Northern Ireland (Stormont Agreement and Implementation Plan) Bill
(8 years, 7 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
Lord Alderdice
“( ) The Commission must report two times per year.”
Lord Alderdice (LD)
My Lords, the Bill emerges from the fresh start agreement of late 2015, in which the main parties in Northern Ireland, most particularly the two senior and largest governing parties, the DUP and Sinn Fein, reached an agreement on a series of matters that had been in contention. Some of them are matters of governance involving the budget and welfare payments, but others involve questions of security and the legacy of the past.
I bring forward this amendment because the Bill before us, which we debated at Second Reading recently, is firmly based on the fresh start agreement; that is perfectly appropriate in general principle terms. However, there was one element of the establishment of the Independent Reporting Commission which, from my own experience of it, I felt was unsatisfactory. The Bill does not spell this out, merely referring to Article 5.1 of the fresh start agreement, but that article says that the commission will produce annual reports. That is the issue of difficulty for me.
When the Independent Monitoring Commission was established by legislation and treaty between the Governments of the United Kingdom and the Republic of Ireland in 2003, it was required by law to report at least twice a year. It could also be asked to produce ad hoc reports but it was required to report twice a year on the situation with paramilitaries and security normalisation. The experience of the subsequent seven years was one of some reasonable success. However, one thing that was clear to the four commissioners and to other thoughtful observers was that the relentless force of reports coming every six months—everybody knew when they were coming: paramilitaries, the security services, civil society, politicians—meant that in the run-up to them, the IMC would receive many representations and questions. People would want to come to talk to us to say, “This is how we perceive things are”, and would look to the reports. The IMC did not make any statements in between times—we did not have any press conferences, and so on—and that gave greater strength to the reports, but only because they were coming out every six months. In the period of the IMC we produced 26 reports in all. Most were six-monthly. Most were on paramilitary issues, some were on security normalisation, and a few were specific ad hoc reports that were asked for on problems such as UVF violence, murders and so on.
When the question of bringing back the IMC arose in the later part of last year because of a couple of murders, we had a debate on it in your Lordships’ House. I said at that time that I did not think it appropriate to bring back the IMC because it would have been working in a particular context. I was also concerned that if people were asked to produce a single snapshot report in a very short time, without the possibility of building a whole network of people, official and otherwise, through which a commission could establish what was going on, it would be possible only for the PSNI and MI5 to produce the kind of report they produce regularly for the Secretary of State and then have two or three distinguished people read it and say, “Yes, I think this is an accurate report”, without being able to do any of the investigatory work that would help to triangulate or give other evidence for the views being expressed by the Police Service of Northern Ireland and the security service.
As it was, the Secretary of State decided to go ahead and establish a body, and the report that came from that body did not provide particular reassurance; in fact, in many ways it was much less reassuring than the last reports of the Independent Monitoring Commission. That is why, when it came to fresh start, another agreement had to be reached, which this time had to set up by the end of December 2015 a panel of three people who would produce by the end of May a strategy for the disbanding of paramilitary groups. I declare an interest, because I was appointed by the First Minister and Deputy First Minister as one of those three panel members. We have been doing our work and we still expect to report by the end of May, as we have been requested to do. I expect it to be published perhaps some time during June, although that is a matter for the First Minister and Deputy First Minister.
The Bill is putting in place an Independent Reporting Commission to take that strategy, if agreed by the First Minister and Deputy First Minister, and monitor or report on how it is implemented. That is not the same thing as the IMC; it is quite different, as it is to report on a specific strategy, and there may be various aspects of that, but it also reports only once a year. I ask noble Lords to think about that. It is going to take four or five years before a handful of reports is produced so that you can see what is actually happening.
Nearly 20 years after the Belfast agreement, I do not get a sense that there is sufficient urgency in relation to this matter, and I doubt very much that it will be perceived as sufficiently urgent in the minds of many people in Northern Ireland. They want, on a regular but relatively frequent basis, to hear what is happening so that the Executive can be held to account if they suggest legislative changes, which they may or may not do. However, if they do, is it enough to report back only once a year? An annual report is the sort of thing a company produces to fulfil the regulatory requirements and to provide information for shareholders. It is not the sort of thing you produce when you feel that major changes urgently need to take place. It may well be said that matters can be raised within the Northern Ireland Assembly. That is absolutely true, but that is the case at the moment and, if it were satisfactory, there would not be an Independent Reporting Commission.
I tabled this modest amendment not to put the Bill in conflict with fresh start but to appeal to Her Majesty’s Government to understand the need for a greater sense of pressure and urgency in the fulfilment of whatever comes out of the strategy and other matters. I do this not to create difficulties and not to change the Bill, which would mean that it had to go back to the other place. I absolutely appreciate that this legislation needs to be in place before the House prorogues and before the Northern Ireland Assembly has a new Executive, who will have to reach agreement on a programme for government as quickly as possible. I absolutely appreciate that, partly because of other elements of the Bill, but I seek from the Minister, who has been extremely open, helpful and constructive during the relatively rapid progress of the Bill in parliamentary terms, some kind of reassurance that Her Majesty’s Government understand the question I am raising and that they will do what is necessary to find ways of making more frequent reporting possible. There are processes by which that can be done. I absolutely understand that it does not have to be done in the way I have described, but this is the only way we can do something that is reflected in the Bill.
