We move to the substantive item on the agenda, the meeting with the Finucane family and Mr. Peter Madden of Madden & Finucane Solicitors in regard to their grave concerns on the issues surrounding the death of the solicitor, Mr. Patrick Finucane, in February 1989. I welcome Mr. Michael Finucane, Mr. Peter Madden and Mr. Dermot Finucane. We are glad to have the opportunity to hear from them. I draw attention to the fact that while members of the sub-committee have absolute privilege, the same privilege does not apply to witnesses appearing before the sub-committee. I ask Mr. Madden to begin the presentation. Members will then ask questions.
Northern Ireland Issues: Presentation.
Mr. Peter Madden
I thank the Chairman for his kind welcome.
I was Pat Finucane's law partner when he was murdered 17 years ago. I am accompanied by his son, Michael Finucane, and his brother, Dermot Finucane. We thank the sub-committee for giving us the opportunity to present to it an update on the family's campaign for a full public inquiry into Pat's murder. Most members are aware of the issues arising and the circumstances surrounding the murder. For the past two or three months, the family has been involved in updating political leaders in Ireland. It has met all the political leaders, including the Taoiseach and Unionist political leaders. On Tuesday of this week, the family met the Secretary of State for Northern Ireland, Peter Hain. The principal issue is whether the family will be given a full public and independent inquiry into the murder of Mr. Pat Finucane. After the meeting with Peter Hain, it appears this will not be the case, that the family will not be given such an inquiry. This is because the British Government insists the inquiry should be held under the new legislation which it specifically introduced to cover Pat's inquiry. I refer to the Inquiries Act 2005, which was enacted recently to deal with all inquiries, but which has a particular impact on Pat's case.
The family's main problem with the Inquiries Act is that it changes the goalposts. It changes the rules and removes control of the inquiry from its panel of judges to the relevant British Government Minister, which is a drastic and draconian change in the law. The previous legislation, the Tribunals of Inquiry Act 1921, still applies in this jurisdiction. All public inquiries held under that Act were presided over by an independent panel which was able to make all decisions, including those pertaining to public interest, immunity, national security and similar matters. However, the new Act allows the Minister to remove responsibility for any of those decisions from the panel. Moreover, the Minister has total control over the publication of documents and other material to be dealt with by the panel. In addition, the Minister can decide which witnesses and what evidence may be heard in camera. I have outlined the family’s problems regarding the Inquiries Act. Mr. Michael Finucane attended the family’s meeting with Peter Hain on Tuesday last and may be able to provide a more detailed synopsis of that meeting.
Mr. Madden has mentioned in passing the family's meeting on Tuesday last with Peter Hain. Perhaps Mr. Michael Finucane will discuss that meeting, as well as other matters which he considers to be relevant to the broader issue.
As some members may be aware, the proposed inquiry under discussion is based on an agreement between the British and Irish Governments arising from the Weston Park negotiations in 2001. Six cases were considered to be of such significance that they required examination by an independent judge. The judge appointed was Peter Cory, a former justice of the Canadian Supreme Court, who recommended inquiries in five of those cases. One such inquiry — members may have seen the advertisement in today's newspapers — will be presided over by Judge Peter Smithwick and will investigate allegations of collusion in the murders of two RUC officers, Harry Breen and Bob Buchanan.
The Pat Finucane case has been particularly controversial because it has reached a stage where the existence of concrete evidence demonstrating collusion between many British state agencies and loyalist paramilitaries has gone beyond the point of doubt and is virtually certain. When we met the Secretary of State, Peter Hain, the day before yesterday, he conceded that it was not a question of whether there was collusion but of how much. He stated that he believed an inquiry would be obliged to determine how far up the chain the collusion went. Despite his many protestations that the British Government is as interested in getting to the truth as is my family, he went on to insist that the Inquiries Act is the only vehicle capable of getting to the truth. He is correct, in so far as it is the only legislative mechanism left that mandates an inquiry. However, in so far as that legislation will actually get to the truth in terms of the murder of Pat Finucane and the issue of collusion, he is wrong. Quite clearly, not only was the Inquiries Act introduced to update the law, but I believe certain parts of it were specifically drafted to deal with the Pat Finucane case, given its potential implications.
