IN THE HIGH COURT OF JUSTICE CO/0358/99
QUEEN’S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Thursday 4 February 1999
B e f o r e:
MR JUSTICE COLLINS
– v –
LORD SAVILLE OF NEWDIGATE
THE RIGHT HONOURABLE SIR EDWARD SOMERS
THE RIGHT HONOURABLE MR JUSTICE HOYT
(THE MEMBERS OF THE TRIBUNAL SITTING AS
THE BLOODY SUNDAY INQUIRY )
Ex parte B, O, U and V
Computer Aided Transcription by
Smith Bernal, 180 Fleet Street, London EC4
Telephone No: 0171-421 4040
(Official Shorthand Writers to the Court)
P R O C E E D I N G S
A P P E A R A N C E S :
MR EDWIN GLASGOW QC and MR MICHAEL BOOLS (instructed by The Treasury
Solicitor) appeared on behalf of THE APPLICANTS
MR CHRISTOPHER CLARKE QC, MR ALAN ROXBURGH and MR JACOB GRIERSON
(instructed by Mr Philip Ridd, Solicitor to the Inquiry, PO Box 18031
London EC3V 9JB) appeared on behalf of THE RESPONDENTS
THE FIRST INTERESTED PARTY
LORD ANTHONY GIFFORD QC and MR MARTIN JONES (instructed by Birnberg
& Co, London NW1 7HJ (London Agents for McCartney & Casey, Derry 3))
appeared on behalf of THE SECOND INTERESTED PARTY
Thursday 4 February 1999
1. MR CLARKE: May it please your Lordship, it is agreed that I should begin to speak to your Lordship. I appear in this case with my learned friends Mr Alan Roxburgh and Mr Jacob Grierson for the tribunal. Mr Edwin Glasgow and Mr Michael Bools appear for soldiers B, O, U and V. Mr Michael Lavery and Mr Seamus Treacy appear for the next of kin of those who died on 30 January 1972 other than James Wray and for the majority of those who were wounded on that day. I am glad to say that they were called to the English Bar this morning and it is nice to see them here. My learned friends Lord Gifford and Mr Martin Jones appear for the next of kin of James Wray.
2. Your Lordship knows that on Thursday last, leave was granted to the soldiers named in the order to challenge the tribunal’s decision of 14 December of last year in relation to anonymity for the soldiers who are to give evidence before it, with a provision that the order was not to be effective if notice of a request for an oral hearing was given by Tuesday last.
MR JUSTICE COLLINS: Yes.
3. MR CLARKE: My Lord, that notice was given. In the interim the tribunal has been carefully considering the most appropriate method of proceeding. Its overriding concern — indeed its concern above all other — is that any challenge to its ruling, unfounded as it believes such to be should be finally and conclusively determined as soon as possible.
4. MR JUSTICE COLLINS: I certainly would agree with that.
5. MR CLARKE: My Lord, it is for that reason and that reason alone that it has decided that the right course is to invite the court, as its order contemplated and indeed provides, to fix a date for the substantive hearing as soon as possible and to the extent necessary to abridge any relevant time period for the service of the notice of motion rather than spend (and possible waste) time on a contest about leave and a possible appeal therefrom which might not turn out to be finally determinative of the issue.
6. MR JUSTICE COLLINS: You could not appeal against the grant of leave anyway.
7. MR CLARKE: No, but you appeal against a refusal. My Lord, can I explains what is the importance of real expedition?
8. MR JUSTICE COLLINS: I would have thought it was self-evident, but perhaps for the bene fit of those who do not appreciate that it is self-evident.
9. MR CLARKE: My Lord, I will do it very briefly. Uncertainly about the extent of anonymity is calculated to cause a serious impediment of the on-going work of the Inquiry. The soldiers will want to know on what basis their evidence is to go forward. The oral hearings are presently scheduled for 27 September of this year. The process of taking statements from the soldiers is due to begin at various regional centres from the beginning of March. Any significant delay in that process would seriously imperil the 27 September date. That date itself is part of a tight timetable, but still considerable way from the date when the Inquiry was established, namely in January of last year.
10. My Lord, a second matter is that the issue raised by the applicant’s challenge raises a number of fundamental questions as to the extent to which it is appropriate for the court to intervene in respect of the procedural decisions of an on-going inquiry under the 1921 Act by an international tribunal. It may be that this challenge is not the only one that may be made, and it is not without importance that the approach of the court should be decided at an early stage.
11. MR JUSTICE COLLINS: That, I would have thought, was a very important matter.
12. MR CLARKE: We would ask your Lordship for this case to be listed as soon as possible. Our time estimate is some two to three days. Our affidavit will be ready in seven days and we know of no impediment (save that which presides as it were in the court itself) to having the matter determined as soon as possible.
13. MR JUSTICE COLLINS: The court can act quickly if the need arises, as we all know.
14. MR CLARKE: My Lord, there are two further questions that arises and I ought simply to introduce, because they are largely for my learned friends to deal with. Those are whether or not those whom my learned friends Mr Lavery and Mr Treacy represent and those whom Lord Gifford and Mr Jones represent are persons directly affected by the proceedings to be instituted by notice of motion; and secondly, whether these proceedings should have been brought, or should now be brought or continued in Belfast. My Lord, as I say, these are primarily matters for my learned friends, but it may be appropriate for me to say something very brief about them.
15. MR JUSTICE COLLINS: Mr Clarke, the problem as I see it — and I say this now so that it can be dealt with — is that it is very questionable whether Lord Gifford and Mr Lavery have any rights to appear at all at this stage. This is, of course, technically an ex parte application for leave. As you well know, the rules do not explicitly provide for an argued ex parte — that is to say an ex parte with the respondent coming along. Still less do they provide for a party who is not a respondent, in the sense that the party who is not named as the respondent to the application for leave, to attend. There is some slight learning on this, but I think possibly it is a decision of mine in which I said I did not believe that there was any right for an interested party of that sort to attend and argue the matter at the leave stage.
16. Now, there is of course a discretion in the court to permit any party or person to be heard if the court thinks it right to do so. I take the view that there must be, and always has been, a general right in the court to regulate its own procedure in that way. I think that is supported by the case of Atsi v Smith (?). I forget the reference to that; it was in the early eighties. It is the case where a solicitor wanted to be able to read a statement in a liable case on settlement of the liable case, and he was refused. The matter went to the Court of Appeal.
17. MR CLARKE: My Lord, I hope that the court would feel able to hear what those present have to say for this reason. If, as I apprehend, the upshot of today in the light of what I have just told your Lordship is that the leave will stand — because I am not applying to your Lordship to set it aside — then if a more relaxed time frame were available, the ordinary course would be for the notice of motion to be served. That would then have to be served on the those directly affected, and even if they were not directly affected they would have a right to ask to be able to make submissions.
18. Now, at some stage or other the court would have to be in a position — and would be in a position — to determine whether they were directly affected or whether, not being directly affected, they should be entitled to make submissions. It would seem unfortunate in a case which requires expedition if one were to have to go through the procedural stages rather than treat the leave as having been given, and proceed forthwith to the question which will arise in any event: whether or not the relatives of the dead and wounded are or are not directly affected.
19. MR JUSTICE COLLINS: I see the force of that, Mr Clarke, and I had already thought that it would be sensible to deal at least with that issue and to hear any representations that are sought to made on that matter, as you say, on the basis that leave had been granted. One is then concerned with the rights or otherwise of those who appear before the Divisional Court when the matter is heard.
20. MR CLARKE: Yes. If your Lordship is provisionally of that view, it is largely for others to go through.
21. MR JUSTICE COLLINS: The jurisdictional point I am not so sure about.
22. MR CLARKE: May I come to that in a moment?
MR JUSTICE COLLINS: Yes.
23. MR CLARKE: My Lord, so far as the question of who is directly affected, it appears to those advising the tribunal that the relatives of the dead and wounded are indeed persons directly affected. I should tell your Lordship the position. They were given leave to appear as interested parties in the Inquiry — and they are interested parties in the inquiry.
24. MR JUSTICE COLLINS: There is no question that they are interested parties, and I would have thought that it is clear — certainly I take the view that it is clear — that they fall within Order 53, rule 9.
25. MR CLARKE: That must certainly be so.
26. MR JUSTICE COLLINS: That I have no doubt about and although I think technically it may be that it is not for me to make that decision because it is for the Divisional Court who are going to deal with this — it will not be a single judge case — I would have thought that there would be no problem about that. Indeed, all that is necessary is for those who wish to appear to contact the Crown Office immediately and make an application. It may be that the Crown Office will take the view that that could be dealt with by a single judge as a sort of interlocutory application.
MR CLARKE: Yes.
27. MR JUSTICE COLLINS: If so, they know my views and I do not suppose anyone would seek to dissent from that.
28. MR CLARKE: The tribunal would regard it as axiomatic that they should be represented in some form or other.
29. MR JUSTICE COLLINS: Well, I agree. Whether all need be is another matter. That is a matter for the court. When I say “all need be”, if there is no conflict and everyone is putting the same point. It may be that the court would take the view that it was not necessary to hear everyone, but that may be a matter for discussion between those who wish to be heard.
MR CLARKE: Yes.
30. MR JUSTICE COLLINS: Whether they are directly affected I am bound to say is a very different question and at the moment you will have to persuade me.
31. MR CLARKE: My Lord, I am not in the business of persuading your Lordship as to anything. Those concerned are very ably represented by others. I am simply drawing your Lordship’s attention to the view that we have taken and the factual basis for it.
MR JUSTICE COLLINS: Yes.
32. MR CLARKE: As interested parties they have made submission to the Inquiry on the points now at issue which have in part been accepted by the tribunal. They represent those whose deaths and injuries are the subject matter of the Inquiry and they have an entirely legitimate concern in relation to the question whether and to what extent those who fired shots — some of which undoubtedly killed those whom they represent — should give evidence on an oral basis.
33. MR JUSTICE COLLINS: Entirely accept all that.
34. MR CLARKE: My Lord, I leave it others to deal with the question of direct effect.
35. So far as the question of forum is concerned, the tribunal’s position is simply this. Again, it is a matter for my learned friends to address the court on the question whether it can, and, if it can, whether it should, and, if so, when and by what procedure, stay its hand in favour of the High Court in Belfast. I can see the force of the contention as to the appropriateness of proceeding in Belfast in relation to an inquiry into events which occurred in Londonderry, as well as the contrary contention that at any rate for this application this court is either a court in which the soldiers are entitled to bring proceeding or from which they should not be dislodged.
36. The tribunal’s position is entirely neutral. It stands ready to meet any challenge to its decision, where ever that challenge is brought, provided that it is determined with great speed. Subject always to that qualification, it would not wish to place any obstacle in the way of a speedy determination in either place.
37. MR JUSTICE COLLINS: It is perhaps a pity that we cannot arrange that the Divisional Court consists of English and Irish judges, but I have had a quick look at the Supreme Court Act and we cannot.
38. MR CLARKE: My Lord, I should perhaps add that for our part we would not regard the fact (if it be such) that this application is heard in London, as meaning that all judicial review applications (should there be any in the future) should all be so heard.
39. MR JUSTICE COLLINS: The 1921 Act, which governs this Inquiry, as I see it extends to Northern Ireland —
MR CLARKE: It does.
40. MR JUSTICE COLLINS: — because the law is, is it not, that every act in the United Kingdom does in fact extend to Northern Ireland unless there is a specific expression to the contrary, although it is customary, certainly in more recent times, to express in the Act whether it does apply to Northern Ireland. That means that the High Court in the 1921 Act includes the High Court of Northern Ireland.
MR CLARKE: It does.
41. MR JUSTICE COLLINS: And it gives it jurisdiction, for example, to require witnesses to attend etc.
42. MR CLARKE: Yes, the tribunal has power under the Act itself to issue subpoenas.
43. MR JUSTICE COLLINS: Yes, but the Act gives it the like powers to the High Court, but if the High Court includes the High Court of Northern Ireland then it has the same powers the High Court of Northern Ireland would have in order to require the attendance of witnesses, to punish them for contempt etc.
44. MR CLARKE: Yes, the High Court does.
45. MR JUSTICE COLLINS: Yes, it would be referred to the High Court.
MR CLARKE: Just so.
46. MR JUSTICE COLLINS: So there is no question but that the High Court in Northern Ireland has some jurisdiction in relation to this tribunal.
47. MR CLARKE: The only question that might arise, I suppose, would be as to the issue of service. But the tribunal is in fact composed of three members, one of whom is English, one of whom is Canadian and one of whom is —
48. MR JUSTICE COLLINS: Well, the tribunal is based here.
49. MR JUSTICE CLARKE: The tribunal is based here. I can tell your Lordship that the tribunal would take no technical point upon service.
50. MR JUSTICE COLLINS: You could not. You are acting through solicitors in the sense that solicitors have authority to accept service.
51. MR CLARKE: No, no, my Lord, no technical point as to any difficulty about serving in Northern Ireland.
52. MR JUSTICE COLLINS: There is no need to serve in Northern Ireland. You are here.
53. MR CLARKE: There is no problem about serving the proceedings of this court in this country. There might be a problem about serving proceedings issued in Northern Ireland in this country.
54. MR JUSTICE COLLINS: Yes, I take that point.
55. MR CLARKE: But that is a technical which the tribunal would not take.
56. MR JUSTICE COLLINS: That is a point we do not need to concern ourselves with because these are English proceedings which are to be served on a body in England.
57. MR CLARKE: No, no. For the purposes of the case before your Lordship we do not need to concern ourselves with that. But if and in so far as the question arises as to whether the High Court in Belfast could be seised of these proceedings, that might be dependent on the question of service. All I am saying to your Lordship is that the last thing that this tribunal would take is some technical point about service.
58. MR JUSTICE COLLINS: Yes, but I suppose if one looks at it the other way round, as it were, if the parties who seek to say that they are directly affected are indeed directly affected, then there would be a requirement, would there not, to serve them and if they are out of the jurisdiction of the English court then there could be arguments along that line, but that would depend upon them being directly affected and the validity of the arguments about service. I can see that there is a possible argument there, but you have the absurd position — or might have the absurd position — that the Northern Ireland court could not serve the respondent and therefore might not have jurisdiction, and the English court could not serve those directly affected and therefore might not have jurisdiction. Where do we go from there?
