Joint Committee on Justice, Equality, Defence and Women's Rights
Sub-Committee on the Barron Report

Dé Máirt, 9 Márta 2004 - Tuesday, 9 March 2004.

Public Hearing on the Barron Report

The Sub-Committee met at 3.10 p.m.

Sub Committee Members Present:
Deputy Seán Ardagh (Fianna Fáil), (Chairperson)
Deputy Joe Costello (Labour)
Senator Jim Walsh. (Fianna Fáil)
Deputy Máire Hoctor (Fianna Fáil)
Deputy Finian McGrath (Independent)
Deputy Paul McGrath (Fine Gael)
Deputy Peter Power. (Fianna Fáil)

DEPUTY SEÁN ARDAGH IN THE CHAIR.

Chairman: Good afternoon, ladies and gentleman. I welcome you to the penultimate hearing of the sub-committee on the Barron report, the report of the independent commission of inquiry on the Dublin and Monaghan bombings of 1974. This afternoon the sub-committee will hear a final submission from the legal representatives of Justice for the Forgotten. Tomorrow, Wednesday, 10 March 2004, the sub-committee will hear a final submission from Mr. Eoin McGonigal, SC; Ms Miriam Reilly, BL; and Mr. Des Doherty, solicitor, on behalf of other victims. Joining us today are Mr. Cormac Ó Dúlacháin, SC, and Mr. Greg O'Neill, solicitor, legal representatives of Justice for the Forgotten. They are both very welcome. I also welcome a number of the members of Justice for the Forgotten who have appeared here over the number of days of the hearings. They are very welcome and I thank them for coming.

Before Mr. Ó Dúlacháin and Mr. O'Neill start, I just want to remind them that while Members of the Oireachtas and sub-committee members enjoy parliamentary privilege, that, privilege does not extend to them. Sub-committee members have been circulated with copies of their letter dated 4 March and they have been provided with a copy of the joint and supplemental opinion which we received yesterday from Mr. Collins and Mr. Bueno. I now invite Mr. Ó Dúlacháin to make his opening statement.

Mr. Cormac Ó Dúlacháin: Thank you very much, Chairman. The sub-committee has heard a huge amount over the past eight weeks, since it commenced its deliberations, and it is not my purpose to go over that ground. The sub-committee appreciates the significant wrongs that occurred on 17 May 1974 and I do not think I need to re-present them with any great sense of drama. The significance of what occurred and the concerns that have given rise to this process are well understood. What I do want to do is refer to two particular matters which I think are very important. One relates to matters which Mr. Bueno and Mr. Collins touched upon in their joint submission. The second is to come back to the central question: if there is to be another inquiry, what form should it take?

The joint opinion the sub-committee received from Mr. Collins and Mr. Bueno, at page 25, included a quotation from an article by Angela Hegarty of the University of Ulster. Half way through that passage there is a very important statement which reads as follows: "What people frequently want from a truth process is an acknowledgement of the violation of their rights and admission that what was done was wrong".

Essentially what the relatives have been seeking since 1993 is an acknowledgement of the violation of their rights and a consideration of the wrongs done and who did those wrongs. Why they sought a public inquiry was, effectively, to deal with the central thrust of what Angela Hegarty was talking about in her article. On that aspect, she goes on to say, "This is also important for the purposes of accountability and reconstruction. Without admitting the wrong done, one may not prevent the future from replicating the abuses of the past". For the relatives, our concern has always been to identify the wrongs.

In our closing submission submitted to the sub-committee we have indicated that while there are many wrongs to which one can point, there are two things that really stand out. Our concerns, on behalf of the relatives, are a belief that senior elements within the Garda Síochána obstructed the investigation of the bombing. That is a very serious allegation and it is not made lightly but it is made in circumstances where we have considered the Barron report, heard the Garda Commissioner and there has been no acknowledgement by the State or State agencies that there was, in fact, a very serious wrong. There has been no further explanation after the Barron report to explain the deficiencies, errors and omissions that the Barron report highlights. Our ongoing concern is that that question has to be addressed and cannot be left unanswered or unaddressed.

The second issue that has heightened our concern is the belief that the British security forces participated and colluded in the bombings. That concern has been increased by what has been heard at these hearings. It has been given a strength which was not there before, in particular, when one hears the likes of Seán Donlon, a former ambassador and diplomat, come forward and express a personal belief that there was collusion on the ground. We appear here, on behalf of some 34 people who are deceased as a result of four bombings, which left many others injured and affected the lives of many others, to say this is the concrete result of a policy, a process of collusion. We say we are entitled to ask of the State that these matters be investigated.

We then come to consider how the State should investigate them. Our dilemma has been that at one level we are advancing that there should be a tribunal of inquiry. Why are we advancing this? We are advancing it for a very simple and pragmatic reason, that is, it is the only form of inquiry on the Statute Book that carries legal powers. There is no other power to which we can point by which an inquiry can be established that will have the power to enforce the attendance of witnesses, examine them on oath, compel the production of documents and issue requests for information and assistance from abroad. Effectively, a tribunal of inquiry is the only form of inquiry where, if a party does not co-operate, there is a sanction - one can be punished for contempt. In that respect, all that exists on the Statute Book in terms of conducting a legally based inquiry with legal powers and sanctions is a tribunal of inquiry.

It is important to understand a little about the history of the establishment of tribunals of inquiry which have their origins in an Act of 1921 which was enacted by the British Parliament because of concerns in Britain about the way parliamentary inquiries were being conducted, in particular, the famous inquiry in relation to the Marconi scandal where a committee dominated by Liberals investigated a scandal involving Liberal Ministers. Punch magazine painted it in a phrase - the Minister has left the inquiry with an unblemished record except for the whitewash. Effectively, tribunals of inquiry were established as an independent means of examining very serious issues.