The restriction notices to which Mr. Peter Madden referred are contained within a particular section of the Act. The Secretary of State explained that the restriction notice was in the process of being prepared by the British Government. He explained that it would be prepared in consultation with the judge presiding over the inquiry, whosoever that might ultimately be, and that the judge would have to agree with it. Obviously however, and the point was put to the Secretary of State in this manner, if the judge did not agree with the restriction notice, he or she would have two stark options. First, the judge could preside over an inquiry, the rules of which he or she fundamentally disagreed with, and would therefore look like a fool; or second, the judge could resign from the inquiry. In a nutshell, this means that it would be the British Government's way or the highway. This concerns British Government control of an inquiry into its own establishment and, in particular, its own security services.
I have notes to hand from the meeting with the Secretary of State. In so far as I was able to jot things down while simultaneously talking and listening, I noted that the Secretary of State stated that the Inquiries Act was necessary, particularly the restriction notices, "in order to get the co-operation of the security services". The tail is wagging the dog and it is absolutely clear that the security services are dictating what will be disclosed, how it will be disclosed and to whom. This was made explicit in our meeting with the British Secretary of State. It was not an inference or a conclusion that one was obliged to draw. This was told to us in plain, unambiguous terms.
My family is in the position of badly wanting an inquiry and to participate in a meaningful exercise that is capable of getting to the truth. We want the inquiry to use a mechanism in which we can have confidence, to possess elements of accountability and transparency, and to be independently verifiable without anyone being obliged to take anyone else's word for it. However, the British have adopted a position which makes that impossible, because they retain ultimate control of the inquiry mechanism. I believe that because decisions will be taken at an executive level by a British Minister, they may well be immune from challenge. In such circumstances, one would be agreeing to a British Government-controlled intelligence services inquiry where it could transpire that the only people speaking to one another in the room would be those very people who created the collusion monster in the first place, namely, the people who sanctioned the killings and who covered them up afterwards. I will not participate in such a sham.
While I am sure that my colleagues on the committee also want to participate, I wish to ask a question first in respect of the meeting last Tuesday. Obviously, from what one reads, it was an extremely frank meeting in which the Finucane family expressed its grave concerns to Peter Hain. Did the meeting conclude with an intention on the part of the two sides to meet again? Will further dialogue take place between the family and the Secretary of State? Obviously, the family did not reach a conclusion which satisfied it to any extent. Will there be a further attempt to make progress in the matter?
Yes, we will certainly attempt to make further progress. However, it remains to be seen whether progress will come about as a result of further meetings between my family and the Secretary of State.
The British argument seems to be ridiculous, that on one hand they want to get to the truth and are very anxious to do so, but on the other the only way to do it is through a statute that restricts, controls and, where necessary, deletes the very information my family and the wider public want to see and make known. In this respect and because we had different positions, the meeting did not go anywhere very fast. It was absolutely clear that the British had no interest whatsoever in accommodating the needs or interests of the victim's family, in this particular case my family. I understand that the same is being done in the Wright inquiry. That family involved is judicially reviewing the decision of the Secretary of State to convert to an Inquiries Act 2005 mechanism. It seems to be a consistent policy.
I think the way forward for my family is to seek a meeting with the Taoiseach and ask the Irish Government to become involved and bring as much pressure to bear as possible on the British to discontinue this exercise and instead establish a proper public inquiry capable of commanding general confidence.
I must leave to speak on a Bill at 1 o'clock. That is not as important as what we have just heard. I very much appreciate the opportunity to hear the members of the Finucane family and a spokesperson on their behalf.
I will come straight to the point. We have received a briefing note from the Department of Foreign Affairs on this case but there is a certain background to it. There will be consensus among people present in respect of what attitude we should take. I propose that this sub-committee recommend to the Government that it inform the British Government that this is beyond a point of concern and it objects to the process proposed by the British Government, which is unacceptable to the Finucane family. I will give one or two reasons.
We are a human rights sub-committee and if we are to proceed on the basis of vindicating human rights, the Finucane family is entitled to the benefit of good international law, proper legislation and an unequivocal set of guarantees arising from the cordial relationship between two sovereign Governments. That being the case, it is a concern beyond the Finucane case that the inquiries legislation that has been produced in Britain is a serious mitigation of the type of guarantees that might have flown from earlier human rights legislation.