59. MR CLARKE: My Lord, the absurd position will not arise because the tribunal will not take a point that the Belfast court would not serve it, and nobody else would take the point that the persons directly affected cannot be served wherever they may be found.
MR JUSTICE COLLINS: I follow that.
60. MR CLARKE: So what might be the position if everybody behaves unreasonably does not arise. My Lord, that is, I think, all that for my part I need say at this juncture.
61. MR JUSTICE COLLINS: Yes. Lord Gifford, Mr Lavery, before I come to you, can I just ask Mr Glasgow what his position is and then we know where we stand vis-a-vis your applications?
62. MR GLASGOW: My Lord, may I make plain publicly what your Lordship knows that I said last week in private because there has already been some publicity and it is clearly misconceived, unfortunate and unhelpful. We have never sought to exclude anybody from the hearing of the substantive matter about which your Lordship is concerned.
63. MR JUSTICE COLLINS: No, I know that to be true. Who has said that you have?
64. MR GLASGOW: My Lord, there has been some publicity, but it is misguided and unhelpful.
65. MR JUSTICE COLLINS: It is someone speculating when they do not know what they are talking about.
66. MR GLASGOW: My Lord, I say nothing more about it because what matters is that your Lordship should hear publicly what I said to you privately. I should explain the position properly. The technical position is precisely as my learned friend has described it. I do not dissent from one word of that, save perhaps only, with respect, drawing a distinction between Order 53, rule 5(3) and rule 9, because in my respectful submission what matters is whether or not they are parties properly to be heard, and on that we are on common ground and therefore there is no issue between any of us.
67. MR JUSTICE COLLINS: They will be heard. I have no doubt about that.
68. MR GLASGOW: My Lord, it is not for me to say so, as I made plain on the last occasion. It is for the court. But in so far as it is proper for us to express it, we have expressed it. We respectfully repeat it. It is manifestly sensible in the way my learned friend has put it.
69. It is, however, necessary just to pay regard to the terms of Order 53, rule 5(3) because, with the greatest respect to my learned friend, there is authority which we would have said clearly establishes that they are not in fact parties directly affected because the Liverpool City Council, ex parte Muldoon , to which we have referred in the skeletons which we have circulated, makes it quite plain that it is a direct effect and not an indirect effect.
70. MR JUSTICE COLLINS: There is a Legal Aid Board case to the same effect.
71. MR GLASGOW: But perhaps the House of Lords’ speeches, and particularly that of Lord Keith, with the greatest respect to your Lordship’s judgment, is the one that we have relied upon and puts the matter beyond any doubt. It does not matter because we entirely agree that they should be heard. My Lord, I will wait to hear the question of jurisdiction. I do not know whether I can help you on that.
72. MR JUSTICE COLLINS: Not at the moment. So far as expedition is concerned, I take it that you are content — indeed you support the submission of Mr Clarke — that the matter should be heard as soon as possible?
73. MR GLASGOW: Your Lordship will recall that that was the submission that was respectfully made to you last week.
74. MR JUSTICE COLLINS: That was why I made the order that I did.
75. MR GLASGOW: I know, my Lord. The only qualification was that those who were interested, including the Ministry of Defence on behalf of those who are not yet represented, should have sufficient time in which to respond to any case that my learned friend produces. But that cannot take more than seven days after the seven days, and therefore the 14 days —
76. MR JUSTICE COLLINS: What I am going to suggest it that you get a date today from the Crown Office which will be not before 14 days probably, with a view to it being heard before the end of this month. That is what I hope we will be able to do. You have caught us at a bad time because we are all being “Woolfed”, as you may know.
77. MR GLASGOW: So are we, my Lord.
78. MR JUSTICE COLLINS: Which means that judges are disappearing for half a week at a time, so it is not easy to get a constitution which remains. That means we cannot give you the week of the 15th. I think you should aim at the last week in February. I cannot do anything now, except to indicate (as is absolutely obvious) the need for as much speed as possible on the basis, you say, that we had better say three days?
79. MR GLASGOW: Yes, my Lord. That was our estimate, particularly on the assumption that your Lordship was going to indicate that the other parties could properly be heard.
80. MR JUSTICE COLLINS: You are all agreed about that and it seems to me that it is self-evident. That is right and should happen. As I say, the thing to do today is to get a date. It will be a Divisional Court. At the moment do you take the view, any of you, that it ought to be three judges?
81. MR GLASGOW: My learned friend Lord Gifford does and I have never disagreed with him (at least in public). My Lord, I am sure that is right and would satisfy everybody.
82. MR JUSTICE COLLINS: The reason I deal with this now is that it is important that the Crown Office know as early as possible what the requirements are so that matters can be put in train. I know I am rather jumping the gun in dealing with this side of things before I hear your submissions.
83. LORD GIFFORD: My Lord, for my part I think there are going to be issues raised on the merits of the application and the issues which we wish to raise on jurisdiction are fundamental and far-reaching issues. I am rather anticipating that your Lordship would wish that jurisdictional issue to be raised afresh before the court. I am going to raise it in a moment, if I may, because it seems to me that it is something that should be raised at the first possible opportunity. But whether it should be decided definitively today, I am not sure.
84. MR JUSTICE COLLINS: I am not sure either because I think probably my approach out to be, ought it not, whether the jurisdictional point is arguable. It is not really for me to decide it.
85. LORD GIFFORD: That is what I thought — or rather whether it is arguable that there is jurisdiction.
86. MR JUSTICE COLLINS: Yes, that is what I mean.
87. LORD GIFFORD: In the same way that it is arguable in a private issue case.
MR JUSTICE COLLINS: That is right.
88. LORD GIFFORD: I will be laying my arguments shortly — in a short time and within a short compass — but it would seem, which ever way it goes, this case raises matter suitable for a three judge court.
89. MR JUSTICE COLLINS: This is obviously going to be a lengthy inquiry. There is a potential for applications made during the progress of it and it would be highly desirable if the ground rules were set out at the earliest possible stage.
90. LORD GIFFORD: I have a recollection of coming before a High Court judge to quash the decision of Lord Scarman when he was sitting in Brixton. But apart from that, there does not seem to be a precedent for a judicial review of a tribunal —
91. MR JUSTICE COLLINS: Lord Gifford, there is no question, I would have thought, that the tribunal in principle is amenable to judicial review.
LORD GIFFORD: I am sure it is.
92. MR JUSTICE COLLINS: There is no doubt of that.
93. LORD GIFFORD: It is the most eminent panel of High Court judges.
94. MR JUSTICE COLLINS: One treats it with the greatest respect, but even the most eminent panel can sometimes err. I am bound to say — this is, I know, purely anecdotal — one of the most obvious examples of the breach of natural justice occurred to me when I was appearing before the House of Lords and was perpetrated by the House of Lords. But that is a different matter. It was a case called Imperial Tobacco and the Attorney General . The point was on costs.
95. LORD GIFFORD: One often quotes the maxim: “He ever so high, the law is above you.”
96. MR JUSTICE COLLINS: More seriously, this is a very eminent tribunal and one to which one must obviously pay the greatest respect and, because it is so eminent, it did occur to me to wonder whether, if possible, it might be that a three judge court should be considered. It may not be possible simply because of manpower considerations, but certainly I take the points you make.
97. Mr Lavery, do you have anything to add to that? As I say, I am sorry to deal with this first, but you understand why.
98. MR LAVERY: Yes, indeed, my Lord. May I say that we are grateful to your Lordship for hearing us. There was a question mark over whether we would be able to say anything today.
99. May I say on the question of jurisdiction that I would differ perhaps slightly from my learned friend Mr Clarke. My submission is that it is fundamental and ought to be determined before the process has even begun and accordingly your Lordship ought to determine the question of jurisdiction before making any order at all in these proceedings. Having said that, if your Lordship were minded to rule that you had jurisdiction, it would still of course be open to the parties to raise the matter again at the Divisional Court. But, with respect, I would submit that it is a matter of principle and ought to be determined not merely as a point to be argued but as a point of substance at the earliest possible stage.
100. MR JUSTICE COLLINS: Yes, I see the reasons for that. But I was really asking you at the moment about the timescale and the proposed possible constitution of the court. I take it that you have no problem about the speed with which this ought to be heard?
101. MR LAVERY: No, indeed, my Lord. My clients would be anxious that this should be dealt with as expeditiously as possible.
102. MR JUSTICE COLLINS: Yes. Do you have any observations as to whether it should be two or three judges?
103. MR LAVERY: My Lord, I would respectfully adopt the submission of my learned friend Lord Gifford, that it should be three judges if possible.
104. MR JUSTICE COLLINS: Yes, I think I am inclined to agree. Mr Clarke, Mr Glasgow, do you have any observations on that point? I am not actually sure that it is strictly a matter for the parties, but I think it is right that the powers that be should know what are the views of the parties because of the importance of the matter and one cannot forget the eminence of the tribunal with which we are dealing.
105. MR CLARKE: My Lord, I think three would be appropriate provided that it does not compromise the time.
MR JUSTICE COLLINS: Mr Glasgow?
106. MR GLASGOW: My Lord, I respectfully agree exactly with that.
107. MR JUSTICE COLLINS: All right. I have some good news. I am told that, although other litigants will suffer because their cases will have to be removed, it look as though we may be able to fit you in during the week of 22 February. That is exceptionally helpful. You need, you say, seven days to serve your evidence?
MR CLARKE: Yes.
108. MR JUSTICE COLLINS: I am going to make some orders now without prejudice to any argument about jurisdiction because, as I say, sensible to sort this out now as best we can so that everyone knows where they are on the assumption that the matter goes ahead. Seven days then, Mr Clarke, for your evidence. Now, the applicants must obviously have the opportunity to serve a reply. Seven days takes us to the 11th. That is next Thursday. Mr Glasgow, would you be able to make close of play on Wednesday?
MR GLASGOW: Yes, my Lord.
109. MR JUSTICE COLLINS: Which gives two clear days for you to consider the matter. Skeleton arguments, please, by Thursday evening so that the court has them by Friday. I do not think I can ask for more than that and, being realistic, I do not suppose that the court will be likely to look at them before the Friday. But please try to avoid late Friday because you will appreciate that the judge will in those circumstances not be able to have them. Although they do work over the weekend, the work will be less satisfactory if the skeleton arguments are not available. Is that all right for everyone?
110. So far as evidence, I am assuming — again whether or not you are directly affected does not seem to me to matter for this purpose. I am quite happy to take it upon myself to say that you, Lord Gifford, and you, Mr Lavery, must be entitled to attend and take part in the proceedings. Do need to put in any evidence? I do not imagine that you do beyond that that you have already put in..
111. LORD GIFFORD: Probably not in my experience.
112. MR JUSTICE COLLINS: Well, again you can have seven days to put in any evidence on which you want to rely in addition to that which is already before the court.
113. MR CLARKE: May I mention one matter? The tribunal yesterday allowed a soldier called “Soldier H” to be represented separately from those soldiers whom my learned friend represents. I say this because it has only just happened. He is a soldier who falls within the category of soldiers who fired shots.
114. MR JUSTICE COLLINS: So he would be covered by the ruling.
115. MR CLARKE: He would be covered by the ruling, but he may therefore be, whatever the position of my learned friends’ clients, a person directly affected.
116. MR JUSTICE COLLINS: Yes, indeed. The Ministry of Defence hitherto, as I understand it, has been covering those soldiers who are not specifically represented by Mr Glasgow in the sense that they have a concern —
117. MR CLARKE: In the generic sense.
118. MR JUSTICE COLLINS: Exactly, in the generic sense.
119. MR CLARKE: But what has happened is that one of them has got a specific —
120. MR JUSTICE COLLINS: It seems to me that the sensible thing — the first thing — is for Mr Glasgow to have a word with whoever is representing that soldier and see whether there is any conflict on this particular aspect. I doubt if there will be, and it may well be that the sensible thing is for Mr Glasgow to carry the flag for Soldier H as well as for those whom he represents. There is no problem because I assume — Is he represented by a private solicitor?
121. MR CLARKE: He is represented by an agent of the Treasury Solicitor.
122. MR JUSTICE COLLINS: Then there is no problem in making sure that the papers come to the attention of those representing him.
123. MR CLARKE: His counsel is Sir Alan Green.
124. MR GLASGOW: My Lord, I will of course have a word with him.
125. MR JUSTICE COLLINS: If there is any separate aspect or angle which makes it necessary for Sir Alan Green or someone to appear separately on his behalf — I do not encourage that — but if (but only if) it is considered that there is some such a need, then obviously he would be in as good a position — perhaps more directly affected than those for whom Lord Gifford and Mr Lavery appear. There is no question that he would be entitled to appear.
126. MR GLASGOW: My Lord, I think it is inconceivable that we both want to be here. If I can persuade him to take my place, I shall do my best.
127. MR JUSTICE COLLINS: As I say, I hope very much that there will not be any need. So far as the Ministry of Defence are concerned, they equally have an interest and they also would have a right (if they think it necessary) to attend and to put in any evidence that they think right. Again, seven days for them to put in any evidence upon which they wish to rely.
128. MR GLASGOW: For the avoidance of doubt, my Lord, I undertake to serve a formal notice of motion by the close of play today.
129. MR JUSTICE COLLINS: Well, the Treasury Solicitor is not only represented but he is here and I am going to dispense with formal service. Because everyone is here — or if not here, is here by someone who will undertake to inform them — it seems to me that the seven days must run from today, otherwise we are going to get into delays if there is an extra day for the service of notice of motion and so on. So time will run from today although, I suppose, I should not deprive the court from the income for the need to serve notices of motion.
130. MR GLASGOW: My Lord, I am happy to undertake to serve it today, but if your Lordship dispenses with it, i am grateful.
131. MR JUSTICE COLLINS: I do not frankly think it matters when the notice of motion is served, provided it is served within seven days. What matters is that the time runs from today.
132. MR CLARKE: Would my learned friend be good enough to notify that branch of the Treasury Solicitor who acts for the Minister of Defence?
