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Lord Molyneaux of Killead moved Amendment No. 4:

Page 2, line 35, leave out ("not")

The noble Lord said: I shall curtail my remarks in view of the progress on the Bill still to be made.

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Amendments Nos. 4 and 5 seek to transform into positive form a clause which is at present wholly negative. The entire clause is an affront to the rule of law of the United Kingdom. It amounts to the suppression of facts, blatantly informing Her Majesty's judges that they must suspend the principles of justice to placate those known to the intelligence service as terrorists, some of whom would be guilty of murder and worse.

Subsection (1)(b) adds to the offensive provision by asserting that,

    "any evidence obtained (directly or indirectly)", may not be admissible. That would appear to place any court in the position of being challenged to prove that indirect information stemmed from the operation of some part of the Bill. I suggest that the court would be placed in an impossible position.

Amendment No. 6 is linked with Amendments Nos. 4 and 5. As if the cover-up provisions of Clause 3(1) were not enough, giving as it does immunity for persons who were possibly connected with the torture and murder of their victim, there is an absolute ban on the disclosure of information which might expose them to prosecution. But then subsection (2) guarantees that, although information may not be made known to the authorities, it will be made available for the defence if the accused for any criminal offence considers that the information might assist in his defence. As drafted, Clause 3 protects an accused from evidence obtained but provides him freely with such evidence, rigidly withheld from the courts, if he feels that disclosure would assist him in escaping justice. I beg to move.

Lord Dubs: Clause 3 provides the first key protection for relevant information provided to the commission. It is a fundamental principle of the Bill that no one should be disadvantaged by the giving of information to the commission. After all, the purpose of the Bill is to provide a mechanism which will facilitate the provision of information about the whereabouts of the remains to the commission so that the many, many years of suffering endured by the families can finally be brought to an end.

If we were to legislate in the way suggested by the noble Lord, Lord Molyneaux, in Amendment No. 4 without the necessary protection which this clause provides, it is certain that information would simply not be forthcoming. It is for that reason that I cannot accept the first of this group of amendments. It would negate the purpose of the Bill.

On Amendment No. 5, we believe that it is essential in securing the confidence of those who hold the information about the location of the victims' remains to impose the evidential restrictions set out in Clause 3. As I have stated, without this assurance it is likely that no relevant information would be forthcoming.

The amendment would render evidence inadmissible only in criminal proceedings relating to these victims. I can understand the intention of the noble Lord, Lord Molyneaux, in tabling this amendment and his reasons for doing so but, in our view it would undermine the inadmissibility protections to such an extent that those with the information would refuse to come forward, thereby again negating the purpose of the Bill.

I bring Members of the Committee back to the underlying principle of the Bill: that no one should be disadvantaged by providing relevant information to the

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commission about the location of these remains. Some noble Lords no doubt find the limited protections in Clause 3 at the very least regrettable. But I hope that they will agree they are an essential requirement if we are to achieve the desired purpose of the Bill. For that reason, I cannot accept Amendment No. 5.

Having resisted those amendments, I also urge the Committee to resist Amendment No. 6. I am sure that the noble Lord, Lord Molyneaux, would not wish to prevent information which could acquit an innocent person from being adduced in criminal proceedings. I am afraid that that is the risk if Amendment No. 6 were to be accepted. I should also point out that Clause 3(2) is based on a similar provision in the decommissioning legislation which Parliament has, of course, approved.

I hope that in the light of that, the noble Lord will feel able to withdraw the amendment.

Lord Molyneaux of Killead: As the Minister pointed out, Amendment No. 6 in particular was designed to draw attention to the anomaly that, whereas protection could be given to murderers by withholding or concealing information, if the same murderer discovered that it would be to his advantage for the information to be disclosed, presumably even in open court, he has the option of doing so.

I cannot conceal my disappointment. However, in view of the fact that all three of my amendments run counter to the Bill as debated in another place and thus far in this Chamber, I have no option but to withdraw the amendment.

Lord Fitt: I associate myself with the amendments moved and spoken to by the noble Lord. I realise that we cannot have a vote. The time for that has passed. But I wish to associate myself with those amendments.

Baroness Farrington of Ribbleton: Those amendments are not before the Committee. It is not possible for noble Lords to speak to an amendment unless it is put before the Committee. I understand that those amendments have not yet been moved.

Amendment, by leave, withdrawn.

[Amendments Nos. 5 and 6 not moved.]

Clause 3 agreed to.

Clause 4 [Restrictions on forensic testing]:

Baroness Park of Monmouth moved Amendment No. 7:

Page 3, line 15, after ("inquest,") insert ("or to satisfy any legal requirement arising on or connected with possible claims under legislation relating to compensation,")

The noble Baroness said: This is a brief amendment to attempt to make some use of the Bill. I recognise that, as the Minister said in another place:

    "The post-mortem report will usually be read out in open court and questions put to the pathologist". However, it is not clear under what circumstances it may be used. I note also that the Minister, when rejecting the

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    clause on compensation put forward in the other place by Mr. Lembit Opik said:

    "the families of persons whose remains were recovered would not fall within the compensation scheme because of the three-year time limit". But he also said:

    "We have asked Sir Kenneth Bloomfield to undertake a detailed examination of the compensation scheme and its fitness for its purpose".--[Official Report, Commons, 12/5/99; cols. 363-75.] I tabled the amendment to ensure that should changes in the law of compensation be made which could favour these unfortunate families, the right to information relevant to compensation would already appear on the face of the Bill. It is particularly important since the review is taking place now.

