Lord Browne of Ladyton:

Moved by Lord Browne of Ladyton

146: Clause 34, page 28, line 10, leave out “continued or”Member’s explanatory statementThis probing amendment deletes “continued or” from Clause 34(1).

My Lords, I will also speak to Amendments 155 and 156, and to consequential amendments 152 and 157 to 161. These are supported variously by the noble Baroness, Lady O’Loan, and my noble friends Lord Murphy of Torfaen and Lady Ritchie of Downpatrick. My preference would be to see the removal of Clauses 39 and 40 from the Bill, as proposed by the noble Baroness, Lady O’Loan, and my noble friends Lord Murphy, Lady Ritchie and Lord Hain. However, I will restrict myself to the amendments in my name.

I take this opportunity to thank the Minister for his continued engagement on the Bill with me and others. I am sure we will have an opportunity in future to discuss some of the significant lengths he has gone to since the Committee last met to deal with some of the issues we have raised. In my view, some of these amendments make parts of the Bill—which I do not fundamentally support, but that is another matter—slightly more palatable. The Minister is very open and has done prodigious work in this regard, as have his officials, who are doing a very good job. They are admired by all noble Lords who have been engaged in this process.

Truth and justice are not merely two sides of the same coin; they exist in active relation to one another. They both are—and must be—indispensable elements of an alloy that can carry and sustain a lasting peace in Northern Ireland. Amendment 146 and its consequential amendments delete the time-limiting element of Clause 34, thus preventing criminal investigations being discontinued precipitately. I do not wish to stray into broader territory that is more customarily the stuff of Second Reading debates, but I wish to adduce an example that shows why this is important. In August 1974, John Pat Cunningham was shot and killed by a British serviceman. The soldier in question was finally put on trial in Belfast in 2021, 47 years later.

There are other families from all communities in Northern Ireland in that position—seeking justice for the deaths of loved ones. In earlier debates on this subject we heard of the case of Malvern Moffitt, murdered by IRA terrorists around 40 years ago. That is not an uncomfortable footnote in history but a tragedy whose concentric circles continue to lap at his family. His widow has expressed her profound upset at the prospect of the Bill in its current form receiving Royal Assent. His children gave a powerful and moving television interview in response to the Committee stage in the other place last year—something that should give us pause today.

Noble Lords will be familiar with the rule 9 submission by the Council of Europe Commissioner for Human Rights, dated 16 August 2022, which specifically focuses on this Bill. The submission is informed by a year’s close monitoring of the Government’s legacy proposals, engagement with the different stakeholders and, during a week-long visit, engagement with the Minister and his officials in the NIO.

I direct your Lordships’ attention to paragraph 15 of that well-written and comprehensive submission, which reads:

“In her September 2021 letter, the Commissioner already highlighted the importance of the interaction of different mechanisms in ensuring justice, truth and reconciliation. With regard to justice, it was noted throughout the visit that other mechanisms than prosecutions, such as inquests, Police Ombudsman investigations and civil proceedings have often been instrumental in uncovering information that could subsequently be used to ensure accountability. Furthermore, the various mechanisms have been able, to some extent, to cater for the different needs of victims, since these will not be the same for all. At the end of her visit, the Commissioner noted in this respect that ‘unilaterally shutting down options that many victims and families value greatly as part of their way of dealing with the past ignores their needs and wishes, and is causing many of them deep distress’”.

This is a question not merely of fairness but of compliance under our Article 2 ECHR obligations. In raising the question of these obligations, I realise that I am failing to conform with recent innovations whereby breaching these obligations is advertised as a bold innovation rather than a prohibition. In the case of Armani Da Silva v the UK, the court ruled that:

“Having regard to its fundamental character, Article 2 of the Convention contains a procedural obligation … to carry out an effective investigation into alleged breaches of its substantive limb”.

The question of effectiveness is crucial. I will quote further from that decision, as it speaks directly to what constitutes an effective investigation. If an investigation is to meet the preconditions of effectiveness, it must have the possibility of leading to punishment. The relevant passage runs:

“In order to be ‘effective’ as this expression is to be understood in the context of Article 2 of the Convention, an investigation must firstly be adequate … This means that it must be capable of leading to the establishment of the facts, a determination of whether the force used was or was not justified in the circumstances and of identifying and—if appropriate—punishing those responsible … This is not an obligation of result, but of means”.

This seems both compelling and clear. It would be useful to know with what elements of that judgment the Government wish to disagree and upon what authority such a disagreement might rest. In this context, it may be worth recalling the words of the Minister for Veterans Affairs, who, in giving evidence to the Joint Committee on Human Rights in 2020, conceded that there had been

“a serious generational problem with the standards of investigations” carried out into the conduct of British servicemen and that

“a lot of the investigations have not withstood rigour as regards ECHR compliance”.

He concluded those remarks by stating boldly that that

“has been a major problem”.

I regret to say that as it stands, this Bill will deepen and not mitigate that problem.

This same question of Article 2 compliance also underlies Amendments 155 and 156, together with their consequential amendments. Probing Amendment 155 would delete Clause 39(1) from the Bill. That subsection states:

“A relevant Troubles-related civil action that was brought on or after the day of the First Reading in the House of Commons of the Bill for this Act may not be continued on and after the day on which this section comes into force”.

Again, this seems to breach not only the demands of natural justice but our Article 2 obligations. Amendment 156 in my name and that of the noble Baroness, Lady O’Loan, and my noble friend Lord Murphy seeks to defang this particular risk by deleting the words “on or after” from Clause 39(2) and substituting “three years after”. The amendment would ensure that a Troubles-related civil action can be brought up to three years after the coming into force of Clause 38.

Amendments 155A, 161A, 161B and 178A are easy to explain. Clause 52(8)(c) refers to the

“actual date of the First Reading”.

The actual date was 17 May 2022, so the formula proposed in Clause 52(8)(c) is unnecessary if the Bill is otherwise amended to refer to 17 May 2022, which is exactly what this group of amendments does.

Lastly, I turn to the role of the Secretary of State in curtailing criminal investigations. Under these provisions, as it stands, it threatens incompatibility with Section 48(5) of the Scotland Act 1998. Two committees of the Scottish Parliament examined the Bill, and the consequent legislative consent memorandum points out that the Bill makes “novel and unwelcome changes” to the functions of the Lord Advocate as the head of the systems of criminal prosecution in Scotland. In particular, the power of the ICRIR to refuse to refer appropriate cases to the Lord Advocate compromises their independence, a supposedly inviolable principle under-pinning the whole architecture of the Scottish legal system. I would be grateful if the Minister made it clear why, and in what way, he believes that the role of the Lord Advocate is not compromised as I have outlined. Passing legislation aimed at bringing harmony to one constituent part of the United Kingdom by creating constitutional problems in another seems at the very least a somewhat quixotic way to proceed.

