Public Hearings on the Barron Report.

Good morning, ladies and gentlemen. I am delighted to welcome back to the resumed hearings of the sub-committee on the Barron report, the report of the independent commission of inquiry on the Dublin and Monaghan bombings of 1974, Mr. Michael Collins, SC, and Mr. Antonio Bueno, QC, both of whom are reappearing to discuss the points raised in a written opinion prepared by them on the following five points, namely, the procedure and practice involved in making an application to the English courts on behalf of a tribunal of inquiry set up in Ireland to inquire into the Dublin and Monaghan bombings of 1974; the difficulties or problems likely to be encountered in making such a request; some idea of how the British authorities and/or the English courts would or might deal with such an application in the light of the possible security implications; if possible, some view on the prospect of success of such applications; and whether the State has a duty to set up a tribunal of inquiry by virtue of Article 2 of the European Convention on Human Rights.

Our guests have seen and taken into account over the weekend the submissions of Justice for the Forgotten and Mr. Desmond Doherty, solicitor for some of the victims. I understand they have also received a letter from Mr. Cormac Ó Dulacháin setting out various matters. I ask Mr. Collins to address us now on these matters.

Mr. Michael Collins, SC

We are going to split our contribution as we did the last day. I will, therefore, ask Mr. Bueno to speak first, if that is in order.

I must remind you that Oireachtas Members enjoy parliamentary privilege and that that privilege does not extend to you.

Mr. Antonio Bueno, QC

I am grateful for your introduction and that you have reviewed our terms of reference. It is important to emphasise at the outset that our terms of reference, if that is the correct way to describe our role, are indeed circumscribed. The questions we were asked to deal with were very specific and of course we do not have the advantage that many others involved with this wretched business have had of investigating the affairs giving rise to these bombings and their aftermath, investigations which have been carried out over a period of many years.

We have based ourselves largely upon the conclusions expressed by Mr. Justice Barron in his report and I hope I do not oversimplify matters when I say he appears to have been focused on two principal aspects. First was his inability to properly investigate the involvement of the security services in the events of 1974. When I say "involvement" I mean alleged involvement. He expressed concerns that the co-operation which was vouchsafed by the Northern Irish and British authorities was limited. Second, in dealing with the alleged lack of proper investigation by the Garda following these bombings and what was said to be the rather limited involvement of the Irish Government in vigorously pursuing these matters, he expressed himself to be satisfied that he had obtained all the co-operation which was reasonably obtainable from the Irish authorities and also that he was satisfied that he had been provided with all the documents which were still in existence.

It is very much in this context that we have addressed our role. It is also right to say by way of general preface that we have focused on the possible evidence-gathering powers of a tribunal established under the 1921 Act and, in particular, what the likely result would be of issuing letters of request seeking both documentary evidence and also the examination of witnesses. We would not for one moment presume to express any views at all as to the very considerable background to all these matters, which are outside our terms of reference.

I have to point out that many of the observations made by Mr. Ó Dúlacháin and some of the submissions made by others on behalf of the interested parties have tended to focus on matters which are extraneous to the points I have just mentioned. We are simply in no position to make any representations to the tribunal about that. Suffice it to say that we stand by the views we expressed previously - that the prospects of obtaining anything worthwhile on foot of letters of request, whether in terms of documentary or oral evidence, will be limited if the British Government maintains its previously expressed position that to make any further disclosure would be inimical either to the public interest or, indeed, would endanger human life. In fact, if that is to be perpetuated as the objection to production - that there would, as a result, be endangerment to human life - then we would regard that as a very substantial obstacle in the way of obtaining that information. Although we cannot with complete confidence say that the British courts would embargo the release of information if that type of objection were raised, what we can say is that the prospects of an order being made which would give effect to the real requirements of an investigative tribunal would be extremely limited. In fact, we would put it at the level of being highly speculative.

Having said that, we have read and considered with care everything which Mr. Ó Dúlacháin and others have said regarding the applicable legal principles. If we were to try to establish the points of contact between us as to what were the applicable legal principles, whether in terms of the methodology of obtaining this information or with regard, for example, to the principles of the human rights legislation, I guess that there would be very substantial points of contact. There is probably very little that divides us. What divides us is how these principles are to be applied to the facts of this case. We consider that in applying these principles to the facts as we know them - I emphasise that our remit is a limited one - we have to be pessimistic about anything worthwhile being achieved.

I make those opening remarks because it is important to understand and to assuage any misgivings on the part of, for example, those representing Justice for the Forgotten that we are not in any way attempting to subvert any efforts being made on their part to obtain a proper investigation of this matter. We are here simply to provide our views, based upon what we consider to be a measured legal analysis of the situation. We have struggled to contain our sense of outrage about the events of 1974 but, equally, we must not permit this sense of outrage to distort or cloud our professional judgments.

You, Sir, and your colleagues have considered Mr. Ó Dúlacháin's letter addressed to us of 4 March. You will see that he deals with two principal matters - I am looking at paragraph 2 of our joint opinion. He expresses concern with regard to what he describes as "mainly paragraph 33" where we advert to the fact that there are formidable difficulties in the way of obtaining information and that we think it unlikely that the High Court would not uphold a claim for immunity from disclosure. In such event the establishment of any tribunal of inquiry would turn out to be largely cosmetic, which would be a very unsatisfactory result. You will remember, Sir, that we expressed the view that almost a sea change would be required in the attitude of the British authorities before any voluntary co-operation could be expected to be forthcoming.

The second matter which troubled Mr. Ó Dúlacháin was the suggested emphasis placed in the second section of our joint opinion, that is, the section dealing with the human rights aspects. It is there that we dealt with the possibility that an investigation could bring about a possible prosecution for murder or manslaughter. This he described as the key criterion which would bear upon the sub-committee's decision on whether to recommend the establishment of a tribunal of inquiry. In fact, it was not the key criterion but a criterion. There were other matters of equal importance, on which Mr. Collins addressed the sub-committee last time and which he will deal with again this morning.

Picking up on what I have said by way of general introduction, with a caveat that we do not have the background knowledge of those who have been concerned with the events of 1974 for some years, the views we have expressed are that a sea change in the UK Government's attitude will be necessary before the evidence required will be voluntarily disclosed. We emphasise the view that the same uncompromising position would, very probably, be maintained if orders were made in pursuance of letters of request, given that the basis for non-disclosure has been that this would endanger life or national security.

We do not share the views expressed in the supplemental submissions on behalf of the O'Neill and O'Brien families and Bernadette Bergin - a lawyers' submission by Mr. Mansfield, Mr. McGonagle and, I think, their junior - that the issue of letters of request will psychologically, politically and diplomatically coerce the British Government into a change of attitude, in other words, morally force it to comply with that sort of formal request. We think, with respect, that this is a very adventurous suggestion because the British Government has already, in the teeth of very strong efforts made to get it voluntarily to disclose information, refused to do so. The die is cast. As we say in the concluding sentence, "The British Government and the Northern Ireland authorities have already made their positions very clear and these have been robustly recorded by Mr. Justice Barron".

Without having seen those submissions, you and your colleagues, Sir, will recall that on the previous occasion I observed that I understood Mr. Mansfield was submitting that the psychological impact of issuing letters of request would be such that the British Government would find itself morally obliged to disclose that information. I respectfully have to say that is remote to the point of being fanciful. I simply cannot share that enthusiastic suggestion.