133. MR GLASGOW: I have already undertaken to do that, my Lord.
134. MR JUSTICE COLLINS: I think that probably covers the necessary procedural steps. Incidentally, so far as service is concerned, Lord Gifford, Mr Lavery, what have you had so far?
135. LORD GIFFORD: We have had most of the material. We have been given a full bundle this morning. We are instructed through London agents who would be a proper address for service.
136. MR JUSTICE COLLINS: Frankly, a lot of this bundle does not need be duplicated because it is the Widgery Report and the transcript of the hearings in July, which no doubt you have anyway.
137. LORD GIFFORD: I think we both have one.
138. MR JUSTICE COLLINS: Fine. All I am getting at is that you do not need anything more. There is no need to duplicate paper, but the simplest thing is for your to check with Mr Glasgow whether you have got everything that is there and if you have, there is no need for a further formal service obviously.
139. MR LAVERY: No doubt we shall receive everything.
140. MR JUSTICE COLLINS: And if you have not, then you will get what you have not got. There is no difficulty about that.
141. MR GLASGOW: My Lord, we have physically served everything without prejudice to today’s hearing.
142. MR JUSTICE COLLINS: In that case that is all the more reason why time should run from today. All that is necessary is a formal notice of motion which perhaps it does not matter whether you get that today or in a week’s time. It is purely a formal document. Now, which order do you want to go in? Lord Gifford, as I indicated earlier, I am very doubtful whether you have any right to address me at all. I can see the sense in allowing you to address me on the “directly affected” point, but it is to a degree a non-point because, as I say, no one is going to suggest otherwise — indeed, I am quite happy to direct that you should be entitled to appear and should therefore receive all the documentation. Is there in those circumstances any point in pursuing the “directly affected” argument?
143. LORD GIFFORD: My Lord, I think it would only impinge upon our rights to make submissions today in opposition to the ex parte application for leave. A directly affected person is in the same position as the respondent for that purpose.
144. MR JUSTICE COLLINS: I have my doubts about that, but I am not going to stop you if you think it is a point you want to develop. You appreciate you have an up-hill task.
145. LORD GIFFORD: What I have to say is set out in a skeleton argument.
146. MR JUSTICE COLLINS: Is this what I have got?
147. LORD GIFFORD: It is in a red binder, yes.
148. MR JUSTICE COLLINS: Would you like me to read the argument before you go further? I have not seen it before. It is a matter for you.
149. LORD GIFFORD: May I just go over it very quickly?
MR JUSTICE COLLINS: Yes, of course.
150. LORD GIFFORD: The first part I can be brief. The second part I may have to take in more depth.
151. My Lord, we rehearse the 1921 Act, which is appended to the bundle and the status which we have before the tribunal of a person who is interested, and we submit that in this rather unusual situation of a tribunal of inquiry established under the 1921 Act being the subject of challenge, that a person interested is equivalent to a party before an inferior court or tribunal.
MR JUSTICE COLLINS: Yes.
152. LORD GIFFORD: We make the point in the middle of paragraph 2 that the interests of those whom we represent may not sound in money or property or a direct issue of status, but in a matter of urgent public importance. Any matter which is the subject of such an inquiry must be a matter considered to be a matter of public importance. The interests of the family of a deceased person whose death is being inquired into must, in our submission, be considered to be a person affected. The effect may be emotional rather than sounding in money, but it is no less real. In answer to a point which is made in paragraph 12 of my learned friend’s skeleton, I think he takes the view that we might be affected by the ultimate paragraph 12. He made an observation: “Given that the present application is to quash the Tribunal’s decision, the only persons ‘directly affected’ are the Respondents who would be required to retake the decision. Whilst the retaken decision might directly affect Mr McCartney’s clients, the present application does not.”
153. In our submission the ruling for which the applicants seek to quash, the quashing is sought on both narrow and wide grounds. There are some narrow procedural grounds, but there are some very wide grounds in terms of Wednesbury principles, and therefore the potential ruling of this court could constrain the tribunal of inquiry in future consideration of the issue. Therefore the ruling of the court may affect the ability of those whom we represent to argue for the position which so far we have successfully advanced.
154. MR JUSTICE COLLINS: I am not sure that I necessarily would agree with the language of paragraph 12 of Mr Glasgow’s skeleton. I am not sure that even the retaken decision “directly affects”. It affects certainly, but they are not themselves covered by the ruling on anonymity in the sense that they are not affected directly by it. They are not going to be forbidden to —
155. LORD GIFFORD: With respect they are, because their interest is in a public inquiry which reaches the truth. Your Lordship may have seen the submissions which they made to the tribunal and which were in fact accepted. They contended very strongly that anonymity is an obstacle to truth.
156. MR JUSTICE COLLINS: Well, that is their contention and one sees the force of it, but, with respect, that does mean that they are directly affected. They are affected, yes. But if you approach it on the basis of the House of Lords’ decision in ex parte Muldoon , “directly affected” is given, as I see it, a very narrow interpretation — a very narrow construction.
157. LORD GIFFORD: In the context of a tribunal. When one looks at the importance of an inquiry of this kind, which will always be dealing with matters which have aroused great public controversy, then the words “directly affected” are wholly apt to cover what I have described as the “emotional effect” on a family whose submissions as to the importance of names being revealed, being accepted of a potential ruling by this court that they can no longer advance that argument.
158. MR JUSTICE COLLINS: You see, you get under Order 59 the provisions for appeal, which expressly distinguish, do they not, between a party “affected” and a party “directly affected”, and thus there is authority that a third party in civil proceedings is not directly affected. He is of course “affected”, but not “directly affected”. That is Re Salmon in 1889.
159. LORD GIFFORD: My Lord, in our submission, that puts much too narrow a meaning on the word directly in the context of this inquiry.
160. MR JUSTICE COLLINS: I cannot twist, can I, the true construction of “directly affected” to meet the circumstances here? I would be much more sympathetic if there were no Order 53, rule 9, and if the only way you could be heard was if you could persuade the court that you were directly affected. Then one would see the need of a wider construction of “directly”, but as you have the right to apply to attend — and no one suggests other than that in a case such as this you are not affected and have no interest and therefore should not attend and make submission — there is no need, as I see it, to extend the meaning of “directly”, is there?
161. LORD GIFFORD: My Lord, I was looking at Order 59.
162. MR JUSTICE COLLINS: It is Order 59, rule 3.
163. LORD GIFFORD: Whether I would be conceding any further ground if I agree with your Lordship —
164. MR JUSTICE COLLINS: No, it is Order 59, rule 3(5): “Notice of appeal must be served on all parties in the proceedings in the court below who are directly affected by the appeal and subject to (read)… it will not be necessary to serve the notice on parties not so affected” — ie not directly affected. So that pre-supposes, does it not, that there are parties or are going to be parties to the proceedings who are not directly affected by an appeal in those proceedings? If you look at the notes — it is page 1027 — you will see the second sentence of the second paragraph: “A third party is not a person directly affected by an appeal by the plaintiff and need not be served by him with notice of appeal. If necessary the defendant should apply to the Court of Appeal: Re Salmon “. That was a majority decision of the Court of Appeal, Fry LJ dissenting.
165. LORD GIFFORD: That is in the context of parties directly affected.
166. MR JUSTICE COLLINS: Yes, but your submissions, as I understood you, was to a degree based on what you were saying was the analogy here that those interested, who were allowed to be represented before the inquiry, were as it were equivalent to parties. The only point I was making was that under the rules even parties are not necessarily regarded as “directly affected”.
167. LORD GIFFORD: My Lord, is it not so that a party to a tribunal whose decision is being impugned by judicial review would always —
168. MR JUSTICE COLLINS: I am not so sure about that.
169. LORD GIFFORD: My understanding in normal practice — in judicial review procedures, not just normal practice but required practice — is that the other party to the inferior tribunal —
170. MR JUSTICE COLLINS: Oh, certainly, but that is in the adversarial process. For example, if a challenge a coroner — and you have done that, I know, in your time — I cannot remember, but is it always regarded that it is necessary to serve anyone who happens to be represented before the coroner’s inquest? I would have thought not.
171. LORD GIFFORD: I would have thought the family of the deceased would always be affected.
172. MR JUSTICE COLLINS: Well, that may be.
173. LORD GIFFORD: This is the closest analogy that one would get. There may be gradations, although in the context of this particular inquiry there are inevitably (albeit unfortunately), broadly speaking, two sides. I hesitate to use it in the context of a tribunal, but there is clearly acute controversy as to the culpability of those soldiers broadly and a position taken on behalf of the families. The soldiers are applying for relief, which materially affects the conduct of the inquiry, if granted. Then the relatives of the deceased must, in my submission, taking that broader extensive definition of “directly affected”, which in my submission is appropriate for this kind of proceeding, they must be persons directly affected by the application.
174. My Lord, may I move on? I recognise, which ever way your Lordship rules, the generosity of the approach, including your Lordship’s generosity of today. May I turn to the issue of jurisdiction?
MR JUSTICE COLLINS: Yes.
175. LORD GIFFORD: Your Lordship will have had an affidavit from Mr McCartney?
MR JUSTICE COLLINS: Yes.
176. LORD GIFFORD: Has your Lordship had the affirmation of Jane Winter?
177. MR JUSTICE COLLINS: I may have done. I have had some documents this morning. Let me check what I have got. Yes, I do, Lord Gifford, but I have had an opportunity to read it yet.
178. LORD GIFFORD: If your Lordship would read it now, it is from paragraph 4 that she deals with the question of forum.
179. MR JUSTICE COLLINS: Let me read it quickly and then you can deal with any important bits in it. ( Pause) Yes.
180. LORD GIFFORD: My Lord, going back to Mr McCartney — might I preface my submission and my reading of his affidavit by saying that we put the argument on two bases: first, that the High Court of England and Wales has no jurisdiction to deal with a Northern Ireland matter, which we submit this is; alternatively, if there is concurrent jurisdiction, then the High Court in Northern Ireland is the appropriate forum for this review.
181. My Lord, I go to Mr McCartney’s affidavit in paragraph 10. Mr McCartney says:
“In relation to ground (i), the Inquiry was set up to investigate events which took place entirely in Northern Ireland, with the object of assisting in ‘building a secure future for the people of Northern Ireland’…. The opening statement [of the Inquiry] was made and the preliminary hearing took place in Northern Ireland. For the compelling reason set out in paragraph 7 of the ruling of 17 December 1998 …. the oral hearings will generally take place in Northern Ireland. For all judicial purposes the Tribunal has, therefore, been sitting in Derry since April 1998 and, save for exceptional occasions, will continue to do so throughout the Inquiry, which will last well into 2000. It has been instructed to report its conclusions to the Secretary of State for Northern Ireland.”
182. My Lord, may I turn to the Prime Minister’s statement which is referred to in that paragraph? It is ADL 3.
183. MR JUSTICE COLLINS: Yes. It starts at page 134.
184. LORD GIFFORD: Thank you. I will not read it all. It starts: “I will make a statement on the events in Northern Ireland on 30 January 1972, which has become know as Bloody Sunday.” He sets out the facts and deals is his statement with the security situation in Northern Ireland, Lord Widgery’s Report and, at the bottom of page 2 of his statement, two paragraphs from the end, he says:
“I have been strongly advised, and I believe, that there are indeed grounds for such a further inquiry. We believe that the weight of material now available is such that the events require re-examination. We believe that the only course that will lead to public confidence in the results of any further investigation is to set up a full-scale judicial inquiry into Bloody Sunday.”
185. MR JUSTICE COLLINS: It s not strictly acute that it is an inquiry under the 1921 Act. It is an inquiry to which the 1921 Act applies. The 1921 Act actually applies to an inquiry resolved upon by both Houses. Anyway that is technical.
186. LORD GIFFORD: As I see it, there is no independent statutory basis.
187. MR JUSTICE COLLINS: No, there is not.
188. LORD GIFFORD: Parliament sets up the inquiry.
189. MR JUSTICE COLLINS: Parliament sets up the inquiry by resolution of both Houses, and if they do that then the 1921 Act will apply. The purpose of that of course is to give the power to summon witnesses compulsorily, otherwise there is no power in the chairman of an inquiry to administer an oath. Indeed, it would be a criminal offence for him to do so under the Act of 1843 or thereabouts. In fact, most inquiries have no teeth at all in that sense.
190. LORD GIFFORD: Yes. On page 3, paragraph 3:
“The hearings are likely to be partly here and partly in Northern Ireland, but, again, that is largely for the tribunal. Questions of immunity from prosecution for those giving evidence to the inquiry will be for the tribunal to consider in individual cases, and to refer to my right hon and learned friend the Attorney-General [who of course is the Attorney General for Northern Ireland as well as for England and Wales] as necessary. The inquiry will report its conclusions to my right hon friend the Secretary of State for Northern Ireland, and our intention is that they will be made public.”
191. My Lord, we rely heavily on that. This is an inquiry which is to report to the Minister responsible for Northern Ireland. It is set up of course by the Parliament of the United Kingdom, but it is the Parliament of the United Kingdom which has resolved the inquiry to be wet up to inquire into a Northern Ireland event.
192. MR JUSTICE COLLINS: Yes. One view of the jurisdiction might be, might it not Lord Gifford, that if the act is done by the body in Northern Ireland — that is to say the act against which review is sought — then the Northern Ireland court has the jurisdiction to deal with it. If the act done by the body is in England, then the English court has the jurisdiction to deal with it. I appreciate that is somewhat unsatisfactory, but that derives from the constitutional position in the United Kingdom which has a separate judicial system for Northern Ireland, for England and Wales and indeed for Scotland for that matters. That is one possible approach to jurisdiction, is it not?
193. LORD GIFFORD: My Lord, I think not because if a tribunal — take, for example, an ordinary tribunal sitting in Northern Ireland and having of jurisdiction over a Northern Ireland question, the fact that the Secretary of State for Northern Ireland makes some decision, or the chairman of a tribunal makes a decision and he happens to be in England —
194. MR JUSTICE COLLINS: I take that point.
195. LORD GIFFORD: — would not give the English court jurisdiction and we shall see in a moment in the habeas corpus case that the fact of the matter is the allegedly illegal detention was taking place in Northern Ireland. It does not, I think, matter that the person ordering it — the Secretary of State — is physically present in England.