I would be grateful if the Minster could answer these questions of compatibility. If he is not disposed to accept these amendments, could he further explain how the Government will ensure that these provisions do not breach our obligations, both in the context of my earlier points on Article 2 of the ECHR and this Bill’s compliance with the Scotland Act 1998? I beg to move.

My Lords, I shall speak to Amendment 154A. I apologise for my late arrival to the debate on this important Bill, and for the lateness of this amendment, in my name and that of the noble Lord, Lord Godson.

At first sight, noble Lords may be a little bewildered as to where the amendment is directed. It arises out of a decision of the Supreme Court in a case concerning Gerry Adams. The decision was given on 13 May 2020.The only judgment of the court was given by Lord Kerr, who described the regime in Northern Ireland, commonly known as internment. As many noble lords will be aware, the way in which interment operated was initially by an interim custody order, or ICO, which was made when the Secretary of State considered that an individual was involved in terrorism. That person was taken into custody and had to be detained there, to be released within 28 days unless the chief constable referred the matter to a commissioner. Detention continued while the commissioner considered the matter. If satisfied that the person was involved in terrorism, the commissioner would make a detention order. If not so satisfied, the release of the person detained would be ordered.

An ICO was made in respect of Gerry Adams on 21 July 1973. It was signed by a Minister of State in the Northern Ireland Office; it was then referred to a commissioner on 10 August, who decided that Adams should continue to be detained. He attempted to escape on more than one occasion and was sentenced to terms of imprisonment for each offence.

What was at the centre of the appeal before the Supreme Court was the validity of the ICO made on 21 July 1973. Although the order could be signed by a Secretary of State, a Minister of State or an Under-Secretary of State, the relevant legislation provided that the statutory power to make the ICO arose

“where it appears to the Secretary of State” that a person was suspected of being involved in terrorism. In the view of the court, there being no evidence that the Secretary of State personally considered whether Adams was involved in terrorism, the question was whether the ICO was validly made.

The Supreme Court decided, in reversing decisions of the lower court, that it had not been validly made, notwithstanding the well-established Carltona principle which had been persuasive in the lower courts. This principle, which dates back at least to 1943, means that a decision entrusted by Parliament to the Secretary of State may generally be taken by a suitably qualified official, while the Secretary of State remains accountable to Parliament. I shall not go into the reasoning of the Supreme Court, but it is enough to say that it rejected the argument that the Carltona principle applied to the ICO and questioned whether a presumption existed as to its application in circumstances like this. The court appeared to be influenced by the momentousness of the decision to intern, and concluded that in all the circumstances it was Parliament’s intention that the power under Article 4(1) of the 1972 order should be exercised by the Secretary of State personally.

The decision was greeted with considerable surprise in a number of quarters—not least, I suspect, in the Civil Service, and by Ministers who had awareness of these provisions. It had significant consequences for many other decisions made by ICOs and placed in doubt what had been well understood and embedded in government practice. Among the critics of the decision was the think tank Policy Exchange, which published a paper on the case three years ago. Its authors were Professor Richard Ekins KC and Sir Stephen Laws. A foreword was written by Sir Geoffrey Cox KC and an introduction provided by the noble Lord, Lord Butler, who is in his place. All agreed that the decision was wrong and that the Detention of Terrorists (Northern Ireland) Order l972 authorised a Secretary of State, a Minister of State or Under-Secretary of State to authorise temporary detention. Personal consideration by the Secretary of State for Northern Ireland was not required.

A significant concern was expressed that the consequence of the decision was that Adams and perhaps many others would seek compensation for what was essentially a technical matter on the basis that they had been deprived of their liberty unlawfully. As the noble Lord, Lord Butler, put it, the judgment

“could spur litigation that will hamstring effective government and create unnecessary doubt about who in government may lawfully act”.

The noble Baroness, Lady Hoey, who is in her place, asked the Minister in a Written PQ in November 2021 whether there had been any claims resulting from the decision. The Answer, given commendably promptly, was that Adams had not made a claim but there were a number of other claims at an early stage based on the allegation that

“they were unlawfully detained on a similar basis to Mr Adams”.

The Minister may well be able to update the Committee. Newspaper sources suggest that there may be as many as 400 claims and that the sums involved may be substantial.

This amendment seeks to overturn the decision of the Supreme Court. It does not revive any criminal conviction quashed, as with Adams’s attempted escape from prison, but it does prevent any damages being recovered where the only basis for claims is the Adams technicality, if I may call it that. I understand that the Minister and his officials have had only limited time available to them to respond to this amendment. However, I hope it will be welcomed by the Government. It represents an opportunity to put right an erroneous decision and prevent unmeritorious claims being pursued. Just as importantly, it would restore the well-understood and important Carltona principle to its proper place.

My Lords, I support the amendment in the names of the noble Lords, Lord Godson and Lord Faulks. The principal point I want to make is that this amendment is not about the justice of internment as a general principle or the justice of the internment of a particular individual. It is purely about whether an individual should receive compensation because there was found to be a glitch in the procedure in ordering the internment because the Secretary of State did not personally consider it.

As has been said, such orders were signed by Ministers acting under the authority of the Secretary of State in accordance with the very well-established Carltona principle. That was certainly something that has always been understood by the Civil Service, and the reversal of it would have quite serious consequences for government. But whether or not there was a procedural glitch, the issue in my mind is whether compensation should be paid, not for an injustice but for such an error in procedure. I submit that the Government are entitled to protect themselves from having to pay compensation from the public purse for what is not an injustice but a procedural glitch. On those grounds, I support Amendment 154A.

My Lords, I want to briefly offer some words of support for that amendment. In their paper, Professor Ekins and Sir Stephen Laws, the former First Parliamentary Counsel, make a compelling argument that the United Kingdom Supreme Court judgment was wrong. I will not address that, because it is not important for the purposes of the amendment. What is important is that they also make a compelling argument for the deleterious practical consequences that are likely to flow from Adams because of the importance of the Carltona principle to the good and smooth running of government. That is beyond argument, and the risk here is that that principle has been in some way undermined.

Let me give an analogy. As your Lordships will be aware, a number of the most serious and sensitive criminal cases require the consent of the DPP before they may proceed. But the system has always been that the Director of Public Prosecutions designates a small number of his or her most senior prosecutors to exercise this consent function on the DPP’s behalf. Of course, if the DPP wishes to call in a particular case to consider himself or herself, that will and does happen. But if it were ever to be the case that every file requiring DPP consent had to be placed before the DPP in person, the system would swiftly grind to a halt; or, the DPP would exercise that consent allegedly personally but really and practically on the basis of advice that he or she had received elsewhere. So the present system is the more honest. The individual giving the consent, exercising the consent function, is the individual who has actually read and considered the papers. To the extent that this amendment will protect and fortify the Carltona principle, it has my full support.