In paragraph 4 we said that we were not surprised to learn, as we did for the first time on Wednesday last week, that in a letter dated 9 February from the Northern Ireland Office to Mr. Doherty, the position was again made extremely clear. This reinforces the points I made a few moments ago. I will not read out the text of this letter because it was read out previously. I will emphasise what was said in the last sentence. Having made it clear that the British Government and the Northern Ireland Office, in particular, are not prepared to disclose any further information, because of concerns about national security and so forth, the writer concludes: "We would repeat this approach in supplying information to any judicial inquiry". It seems to us that it could not be plainer than that.

In paragraph 5 of our joint opinion and with reference to specific questions with which we were asked to deal - which the Chairman read out at the beginning of this session - in order to bring some focus to what we were asked to do, we continue in these terms. If, as appears to be the conclusion reached by Mr. Justice Barron, inquiries cannot realistically be taken further without full co-operation from the UK Government or by means of effective court orders in these other jurisdictions, then it would seem to follow that this is a particularly important matter for the sub-committee to consider. In this regard we observe that the supplemental submissions are concerned largely with the obtaining of material from the relevant UK authorities, emphasising the central importance of such evidence gathering.

In paragraph 6, as I mentioned, Mr. Justice Barron expresses himself satisfied that he had received co-operation from the Irish authorities and that they had provided him with such relevant documentation still in their possession. Mr. Ó Dúlacháin says, and we cannot comment on this responsibly, that there is a wealth of material and testimony from different sources commencing with the material available to Mr. Justice Barron. In his letter he identified various categories of documentation, most of which, it appears to us, was in the public domain. Looking at the list of documents which he mentions - the bottom of page two of his letter under the general rubric of paragraph 33 - he states: "Regard has to be had to the considerable amount of documentation over which no issue of public interest immunity can arise because the documentation has been in the public domain". He then refers to various categories of record, books of evidence and so on. According to my understanding, all this material should be readily obtainable. I struggle to understand why it is necessary for a tribunal of inquiry to be established to deal with that type of material. Again, without knowing exactly what it is that was provided to Mr. Justice Barron, one must suppose that these avenues of inquiry would have been pursued by him.

A variety of other points were raised by Mr. Ó Dúlacháin in his letter. The real point I think he makes is that there is a considerable background which is out with the particular topics with which we were asked to deal. He seems to suggest that the committee should not be overswayed by the importance of the submissions which we are making with regard to the likely effectiveness of the issue of letters of request and other steps taken to obtain evidence from the British and Northern Irish authorities in pursuance of any orders which might be issued by the tribunal. These are matters upon which we would not wish to trespass because we are not in a position, and would not presume, to make submissions to the committee as to what other factors should be taken into account in deciding whether a tribunal of inquiry should be established. We are simply concerned with the effectiveness of any orders that might be made under a tribunal established in accordance with the provisions of the 1921 Act.

So far as the remainder of our submissions are concerned, on the first section, that is to deal with the non human rights issue, Mr. O Dúlacháin has rightly pointed out in his letter that issues of public interest immunity are not within the sole prerogative of the Department which is asserting that immunity but that there is here the possibility of a judicial intervention to test whether that immunity is one which can be properly invoked as a matter of law, taking into account the relevant fact as when public interest immunity is being asserted.

In our earlier opinion we went to some trouble to set out what the three step approach was and it is in paragraph No. 29 of our joint opinion. I am now looking at paragraph No. 8 of our supplemental advice. One has to assume that the British Government and in particular the Secretary of State when he wrote last year, was properly informed as to what his obligations were as a Government Minister and what steps were required to be taken by him in determining whether or not it was appropriate to claim public interest immunity. It would be unwise, in our respectful submission, to proceed on the basis that that process was flawed. As we pointed out last time, our understanding is that the inquiry which was set up to be conducted by Mr. Justice Barron, followed upon assurances given at very senior intergovernmental level that there would be full and appropriate measures of co-operation. One therefore has to assume that the Secretary of State acted with responsibility, taking appropriate legal advice and that the decision he came to was fully consonant with a three step approach which we have described. That is now official Government policy.

It is right that if letters of request are issued and if the British court makes an order on the back of those letters of request, that if public interest immunity is invoked, then the ultimate arbiter will be the English High Court. That is absolutely correct and we do not demur from that for one moment; that is the methodology. However, on the other hand, we cavil with the suggestion that once the order is made, then it is more likely than not that the information will be vouchsafed. In our respectful submission, that is not true.

We mention in paragraph No. 9 that the Saville tribunal, as I mentioned on the previous occasion, had to deal with issues of public interest immunity in relation to sensitive categories of documentation in respect of which that immunity was claimed. Without wishing to over-simplify matters, the single most cogent reason which was relied upon for upholding the claim to immunity was when it was asserted on substantial grounds that there was a risk to human life involved. It was held that if that was established, then questions of human rights simply did not arise because that was the paramount consideration.

I may have proceeded too quickly. I will mention one other matter which is in relation to paragraph No. 8 of our supplemental opinion. We have reviewed very quickly the fact that any claim for public interest immunity would have to be judicially tested. We point out in the last sentence - this is consistent with jurisprudence in the United Kingdom - that we have also borne in mind that the function of a tribunal of inquiry is not to prosecute but to do justice by ascertaining through its inquisitorial process the truth of what occurred in relation to the 1974 bombings. With this critical factor in mind, we still stand by the submissions we have respectfully advanced. That brings me to the end of my section. The views we have expressed are summarised in paragraph No. 10.

Thank you very much, Mr. Bueno.

Mr. Collins

The section I want to deal with concerns a couple of propositions put forward by Mr. Ó Dúlacháin and which are also apparent from a number of the submissions made on behalf of the Justice for the Forgotten group. I take first the point regarding whether we put undue stress on the importance of obtaining evidence for the purpose of a criminal prosecution in this State, subsequently, against the perpetrators. Mr. Ó Dúlacháin makes the point, with which I tend to agree, that the issue of whether a tribunal of inquiry should be set up is only one factor to be considered. I agree with that in so far as the sub-committee and the State's overall evaluation of the matter is concerned. We were focusing in this question exclusively on the argument about Article 2 of the convention on human rights.

The Article 2 argument was that there is a right to life which is a substantive right and there is an ancillary right which is the right to have an effective official investigation where somebody has been killed. The purpose of that investigation and the meaning of the ancillary right is to vindicate, as far as possible under domestic law, the right to life. The primary way to vindicate the right to life of somebody who has already lost their life unlawfully is to try to bring the killer to justice. For that reason, we stressed that the primary purpose of analysing the Article 2 duty to investigate is to see whether one can get evidence for the purpose of a criminal prosecution. While we stand by that, we did not intend to say that is the primary factor to be considered in the overall consideration as distinct from merely analysing the Article 2 duty, which is what we were focusing on in the opinion. I deal with that at paragraph 11 of our joint opinion.

In his helpful submission, which helped us to focus our attention on they key points, Mr. Ó Dúlacháin said we may have overlooked the status of state wrongs. He makes the point that the events of 1974 all happened on a given day in a cross-Border context and that they have to be looked at as a whole. He referred to the involvement of the Irish State, both in terms of any information it may have had leading up to the bombings and, more particularly, in their aftermath, and to the manner in which the State dealt with them. However, we did not overlook the status of State wrongs. On the contrary, certainly in the Article 2 context, the classic case where one has a duty to investigate is where state agents themselves have been in some way responsible for unlawful deaths. That is the thing which most obviously triggers the duty to investigate. We laid some stress on that.

As we say on page 6, according to the facts as we understand them it may be the case that the state concerned is the United Kingdom rather than the Republic of Ireland. The evidence appears to be to the effect that it may have been agents of the United Kingdom Government which had the involvement by way of collusion in the bombings. There is a separate though related issue of the responsibility of this State for the subsequent inquiry and investigation into the bombings. As we have already pointed out in the first opinion, the duty to investigate is not limited to circumstances where state agents are involved in an unlawful killing. Therefore, it may well be the case that the Irish State had in 1974 and has now a duty to investigate under Article 2 simply on theinter alia ground in Lord Woolf’s opinion, to which I referred previously, even though Irish State agents may not have been lawfully involved in the killing.

