Thank you, Chairman, and members of the sub-committee for allowing us this opportunity to present a final argument as to why there should be a public inquiry or investigation into the matters that took place in 1974. I want to try to focus on what I perceive to be some of the difficulties that have arisen from the various different opinions presented to the sub-committee.
I have had an opportunity of reading the joint opinion of Mr. Collins and the supplemental opinion of Mr. Collins and Mr. Bueno. I have also had an opportunity of reading some of the transcripts of their attendances. I do not want to put this on the basis that this is in any way an easy decision for the sub-committee as to what should be done but what I want to do is say to the sub-committee that, whether in law, politics or fact, whichever route it chooses to take, it is forced into certain inevitable conclusions.
The first conclusion that the sub-committee is forced into is that there has not been a proper investigation into the 1974 atrocities. If I am wrong, that is the end of the matter. If the sub-committee takes the view that there has been a proper investigation such as would comply with what the members of the sub-committee, as Members of the Dáil, would expect, there is in a sense no need for me to continue but the reality, as the sub-committee and I would appreciate from looking at all of the documents, is that there are too many outstanding questions and issues which have not been answered, either in 1974,1993 or even by this sub-committee. What we are all left with is a myriad of questions on who carried out the bombing, how the bombing was carried out, and on the Garda investigation. Was there a proper Garda investigation? If not, why was there not a proper investigation? Was it lack of resources, facilities or something more serious?
Was there silence by the Government when it became aware, through the British Prime Minister, of who the perpetrators of this crime might have been? Is it sufficient for Dr. FitzGerald and Mr. Cooney to say to this sub-committee and the House that effectively they do not interfere with the Garda? Is it a realistic stance for the Government of a day to say, where a concern is raised in relation to an investigation which has been carried out by the Garda and stopped, that it has no function? That surely cannot be right. If it is, it is something that must be looked at very closely to see that we have the right checks and balances between Government, the Garda and the atrocity carried out.
Those are some of what I would call the internal questions which one can begin to pull from the amount of documentation that the sub-committee has been given. I have absolutely no doubt that each of the members of the sub-committee will have picked up many other questions which are probably more important and certainly equal as important.
Those internal questions, however, do not deal with the question causing the greatest concern, that is, whether there was collusion on the part of the security forces of Britain and Northern Ireland in the carrying out of this atrocity. That is an issue which - although it happened in 1974 - if it were happening today would result in the biggest inquiry that one could ever have as to whether a neighbour - a sovereign nation - had allowed its security forces to be directly or indirectly involved in the planting of a bomb in another sovereign state. If it was President Bush, he would consider it an act of war. In Ireland, we end up with a paltry investigation and silence for 30 years.
Collusion of any kind is serious. Collusion between security forces and alleged terrorists presents an even greater danger, something which of itself, in my respectful submission, requires the deepest investigation. It is not enough to say that time has passed. It is not enough to say that two people may have been in prison in connection with this is Northern Ireland. That is not an answer to the very serious issues which arise.
I highlight these issues because I am concerned that the history of tribunals in this country has led us to pay greater attention to the cost and expense of a tribunal than to the reason we are having one. No one should reject an inquiry simply because of its cost - that is a separate issue which can and must be dealt with on its own. If the issue which is forming the need for the inquiry is serious enough, the cost does not become irrelevant but it does become subsidiary. In my respectful submission, to refuse an inquiry on the grounds of cost would be a bad reason, particularly when one looks at the formidable nature of the issues which I have identified and which the sub-committee has more probably identified.
Those are some of the reasons I believe there should be an inquiry into the Monaghan and Dublin bombings of 1974. It would not be an easy inquiry and there is no point in trying to suggest it would but the perceived difficulties will and can be got over with the assistance of the tribunal in the first instance and the courts of Ireland, England or Northern Ireland in the second instance.
