---

The Chairman: I call Mr. John McFall. I apologise to the Minister; I thought that he wanted to speak. The right hon. Member for North-West Cambridgeshire (Sir B. Mawhinney) was slightly at deep fine leg and I did not quite see him. I call Sir Brian Mawhinney.

5.45 pm

Sir Brian Mawhinney: Before the Minister addresses the points that have been raised during the debate, will he explain in some detail what is meant by subsection (2) of the clause? If I understand the measure correctly, it states that

"relevant information provided to the Commission"

cannot be used in evidence against an individual, but that such information can be used in the defence of an individual. I am not at all clear how it is that the defence of an individual comes to know that the commission has relevant information in the first place. Furthermore, I note in subsection (1)(b) that

"any evidence obtained (directly or indirectly)"--

presumably by the person to whom the body or the remains are handed over, as provided for in clause 4--cannot be used against an individual. However, the evidence can be used in defence of an individual. I do not understand how the defence is supposed to know how to obtain that information, or even how it could know what information exists.

Clause 4, which we shall debate in due course, is the part of the Bill that tells everyone, in legal language, that the only thing that can be done in carrying out tests on bodies is to identify the body. One can only identify who the person was so that the remains can be linked up with the family. Will the Minister answer two questions? First, why does he think that it is not acceptable for information to be used against someone, but that the playing field is not level because it is acceptable for the informationto be used in defence? Secondly, and much more

12 May 1999 : Column 350

intriguingly, how is the defence supposed to know that such information exists, bearing in mind especially that clause 4 states what the examination of bodies cannot do? What can the defence lay its hands on? For example, is it able to obtain information that may come to light under tests covered by clause 4, even though that information cannot be used more generally?

Mr. Hogg: I invite my right hon. Friend to put a different question to the Minister. What is the position if someone who has previously been convicted of a murder, but asserts that he or she is not guilty of that murder, believes that the forensic evidence on the body might prove his or her innocence? That person is not an accused, because he or she has already been convicted. Can that person use the now-to-be-discovered evidence to prove his or her innocence under a subsequent review or on appeal?

Sir Brian Mawhinney: I could not even put the question as well as my right hon. and learned Friend, much less put it better, so I will allow his question to come, as it were, from my mouth.

I have one final question. Given that the tests described in the measure are permitted to be used for the defence of individuals, does that mean that an individual's defence team can require certain tests to be carried out on remains, on the ground that the information obtained might be useful for the defence, even though clause 4 suggests that such tests would be prohibited in the first place because they go beyond the scope of the legislation? I hope that the Minister will able to answer those questions in detail and with clarity.

The Parliamentary Under-Secretary of State for Northern Ireland (Mr. John McFall): I shall try as best I can to answer the points that have been made. The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) will recall that the Conservative Government passed the Northern Ireland Arms Decommissioning Act 1997. He was a member of that Government and did not vote against the measure. Section 4 of that Act contained an amnesty. The Minister of State at the time, Sir John Wheeler, said that any evidence or information adduced as a result of information given to the commission could not be used in criminal proceedings and that, if there was any information or evidence not gained in that way, that could be used. It is not an easy pill to swallow, but it is for those reasons that we have provided that those who come to the commission with information will not be disadvantaged as a result of coming forward with that information; if we did not, the information would not be forthcoming.

Mr. Hogg: I understand that point, and it is perfectly fair as far as it goes, but I hope that the Minister will forgive me for making a further observation. If real progress were being made within the peace progress, I would understand that we have to swallow pills that are profoundly disagreeable to swallow. However, if the time comes when one party--in this case, the IRA--has not made what Parliament believes is a sufficient contribution to the peace process by decommissioning, why should Parliament agree to swallow the pill?

Mr. McFall: The right hon. Gentleman is also a learned Gentleman and he is cleverly trying to take me

12 May 1999 : Column 351

away from the issues contained in the clause, but I shall not budge. However, on the matter of the bitter pill, it is the fervent hope of both the Government and Parliament that progress has been made, and we legislate in that fervent hope. As I said on Second Reading, at the end of the day, we are doing this for the sake of the families.

The clause relates to the admissibility of evidence in criminal proceedings. Hon. Members who were present on Second Reading will recall that the provision is included to ensure that information is forthcoming. The information given to the commission and evidence obtained as a result will be inadmissible in criminal proceedings. That is central to the principle that no one should be disadvantaged by the giving of information to the commission.

However, subsection (2) ensures that information given to the commission can be adduced when it would be of assistance to a defendant in criminal proceedings. The right hon. Member for North-West Cambridgeshire (Sir B. Mawhinney) asked about that provision, which must be seen in the context of ensuring that no one is disadvantaged. An example might be a case in which an individual has confessed to a crime, but his defence is that he was not in fact responsible for it: he might have confessed to carrying out the killing in a certain way, but the evidence is such that the victim could not have died in that way. It would be wrong to prevent an individual from adducing those facts.

The right hon. Gentleman asks how a defence lawyer can know those facts, and that same question crossed my mind when I first read the Bill. The answer is that the commission will receive information and it will then pass that information to the police--the RUC or the Garda. If the police are in possession of information supplied to them by the commission, or of evidence found as a result of a search that would assist the defendant, they are under a duty to make that information or evidence known to the Director of Public Prosecutions. The DPP would inform the defence, who would then be able to request sight of the relevant material.

Mr. Hogg: May I put the following point, which relates to clauses 3 and 4, to the Minister? He is, in effect, saying that the prosecution authorities might have in their possession information that they are under a duty to disclose to the defence. However, a case might arise in which the defendant believes that forensic examination of, say, a bullet found in the body of the deceased would prove that it could not have been fired from the gun in the possession of the accused. As I read the legislation as it stands, there is no power on the part of the defendant to insist--whether by court order or otherwise--that the bullet be made the subject of forensic examination. Therefore, my question to the Minister is whether we should, either at this juncture or subsequently, amend the Bill so that there is a power to enable the defendant who believes that forensic evidence would be forthcoming from the bullet to apply to the court for the bullet to be tested.

Mr. McFall: No one has been charged with or made answerable for the crimes to which the Bill relates. However, the right hon. and learned Gentleman will appreciate that these issues cause us to stray into

12 May 1999 : Column 352

clause 4, which deals with forensic testing, and I shall deal with those matters when we debate clause 4. In brief, the coroner has responsibilities in that respect and evidence that has come to light through forensic testing will not be shared, but will remain the responsibility of the coroner. I shall elaborate on that later.

Mr. William Ross: I tried to table one or two amendments on this part of the Bill, but unfortunately they fell outside the rules. However, the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) has made me look again at the clause, and I think that he is perfectly correct when he draws attention to the fact that it goes far wider than a layman like myself would think on reading it.

The clause states that certain information and evidence

"shall not be admissible in evidence in any criminal proceedings".

It would be one thing if that statement continued with the words "related to that death", but it does not and so covers any criminal proceedings whatsoever. The Government must go away, examine that clause extremely carefully and try to narrow it to cover only criminal proceedings relating to the death in question.

---