The issue for the sub-committee and the State as a whole is to decide on the appropriate remedy if one makes the assumption that there was an inadequate investigation post 1974 by the Irish Government. We are working more or less on that assumption because we are tending to take Mr. Justice Barron's findings to that effect at face value. There may well have been a breach of its duty on the part of this State. The remedy being suggested is that a tribunal of inquiry should now be established to carry out the type of investigation which should have been carried out in 1974, but such a remedy is only effective if there is some point and purpose to the inquiry. In other words, one would have to be satisfied that there is some reasonable prospect of obtaining the kind of evidence which, though it might be inadequate for a prosecution, would realistically enable somebody to come to fairly reliable conclusions as to how the Irish Government carried out the investigation and whether it fulfilled its responsibilities in that regard.

Mr. Ó Dúlacháin says there is a wealth of information and material available which bears on the issue and which can be the subject of proper investigation. That may well be so though it is not within our professional competence. We do not even have the factual knowledge to be able to assess the validity of the proposition. The only thing we note is that Mr. Justice Barron seems to have been satisfied with the level of co-operation he got from the Irish authorities. Presumably, the issue of the adequacy of the Government's response in 1974 is something that primarily consists of information and documents within this State, so it appears there would not, on the face of it, have been a particular obstacle to Mr. Justice Barron looking into that issue. Beyond making that observation, we do not proffer a view and would not want to be taken as saying that one should not set up a tribunal of inquiry because this information that Mr. Ó Dúlacháin says is out there is worthless or useless or whatever. That is something on which we cannot comment.

We do think that in so far as one needs evidence from abroad, be it either for the purpose of identifying the perpetrators or in connection with the post-1974 events and whether the State properly investigated, one obviously has the difficulties about which Mr. Bueno has spoken. If there was a duty to investigate, we think the sub-committee probably would have to either set up a tribunal or go somewhat further than Mr. Justice Barron's inquiry because if there is an Article 2 duty to investigate, as we stated in the footnote, probably Mr. Justice Barron's inquiry, through no fault of his, may not have been an adequate fulfilment of that duty because he did not have the power to compel testimony. An effective official investigation probably would require the body inquiring to have the power to compel people to appear before it, compel the production of documents and so forth, so the Barron inquiry may not have been an adequate fulfilment of this. That does not answer the question as to whether setting up such a tribunal now would be the appropriate thing to do.

I will start with the last point raised. At the bottom of page 22, under point 52, the joint opinion states that it seems that the sub-committee has to evaluate the extent to which such an inquiry might sensibly be considered capable of producing the necessary evidence to support the prosecution. I now hear the qualification made in relation to this statement. As the witnesses are aware, our terms of reference are to determine whether a further public inquiry is required or fruitful. I think it has said the words "fruitful", "futile" which was used somewhere else, "effective" and "practical" are interchangeable. Is Mr. Collins saying that if the sub-committee comes to a conclusion, having heard all the submissions, that it is highly unlikely that anything further will be yielded, that we should not, in that scenario, proceed with a further inquiry?

Mr. Collins

I am saying the sub-committee would not be in breach of any Article 2 duty to investigate which might otherwise be in place. There is then the more general, if one likes, political issue, as to whether a tribunal should be set up. The statutory pre-condition to a tribunal is that it should be a matter of, to use the wording of the statute, "urgent public importance". One then has to decide about the allocation of State resources to it and whether that is the way money should be spent.

Effectively, Mr. Collins is saying that under Article 2, we would not have such an obligation.

Mr. Collins

Yes.

I will read a small excerpt from Professor Warbrick's statement to the sub-committee. He stated: "When you make the decision whether or not you should recommend the establishment of an inquiry in order to comply with the terms of Article 2 of the convention, I think you would not be entitled to take into account that it would be futile, on an estimation, that the British Government would not co-operate with it."

Mr. Collins

Yes, he did say——

Is that at variance with what you are saying?

Mr. Collins

That is at variance with what I am saying but, from memory, that passage occurs about a quarter of the way down the page of the transcript and if one goes about three quarters of the way down the same page - I do not have it in front of me——

It is page 56.

Mr. Collins

Professor Warbrick says something which seems to be the opposite of that and in conformity with what I am saying. I found his evidence just a little bit confusing on that issue. I am not sure I can exactly put my finger on it.

He said it was an effectiveness rather than a futility test. At the latter end of the page, he stated: "Would it be effective is the question that I think you ought to ask."

Mr. Collins

I am sorry, I am looking at the wrong transcript. It is at the bottom of the page; the Senator is right. Would it be effective in relation to Article 2 objectives? If one has doubts about that, if one is not satisfied, then I think that is one of the circumstances where the Strasbourg duty would not require the sub-committee to recommend an inquiry. That seems to be at odds with what he was saying in the earlier part but, irrespective of how one reconciles those two statements by him, it is the latter of those two statements, certainly, that I would tend to agree with.

I will put the same question to Mr. Collins that I put to Professor Warbrick. Until it is tested, all we have are opinions as to whether it may be fruitful or effective. Obviously, the only way it can be tested is to seek co-operation and then use the channel of the courts. Would Mr. Collins accept that proposition?

Mr. Collins

Yes, obviously the only way to test it is to do it. That is true of everything. All we can offer is an opinion on how likely it is that something would be successful.

Does Mr. Collins think there should be a presumption in favour of it, rather than a negative assumption at this stage?

Mr. Collins

A presumption in favour of setting up a tribunal of inquiry.

No, in favour of a positive outcome on the request.

Mr. Collins

No, I do not think one should make a presumption about it, one way or the other. The reason the Senator has asked us to consider it is to try to give him a view as to what is the likely outcome.

I refer Mr. Collins to page 60 of the transcript. On the first part of that page Professor Warbrick commented, "Very often, as you properly suggest, you will not know whether it has been effective until you have had the inquiry, so I think there should be a presumption in favour. If you can demonstrate that there is a possibility that it will be effective, then the obligation arises. That is the threshold requirement to distinguish suspicion or firm belief." Does Mr. Collins disagree with that proposition?

Mr. Collins

I would, in so far as he says there should be a presumption in favour. On the other hand, he says, "If you can demonstrate that there is a possibility that it will be effective, then the obligation arises." I would not use the word "possibility", I would say, "If you can demonstrate that there is a reasonable prospect that it will be effective, then that may trigger some obligation." If one goes back to page 55 of the transcript, he says in response to a question from the Senator, "That is a good question. I think that if the non-co-operation of the United Kingdom could be definitively known before you had to make a decision about establishing the tribunal, the answer would be that that was one of the occasions when an inquiry need not be established under Article 2 because you would have to say we are going to run into a road block." In this instance one has significant evidence, it seems to us, as to the attitude of the United Kingdom authorities who are more or less saying that one may well run into a road block if one sets it up. Even in Professor Warbrick's terms, there is a problem. On the question of whether I would make the presumption, I would not.

In the case of Amin the House of Lords stated, "The perceived utility of an inquiry otherwise required by Article 2 will seldom be a sufficient reason for not holding one." The advice to us seems to be at significant variance with that statement of Professor Warbrick. I know there is a further qualification.

Mr. Collins

That statement by Lord Woolf was specifically made in the context of an inquiry in the immediate aftermath where state agents had been directly responsible for the killing. In those circumstances he was saying that there would be a duty to investigate but that is a different situation.