Perhaps I am cutting short a great deal of the background to this matter. The position taken by the Irish Government at the Geneva hearing of the United Human Rights Commission was that it noted and welcomed the most recent British legislation but expressed concern. The reason I made my proposal is that I believe it is necessary to go beyond that point. In so far as the revision of the legislation governing inquiries in Britain departs so fundamentally from the framework of public inquiries legislation which would be adequate, it must be objected to. Following objections proceed beyond that.
I will speak on the issue of what is public and what is private by way of hearings. As we have heard, the inquiry does not comply with the fundamental requirement of being in public. The background notes supplied on this case by different organisations suggest that the Finucane family and their representatives stated at certain stages that they understood some aspects could be held in private, but this should be at the discretion of the independent chair of the inquiry rather than being the fruit of the intrusion of the state which is, after all, a party to what is being investigated. This is fundamental. If one wants to vindicate human rights law in any sense, one must try to hold to the principle of the integrity of the body to be set up and the right of the chair to exercise such discretion.
Another point is on the status of the people who would either voluntarily attend or be subpoenaed to come before the group. One cannot have those who have been called establishing conditionalities as to the forms and shape of their participation. At that stage, what one is doing in one version is making concessions to state violence rather than doing anything to offer satisfaction to those who have rightfully sought an inquiry to establish fact and discover the truth, which might be of assistance to people to get beyond these events. To put it bluntly, a minimal inquiry is not satisfaction but a very minimal process.
We have our sovereign Government, Britain is Britain and so forth. Why then should I comment at all on the adequacy of the legislation? Frankly, I should do so because it affects someone we are involved with — not just the Finucane case but other cases. As I have strongly asserted, what is taking place in the Inquiries Act 2005 is a very serious diminution of that which countries in common have assented and signed up to. When we sign up to a body, certainly in respect of the corpus of European law and the European Convention on Human Rights, we must accept the disciplines therein. Britain should not be assisted in escaping it.
Beyond all of these issues, it is very clear that, in respect of what is being said, matters of law are becoming political matters. Issues of rights are never really vindicated if they are made conditional on what are alleged to be matters of security. If that were the case, one could never have the state as an equal party to an investigation or an inquiry. The state would effectively be immune and could simply use the argument of security reasons.
As far as I am concerned about all of this, Judge Cory's description of what was required, basic human rights provisions and reasonable requirements from the Finucane family are not being met. It is far beyond a matter of concern. It is no longer a matter for dialogue but for assertion. We should give formal notice to the British authorities that action may need to be taken by the Irish Government in order to meet the requirements of international law. I have made a proposal.
We will get back to the Deputy's proposal towards the end of the meeting.
I also must go and I was about to suggest that my colleague, Deputy Carey, might wish to speak before me. He is the co-chair of the British-Irish Interparliamentary Body and I would be happy to defer to him. That said, I have questions.
I welcome the members of the Finucane family. I will not go over the ground traversed by Deputy Michael Higgins as we here are as one. Before this meeting convened, we informally suggested that this is an open and shut case. Without putting a tooth in it, this is a rather cynical approach by the United Kingdom's Government. I do not say this lightly. As Deputy Michael Higgins proposed, we should indicate to the Government that we are deeply unhappy about this matter and suggest it take the strongest possible action. I regard it as being a red line issue for the sub-committee in the area of human rights. The British-Irish Rights Watch document, which was circulated to this committee, provides a very comprehensive analysis of what has happened and could happen.
In conversations with the Secretary of State did the family explore the international human rights legal implications of what the British Government has proposed, bearing in mind that it is widely agreed this is neither independent nor public? There is no point in attempting to dress it up in any way. What was the response of the Secretary of State to obvious and correct concerns? Some of the best jurists have recommended no self-respecting judge should participate in this exercise so the British Government needs to go back to the drawing board. We are all of the same mind on this question.