My Lords, I strenuously support this amendment spoken to by my noble friend Lord Faulks, supported by my noble friend Lord Godson, and for two specific and extremely important reasons.

The first is simply this. If your Lordships go back to the 1972 detention of terrorists order passed through the House of Commons and this House, they will find specific provision in the text of that order for 28-day and night ICOs to be signed by Ministers of State, junior Ministers or other officials. We were doing that—I had the privilege of being involved in taking it through the House of Commons at the time—not just to reinforce the eminently sensible Carltona principle but for the most practical, hard-headed considerations of the circumstances in which these matters would have to be handled.

What we were dealing with seems to have fallen out of the memory of many people. Although we said that it was not a war, the Provisional IRA said it was, and indeed there was talk from Dublin of the same thing. We were having to deal with war conditions, whether or not we accepted that a war was being waged against the United Kingdom. The practicality of that was that the Secretary of State—Mr William Whitelaw at the time, under whom I served—was having to move very quickly between Belfast and the Cabinet, handling the situation in the Houses of Parliament and a variety of other commitments as well. It was perfectly obvious that, for the smooth working of the procedures and the empowerment of the detention of terrorists order and many other pieces of legislation, he would need support of all kinds in handling these matters—in particular, in accordance with the detention of terrorists order and Carltona.

Much of the discussion since has been detached from the context and intense pressures in which we were working after the fall of Stormont and the arrival of the Whitelaw mission in Northern Ireland. Incidentally, this had the support of the whole House. The House of Commons supported it unanimously; there were maybe one or two queries but no amendments at all.

The second reason for my support for this amendment is that, while I do not wish to criticise the courts in anyway—I would not dare do so—I am absolutely baffled that legal and court procedures in a complex matter of this kind, going back in history, did not involve calling any witness of any kind to corroborate what actually happened and what went on in Stormont and in the procedures we are discussing. Ministers should have been called in those proceedings. It happens that I am the only Minister left from the Whitelaw team who is still alive, and I should have expected to be asked exactly how these things went on. What happened when one was asked on a Sunday night to sign an ICO? Who was consulted? To what extent did one talk to the Secretary of State beforehand, or to other Ministers of State or important witnesses from the police and other authorities? This was extensive but none of it was ever discussed.

It is utterly bizarre that somehow the court procedures should ignore what was specifically provided for in the original order. This seems to be almost incomprehensible. I therefore ask strongly that the Government reconsider what my noble friend Lord Faulks has put so eloquently and the point that the noble Lord, Lord Butler, has rightly argued about the procedure. Was there really a procedural glitch? No one knows; it was never discussed, and yet here we are with the prospect of millions of pounds being claimed on the basis of a judgment that appears to be based on sand—on nothing.

This is a very serious matter; it is a dangerous and costly matter. It may encourage many more difficult feelings at a time when—heaven knows—the whole balance and fragility of Northern Ireland is once again in question. It would be a great mistake not to accept the validity behind this clause, even if it needs amending in certain ways, and to pass it by or cast it aside on the grounds of matters settled. This is not settled; it is unsettled and most unsatisfactory. It needs very serious determination and consideration now.

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.

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.

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.

My Lords, as we return to the Bill in Committee, it is right, given the inevitable focus, often, on the actions of the security forces, to pay tribute to the Army, the UDR, the RUC—part-time and full-time members—the security services and all who worked to safeguard the people of Northern Ireland through some of the worst days in the decades of Troubles and to remember the innocent victims who were cut down by terrorism, whether it came from loyalists or republicans. It is worth putting on record, every time we debate these matters, that the overwhelming number of deaths and murders were carried out by terrorists.

In the context of the fight against terrorism, I think it is appropriate to add a personal tribute to Lord Robert Carswell, who recently passed away. He was a Member of your Lordships’ House and from 1984 to 2004 was a senior judge and Lord Chief Justice in Northern Ireland who valiantly upheld the principles of legal justice in Northern Ireland through some of the darkest days. People like Lord Carswell and others are often bypassed. Many who engaged in violence over the years have been elevated into personalities and lauded by world leaders, but it is people like Lord Carswell who deserve the thanks and gratitude of so many in Northern Ireland for the work they did during the Troubles.

Like the noble Baroness, Lady O’Loan, I heard the Secretary of State, I think it was yesterday in Northern Ireland Questions in the other place, refer to amendments to the Bill that will be coming forth as “game-changers”. He was very adamant that these would be very significant amendments indeed, and it seems a shame that we should be kept waiting, having gone through the entire Committee, now into our fourth day, and be told that there will be game-changing amendments.

I hope the Minister can tell the Committee what these game-changing amendments may prefigure and are likely to do, because it seems wrong that we should be left to debate them on Report. I certainly look forward to examining them in detail, although I share the reservations of others about their likely content.

This is the fourth day of Committee. We have seen other Bills dropped; the protocol Bill has been dropped, there has been massive change to the retained EU law Bill and there is speculation that other major planks of government legislation will be dropped. Still, this Bill, which is unwanted and has no support in Northern Ireland—neither among the political parties nor in the Assembly—persists. It grinds on, unwanted and unloved. The only people who seem to be driving it forward are the Government. For the life of me, I fail to understand why they cling to this obnoxious piece of legislation.

While that is our view of the Bill overall, it is our duty to examine these matters in detail and try to mitigate it if it is going to proceed on to the statute book. I fully support Amendment 154A tabled by the noble Lords, Lord Faulks and Lord Godson, which is very timely; the decision taken by the Supreme Court mystified and astounded many commentators and those who follow these things closely. The Carltona principle has been embedded in British political life for many decades, and the prospect that tens of millions of pounds could be spent in compensation for some technicality, at a time when we are struggling to fund vital services in Northern Ireland, will cause outrage on all sides there. Nobody will support this. The Government should take on board this very considered amendment and I hope they will adopt it quickly.

Amendment 154, which has already been referred to, is in my name and those of my noble friends. Its purpose is to treat a public prosecution as having begun when the file is passed to the Public Prosecution Service for Northern Ireland. It is entirely wrong for the Government to cast aside the significant work that has gone into a number of high-profile investigations, such as Operation Kenova, which deals with the actions of the leading informer and head of the IRA’s so-called internal security unit, Freddie Scappaticci. This investigation must be able to conclude irrespective of whether a decision to prosecute has been made by the time the Bill’s provisions come into force. However, it is not just about that investigation or others. The principle is worth defending. The prohibition of criminal enforcement action under this Bill’s provisions is immoral and contrary to the principles of natural justice. This amendment attempts to mitigate that damage.