One of the major concerns on which the sub-committee has focused in recent times is the availability or otherwise of documentation in the possession or power of the Secretary of State for Northern Ireland, MI5 or MI6 as the case may be. In dealing with this I want to go back to the beginning, in a sense the letter to Mr. Doherty from the private secretary to the Secretary of State for Northern Ireland. I want to look at what he actually says. At the top of the second page, he states:
We have not shared original intelligence documents with Mr. Justice Barron, but we have supplied all relevant information from these documents consistent with the Secretary of State's obligations to safeguard national security and the safety of individuals. We would repeat this approach in supplying information to any judicial inquiry.
I am absolutely happy with that response. If I, as a lawyer or politician, was writing that letter, I would say exactly the same. The important point about that letter is that the Secretary of State is not refusing to make the documents available. Nowhere does he say, "I will refuse to make the documents available to a tribunal of inquiry." What he is actually saying is, "We will repeat the approach we used with Mr. Justice Barron; we will make the documents available to a judicial inquiry, subject to our right to raise the issue of public immunity interest." That is a very important fact which we must understand. We do not need or require, nor would we be relying on the idea of co-operation from the British Government or the Northern Ireland Office. We are saying this letter says to all of us, "If you set up a judicial inquiry, we will make the documentation available to that judicial inquiry, subject to our right to raise PII."
This is very important because in the documentation and also our argument to the sub-committee the last time we referred to the experience in the Bloody Sunday inquiry under Lord Saville in which the issue of PII was raised. We have made available to the sub-committee the ruling made by Lord Saville, Mr. Justice White and Mr. Justice Toohey in December 2002. It is not my intention to open it in depth members will be glad to hear but I want to draw their particular attention to pages 3 and 4 of that document because the two paragraphs dealt with cover the powers of the tribunal and the ruling on the power of the tribunal. To me, these are important to understanding the nature of why we say, first, that we do not require the co-operation of the British Government or the Northern Ireland Office and, second, why we are happy with the letter from the Northern Ireland Office saying the documentation will be made available to a judicial inquiry subject to PII.
Paragraph 7 on page 3 reads:
The first issue and one with which the tribunal has already dealt is the powers of the Tribunal so far as claims for public interest immunity is concerned. In a submission made on behalf of the family ... Mr. Mansfield Q.C. sounded "a note of caution" as to whether this Tribunal is empowered to withhold material from disclosure on the basis of public interest immunity. A written submission made on behalf of Michael Quinn is in stronger terms. In effect it contended that the powers of the Tribunal were constrained by the legislation under which it was constituted, that its obligation was to meet its terms of reference and that it could only do so by making public any material relevant to those terms of reference. However, Mr. McGonigal, counsel for Mr. Quinn, informed the Tribunal that his client "is no longer maintaining that the Tribunal has no jurisdiction to consider the questions of the Public Interest Immunity, and he is no longer maintaining that the Tribunal should not have sight of the documents in unredacted form.
At paragraph 8, the tribunal ruled:
We have before us this morning applications by the Home Office and by the Ministry of Defence for Public Interest Immunity in respect of a number of documents. The nature of the application has been opened to us by Counsel to the inquiry ... but when he had finished doing so, it seemed to the Tribunal appropriate to call on Mr. Mansfield, who acts on behalf of a number of interested parties, to make a submission to the Tribunal in relation to paragraph 3 of the skeleton argument. The reason for this is that paragraph 3 raises, as he puts it, "a note of caution as to whether this Tribunal, constituted under the 1921 Act ... has the authority to allow a PII claim. It seemed to us that it was appropriate to us to consider that question at the outset so that we could then be in a position to deal with the other matters that arise in the hearing of the PII application, including, among other things, the question as to whether or not this Tribunal should sit in private to hear submissions and read the materials in respect of which public interest immunity is sought. We have considered what Mr. Mansfield has to say and he is right to raise a note of caution, but the Tribunal is firmly of the view that under the 1921 Act it does have authority to entertain and rule upon a claim for Public Interest Immunity. The question as to the test to be applied in deciding whether or not Public Interest Immunity should apply seems to us to be something completely different from this first question as to whether or not we have any power at all to entertain any such application.