Judge Cory clearly and unambiguously states that it clearly indicates "that there is strong evidence collusive acts were committed by the Army (FRU), the RUC SB and the Security Service. I am satisfied there is a need for a public inquiry". In light of this how has Secretary of State Hain justified using the new Act, knowing that Judge Cory has made this statement in concluding that there should be an inquiry? Restrictions will be imposed on the security services, the same people alleged to have been involved in collusion. How did Secretary of State Hain respond to this and what preparations did he outline on the restrictions that would be imposed? Did he elaborate on the restrictions that would be introduced in the Act?
Like my friend and colleague, it pains me to be critical of the British political establishment on this issue as it has been trustworthy and credible in a range of other areas. The relationship between our sovereign Governments, including at parliamentary level, as evidenced by meetings of the British-Irish Interparliamentary Body, has never been better. There has never been greater openness, transparency and trust. It pains us to have to challenge this initiative.
I wish I could have greater faith in the British Government's position but one cannot when other inquiries established by the British Government are considered. Examples of this include the Widgery inquiry on events in Derry; the "appalling vista" remarks regarding the Birmingham Six, where the establishment could not conceive of collusion by the British police; the Stalker inquiry, stopped dead in its tracks; and the recent BBC inquiry, which effectively whitewashed the attempt by the spin section of the British Government to attack an independent public service broadcaster. In that context the Finucane family is entitled to hold the line on this matter. What, if any, alternative is open to the family if the British Government continues on this path?
Before we have a reply we will take questions from Deputy Gregory and Senator White.
I support the approach of Deputy Michael D. Higgins. The British seem to have another cover-up planned, reminiscent of the British Government's refusal to co-operate on the Dublin and Monaghan bombing inquiries, perhaps for the same reason. An independent public inquiry into collusion by the British establishment and security services is required. What is offered is a British Government controlled inquiry into its own collusion. This is nonsense and is a non-runner as far as members of this committee are concerned. All we can do is exert pressure on our Government to communicate the message to the British Government that this is unacceptable.
I support my colleagues. I draw members' attention to the recently published autobiography of Sir John Stevens. In the first chapter he addresses collusion in Belfast, which is fantastic. I am sceptical as I do not envisage the British Government responding in the way we wish them to respond. I believe the attitude of "might is right" will prevail. What is the alternative? I do not think the British Government will respond to our Government.
Senator White's comments are depressing but genuine and raise some questions. I invite Mr. Madden and Mr. Michael Finucane to respond, in particular to address Deputy Higgins's proposal on how the committee should pursue this matter. Deputy Carey raised the international dimension and Senator Mooney raised some other issues.
Mr. Madden
I refer to the remarks on Judge Cory, who brought the situation forward through a letter, dated 15 March 2005, to Congressman Chris Smith in Washington. He referred to the Inquiries Act and stated: "It really creates an intolerable Alice in Wonderland situation." He further stated:
If the new act were to become law I would advise all Canadian judges to decline an appointment in light of the impossible situation they would be facing. In fact, I cannot contemplate any self-respecting Canadian judge accepting appointment to an inquiry constituted under the new proposed act.
Judge Cory, appointed to review the papers in the case, states it is an impossible situation for any judge sitting on any panel appointed by a government. Irrespective of how reputable the judge or panel is, the situation would be impossible.
I agree with Mr. Hain's comments that this matter is a concern beyond the Finucane case. This goes beyond the Finucane family as it is a concern of the Irish Government and people. That the British Government has reneged on the Weston Park agreement is a concern and should be closely examined. We met the Attorney General last year and asked him to examine the agreement. We suggest this is an agreement that could be legislated in some way. There is a clear international obligation and the Government should examine this.
The alternative is that new legislation be introduced to the British Parliament to deal solely with this inquiry, on the basis that this is an international agreement between the two governments and is therefore different from any other matter than might be considered under the Inquiries Act. There are other options but it is a matter for the British Government to comply with the recommendations of Judge Cory, who made his position clear. The legislation is in place. It is impossible for me, or the family, to take part in an inquiry under that Act. That position is reinforced by the remarks of Judge Cory and Lord Saville who sat on the Bloody Sunday inquiry. The two other judges who sat on that inquiry, from Canada and Australia, both agreed they would not take part in any such inquiry under the Act. We are grateful for the comments and remarks of committee members.