I thought Mr. Collins acknowledged earlier that killings by state agents was not the only matter where an obligation arose under Article 2.

Mr. Collins

Yes.

Other matters also arise.

Mr. Collins

Absolutely.

Would that not discount what Mr. Collins just said?

Mr. Collins

No, what I am saying is that the particular statement by Lord Woolf has to be read in that context where he was dealing with the facts of the case that involved unlawful killing by state agents. The only legal statements - there have been few, if any, cases where in practice the duty has been found other than in that situation - refer to killings by state agents orinter alia other situations. Those situations remain to be defined.

While the House of Lords judgment related to a specific case, that comment was related to the generality of obligations under Article 2. I think he went on to qualify it subsequently.

Mr. Collins

Yes, he does. He goes on to qualify the——

Does it not relate to the generality rather than the specific case?

Mr. Collins

No, I think that particular statement has to be read in the context of almost all of the cases he was discussing, all of which involved unlawful killing by state agents. I do not think it is correct to say, and it would not be my view, that the futility of the exercise is not a factor to be considered.

Mr. Collins claims that it is.

Mr. Collins

I do.

It is at variance. If we assume that co-operation will not be forthcoming from the British authorities, an application to the courts would have to be made. I think the opinion is that this is also unlikely to be successful.

Mr. Collins

Assuming that the British Government maintains the public interest immunity claims.

I think Mr. Collins made reference in his submission to the public interest immunity issue and the fact that the passage of 30 years would concentrate the mind somewhat. In the event of a judge deciding on documents to be made available, would the fact that we are talking about events which occurred 30 years ago erode any security issue? I know there is a second issue - I will not say it is secondary - the endangerment of the life of some individual. In the light of the very strong allegations of collusion and the suspicions that surround them, could an argument be made that there is an obligation to establish, if at all possible, whether these allegations are factual in the public interest? Therefore, if there were people in the security forces, including the RUC, involved in collusion, is it not essential that they be identified in order that if there is a culture of wrongdoing it will be tackled? Moreover, is it not essential that an assurance be given that it is not continuing and is being arrested? This cannot be done without identifying it. Might this argument carry certain weight in the British court?

Mr. Collins

There are two separate questions. The latter is whether there is a duty to investigate for the reasons outlined. We have said, in both opinions, that there probably is but think this is a duty on the UK state because that is where the collusion is in terms of the state agents' involvement with the killing. We think there is a reasonably strong argument, in effect, that the UK, even today, has an Article 2 duty to set up some form of effective official investigation into collusion by British or UK forces in the killings, not necessarily a tribunal.

The first question was whether the lapse of 30 years might somehow improve the prospects of defeating any interest to public immunity. Clearly, it must have some influence on it. It is almost impossible for us to analyse it because we do not know what the documents are. Obviously, the older a document is, presumably, at aprima facie level, the less significant the security risk it will present, maybe as a common-sense proposition. However, beyond saying this one just do not know. One would have to look at the individual documents on a case-by-case basis.

Mr. Bueno

On that point, one has to bear in mind that the Secretary of State has very recently asserted public interest immunity in relation to matters occurring 30 years previously, and cited as one of the principal reasons for that immunity the risk to human life. Therefore, this is a matter which obviously, at the highest level within the British Government, has been identified as worthy as invoking that immunity. While I take the point and see exactly where the Senator is coming from, the fact remains that contemporaneous concerns have been expressed.

I am not familiar with the British legal system. However, would a Government opinion such as that impact strongly on the Judiciary or would it be independent enough to take its take its own view on the issue and its merits?

Mr. Bueno

I explained last time how the matter would progress. Once this so-called free-state step has been gone through and if a responsible Minister then signs a certificate invoking that immunity, setting out the grounds for invoking that immunity, of course, that claim must be tested judicially. The problems in this case could be described in this way: the tribunal would be established in Ireland - whether it is a single tribunal or judge or a tripartite tribunal has yet to be decided, if we get to this stage - and, in the ordinary way, if a claim for immunity was made in judicial proceedings, it would be the judge who would determine whether that claim for immunity was well founded.

In the instant case the tribunal in Ireland would not decide whether that immunity can be properly invoked, but rather a judge in the United Kingdom, whether it is in Northern Ireland or London. There is a difference between doing justice between competing parties in an adversarial system, when claims for immunity will be much more robustly tested and where one in seeking to assist a tribunal of inquiry, established by a foreign state, which is investigated alleged malpractices in another foreign state. The question of public interest immunity is a difficult concept. It is a bit like an elephant in that one recognises it when one sees it, but it is rather difficult to describe. Every case would have to be decided on its own particular facts. It would be grossly impertinent for me, as a practitioner in London, to suggest how such an application would eventually turn out. All I can say is that, on the sensible balance of probabilities, if a judge is satisfied that there is a risk to human life it is likely to be the end of it.

We qualified that matter the last day by saying that if the applicants were British citizens, the prospect of it succeeding would be enhanced. Is that correct?

Mr. Bueno

If the UK Parliament is satisfied that there is a matter of urgent public importance which requires the setting up of a tribunal, then immediately one has a tribunal. If the Parliament has in its wisdom has ordained that this should be looked into, it would make the position rather difficult for the UK authorities to resist the investigative process of such a tribunal. In this case, it is the tribunal itself which would be uniquely placed to determine the validity of those claims for immunity.

I think Mr. Collins cited the removal the evidential threshold as a reason for doing that. I think he said that if there was some real prospect of coming to conclusions, it would found the reason for another inquiry——

Mr. Collins

Into the Garda or the inadequacy of the State investigations.

Into something domestic.

Mr. Collins

Yes, something domestic.

If we had a submission from a former Minister, who was not interviewed by Mr. Justice Barron and who advanced his opinion from his recollection as to why, say, the Garda investigation probably closed down, would it be a reason for further inquiries?

Mr. Collins

It is certainly a significant factor. The Senator is almost asking me to weigh it up and put it in the context of any other evidence one has but it would undoubtedly be a significant factor.

In his reply to Deputy Paul McGrath, Mr. Bueno was at pains to say that he wanted to avoid answering political questions. At the end of the first paragraph of page 14 of the submission it is stated: "It must therefore infer that the same uncompromising position will be maintained if orders are made in pursuance of a letter of request. This is to some extent speculation." It is acknowledged that it is speculative and, further down in the next paragraph, it is stated: "In such event, the establishment of any tribunal of inquiry would turn out to be largely cosmetic, which would be a very unsatisfactory result." Do Mr. Collins and Mr. Bueno accept that both of those appear to be political rather than legal opinions?

Mr. Collins

We were asked to express a view as to the likely prospect of success. We understood "success" to mean how likely is it that one would get the documentation, it being self-evidently pointless if one did not. That is far as we were intending to express it.

Does either Mr. Collins or Mr. Bueno have any experience of making such requests?

Mr. Bueno

Can I just build on the last answer? It was not really a political call at all. We were, as lawyers, simply bringing our experience to bear on the evidence as we saw it. Given that——

Does Mr. Bueno and Mr. Collins have any experience in this regard?

Mr. Bueno

I have no direct experience, except for the letter of 9 February 2004, in which the Northern Ireland Office makes precisely the point about which we have speculated.

However, Mr. Bueno and Mr. Collins strongly challenged Mr. Mansfield's assertions and he has direct experience of making such applications. They put their opinions very strongly against Mr. Mansfield's, although Mr. Bueno does not have practical experience.

Mr. Collins

Experience of what exactly?

Experience of making these applications in the British courts.

Mr. Collins

Of public interest immunity.

Mr. Collins

No, I do not have any experience of making public interest applications.

