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.