196. MR JUSTICE COLLINS: It may be that in such a case the English court would have jurisdiction. I do not know. If the act was done in England, maybe. But there were problems with habeas corpus, were there not, because the old rule was that indeed the English court did have jurisdiction and that, I think, was changed in the middle of the last century, was it not?
197. LORD GIFFORD: My Lord, we shall see the statutes very conveniently set out in a decision of the Court of Appeal.
198. MR JUSTICE COLLINS: But that is very much a statutory provision. I am not sure that habeas is necessarily a good guide, is it?
199. LORD GIFFORD: The overriding principle is that the Northern Ireland courts have exclusive jurisdiction over Northern Ireland matters.
200. MR JUSTICE COLLINS: Yes. But that may beg the question: what is a Northern Ireland matter?
201. LORD GIFFORD: That is where I will start from. My Lord, may I go back to Mr McCartney’ affidavit?
MR JUSTICE COLLINS: Yes.
202. LORD GIFFORD: Paragraph 11. My Lord, might I, just before I leave the Prime Minister’s statement, ask you to note the last paragraph of the statement?
MR JUSTICE COLLINS: Yes.
203. LORD GIFFORD: “I believe that it is in everyone’s interests that the truth be established and told. That is also the way forward to the necessary reconciliation that will be such an important part of building a secure future for the people of Northern Ireland.”
MR JUSTICE COLLINS: Yes.
204. LORD GIFFORD: Going back to the affidavit, paragraph 11:
“It is therefore submitted that the Inquiry has a considerably more real and substantial connection with Northern Ireland than with England and Wales. The fact that its office is presently in London, and that its members presently meet in London (facts which are likely to change once the Inquiry sessions commence in Northern Ireland) does not negate the fundamental position that the Inquiry has been set up to investigate a Northern Ireland question in the interests of the people of Northern Ireland. Nor does it mean that, in any material sense, the Tribunal sits in London, which it patently does not. In all the circumstances, Northern Ireland is the forum in which matters concerning this Inquiry can be heard and dealt with most suitably for the interests of all the parties and for the ends of justice.”
205. Then, my Lord, he considers the question of the danger of a concurrent jurisdiction:
“My clients are concerned that it should be established from the outset that the Supreme Court of Judicature of Northern Ireland is the proper forum to hear applications for judicial review of the Inquiry. It is highly unlikely that the present application will be the only application for judicial review of decisions of the tribunal. If, when the Tribunal makes a ruling that any of the interested parties wish to challenge, those parties have the right to choose whether to apply for relief to this Honourable Court or to the High Court in Northern Ireland, it can be anticipated that the same ruling (or different rulings in the same decision) could become the subject of simultaneous applications for Judicial Review in two different jurisdictions, with the potential for different outcomes and a consequent of judicial authority.”
206. MR JUSTICE COLLINS: That, I suspect, is rather more theoretical than real.
207. LORD GIFFORD: My Lord, I do not know. It is not satisfactory either for justice or for the wider public acceptability of the tribunal. It can be seen that the English soldiers are coming to an English court and, for instance, the Irish relatives are going to a Northern Ireland court.
MR JUSTICE COLLINS: Why?
LORD GIFFORD: Because —
208. MR JUSTICE COLLINS: You are assuming that were to happen, but why? There is no more doubt about the impartiality, is there, of the English court than there is of the impartiality of the Irish court? They are applying the same law.
209. LORD GIFFORD: In an inquiry set up into a matter which has caused great conflict between many Irish people and Britain and the British army, it would be regrettable, in my submission, if it were seen to be some kind of ability of different parties to choose their forum. It would create the impression that the soldiers — the applicants in this case — think that they can get a better hearing in England than in Belfast, which of course is not true.
210. MR JUSTICE COLLINS: Nor is it true so far as the relatives are concerned, that they can get a better hearing in Belfast than in London.
211. LORD GIFFORD: They can get a more accessible hearing.
212. MR JUSTICE COLLINS: Well, that is as may be. The same applies to the soldiers. It is the other way round.
213. LORD GIFFORD: What we are very concerned about is that this second inquiry — because we must not forget that there was a first inquiry in the Chairmanship of the Lord Chief Justice of England and Wales —
214. MR JUSTICE COLLINS: No. The Chairmanship of the Lord Chief Justice of England.
215. LORD GIFFORD: I stand corrected — which has been the subject of considerable criticism and it is because that inquiry was not publicly acceptable that this inquiry was quashed. My Lord, it is referred to by Mr McCartney as a matter of some concern that the forum which adjudicates on any matters of review of the Bloody Sunday Inquiry should be and be seen to be the Northern Ireland forum
216. MR JUSTICE COLLINS: Why? Because there is some distrust of the English court?
217. LORD GIFFORD: No, because it is a Northern Ireland question
218. MR JUSTICE COLLINS: It is a question that directly affects Northern Ireland of course.
219. LORD GIFFORD: And only in term of general interest affecting England and Wales.
220. MR JUSTICE COLLINS: True, but it also affects or is capable of affecting — one must not forget this — the soldiers who are part of it. You may well say — indeed I know that the contentions are and always have been — that these soldiers are guilty of murder, but nonetheless they have rights —
221. LORD GIFFORD: Of course they have.
222. MR JUSTICE COLLINS: — which have to be protected just as much as your clients’ rights have to be protected.
223. LORD GIFFORD: And their rights could be, as they have in the past, protected with complete impartiality by the High Court in Northern Ireland.
MR JUSTICE COLLINS: Absolutely.
224. LORD GIFFORD: Indeed soldiers have made these applications in trials in Northern Ireland.
225. MR JUSTICE COLLINS: But equally the High Court in England, if it has jurisdiction, is just as capable of having regard to, and protecting, the rights of your clients as the rights of the soldiers. I know the point you are trying to make, Lord Gifford, and we are fencing around a little bit.
226. LORD GIFFORD: A little bit because the question is whether you do have the jurisdiction. I am addressing myself at the moment whether you do have it at all.
227. MR JUSTICE COLLINS: No, I understand that, but these sorts of arguments do not go to whether there is jurisdiction, do they?
228. LORD GIFFORD: That is correct. They may go to whether it is appropriate for them and for society.
MR JUSTICE COLLINS: Yes.
229. LORD GIFFORD: In paragraph 14 Mr McCartney deals which the question of access and legal aid. I think I can ask your Lordship to take that as read. Paragraph 16 raises this question and I think it right that I should read it in Mr McCartney’s words:
“I also know from my experience with this Inquiry and as a Solicitor practising in this City that any decision by the High Court in England to assume a supervisory jurisdiction over the international Tribunal established by a resolution of both Houses of Parliament to ascertain the truth of a matter in Northern Ireland, which has already been the subject of a discredited Inquiry by a former Lord Chief Justice of England and Wales, would be regarded as a quasi-political decision that would gravely undermine, if not destroy, public confidence in the independence of the Tribunal.”
230. My Lord, I will come back to that. It is a point on discretion rather than jurisdiction.
231. MR JUSTICE COLLINS: Is it a point that I should have regard to? I do not know.
232. LORD GIFFORD: In my submission, yes, because forum conveniens raises many questions.
233. MR JUSTICE COLLINS: Yes. That it is such is nonsense, as we all know. The question is whether it would be regarded as such. Does one have to take account of unreasonable views? I do not know.
234. LORD GIFFORD: My Lord, I think that if the court in England has a choice as to whether to exercise jurisdiction over a matter which is essentially a Northern Ireland matter, then the reaction and the views of those in Northern Ireland to such an action are germane because it is perhaps a more controversial way of expressing what is really the basis of all foreign conveniens’ arguments: that if there is real and substantial connection with another jurisdiction which can do justice, then it is not for this court to step in and to seek to do justice in somebody else’s territory.
235. MR JUSTICE COLLINS: Yes, as a general proposition I am sure that is right.
236. LORD GIFFORD: One of the reasons of course is that the decision thus made would be less acceptable in the territory which is as it were —
237. MR JUSTICE COLLINS: I am unhappy with this argument, you know. It smacks of blackmail of the court.
238. LORD JUSTICE GIFFORD: My Lord, it is certainly not intended as such.
239. MR JUSTICE COLLINS: No, of course, but you know what I mean.
240. LORD GIFFORD: It is intended to put before the court some of the inevitable realities which lie behind the setting up of this inquiry. Those who have been so deeply affected that they have lobbied and have not let the matter rest and have convinced the British Government that a new inquiry is necessary, are inevitably sensitive to any question — and let it be mandated by law — of the English courts exercising jurisdiction in an international matter. The judges have been chosen clearly to go beyond our shores — three judges, one of whom happens to be English. But in considering whether Northern Ireland is the forum conveniens, I think it is inevitable that the court should have due regard to the historical and controversial background against which this Inquiry is sitting.
241. MR JUSTICE COLLINS: Certainly. Paragraph 16 is also on the face of it a complete non-sequitur. If the English court directs the tribunal to decide in a particular fashion, the tribunal having resisted that direction, it can hardly be reasonably suggested, can it, that that affects the independence of the tribunal as such? The tribunal is independent. It just has to comply with the law.
242. LORD GIFFORD: As determined and adjudicated upon by the forum of the territory in which the tribunal is sitting. Of course it has to comply —
243. MR JUSTICE COLLINS: This is the division between England and Northern Ireland.
244. LORD GIFFORD: That is it, and in terms of jurisdiction it is —
245. MR JUSTICE COLLINS: They are both part of the United Kingdom.
246. LORD GIFFORD: But of course any consideration of an issue like Bloody Sunday, the animosity between the two countries is a reality. That is not to say that if the High Court of Northern Ireland were to make a ruling of the kind sought by the applicants, it would be well received. It would not. But it is the court which determines the law where the people most affected by the decision are. The people called to this inquiry live in Northern Ireland. They accept the rule of law and it is the rule of law as laid down in their local court — a court of great eminence. We therefore do pray in aid the public interest in justice being done by the court which has the closest connection with the subject matter of the Inquiry.
MR JUSTICE COLLINS: Yes.
247. LORD GIFFORD: And which incidentally has enormous experience both at first instance and on appeal in dealing with matters of this kind.
MR JUSTICE COLLINS: Yes.
248. LORD GIFFORD: And I do not think that is a little question because the application ranges into wide ground of what is reasonable or not reasonable for the tribunal to consider. In terms of sheer experience that of the High Court — the Supreme Court of Judicature cannot be exceeded.
249. MR JUSTICE COLLINS: That I recognise.
250. LORD GIFFORD: My Lord, I think those are the matters in Mr McCartney’s affidavit. Miss Winter goes over much of the same ground in her affidavit from paragraph 4 onwards.
MR JUSTICE COLLINS: Yes.
251. LORD GIFFORD: Really repeating reasons why this case is connected more closely with Northern Ireland and drawing attention to the importance of the relatives whom we represent being able to be present and having access — and reasonable access — to the court where important questions of judicial review are being sought.
252. My Lord, may I therefore come back to the skeleton? Paragraph 6:
“By reason of the facts and matters set out in paragraphs 10 and 11 of the affidavit of Greg McCartney, the Tribunal is related entirely to a Northern Ireland matter. The position as to jurisdiction is therefore as stated in Re Keenan …. The courts of Northern Ireland have exclusive jurisdiction over matters pertaining to Northern Ireland. The legislation reviewed in that case gave ‘complete judicial independence to Ireland’ …. The High Court in England would have no jurisdiction to review a statutory tribunal sitting in Northern Ireland. The position of the Bloody Sunday Inquiry is no different. The fact that the Tribunal is to report to the Secretary of State for Northern Ireland …. confirms beyond doubt that the Tribunal, while composed of judges of different jurisdictions, is subject to the jurisdiction of the courts of Northern Ireland and no other.”
253. My Lord, in the first or the second tab we set out the copy of the case of Re Keenan  1 QB 533. The headnote reads:
“The applicants, who were detained in Northern Ireland, applied to the judge in chambers for writs of habeas corpus to secure their release from custody. The judge assumed that he had jurisdiction to hear the applications but dismissed them on the merits.
On appeal by the applicants:
Held, dismissing the appeals, that since 1782 or at the latest 1783, the judicature of Ireland had been completely independent and the English courts had no jurisdiction thereafter to send writs of habeas corpus in respect of persons detained in Northern Ireland.”
254. My Lord the judgment of Lord Denning, after reciting the facts and the arguments of Mr Tapp for the applicants comes on page 538 at the bottom:
“The question of jurisdiction has taken us back into the history of the relations between England and Ireland. We know, of course, that since 1922 Southern Ireland has been entirely independent. But Northern Ireland has remained part of the United Kingdom. In order to find the position there today, we have to look at the position of the whole of Ireland previously.”
255. My Lord, I think I can shorten it. Lord Denning recited Mr Tapp’s arguments at some length. Then at page 540 —
MR JUSTICE COLLINS: It is ex parte Anderson the case I was thinking of.
256. LORD GIFFORD: Yes. Then I think I can come to the arguments which found favour. They start at letter D on page 540:
“Mr Tapp’s argument is very persuasive — so persuasive that it succeeded before Ackner J — but the Attorney-General has answered it today. He has drawn our attention to the different epochs in the history of Ireland.
In the 17th and 18th centuries until 1782 the courts of Ireland were entirely subordinate to the courts of England. Thus if a party lost his case in the Irish courts, he could appeal to the courts of England and get it reversed. It was done by means of a writ of error. A good instance is Exham v Coniers ….”
257. That case is dealt with on the rest of the page. My Lord, going over to page 541A:
“Early in the 1780’s, however, Parliament in England passed statutes designed to give to Ireland complete legislative and judicial independence. In 1782 …. it repealed the Act of 1719 which had made Ireland subordinate to England. Some doubted whether that was enough. So in 1783 the English Parliament passed an Act …. expressly to remove all doubts which might arise, ‘concerning the exclusive rights of the Parliament and courts of Ireland, in matters of legislation and judicature’. It enacted that no writ of error or appeal or any other proceeding was to be had in the English courts so as to interfere with any action or suit in the Irish courts. Mr Tapp suggested that this only referred to writs of error or appear or the like and that it did not refer to writs of habeas corpus. But I cannot accept this suggestion. Parliament, no doubt, had primarily in mind writs of error or appeal, for these were most common. But the object of the whole legislation was to give complete judicial independence to Ireland. It is plain to my mind that it carried the implication that the English courts should not issue writes of habeas corpus in Ireland.”
