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Noble Lords: Hear, hear!

Lord Kingsland: My Lords, the test of the Government's moral authority is this. Release the guardsmen now or your moral equivocation will be plain for all to see.

8.32 p.m.

The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Dubs): My Lords, I should like to add my voice to those of the other noble Lords in complimenting the noble Lord, Lord Campbell of Alloway, on securing this further debate on the cases of Guardsmen Fisher and Wright.

I also acknowledge the assiduous efforts that the noble Lord continues to make on behalf of these two men. He has spoken with great feeling, but has not allowed this to cloud his judgment and has argued in measured and considered terms. I congratulate him on that.

I have listened carefully to all that has been said, and I thank other noble Lords who have contributed their views. They too have spoken with great strength of feeling because of the seriousness with which they regard the issue.

Perhaps I may deal with a number of specific questions before I turn to the brunt of the argument I wish to put forward. The noble Lord, Lord Vivian, asked what evidence was produced in court, a question implicitly asked by other noble Lords. He also asked some details about the prosecution case. The decision whether to prosecute is a matter for the Director of Public Prosecutions on the basis of the evidence available. It would be inappropriate for a Member of the Government to pass any comment on the judgment that the Director of Public Prosecutions entered into and the method by which the case was conducted. It is not a matter for the Government.

The noble Earl, Lord Carlisle, asked about the length of time of the Secretary of State's review, to which, by implication the noble Lord, Lord Kingsland, also referred. There is no prevarication. Indeed, as I made clear in the Statement to this House on, I believe, 6th July, on behalf of the Secretary of State, she indicated that she was speeding up her consideration of the case. The Secretary of State had previously suggested that she would wait until the October deadline, as indicated by her review last year of the case put forward by the Life Sentence Review Board. The Life Sentence Review Board was going to consider the matter again in October. But in the meantime the Secretary of State was going to advance her consideration of the case. That was the announcement I made. Given the complexity of the evidence, and given that the Secretary of State also has to refer the matter to the Lord Chief Justice and the judge who presided when

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the case was first heard, these matters take a little time. However, I assure noble Lords that there is no question of any prevarication on the part of the Secretary of State.

The noble Lord, Lord Kingsland, suggested, as did other noble Lords, that it would be wrong for the Secretary of State to make a decision at about the same time of the first releases under the Northern Ireland (Sentences) Bill, assuming that Parliament agrees to pass the Bill. I was not suggesting that there was a relationship between the two decisions. I was answering questions about the likely timetable as regards the Secretary of State's consideration of the case of the two guardsmen; and the timetable as regards the sentences review board commissioners' releases.

This House has debated the matter on a number of occasions. On the first or second occasion I was asked whether the fact that there was to be a Northern Ireland (Sentences) Bill about early release would delay any decision about the two guardsmen. At that point I indicated that the guardsmen would have the right under the sentences Bill procedure to apply for their case to be considered. I was not suggesting that there was any comparison between their situation and that of terrorists. I was simply answering a question.

In subsequent debates I was again asked about the different procedures open to the guardsmen. There is no sense in which the Government are saying that there is a parallel between the two guardsmen and what will happen to terrorists under the Northern Ireland (Sentences) Bill. I seek to make that distinction because the noble Lord, Lord Kingsland, suggested that there was some overlap in the Government's mind. There is clearly no overlap, but the timetables relate to the situations that I have described. If they happen to overlap within a month of each other, it is because the Secretary of State does not wish to delay her process; and under the sentences Bill the commissioners will also have to make their decisions as regards their priorities and timetable.

Perhaps I may return to the substance of the debate. The Motion set down by the noble Lord, Lord Campbell of Alloway, moves,

    "That an Humble Address be presented to Her Majesty praying that Her Majesty should exercise the Prerogative of Mercy to release Guardsmen Fisher and Wright from mandatory life imprisonment in exceptional circumstances as other available mechanisms would unduly delay their release".

I am grateful to the noble Lord, Lord Thomas of Gresford, for his clear exposition of the history of this prerogative and the circumstances in which it has been used.

Perhaps I may say at the outset, that I do not intend to oppose the Motion presently before this House. However, for reasons which the House will readily understand, I and other Ministers shall abstain in the unlikely event that the issue comes to a Division. There are, however, some points which I should like to bring to your Lordships' attention.

The exercise of mercy by the Crown dates from the Middle Ages. Until the 18th century, the issue remained a matter for the personal decision of the Sovereign. By the mid-19th century, however, the convention had

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developed that the prerogative would be exercised on the advice of one of Her Majesty's principal Secretaries of State. Such advice must, of course, be provided with the greatest conscience and good care.

The prerogative is used in respect of criminal convictions and generally only where it is impractical to refer the case to an appellate court, and where there is new evidence which has not been before the courts and which demonstrates conclusively that no offence was committed, or that the defendant did not commit the crime. I have in mind, for example, a case in which there is new hearsay evidence which is absolutely compelling, but which would be inadmissible in court.

Turning to the specific question of the possible exercise of the Royal Prerogative of Mercy in the cases of Guardsmen Fisher and Wright, I would stress that very full rights exist for an individual aggrieved by his conviction, or sentence after trial on indictment. The right, however, to petition for the exercise of the Royal Prerogative of Mercy is in addition to the normal right of appeal to a superior court and the fact that a person has not exercised his right of appeal is no bar to the consideration of a petition.

