---

Mr. McFall: I shall try my best to respond to those points. First, the right hon. Member for North-West

12 May 1999 : Column 356

Cambridgeshire (Sir B. Mawhinney) referred to legal advice; he does not accept at face value what the Bill says about that. I shall do my best to ensure that information is placed in the Library.

There was an intensity to the right hon. Gentleman's question about evidence given to the commission. The commission is being established to locate the remains of bodies, and any information given to the commissioners through facilitators will be passed on to the police. The right hon. Gentleman will know that we have asked Sir Kenneth Bloomfield, who has a distinguished public service record, to serve as a commissioner. It is not for me to second-guess every piece of information that he will receive. The right hon. Gentleman should be assured that such an eminent individual will use the sensitive information that he receives in the proper way when passing it on to the Garda and the police. The Bill simply establishes that flow of information.

6.15 pm

Mr. Thompson: On what grounds will the commission supply information to the police? Clause 5 states:

"No relevant information provided to the Commission shall be disclosed to any person".

Surely that prevents the commission from giving information to the police.

Furthermore, the Minister mentioned the appointment of one commissioner. Will there be only one commissioner, or will another be appointed, from the Republic of Ireland?

Mr. McFall: The hon. Gentleman has been present throughout the proceedings, and my right hon. Friend the Minister of State mentioned that there would be two commissioners: one, Sir Kenneth Bloomfield, will be from Northern Ireland and one, who has still to be announced, will be from the Republic of Ireland.

The hon. Gentleman asked about the information that the commissioner will have. We are only passing the legislation at the moment, so I cannot give him an insight into that.

Mr. Thompson: I am asking where in the legislation it states that it is incumbent on the commission to supply any information that it has to the police, because clause 5 says:

"No relevant information provided to the Commission shall be disclosed to any person"

except in special circumstances, but it does not mention the police.

Mr. McFall: It is implicit in the Bill that the information provided to the commissioners has been provided to ensure the location of remains. That would be relevant information--we have given a definition of that term--that would be passed on by the commissioners. The hon. Gentleman will realise that I cannot give him any insight into the nature of the information.

The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) asked whether a bullet could be subject to forensic testing and whether a defendant could request forensic testing as part of his defence. The answer is no. Defendants cannot have their own forensic tests carried out, as clause 4 states. I am aware that I am

12 May 1999 : Column 357

in danger, Mr. Martin, of jumping to clause 4 or clause 5, and I realise that we are dealing with clause 3, but I have been asked questions about clause 4, so I ask you to bear with me.

Mr. Hogg: Will the hon. Gentleman give way?

Mr. McFall: Will the right hon. and learned Gentleman give me the opportunity to answer his question? Defendants cannot carry out their own forensic tests, but they can use the results of tests conducted for the inquest. That may be helpful to their defence and, under clause 3(2), they can adduce that information.

Mr. Hogg: Does the Minister not realise that the ability of the accused to use that information under clause 3(2) may be nugatory unless the accused has the right to require testing, because the material that is obtained in the course of the inquest may be wholly different from the evidence that the defence may want to call if it is to benefit from the provision in clause 3(2)? I therefore suggest to the Minister that he reflect on the clause and work out whether, to make clause 3(2) effective, it would be right to enable the accused to apply to the court for an appropriate order allowing that testing.

Mr. McFall: Again, we are getting on to clause 4. If the right hon. and learned Gentleman reads clause 4(1), he will find the six conditions in paragraphs (a) to (f) under which forensic testing is not allowed by anyone except, as subsection (2) states, the coroner. The coroner will make that information public. The answer to the right hon. and learned Gentleman's question is no, because forensic testing on the part of the defendant is ruled out in clause 4(1)(a) to (f).

Question put and agreed to.

Clause 3 ordered to stand part of the Bill.

Clause 4

Restrictions on forensic testing

Mr. William Ross: I beg to move amendment No. 2, in clause 4, page 3, line 16, leave out from 'person' to end.