MR JUSTICE COLLINS: Yes.
258. LORD GIFFORD: I would add: nor judicially review Irish decisions — decisions which are concerned with the public administration in Northern Ireland.
259. Lord Denning deals with subsequent statutes. I go to the bottom of page 541:
“None of the subsequent statutes affect the position. The Government of Ireland Act 1920 separated Ireland into two provinces, north and south, each with its own Parliament. But it did not give the English courts in London any jurisdiction over the courts in either province. Southern Ireland has since become entirely independent. Northern Ireland remains a province of the United Kingdom. But nothing in any statute gives the English courts any jurisdiction there.”
260. My Lord in dicta in the same case each of the three judges said that even if there was jurisdiction it should not be exercised. That comes first at page 542C:
“This course of proceeding is so obviously right that, even if we had jurisdiction ourselves, I would doubt very much the propriety of exercising it.”
261. Stephenson LJ agreed and at letter F said:
“…. and do no more than voice a doubt, which I share with Lord Denning MR, whether we ought to have exercised our jurisdiction if we had had it and if we had considered the arrest and detention of the applicants unlawful.”
262. MR JUSTICE COLLINS: There is a lovely comment at page 542H. I am sorry, we digress.
263. LORD GIFFORD: Yes. Stephenson LJ said at page 543C:
“I accept the Attorney-General’s submission that since 1783 the judicature of Ireland has been completely independent, that its courts have had exclusive rights over all proceedings in them, and that, although the power of the English courts to send writs of habeas corpus to Ireland has not been expressly abrogated, no writs of habeas corpus have in fact been sent to any part of Ireland since that date for the good reason that the power of these courts to send them there has been impliedly abrogated by the three statutes of the 1780’s.”
264. Orr LJ agreed and at page 544 also indicated that his discretion would have been to refuse leave. He refused to exercise discretionary jurisdiction.
265. My Lord, in my submission that judgment equally applies to an application for what is now a judicial review as it applies to an application for habeas corpus — all forms of judicial control over inferior bodies in Ireland vested in the High Court of judicature of Northern Ireland.
266. My Lord we are perhaps led astray by the fact that the Bloody Sunday Inquiry has been operating from an office in London during these presumably preparatory months into thinking that it has an English resistance. My Lord, it does not. As the Prime Minister’s statement indicates, it is set up to deal with a matter of public importance in Northern Ireland and the public who need to be reassured by a fully independent inquiry are clearly the public of Northern Ireland. It is they who have been aggrieved by what they perceive is the failure to reach the truth in the past.
267. My Lord, we say beyond that that one cannot escape from the logic that this is an Irish — a Northern Ireland — case. By referring to the fact that for convenience the tribunal’s preparatory proceedings are taking place in London and its members there are members from all over the world, but the members gather on the whole in London.
MR JUSTICE COLLINS: Yes.
268. LORD GIFFORD: My Lord, I think that if one were to take a kind of rule of thumb in an inquiry of this nature and say: is it English or is it Irish, the question of who is the Minister to whom the tribunal ultimately reports would be decisive. In an English matter such as the recent inquiry of Macpherson J, it is the Home Secretary of England. Here it is the Secretary of State for Northern Ireland.
MR JUSTICE COLLINS: Yes.
269. LORD GIFFORD: My Lord, I began yesterday in the short time available to make a journey into the various statutes which gave jurisdiction to the Supreme Courts of the two territories. One of course has to step back from the present Acts to the previous Acts of 1817 and beyond. I have not martialled it before your Lordship because I think it probably would not help with the fundamental issue which is that if this is properly to be considered, a tribunal dealing with an Irish question — a Northern Ireland question — then the exclusive jurisdictions is with the Northern Irish courts to hear any challenge to the propriety of these proceedings.
270. My Lord, in the last paragraph of the skeleton we put rather briefly the alternative argument. I am personally a little reluctant to apply notions of foreign conveniens which normally arise in adversarial litigation, but the principles are set out in Spiliada. If it is necessary to argue it, we would say that this tribunal has a real and substantial connection with Northern Ireland and not with England and, applying that test which comes from their Lordships in Spiliada, if there was a concurrent jurisdiction it should be exercised by way of refusing leave here and leaving the applicants to obtain the relief they undoubtedly can seek in the High Court in Norther Ireland. Those are my submissions.
271. MR LAVERY: I would be very grateful if your Lordship would give me an opportunity to add some brief —
272. MR JUSTICE COLLINS: Mr Lavery, it would be indeed churlish of me to deprive you of the right, you having come over and joined the English Bar today.
273. MR LAVERY: I am very grateful to your Lordship.
274. MR JUSTICE COLLINS: But this must not be regarded as a precedent.
275. MR LAVERY: My Lord, we have somewhat hurriedly prepared a skeleton argument. I am not sure if your Lordship has received a copy of that?
276. MR JUSTICE COLLINS: I think I have, but I have not had an opportunity of reading it. Would you like me to read it?
277. MR LAVERY: If your Lordship would. It should not take very long.
278. MR JUSTICE COLLINS: I shall do that. ( Pause). Yes.
279. MR LAVERY: There are some typographical errors for which I apologise. Paragraph 15 should obviously refer to the tribunal and not the Treasury Solicitor.
MR JUSTICE COLLINS: Yes.
280. MR LAVERY: Perhaps if I may deal with the matter in the order in which my learned friend Lord Gifford did it on the question as to whether we are in fact persons directly affected. I respectfully accept immediately respectfully your Lordship’s observations that “direct” has, in fact, been given a narrow meaning by the House of Lord and that it has to be given some meaning. Perhaps the contrast is between “direct” and “consequential”.
281. What we would say, if I could ask your Lordship to turn for a moment to the House of Lords’ case of ex parte Kelly . It is reported in —
MR JUSTICE COLLINS:  1 WLR 1103.
282. MR LAVERY: It would be our submission that this case can clearly be distinguished.
MR JUSTICE COLLINS: Ex parte Muldoon .
MR LAVERY: Yes.
MR JUSTICE COLLINS: And ex parte Kelly , an Irish expatriate by the sound of it.
283. MR LAVERY: It is a short case, my Lord, and your Lordship is familiar with it. Perhaps I could ask your Lordship to be good enough to go directly to the second page of Lord Kinkel’s speech at page 1105E:
“That a person is directly affected by something connotes that he is affected without the intervention of any intermediate agency. In the present case if the applications for judicial review are successful the Secretary of State will not have to pay housing benefit to the applicants either directly or through the agency of the local authority. What will happen is that up to 95 per cent of the amount paid by the local authority to the applicants will be added to the subsidy paid by the Secretary of State to the local authority after the end of the financial year. The Secretary of State would certainly be affected by the decision, and it may be said that he would inevitably or necessarily be affected. But he would, in my opinion, be only indirectly affected, by reason of his collateral obligation to pay subsidy to the local authority.”
284. So we say therefore on the facts of that case that the effect upon the Secretary of State was clearly consequential or collateral (or whatever word one wants to use) and not direct. We say that this contrasts with the position with regard to the relevance and the persons whom we represent.
285. Briefly, if I may refer to the skeleton argument, what we are saying there that they were granted legal representation by the tribunal to appear and participate in the Inquiry. This involves the right to cross-examine, inter alia, witnesses and to make submissions with regard to both procedures and matters of substance. What we are saying really in that sentence is that have a direct and immediate interest in the procedure that may be adopted in the Inquiry in which they are involved.
286. MR JUSTICE COLLINS: Yes, but does that mean that they are therefore directly affected by the decision? They are certainly interested in it. They are certainly affected by it. But one does have this distinction in Muldoon, does one not, applying the Salmon case, that there is a distinction to be drawn between “directly affected” and “affected”.
287. MR LAVERY: Well, we would submit that it must inevitably be directly affected because it will have direct and immediate affect upon solicitors and counsel when they get up to cross-examine or when they come to make submissions to the tribunal. This is having a direct effect upon the manner in which they are entitled, and the manner in which they conduct their case before the tribunal. That is to be contrasted to the decision in the House of Lords’ case where the Secretary of State was only consequentially affected.
288. MR JUSTICE COLLINS: I am not entirely sure, Mr Lavery, with respect, how the way in which cross-examination takes place will be affected by this order.
289. MR LAVERY: Yes, my Lord, but your Lordship will have seen —
290. MR JUSTICE COLLINS: I have seen the arguments, but that does not mean I necessarily agree with them.
291. MR LAVERY: Yes, my Lord, but perhaps if one starts with the question that it is a matter of procedure — I will, I trust, answer your Lordship’s question in a moment — that the next of kin, as persons appearing before the Inquiry, have an interest in seeing that proper procedures are adopted. The procedure of granting anonymity in this particular case would be wrong, we say, on general principles because it would of necessity interfere with the openness of justice. But it also would have an inhibiting effect upon the cross-examination because there may be circumstances in which the full identity of the witness may be necessary. I am not saying that it is necessarily so in this case or that it applies to the soldiers, but if for example a witness in the case had a previous criminal record or there was evidence that some person had said something which might implicate them in an adverse way in the proceedings before the tribunal, and that there were collateral inquiries, then it may be that the identity of the witness would be absolutely vital.
292. MR JUSTICE COLLINS: I can see that there may be circumstances where it could be important, and that is particularly so in an adversarial situation.
MR LAVERY: Yes, my Lord.
293. MR JUSTICE COLLINS: But here the tribunal knows the full identity of the soldiers, does it not? There is no concealment from the tribunal, and the tribunal is there in order to make its own inquiries and if it knows that the parties are not aware of the true identity, then it no doubt will be in a position to make those inquiries itself if it wishes to do so — if there are any relevant inquiries to be made. Now, I appreciate in one case it may be that a name is being given material which might be material as to the identification of a particular person who may have done something. But that surely is a matter which can be dealt with when that particular issue has been raised perhaps, if it is considered material. But I am far from persuaded that in a case such as the failure to disclose the identity of any witness can conceivably inhibit the cross-examination.
294. MR LAVERY: May I say, with respect, my Lord, that if your Lordship’s point were carried to its logical conclusion, namely the point that the tribunal has ample powers to investigate the matters that might be of concern in an adversarial situation, then there would be no need for representation at all.
295. MR JUSTICE COLLINS: No, no, I do not go as far as that. There are circumstances where it is perfectly right — and indeed in all circumstances such as this — those interested must have the right to put such points as they wish to put. But we are concerned here whether there would be an inhibition on cross-examination. You are putting this forward as a general proposition but, when pressed, I think you conceded that it may well be that some of these concerns do not directly apply in a case such as this. I am just questioning whether this has the general application that perhaps, for example, the citations from the American cases would suggest. I will give you an example. It is common place now that witnesses’ addresses — indeed it is usual — that witnesses’ addresses in criminal cases are not disclosed unless there is a good reason to do so. No one, as far as I am aware, has ever suggested that that in itself is something which inhibits the cross-examination.
296. MR LAVERY: That may be so, my Lord.
297. MR JUSTICE COLLINS: Of course, sometime it is material, in which case it will.
298. MR LAVERY: Yes, indeed, my Lord. But if I may, with respect, return to your Lordship’s point that it is an answer to our contention that the tribunal can investigate. I am acting on the assumption at the moment that there may be points of substance which require an investigation of the background of a witness. If this is to be left entirely to the tribunal, there is no reason, as I said, why everything else should not be left to the tribunal.
299. MR JUSTICE COLLINS: Well, one can take any argument to extremes.
300. MR LAVERY: Yes, but, with respect, my Lord, in our submission there would be no difference in principle. The tribunal can be trusted and will of course act impartially, but nevertheless it is recognised and accepted that whilst those who are appearing before the tribunal have certain interesting comments. There must be some divergence between their interests and responsibilities, and that divergence and interest must apply certainly at every stage with regard to procedure — and it is not a sufficient answer to any query or any criticism of the tribunal —
301. MR JUSTICE COLLINS: No, I entirely accept — indeed, one starts from the basis — that names should be given unless there is a very good reason not to. That is the starting point. One accepts that that comes together with the need for public justice and also the point that you are making, which are in general terms of course the justification for requiring in all cases unless there are good reasons. But one has to be careful, I would respectfully suggest, in applying those arguments as being of universal application because if there are good reasons — and I am not saying whether there are or there are not; clearly there are grounds for the claim for anonymity, and I do not think anyone would doubt that it may well be that the soldiers have genuine and real fear (whether those are well-founded being another matter). The question arises surely in the contest of this case — or may arise — as to whether an order that there should be anonymity will in fact prejudice in any way the position and the ability to cross-examine of the interested parties. It may be necessary to look at it as it were ad hominum to consider each individually. But I am not sure that this really is central to the argument, is it?
302. MR LAVERY: No, my Lord. My submission would be that that really goes to the merits as to whether the decision should be judicially reviewed or not, and the fact that there is a potential area in which our interests might well be affected would be sufficient grounds for saying that we are directly affected. Although “directly” may have to be construed in a narrow fashion, it would not have to be construed in such a narrow fashion unless a person could prove beyond doubt that they were in fact going to be affected and could be said to be directly affected.
303. May I add one further point, my Lord? I do not know if your Lordship has had an opportunity to consider the submission that were made on this point to the tribunal?
304. MR JUSTICE COLLINS: I have read them, yes
305. MR LAVERY: Paragraph 56 does give a specific example.
306. MR JUSTICE COLLINS: Can you help me as to the page?
MR LAVERY: It is page 26.
307. MR JUSTICE COLLINS: Which exhibit?
308. MR LAVERY: This in fact part of the tribunal’s ruling. It is at page 508.
MR JUSTICE COLLINS: Yes. Paragraph 56?
