My Lords, with regard to Amendment 28 in the name of myself, the noble Lords, Lord Bew and Lord Godson, I tabled similar in Committee and have changed it to take note of what the Minister then said, deleting the parts that he found objectionable, which related to family requests for reinvestigations. I hope that what remains the Minister will find acceptable, given that the purpose of my amendment to Clause 11 is to ensure that there will not be duplication by the ICRIR in relation to previous investigations, despite what the noble Baroness, Lady O’Loan, has said, without compelling new evidence. This is the concept that was used in the overseas operation Act, and I cannot understand why it cannot be used in this legislation.
If the previous investigations listed in the amendment, such as those by a public inquiry, HET, or the police services Legacy Investigation Branch are not added to the Bill, thus narrowing the ICRIR’s potential range, I repeat what I said at Committee: namely, that the ICRIR could end up reinvestigating every one of the nearly 4,000 deaths, the cost will be £1 billion at least, not the budgeted £250 million, and the process will last for many years.
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We now have legacy practitioners—a new force in Belfast, not the victims’ relatives, as the Bill naively believes—using the concept of collusion, or “collusive behaviours”, to use the phrasing chosen by the Police Ombudsman, who can design a case to reinvestigate any death. Collusion can be alleged in relation to all loyalist killings and, indeed, all republican ones, by virtue of the use of security force agents in both paramilitary groups, never mind the alleged investigatory failings that the Strasbourg court complains of.
Rewriting history is about the complexity of the Troubles being distorted into a single concern with state killings, which of course republicans and their allies then use —slowly, drip by drip, case by case—to construct the narrative of the IRA being a popular
resistance force that had no alternative to killing. The Committee of Ministers at the Council of Europe, when enforcing European Court judgments on the so-called McKerr line of cases, refers only to killings
“either during security force operations or in circumstances giving rise to suspicion of collusion in their deaths by security force personnel”.
There we have it. Strasbourg has therefore, in effect, accepted a republican perspective on the matter for the past 20 years. This means that some 90% of victims’ families are told by the human rights court that they do not count.
I fear that the following will happen when the ICRIR opens next year if this amendment is not added to the Bill: the IRA Army Council will almost certainly not be tempted by the immunity opportunity, nor will the loyalist paramilitary groups. There will be a small number of requests for reviews from distressed relatives, but the vast majority of requests will be from legacy practitioners who will demand rigorous reinvestigations—in fact, new criminal investigations in hundreds of cases—often on the flimsiest of allegations, unless prevented by this amendment.
The judicial reviews and civil suits will also keep on coming. However, recent court judgments in London and Belfast on the temporal scope of ECHR Article 2 procedure, already referred to, suggest that demands for reinvestigation are no longer being obliged, both for time-lapse reasons and the non-application of the Human Rights Act to deaths before 1982.
The Belfast agreement never envisaged what has happened on legacy. About victims, it simply said:
“The achievement of a peaceful and just society would be the true memorial to the victims of violence”.
The Northern Ireland parties failed to deal with the matter and it has passed, as usual, to Westminster. The only credible legacy initiative was former Chief Constable Sir Hugh Orde’s Historical Enquiries Team, but that was needlessly closed down.
This amendment is designed to stop unintentional ICRIR mission creep. Without a mention in statute that narrows access and curtails repeat applications, the commission’s workload will only grow. We need finality and I am afraid that, without my amendment, we will not get it.
I also want to say something about Amendment 31, which I will not be able to support if it goes to a vote on Monday. This amendment from the noble Lord, Lord Hain, and others is, in essence, the alternative legacy policy promoted by the former Chief Constable of Bedfordshire Police, Jon Boutcher, head of Kenova, and other former Metropolitan Police officers in your Lordships’ House.
Everyone talks about Kenova, but I guarantee that most Members of the House of Lords do not know anything about the detail of Kenova. It is important to spell out that it is in fact four separate operations commissioned by the PSNI following particular judicial rulings on which, to date, £37 million has been spent, without any prosecutions—although 30 files and a million pages of evidence on MI5, Army and IRA personnel are with the PPS. It started out as one inquiry into the late Freddie Scappaticci, or “Stakeknife”, about the IRA and the use of informers by the Security Service.
Then there was Operation Denton, a review—but not an investigation—about the Glenanne Gang and alleged loyalist collusion with the security forces. The other two Kenova commissions are much less complex, so I will not go into them because of the time.
Jon Boutcher, as I am sure many of your Lordships know, was a detective superintendent in the Metropolitan Police Service in July 2005 when, in Vauxhall, then my constituency, we had the terrible tragedy of Jean Charles de Menezes, a Brazilian electrician mistaken for a suspected Islamist terrorist, who was shot dead by armed police officers on a stationary Tube train at Stockwell station, just down the road. Cressida Dick was in charge of that operation on 22 July and Jon Boutcher was one of the silver commanders in the control room. The Met’s plan had been for SO12, a surveillance team, to apprehend its suspect after he left his apartment building. SO19, comprising firearms officers, was also deployed. A series of events then led to tragedy: confusion in the control room, SO19 having to stop for petrol, SO12 failing to arrest the suspect before the Tube station and SO19 catching up with him only as he entered the station.
The Menezes family, with London supporters who lobbied me—I got to know many of them during that time—brought a human rights case to Strasbourg. The actions of the Met’s senior officers that day may be followed in the 2016 court judgment Da Silva v United Kingdom. It is clear from that that the Met was a police service that believed in “shoot to kill” when it came to possible suicide bombers. The family’s case at Strasbourg was not on Article 2 substantive obligations—the right to life—but Article 2 procedural obligations. Possibly inspired by Northern Ireland cases, they argued unsuccessfully that there had been an inadequate investigation into the death. The court, however, found the investigation in general to be adequate.
Kenova is about extensive reinvestigations that would never happen in London and which our courts increasingly suggest are pointless because of the time lapse and the fact that Article 2 of the ECHR does not apply to such elderly events. I put it to your Lordships’ House that we must not be starstruck, almost, by Kenova and think that it is the solution to everything. The Kenova investigations are about a small subset of victims: those whose relatives were agents or informants, who, sadly, can never be told what went on, and those who allege collusion with state forces, who will never be satisfied with any report.
I am very pleased that the government amendment usefully refers to the UK Human Rights Act, the HRA, and not to the ECHR, as the noble Lord, Lord Hain, does. Amendment 31, if passed, would ensure that we spend millions of pounds and not actually achieve very much, other than to ensure that state forces—the RUC, the Army and all those who worked so hard to defend innocent people—will be the ones who will be chased and pursued. So I will not be voting for that on Monday and I hope the Minister will respond to what I said on my first amendment, Amendment 28.
Also, does the Minister have any comment on what Minister Varadkar said today? He is the Minister in the Republic of Ireland, for noble Lords who have not
heard of him, and he is now threatening that an interstate case at Strasbourg will be taken against the UK Government if this legacy Bill passes. I would be very grateful if the Minister commented on that.