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Mark Durkan: I thank the Secretary of State for giving way, because the specific example of Bloody Sunday that he is using occurred in my constituency. Obviously, much of the Saville inquiry also took place in Derry. Will he further confirm that if paratroopers who might face charges as a result of the Saville inquiry elect to use this process, they would not have to appear in court at any stage? On the basis of the controls and limits that the Secretary of State will have power to put on the information disclosed, their names might never have to be heard by anyone and other pieces of information about their case could be suppressed. Will the Secretary of State clarify that provision?
Mr. Hain: I know the sensitivity in the hon. Gentleman's constituency and the city of Derry about this matter[Hon. Members: "Londonderry."] Well, it depends on which side of the community one sits. I call it both in order to take matters forward[Interruption.] To clarify the point that the hon. Gentleman makes, I say to him that he is right. The paratroopers who faced that situation, if any, would be treated in exactly the same way as anybody else going through the special tribunal court process.
Dr. Julian Lewis: As I understand it, the Secretary of State is saying that if a former serving soldier were charged and chose to try and resist acknowledging guilt, and opted to go through the whole judicial process, he might clear his name, but he could be found guilty. If he were found guilty, could he then use the new procedure to walk free? If he could not, he would in a sense have been blackmailed to accept a false rap and plead guilty in advance so that he could use the new procedure.
Mr. Hain: I thought that I had explained the position very clearly, but I am happy to clarify it again for the hon. Gentleman, because it is an important matter for him and, I suspect, for the whole House. It is certainly very important to me. The paratrooper, or any other member of the armed forces, would face a choice. He could plead not guilty or guilty to the charge. Let us say that the Saville inquiry identifies an individual, who is then the subject of investigation by the police, arrested, charged and faces prosecution. He can then choose. Normally, he would go through the existing criminal justice systemthe normal Crown court route. He could plead his innocence throughout, but if convicted he could, in principle, serve a very long prison sentence. I took a deliberate decisionI need not have done soto avail a soldier in that position of the option of the special process, which could leave him with a conviction, but still pleading his innocence, and with release on licence, so that he did not have to serve the sentence.
Mr. Duncan Smith: I congratulate the Secretary of State on giving way so much. I know that the whole House appreciates it. In answer to his most recent example, the big difference, which he does not seem to have spotted, is that no soldiers asked to go to Northern Ireland. They went because their Government sent them to hold the peace. Therefore, it is reprehensible to treat them on the same basis as terrorists who ran from their crimes.
The Secretary of State touched on an important issue. After all the interventions he has taken, he seems to have slid into a position where it is almost clear that he is
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saying that the Bill is not part of the Good Friday agreement and never was officially. However, is it now not clear that at the time of the Good Friday agreement and afterwards, through third partiespossibly the Irish Governmentthe Government gave a nod and a wink to Sinn Fein-IRA that when the end point of the agreement process was reached, they would get this new system if they kept their noses clean? The Government never said that at the time of the Good Friday agreement because they knew that it would never have been accepted in Northern Ireland or backed by all parties.
Mr. Hain: It is not a question of evading issues at the time of the Good Friday agreement. This is an unresolved issue, which the right hon. Gentleman, too, would face if he were serving as a member of a Conservative Cabinet at this time, and it will always remain an unresolved issue. He is absolutely right: it was not resolved under the Good Friday agreement. I said that freely earlier on. Where the right hon. Gentleman is not right, however, is that it was not smuggled in at the last minute. It was a matter of public knowledge, published in May 2003; the House was informed about it and all the detail was there.
I know that the right hon. Gentleman is opposed to the legislation, but is he advocating that it would be right for a member of the security forces perhaps to serve a long prison sentence while a former terrorist walked free? Is he saying that that is what should happen?
Mr. Duncan Smith: What I am saying to the Secretary of State is clear: the legislation is wrong for everybody. He should have looked back at what the Saville inquiry is doing and recognised that it is attacking the very people who went to Northern Ireland at the behest of the Government but are now being treated as criminals. That, as well as the legislation, is wrong.
Mr. Hain: I understand and respect the fact that the right hon. Gentleman is opposed to the legislation and that he will vote against it. Of course he will. But I find it absolutely extraordinary, particularly as he is a former Defence spokesman for the Conservative party, that he could put members of our armed forcesperhaps serving membersin a position where they were discriminated against compared with former terrorists[Interruption.]
Mr. Duncan Smith:
The Secretary of State has accused me of something that is reprehensible. As someone who actually served in Northern Ireland and is proud to have done so, I take no lessons from him and nor does my
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party. I am absolutely opposed to the proposed process and I do not think it right for the Secretary of State to use British soldiers as a shield in defence of what is wrong. That is what is wrong with the legislation.
Mr. Hain: I acknowledge the role that the right hon. Gentleman played and the House will of course want to pay tribute to that. I am not using the measure as a shield for anything. If the legislation is passed by Parliament, as I hope it will be, and as the Government believe, as part of their commitments it should be, and notwithstanding the fact that a large number of Members will vote against it, I think it would be wrong for members of the security forces, many of whom, like the right hon. Gentleman, served with great valour in the most horrific circumstances in Northern Ireland, who were ever faced with a situation in which they were a bad appleand it has never been suggested that more than a handful might beto have to serve a full prison sentence while former terrorists walked free.
Clauses 2 to 6 provide for an eligibility process, conducted by a certification commissioner. Provisions governing the commissioner are set out in schedule 1. The eligibility procedure will ensure that access to the scheme will be restricted to specific categories of suspect. They include those colloquially known as on-the-runsOTRs. It also includes people charged with relevant offences during the lifetime of the scheme; for instance, people whose crimes are uncovered as a result of the police historic inquiries work.
The Bill sets out criteria which must be met, and must continue to be met, for the person to hold a certificate. The criteria refer to the person's connection to terrorism and criminality. The certificate will apply only to offences connected to the person by the police and the offences will be listed on the certificate. Certificates can be cancelled if their terms are broken. The certification commissioner will also have a duty to keep victims informedthis is importantas far as possible with the progress of cases. We believe that it is crucial to ensure that the needs of victims are not neglected in the scheme.
Clauses 7 to 11 set out the effects of the certificate. The certificate will grant the person exemptions from certain powers, including arrest, detention, questioning and remand. The exemptions apply only to the offences listed on the certificate, as determined by the police.
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