309. MR LAVERY: Paragraph 56. It gives, we say, a specific example of the practical way in which the cross-examination —
310. MR JUSTICE COLLINS: That was what I was referring to rather cryptically when I talked about the name of an individual.
311. MR LAVERY: Yes, indeed. In any event my submission is that it is not necessary for us to have to go into the question of specifics. The general principle is that the name should be revealed — and there is no principle of course, I accept, that does not have exceptions — but our submission would be that those who seek to depart from it —
312. MR JUSTICE COLLINS: But you would know, would you not, which of the soldiers were in or around Glenfada Park, but you will know it from ‘A’, ‘B’, ‘C’, ‘D’, ‘E’?
MR LAVERY: Yes, my Lord.
313. MR JUSTICE COLLINS: So there is no question of you not knowing which individuals were concerned. The only thing you will not know, if the application succeeds, would be their true names.
314. MR LAVERY: Let me take a hypothetical example on that. Suppose, for example, someone came along and said, “I am soldier B. I was not round the flats in question, but I saw shots being fired”. Suppose on investigation it was found that soldier B was not in fact there at all, that this was pure invention, and that there was documentary evidence showing that he was on leave at the time. Then this is something that may never come to light if his identity were not known.
315. MR JUSTICE COLLINS: How are you suggesting it would come to light if it was?
316. MR LAVERY: May I put it this way, my Lord?
317. MR JUSTICE COLLINS: You mean that someone might read a report?
318. MR LAVERY: Yes, my Lord. It is conceivable that somebody with a sense of honour and decency might say — somebody who perhaps knew him and was serving with him at the time might come forward and say, “I know perfectly well that he was not there then. He was somewhere else.”
319. MR JUSTICE COLLINS: I cannot believe that a tribunal as eminent and as thorough as this would not go through the relevant army records to find out who was where.
320. MR LAVERY: That may be, my Lord, but our fundamental question is: is everything going to be given over to the tribunal? Or once you admit the need for representation, are they not entitled to have at least the same opportunity to investigate this matter?
321. MR JUSTICE COLLINS: I do see your point, and I understand that there may be circumstances in which this could be important. I take that point.
322. MR LAVERY: So we are saying again, without wishing to weary your Lordship, in that way we are directly affected by this ruling. We have an interest in the procedure. This affects the procedure and we are bound to be directly affected the minute that we get up to cross-examine. Accordingly, they are persons directly affected.
323. My Lord, there is perhaps one further point that I should mention — I am indebted to Mr Jones. It is a question of a party interested. It would be difficult, if the ruling had gone the other way and the next of kin or the relatives had applied for judicial review of the decision, it would be difficult not to say that they were not parties interested.
324. MR JUSTICE COLLINS: Do you mean that if they had applied, they would have had locus standi to apply?
325. MR LAVERY: Yes, and it would be rather odd in that situation where the decision has gone against them they would have had the right to come before the court and have the matter ventilated and to have the ordinary control that a litigant would have over the proceedings, and yet because the decision goes the other way it is said that they are not directly affected.
326. MR JUSTICE COLLINS: I am not sure that that is a good analogy, with respect. The rules on locus standi are pretty elastic. To take an example, Greenpeace had locus standi in relation to challenging the decision in relation to the building of a particular reactor at Sellafield. I do not think it can be conceivably be argued that Greenpeace were directly affected by that, although they had an interest. There are many other examples. It is not a good point.
327. MR LAVERY: I accept, my Lord, that certainly as the years have gone on the courts have been more and more indulgent in hearing applications —
328. MR JUSTICE COLLINS: I do not know whether the Northern Ireland approach is the same, but I assume it is.
329. MR LAVERY: Yes, I think it is fair to say that it is, my Lord. But having said that, there is an incongruity — at least there is a possible incongruity — where these people have certainly got (on the strictest interpretation of the word) an “interest”, they would be entitled to come in and yet because the decision has gone in their favour they are to be precluded from it.
330. MR JUSTICE COLLINS: Take a planning case. The judicial review of a decision to grant planning permission brought by a neighbour.
MR LAVERY: Yes.
331. MR JUSTICE COLLINS: The local authority are clearly the respondents.
MR LAVERY: Yes.
332. MR JUSTICE COLLINS: The person who has planning permission is equally clearly, I would have thought, the party directly affected.
MR LAVERY: Yes.
333. MR JUSTICE COLLINS: But another objector or indeed a supporter — let us say that there is a supporter of the person who has planning permission — made representations to the local authority and so on. He is interested in it; he is affected by it perhaps because he may live close enough for it to affect him; but I would have thought it is impossible to say that he was directly affected, even though he had such an interest in it and had joined in the proceedings. Let us say that there was some sort of a representation before the local planning authority.
334. MR LAVERY: Yes, my Lord, but my submission would be that it would turn on the circumstances of the case and if a person’s environment was going to be damaged by this planning permission, then he would be directly affected. But it would be a question of the facts of the given case.
335. MR JUSTICE COLLINS: Yes, perhaps it is not helpful to try to think of other situations. I think that is a fair criticism of that.
336. MR LAVERY: My Lord, I do not think I need to say anything else on the question of that.
MR JUSTICE COLLINS: No.
337. MR LAVERY: Perhaps I might just say a word about the importance of the issue. Our submission of course is that if we are directly affected the we are entitled as a matter of law to become parties.
338. MR JUSTICE COLLINS: There is no question, as I have already indicated, but that you will be allowed to appear anyway.
339. MR LAVERY: I take your Lordship’s point that from the practical point of view we are going to have access to all the documents and we are going to be given leave, as I understand it from your Lordship, to file affidavits.
MR JUSTICE COLLINS: Yes, indeed.
340. MR LAVERY: Which normally would only be done by a party. The only question outstanding is whether we have the right of appeal or not if w are dissatisfied with the decision. That is, we submit, an important distinction.
341. MR JUSTICE COLLINS: Yes, but I am not sure that —
342. MR LAVERY: The House of Lords seem to accept in the Muldoon case that the Secretary of State would have come in and made representations under section 9(1). He would not have had a right of appeal.
343. MR JUSTICE COLLINS: No, I think that is correct.
344. MR LAVERY: That is the important distinction. That is why it is important. My Lord, it may not be important today —
345. MR JUSTICE COLLINS: That may be a matter you would have to renew before the Divisional Court assuming I was in Mr Glasgow’s favour on jurisdiction.
346. MR LAVERY: Yes, my Lord. May I say, as my junior reminds me, there was some reference to coroners’ cases. The practice in Northern Ireland certainly is that when the coroner is being judicially reviewed, for those who appear at the inquest, both the army (they are usually army cases) and the next of kin, to be represented. But the point has never been taken, I think, by anyone that they were not persons directly affected.
347. MR JUSTICE COLLINS: This is the problem. As you saw from Muldoon, the point really had not been argued before. It was just assumed. It was accepted that they needed to appear and it was accepted that they needed to know because they were to that extent affected. That is really why Muldoon took place because no one had tested the width of that, as you say, in the context of the right of appeal.
348. MR LAVERY: Yes, my Lord. Perhaps, my Lord, I may turn briefly to the question of jurisdiction?
MR JUSTICE COLLINS: Yes.
349. MR LAVERY: May I say what our position is? Our submissions will be based on the assumption that the courts in England and in Northern Ireland have jurisdiction, although we are not conceding that the courts in Northern Ireland do not have conclusive jurisdiction. Lord Gifford has argued —
350. MR JUSTICE COLLINS: Well, you adopt his arguments, but you are not going to add to them?
351. MR LAVERY: My Lord, yes. May I turn to the test to be applied on the assumption that the courts have got concurrent jurisdiction and the test that ought to be applied when the court exercises its discretion whether to accept jurisdiction or not? May I say that, without wishing to repeat at any length what my learned friend Lord Gifford has said, the first test must be to evaluate in some way the connection or the link between the inquiry and the different jurisdictions. If the link with England is merely a tenuous or an accidental one — one can envisage perhaps a case in Scotland where the three members of the tribunal happened to be on holiday in Scotland and someone took the opportunity to serve the proceedings there. Would that give the courts in Scotland jurisdiction? I have to accept that it goes beyond that in the present case because here the tribunal has established and administered receipt in London. Two of the members of the tribunal of course do not come from England or Northern Ireland. But I would adopt the arguments that have been made, that this is basically an inquiry which is of great concern in Northern Ireland, which is related directly to Northern Ireland affairs. The soldiers and so on are affected and involved in it because they were serving in Northern Ireland and whatever test one applies — however one looks at it — Northern Ireland (if I may put it this way) keeps jumping out of the page as being the obvious place in which all the matters are concerned.
352. MR JUSTICE COLLINS: So far as the soldier are concerned — assuming they are in England — it would be the English High Court that would be used, would it not, under the 1921 Act in order to require their presence, if they were reluctant, to attend. I am not suggesting that they would be, but looking at it from the point of view of which court has jurisdiction, it is the English court which would be asked to deal with it if they refused to comply with an order of the tribunal.
353. MR LAVERY: I have not considered this point, my Lord, but I know that the practice up until comparatively recently — I am not sure (although I should be) what the current practice is — the practice certainly until probably the introduction of the Convention Civil Jurisdiction Act was that the courts in Northern Ireland did have to seek the aid of the English courts before — if one wanted a witness, for example, who was living in England —
354. MR JUSTICE COLLINS: Yes, but you do not need that under the 1921 Act because this is a tribunal set up to which that Act applies. Thus — Lord Gifford has very helpfully copied it in his bundle — section 1(1) states that the tribunal have all such powers etc. of enforcing, compelling and so on.
355. MR CLARKE: My Lord, could I intervene? I think the position is this. The tribunal has the powers of the High Court. That includes the High Court of England and Wales and the High Court in Northern Ireland. The power to summons somebody present in England to give evidence in Northern Ireland is a power that the High Court in Northern Ireland enjoys and the tribunal, because it has those powers, itself enjoys. So it issues as it were in its guise of having the powers of Northern Irish court has a subpoena against somebody which is enforceable in England to appear in Northern Ireland.
356. MR JUSTICE COLLINS: I see. So if there is a disobedience to that, then which court would deal with it? That is the point.
MR CLARKE: Yes.
357. MR JUSTICE COLLINS: Under subsection (2) of section 1, would it be the English court or the Northern Irish court? Would it be the court where the person is or does he have to be hauled across to Northern Ireland to be dealt with by the Northern Irish court? I would have thought the English court. No one has thought about that?
358. MR CLARKE: No, we had, my Lord. I had forgotten the answer. The tribunal will report him to the English court, exercising the power of the High Court in Northern Ireland so to do, in relation to a failure to obey a summons from the Irish High Court against somebody in England to appear in Ireland.
359. MR JUSTICE COLLINS: So the English court will be acting on behalf of the Northern Ireland court in those circumstances?
MR CLARKE: Effectively.
360. MR JUSTICE COLLINS: Will cause the individual to be hauled up before the English court and what, then transferred to Northern Ireland?
361. MR CLARKE: No, no. The English court will then punish him for contempt.
362. MR JUSTICE COLLINS: So the English court will deal with him?
363. MR CLARKE: Yes, and if it were the other way round, the Northern Irish court just the same.
364. MR JUSTICE COLLINS: If the tribunal for whatever reason were hearing evidence in London and wanted someone from Northern Ireland to come over, it would work the other way round?
365. MR CLARKE: Yes, because there are reciprocal provisions under the relevant Supreme Court Act.
366. MR JUSTICE COLLINS: Yes. I am not sure where that takes us.
367. MR CLARKE: I am not sure that it does.
368. MR JUSTICE COLLINS: But I am grateful to you for clearing the position up.
369. MR LAVERY: My Lord, I was really making submissions on the question of the connection between the two jurisdictions. The connection with the English jurisdiction is somewhat technical or tenuous or more than tenuous, but I am submitting that whatever the standard and valuation, the connection with Northern Ireland must be vastly greater than any connection with England.
370. MR JUSTICE COLLINS: Mr Lavery, at the moment I am inclined to the view, subject to Mr Glasgow, that there is concurrent jurisdiction. But I may be persuaded.
371. MR LAVERY: My Lord, I am making my submissions that there is concurrent jurisdiction.
372. MR JUSTICE COLLINS: Yes, I know, but, as I say, I am inclined at the moment to think that that is perhaps right.
373. MR LAVERY: My Lord, there is a considerable amount of course in that submission because there is no court, except the House of Lord, which has jurisdiction over the whole of the United Kingdom. It is sometimes thought that the courts of England fulfil that function. But the test may well be: is there a public law right which has been infringed in either Northern Ireland or England which gives the court jurisdiction to grant relief by way of judicial review rather than technical questions as to where the seat of the respondent is. There have been numerous cases in Northern Ireland where the Home Secretary has been subjected to judicial review by the Northern Irish courts. That would be in respect of perhaps prisoners who have been transferred to Northern Ireland.
374. MR JUSTICE COLLINS: But taking that analogy, a prisoner who says that he ought to be transferred to Northern Ireland because he is Northern Irish, if he is in England will challenge the Home Secretary’s decision through the English court, will he not?
375. MR LAVERY: Yes, I am sure that is right, my Lord. The cases I was referring to would be the application of releases from Northern Ireland and not in respect of a prisoner who has actually been transferred.
376. MR JUSTICE COLLINS: Yes, exactly. It is the presence within the jurisdiction that makes the difference there.
377. MR LAVERY: The test might be, my Lord, whether there is an Act which affects the public law rights of anyone in Northern Ireland. Public law rights are at the heart of judicial review and it may be that, to take the example your Lordship has given, since he is in England there have not been any Northern Irish public law rights that have been affected.
378. MR JUSTICE COLLINS: The same could be said of the soldiers here. Their rights are affected in England by a decision which actually was made in England by a tribunal which is based in England.
379. MR LAVERY: Yes, but that would be an argument, my Lord, for saying that there is concurrent jurisdiction.
MR JUSTICE COLLINS: Maybe.
380. MR LAVERY: It would not be an argument for saying that it excluded jurisdiction either in England or anywhere else.
381. MR JUSTICE COLLINS: I agree with that, but it certainly would be an argument in favour of this being the right jurisdiction to deal with the issues so far as those soldiers are concerned.
