My Lords, this group of amendments refers to the independence of the commission to be created. Throughout the Bill, there are restrictions on that independence in the form of not only the Secretary of State’s control over the number of commissioners, and in this instance the appointment of commissioners, and the budget, but many of the other requirements made of the commission and the various powers given to the Secretary of State.
I find some of these powers astonishing. They include the power to give guidance to the ICRIR about how to exercise its functions so as not to prejudice national security, put a life at risk or act in any way which might prejudice actual or prospective criminal proceedings. This exercises the minds of senior investigating officers, chief officers, prosecutors and judges on a very regular basis—decisions have to be and are made. Why do the Government think that the ICRIR will not be capable of making such decisions?
There is also a power to identify sensitive information to be given to the commission, the chief constable of the PSNI, chief officers of police forces in Northern Ireland, the Police Ombudsman, the director-general of the Independent Office for Police Conduct, Northern Ireland departments and Scottish Ministers. Managing and identifying sensitive information is done routinely by people such as chief constables. It is difficult to understand why the Secretary of State should be required to make regulations and give guidance in these situations. To those looking in from the outside, from whom I have heard quite extensively, it appears that this may enable the Secretary of State to control the work of the ICRIR.
The Secretary of State has a further extraordinary range of powers throughout the Bill, which we will come to later. Combined, they introduce a unique group of powers regarding the operations of the ICRIR. All the powers conferred on the Secretary of State to enable him to regulate, manage, control or otherwise dictate the proceedings of the ICRIR rest on the appointment of the commissioners. Amendments 12, 13 and 16, to which I have put my name, and Amendments 24 to 30, all in the name of the noble Lord, Lord Browne, seek to address a profoundly important control given to the Secretary of State in Schedule 1 by giving the appointment-making function for the commissioners to the Judicial Appointments Commission rather than to the Secretary of State.
The Judicial Appointments Commission comprises nine people, five of whom are judges and four of whom are not members of the legal profession at present. The requirement in the schedule on the Secretary of State to consult the relevant senior judge and such other persons as he or she considers appropriate will be indicative to many of those in Northern Ireland who want to see a truly independent commission of a
total lack of independence. Noble Lords will know that perception is as important as reality in cases such as this. If the commission is to gain any credibility, it must above all be seen to be independent.
It seems to me that, were the House to agree the noble Lord’s amendments—which he has just said he will withdraw but which I may well retable on Report because they are so important—the Minister’s Amendments 14 and 15 would be unnecessary. In any event, they would not meet the requirement for an independent appointment. The appointment of a person who has gained experience outside the UK, as provided for in Amendment 14, may be an asset, but it could occur in any case, and it seems to me superfluous.
The one thing that emerges from a study of this Bill is that the ICRIR will not be enabled to be independent by its provisions. Rather, it is clear that so much power is reserved to the Secretary of State that it cannot be independent. There is no legislative consent Motion in support of this Bill and no support for it. We are talking about the past and future of the people of Northern Ireland. Independence is critical for this commission.