If the Minister could find a way of reassuring us that there will be maintained momentum in this reporting, that would be extremely helpful not just to those of us in your Lordships’ House who want to see movement but to people in Northern Ireland, who at times are despairing and at other times frustrated and impatient at the lack of progress on this important issue. I beg to move.
Baroness Harris of Richmond (LD)
My Lords, I support my noble friend’s amendment. We hear so little in this House about Northern Ireland. It is really only when we have short debates, reported in Hansard, that we bring what happens in Northern Ireland to the attention of this House and the wider public. Having the IRC report twice a year is the very least we can hope for. I echo my noble friend’s thanks to the Minister and to the Bill team for all the help they have given us on the Bill, and I hope that the noble Lord will consider this matter with great speed and alacrity.
Lord Empey (UUP)
My Lords, I take this opportunity to support the amendment of the noble Lord, Lord Alderdice, who touched on a number of very significant points. Noble Lords need to understand that this commission was appointed as a mechanism following the very severe events that took place last summer, which nearly brought the whole show down. A number of people have found that the appointment of this body gives them some reassurance that they can remain in the Assembly and that this commission would at least have the opportunity to shine a light on what was going on and to tackle one of the most significant outstanding, unresolved issues: those paramilitary organisations that were deemed to be active and have influence and control over one of the major parties and the totality of paramilitary involvement, which goes right across the community at all sorts of levels—in politics, in security, in crime and in other significant social circumstances where influence is being brought to bear on the younger generation to corrupt their views.
This is a very broad canvas. However, I want to talk about the specific security aspect of it, which is extremely important. The two shootings last year led up to the crisis and to a statement by the chief constable about the continuing operation of the Provisional IRA. That really destabilised the institutions to a significant extent. For many of us, the appointment of this body was an attempt to provide reassurance by shining an independent light on what was actually going on. I was one of those who felt that the removal of the IICD was premature. Perhaps I was wrong, but I felt that that body kept, as the noble Lord, Lord Alderdice, said, relentless pressure on paramilitaries. It also provided a degree of reassurance and kept momentum in the process going. I am not sure that an annual report is sufficient to deal with that.
I digress for a moment to the Explanatory Notes that were prepared by the Government for this Bill. I mention them because they are significant and relevant to this amendment. I refer to paragraph 2, on the policy background, which says that:
“The Fresh Start Agreement was reached on 17 November 2015 after 10 weeks of cross party talks between the UK Government, the five largest parties of the Northern Ireland Assembly and the Government of Ireland”.
The language in that would give the uninitiated reader reason to believe that this document and the Bill that has arisen were the product of that negotiation and agreed by the participants. That is not true. Yes, for the first eight out of 10 weeks of the discussions all the parties were involved. Sometimes they turned up and sometimes they did not, but everybody at least had the opportunity to turn up and most did. However, in the last fortnight, the discussions were taken out of Stormont House and moved to Stormont Castle, where the two largest parties, together with the Governments, produced the document, which some of the parties were then summoned to see on 17 November. My own party, the Ulster Unionist Party, the Alliance Party, and the Social Democratic and Labour Party were provided with this document, and we simply said that we would take it away and look at it. But this is not the product of an all-party agreement; let us be very clear about that.
The long-term problem that we have with this sort of legislation, and indeed the Scottish legislation, is that when it comes to the parliamentary side of it, government feels inhibited in paying any attention to Parliament, because it deals with these documents as if they were treaties—I made this point on the Scotland Bill. In my opinion, Parliament should be able to scrutinise and amend any of these things should it see fit. Governments, when they are making commitments, should make it very clear that they are subject to parliamentary scrutiny—they should not simply railroad things through whether they are right or wrong.
I believe that this amendment has merit. I would also like to comment on the other amendment in the group, in my name, which concerns appointments to the commission itself. Part of the arrangement is that the British Government and the Irish Government will appoint a nominee, and the First Minister and Deputy First Minister will appoint two nominees between them. There is a perfectly logical argument for that. You could say that for the First Minister and Deputy First Minister of the day, whoever they may be, it is a perfectly sensible arrangement. On the other hand, it means that you have people who are appointed basically on political grounds. Both of them will have a veto over who is appointed. One of them might be from Sinn Fein. We have to understand that the current Deputy First Minister, while he has changed much over the years—which I welcome—is nevertheless a self-confessed member of a paramilitary organisation. I personally believe that he was chief of staff of the IRA; he will have conducted paramilitary campaigns against and ordered the assassination of individuals and destruction of property and assets. Is it correct that the cat is put in charge of the cream?