382. MR LAVERY: Only so far as it was personal convenience. That is the other aspect of this discretion.
383. MR JUSTICE COLLINS: Yes, but like to use the analogy of the prisoner who says he ought to be taken to Northern Ireland. These are soldiers who say that they should not be taken to Northern Ireland and give evidence before this tribunal unless they have safeguards to which they say they are as a matter of law entitled. Thus it is the terms on which they are to be taken to Northern Ireland in order to give evidence before this tribunal if not in Northern Ireland. That is the issue.
384. MR LAVERY: No, my Lord, but the question as to the issue in this case is not whether they should give evidence in Northern Ireland or England, but what procedure the tribunal which is closely and almost completely involved with the public interests in Northern Ireland should adopt. That is the interest that one should be looking at.
385. MR JUSTICE COLLINS: I said the terms on which they should hear evidence. I agree it does not matter where they give their evidence.
386. MR LAVERY: Yes, my Lord, but I would respectfully ask you to focus on the interests — the public law interests — which are being protected or which are being challenged here.
387. MR JUSTICE COLLINS: No. It is their rights with which we are concerned, is it not? Their rights are being affected by a public law decision of this tribunal or rather a decision which is amenable to challenge through a public law route, namely judicial review. But the rights that are being affected so far as they are concerned are rights in England not to have to give evidence before this tribunal no matter where, unless certain safeguards exist. Is that not the true analysis?
388. MR LAVERY: That, with respect, was taking much too narrow a view, in my submission, of what the issues are in this case.
389. MR JUSTICE COLLINS: No, I am focusing on their rights. I agree one has to look further perhaps, and more widely, in considering whether notwithstanding that their rights are affected here, as I believe them to be, it is because of the wider considerations it might be proper to say that the Northern Ireland court should deal with it. But if you focus on their rights, it seems to me that they are manifestly rights which are or ought to be protected by an English court.
390. MR LAVERY: My Lord, there are two stages. First of all, what are the rights which give the English courts jurisdiction? For the purposes of this submission I am accepting that the English courts would have concurrent jurisdiction. But one comes to the secondary question: if your Lordship were to come to the view that both jurisdictions have concurrent jurisdiction, one has to evaluate which is the more appropriate decision. One has to take into account in making this evaluation that the soldiers were from England.
391. MR GLASGOW: Quite a few of them are Scots.
392. MR JUSTICE COLLINS: Well, they are not in Northern Ireland anyway.
393. MR LAVERY: They are not in Northern Ireland. They live outside the jurisdiction. We do not know what effect — if in fact they are Scots and they live in Scotland, it would be a matter to be taken into account in making a valuation where the balance of appropriateness lies in determining which —
394. MR JUSTICE COLLINS: I am not sure there is anything in that. Yes.
395. MR LAVERY: One necessarily starts — one of the factors which has to be taken into account are the soldiers’ right and whether they have some particular interest or right to have the case heard in England. Leaving aside the question of where they reside, the main focus ought to be on the effect that this has on the interests of the tribunal and on the interests of people like my clients who have an interests in the procedure. That is the picture that should be looked at. It would be wrong for the court simply to focus upon a narrow ground which may well give the courts jurisdiction, but when one comes to the process of evaluation then in our submission it is overwhelming. The balance is in favour of Northern Ireland. When one analyses what the connection with the English courts is, the tribunal for whatever reason has decided to have its headquarters in London. The fact that some of the soldiers may presently reside —
396. MR JUSTICE COLLINS: I do not think it matters where they reside. They are dealing with it on the basis that accepting (at least by implication) the jurisdiction of England because they are dealing with it through the Treasury Solicitor in London and are accepting —
397. MR LAVERY: So if the proper test is that one should look at the matter in the round and say, standing back and looking at it, “Where would one consider the most appropriate jurisdiction to deal with matters connected with the tribunal?” and there was a competition between England and Northern Ireland, we would say that Northern Ireland would on that test be the appropriate forum.
398. MR JUSTICE COLLINS: How should one approach it if the English court does have jurisdiction, and if those who initiate the proceedings want to be dealt with by the court which has that jurisdiction, should the court not say “No”, unless satisfied that there is good reason to move? What I am get ting at is that once, as is the position in the forum conveniens cases, as I understand it, that the plaintiff chooses a forum which undoubtedly has jurisdiction, it is only, is it not, if the court is satisfied that it is in the interests of justice to move, contrary to his wishes, that it should be moved — ie his wishes prevail unless there is good reason that they should not. Is that not the approach? A fortiori, if you look at Spiliada, where it is a federal case — as this effectively is — between one jurisdiction of a state, for example, and another.
399. MR LAVERY: Perhaps this is something of a vexed question whether these matters should be approached on the basis of onus of proof or not is of course there. One would have to concede on the authorities that if one is dealing with jurisdiction that the onus should be on the person disputing that jurisdiction to satisfy the court as to reasons why it should not accept jurisdiction. I accept that. But I am not sure that in practical terms it really takes the court further. But at the end of the day the approach is not really susceptible — it does not fit in to the context of the onus of proof since in the line of factual matters —
400. MR JUSTICE COLLINS: I am not suggesting onus of proof directly, only that the approach of the court should be, when considering this question, that prima facie it ought to be the court chosen by the applicants if that court has jurisdiction, unless it is in the interest of justice to move elsewhere.
401. MR LAVERY: My learned junior has referred me to a passage in the Spiliada case, to the speech of Lord Goff at page 476:
“The basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice.”
402. MR JUSTICE COLLINS: I think it is really the passage at the bottom of the page.
403. MR LAVERY: I think first sentence at (b) would support what your Lordship is saying as well:
“As Lord Kinnear’s formulation of the principle indicates, in general the burden of proof rests on the defendant to persuade the court to exercise its discretion to grant a stay.”
Then at E:
“Furthermore, if the court is satisfied that there is another available forum which is prima facie the appropriate forum for the trial of the action, the burden will then shift to the plaintiff to show that there are special circumstances by reason of which justice requires that the trial should nevertheless take place in this country.”
404. We would say that that is the situation. While, as a matter of general principle the onus must be on the person seeking to persuade the court to accept jurisdiction, when one adopts the approach of examining the competing jurisdictions and then forming the view as to which is the most appropriate jurisdiction, and if the court comes to the conclusion for the reasons that we have submitted that Northern Ireland is the most appropriate court — and I realise that this discussion is taking place in the context of convenience rather than principle — the onus might shift. That is the approach that we are respectfully asking your Lordship to take: stand back, look at the matter, consider which is the most appropriate tribunal and then say: “Is there any good reason why that tribunal should not deal with the case?”
405. There is a second limb to our submissions which is perhaps more controversial. Perhaps I can start off by saying that in paragraph 6 of the skeleton argument I am not sure that the last sentence is particularly relevant to your Lordship’s deliberations.
406. MR JUSTICE COLLINS: I take this point, Mr Lavery. It is of course an important aspect and I recognise that. This is, as you rightly put it, a very delicate time and these are very delicate issues which have given rise to very strong feelings. That I do understand. But as I ventured to say to Lord Gifford, I am wondering to what extent the court ought to have regard to what may be considered — I am not saying they are, but what may be considered — to be somewhat unreasonable views about the ability of the English court to act in a properly impartial manner.
407. MR LAVERY: Yes, my Lord. Certainly our submissions do not in any way make that point.
408. MR JUSTICE COLLINS: I know, and it is a question of perception. I fully understand that, but there is a limit to which that can be taken.
409. MR LAVERY: Yes, my Lord, but perhaps I may draw a distinction between “groundless” and “unreasonable”. Your Lordship used the term “unreasonable”. If the perceptions were wholly unreasonable, then they should not be. But I think the public concern, even though it is not well based, is that —
410. MR JUSTICE COLLINS: Let us not beat about the bush. This stems from the lack of faith in the Widgery Inquiry,does it not?
MR LAVERY: It does, my Lord.
411. MR JUSTICE COLLINS: And Lord Widgery was the Lord Chief Justice at the time. So there is, I understand, a degree of perception. One knows from recent cases that one Lord Chief Justice is perfectly cable of saying that a predecessor got it wrong. I am referring to the Bentley case.
412. MR LAVERY: Yes, my Lord. May I say, my Lord, that if these sort of arguments had been advanced at the time in an attempt to have Lord Widgery removed — all judges are impartial, particularly the Lord Chief Justice of England, and these fears are groundless and indeed who knows the–
413. MR JUSTICE COLLINS: It is perceptions. Of course it is perception.
414. MR LAVERY: As time goes on, there are two developments. One is that the courts are attempting to be less remote from the people than perhaps they might have been in earlier years. Whether that is progress or not, my Lord, may be a matter for debate. But there is something — it may be hard to articulate. Northern Ireland is undoubtedly an integral part of the United Kingdom, but it is different and it has got different perceptions and different concerns. I think it is only right to say that the concerns which are the most obvious and most perceived are the concerns of the people in Northern Ireland about this. No doubt there are people in England who are also very concerned, but the volume and the generality of the public concern emanates from the Northern Ireland public. It must be a principle of justice that justice must not only be seen to be done, but some say it must actually be done. But what is being addressed here is the lack of (inaudible), whether justified or not, in the process, and anything which tends to make the process more remote from Northern Ireland — indeed one might say the citing on the tribunal in London —
415. MR JUSTICE COLLINS: The initial statement in London, I suppose, in some quarters might have been regarded as an error.
416. MR LAVERY: Yes, some people might take the view that they only have confidence in the Northern Ireland community. However, we are not here to debate that matter today. What I am saying is that the public concern that have to be faced are those of the people of Northern Ireland. Although they may be groundless — and those who practise the law know they are groundless — but they are not unusual, given the history and given the previous inquiry which, rightly or wrongly, has been regarded as having serious short comings.
417. MR JUSTICE COLLINS: One knows why that is.
418. MR LAVERY: That has been recognised by the fact that a new inquiry is necessary. I think it is unheard of that a judicial inquiry on the same matter is being reconstituted. I am not sure that there is any precedent for that.
419. MR JUSTICE COLLINS: It depends what you mean by “judicial inquiry”.
MR LAVERY: Yes, my Lord.
420. MR JUSTICE COLLINS: I mean, if you talk about appeals it can happen again.
421. MR LAVERY: Yes, indeed, my Lord. Of course, and there are retrials almost every day of the week in the courts. But what I am merely trying to say, my Lord, is that there is a very special concern here that is not shared generally by the public in England and Wales that anything which can be done to allay their concerns should be done. When one asks at the end of the day: “What harm is it going to do the soldiers if the case is heard by an impartial tribunal in Northern Ireland?” and one then asks the other side, “What harm may be done to the workings of the tribunal if the case is heard in England?” I would make this point irrespective of the outcome of the case because the process involving the tribunal is a complicated one. But the public tends to look at the matter as a whole, and they are not really capable, nor should they be expected to understand the way a lawyer would deal with a particular operation. They may very well say, “Here is another example of Northern Ireland being ignored where any sensible person would say that this matter should be heard in Northern Ireland.” They will say, “Oh well, they did not get away with it this time, but it is just a straw in the wind.” It paints a picture of the lack of confidence. I do not want to take the matter too far, my Lord, but it does nothing, if I may put it this way, to ensure the confidence which is absolutely essential to the workings of the tribunal. If the tribunal is to produce another report, and if along the way there are various mishaps (if I may call it that) or various indications which, wrongly perhaps, have been taken as an indication that this is really an English inquiry — this is something to satisfy the English public rather than to allay concerns in Northern Ireland — at the end of the day this may well reduce the confidence with which the report will be received, which would be a matter of the utmost regret. What we are really saying is that all parties involved — unless there are very good reasons, not unless detriment can be demonstrated — this confidence should be restored or rebuilt or certainly not damaged.
422. MR JUSTICE COLLINS: Is that a convenient moment?
423. MR LAVERY: My Lord, I have really come to the end.
424. MR JUSTICE COLLINS: Well, I will not hold you to that if you think of something else over the short adjournment.
425. MR LAVERY: I am obliged, my Lord.
426. MR CLARKE: My Lord, I think your Lordship said a moment ago something which suggested the opening statement of the inquiry….?
427. MR JUSTICE COLLINS: I am sorry, I meant the setting it up.
428. MR CLARKE: Oh, I see. It was the decision of both Houses.
(Luncheon adjournment )
429. MR LAVERY: My Lord, may I just add a few observations on the question of convenience?
MR JUSTICE COLLINS: Yes.
430. MR LAVERY: My Lord, the question of convenience is not totally disconnected with the questions of public concern. It is obvious that the families and those whom we represent are extremely interested in these proceedings — and indeed on anything that touches on them.
MR JUSTICE COLLINS: Certainly.
431. MR LAVERY: Large numbers of them have, I understand, attended most of the public hearings of the tribunal and would be anxious to return. It is obviously a great deal more inconvenient for them, given their numbers and given their circumstances, to travel to England for the proceedings than it would be for the applicants who are of course supported by the Minister of the Defence and by the Treasury Solicitors.
432. MR JUSTICE COLLINS: Yes, I accept that, although to a degree it works the other way round as well, although not to such an extent as you would submit. Although, having said that, these proceedings of course are purely legal argument.
433. MR LAVERY: That is so, my Lord, and no one has suggested to date that there should be oral evidence. I am sure there will not be.
434. MR JUSTICE COLLINS: No, there is no question of that in a case such as this.
435. MR LAVERY: Those would conclude my submissions.
436. MR JUSTICE COLLINS: Thank you very much. Lord Gifford, just before I ask Mr Glasgow, I did not ask you specifically whether you were submitting that I ought to decide this issue or whether it was enough that I found the point arguable? I think you were inclined originally to accept what I said about arguability, but I was just wondering whether you were sticking to that approach because Mr Lavery was submitting, as I understood it, that I ought to decide the matters. It goes really to jurisdiction.
437. LORD GIFFORD: My Lord, I think any court before whom a question of jurisdiction pure and simple is raised must decide that it has jurisdiction in order to allow the matter to proceed.