He then deals with the relevant sections of the 1921 Act and comes to the conclusion that they do have such power. They then turn to the different question as to the test to be applied in exercising that power.
Understanding public interest immunity and the way it operates in England is of absolute importance. It is imperative that the first thing we understand is that the public immunity interest will be determined by the tribunal if the Oireachtas sets it up. It is very simple. If one goes through the rest of that document, where he deals with his ruling, the first thing one will realise is that the documents were made available to the Saville inquiry, that the members of the Saville inquiry plus the solicitor and counsel to the tribunal were able to see those documents to enable them to determine the issue of relevancy and whether they were covered by public interest immunity. The documents which they considered were covered by the public interest immunity were not released to any of the parties but considered by the committee.
Where is the problem in relation to documents? If this is right, we will get the documents from the Secretary of State for Northern Ireland and any office of the British Government which has material relevant to the issues. When I say "we", I mean the tribunal of inquiry. That is an important matter which is worth emphasising. I do not for one moment think that it will end up being as simple as that. I am not that naive. There are plenty of lawyers like Mr. Collins and Mr. Bueno in England who would be prepared to argue the opposite, and it may well be that the tribunal of inquiry will be challenged in the courts but that is not unusual. That is not a reason for rejecting a tribunal of inquiry.
If one wants to know about collusion, if one believes that it is worth finding out about, one will have to take the added and difficult step of applying to the country where the evidence is to be found. We should not be afraid of doing this. The English authorities are the ones on which I rely - the application made by Mr. Collins to the Deputy Master to get the bank documents in the McCracken tribunal and the public interest immunity application made in the Bloody Sunday inquiry. All of the issues surrounding Bloody Sunday are, in a sense, ones which will arise in this inquiry but they are showing us how they can and will be answered.
There is no reason to believe that would not be followed. The 1921 Act is common to all jurisdictions. The European Convention on Human Rights is common to both jurisdictions. Set up the inquiry and one will discover that we are right in what we are submitting in relation to the obtaining of documents. If that is the point holding the sub-committee back, I urge it to reject it because the judgments are there. They are not Irish judgments. They are English judgments and no harm for that because it would be in England where the tribunal would be applying.
As a side issue, it is appropriate that I take the opportunity of giving the sub-committee some indication of the experience of Mr. Mansfield in public interest immunity. Normally I would never, nor would any barrister, present "his credentials" but I am doing so because of questions asked by Senator Walsh in relation to the experience of Mr. Mansfield and the comparative experience. Let me answer it in this way.
Mr. Mansfield is the leading authority on public interest immunity in England. The Birmingham Six, the Hanratty appeal, the Judith Ward case, the Barry George case involving the murder of Jill Dando, the Israeli Embassy bombing, the Stephen Lawrence inquiry, the Marchioness inquiry, the Bloody Sunday inquiry, the Omagh bombing, the Lockerbie case and the current Princess of Wales Diana inquest are some of the headline matters in which he has been involved and in which public interest immunity issues arose. Over 30 years he has been involved in terrorism cases in which the issue of public interest immunity has arisen. He is the leading authority. He was invited by the former Lord Chief Justice of England, Lord Taylor, to do a paper which was subsequently printed in Blackstone, one of the criminal law books to which that practitioners and students would have regard, and also in Archibald. What is contained therein originated from Mr. Mansfield.
In public interest immunity, he has no peer. He has equals but no peer. With respect to Mr. Bueno and myself, we are not even trotting after him so far as experience is concerned. I say this as a member of the English Bar, a member of the Northern Ireland Bar and a person who as an Irish barrister appeared in the Bloody Sunday inquiry and also the Omagh bombing inquest. We are conscious of these issues and offering the sub-committee the best opinions that we can on the issue.
What I have said on the issue is important to me and the families I represent in the consideration that the sub-committee gives as to whether there should be an inquiry. Clearly, it is not the sole consideration but I place emphasis on it and take some time to deal with it because I would not like to see this sub-committee concerned that by establishing a judicial inquiry under the 1921 Act, it will run into a brick wall and not get material. In my respectful submission, starting with the letter from the Secretary of State, he is not refusing and has not refused those documents. He is simply doing what any good Secretary of State would do, that is, looking after national security and public interest immunity. He is entitled to do so.