My Lords, I apologise to the Minister and the Committee that, due to an earlier engagement, I will unfortunately have to leave before the end of this group. If noble Lords will indulge me, I will speak briefly now. I agree with an awful lot of what the noble Lord, Lord Dodds, has said about the general approach to the Bill. This is the fourth day and we continue to have tremendous dissatisfaction with it, notwithstanding the generally positive approach of the Minister, who has been exemplary in his ability to listen to us and respond at every stage.

I thank the noble Lords, Lord Faulks and Lord Butler, and others for their explanation of newly tabled Amendment 154A, but it is potentially quite a detailed change. We should discuss it in much more detail, perhaps on Report. It could have significant consequences, so I hope we can look at it in more detail before then. I look forward to at least reading the Minister’s response in Hansard.

These Benches strongly agree with the powerful and detailed speeches from the noble Baroness, Lady O’Loan, and the noble Lord, Lord Browne. These primarily probing amendments correctly ask the Government to explain their position on the continuation of investigations. The amendments from the noble Baroness seeking to remove Clauses 39 and 40 raise some extremely important points. I look forward to reading the Minister’s response to many of the issues she raised, because they are still unresolved and we have not yet had satisfactory answers to them. As a general point, can he reassure the many victims and their families that their hopes of justice will not be undermined by those two clauses as drafted? Can he clarify the situation for those who had been given additional hope through an investigation, inquiry or inquest having started, and give us more details on the process and timescale proposed in this Bill?

The Minister knows that we are all very grateful for his active engagement on this Bill. He has shown repeatedly that he is prepared to listen and respond. However, I suggest that discussions with noble Lords such as the noble Baroness, Lady O’Loan, who has so much experience to share, about some of the realities and consequences of Clauses 39 and 40 would be very welcome—indeed, necessary—between now and Report.

My Lords, I support the amendments in the names of my noble friend Lord Browne and the noble Baroness, Lady O’Loan, to which I was a signatory along with my noble friend Lord Murphy on the Front Bench, because we are firmly opposed to the removal of access to inquests for victims. The standard bearer in all this should be adherence to the rights, needs and requirements of the many victims and survivors, as the noble Lord, Lord Dodds, is clearly also saying in his amendment. Victims and survivors should have primacy.

In all the debates on this Bill, noble Lords from Northern Ireland and across the House, political parties in Northern Ireland, the Commission for Victims and Survivors and all those organisations that represent the needs of victims and survivors have clearly enunciated their opposition to it as drafted because it does not provide for the needs of victims and survivors.

Like the noble Lord, Lord Dodds, and the noble Baroness, Lady O’Loan, I heard the Secretary of State refer yesterday to “game-changing amendments”, to which reference has been made today on the BBC Northern Ireland website. Can the Minister tell us what those game-changing amendments are that will be brought forward on Report? The only amendments should be those that reject this Bill; like all the other Bills that have been withdrawn or substantially changed, it should be withdrawn.

I support the amendments in my name and those whose principal signatories are the noble Baroness, Lady O’Loan and my noble friends Lord Browne and Lord Murphy, because the Bill foresees the closure, prohibition or restriction of existing avenues for seeking truth and justice. Criminal prosecutions would, in theory, remain possible but they will be significantly dependent on the ICRIR, which would act as a gatekeeper, and, given problems around independence, there could well be perceptions that the ICRIR was acting politically, if recommendations for prosecution focused on one part of the community only.

Inquests, unless at an advanced stage, ongoing police and police ombudsman’s investigations and civil claims would all be discontinued. To me, that is totally immoral, anti-democratic and anti-justice. The proposed government amendments to Clause 41 would restrict the Police Ombudsman for Northern Ireland from formally investigating Troubles-related incidents. They would further restrict routes to justice and consequently exacerbate, rather than allay, concerns.

The noble Baroness, Lady O’Loan, has quite rightly said that she was the first police ombudsman in Northern Ireland, and I know full well what she did in that role on behalf of my former constituents in South Down, in terms of the Loughinisland inquiry, where six men were brutally murdered by loyalist paramilitaries—six people who were utterly innocent. That report eventually came out in various iterations, but it found that there was collusion and things happened that should not have happened—their deaths, the destruction of evidence material, et cetera.

My Lords, in supporting Amendments 146 and 152, and the consequent amendments, I say that the Human Rights Commission believes that the Government’s amendments do not address its grave concerns raised in the initial advice regarding the immediate cessation of criminal investigations, other than those referred by the ICRIR to the prosecutor, police complaints, civil proceedings inquests and inquiries linked to Troubles-related offences. The CAJ, with which I believe the Minister is acquainted, believes that the Bill provisions and the Government’s amendments entrench the extent to which impunity will be facilitated. In this regard, it refers to the provisions to prevent the police ombudsman from any inquiry that touches on police actions during the conflict, beyond the existing prohibition in the Bill on dealing with future and current complaints from victims. In this regard, our amendment scores out the removal of inquests and civil actions. To remove civil actions, inquests and the role of the police ombudsman in cases prior to 1988 is totally undemocratic and leads to a lack of transparency and accountability. I therefore ask the Minister if he could indicate the extent of the exercise of police powers by the ICRIR against a person who has immunity.

Some of the amendments dealing with the question of investigations consider many of those issues. In the past the Minister has confirmed that the ICRIR can use police powers in some circumstances. However, can he confirm that such powers would not be exercisable against a person who has immunity for the offence under investigation? He has stated that police powers can be used by the ICRIR. In introducing the Bill a year ago in the other place, the former Secretary of State for Northern Ireland stated that the Bill would mean military veterans would no longer face a knock at the door or be taken in for questioning—that is, police powers would not be used against veterans. Is that still the Government’s position, given the contradictions?

The noble Baroness, Lady O’Loan, has already referred to the Council of Ministers decision, issued after the March meeting, setting the UK Government the deadline of 3 May to make tangible progress on an alternative ECHR-compatible approach. I note that the NIO issued a two-page response letter on 4 May, not committing to any changes to the Bill and urging the Council of Ministers to defer consideration until September, by which time the Bill will have commenced on current timing, and damage will have been done. I ask the Minister to consider the views of many people throughout Northern Ireland—victims’ groups, survivors’ groups, political parties—and ensure that accessibility to inquests and all forms of civil action and criminal prosecutions is continued, because it is only through those mechanisms that justice can prevail. At the end of the day, the people who have been so deeply grieved want peace of mind, justice and truth.

I support the amendments in my name and those additional amendments in the names of my noble friends Lord Murphy and Lord Browne, and the noble Baroness, Lady O’Loan, and the amendment in the name of the noble Lord, Lord Dodds, because we do not want to see the Bill as it is currently drafted, but we want those game-changing amendments referred to by the Secretary of the State in the other place.

