My Lords, the discussion on Amendment 154A shows the importance of getting legislation right in the first instance. I speak in support of Amendment 146 to Clause 34, to which I have put my name. This amendment and Amendment 152 will remove the provision that all existing investigations must transfer from the existing investigation body to the ICRIR. Chief officers of police have to notify the
Secretary of State of all criminal investigations of Troubles-related matters. The only exception to this under the Bill arises when a prosecution is under way and the investigation is pursuant to the prosecution.
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In February, the Government announced the establishment of a public inquiry under the Inquiries Act into the Omagh bombing. That announcement followed a High Court decision that a plausible argument could be made that the state had failed to comply with its obligations under Article 2 of the European Convention on Human Rights to take reasonable steps to prevent the bombing. There are many other cases in which there are plausible grounds to believe that the state, through its agents, failed to prevent planned murders of which they had knowledge. There is a pattern that shows that there were many circumstances in which the state, through its agents, prioritised keeping those agents in place over their duty to prevent murder and did not take disruptive action to save life. That happened in cases involving both loyalist and republican agents. I have investigated some of those cases myself; I do not speak of rumour and innuendo but of fact.
It is good that the state has acknowledged its obligations in the Omagh murders, though we have yet to see any progress on the establishment of the inquiry. This Bill, however, will create a review and investigation process that would not have the powers given to the Omagh bombing inquiry or any normal police investigation powers, which are essential for the discharge of the state’s obligations under Article 2. Those necessary unqualified powers to compel the production of documentation—especially documentation held by the security and intelligence services and police intelligence units—will not be available. The proposed powers to identify and gather information will be subject to veto by the Secretary of State under the extensive provisions of Clauses 29 and 30 of the Bill. Access to information could be severely curtailed through the exercise of powers conferred on the Secretary of State in this Bill.
The acknowledgement by the Government of their obligations to those who died as a consequence of the bombing of August 1998 is right. Their actions in promoting this Bill, with its non-Article 2-compliant processes, are a denial of those same rights to others in the UK whose loved ones died before the Good Friday agreement. There is nothing in that agreement that provides that legal rights should be curtailed before 10 April 1988. Indeed, the reverse is true. That is why, of course, this Bill has been so roundly rejected, not just in Northern Ireland, not just here in England, but internationally—including, most recently, by the UN High Commissioner for Human Rights.
Some weeks ago, the Council of Europe’s Committee of Ministers met to make decisions on the supervision of the European Court of Human Right’s judgments in a series of Northern Ireland cases relating to the actions of the security forces in the 1980s and 1990s in Northern Ireland. The Committee of Ministers had, in September and December 2022, expressed serious concerns about this Bill and has now said that the amendments proposed by the Government do not sufficiently allay those concerns. It has again emphasised
that it is crucial that the legislation that is progressed and ultimately adopted is in full compliance with the convention. It has called on the Government to ensure that the Secretary of State’s role in the establishment and oversight of the independent commission is more clearly circumscribed in law in a manner that ensures that the ICRIR is independent and is seen to be independent. It is my understanding that the chief commissioner has now been appointed, despite the fact that this Bill is still in Committee.
The Committee of Ministers also called on the Government to ensure that disclosure provisions unambiguously require full disclosure to be given to the ICRIR and to ensure that the Bill adequately provides for the participation of victims and families, transparency and public scrutiny. It strongly reiterated its calls upon the authorities to reconsider the conditional immunity scheme in the light of concerns expressed around its compatibility with the convention. It also reiterated its serious concerns about the proposal to terminate pending inquests that have not reached substantive hearings and its call on the authorities to reconsider this proposal. It stressed the importance of the success of any new investigative body of gaining the confidence of victims, families of victims and potential witnesses. It is going to re-examine the McKerr group of cases at its next meeting and, in the absence of tangible process on this Bill, will take further action.