I will respond to the questions raised by Deputy Carey and Senator Mooney regarding international legal options and the response of the Secretary of State, Mr. Hain. We secured a ruling from the European Court of Human Rights that a violation of Article 2 of the convention took place in this case because a proper investigation was not carried out. A great deal of international pressure has come from the United Nations as well as various committees and commissions. Hearings have taken place not only in this Parliament but also in the United States.
The object of any international pressure is to force a domestic solution and to persuade the Government causing the problem to address and solve it. That is where the issue gets extremely difficult. The Secretary of State insists that the solution can be found within the Inquiries Act. Having met the British Prime Minister I can tell committee members that his position is identical. I believe their arguments to be entirely inapposite. However, no amount of persuasion will convince them to state otherwise. Whether they truly believe it is another matter. They certainly will not concede it out loud. Alternatives must be found, they must find them and I believe they must be pressurised into finding them.
In so far as restriction notices are concerned, the Secretary of State, Mr. Hain, explained that a notice is in the process of being prepared. My impression is that it is in the early stages of preparation. Once it is prepared, it will form a wide-ranging catch-all provision to deal with all security issues. I put it to the Secretary of State, Mr. Hain, that it sounds like a blanket ban. I believe that is exactly what it is. He did not agree with my characterisation.
The alternative mechanism in place under the old 1921 Act involved public interest immunity whereby the chair of a tribunal made rulings in sequence when matters were presented. The British Government does not like that and wants to move away from it. It states that so many public interest immunity applications would be made that it would be better to have a restriction notice to cover everything. The obvious conclusion reached is that by using the restriction notice mechanism, information the British Government is prepared to allow into the public domain is ring-fenced while all else remains in darkness.
I hope I answered the specific questions. I wish to state more on another matter. Senator White correctly asked what can be done, and to a certain extent might is right. However, I ask the committee to consider what we have learned in the 17 years since Pat Finucane was murdered. This has not been a failed campaign by any manner of means, albeit that we have not yet arrived at our final destination. We now know so much more about what went on than we did 17 years ago, not only on the concept of collusion but also on the details. People affected by it or who had suspicions now have facts and are able to move forward with much more confidence.
The information and knowledge that has emerged as a result of the Pat Finucane case has provided many people with certainty in circumstances where they had nothing but doubt. There have been considerable successes. In some ways the British establishment is still coming to grips with the accusations made against it. This accusation is extremely real and compelling and the British establishment must come to grips with it. If it does not do so voluntarily, it must be pushed.
Will Deputy Higgins refer to his proposal in as concise a fashion as possible?
: The Sub-Committee on Human Rights, in reporting to the Joint Oireachtas Committee on Foreign Affairs, recommends that the Irish Government take such actions as are necessary as it is insufficient to simply express concern. The sub-committee is of the opinion that further action should now be taken by the Irish Government to express its rejection of the proposed form of public inquiry under the inquiries legislation introduced to replace the Inquiries Act 1921.
The proposal comprises words to that effect.
If I might make a point on another issue. The Council of Europe is the home of the European convention, and this case is still before a committee of Ministers. That case is, in turn, affected by the case before the House of Lords regarding whether Britain's compliance with Article 2 of the convention starts on the date when the legislation was introduced or whether it includes cases where people died before that date. Having passed this resolution, the Irish Government should be ready to act on the matter extremely quickly following the decision of the House of Lords.
The entire purpose of my resolution is to enable us to initiate action if necessary through Geneva and pursue it from there. I imagine the legal opinion to the Irish Government from the Attorney General would have been affected and changed at that stage.
The motion has been seconded by Deputy Carey. We will send that motion to the Joint Oireachtas Committee on Foreign Affairs. Before we conclude, does the delegation have any further point or other issues it wishes us to press further? In Mr. Madden's contribution he spoke about the mechanism whereby legislation may be introduced in Britain to deal with this specific case. Did he raise that issue with the Secretary of State, Mr. Hain, on Tuesday?
Mr. Madden
The issue of alternatives was raised at that meeting. However, it is a matter for the British Government to determine how it can comply with the Weston Park agreement and Judge Cory's recommendations. The removal of control from the panel which is at the heart of the Inquiries Act will not do so. If the British Government establishes the inquiry under that Act, the family will not take part in it. That is a clear position and we are supported in that by the Irish Government. That will continue. As far as the British Government is concerned, if it decides not to have any inquiry because the family is rejecting one under the Act, then the family's campaign to get a proper inquiry will continue both at home and internationally.
