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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

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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: Oh!

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

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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

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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

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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.


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