The other matter I want to move to briefly which was dealt with by Mr. Mansfield on the first occasion relates to Article 2. I preface this be delicately saying to the sub-committee that Mr. Collins places great emphasis on the judgments of Lord Woolf. I have no difficulty with the sub-committee reading those judgments but I am concerned that Lord Woolf's judgment was overturned by the House of Lords. Lord Woolf wrote the judgment of the Court of Appeal and that judgment was overturned. Therefore, the authority on Article 2 in England, in so far as this aspect is concerned, is the House of Lords decision, to which Mr. Mansfield referred, primarily the judgment of Lord Bingham, supported by Lord Steyn, Lord Slynn and others. Lord Woolf was not in the House of Lords.
On the last occasion Mr. Mansfield addressed the sub-committee on Article 2 and I added some remarks in relation to a public inquiry under the 1921 Act which I prefaced by stating it was, in a sense, the old position prior to Article 2. I think I am making a mistake in this. The proper position is that the sub-committee could decide that this was an appropriate matter which required a judicial inquiry under the 1921 Act but it could equally take a view that it was not necessary to set up an investigation under Article 2 because it was setting up the judicial inquiry. It could equally take the view that we had no rights under Article 2 but could still set up my 1921 Act judicial inquiry. That may seem contradictory but when one thinks about it, it is not.
Article 2, as identified by the judgments, covers certain situations which apply but it does not cover all of them. One could have a situation where a person was not necessarily entitled to a 1921 Act inquiry, either because there had already been an investigation under Article 2 or because the case did not come in under Article 2, but one could still have a public inquiry. I want to be clear - one does not rule out the other. In the sub-committee's deliberations, it will cause a problem because it can take the view that we will not have a judicial inquiry - I will take that as a given for the moment - but the second problem is that it will have to make up its mind as to whether we are entitled to an investigation under Article 2. If it takes the view that we are entitled to an investigation under Article 2, it has to determine what kind of investigation we can have that will meet the requirements of Article 2. Is it simply a 1921 Act inquiry or something less than that?
The reason I became conscious of this is at the end of the supplemental opinion of Mr. Collins and Mr. Bueno they make what I consider to be one the most significant admissions in relations to the sub-committee's deliberations. They state:
We would tend to agree with the submission from Professor Warbrick and others that in so far as the State has a duty to set up an effective official investigation, the Barron inquiry was probably not an adequate fulfilment of that duty because that inquiry lacked the power to compel testimony.
It seems to me - members of the sub-committee will probably have arrived at this position - that that admission by Mr. Collins and Mr. Bueno is simply saying that if there is a right or duty under Article 2 to investigate the 1974 bombings, that investigation has not taken place in accordance with Article 2. That means that the sub-committee has to determine what is the appropriate investigation that must take place. We say it is forced into saying the only inquiry, the only proper investigation, that can be set up to deal with the complexity of the issues that are going to arise is a judicial inquiry under the 1921 Act. We further say to it that to give that force and effect such a judicial inquiry should be composed of a chairman who is a judge of international standing. We suggested America by reason of the fact that an American was involved in the bombings and also possibly an English or Northern Ireland judge and an Irish judge. The more heavyweight the inquiry, the fewer difficulties, in some ways, it will meet.
If the sub-committee shows, through its results of setting up this inquiry, that it is absolutely serious and that such an inquiry has the full support of everyone behind it, it is my view that the British and Irish Governments will take note of this, and they would be foolish not to. That would be one sovereign state to another exercising its rights under the 1921 Act and the European Convention on Human Rights. It is inconceivable that the British Government and the Northern Ireland authorities would not have regard to an inquiry set up in those circumstances.
What are we left with? I say to the sub-committee that we have a right to a proper investigation. Mr. Collins and Mr. Bueno can see that has not yet happened. We say we have a right under Article 2 of the European convention, that we have a right or a necessity, a political necessity, under the 1921 Act. It seems that whether we like it we are coerced and forced down the road of a public inquiry.