There is no evidence that the Government intend to do anything other than force the Bill through, despite its incompatibility with our international legal obligations. I am aware of an article that the Evening Standard ran last night—there have been various rumours about the Government introducing further amendments, which they have chosen not to introduce in Committee. I am not sighted on those amendments, but the amendments produced thus far do not cause me to get excited about them.
Clause 34 allows no new criminal investigations after 17 May 2022. Can the Minister assure the House that cases that have come to the top of the investigation queue are currently being investigated by the PSNI, and that the police have not paused such investigations since May 2022? Can he provide to the House details of how many investigations of Troubles-related offences have been initiated by the PSNI since this Bill was introduced, so as to reassure the House that the PSNI is continuing to fulfil its legal obligations?
Apart from renewed or new investigations, the key factor in determining whether a case has to be transferred to the ICRIR is whether a prosecution has been directed by the PPS. If a prosecution has been directed, the case can remain with those who investigated it. If not, it must go to the ICRIR, which must then come to terms with what are often very complex cases, consider to what extent it wishes to reinvestigate and then, having done that, produce the prosecution files to the Public Prosecution Service. This provision will apply to many cases currently under investigation and ready for prosecutorial decision, including murder cases currently under investigation by the PSNI from the period from 1996 to 1998 and the Operation Kenova investigations,
which have been much cited in your Lordships’ House—I refer again to my membership of the Kenova steering group.
The focus of Kenova is to ascertain whether there is evidence of the commission of criminal offences by an alleged agent known as “Stakeknife”, who was at the head of the IRA’s internal security unit. It was responsible for identifying suspected informers, and many of them were kidnapped, tortured and executed. Kenova’s investigations include, but are not limited to, murders, attempted murders and unlawful imprisonments attributed to the IRA, and whether there is evidence of criminal offences having been committed by members of the Army, the security services or other government personnel. Some of the cases are the murders of alleged IRA informers, such as Joe Mulhern in 1993 and Joe Fenton in 1989. The Kenova team is also investigating the murder of three officers who died on the Kinnego embankment, near Lurgan, in October 1982. That case was formerly investigated by Greater Manchester Police Deputy Chief Constable John Stalker and then by Sir Colin Sampson.
Currently, 36 cases investigated by Mr Boutcher and his team are currently with the DPP for Northern Ireland for decision—I have referred to them before. If there is no decision before the Bill is passed, those cases will all pass to the ICRIR. No decisions have been made. I am fully in support of Amendment 154, in the names of the noble Lord, Lord Dodds, and others. It would at least ensure that cases in which a file has been submitted to the PPS would not fall to be transferred to the ICRIR but would continue to be dealt with by the PPS.
It is in the interests of all the victims and all those affected in these cases that they should continue to be investigated by the existing investigation team. The delay in progressing the Kenova files is not attributable to the investigation team: we know that the PPS has said it does not have the resources and that decisions will be made before files are impacted by the Bill. However, similar assurances were made early last year. If decisions are not made in these cases, they will all have to transfer, with huge additional resource implications.
Similar considerations apply to Operation Denton, which is reviewing the activities of the Glenanne gang, which comprised loyalist paramilitaries, police officers and members of the military and which is said to have been responsible for at least 127 murders. Amendment 147, in the name of the noble Lord, Lord Hain, the former Secretary of State for Northern Ireland—who cannot be in his place today and asks that his apologies be given—in the names of the noble Lord, Lord Hogan-Howe, who is in his place today, and the noble Lord, Lord Blair, and in my name, which we have already debated, provides sensible and effective protection against this: the Denton review. The Bill deprives many victims and survivors of the Troubles of their fundamental legal rights to an official investigation. As stated in the Supreme Court just 16 months ago, the state’s domestic and international legal obligations are being set aside in the Bill.