The dilemma with the tribunals of inquiry Act is that the Act states the proceedings must be in public. That is where tribunals have run into difficulties in recent years because the length of those proceedings has increased in duration. We have moved from a period where inquiries such as the Stardust and the Whiddy Island inquiries used to last four or six weeks to a period where they seem to go on endlessly. The reason they are held in public is that the law states they must be held in public.
The second dilemma in relation to tribunals does not arise from the legislation per se; it arises from the development of the practice of awarding costs at tribunals of inquiry. There is a legal issue about who is entitled to costs and whether the State should pay them. We acknowledge these two dilemmas - the duration of an inquiry and the costs incurred. Neither of these issues has been addressed by amending legislation. The Legislature has not reviewed the tribunals of inquiry Act and asked how we can put limits on tribunals of inquiry without throwing out the benefits.
The benefits of a tribunal of inquiry are considerable - the examination in public of serious issues, the holding of people to account in public, the examination of witnesses and documents in public. The last thing any Parliament will do is abolish the concept of a public tribunal of inquiry because it is a very powerful and important tool. Our point is that if one looks back over the past 50 or 60 years, there is not a graver issue that warranted a tribunal of inquiry than the issues around the Dublin and Monaghan bombings. One could not pick out a graver issue that would justify a tribunal of inquiry.

What has happened in addressing what are legitimate public concerns? The only thing that has happened is that the Minister for Justice, Equality and Law Reform has introduced a Bill, Commissions of Investigation Bill, of which one of the central features is that it provides for the conduct of an investigation in private. We have very grave difficulties with the conduct of an investigation into these issues in private. That Bill may serve a very important purpose for a realm of investigations and public concerns but can this type of issue be investigated in private? I am not sure whether that Bill will come before this committee-----

Chairman: It will in due course.

Mr. Ó Dúlacháin: -----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 Corry 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 Blood 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.

Mr. Greg O'Neill: I would like to say a few words in support of Mr. Ó Dúlacháin. On 20 January 2004, the families came here and spoke to the committee about their campaign for truth and justice and the struggle they have had over the years, which Mr. Ó Dúlacháin has just mentioned. Members heard from Edward Roice, Frank Massey, Michelle O'Brien, Bernie McNally, Iris Boyd and many others. While I have been involved with the families for many years and had heard the stories on innumerable occasions, I was shocked and moved myself at their testimony. Time and again, the families have pointed out that while there may or may not be issues about collusion, the primary obligation and unavoidable duty of this State to inquire publicly into matters that are its concern remains. There may be issues of collusion and questions about whether MI5 or MI6 has information on files that it will not disclose, but for Edward Roice, whose daughter was murdered, for Frank Massey, whose daughter was murdered, for Michelle O'Brien, whose mother was murdered, for Iris Boyd, whose father was murdered, and for all the other survivors and relatives, the shambles that passed for a Garda investigation has nothing whatsoever to do with MI5 or MI6. Talk of that is a red herring at worst. It is also a recipe for moral paralysis and a charter allowing those who participated and colluded in the bombings, whichever side of the Border, to escape at least the public opprobrium that should be visited on them, even if it cannot result in a jail term.

Almost 11 years ago the families demanded a public inquiry but nobody in this State wanted to know. It was not until 1999 that this committee and this House showed an interest and heard a presentation from us and the families, and not until January 2000 that a commission to inquire privately into the issue was established. It was not until December 2000 that it was decided the families were entitled to have inquests into the deaths. It is not morally acceptable for the State or Members of the Oireachtas to invoke time as an issue against the families.

On 27 April the hearings of witnesses and evidence in the Dublin and Monaghan inquests will begin in the coroner's court. I hope they will be allowed proceed with as much dignity as possible and that when the families come out from the inquests they will not be met by members of the press or media asking them about a public inquiry. At that stage the families are entitled to know that their campaign for a public inquiry will have succeeded.

On 16 May, Uachtarán na hÉireann will unveil the memorial to the victims in Monaghan town. All the families and survivors will be there. The President will represent this committee, and every citizen in the State at that ceremony. The families should be entitled to attend that knowing that their campaign of 30 years will have succeeded and that this committee will have done its basic duty. Thank you.

Chairman: Thank you very much Mr. O'Neill and Mr. Ó Dúlacháin. It is not intended that the sub-committee will ask questions but I have one I would like to ask. Mr. O'Neill suggested that an inquiry into this crime will probably not result in a jail term for the perpetrators. Does he accept that no person will be brought to justice, that is, charged and convicted for the Dublin-Monaghan bombings?

Mr. O'Neill: No I will not rule out that possibility because there are degrees of criminal complicity in crime and degrees of being an accessory before and after the fact. A number of individuals were amenable to arrest by the Garda in this State but were not arrested. They are still amenable to arrest and interrogation and have not been arrested or interrogated.
As a prediction of State and Garda action, and as a critique of how they have managed or mismanaged the evidence, I could make an assumption that it is unlikely there will be a criminal investigation, but I will not rule it out.

Chairman: I again thank Mr. Ó Dúlacháin and Mr. O'Neill for appearing today and making the final submission on behalf of Justice for the Forgotten. All that they have said will be taken into account by the sub-committee in its deliberations. I also thank all those in the Public Gallery for attending.
The sub-committee will adjourn until 10.30 a.m. tomorrow when counsel for the families represented by Desmond Doherty and Company will appear before it.

The sub-committee adjourned at 3.50 p.m.
until 10.30 a.m. on Wednesday, 10 March 2004.