We are joined by Senator Leyden. I trust he is aware that the meeting is almost at an end. If he has a brief contribution to make, I ask him to make it now.
I was listening to the debate on the monitor in my office and I am sorry that I was unable to attend in person until now. I lend my full support to the Finucane family in its pursuit of a public inquiry into the murder of Mr. Pat Finucane as it is the only way to get to the truth. What happened to Mr. Finucane has major implications for the British Government. It was essentially a state assassination. I wish to be associated with the campaign to have the truth revealed, irrespective of the consequences for the British Government or whoever was involved in the murder.
I wish to make a point in the context of the latter part of this discussion dealing with the provision of alternative legislation. What support, if any, has the family received from government party MPs in the House of Commons in pursuing this route?
Mr. Madden
We have not contacted many MPs. We attended a meeting last year at Westminster and received a degree of support from a number of MPs, Labour Party MPs in particular. As far as the campaign is concerned, one of the proposals is to meet more British representatives to discuss our position with them. There is growing concern in Britain about the Act. The announcement of a public inquiry is very rare in any society and many in Britain are concerned about the Act as it is applied to other issues such as deep cut cases.
My question was prompted by the political reality, the numbers game, at Westminster where the Government has come under severe threat, been defeated on a number of its own important proposals and had to withdraw legislation. In that context, articulating a concern that is widespread within the United Kingdom, not just about this case but also about the Inquiries Act, would be a very sound alternative for the campaign to consider. The initiation of a political campaign for the enactment of alternative legislation might be effective if the British Government, as the family has indicated, is digging its heels in on this issue. A challenge to the Government on the floor of the House of Commons might be a useful way to advance the campaign.
Before the Inquiries Act became law, that is, when it was still a Bill, we visited London a number of times and met MPs, some of whom were very supportive. With other public interest groups concerned with public inquiries and public accountability, we lobbied hard for the Bill not to be passed into law before the last British general election. However, the weight of numbers was much more in favour of the Labour Party Government at the time and despite our efforts and those of many others, we were unable to prevent the passage of the Bill into law.
That was a different time.
: Yes, it was.
Things have changed substantially at Westminster since.
Our best hope is for new legislation to be introduced to deal with this case or the Act to be amended permanently, if appropriate. This case is the subject of a bilateral agreement between the two Governments, which means there is a sound basis on which to insist that special provision be made for it in new legislation.
Some of us here are members of the British-Irish Interparliamentary Body and if we can assist the family in raising awareness among our colleagues at Westminster, we will do so. Perhaps we could organise something at our next plenary session which is scheduled to be held in Killarney in April. I suggest the family get in touch with the clerk to the committee and we will attempt to accommodate it.
I thank the Deputy for that offer.
I suspect many of our counterparts in the United Kingdom do not know a lot about the case.
Mr. Madden referred to a series of meetings with Unionist leaders. Was this engagement of any benefit?
Mr. Madden
Yes, we received a very positive response from them. The only leader we have not met is Dr. Ian Paisley and we intend to see him on Monday. He was not left until last on purpose; it was simply a matter of co-ordinating our diaries. The Unionist political leaders listened very courteously to the case we made. They also stressed their support in a search for the truth, given that there are people in their own communities who are also searching for the truth about incidents that occurred during the conflict.
It appears that, apart from the British Government, opinion is at one on the matter.
My family also met the leader of Fine Gael, Deputy Kenny, who is working on the draft of an all-party Oireachtas motion supporting the family's position and insisting on the holding of a proper public inquiry. That is another worthwhile endeavour in the process.
I thank Mr. Madden and Mr. Finucane for their presentation and engaging with the sub-committee. We will pursue the matter in the way proposed by Deputy Higgins, with the support of Deputy Carey whose suggestion that we should try to facilitate a meeting between Mr. Finucane, Mr. Madden and the British-Irish Interparliamentary Body is also helpful. If we can be of further assistance, I ask the family to contact us. If it believes another presentation would be useful, we would be delighted to facilitate it.
The joint committee went into private session at 1 p.m. and adjourned at 1.05 p.m., sine die.