My Lords, I speak in support of Amendment 154A tabled by my noble friends Lord Godson and Lord Faulks. I apologise for not speaking at Second Reading.

As others have explained, the Supreme Court reached a decision which surprised many legal observers. In this respect, I commend to the Minister and his officials the Policy Exchange paper of May 2020, which explains the well-established Carltona principle, how the Supreme Court reached its decision, what it did not refer to and, in particular, what was said in the debates leading up to this Order in Council being passed—it is necessary to look at that. I am not going to go into that now; I shall be short.

For a long time, the principle has meant that officials and junior Ministers routinely act in the name of the Secretary of State, whose personal involvement in each and every decision is not required. Noble Lords who have much experience in this field—I refer in particular to the noble Lords, Lord Butler, Lord Howell and Lord Macdonald, all of whom have great experience with or as Ministers, or as the Director of Public Prosecutions—have explained the significance of the Carltona principle to our system, and agreed that the Supreme Court’s interpretation was, if I may put it this way, somewhat implausible.

It is plain that the Minister, in this case, acted in good faith and, I suggest, without negligence and in accordance with the well-established principles. Quite simply, this amendment does not overturn the acquittal, which was founded on a Supreme Court decision, but it will ensure that damages should not flow. It will also have the benefit of restoring the Carltona principle to its necessary place in jurisprudence. I commend this amendment to the House.

My Lords, I make no apology for the fact that my contributions to the debates on this Bill and legislation stem from my personal experience over the years with victims and survivors, and their families. If noble Lords had a similar experience, they would live with it and continue to live with it until the end of their lives.

At this juncture in our debates, we are addressing for technical reasons—which I accept—and for reasons of jurisprudence and legality, what is, I believe, the greatest failure of this proposed legislation. It is proposed that victims and survivors will be denied the last jurisprudential opportunity to gain some answer to their doubts, worries and concerns, and above all their search for justice.

I am very glad that the noble Lord, Lord Dodds, recently referred to the death of my long-term colleague and friend, who began, as I did, to study law at Queen’s, all those years ago, and who ended up as Lord Chief Justice of Northern Ireland. For reasons that must be obvious, I personally know something of the strain that he encountered during the Troubles, and the honesty, integrity and decency of Bob Carswell needs no defence from me. I pay tribute today to a man who often sat beside me on these Benches of latter years.

I cannot speak too strongly of the feeling of so many people who have encountered grief, loss and sorrow during the Troubles when they view the proposals of this Bill, and in particular the amendments and the area that surrounds them that we are looking at currently. They are to be denied the possibility of answers to their questions, and denied the justice that they feel is not just a legal necessity but a legal obligation. They are to be denied the possibility of having their questions answered and doubts removed. Now we see what is proposed in our legislation. To say that it is adding salt to the wounds is too little; it will be devastating in its effect. We must put on record that this Committee recognises, beyond the technicalities that our legal friends are now explaining to us, the human side of what is happening and what is proposed.

Many tributes have been paid to the Minister, and I add my name to them, for I do not know how he has had the patience to listen to so many approaches. But I say to him that, on this occasion, he must recognise above all else that, in guiding us through this legislation, he is defending something that we who live and work there, and who have had our being in Northern Ireland, find extremely hard to accept. That must be said plainly. Above all else, if this Committee does not hear those voices and those claims, we are failing to do the duty that we are obliged to fulfil.

The last thing I will say at this stage is simply this. Whatever the future of this proposed legislation, whatever the future of the peace process in Northern Ireland, and whatever the future for the new generation coming up who will read in the history books what so many of us have lived through—whatever the answers to those questions are—what remains fundamental is justice in its widest human sense. For that reason, I add my support to these amendments.

My Lords, I give my support to Amendment 154A, in the names of the noble Lords, Lord Faulks and Lord Godson. We are now on the fourth day of Committee, but it has been six months since this Bill was first introduced to the Lords. I kept hoping that, as time went on and on, somebody in the Government would think that this was one of the Bills that they should be retreating on and getting rid of, as they seem to be doing with so many other Bills. But here we are, and so we want to ensure that we end up with the best Bill possible.

I am delighted that such senior noble Lords as the noble Lords, Lord Howell, Lord Butler and Lord Macdonald, are all here today supporting Amendment 154A. It is a common-sense amendment. When I asked a question some time ago on this issue and the failure to comply with the Carltona principle, I was assured that something would be done to sort it. This is a real opportunity, which I am sure the Minister realises, to change the legalisation. This compensation could run to millions of pounds. Nobody should underestimate that, although the whole issue around Gerry Adams has not got a huge amount of publicity, everyone who thinks they have got a chance of getting compensation will apply, and it will be a huge amount of money. This amendment is crucial to ensuring that people in Northern Ireland feel confident that the injustice of people getting compensation for an administrative error is going to be dealt with.

I add my support for what the noble Lord, Lord Dodds, said about the RUC, the UDR and our Armed Forces. I am afraid that we are seeing the rewriting of history. It is very important that we in this Committee remember the sacrifice of so many people who defended people in Northern Ireland—particularly those members of the Armed Forces working in border areas. It is very sad that so many terrorists absconded over the border, having bombed or killed, and the Irish Government did very little—in fact, they refused—to send back many of those people. We must always look at this in the context of where the real problem was, and that was with terrorists, not with the Armed Forces.

Sadly, we are seeing more and more lawfare, where lawyers are able to continue probing incidents where individual soldiers and individual members of the UDR and the RUC killed someone and perhaps a mistake was made. The balance has got to be that we treat people and victims fairly. Sadly, victims and the families of victims killed by terrorists in some of the big atrocities are not getting that justice; they are not getting ombudsmen or inquiries into what happened. That is why people from all sides have different ideas of why this legacy Bill is not going to help stop that kind of lawfare.

I hope that the Minister will come back at the end and say that he does not think, as the noble Baroness, who is no longer in her place, said, that Amendment 154A needs much detailed scrutiny. It is very simple and it addresses something that should not have happened, and will make sure that compensation cannot happen.

I also ask the Minister this. Who decided the salary that the new head of the ICRIR will be getting? It was reported in the media that they will be getting £150,000. I would be interested to know who made the decision about the salary, or whether that is just media speculation.

My Lords, I support the various amendments brought forward by my noble friend Lord Browne, which aim to give room for ongoing criminal investigations to conclude and to allow space for civil action to be brought for an additional three years. I very much understand the concerns that the noble Baroness, Lady O’Loan, put forward regarding the closing off of other routes to justice under Clauses 39 and 40.