Moving from criminal to civil actions relating to Troubles-related cases, with the noble Lords, Lord Murphy and Lord Hain, and the noble Baroness, Lady Ritchie,
I have indicated my intention to oppose the inclusion of Clause 39. There should be no restriction on the bringing of civil actions in Troubles-related cases, yet Clause 39 removes any right of action in relation to such cases. There will be an ongoing right of action for non-Troubles-related cases, including those which occurred before, during and after the period of the Troubles, and those which do not involve offences causing
“serious physical or mental harm”
as defined in Clause 1(6). If concrete blocks were dropped on a person’s leg, causing him to lose the limb, he would not be able to sue because of Clause 39. However, if those same concrete blocks resulted in injuries that did not require amputation but left him in constant, serious pain, with serious disability and any associated trauma, he would be able to sue. If a person died after the Good Friday agreement in April 1988, he would be able to sue because his is not a Troubles-related death, according to the definition. This is manifestly and grossly unfair.
No alternative provision is made to enable people to bring civil actions and recover compensation in cases in which evidence emerges as to who was liable for an atrocity such as the Enniskillen bomb, for example. The provision of Clause 39(11) in relation to the application of the 2008 mediation directive, which applies to cross-border mediation, does not address or resolve the lacuna left by the deliberate denial by government of the process of civil actions to those who have suffered what is often ongoing serious harm as a consequence of the Troubles. Very often, these people might have been able otherwise to live a fulfilling life and to care for their families, and that is no longer the case. In order to mitigate some small part of the effects of Clause 39, I have also put my name to Amendments 155 to 161 in the name of the noble Lord, Lord Browne.
The noble Lords, Lord Hain and Lord Murphy, and the noble Baroness, Lady Ritchie, have also indicated our opposition to Clause 40 standing part of the Bill. Clause 40 as drafted would mean that, after 1 May 2023, or the date on which the Bill is enacted, whichever is earlier, no coroner can start an inquest into a death that occurred between 1966 and 1988. As I said previously, the Council of Europe’s Committee of Ministers said recently that normal inquest procedures should be allowed to continue for Troubles-related deaths if the UK is to be compliant with its international legal obligations. Under the Bill, any inquest that has started must stop
“unless the inquest is at an advanced stage”,
whatever that means. Does it mean that an inquest that has started and had a day’s, or a few days’, hearing and then been listed for next year will be terminated by the Bill?
The duty to inquire into the circumstances of sudden death by force has existed for centuries. It will continue to exist, if the Bill is passed, for the families of those who die in the United Kingdom, with the exception only of those deaths that fall within the definition of a Troubles-related death. Inquests into deaths by terrorism occurring in the United Kingdom during the years of the Troubles but caused by groups other than, for example, the IRA, the UDA and the UVF, will also continue to occur. It is discriminatory and unjustifiable
to deprive the relatives of those who died Troubles-related deaths of inquests while enabling all others in the UK who have suffered the death of a loved one in similar circumstances which require an inquest to have one.
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Victims of these killings are still awaiting inquests because of underresourcing. Recent inquests have resulted in the disclosure of information that had previously been withheld by the state and, on occasion, the coroner has had to take lengthy legal action to get that information. Inquests should continue for this relatively small group of people, as for all others who have suffered the loss of a loved one in similar circumstances and who can secure an inquest. The clause should not remain part of the Bill.
The government amendments in the group are intended, it appears, to sweep up and dispose of any residual powers that the Police Ombudsman—I remind the Committee that I was the first Police Ombudsman—and the English and Scottish police complaints handling officers currently have to investigate any conduct that occurred during the Troubles. This will mean that where there is evidence that, for example, a police officer fabricated evidence, perjured himself in a court hearing, misconducted himself or herself in public office or committed any other crime in the context of the planning or aftermath of a murder which does not fall into the category of offences provided for in the Bill, will not face investigation. Again, this is a total denial of the obligations the state has to those who have suffered in this way.
In total, this group of amendments, with the exception of the government amendments, are attempts to make better a Bill that is fundamentally flawed, in breach of our international legal obligations and inconsistent with the rule of law. It is my hope that, when we are finally informed about the content of the Government’s further proposed amendments, they will address these very serious issues.