My Lords, I stand to speak to Amendments 100, 103, 104 and 148 in my name, which are in this group. I find difficulty in explaining this: there are other amendments in my name in this group. Respectfully, they are Amendments 101, 149 and 150, and the fact that they are in this group concerns me because they are consequential to Amendment 123, which is in the eighth group. I will take advantage of raising this: Amendment 123 simply seeks to remove the phrase,
“the actual date of the First Reading”,
from the Bill and to substitute the actual date of the First Reading, which was 17 May 2022. That will probably save me a few seconds when we come back on Monday. That is the position.
Before I turn to Amendments 100, 103, 104 and 148, I will say two things. I fully support Amendment 110 in the name of the noble Baroness, Lady O’Loan, and will vote for it if she divides the House. I thank the noble Lord, Lord Caine, for addressing an issue that I raised in Committee about respect for devolution and the recognition that Scotland has had a separate jurisdiction from England since 1707 in the context of the UK and the role of the Lord Advocate. He has tabled an amendment to ensure that, in circumstances where, following a review, the commissioner for investigations considers that there is evidence that an offence has been committed, a referral must be made to the Lord Advocate where the suspected offence is an offence under the law of Scotland.
Insofar as it goes, this respects devolution. New subsection (2C) in the amendment reads as follows:
“The Lord Advocate may direct the Commissioner for Investigations to exercise the power of referral and notification in accordance with subsection (2B); and the Commissioner must comply with any direction that is given unless the person concerned has been granted immunity from prosecution under section 18 for the offence concerned”.
So, the commission still has the power to impact or to make a decision which will have extrajudicial impact in Scotland. That of itself, I suspect, will be considered disrespectful of devolution by the Scottish Parliament. That is perhaps a debate for another day, but I imagine that that debate will have to be had.
I return to Amendments 100 and those following. In tabling and speaking to these amendments, I am seeking to ensure that civil actions relating to the Troubles are not discontinued precipitately; that we reduce the risk of non-compliance with our obligations under Articles 2 and 6 of the ECHR; and that we preserve for a period of time a path to justice—albeit narrowing—for those families whose concerns, after all, ought to be paramount as we seek to improve this legislation.
Amendment 100 removes the blanket proscription on Troubles-related civil actions continuing on or after the day this Bill comes into force and instead allows such civil actions to be brought up to three years after that date when necessary. Given that, as we know, the ICRIR does not provide a legal remedy for victims and their families, surely accompanying the Bill’s other provisions with a complete ban on civil actions adds an element of insult to injury. Perhaps more seriously, this precipitate closure of an avenue towards civil redress, as I explained in detail in Committee and will not repeat, directly engages the UK’s obligations to offer access to a court under Article 6 of the ECHR.
As this Bill has journeyed through its various stages in your Lordships’ House, we frequently heard concerns about the degree to which the scope and powers of the ICRIR may already compromise access to justice, echoing the view of the former Northern Ireland Director of Public Prosecutions, who suggested that the Bill is incompatible with the ECHR as it abolishes due process. Surely, precluding the possibility of any further remedy through civil actions only imperils compliance with our ECHR obligations still further.
In considering the amendments I have put forward in this group, I returned to the official record of the Committee debates and re-examined the Minister’s response, which was characteristically thorough and generous of spirit. In his response on civil claims, he outlined three principal reasons that underlie his desire to discontinue all civil claims as outlined in Clause 39. He expressed concern, first, that they may impose an additional burden on the already backlogged Northern Irish civil courts; secondly, that they might reduce the status of the ICRIR as the primary institution dealing with Troubles-related offences; and, thirdly, that a three-year deadline might concentrate minds and lead to an enormous number of filings before this avenue of recourse is removed.
My answer to the first of these reasons is quite simple. Where families feel that a civil action is more likely to bring them the justice they seek, surely, administrative sclerosis is not an adequate reason for denying them that recourse. There are plenty of examples of this. Although I understand that the pandemic exacerbated the already considerable difficulties in this area, I struggle to countenance the idea that the solution to a struggling justice system is to deny justice to specific groups, rather than for the Government just to get to grips with the problem and make access to justice easier.
On the Minister’s second concern, I understand his need for the ICRIR to establish itself as the primary actor in Troubles-related offences, but while that imperative is important, it is surely trumped by the interests of the families it will be established to serve. Where they
feel that civil action is their preferred recourse, the institutional interests of the ICRIR are, to say the least, secondary.
On the third point, about the possibility of a flurry of actions being filed to meet the three-year deadline, what is wrong with that? Some 25 years ago, I regularly appeared before courts and quite often asked judges to do things. On occasion, the judges would say to me, “But Mr Brown, that will open the floodgates”, or the people on the other side of the argument would say that it will open the floodgates. I developed quite a neat line, which was to say, “My Lord, this is a court of justice. If you are considering granting justice to one person today, it’s hardly a reason not to do so because somebody will come and ask you to do the same thing tomorrow”. That is what courts of justice are there for. Again, I appreciate the level of the backlog being worked through by the Northern Irish courts, but ultimately it is their job to dispense justice.
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If civil actions are misdirected or tendentious then they can be dismissed, but others may be brought to a successful conclusion and they should be allowed. That is justice in action. I reiterate that the solution to this backlog is for the Government to get to grips with the problem rather than placing obstacles in the way of those who wish to use the courts to obtain the justice that is due to them.
Before I finish, I shall mention Amendment 104, which provides that the Secretary of State should defray the fees and costs already incurred by litigants, and maybe also by potential litigants, whose proceedings are either terminated or banned by this legislation. If the Government wish to bring such proceedings to a precipitate end, it is incumbent on them to meet the cost of so doing.