I often agree with the noble Lord, Lord Dodds. I sometimes disagree with him, but today I agreed with absolutely every word he said, particularly when he opened his remarks by making reference and paying tribute to those in the security services who lost their lives, and indeed the tens of thousands of other people who lost their lives over 30 years in Northern Ireland. I also agreed with his tribute and that of the noble and right reverend Lord, Lord Eames, to Lord Carswell, who I knew very well too. Our interest was not simply legal or political; we were both great lovers of classical music. He was a great expert—much more than I was—and I think that we in this House will all miss his wise words.

My noble friend Lord Browne referred to the fact that the First Reading of the Bill took place in the other place one year ago, and we are nowhere near finished. This is the fourth day in Committee—it seems a bit longer to me—over the last number of months in which we have been dealing with this, and there seems no end to it. I honestly think—and this is where the noble Lord, Lord Dodds, and I think most Members in the Committee would agree—that it is time to dump the Bill. There is no support for it. All my experience in Northern Ireland has been based on the fact that if there is not support across the community for something, it is doomed. I think it premature to advertise for the office of commissioner. I believe it is wrong that something as controversial as this can go ahead unless there is community support, political support and legal support, both here and, in particular, in Northern Ireland. There is still time. The noble Lord, Lord Dodds, referred to the fact that a number of Bills have been dumped. The Schools Bill was the other one that he did not mention, I think, but there are others. Now is the time to do that.

To refer particularly to the new amendment that has been introduced, Amendment 154A, I am glad that I am not the Minister answering this. I am sure that the Minister will have an answer, at least a temporary one, to this very interesting amendment. I do not want to comment on an individual case, obviously, but I do want to comment on the implications of what happened as a result of that case. I had never heard of the Carltona principle before, so I have learned something today, but I obviously operated under it when I was Secretary of State for Northern Ireland and, more significantly, when I was Minister of State for Northern Ireland, because as Minister of State I undoubtedly signed warrants on behalf of the Secretary of State at the time, understanding that everything I did was perfectly legal and right. Obviously, that has now been brought into doubt.

Very often, a Secretary of State’s name is used in tens of thousands of communications and letters for technical reasons, but this is not a technicality in Northern Ireland. This is about actually locking people up, tapping their phones or whatever it might be, so it really has to be got right—not least the issue of compensation, which could be absolutely horrendous. The Minister is not going to give us a complete answer to this today, but I hope that he will be able to assure us that by the time we get to Report, which I guess is not that long away, the Government will be taking action on this important measure.

I hope that the Minister, who has been extremely patient over the last seven or eight months with the Bill and with us, will look not just at that amendment but at the other amendments. They go to the heart of the criticism of the Bill: that the Government are wiping out any legal routes to ensure that there is some redress for the terrible things that have happened to people in Northern Ireland over the last 40 years.

The noble Lord, Lord Murphy of Torfaen, referred to the past seven or eight months—I assure him that, from this side of the Committee, it seems much longer. He, my noble friend Lord Dodds of Duncairn and the noble and right reverend Lord, Lord Eames, somewhat pre-empted my opening comments on this group of amendments by referring to the sad passing of Lord Carswell. As this is my first opportunity to address your Lordships since his death, I join those who pass on their condolences to his friends and family. Lord Carswell spent many years as a very dedicated public servant, including as Lord Chief Justice of Northern Ireland, as a Law Lord and as a distinguished Member of this House. We will miss his very wise and profound contributions.

I am also grateful to my noble friend Lord Dodds of Duncairn, the noble Baroness, Lady Hoey, and the noble Lord, Lord Murphy, for their references to the security forces. I intend to touch on that at slightly greater length in replying to the next group of amendments, but I concur with every word that was said.

As has become customary on the Bill, this has been a thorough debate. Before I respond directly, I would like to take a couple of moments to make an announcement in the Chamber. Last month, on 20 April, I laid in the Library of the House a paper setting out the selection process for the chief commissioner of the ICRIR. I am pleased to announce today that, following recommendations from the three Chief Justices across the United Kingdom, the Secretary of State has identified the right honourable Sir Declan Morgan KC to be appointed to the role of chief commissioner of the commission upon Royal Assent. The Secretary of State is today laying a Written Ministerial Statement providing more detail.

It is important that a chief commissioner be identified now in order to help victims, survivors and their families receive the answers they need with minimal delay, should this legislation receive Royal Assent. Sir Declan brings a wealth of experience from his previous role as former Lord Chief Justice of Northern Ireland from 2009 to 2021. A hallmark of his distinguished career has been his commitment to addressing the legacy of Northern Ireland’s past. I am confident that he will bring the highest level of experience, expertise and integrity to this post, and that this will help build public confidence in the work of the commission.

Sir Declan will begin work early next month to identify other commissioners and design how the new commission will carry out its role. Formal appointment as chief commissioner will take place only following Royal Assent and the establishment of the commission, taking account of any further considerations and final requirements of the Act. In particular, the chief commissioner will lead the process to recruit the commissioner for investigations and provide a recommendation to the Secretary of State. The role is currently advertised and subject to a fair and open competition, with appointment on merit. I trust that noble Lords across the House will warmly welcome this appointment.

Does it not seem slightly precipitate to be engaging the services of the chief commissioner and other commissioners when the powers and duties of the commission have yet to be decided by your Lordships’ House? It seems to me that, notwithstanding the amount of time needed to establish the new offices, the Bill is not yet in a state in which the chief commissioner can approach commissioners and say to them, “This is what we’re going to do, and this is how we’re going to do it”, because the House has not decided those issues.

As I just made clear in my remarks, the appointment is as chief commissioner-designate, and the formal appointment will not take place until after Royal Assent. That will take into account any further considerations that the House will have upon this legislation. It is important to enable the work of the commissioner to start now in order that, once Royal Assent is—I hope—received, the commission’s work can begin without delay.

Further to the question from the noble Baroness, Lady O’Loan, could the Minister indicate in more detail the functions that Sir Declan Morgan will undertake in this interim period before Royal Assent is given?

As I just said, the Secretary of State is laying a Written Ministerial Statement today which should be available very shortly, and I refer the noble Baroness to it for further detail on that.

Very briefly, could the noble Lord answer my question about who decided the salary and whether the person will be paid before Royal Assent?

The salary is based on judicial pay scales, as set out by the Ministry of Justice. I cannot off the top of my head tell the noble Baroness precisely what day his remuneration will begin, but I will get back to her on that. However, it is consistent with the MoJ’s judicial pay scales.

I turn to the amendments on criminal investigations, and first to Amendments 146 and 152 in the name of the noble Lord, Lord Browne of Ladyton. Under the Bill, the only existing criminal investigations that will be allowed to continue will be those where a decision to prosecute has been reached by the time of the Act’s commencement, currently two months after Royal Assent.