Mr. Bueno

I have experience of public interest immunity applications in the British Courts as I sit as a part-time judge in criminal cases. It has arisen once or twice in the course of my professional practice. If the Senator is asking me whether I have had experience of this kind, the answer is no. Mr. Mansfield, of course, has because he is involved in the Saville inquiry, in which applications were made and public interest immunity was invoked. In fact, I have a ruling from the Saville inquiry in which arguments advanced by Mr. Mansfield on these matters were dealt with. My experience is limited but I suspect Mr. Mansfield's is not very much greater. The speculation we made was simply anticipating the letter of 9 February 2004, which we had not seen when we wrote the joint opinion.

For my final question I ask the witnesses to make some assumptions with me. One is that they were involved as part of the process of making the decision. Another is that there is a conclusion that there are issues such as collusion that now need to be inquired into. What would be the most effective route to take, bearing in mind they do not want the investigation to go on for years and cost an arm and a leg, as have many of the tribunals, with the result that everyone concerned is dead before they come to any conclusions? There is the 1921 Act; there is a cross-jurisdictional process; assistance could be invoked from Strasbourg; the families could take a case in Britain directly; and there is the new Commissions of Investigation Bill. We must bear in mind that some of these approaches are predicated on co-operation. What approach would the witnesses take in that scenario?

I know this goes outside Mr. Collins's terms of reference.

Mr. Collins

Very much so but with that qualification I am prepared to offer a view, if it will be of any assistance, although it will be a very non-expert view. There are two separate issues. One is the issue in this State of the adequacy of the investigation; the other is the issue of collusion by the authorities in the UK.

On the issue of the investigation in this State, the single most effective way in which matters can be investigated is the Tribunals of Inquiry Act procedure because of the powers of such a tribunal. There are separate issues which we can deal with another day of how we can better organise tribunals to be shorter, less costly and so forth. Usually a specific, narrow remit is the way to go. The McCracken tribunal started in February, finished its oral hearings in July and delivered a report at the end of August or the beginning of September. That was partly because it had a very narrow remit.

As regards the possible collusion of the authorities in Northern Ireland, a tribunal of inquiry set up by the UK Government would be the most effective way to get to the bottom of this, if the UK Government could be persuaded to do this. However, I am speaking as an informed citizen rather than as a lawyer giving expert advice.

If one did not obtain the co-operation of the British, how would one approach it?

Mr. Collins

I do not know. I will have to think more about it. There is no immediately obvious effective way to do this. We could set up a tribunal and go through the letters of request procedure but I do not know.

Does Mr. Bueno have any opinion?

Mr. Bueno

No, I cannot add to that. If the bloodhound does not have any bright ideas, I certainly do not.

If we obtained answers to those two questions we could it wrap up. I again thank the witnesses for coming. It is appreciated. It seems that lawyers differ on the possible outcome of any action taken, certainly under the Tribunals of Inquiry Act 1921. Whereas Mr. Mansfield and Mr. Ó Dúlacháin have quite a benign view of the possible outcome, the witnesses today have a pessimistic view. Do they think that any action under the 1921 Tribunals of Inquiry Act is unlikely to be successful because of the situation they mentioned, particularly under the PII?

Mr. Collins

Yes, certainly,vis-à-vis the letters of request and getting documents in the North of Ireland, that is a fair summary. Of course, in so far as Mr. Ó Dúlacháin’s proposition is concerned - that there is other documentation, both in this State and in the North of Ireland, which might be useful and accessible without that particular procedure - if that proposition is true - we express no view on it because we just do not know - then a tribunal of inquiry might be quite effective because it would have access to that documentation. We have been focusing on the issue - on the assumption almost - that one does need to get, either through British co-operation or a court order, access to documents which are being withheld, which is what Mr. Justice Barron was saying. We are addressing the issue of whether one can get around this, about which we are pessimistic. However, if Mr. Ó Dúlacháin’s other factual proposition is correct, obviously there is more of a point to a tribunal.

It would be very difficult to get it through a request to the High Court. Mr. Collins would not consider that to be a satisfactory channel?

Mr. Collins

No.

Letters of request under the 1921 Act to the British High Court.

Mr. Collins

I think that is fraught with difficulty.

What about the other side of the coin? Let us say it is a request to the English High Court and it has to consider the matter. It has to have a level of proof or a test as to whether material should be disclosed. What is that level? Would it have to see the documents to be satisfied, or would it be able to rely on the letter of Dr. Reid and his categorical statement that he has made, for example, to Mr. Doherty?

Mr. Bueno

The closest analogue I have been able to find is what actually happened in the Saville inquiry. In that instance there was a debate as to whether the tribunal should, in fact, examine the documents because, of course, the concern was that if the documents were excluded on the grounds of public interest immunity, it could be said that the minds of the tribunal had in some way been contaminated. However, the only effective way of doing it is for the tribunal to examine the documents. I assume that what would happen in England is that the documents would be examined by the judge in order to determine whether the reasons given in the certificate setting out the concerns were made good.

The judge would actually——

Mr. Bueno

Examine it.

——look at the documents in the original format——

Mr. Bueno

Yes.

and would not accept any perusal by investigators established by Dr. Reid to look at the documents in court?

Mr. Bueno

In the old days, if memory serves me right, it was conclusive once a certificate was signed by the Minister; that was the end of the matter. Of course, there have been quite a few forensic dramas involving public interest immunity. The Scott inquiry was set up and reported, I think in 1996. As a result of this, the three stage procedure which we have identified in our joint opinion was evolved. There are three steps. The threshold test to which both the Minister and the judge would be looking is whether there would be real harm or real damage done to the public interest. The two terms are interchangeable, as we explained in our earlier advice. It is quite a high threshold.

If I follow that line of thought, it really does not matter what the Secretary of State thinks about it - whether he adopts the same position he has adopted already - as there will be personal perusal by the High Court judge of the relevant documents.

Mr. Bueno

No. I think the views of the Secretary of State would be of very considerable importance. The qualification is that he is not the sole arbiter. Ultimately, his view and concerns must be judicially tested. That is the fall-back position but one has to assume that in a situation such as this where co-operation has been agreed at certain levels - at intergovernmental level - if a Secretary of State, as Dr. Reid did last year, refuses to hand over the documents which are requested, except in a very truncated form, on the grounds that it would be contrary to the public interest and life would be endangered, that he has very carefully, obviously together with his senior advisers, gone through this three stage process. One must assume that members of the British Government or the government of any civilised addressing themselves to these principles would have acted responsibly. It would be wrong for any party to proceed on the basis that this decision was arrived at capriciously to avoid embarrassment or anything of that sort. The views of government would obviously be accorded considerable respect.

I wish to explain the other difficulty which arises in this type of case. Normally public interest immunity arises in the context of adversarial proceedings of a civil or criminal nature. In the case of criminal proceedings, the judge may come to the conclusion that to disclose material would be inimicable to the public interest because, for example, it could endanger the life of an informer or something of that sort. On the other hand, however, if he or she decides that the withholding of that information from the jury and the defendant could result in a serious miscarriage of justice, then that is the end of the matter. The prosecution will be told that if it wants to press ahead it should produce the relevant documents but if it does not produce them then it must throw its hand in. Justice is a commodity which simply cannot be compromised.

The same sort of criteria would apply in civil proceedings. However, we have an odd beast in terms of a tribunal established under the 1921 Act. It is inquisitorial, it is not adversarial and it does not determine rights. A tribunal makes findings of fact but these are non-binding. At the end of the day, its remit is to get to the truth. It would be attractive to say that if the remit of a tribunal is to get to the bottom of all this because we want to discover the truth, it, therefore, must have all the information it properly requires to enable it to carry out this function. That is very different to the situation where one is faced with the competing interests of adversaries in the litigation context. It is an altogether different situation.

