My Lords, I will speak to Amendments 2 to 4 in my name and the consequential amendments in this group. Noble Lords will be relieved to hear that I will not speak to each amendment, as in many cases the purpose is clear. The amendments are necessary to place the investigation function clearly in the Bill on each occasion on which it is relevant.
It is important to say that the Bill relates only to incidents that occurred before the agreement signed on 10 April 1998. It does not refer to atrocities arising during the Troubles that occurred after April 1998. For example, PSNI security statistics show that, in the past 10 years, 23 people have been killed in the Troubles; there have been 304 bombing incidents and 477 shooting incidents; more than 1,500 people have been arrested under the Terrorism Act; and 235 people have been charged with terrorist offences. Terrorism is alive and well in Northern Ireland, though not to the scale—thank goodness—of previous atrocities. Most recently, two men have been charged with the murder of Lyra McKee in Derry in 2019. Noble Lords will probably be aware that it is believed that was an attempt to kill a police officer.
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The Bill seeks to provide a process for dealing with what happened between 1966 and 1998. The most recent, generally accepted solution was contained in the Stormont House agreement. Despite all that the Minister has said about the Stormont House agreement—and I accept that in some respects the Bill improves on what was in it—the Government have provided a Bill which, as the noble Baroness, Lady Suttie, said, is fundamentally flawed.
As I said in the previous debate, the Bill is not considered to be compliant with the UK’s international legal obligations or even with our own rule of law. I have listed organisations such as the Council of Europe Committee of Ministers, the Council of Europe Commissioner for Human Rights, the US State Department and most recently the UN High Commissioner for Human Rights and the US Congress.
Unless I have missed something, I do not think the Minister has responded on the matter of the breaches of international law involved in the failure to provide Article 2-compliant investigation and the fact that the immunity proposals are not compliant with the obligations the Government are under. It is for this reason that there are so many amendments to the Bill today.
Clause 2, as we know, establishes an ICRIR and sets out its functions. The primary function of the commission according to the Bill is to carry out reviews of deaths and other harmful conduct forming part of the Troubles and to report on those reviews. That provision for review is not compatible with the ECHR obligation on the state to provide some form of official investigation when individuals have been killed by the use of force. As the Supreme Court stated in McQuillan and others—and I will not read that quotation again—there is a duty of investigation under the convention where people have suffered in this way.
As the Northern Ireland Human Rights Commission has said, the immediacy of the proposed changes to a victim’s access to justice within the current draft of the Bill closes off any pursuit of justice outside the ICRIR and is therefore not compatible with human rights and the Belfast/Good Friday agreement. Under the Good Friday agreement—an international agreement between the United Kingdom and Ireland—there must be ongoing implementation of the rights under the ECHR and remedies for breaches of the convention. Neither of these is provided in this Bill.
Amendments 2 and 3 provide that a function of the commission is to carry out investigations, not just reviews. Reviews report on the state of the matter in a particular case. A review may point to investigative opportunities, but it will not be an investigation. Criminal investigation, on the other hand, is the process through which a crime is examined and evidence is sought which may or may not be currently available or held by those who have previously examined the matter. International policing agreements for the exchange of information between states provide for the exchange of information only where there is an investigation and not a review.
Often, as I have said, the investigations completed were inadequate. They were not in any way compliant with Article 2. They were limited by circumstances and on occasion, I think, by misguided attempts to keep in place assets—informants—who were involved in the most serious crime.
For example, an inquest is currently under way into the killing of three IRA members in Coagh in Country Tyrone in 1991. It is believed that the SAS was involved. The investigating officer in that case has told the coroner that he was instructed by a Special Branch officer or possibly the then chief constable, who has denied the allegation, not to investigate the allegation that, as the coroner said,
“there in fact was a plan to kill these people”.
The inquest continues.
The reality in this case, as in so many others, is that officers were not permitted to investigate and therefore the information or evidence has to be secured through a new investigation. The UK is under an obligation to facilitate such investigation. This Bill would remove that.
Amendment 76 from the Minister purports to address the absence of a function of investigation as required by the Good Friday agreement, the ECHR et cetera. It does not provide the extensive obligations involved in the duty which were described by the Supreme Court in the McQuillan case. It does not insert a process which meets the requirements of Articles 2 and 3; rather, it leaves more uncertainty. For this reason, my Amendments 2, 3, 4, 8 and 9 provide for ECHR-compliant investigations and reporting on them. It is implicit in those processes that the procedural requirements of the right to a fair trial et cetera are complied with.
Amendment 38 provides that information must be provided by the specified holders of that information not only for review purposes but for investigation. Amendment 46 attempts to address the current deficit in taking into account the views of victims and survivors and the family members by inserting into Clause 9 a right for a family member to request not only a review but the more extensive investigation required by the current law. Amendment 47 removes the requirement that it must be
“appropriate for that family member to make that request”.
I am not altogether clear why that provision is included, but it lacks clarity as to who might make the decision as to the appropriateness of the family member making the request. Perhaps the Minister can enlighten us.
Amendments 48 to 51 allow, respectively, for senior law officers, the Secretary of State, the coroners in Northern Ireland, England and Wales, the sheriff in Scotland, the procurator fiscal in Scotland and the Lord Advocate to request not only a review but an investigation. Amendments 53 and 54 to Clause 10 would provide for a person who has suffered harmful conduct covered by the Bill as well as the Secretary of State to seek an investigation rather than a review.
Amendments 55 and 56 to Clause 11 enable a person to request that an investigation include questions about the death or harmful conduct. Very often, family members and those who have suffered have by their own efforts secured significant information about what happened, often at significant risk to themselves. Not only are they able to provide that information to an investigator but because of what they have established they can point out questions which should be asked and possible investigative leads or lines.
Amendments 57 to 62 and Amendments 64 and 65 provide necessary consequential amendment to Clause 11 to reflect the operation of the new function of investigation in addition to the function of review. Family members are vital to any investigation, as anybody who has been involved in an investigation knows.
Amendments 66 and 67 to Clause 12 empower the commission to carry out investigations where a person is seeking immunity and that person’s conduct caused death or harm to another person. Amendments 68 to 70 to Clause 13 provide similar adjustments to that clause in an attempt to make it compliant with our legal obligations.
Amendment 72, in the name of the noble Lord, Lord Hain, introduces a requirement that reviews are carried out to criminal justice standards as modelled on Operation Kenova, which is inquiring into various
republican terrorism activities and allegations in connection therewith. Again, I declare an interest as a member of the international steering group of Kenova. I support this amendment, although I am of the view that Kenova investigates rather reviews; it is a very powerful investigation.
Amendment 147, which we have dealt with, deals with the matter of the review in Denton. This is a completely different exercise. Indeed, it is a review. Amendment 82 enhances the power of the commissioner for investigations in relation to the supply of information by extending to them the investigation function, which is essential.
The remaining amendments in my name in this group would make all the necessary consequential changes to place in the Bill the obligations that the UK has in cases of deaths resulting from violence during the relevant period and cases involving allegations of torture in terms of the processes to be adopted by the commission in the conduct of its business. By using only the term “review”, the Bill as drafted is insufficient, even taking into account government Amendment 76, since it does not, as has been roundly stated internationally and repeatedly, impose the duties and obligations inherent in the existing legal obligations of the UK, which are guaranteed under the Good Friday agreement. Noble Lords have repeatedly acknowledged in this House the importance of not undermining that agreement. I beg to move.