On the face of it, the amendment looks very simple, as all amendments do. The Committee can get the flavour of it by looking at subsection (2), which states:

"Subsection (1) does not prohibit a test or procedure the purpose of which is to discover information in relation to an item where the information is sought for the purpose of establishing, for the purposes of an inquest, the identity of a deceased person, or how, when and where he died."

When I read the clause, I must confess that I thought that it would be a good idea to take all of it out of the Bill. Unfortunately, amendment No. 14 did not find favour. Amendment No. 2--which was selected presumably because it was the only one of my amendments to clause 4 which fell within order--draws attention to the fact that subsection (2) seems to contradict earlier parts of the clause.

Subsection (1) says:

"the Commission shall not carry out, or cause or permit anyone else to carry out, a test or procedure in relation to the item the purpose of which is--


(a) to discover information about anything done to any person".

12 May 1999 : Column 358

Surely, finding out, for the purposes of an inquest, the identity of a person and how, when and where he died flies straight in the face of such a provision. There seems to be a contradiction, which must be resolved.

The clause allows tests and procedures to discover how, when and where a person died. Once one has discovered where the person died, one might have some idea who was responsible for his death or where he had been tortured. If bones were broken or fingers cut off, whichis not unlikely, one would certainly have some understanding of the suffering before the murder. Yet we are told that we are not supposed to know such things. How is the contradiction to be resolved?

The other interesting matter is that subsection (1) is all about discovering what has happened to the individual:

"to discover who has been in contact with, or near to, any person or item;


to discover where any person or item was at any time (including the conditions under which he or it was kept)",

which would include where the deceased was imprisoned, perhaps for some time. The subsection prohibits tests

"to discover when any person or item was in contract with, or near to, a particular person",

which I would have thought would be very useful knowledge if one were to try to prosecute someone for the murder of an important individual. The subsection prohibits tests to discover

"when he or it was in a particular place or kept under particular conditions"--

in other words, what sort of imprisonment the individual suffered. A test or procedure cannot be carried out

"to discover when or where any item was made".

We know that terrorist organisations manufacture certain items for use in their terrorist campaigns, and something like that could be of great use to the prosecution. We are also prohibited from carrying out tests

"to discover the composition of any item."

I have a problem: I want the Government to tell me how they will square knowledge of what is done to a person--the torture or murder--with the scope of subsection ((2). Clearly, the only tests that could be in keeping with subsection (1)(a) are those that will identify the victim. Any other information could be used to prosecute. The Government have clearly decided to avoid that. How on earth are they to resolve that conundrum?

It is clear to anyone who reads the Bill that the Government have done some deal with the IRA to avoid its members being brought before courts and charged with torture and murder. [Interruption.] I am glad to see that the Under-Secretary gives his assent to that remark. The Bill was a consequence of discussions with the IRA, which surfaced fully only on 29 March.

In answering my hon. Friend the Member for Fermanagh and South Tyrone (Mr. Maginnis), who asked about the deal with the IRA and the guarantee for bodies, the Under-Secretary said:

"However, we have the evidence received from the families and others who are willing us to act and the statement made by the IRA on 29 March, to which my right hon. Friend the Secretary of State and the Irish Government have responded. We are legislating on the basis of that information in the sincere hope that the agony of the families will end."--[Official Report, 10 May 1999; Vol. 331, c. 77.]

Clearly, the Government are saying, "Yes, we believe that there is a hard case and therefore we must make the law fit the line," to which, as I have already said, I object.

12 May 1999 : Column 359

There was a deal, and contact, either directly or at arm's length, was made with the IRA. The IRA gave certain guarantees, which it has not as yet fulfilled--in this or any other piece of legislation that has been drafted to placate it. The Bill flows directly from the commitments given.

I am also somewhat intrigued by the fact that there is no clause to limit the Bill's powers.

---