The way the Saville tribunal approached this - it may be as well if I was to make available a copy of the report to the sub-committee afterwards - is that it was concerned with very focused matters such as, for example, the comprising of the security services - their effectiveness, not their organisation - and, most critically, whether human life would be endangered. Once those criteria are satisfied, particularly that relating to the endangerment of human life, all other considerations go and that is the end of the matter. Sometimes a tribunal would be in a difficult position. However, when one has the problem such as that which exists in this case if a tribunal of inquiry were established, namely, that this determinative process will not be carried out by the tribunal but by a judge sitting in England, it is going to be an extraordinarily difficult exercise. I certainly would not want to be into the judge's shoes.

Let us consider a scenario where letters of request from a tribunal established under the 1921 Act would be sent to England. Those letters of request would relate to the disclosure of the contents of 68,000 documents and files. We have no idea what would be the size of each individual document or file. The Secretary of State obviously ordered a perusal of those items and provided a précis or summary of the contents, but no original material, to the Barron inquiry. The tribunal would be inquisitorial and investigative in nature and would be seeking what might be contained in those documents. How can a High Court judge personally peruse even a fraction of those documents in order to make a decision regarding the appropriateness of disclosure or the national and public immunity interest?

Mr. Bueno

It is a very good question but I do not think a request like that would be accepted. The request would have to be specific and would have to be concerned with particular documents. That may be slightly liberally interpreted because certain specific categories of documents might be permitted. However, a wholesale indiscriminate request for information of that kind would never be tolerated. Assuming that the British courts would have to act under the authority conferred by the Evidence (Proceedings in other Jurisdictions) Act 1975, one would have to have regard to the requirements of that legislation. It is concerned with the production of particular documents, which would have to be slightly generously interpreted, and also the examination of witnesses on certain specific matters. Roving requests and fishing expeditions would not be tolerated.

Perhaps it is worth reminding ourselves - I know I keep coming back to the letter of 9 February 2004, which we had not read and were unaware of when we wrote our original joint opinion - that the Secretary of State's private secretary, as I recall, had made it clear that they had examined the 68,000 files and that the vast majority of them were irrelevant to any of the matters being inquired into by Mr. Justice Barron. The answer is that the situation would never arise where a judge would have to examine all those documents. There would have to be specific documents, perhaps with the word "specific" or "particular" being generously interpreted, but it would be manageable. It is a judicial function that would have to be carried out but it would be a very difficult one.

It would obviously be more difficult because the whole approach of a tribunal is to examine as broadly as possible anything that might be relevant to the Dublin and Monaghan bombings.

Mr. Bueno

The tribunal would wish to determine what it is relevant to look at. It would not want to be told by others but it is constrained.

There would have to be specific requests regarding named individuals and events. That is the British national interest but the other side of the coin is the miscarriage of justice involving Irish interests. We heard that there might be a miscarriage of justice in disclosure on the British side but on the Irish side there has been a miscarriage of justice for all those years. Whatever else, it is not disputed at this point that the perpetrators came exclusively from the British jurisdiction. Not disclosing information would be certainly be an injustice to Irish interests and, of course, there is also clear evidence of individual collusion. There is certainly aprima facie case going to the High Court that an atrocity was perpetrated from the British jurisdiction and that there is a very strong onus of responsibility to respond in a meaningful way. How would the High Court look at the fact that its own citizens in the British jurisdiction were responsible for such an atrocity, which is undisputed at this point?

Mr. Bueno

The atrocity is undisputed.

And the origin of the perpetrators.

Mr. Bueno

Yes, as I have read the conclusions of Mr. Justice Barron, with respect he does not go quite that far. He talks about suspicions and matters not being proven and so forth. Plainly, there is a high level of concern. That would be my reading of it.

The reaction of an English High Court, if it is responding to a request for information from a tribunal of inquiry established under legislation which exists in the United Kingdom also, would in my opinion be sympathetic. It is bound to be. It is the privilege and the pleasure of courts in different jurisdictions to assist each other and assuming the legal hurdles in respect of the issue of letters of request can be overcome, I would expect and hope that an English court would accord that request all the respect it deserves and would want, within all practicable limits, to give effect to that letter of request. I do not think for one moment that one should suppose that the English High Court would in any way be hostile to a request of that kind. In fact, justice is an indispensable commodity in our courts just as it is in yours and I would expect an English court to act robustly and fiercely independently. The essential question which arises, of course, at the end of the day is one of public interest immunity.

Can I say the conclusion remains the same as point 10 on page 5?

Mr. Bueno

Of our supplemental opinion?

Sorry, today's supplementary, which states:

... must remain that the prospect of obtaining further and worthwhile information from the UK authorities on a voluntary basis is minimal and that it is unlikely that worthwhile evidence will be obtained in pursuance of letters of request issued by a tribunal of inquiry.

Does that remain the position?

Mr. Bueno

Yes, that remains our opinion.

Mr. Bueno does not wish to moderate it in any form?

Mr. Bueno

It is not a question of wanting to.

Let me turn from the 1921 Act to the European Convention on Human Rights. In answering my question Mr. Collins and Mr. Bueno might also refer to the Constitution. Let us suppose there is an unlawful killing and, in some way, the State authorities are involved orinter alia the question could be broader than that. In Mr. Bueno’s and Mr. Collins’s original submission, citing Lord Woolf, they say that the authorities should act “on their own motion” in such circumstances. In terms of case law and in the spirit of the law itself, under the European Convention on Human Rights is there not an onus on the authorities which perpetrated an atrocity or of the territory where the atrocity originated to carry out an investigation automatically, or on their own motion? Could it, therefore, be put to the British authorities that the European Convention on Human Rights demands such an investigation?

Mr. Collins

That is a good point. There is an argument to the effect that the UK authorities have an obligation, granting the assumption - with apparently strong evidence to support it - that the perpetrators came from the United Kingdom jurisdiction. There probably was then, and probably is now, some sort of duty on the UK authorities to carry out an effective official investigation into that matter.

Mr. Bueno

I agree.

How might they be persuaded?

Mr. Collins

That is very much in the realms of politics.

Is it possible for the Irish authorities to take an action under the European Convention on Human Rights?

Mr. Collins

Yes. They could bring the case to Strasbourg on the grounds that the United Kingdom Government is in breach of its obligations under Article 2 of the convention by virtue of a failure to set up an effective official investigation. The Irish Government could take that action.

Does Mr. Collins wish to give us an opinion on the outcome?

Mr. Collins

That is a big question. In the light of the available evidence, there is a substantial argument that the United Kingdom Government has a duty to investigate under Article 2, by virtue of the ancillary and substantive right to life jurisprudence that has been developed. It is fair to say that that interpretation of Article 2 of the convention was not in existence in 1974 and the British authorities may not have understood they had any such obligation at the time. It is something that has only developed comparatively recently. One of the factors to be considered would be the lapse of time and all the issues we are discussing now. I think it is something well worth looking into. There are good arguments in support of it.

The Stevens inquiry has been going on for 12 years and has, apparently, uncovered much information relating to various matters which would be pertinent here. The Cory inquiry also found sufficient grounds to request a judicial public inquiry into five of the six matters it investigated. Would those findings support this line of thinking?

Mr. Collins

Yes, certainly. Mr. Bueno knows more about the Stevens inquiry than I do. There are clear findings in the Stevens inquiry that would tend to lend veracity and support to the sort of allegations of collusion and so forth that have been made and which, in turn, bear on the duty to investigate.