As the noble Lord knows, it has long been the Government’s view that to allow too many existing processes to continue alongside the ICRIR’s establishment would dilute the commission’s credibility as the sole investigator of Troubles-related deaths and serious injuries, and the wider objectives of the legislation to encourage information recovery and—an issue on which many noble Lords have touched today—the truth of what happened. In the Government’s view, the legislation as drafted strikes the right balance between allowing existing criminal cases that have made significant progress in the prosecutorial process to continue while giving the ICRIR the space it needs to become established as the sole responsible body for these types of investigations.

The legislation does not prevent the new commission, once it is operational and subject to a request being made, resuming criminal standard investigations into deaths or serious injury which the police have been prevented from pursuing under Clause 34(1). As we have discussed many times in the past, the commissioner for investigations will have the full powers of a police constable.

It has to be said that the powers of investigation conferred on the commissioner for investigations in the statute are not the same powers as the powers—for example, to access information, and other powers—which are held by an ordinary chief constable and his officers. The powers of investigation in the Bill are circumscribed by the role of the Secretary of State and the interventions which he can make.

I disagree with the noble Baroness. The commissioner for investigations will have the powers of a police constable and will have access to far greater information and records than is currently the case. We have been over this many times before. It is written into legislation that the commission will have access to far more archive and intelligence material than has ever been made available before.

The noble Lord, Lord Browne of Ladyton, quoted the decision of Armani Da Silva v the UK in regard to what constitutes an effective investigation. Again, we have debated this at length on previous days in Committee. To reiterate a point I made during those debates, the commission, working together with public prosecutors and making full use of the police powers to which I have just referred, will be able to institute criminal proceedings against suspected offenders in cases where conditional immunity has not been granted.

In the Government’s view, the absence of a prosecution or punishment outcome in individual cases where immunity is granted can be justified on the basis that the conferral of such immunity in a limited and conditional way is necessary to ensure the recovery of information about Troubles-related deaths and serious incidents that is extremely unlikely to come to light in any other circumstances. It is therefore consistent with the Government’s stated objective to provide more information to victims and survivors of the Troubles in a timely and efficient manner.

In response to his question about the compatibility of the Bill with the Scotland Act 1998, it has always been our expectation that the power of referral will be exercised in consultation with the relevant prosecuting authorities, including the Lord Advocate, and I commit to consider this matter further in advance of Report.

In response to Amendment 154 in the name of my noble friend Lord Dodds of Duncairn, where a decision to prosecute has already been made, the case will be allowed to continue to trial and the individual involved will not be able to apply for immunity until its conclusion. If they are convicted of an offence, they will not of course be able to apply for immunity from that offence, as we have discussed previously.

Clause 6 designates the commissioner for investigations as a person having the powers and privileges of a constable, as I referred to a few moments ago, and they have access to the functions they need to carry out robust investigations.

On the very important Amendment 154A, in the name of my noble friends Lord Faulks and Lord Godson, I am very aware of the issues being raised following the Supreme Court ruling in 2019—indeed, I was a special adviser in the Northern Ireland Office at the time that that ruling was made by Lord Kerr. It has been brought back into focus following a court judgment in the past few days and I am aware of its importance. I hope my noble friend will understand, as he alluded to in his comments, that, given the lateness with which the amendment appeared and important legal considerations on which it touches, I am not in a position to give him or other noble Lords a full response today. But I do take on board the very powerful points made by a number of noble Lords: the noble Lords, Lord Butler of Brockwell, Lord Macdonald and Lord Murphy of Torfaen, my noble friend, Lord Howell, who reminded the House that he was indeed a Minister in the Northern Ireland Office in 1972 with some responsibility for these matters, and my noble friend Lord Sandhurst. All upheld the importance of the Carltona principle. As I say, I cannot give a definitive response today, but I do commit to discussing it further before Report and possibly returning to this when the Bill comes back on Report.

I turn to the group of amendments put forward by the noble Lord, Lord Browne of Ladyton, supported by the noble Baroness, Lady O’Loan, and other noble Lords, to address some of the concerns raised over the inclusion of a number of clauses. I begin by reminding the House that, as regards civil cases, over 700 writs were issued against the state in legacy civil claims before the First Reading of the Bill a year ago on 17 May 2022.

As has been stated many times, the Government’s policy intent regarding civil claims is to reduce the burden on the Northern Ireland civil courts—which currently have a huge case load backlog to work through—while enabling the commission to establish itself as the sole investigative body looking at Troubles-related deaths and serious injuries. It is the Government’s intent that families should no longer have to go through the strained civil court system in order to receive the answers they seek.

In the Government’s view, there is a danger that these amendments in the name of the noble Lord and others would significantly dilute both of those aims, taking potential casework away from the ICRIR and putting it back into an already clogged system that on current estimates will take decades to work through. In our view, this is much less likely to provide answers for families in an efficient manner, which again sits in opposition to our stated aims.

On Amendment 156 specifically, filing claims can be done relatively quickly. This means that if a three-year grace period were to be given, it is possible that a huge number of claims would be filed, as a clear deadline would be in sight, and would remain in existence for a number of years. That would mean that the system would be hugely clogged up and have to deal with an even higher case burden than is currently the case.

Our current position will allow existing claims that were filed before the Bill’s introduction to continue to conclusion while bringing to an end new processes, to ensure that not too many concurrent cases are running once the ICRIR is established. Clause 39(7) simply allows any civil cases where a final judgment has been reached before commencement to continue to conclusion, where they would otherwise be caught by the prohibition in Clause 39(1). We believe that this is a reasonable approach to ensuring that the prohibition on civil claims does not interfere with cases where the court has handed down a final judgment when the prohibition would otherwise apply.

I appreciate that coronial inquests are a matter of huge concern to a number of noble Lords. I gave a commitment that this Government would not rush the legacy Bill through this House, and that we would prioritise steady passage and provide ample time for continued engagement. That is what we have done, in good faith. As noble Lords will be aware, the original working assumption was that the ICRIR would be fully operational by 1 May 2023 at the latest, on the assumption that Royal Assent would have been received some time before then. At that point, the intention was that those inquests which had reached an advanced stage would continue, while those which had not would move into the new commission. It will not have escaped the attention of noble Lords that 1 May 2023 has come and gone without Royal Assent, and that the establishment of the new commission has not yet happened, largely due to the extra time that we have given for thorough consideration of this legislation. However, this raises important issues that we must address. I will discuss this further with noble Lords between now and Report.

As the Bill has not yet become law, all current criminal justice processes may, for now, continue as normal. In that context, the noble Baroness, Lady O’Loan, asked me how many PSNI investigations have been initiated since the introduction of the Bill. That information rests with the PSNI, which, as the noble Baroness knows, is operationally independent from the Government, but I will seek an answer.

