what is the right way to proceed.

I am therefore disappointed that this amendment has been pressed again given that my right honourable friend the Secretary of State has said that she will look at the case. I made clear that she had started to look at the case when I announced her intentions when we debated this Bill on a previous occasion.

Last week I told your Lordships' House that the Secretary of State had received papers on the case and was now reviewing it again. At that time I explained that the case papers are extremely extensive. They run to about 2,500 pages. Although the Secretary of State has seen much of the material before, she has undertaken to conduct a thorough review of the case. That will take some time as the review will have to be undertaken in parallel with her other responsibilities. Further papers or advice may be required before a decision can be made. Noble Lords will understand that it is not a decision which can be taken in an over-hasty manner. But equally, the Secretary of State understands that the decision must be made with due attention to the fact that the liberty of the two subjects is in question.

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Noble Lords will also be aware that under the law as it applies in Northern Ireland my right honourable friend the Secretary of State is required to consult the Lord Chief Justice and the trial judge before releasing a life sentence prisoner. She cannot engage in that consultation process until she has come to a view regarding the case. The decision on release is for the Secretary of State alone, but she will want to consider any comments the Lord Chief Justice or the trial judge wish to offer before making a final decision.

Your Lordships will understand that the review process must protect the position of the judiciary. There can be no suggestion that the question of release falls to the Lord Chief Justice. For that reason, I cannot give any indication as to when the Secretary of State might ask members of the judiciary for their views as to do so would suggest that a view had been taken of the case and that would place the Lord Chief Justice in an invidious position.

As such, I will not separate out the periods taken to make an initial decision and to request and receive the views of the judiciary if that advice is required. Taking account of the matters set out above, the Secretary of State may not be able to announce the result of the review until the latter part of August. This is the time that it will take to consider all the papers and to request and receive such advice as is required. I understand that noble Lords will be disappointed that the process should take such a period, but that is the time required to consider all aspects of the case and to make any arrangements that follow from consideration of the case.

Noble Lords have asked when prisoners would first be released under the Bill--or at least have indicated that they want to see how the two timetables might work in relation to each other. Although that is not related in any way to the review of the cases of the two guardsmen, noble Lords were concerned that any review should not extend beyond the point at which prisoners might begin to be released under this Bill. It is difficult to be certain about dates. This Bill has further stages to complete before it receives Royal Assent. Commissioners must be appointed and orders made. When all the arrangements are in place, prisoners must make applications. Those applications will have to be given due consideration. Taking all this together, it is possible that the first releases might not take place until early September.

6.45 p.m.

Lord Merlyn-Rees: My Lords, I take my noble friend's major point that the amendment moved by the noble Lord, Lord Tebbit, should not be supported. I could not support the linkage.

The point that concerns me is the point that has been made in this House time and time again. These young men were carrying out duties that we imposed on them. They are not policemen; they are soldiers. They were put in an invidious position. They made mistakes. I want to hear not that we shall support the amendment of the noble Lord, Lord Tebbit, which I think is flawed, but

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that we shall proceed with speed and that the guardsmen can be released under the miscarriage of justice provisions, or this Bill.

Lord Dubs: My Lords, I thank my noble friend for that. The position is that the Secretary of State may not be able to announce the result of the review until the latter part of August. That allows for the necessary consultation with the Lord Chief Justice and the trial judge. Given that it is now the middle of July, we are talking of a matter of a few weeks only. I give way to the noble Baroness.

Baroness Denton of Wakefield: My Lords, I thank the Minister for giving way. This may be a naive remark which will make every lawyer in your Lordships' House wince, but why does the sequence have to be that the Secretary of State can consult with the Lord Chief Justice and the trial judge only after she has read all the papers? Can she not consult with them first and ask what their opinions would be if the answer was plan A or plan B and therefore speed up the process?

Lord Dubs: My Lords, my understanding of the procedure is that the Secretary of State has to come to a view about the case and, having come to a view, she will then consult or seek the opinion of the Lord Chief Justice and the trial judge. If she were not to come to a view first, she would simply open it up for comment. It seems appropriate--and certainly the procedure as I understand it is the normal one--that she comes to a decision and then goes through a process of consulting the two people concerned. It is a sequential process and hence it will take, as I have already said, probably until the latter part of August.

I appreciate that time drags on and that the liberty of two individuals is at stake. On the other hand, we are talking about a matter of four or five weeks from today. I think that it is not unreasonable that one should give the Secretary of State the time to do the consultation.


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