My Lords, I support Amendment 1 in this group, from the noble Baroness, Lady Suttie. She made the case with absolute clarity. No more needs to be said.
On Amendment 147, I reassert my declaration that I am a member of the international steering group advising on Operations Denton and Kenova. It is, as the noble Lord, Lord Caine, said, a very long-overdue review of cases involving the Glenanne gang, which is reported to have involved loyalists, including members of the security forces, who carried out shooting and bombing attacks against Catholics and Irish nationalists in the 1970s. We know that there are some 127 victims.
I will address the comments made repeatedly that terrorists do not keep records and that the police and Army do. Having investigated many of these cases of alleged collusion, I can tell noble Lords categorically that those involved in collusion do not keep records:
for example, of instructions to not investigate; to bring people in for questioning during an investigation, provide them with a cup of tea and some sandwiches, leave them in the room but not actually ask any questions, then release them, to protect them so that they have been investigated in the eyes of the general public; to perhaps lose evidence, which I have seen; or to contaminate physical evidence. None of this is recorded. That is why, where you can identify collusive activity of that kind, it is very usually impossible to bring a prosecution—and it is right that there should be no prosecution where there is no unbroken chain of evidence.
Denton has made very significant progress. It was reviewed by the National Police Chiefs’ Council in January 2021, which explained that Denton differs from Kenova in that it is being conducted as a review and not a criminal investigation at this time. This makes the approach by the operational team fundamentally different from that of Kenova, which is an investigation, from an evidential perspective. As the noble Lord, Lord Hain, said, Denton is due to be finished next year. Former Chief Constable Boutcher will then report.
Considerable resources have gone into this review. Were the Bill to be passed without an amendment of this kind, Denton would not be completed by Chief Constable Boutcher and his team and would fall for review by the ICRIR. Given the progress already made, to bring in a new team in would professionally require a review of what has been done before. I know we say that we do not reinvestigate, but, in professional terms, if you pick up a case that somebody has been managing, you must examine it to make sure you are satisfied that all investigative opportunities have been explored. That would result in a huge and unnecessary waste of resources, and it would be particularly damaging to victims and survivors, who would be required to revisit yet again what they suffered and have been suffering.
Such is the difference between investigations and reviews that An Garda Síochána, who have been very helpful to Denton and Kenova, was unable to provide sensitive material to Denton. That material could have been provided under international agreements for police co-operation, were Denton an investigation. But, because Denton is a review and not an investigation, it could not be provided under the European police co-operation agreements, et cetera.
At the request of the Operation Denton steering group and Chief Constable Boutcher, the Irish Government have passed a statutory instrument. The effect of that is to allow them to pass sensitive material, which they could not otherwise pass, to Operation Denton. When I was engaged in discussions about that matter with the Irish Government and Garda Commissioner Drew Harris, I was simultaneously considering this Bill. It was very odd to me that my Government in the United Kingdom were moving to close things down and the Irish Government were moving to open things up and be helpful.
So, given the complexity and extent of Operation Denton, I suggest to the Minister that it would clearly be in the public interest to permit Mr Boutcher and his team to complete the work in which they are engaged. I therefore support this amendment.
Amendment 52 in my name and that of the noble Lords, Lord Murphy and Lord Hain, and the noble Baroness, Lady Ritchie, would remove the five-year rule contained in the Bill, which effectively introduces a limitation on prosecution that is inconsistent with the Good Friday agreement and our international legal obligations.
This work of dealing with the past is incremental. It requires consideration of victims’ needs. A five-year limitation period for the seeking of investigations or reviews would place huge pressure on people who may be suffering the consequences—for some, very severe mental health problems—of the incident in question. I know that noble Lords will think that five years is a very long period, but I assure them that, in investigation terms and for people dealing with the mental health problems that have arisen as a consequence of the Northern Ireland Troubles, to add the additional pressure of knowing that you have to be there before five years are up is difficult.
Noble Lords will also understand, I think, that it will take some time to grow confidence in these new ICRIR processes. In light of the international condemnation of the Bill as it stands, questions might rightly be asked about whether victims, survivors and their families will use the new processes. That is another reason for us to think about the need to amend the Bill very significantly.
Does the period when the ICRIR becomes operational include or exclude the period of finding premises, setting up an office, agreeing a budget, getting staff, establishing processes, providing training, and the Secretary of State drafting all his guidance, et cetera? We do not have limitation periods for criminality in this country, for very good reasons. If a person was murdered before 10 April 1998, under this Bill they will have only five years to seek an investigation. If they were murdered four months later—in the Omagh bomb, for example, or in any of the other atrocities—that limitation would not apply. It is arbitrary. How do the Government justify the introduction of a limitation for a very small subset of the victims of crime in the United Kingdom?
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Amendment 83 to Clause 14 deals with the situation in which the commissioner is seeking information. As the noble Lord, Lord Hain, has said, as drafted the Bill would simply permit the commissioner to seek information documents and so on. The amendment is very simple and would allow the commissioner to take the obvious next step: to review the information and then ask questions about the information that has been received. It is a logical investigative step; it is what everyone does.
The opposition to Clause 7 standing part of the Bill is in my name and that of the noble Lords, Lord Murphy and Lord Hain, and the noble Baroness, Lady Ritchie, and will be dealt with shortly by one of those noble Lords. The clause would remove evidence from the courts. It is part of the wider set-up of an indemnity arrangement. It is not helpful and it is not consistent with the requirements of our international obligations.
I am very sorry to have to tell the noble Baroness, Lady Hoey, that I actually oppose her Amendment 63. Although it contains some very good observations, it
would limit—and is intended to limit—the situations in which a commissioner might or should initiate an investigation, particularly where a family have had a previous investigation and have no new compelling evidence. We have heard discussion about the ability of the police, in many circumstances, to investigate, and the fact that, in the early days, investigations were a completely different kettle of fish from what they became in later years during the Troubles. In most cases, because cases have not been prosecuted, the family will not even know what evidence there is. They do not have powers to gather evidence as the police do, and they are often very afraid of going out to look for evidence. I know incredibly brave people, such as the son of Sergeant Joseph Campbell, who was murdered in Cushendall. He met and talked to people, even while on his deathbed, who were suspected to be involved in the murder to try to find out what happened. There are many people who are very afraid.
Amendment 63 does not take into account the fact that, when one investigates some cases, one encounters evidence that is relevant to other cases. It would not be compliant with the law to prevent the ICRIR from investigating simply because the victim or their family have no compelling new evidence. We should not change the law to make the commission reject requests, as proposed by this amendment. I will conclude my remarks at this point.