As Lord Chief Justice of Northern Ireland, Sir Declan Morgan demonstrated his leadership and his determination to provide answers for families of victims, through the work of coroners’ courts in legacy inquests. Sir Declan’s commitment to providing effective, efficient and independent coronial investigations won the respect and trust of countless families and the wider community in Northern Ireland. I am confident that he will take forward the work of the ICRIR with the same determination and commitment. The Government believe that once the commission is established there should be one process for investigating the past that is available equally to all those—I repeat, all those—who have lost loved ones, providing parity to all families, victims and survivors, while allowing other organisations to focus on contemporary issues.

While the coronial process has proved more effective than other mechanisms in providing information, accountability and acknowledgement to some families, including in some very high-profile cases, it is undeniably a resource-intensive process that can tackle only a small number of Troubles-related cases when compared with the many families who still wait for similar outcomes. The commission seeks to provide this, and it is worth reminding noble Lords that the commission will have easier access. The noble Baroness and I disagree here, but it will have easier access to more information than coronial inquests, through the obligation of full disclosure from relevant authorities, as outlined in Clause 5. This is particularly relevant to information that is national security sensitive. The commission will also have comparable powers to compel witnesses, and only on the basis of evidence will be able to make findings public via a final report, in a manner similar to an inquest.

The Government are confident that the legislation provides the chief commissioner with all the requisite tools to fulfil the commission’s functions fully and effectively. Indeed, it is fair to say that any chief commissioner, given their senior status within the judiciary, will be very cognisant of the legal obligations on all public authorities, including the commission, to meet the requirements of the ECHR.

Moving on, I brought forward Amendment 163, as the noble Baroness referred to, to clarify that the activity of the ombudsman which constitutes a criminal investigation can continue where a prosecution of a person has begun. Amendments 162 and 164 clarify that the ombudsman will be prevented from undertaking formal investigations in relation to referrals made, for example, by the Department of Justice, the Secretary of State or the ombudsman herself which relate to conduct forming part of the Troubles, in addition to preventing complaints made by members of the public. We want the ICRIR to be responsible for investigating Troubles-related incidents, so that police forces can get on with their day-to-day policing obligations and the Police Ombudsman for Northern Ireland can focus her resources on current policing issues.

On a similar note, Clause 41 as drafted makes provision that legislation in Northern Ireland dealing with police complaints and disciplinary proceedings will cease to apply to complaints relating to Troubles-related conduct made before the day the law comes into force, as well as complaints made on or after that date. Amendment 165 will ensure that the prohibition on police complaints relating to Troubles-related conduct applies consistently across the UK.

The noble Baroness pressed me on who investigates complaints concerning Troubles-related police misconduct. It is the function of the commission to review deaths and serious physical or mental harm, and it would be possible for this to relate to an incident that was the subject of a police complaint or otherwise relates to the conduct of the police.

Finally, a number of noble Lords referred to the possibility of amendments and to the comments made by my right honourable friend during Northern Ireland Questions yesterday. As I have made very clear throughout the passage of the Bill, I have never viewed the amendments I have brought forward and that have been debated in Committee as the end of the story. It would be unusual for me to trail amendments on Report before we had actually finished Committee, but, as a number of noble Lords have been kind enough to point out, the one thing I do not think I can be criticised for is a lack of openness and engagement.

As the noble and right reverend Lord, Lord Eames, knows, I made clear at Second Reading that this is challenging legislation—it has been challenging for me from the outset—but my commitment has always been to try to bring forward amendments that will improve it, putting it in a better state to go back to the House of Commons. That commitment will continue through to Report. On that note, I request that the noble Lord, Lord Browne, withdraw his amendment.

Before the Minister sits down, will there be any process by which complainant compensation or damages can be awarded after Clause 39 comes into effect, or will anybody who was injured or whose loved one was killed have no right of action at all and no route to compensation? Is this the end of the road for any right to compensation in Northern Ireland?

As the noble Baroness is aware, claims that were filed before the introduction of the Bill last year will be allowed to continue, but there will be a cut-off thereafter. As she is also aware, other avenues are available for compensation which Parliament has introduced in recent years, such as payments for those who were injured and so on in the Troubles.

My Lords, I will be brief. I thank the Minister for his characteristic way of responding to debates such as this. Subject to a few interventions on parts of the argument that noble Lords thought he had not dealt with, he covered the debate, as he always does, very comprehensively. He is probably the most open Minister I have ever been involved with in debates in your Lordships’ House. He did it at speed, though, so this issue probably bears some consideration between now and Report. In any event, he is inviting us to do that and will be doing it himself.

I thank all noble Lords who have contributed to the debate. My amendments were probing in nature, but once grouped with the amendments from the noble Baroness, Lady O’Loan, and the noble Lord, Lord Dodds of Duncairn, this became a comprehensive debate on issues that the noble and right reverend Lord, Lord Eames, correctly described as, in the view of many, the greatest failure of this legislation. This debate is about the scale of that failure. I admire the Minister’s ability always to defend the Government’s policy intent, but we have an argument with that intent. The fundamental challenge of this debate is that others, almost universally, think that the policy intent is wrong and that the sacrifices having to be made in other areas, such as the needs of survivors and victims, should not be made. In any event, I do not propose to say anything further on this.

Before I sit down, however, I must make some reference to Amendment 154A, and I do this in a personal context. Between 2001 and 2003, I was a Parliamentary Under-Secretary of State in the Northern Ireland Office. I signed a number of warrants—thankfully, none authorising an interim custody order—some of which were on behalf of my noble friend Lord Murphy of Torfaen when he was Secretary of State. So, if the implications of the current state of the law are sufficiently far-reaching, they may reach me as well. I am not sure that they are: I got notice of this amendment very late and have had insufficient time to look at it and its implications.

The noble Lord, Lord Faulks, will appreciate that, while, on the face of it, I was persuaded of the importance of this amendment—or at least part of it—by his introduction and the other contributions, I will keep my powder dry until Report, when I am sure it will come back. In the meantime, I beg leave to withdraw the amendment.

Amendment 146 withdrawn.

Amendment 147 not moved.

Clause 34 agreed.

Clause 35: Grant of immunity: prohibition of criminal enforcement action

Amendments 148 and 149 not moved.

Clause 35 agreed.

Clause 36: No grant of immunity: restrictions on criminal enforcement action

Amendments 150 and 151 not moved.

Clause 36 agreed.

Clause 37 agreed.

Clause 38: General provision and saving for ongoing pre-commencement action

Amendments 152 to 154 not moved.

Clause 38 agreed.