However, I have one concern on which I should be glad of reassurance from the Minister. Sir Kenneth Bloomfield is reviewing the existing compensation scheme and has acquired, as part of his excellent work on his report We Will Remember Them, a considerable knowledge of the problems of victims, including those of the Disabled Police Officers' Association on whose behalf I shall be approaching both the noble Lord and the Minister for victims in the near future.

Now Sir Kenneth has been named as one of the two commissioners charged with dealing with the IRA on the question of the location of victims, can the Minister assure us, first, that his new task will not place such a burden of work on him that the review of compensation and much else that he is doing for victims, not just for families, will be shelved or seriously delayed? Secondly, can he assure us that his new task will not be held to disqualify him from working for victims in general on grounds of conflict of interest?

Finally, I wish to remind the noble Lord, whose genuine concern for the families and victims of terrorism we recognise, that under Article 5(5) of the Convention on Human Rights, which is part of the Human Rights Act 1988:

    "Everyone who has been the victim of arrest or detention in contravention of the provisions of this article, the right to liberty and security, shall have an enforceable right to compensation". That should surely apply to the family where the victim is no longer alive to make any claim. I beg to move.

Lord Redesdale: I have put my name to the amendment. I realise that as the review of compensation procedures is now taking place, the Minister may not be able to give us any reassurance on the future provision of compensation for victims' families. As I spoke on the subject on Second Reading, I wonder whether the Minister can indicate any movement as regards compensation for the families? Can he give an assurance that if compensation is available he will make every effort to supply it to the families, considering that during the past few years they have suffered intimidation and threats if they talked about their loved ones?

Lord Molyneaux of Killead: I support the wisdom of the noble Baroness, Lady Park, and agree with what has been said by the noble Lord, Lord Redesdale, in identifying a serious gap in Clause 4. She and I know from long experience that flaws in compensation

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legislation are too numerous to catalogue. Endless complications, totally unexpected, are a common feature in nearly all such cases. Those engaged in litigation will demand much more than meaningless phrases such as "it is believed that" or "there is reason to assume". There must be something more specific because such phrases will be of no avail. Only verifiable facts will suffice. Those facts can be obtained only under the headings of paragraphs (a) to (f). However, the Bill as it stands would suppress such information. Like the noble Baroness, Lady Park, I take the view that there is an unanswerable case for the adoption of her amendment and I strongly support it.

7.15 p.m.

Lord Dubs: The noble Baroness's amendment cannot be accepted by the Government for two reasons. First, it undermines the likelihood that the Bill will result in the remains of victims being located. Secondly, it would not in fact assist the families should they wish to make a claim for compensation.

The purpose of the Bill is to find the remains of victims and to end the suffering of their families. As I said during our Second Reading debate, achieving that aim is a delicate balance, but our starting point for the limited protections at Clauses 3, 4 and 5 of the Bill is that no one should be disadvantaged by the giving of information to the commission. Clause 4, therefore, places restrictions on forensic testing on the remains of the victims and items found during the search.

The noble Baroness's amendment would widen the circumstances in which forensic testing could be conducted. It would allow the families to commission testing for the purpose of making a claim for compensation. I shall turn in just a moment to why I do not believe that the amendment would assist the families.

My fundamental difficulty with the amendment is that it would make it very unlikely that information would come forward. It would enable testing to take place outside the confines of the inquest process, with the attendant risk that information other than that necessary for the inquest would be discovered and disclosed. That cuts across the principle that no one should be disadvantaged by the giving of information to the commission. It defeats the purpose of the Bill and it is self-defeating because, if the location of the graves are not found, there would be no remains or items on which to conduct tests.

I have considered carefully the practical benefit to the families should this amendment be accepted. But I can find none. The issue of compensation arises in two ways: through the statutory scheme and through the possibility of civil proceedings.

During our Second Reading debate and in another place, the Government have said that they believe that the families are time-barred from receiving compensation under the statutory scheme. The ability to conduct forensic testing would not alter that position given that the date of death would be a matter fully aired at the inquest. Extra testing would not be necessary. In any event, the

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ability to commission tests would not be relevant to a claim under the statutory scheme, even if the time limits did not apply.

It may be open to the families to commence civil proceedings if other information is available to them and if the courts are willing to use their discretion to waive time limits. I do not see, however, how this amendment would assist the families in any such civil action. They will already have available to them the inquest findings and are free to use them in civil proceedings. This amendment does not seek to widen the information which might be gained by the families from forensic testing.

Under this amendment, forensic testing remains limited to the information available at the inquest; that is to say, the identity of the victim and how, when and where he died. The amendment is aimed ultimately at compensation, but the amendment would not help to establish the identity of the persons responsible for the killing and it would not therefore assist the family to establish against who an award of compensation should be made. More fundamentally, without an idea of the identity of the person responsible, there would not be a defendant against whom proceedings could be brought.

I was asked about the possibility that Sir Kenneth Bloomfield might suggest changes to the statutory compensation scheme. Yes, that would enable the people claiming under the terms of the Bill to benefit from any changes in the compensation scheme suggested by Sir Kenneth and brought into effect. I was also asked about the many responsibilities placed upon Sir Kenneth Bloomfield. I understand that he is happy to take on the role of commissioner and that it would not in any way be detrimental to his review of compensation. In other words, Sir Kenneth Bloomfield is happy that he will not be over-burdened by his new responsibility.

For the reasons I have given, I hope that the noble Baroness will feel able to withdraw the amendment with the assurance that the inquest findings are available to the families.

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