Those the main issues with which I wanted to deal this morning. There are one or two other smaller points to which I want to draw members' attention in finalising. First, let me deal with the potential issue of a Cory-type inquiry in this way, If the Barron inquiry does not comply with Article 2, as suggested by Mr. Collins and Mr. Bueno, if it does satisfy the investigative requirement under that section, a Judge Cory-type inquiry will be no improvement because it will not have the powers of compellability. It will not have the ability to get documents, call witnesses and so on. It will have to rely on co-operation. Even if it gets that co-operation, where does it bring one? Its report will, nothing more or less, report that in its opinion there should or should not be an inquiry. That is what we have had recently in Northern Ireland. Mr. Justice Cory looked into a number of incidents. He has furnished his report and indicated either yea or nay in relation to whether certain matters need to be investigated, and a public inquiry will follow.
It is interesting, as an aside, to note that the matters into which Mr. Justice Cory looked were the Finucane murder and the killings of Nelson, Lord Justice and Lady Gibson, Inspector Buchanan of the RUC and Billy Wright. If rumour is right, there may be four matters to be inquired into but if one takes the Finucane killing alone, a number of points are worth noting. First, the issue of collusion arises. Will there be a public inquiry into the Finucane killing involving collusion? The sub-committee will have noted through the newspapers that in recent times two sets of judicial review proceedings have been instituted by the Finucane family. One challenges the delay by Tony Blair in making public the report. More recently, it has issued judicial review proceedings as to why there has not yet a public inquiry. That is independent of the report. Without having seen the papers, that may well be an Article 2 judicial review application.
Taking that example, my clients are in exactly the same position. Regardless of any report which may be issued by this sub-committee or any decision that might be taken on foot of that report, there may well be a right in law to an inquiry which will have to be obtained through the courts, and Strasbourg if necessary. If we are forced down that route, down that route we will go.
It would be an extraordinary experience if one could have an inquiry into the Bloody Sunday shootings in 1972, 30 years later, an inquiry into the Pat Finucane killing involving collusion, an inquiry into the bombing of Lord Justice and Last Gibson on the Border and an inquiry into the killing of Billy Wright which would not affect us as much. What would happen if any of those inquiries required the assistance of the Garda Síochána, the security services of this State? Is anyone suggesting that the Government would not co-operate? Is anyone suggesting that we would not make available material to such an inquiry in relation to Lord Justice and Lady Gibson, for example? I understand there is a rumour, nothing more, of possible involvement of persons in the South. Would we not make available any material that we had on that matter? Would we not make available any witnesses whom we thought would be of relevance to such an inquiry held in Northern Ireland? Quite clearly, we would.
The same is true of the Finucane case, one which, I understand, the Taoiseach is supporting to the hilt, that there should be an inquiry into the Finucane killing. It involves collusion. Why should we not have an inquiry into something that involves collusion between the Northern Ireland security forces and potential terrorists? Let us clear it all up. Let us put it in the open. Let us be open and transparent, as the Taoiseach is alleged to have said at the Ard-Fheis. If we have openness and transparency, that will resolve my clients' wishes and we will get the truth and justice that we require. We will have got a fair hearing if we get a public inquiry, although the two do not go together.
Jane Winter states on page 4 or 5 of her submission to the sub-committee, "I think how Ireland deals with the Dublin and Monaghan bombings is a test for Ireland and whether it is really an independent sovereign nation, that even when it has to ask difficult questions of its friends, it can do so in the interests of its own citizens. That is the real test for any country".
The sub-committee can offer my clients the potential of closure to their grief and loss by giving them a public inquiry or it can say it is not satisfied that the issues which arise from the events of May 1974 are sufficiently serious to justify either a public inquiry under the 1921 Act or a proper investigation under Article 2 on foot of the European Convention on Human Rights. The choice is the sub-committee's. It is not an easy one but I invite the sub-committee to recommend a public inquiry. Thank you, Chairman.