Mr. Bueno

The human rights argument could also be deployed in representations made to the British Government inviting them to set up a tribunal of inquiry to investigate these very matters. As Michael Collins has said in reply to the point Deputy Costello raised, this is a cogent reason for inviting the UK Government to set up its own inquiry under the 1921 Act.

The terms of reference of this sub-committee are to decide whether a public inquiry is required or would be fruitful. Mr. Bueno does not see those as two distinct criteria. I would have thought the ordinary person would see them as separate. One could posit certain grounds why an inquiry might be required and quite separate grounds as to why it might be fruitful. Our terms of reference put it as whether it is "required or fruitful". Mr. Collins appears to be going against the ordinary person's interpretation of those words.

Mr. Collins

I suppose this is not the first time lawyers have been accused of that. With respect, that is not what we are saying. We are not saying the words are interchangeable. What we were saying was that on half of the equation words such as "fruitful", "effective" and "practical" are largely interchangeable. The word "required" can mean one of two things. It can either mean required in terms of some public policy political requirement that should be done in the public interest or it could mean required as a matter of law.

We were looking more specifically at the issue of whether something was required as a matter of law. One of the factors as to whether there is a duty to set it up and therefore a requirement exists is whether it will be practical or, as Lord Woolf said, it can sensibly vindicate the right and so forth. We saw the fruitful end of it as it being a subset or one of the factors that feed into the question as to whether it is required as a matter of law. The sub-committee has separately been asked by its terms of reference to considersimpliciter, whether it will be fruitful and effective, because of the use of the word “or”. The committee can consider that as a separate criteria as distinct from something that is merely feeding into the word “required”. We have given our views as to what we think in terms of its fruitfulness. We treat that to some degree as synonymous with practical, effective or sensible or terms of that sort. We are not saying that “required” and “fruitful” mean the same things.

Mr. Collins suggests that an inquiry may not be the remedy now. However, Lord Woolf, in his presentation regarding what might be the criteria, included a list of obvious results such as what it might do for the bereaved, public confidence, accountability, lessons learned, all of which would have little relevance to a successful or fruitful inquiry. He seemed to move more in the direction of an inquiry which would effectively see justice done in the sense of carrying out an effective investigation——

Mr. Collins

Yes, but it is effective depending on the particular objective.

Irrespective of the final outcome.

Mr. Collins

I do not think——

Any of the criteria he laid down did not mention the success of the final outcome.

Mr. Collins

Yes, but I think it presupposes that if one is going to set up an inquiry, it is for the purposes of achieving a particular objective. If the objective is, for example, to allow the bereaved of the prisoner in the cell to have their say and participate in public process etc., that is an effective inquiry even though it may not come to any particular conclusion. It very much depends on the particular objective. Lord Woolf emphasised that each case was different and a "flexible pragmatism" or some such phrase was a phrase to which he constantly returned in the judgment.

I welcome the return of our guests today and thank them for being with us. I have a question concerning the investigative process. If public interest immunity is founded, would it be possible for the Secretary of State, prior to signing the certificate, to include a condition whereby the judge and his investigators would be able to avail of documents which are not to be disclosed to anybody else? In other words, where vital information is declared to be publicly immune but is at the same time crucial to the investigation, could it be made available to the people who would make the final decisions and reach the final solutions without the entire public knowing what was in the documents? Can this solution be achieved without the information becoming public?

Mr. Bueno

I assume that this follows on from the basis on which information was provided for Mr. Justice Barron. As I recall, information was provided in a limited and redacted form, but with the caveat that the contents should be treated as private to Mr. Justice Barron and should not be revealed without the consent of the Northern Ireland Office. In realistic terms the answer to the Deputy's question is no because any tribunal of inquiry will have to deliver its report and make its findings. The findings would have to be reasoned and the evidence upon which those findings was based would have to be identified. If it was sought, if the Secretary of State sought to provide information on that very limited basis, in other words, with those restrictions, I think it would place the tribunal - I am speculating because I am not in a position to second guess what a tribunal of inquiry established in this country would think - in a straitjacket because it would be presented with information which is capable of being of extreme importance in its deliberations but on the other hand, not able to take advantage of it overtly. Therefore, the answer is the tribunal is likely to decline to accept information on that restricted basis. I cannot see what the utility is of providing information on that basis because as I said, it would place the tribunal in an intolerable position.

There is a good deal of flexibility involved in public interest immunity. A document as a whole may be regarded as extremely sensitive for one or other of the reasons which theDeputy hassuggested but it is possible for information to be provided in a redacted form and for summaries to be provided, if that will achieve the ends of justice. There is an element of flexibility.

It seems to us that this exercise was gone through by the Secretary of State when he provided information to Mr. Justice Barron. He went through the files, identified those which were relevant and then he purports - I do not mean that in a pejorative sense - to have set out the summary of the essential matters and no doubt redacting information which was regarded as being particularly sensitive. There is a great deal of flexibility.

To return to the Deputy's question, to hand over extremely important information which could have a very critical bearing on the deliberations of the tribunal and its ultimate fact finding, but on the basis that it cannot be used, I think that would be unacceptable and I cannot think that any tribunal would accept it on that basis.

This morning I thought I detected a rowing back on the written submission last week compared to the oral submission. Have Mr. Bueno and Mr. Collins changed their minds over the last few days on the public inquiry issue?

Mr. Bueno

On the effectiveness of letters of request, as to whether I think they would be productive in producing the information which a tribunal would require——

There is no rowing back on that position from that of in the written submission?

Mr. Bueno

Absolutely none at all.

Like my colleague, Deputy Costello, I thought I picked up signs of a movement on that issue over the last few days.

Mr. Bueno

We stand by the views we expressed.

Thank you, Mr. Bueno. My question is directed to Mr. Collins regarding his article about the paper chase in the sand. In it he states:

A tribunal of inquiry under the Tribunals of Inquiry (Evidence) Act 1921, does of course have all the powers, rights and privileges as are vested in the High Court. This includes the power to enforce the attendance of witnesses, examine them under oath, compel the production of documents and issue a commission or a request to examine the witnesses abroad. On its face, the tribunal's powers of investigation, even abroad, are therefore wide.

Does this not contradict the differences between Mr. Collins and Mr. McGonigal and Mr. Mansfield about the legal arguments for a public inquiry?

Mr. Collins

No.

Particularly the last sentence, "On its face, the tribunal's powers of investigation, even abroad, are therefore wide"?

Mr. Collins

Yes, because the Irish High Court when dealing with a case where it requires evidence abroad, has available to it the power to issue a letter of request. A tribunal has an identical power to issue a letter of request and that is why I state that it has the same power as the High Court. Be it a High Court or tribunal, they will both be subject to the frailties of the letter of request procedure, whatever those frailties may be. I do not think there is any difference.

On page 14, paragraph No. 33, the words "largely cosmetic" are used in relation to public inquiries. Does Mr. Collins view the 1921 Act as cosmetic or the whole procedure of a public inquiry? Is the effectiveness cosmetic?

Mr. Collins

No. We were saying that if a tribunal of inquiry was set up whose object was to uncover the truth about collusion between UK forces and the bombers and a letter of request procedure was not effective, then the purpose of the tribunal would turn out to be largely cosmetic because it would not have achieved the object for which it was set up.

How does Mr. Collins respond to some of the written and oral submissions we have received from international legal experts who are very widely respected by his colleagues? According to these experts, a state sometimes has no alternative but to launch a full-blown public inquiry to restore confidence and trust in its security services. Before one can move on, citizens must be satisfied.

Mr. Collins

Is this Professor Warbrick?

He is one but there are others.