438. MR JUSTICE COLLINS: Yes. It may be that different considerations apply to the pure jurisdiction point, if I may term it as such, and if there is jurisdiction whether it should be dealt with here or in Northern Ireland.
439. LORD GIFFORD: I am presently of the view that the pure jurisdiction point could be raised at any stage, and we raised it before the Divisional Court.
MR JUSTICE COLLINS: Oh, certainly.
440. LORD GIFFORD: The point of discretion might be less easy to raise before the Divisional Court, your Lordship having exercised it. But certainly in the first limb of my argument, yes, I am asking your Lordship to determine that you do not have jurisdiction.
441. My Lord, may I just for completeness hand in one page of the statute which was quoted in Re Keenan ?
442. MR JUSTICE COLLINS: Which statute is this?
443. LORD GIFFORD: The statute of George III, Chapter XXVIII.
MR JUSTICE COLLINS: 1783. Yes.
444. LORD GIFFORD: Yes, it is called “An act for removing and preventing all doubt which have arisen or might arise, concerning the exclusive rights of the parliament and courts of Ireland, in matters of legislature and judicature ….”
MR JUSTICE COLLINS: Yes.
445. LORD GIFFORD: When one reads a bit further down, around the middle of the page, it says:
“That the said right claimed by the people of Ireland to be bound only by laws enacted by his Majesty and the parliament of that kingdom, in all cases whatever, and to have all actions and fruits of law or in equity, which may be instituted in that kingdom, decided in his Majesty’s courts therein finally, and without appeal from thence, shall be, and it is hereby declared to be established and ascertained for ever, and shall, at no time hereafter, be questioned or questionable.”
446. My Lord, one sees the desire of Parliament of that day.
447. MR JUSTICE COLLINS: It lasted for seventeen years, did it not?
448. LORD GIFFORD: It did, but the part of it which concerns us has lasted to this day. My Lord, I only make the point that it is clear that the desire of people in Ireland to have Irish affairs dealt with by Irish courts is long-standing and persists to this day.
449. MR JUSTICE COLLINS: Lord Gifford, I am aware of the history.
450. LORD GIFFORD: I know your Lordship is. Thank you very much.
451. MR JUSTICE COLLINS: Mr Clarke, I take it that you do not want to add anything?
452. MR CLARKE: Only one brief observation, my Lord. Your Lordship will of course have perceived that the tribunal’s activities are a continuum. It is in the middle of investigation now. It does not spring into action when it sits.
453. MR JUSTICE COLLINS: No, of course, I understand that entirely. Mr Glasgow?
454. MR GLASGOW: My Lord, I have very little to add as well.
455. MR JUSTICE COLLINS: Incidentally, I need not trouble you on the “directly affected” point. I am quite satisfied that they are not directly affected within the meaning of the rule.
456. MR GLASGOW: My Lord, I have to touch on it — without repeating my argument at all, I just have to touch upon it because obviously it affects the question of jurisdiction to this extent. It is such a pleasure to have my learned friend Lord Gifford back among us and an honour to be against him, and an equally pleasure to welcome my learned friends Mr Lavery and Mr Treacy to the English Bar. It sounds somewhat churlish then immediately to go on and say: they have no right to be here. Having said that —
457. MR JUSTICE COLLINS: Well, I have already said that too. But I have allowed them to make submissions in the exercise of my discretion.
458. MR GLASGOW: My Lord, absolutely right, and one agrees with the sentiments of almost everything they say. I fully understand why they say it and they have put it as well as one would have expected them to. But the fact remains, my Lord — and it is an important point — that they have absolutely no right to be here on the question of jurisdiction. Your Lordship has before him two parties to this litigation: an applicant and a respondent. The applicants have their right to bring their case here. The respondents have — not submitted to the jurisdiction; they have never doubted it for one moment. It is a wholly unique situation in which someone who is not even a party — but who is welcomed to assist the court — makes a submission which is in effect limited to saying: “The only reason why we want audience before your Lordship is to prevent the case from being heard here.” It really is a quite unique situation. It is startling and therefore not surprising that it is wholly unsupported by authority because, my Lord, there can be none. There has never been a case where somebody who is not a party to litigation goes to a court anywhere and says, not: “I want to be joined”, not: “I do not want to be joined”, not: “I want to litigate this back home”; not even: “I want someone else to”; but: “I do not want you parties (to whom I am not a party) to litigate here; nor do I want it brought back home”. There is no suggestion from any of the intervening parties that they would seek to bring this matter before the Northern Irish court, and, with the greatest respect — and it is a genuine one for the Northern Irish courts and the judiciary — those for whom we appear do not seek to bring this matter before the Northern Irish court, although, as my learned friends all concede, there may well be matters for judicial review —
459. MR JUSTICE COLLINS: But, Mr Glasgow, there is a real point here, I think, and one can always treat this, if one wanted to get round technicalities, by saying: “I have granted leave. This is an interlocutory application by parties who wish to be joined as parties and then wish to make submissions, having been joined, but the court has no jurisdiction”. Now, I understand that there is a certain strangeness in that on one view, but it seems to me to be a perfectly reasonable way of approaching the matter if one wants to talk in terms of technicalities. If they are right and there is in fact in law no jurisdiction in the English court to deal with this matter, then as it seems to me it would be right to have that ventilated at the earliest possible opportunity, and if I am not so persuaded, ought I not to say so?
MR GLASGOW: Yes, my Lord.
460. MR JUSTICE COLLINS: I am not so persuaded. I am quite satisfied that the English court does have jurisdiction. The only question, as it seems to me, is whether there is concurrent jurisdiction with the Northern Irish court and, if there is, whether discretion should be exercised to say: “This court should not deal with it. If you want to obtain any relief you must go to the Northern Irish court”.
461. MR GLASGOW: My Lord, yes. As of this morning, it is respectively arguable that there is concurrent jurisdiction. I have to accept that because typically helpfully my learned friend Mr Clarke for the tribunal says that they would submit if they were subjected to proceedings over there. That is not a position that one is entitled to assume.
462. My Lord, I brought these proceedings properly before your Lordship’s court and the tribunal submitted to them.
463. MR JUSTICE COLLINS: There is concurrent jurisdiction in one sense. It does not mean that there is necessarily concurrent jurisdiction over every application that is made.
MR GLASGOW: Precisely.
464. MR JUSTICE COLLINS: For example, if when they were sitting in Northern Ireland a decision was made which arguably affected the rights of someone in Northern Ireland and was purely made within that jurisdiction, I think it would be, for my part anyway, fairly apparent that the proper tribunal would be likely to be in those circumstances — or might well be (I am not going to commit myself because it would be wrong to do so) — the Northern Irish court. Equally it may be that if a decision is made in England affecting parties in England, that the proper tribunal is the English court and one has an inevitable possibility of two different courts dealing with the same body, just as, for example, the Secretary of State for Home Affairs. He makes decisions which affect Northern Ireland and someone in Northern Ireland. His decision is reviewable there. Equally, if he makes a decision here which may equally have an effect on someone in Northern Ireland, but directly affects someone in this country, the position is dealt with here. I am not sure you can avoid the possibility of dual jurisdiction.
465. MR GLASGOW: My Lord, I do not seek to. I respectfully accept what your Lordship says, that in different decisions of this tribunal there would probably be a right place to review each one of them, I suspect. They might be concurrent, but I suspect as a matter of common sense, and if necessary judicial supervision, there would be a right place to review each of the decisions if, God forbid, any of the decisions had to be challenged.
466. MR JUSTICE COLLINS: Yes, and someone is going to be disadvantaged, if you like, which ever way round you do it.
467. MR GLASGOW: My Lord, yes. The situation is, however unique, to say to a court of competent jurisdiction by a non-party: “You should not hear this” in a case which has already properly been brought by litigants who are entitled to come before your Lordship’s court and a tribunal which has properly submitted to your Lordship’s jurisdiction. That is unheard of and wrong, without precedent, and wholly unsupportable.
MR JUSTICE COLLINS: I am not sure.
468. MR GLASGOW: Well, your Lordship has my submission. I make it, I stand by it and I do not withdraw it. To that extent I respectfully dissent from your Lordship’s doubts as to whether it is right.
469. MR JUSTICE COLLINS: In those terms you may well be right if you put it in that way, but I am not sure that that necessarily is the proper way of putting it. If they are properly joined as parties to the judicial review once leave has been granted, then the question arises as to whether they are “parties” is perhaps putting it —
470. MR GLASGOW: Properly to be heard under rule 9.
471. MR JUSTICE COLLINS: Properly to be heard and to be able to make submissions.
MR GLASGOW: Yes.
472. MR JUSTICE COLLINS: Why should they not make a submission, and be permitted to make a submission, that the court has no jurisdiction to deal with it? It may be that the parties do not want to make that submission because they want the court to deal with the matter, but if the true position in law is that the court has no jurisdiction, for my part I see no reason in principle why a party who has the right, and who is given the right to make representations, should not so submit, and if they are right as a matter of law the court should accede to those submission.
473. MR GLASGOW: My Lord, I hope the point is academic because I hope I am entitled to be as confident as I am in submitting that the court does have jurisdiction.
474. MR JUSTICE COLLINS: Well, I have already said so.
475. MR GLASGOW: Yes, but I have to preface it on that because, ex hypothesi, if in fact in that situation where somebody who is not a party but is properly being heard is coming before a court which is all seised of the matter in which two litigants have both been resident within the court’s jurisdiction and have brought a matter before it is, with respect, inconceivable.
476. MR JUSTICE COLLINS: I do not, with respect, agree with the word “inconceivable”. I entirely accept that it would mean that the court would think more than three times before doing it, but if — if — the court was persuaded by the arguments put forward by those persons who were permitted to make representations, but in fact it was not in the interests of justice for the court to continue to hear the matter, but it was in the interests of justice for another court to deal with it, I see no reason in principle why the court should not accede to that application. It would be a very, very exceptional case. I would be very surprised if the circumstances were such that it would be likely to be put into effect as it were. But I have learned never to say “never”.
477. MR GLASGOW: In that case I am happy to be taught by your Lordship, and I shall moderate my submission from “inconceivable” to “I cannot conceive”, but I rest my submission even more confidently on the ground that if there is such a case, it is not this.
478. MR JUSTICE COLLINS: That you are perfectly entitled to say.
479. MR GLASGOW: My Lord, I have to say that therefore, instructive and historical and entertaining though my learned friend Lord Gifford’s submissions always are, the Keenan situation is nothing whatever to do with this case at all.
480. MR JUSTICE COLLINS: I agree with that.
481. MR GLASGOW: I am sorry, my Lord. I will not persist. My Lord, those are our submissions. Your Lordship has jurisdiction to hear this matter. This court has jurisdiction. Out of genuine respect for the arguments in advance, it would be wrong to sit down without letting it be known publicly that of course we accept — those instructing me and my entire team — that the centre of gravity in this entire exercise is Northern Ireland. Of course, that is so. But in the illuminating and helpful discussions that your Lordship has had with my learned friends this morning, there has been a serious temptation to forget that the issue before this court is not that which has been debated, it is whether or not we have a prima facie case for challenging a decision affecting the rights of people in this country which probably have to be policed in this country if they are to be taken into effect. That is why we are right to bring it here. We would have been wrong to bring it elsewhere. The respondents were right to submit; your Lordship is respectfully right to allow others to be parties properly heard, but they are not for the purposes of Order 52, rule 5(3) “directly affected”. The House of Lords’ authority on that is clear beyond argument. The argument on that could not be improved by repetition.
482. My Lord, if there is something that I have not covered, of course I will go over it again, my Lord, but provided I have adequately dealt with the arguments that have been put forward —
483. MR JUSTICE COLLINS: I am sorry, Mr Glasgow. I was only laughing because you said that if there was something you had not covered you would go over it again.
484. MR GLASGOW: My Lord, it is somewhat difficult always adequately to pay respect to an argument that is extremely important to the people in this court and elsewhere and to sit down after three minutes following careful argument on the other side in a dismissive and arrogant way. That is not the spirit in which we do that at all.
MR JUSTICE COLLINS: No, no, I am sure.
485. MR GLASGOW: It is simply that the issue on which we come before your Lordship is a very limited one and we were right to bring it before your Lordship and we went to get on with it with the minimum of delay and the minimum of risk to the parties. Thank you for hearing us.
486. LORD GIFFORD: My Lord, if I may in one sentence take up the helpful statement of my learned friend that the centre of gravity of this inquiry is Northern Ireland. If that is right, any matter which affects the conduct of the inquiry which is yet to commence in a serious way should be adjudicated on in Northern Ireland. This application raises a fundamental question, in our submission, as to how this inquiry should be conducted. The issue of anonymity of the soldier witnesses is not peripheral and is not limited to their own concerns. It is a matter which will seriously impinge upon the search for the truth which this inquiry is designed to achieve.
487. MR LAVERY: May I just briefly, with regard to my learned friend Mr Glasgow’s submissions, make one or two points? Firstly, they are really effectively technical In a sense he is inviting your Lordship to do is to disregard genuine considerations as to jurisdiction simply because the parties who are making these points are not properly before the court.
488. MR JUSTICE COLLINS: Well, as I indicated to him, I think there is a way around that.
489. MR LAVERY: Yes, my Lord. I was going on to make the point that what he seems to be saying is that the parties can by agreement confer jurisdiction on the court in a matter of this sort. That clearly cannot be the position where the court of its own motion is satisfied that there is no jurisdiction, irrespective of whether submissions had been made on that matter. I am sure your Lordship has experience of points taken at various levels as to interest.
490. MR JUSTICE COLLINS: There is no doubt of that.
491. MR LAVERY: Accordingly, therefore, I would invite your Lordship not to consider the source of these submissions but the weight.
492. Your Lordship has referred to the fact that there may be a distinction between the two types of jurisdictional points. One is the fundamental point that the court has no jurisdiction, and the other is the question of jurisdiction which relies on the exercise of discretion. But the question of jurisdiction we would say is so fundamental, however one approaches it, that the court should treat both situations with the same gravity and determine them on the substantive argument and the court’s view of the case.
493. MR JUSTICE COLLINS: Thank you very much.