——but when members come to look at it in due course, they will see that when the State decided to try to create a mechanism of private inquiry, the Bill became quite elaborate and detailed because it called for a balancing of a whole range of rights running from the seminal case in re Haughey. One finds that the mechanism of conducting a hearing in private is not simple because while it is in private, it allows for people who may be affected by that evidence to attend that private hearing and for the costs of the parties attending those private hearings to be met in certain ways. I put a question mark over the assumption that because it is decided to hold a hearing in private it necessarily involves savings of cost. On the second aspect that it may be a simpler and more time-effective way, it may be in certain cases, it may not.
To give one concrete example in terms of a private hearing, if this matter were to be investigated by a commission of investigation contemplated by that Bill and we, as lawyers for Justice for the Forgotten, were to indicate to the commission that we had retained an expert, Mr. Nigel Wylde, and we wished the commission to take his evidence, the evidence would be taken in private. Under the Bill, as currently drafted, the evidence remains private forever, save for that amount included in the report. How private can it be if Mr. O'Neill and I, instructed by 30 or so families, with in reality 100 clients, are to attend what is supposed to be a private session of a hearing? How private can it be if we are to consult our clients on what is happening and attend with the likes of Mr. Wylde as our witness to an inquiry?
What the Commissions of Investigation Bill does not address is how we inquire into a matter where there is a significant number of victims. When we begin to try to practically look at an investigation into circumstances where people have lost their lives - many people have lost their lives and been injured - one invariably ends up coming back to the conclusion that that type of investigation has to take place in public because the practicalities of doing it properly and fairly in private are very limited.
That leads me to the Cory process which has been held up as a model. It is an effective model to take an issue along the road but not to the end. What has come out of the Cory model is an examination for the purpose of recommending whether there should be a further inquiry. Effectively, the Cory model has led to a recommendation that there should be a number of public inquiries in the North, and one - public - in this jurisdiction. What the relatives we represent want at this stage, 30 years on, is to bring this matter to finality. Whatever inquiry follows has to be one that is not filling a gap, that does not travel part of the road. It has to be an inquiry that brings this matter to an end. Having repeatedly looked at it we come back to our observation and conclusion that an inquiry that is to bring this to finality, inevitably has to be in public.
If the Oireachtas decides to hold an inquiry it can establish it under the Tribunal of Inquiries Act 1992 or to create a special statute. These are the only two avenues that are apparent to us. As regards the abuse of children in residential institutions, the State proceeded by way of a special statute and created a special system.
Turning to the questions raised by Mr. Bueno, he made a number of important points as to whether co-operation would be forthcoming from the British Government. First, he made a political assumption that Dr. Reid's letters have been driven by legal as opposed to political advice. Our assessment is that the correspondence from the Northern Ireland Office is, at this stage, predominantly driven by political advice and considerations.
With regard to what the United Kingdom courts will do, if the British Government is to honour its Weston Park obligations and if it is to establish tribunals of inquiry into the murders of Rosemary Nelson, Pat Finucane, Robert Hamill and Billy Wright, then the whole issue of disclosure of documents will arise before the courts in any event. If a tribunal of inquiry is established within this jurisdiction, requests emanating from it to the United Kingdom courts will not be placed before them in a vacuum. The whole issue of the disclosure of documentation will arise in a significant way in the next year or two unless the British Government decides to resile completely from the commitments it gave at Weston Park. In view of this, the courts will be unable to adopt a principled approach to the question of disclosure of documents by treating the Dublin and Monaghan issue in a vacuum, as if it can be treated as a special or sole case. It will arise before those courts in a specific context. In that respect we consider that the judgment to be made as to the success or otherwise of application is at large: one will not know until the applications are made.
In our letter of reply to Mr. Collins and Mr. Bueno we have indicated our belief that there is a whole range of documents for which public immunity certificates are irrelevant because they are not in the category of confidential documents. In addition, we are aware from an analysis of documents that were disclosed at the Bloody Sunday inquiry that many categories of documents were disclosed there without objection, including Cabinet minutes and intelligence assessments as well as daily, weekly and monthly military reports. In an assessment we presented to Mr. Justice Barron, we listed more than 30 categories of documents which were disclosed before the Bloody Sunday inquiry without the issue of public immunity certificates arising. Other documents were contested, and other documents were not disclosed. On the other hand, a significant amount of documentation came into the public arena.
In those circumstances, we do not feel that the concerns about whether documents will be obtained are of such significance that they would move a Government or Parliament to decide of its own volition not to inquire, whether by public or any other inquiry. In essence, there is no need to revisit all the points we made, other than to sum up matters as follows. The issues are extremely grave. Some fall solely and exclusively within this jurisdiction. There are difficult issues to be addressed in that they relate to cross-Border matters. However, Governments in the 1970s had the courage to bring the United Kingdom Government to court. The Fianna Fáil Government in 1972 and 1973 had the courage to initiate that court action. The coalition Government of Fine Gael and Labour had the courage to see that litigation through, and that was pursued at a time of intense political difficulties and drama. The right of the State to investigate and complain was not conceded, despite its involvement in the Sunningdale negotiations and others that followed. The State was not willing to concede that certain matters of principle had to be investigated.
We feel that, 30 years on, the same principles should be applied. This Parliament and our Government should have the self-confidence and courage to investigate matters which are difficult but need to be brought to closure. Thirty years later may seem like a fairly long time, but there was a great sense on the first day, when relatives came before the committee, that they have carried a burden which is alive, and that it is time for someone else to take it over. Effectively, it is now for the State to discharge that burden of bringing these issues to a close.
