My Lords, group 6 refers to criminal justice outcomes. These really are the critical clauses. They remove from those affected by deaths and serious injuries between 1966 and 1998 the ability to pursue civil actions for the loss or damage that they have suffered; the ability to have investigations, as required by the ECHR; and, in cases where people have suffered a violent death, the ability to have inquests in respect of those deaths.
The noble Lord, Lord Hogan-Howe, who cannot be with us this evening, and I asked the Government to provide definitions of “review” and “criminal investigation” in order to inform your Lordships’ understanding of the difference between the two, which is a vital issue in this Bill. The Minister expressed the view that it was not necessary to provide such definitions. However, in its report of January 2021 on the work of Operation Kenova and the Glenanne review—Operation Denton—the National Police Chiefs’ Council explained:
“Operation Denton differs from Kenova in that it is being conducted as a review, and not as a criminal investigation at this time. This makes the approach by the operational team fundamentally different to that of Kenova”,
which is an investigation,
“from an evidential perspective”.
That fundamental difference of approach is why His Majesty’s Government were so strongly criticised for making the function of the ICRIR to conduct reviews of deaths. That confusion continues to permeate the legislation. Even by Third Reading, perhaps the Minister might seek the assistance of the National Police Chiefs’ Council and provide us with an amendment to define “review” and “investigation”, which would help the House in making its decisions.
In future, despite the Minister’s Amendment 32 to Clause 23, it is for the commissioner to decide whether investigations should form part of a review. Once the Act comes into force, there will be no criminal investigations as we know them today by the police or other agencies in relation to Troubles-related offences. Existing investigations will cease unless a decision to prosecute has been made and the ongoing investigation is for the purpose of that prosecution. A few minutes ago, the Minister expressed the hope that Operations Kenova and Denton would be complete by 1 May 2024. However, I have to point out to him that that is not to be determined by Kenova and Denton, which have finished their work and are simply waiting for decisions from the Director of Public Prosecutions, security reviews, Maxwellisation and that sort of thing. There is very little that Kenova or Denton can do; it is for others to do this. We have been told, however, that
others cannot do it because there are no resources; we are also told that that is the fault of the Northern Ireland Assembly, which does not sit. This does not seem to be a particularly constructive approach to the problem.
Unless a family member, the Secretary of State for Northern Ireland, the Attorney-General for Northern Ireland or the Advocate-General for Northern Ireland asks for a review and the ICRIR decides both that there should be a review and that the review should take the form of a criminal investigation, other investigations will simply cease without any provision for victims. Earlier, I referred in particular to the case of those three young police officers who were killed in the Kinnego Embankment explosion and whose file has been referred to the DPP. It would be wrong for these cases simply to die with the passing of this Bill.
In more limited circumstances where a review involves a death that was caused directly by conduct during the Troubles, coroners, sheriffs and procurators fiscal in Scotland can ask for a review. In all other cases, the investigation will cease and there will be no investigation and no provision for victims.
As a consequence of the Government’s amendments to this Bill, even those that say that there must be compliance with the obligations imposed by the Human Rights Act, such compliance is de facto not possible because, among other reasons, there is provision for immunity from prosecution for murderers and the ICRIR does not have unqualified access to information held by relevant agencies under Clause 5. Despite the Minister’s comments on the previous group, I, as Police Ombudsman for Northern Ireland, had the right to require the delivery of information. The ICRIR has the right only to reasonably request information. It is different.
9.15 pm
Moreover, in cases involving criminality by state actors such as police officers, the powers of the police ombudsman, the IOPC and the Scottish police complaints process will no longer exist unless there has already been a decision to prosecute, notwithstanding the very significant amounts of public money which may have been spent during the investigation process.
The Bill provided that civil actions brought on or after 22 May 2022 could not be pursued, even though people have invested time and money with a legitimate expectation that they would be able to get a decision from the court. Some of those people will have incurred significant legal costs and there is no mechanism by which they can recover those costs from the Government, who are depriving them of the right to pursue their cases, which existed in law when the writs were issued. Having abolished the right of civil action, the Bill does not provide any alternative remedy. Judicial review is not a remedy which will provide damages. It is only about decision-making by a public authority.
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 Government’s deliberate denial of the process of civil actions afforded to those who have suffered what is often ongoing and very serious harm as a
consequence of the Troubles. Very often, people who might have been able to live a fulfilling life, to care for their families and to prepare for their old age were prevented from so doing by a Troubles bombing or shooting. This is not compliant with the Good Friday agreement which, I say again, requires
“direct access to the courts, and remedies”.
There will of course be ongoing civil actions which started before 22 May 2022, so there will be two rules applying to civil actions for Troubles-related damage. Those lodged before 1 May 2022 will continue and those lodged afterwards will cease. That is why I have tabled Amendment 105, that Clause 39 should be deleted from the Bill.
Regarding inquests, the situation in the Bill was originally that any inquest which had reached an advanced stage would continue after the ICRIR was established. In a series of those game-changing amendments promised by the Government, government Amendments 106 to 109 provide that such inquests will no longer continue to be heard and that only inquests which are at the final stage, of determination, verdict or findings, can continue. Everything else will be terminated. This is game changing, but it is depriving victims of rights rather than enhancing their rights, which was the suggestion made by the Secretary of State, Chris Heaton-Harris, when he spoke of game-changing amendments. This is thought to be providing an incentive for state actors—police, MoD—to slow even further the provision of information for the purposes of inquests, so that information which could be provided to the coroner may not ultimately arrive in the coroners’ court before the due date. The noble Baroness, Lady Ritchie, referred to the inquest into the murder of Sean Brown, which has had 40 days of sitting but has still yet to get the information which has been required by the coroner.
The duty to inquire into the circumstances of sudden death by force has existed for centuries. It will continue to exist even if this Bill is passed for the families of those who die in the United Kingdom, with the exception only of those deaths which occurred during the Troubles. Inquests into deaths by terrorism occurring in the United Kingdom during the years of the Troubles but caused by groups other than the IRA, the UDA and the UVF will also continue to occur.
It is discriminatory and unjustifiable to deprive of inquests the relatives of those who died Troubles-related deaths while enabling all the others in the UK who have suffered the death of a loved one in circumstances which require an inquest to have one. Victims of these killings who are still awaiting inquests will never have the benefit of knowing what might have emerged during an inquest. Recent inquests have resulted in the disclosure of information which has previously been withheld by the state, sometimes as a consequence of lengthy legal action by the coroner.
It has been estimated—by those who would know—that there will only be some 15 outstanding legacy inquests into Troubles deaths by May 2024. Some of those may involve matters in which there is a significant amount of sensitive information. The inquests process has mechanisms to facilitate the consideration of such material by a coroner. The mechanisms do not apply
to ICRIR reviews, and the Chief Commissioner—I have great respect for Sir Declan Morgan—is going to have to work out how on earth to provide Article 2 compliant investigations. The Bill does not help him: there is no duty on state agencies such as the police to provide him with information. Yet the Chief Commissioner will have to provide Article 2 compliant investigations or reviews of those cases in which inquests would have occurred under the existing law. Inquests should continue for this relatively small group of people, as for all others who have experienced the loss of a loved one in similar circumstances and who can secure an inquest because their loved one was murdered by terrorists who did not belong to the IRA, UDA, UVF, et cetera.
So, I have tabled Amendment 110, which is supported by the noble Baronesses, Lady Ritchie and Lady Suttie, and the noble Lord, Lord Murphy. I ask your Lordships to support this amendment, which I intend to press on Monday, and to allow the outstanding inquests to continue.