The Royal Prerogative of Mercy is not, however, a means of duplicating the ordinary machinery of appeal and save in genuinely exceptional circumstances the Secretary of State for Northern Ireland, and indeed the Home Secretary for cases within his jurisdiction, would normally expect a prisoner to use that machinery to the full.

The special circumstances in which it may be appropriate to entertain exceptionally an application for the exercise of the Royal Prerogative of Mercy, notwithstanding that some avenue of appeal may still be open to the applicant, are not to be determined by a rigid rule; each case must be considered on its own merits.

Lord Renwick of Clifton: My Lords, I am grateful to my noble friend for giving way. We are united in all parts of this House in wanting to see the earliest possible release of these Guardsmen. However, when the Address, which I and almost everyone else supports, is presented to Her Majesty, as the Minister and others have said, she will seek the advice of the Secretary of State who is conducting her own review of the matter.

In passing on to the Secretary of State the apparently unanimous view of Members of this House, will the Minister point out that this House contains many distinguished jurists and, so far as I am aware, not one has risen to defend the continued imprisonment of these Guardsmen?

Lord Dubs: My Lords, I thank my noble friend for what he has said. I shall ensure that the attention of the Secretary of State is drawn to the whole debate; to all the points that have been made; and to the fact that many noble Lords have a great deal of legal knowledge and experience and many have direct experience of serving in the Army on the streets of Northern Ireland. I shall ensure that the Secretary of State is aware of the body of knowledge and experience that has been brought to bear and the views that have been expressed.

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I return to the argument. In the guardsmen's cases most, but not all, of the domestic avenues of appeal have been exhausted. The guardsmen's application for leave to appeal to the House of Lords was refused on 6th March 1996. There still remains open to them, however, the ability to make an application to the Criminal Cases Review Commission, to which I have already referred in the debate in this House on 23rd June. This, of course, is a matter for the guardsmen to consider in consultation with their legal advisers.

As your Lordships' House will be aware, the Royal Prerogative of Mercy is generally exercised by the Sovereign in certain ways only: first, the grant of a free pardon, (that is, an unconditional pardon); secondly, the grant of a conditional pardon, whereby the penalty is removed, on condition that a lesser sentence, or penalty, is substituted; and, thirdly, the remission, or partial remission, of a penalty.

Given all that the noble Lords have said tonight, I assume that the noble Lord's petition seeks exercise of the Royal Prerogative in the last mentioned form, as a means of securing the guardsmen's release from prison, in the hope that an application to the Criminal Cases Review Commission will secure through the courts the quashing of their convictions.

As I have advised noble Lords in previous debates on these cases, the position from which my right honourable friend the Secretary of State for Northern Ireland and I must approach these cases is that the guardsmen have been convicted of murder in accordance with the law.

These convictions arose from an incident while the guardsmen were on patrol in Belfast. The incident was carefully and thoroughly considered by the prosecuting authorities and then independently adjudicated upon by the courts. The courts held that the guardsmen had no lawful justification for firing at Peter McBride. I appreciate that many noble Lords have elaborated on the evidence and on the further evidence that has come to light as a result of the efforts of the noble Lord, Lord Campbell of Alloway. Therefore, I appreciate that there are views which go further than the decisions of the court.

The Motion before us this evening states that "other available mechanisms would unduly delay" the release of the guardsmen. However, I must, with all due respect to this House, point out that at present there are several possible avenues open to these particular prisoners through which release is a possibility. In respect of matters which fall to my right honourable friend the Secretary of State, no decision has been made but, as I informed this House last Thursday, my right honourable friend would hope to announce her decision in the latter part of August.

For the benefit of the House, I will set out the various avenues by which the cases of the guardsmen can, or will, be considered for possible release in the weeks and months ahead. I cannot of course prejudge the outcome of any or all of these possible avenues, nor should anything that I say be seen in any way to prejudice any of those possible outcomes. These avenues fall into two

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categories. I appreciate that some noble Lords have mentioned them, but it is right that the Government's attitude to them should be made clear.

Those in the first category are already active. They are the current consideration of the guardsmen's cases by the Secretary of State in light of correspondence from their solicitors, and the consideration of their cases by the Life Sentence Review Board in October this year.

My right honourable friend's consideration, as I have already indicated, will take a few weeks in view of the need to ensure a careful and thorough consideration of the considerable volume of paperwork involved in the cases.

With regard to the Life Sentence Review Board, preparation of the fresh reports required for the board's second consideration of the cases commenced. The guardsmen have been advised of this in writing. They, and their legal advisors, will be invited to make representations.

The second category of procedures available to the guardsmen are applications to the proposed sentence review commission, and applications to the Criminal Cases Review Commission, subject to discussion with their legal advisors. The timing surrounding the sentence review commission is subject to the wishes of Parliament, and subsequently a matter for consideration by the proposed commission in light of an application from the guardsmen.

In summary, therefore, two means of obtaining the guardsmen's release from custody are already under active consideration. Of the other two means, one is already available and the second will shortly become so, should the guardsmen choose to take the opportunity to make representations.

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