Mr. Collins

As a broad proposition, of course, what they say is true, but it is a proposition of such generality that it is not necessarily of much analytical utility. There are circumstances where a state does have obligations to set up an inquiry. We have proffered an example this morning and on the last day which involved investigating here the Irish Government's response to the bombings. If there is evidence which has not yet been investigated, there may well be a point to investigating it.

On page 15, paragraph 35 refers to the State's obligation to protect everyone's right to life. Mr. Collins says he does not support the sweeping proposition that where individuals have been killed, the State is then bound to carry out an effective investigation. He continues that each case depends very much on its own facts. Does he accept that there is a huge difference between a mass murder such as the Dublin and Monaghan bombings and a bus accident or major fire? Does he also accept that the legal argument supports the view that a public inquiry is needed?

Mr. Collins

There is, of course, a difference between a mass murder - this was one of the largest mass murders in modern times in these parts - and a bus accident or the events which triggered the Whiddy tribunal of inquiry. The factors as to whether there is a duty to establish a tribunal, as distinct from a discretionary decision by a government to do so, depend first and foremost upon whether state agents were involved in the killing. That is the first thing at which one looks. That is not the casevis-à-vis the Irish State. There are all the others factors we have outlined to be considered. One cannot just say that because it is a mass murder, that factor alone is the reason for setting an inquiry up. It is, obviously, a powerful factor.

Are there not serious allegations of State agents obstructing the inquiry at the time?

Mr. Collins

Agents of the Irish State.

Yes. I use the word "obstructing" very pointedly.

Mr. Collins

Yes. If, and in so far as, there is evidence which remains to be investigated in relation to a serious allegation like that, there are obviously compelling policy reasons to establish a tribunal of inquiry. It is not necessarily an Article 2 duty but there may be good, independent reasons for doing so.

Page 2, paragraph 3, of Mr. Bueno's submission states he does not share the views expressed in the supplemental submissions on behalf of the O'Neill and O'Brien families and Bernadette Bergin that, psychologically, politically and diplomatically, the British Government and Northern Ireland authorities would find it extremely difficult to refuse to co-operate. Mr. Bueno used the expression "the die is cast". Why should the sub-committee or those involved in a serious investigation accept that the die is cast?

Mr. Bueno

I used the expression "the die is cast" with regard to the expressed attitude of the British Government. I was actually referring specifically to the letter of 9 February which we quoted in the following paragraph, in particular, the final sentence, "We would repeat this approach in supplying information to any judicial inquiry". By "the die is cast" we meant to say the British Government would inevitably assert public interest immunity and refuse to co-operate with the simple issue of a letter of request before any such information would be disclosed. It will only be done on the back of a court order requiring production of that documentation. That is all we intended to say.

As I said, we learned about the letter of 9 February for the first time at the last hearing on Wednesday of last week. The robust speculation and inferences we expressed in our joint opinion were expressed without knowledge of that letter. I am sorry if I am getting tedious but I must repeat the following point. One has to proceed on the basis, I respectfully suggest, that the Secretary of State for Northern Ireland has acted responsibly and took advice at the most senior and responsible level before responding as he did.

This request for information by Mr. Justice Barron followed assurances, albeit limited assurances, of co-operation at the most senior levels of Government. The whole question of public interest immunity has been, if one likes, a political hot potato in England for some years and the British courts are absolutely determined now that Government agencies should not be permitted to hide behind the skirts of public interest immunity when it would be offensive to do so in the notions of justice. I repose considerable confidence in the fact that the British courts would deal with applications of this kind with considerable responsibility and robustness but, at the end of the day, making the assumptions we have - that the Secretary of State properly informed himself and has repeated his determination not to reveal any of his evidence implicitly or otherwise and by order of court, and that he acted responsibly - the probability is that the threshold has been reached.

We cannot express ourselves in absolute terms. Everything that we surmise is on a balance of probabilities, but we have to say robustly that we think that it is going to be extremely difficult, in fact speculative, as to whether anything worthwhile would be obtained on foot of letters of request issued by a tribunal of inquiry established under the 1921 Act. That is our opinion and there is no weakening of the position that we have expressed.

I had questions with Mr. Bueno last week. One matter arises out of the tests which would be applied in the event that letters of request were issued and the matter came before the High Court. The court would have to balance the factors which must be taken into account, namely, the public interest, the real danger to the lives of individuals etc., versus the relative importance of a request from an Irish tribunal of inquiry. I want to put flesh on those bones.

My question is speculative but it has exercised the minds of the families and their legal people. In the event that a document came before a High Court judge, let us say an MI5 report from operatives who were operating in Northern Ireland at the time, in which there is clear, indisputable evidence that operatives not alone colluded but actively participated, on the direction of very senior people, in these awful atrocities - I admit this is speculative - would these factors still apply? Would the judge still have to form the opinion that the British public interest takes precedence over the disclosure of clear and undoubted evidence of criminal acts by agents of the state? Can Mr. Bueno picture that scenario?

Mr. Bueno

I can and by articulating the question, which is very important, one can see immediately that it is an extraordinarily difficult topic; it really is a very sensitive topic. I think, as Michael Collins just whispered into my ear, the right way of looking at it is to start off on the basis of saying: "What is the particular public interest which it is sought to protect?" Of course, there are competing public interests. There is the public interest in favour of disclosure in the sense that justice will be done and the truth will be got at and, equally, the public interest against such disclosure because it would be inimical to the public interest.

The Deputy is asking me to speculate precisely as to how a document of that kind would be dealt with by the English High Court. I am speculating somewhat, but at the end of the day I would have thought that the more important criterion would be the protection of the public interest because, at the end of the day, it is the sovereign interests of the United Kingdom which the Minister is seeking to protect and to which a court will accord the greatest respect if it can properly do so.

Even if that meant people who ought to be prosecuted would not be prosecuted.

Mr. Bueno

If a document of that kind, a smoking gun, and the identity of a killer or a likely killer was revealed, then extraordinarily difficult problems would arise. I am finding it difficult to envisage because we are in the realms of outright speculation here. There is, of course, another procedure, because there are procedures——

This may be speculation, but it is at the very heart of the thinking behind the various groups which have come before us.

Mr. Collins

Let me add to that, Deputy Power. What would have to be weighed in balance would be the obvious interest, both from the British state's perspective in trying to prosecute a killer who was revealed by that document and the Irish tribunal's interest in getting hold of that information against whatever the particular British public interest that might be asserted in respect of that document. In the Deputy's hypothetical example, as of yet, there is no British public interest being asserted, but let us assume for the sake of argument that the MI5 agent in question who was alleged to have colluded with it is still active and perhaps is a sleeper in the Republic of Ireland. I am trying to dream up some scenario where the British would say it is in their current security interest that that piece of information not be made available. The Northern Ireland or London High Court would have to weigh up in the balance those two competing interests. That is an extreme example and, even in that case, perhaps it would be resolved in favour of disclosure of the particular letter. We do not want to be taken as saying that in every one of these pragmatic case by case situations the balance will always and inevitably come down against disclosure in favour of the tribunal. The hypothetical example the Deputy has given is probably the most powerful one that could be given where the Northern Ireland court might well say the interest favours disclosure in those circumstances. That could happen.

First, can I get agreement from the members of the sub-committee that we publish the transcript of the Mr. Justice Cory conversation the other day, which was permitted. Is that agreed? Agreed.

The sub-committee will now adjourn until 3 p.m. tomorrow. It had been hoped that we would meet earlier, but there are practical considerations for members and it is impossible to meet before 3 p.m. at which time we will hear from the legal representatives of Justice for the Forgotten.

The sub-committee adjourned at 11.35 a.m. until 3 p.m. on Tuesday, 9 March 2004.