So, there are two logical arguments for the amendment. However, I wanted to put it down as a probing amendment to assess whether there is an alternative mechanism. Some people say that the policing board is one. Of course, it is not a totally independent body either, but at least there are independent people on it, so it is not a political deal. But I know from experience that whoever is appointed, if the current arrangements are applied, it will be a political deal. That is fine, but I am just saying that the people who could be involved in that appointment are not necessarily independent. One of them at least, should he remain Deputy First Minister, is a self-confessed member of a paramilitary organisation. I would much prefer a more independent appointment process where people are not put in simply as stooges but would be genuinely free and independent and able to make a judgment without being somebody’s clone. That risk exists with the present arrangements.
I want to make it clear to your Lordships that this document is not universally agreed, although there are bits in it that I think are perfectly fine and reasonable and have no objection to. I do not understand why language is used which does not tell the reader what the situation in practice was.
There is great merit in the amendment in the name of the noble Lord, Lord Alderdice. It could also help to avoid pressures on the new Executive, when they come in, should other events occur that we cannot anticipate. What if we have to wait maybe 10 or 11 months? Let us take the situation of last summer, when those shootings occurred. If somebody said, “Well, the commission reported in June, so there’ll not be anything till next June”, that would be absolutely useless. This commission has the power to give reassurance to people that the paramilitary issue is being dealt with and will be reported on. It is not unreasonable to ask that the reporting mechanism be brought forward to six months, which could be an important escape valve for events that may occur which could destabilise the institutions once again.
Lord Eames (CB)
My Lords, I support the noble Lord, Lord Alderdice, in his amendment, but I do so from a point of view which has yet to be mentioned in this debate. On retirement, I have maintained the work that I initiated in those years with those former paramilitary members who were seeking a better way of life and a more just way of expressing their opinions. I have continued that work and am utterly convinced that one of the most extreme pressure points in ensuring that that process continues for the greatest number is contained in the words of the amendment, and for this reason. We may suspect, in the relatively calm waters of this Chamber and the Palace of Westminster, that some of the things that are said are not listened to by the likes of those who have former or present contact with paramilitary organisations, but let me assure noble Lords that that is untrue. Those words are read, thought about and used in deciding the meaning of this. Only recently, a group who I have been working with for some time said, “When will it be recognised that we are trying? We are trying to get out of this cauldron of paramilitary activity. When will society recognise that some of us do want out of it?”.
If the commission reports only at the sorts of intervals mentioned in the Bill, this important pressure will cease to have effect unless we accept what is sought in the amendment of the noble Lord, Lord Alderdice. As events move—and they can move very quickly in the world of the paramilitary—if this commission does not have the opportunity to tell civil society, “This is what’s happening”, and to tell it in a relatively speedy way after evidence has been uncovered, a wonderful opportunity will be lost. I beg the Government to think just as carefully about the meaning behind the proposal in this amendment as they do about what the amendment says. I beg the House to take this very seriously.
Lord Trimble (Con)
My Lords, I congratulate the noble Lord, Lord Alderdice, on what he has done over a number of years in this area. He was heavily involved with the Independent Monitoring Commission, which played a significant role in accelerating the move away from paramilitarism and enabling the institutions to be recreated on a more stable basis. That would not have happened but for the work of the International Monitoring Commission. Indeed, if the IMC had been in existence before the summer of 2002, as some of us were trying to bring about, I do not think that the institutions would have collapsed in the autumn in the way that they did. That is the context that one should put the IMC in.
It was a very bad mistake to wind up the IMC so quickly. Had it been there, things would have been somewhat different. I understand the point made by the noble Lord, Lord Alderdice: just bringing back the IMC as it was would not be appropriate because we are in a slightly different context. But within that different context, we want to see that the new body will be just as effective in the contribution that it makes. That means looking a little more closely at some of the provisions here.
The noble Lord’s amendment refers to reporting by the IMC, which he wants to happen more frequently. The way for the Minister to achieve that is very simple. In that first clause, he should set out the words used in the so-called fresh start agreement. That agreement says in its paragraph 5.1:
“The body will: report annually on progress towards ending continuing paramilitary activity”.
Then it continues,
“(or on such further occasions as required)”.
That is all the Minister needs to do. He can table a simple amendment that would carry out the exact terms of the agreement that the Bill is supposed to be implementing. It solves the problems that have been mentioned just as long as no one tries to put too tight a construction on the phrase “as required”. I suggest that one does that without adding to the language in the fresh start agreement itself.
Part of the reason for saying that we should make sure that the language does not go too far, is that when we look at how the commission will exercise its functions as set out in Clause 2, something strange happens to the language used. It says:
“In exercising its functions, the Commission must not do anything which might … prejudice the national security interests … put at risk the life or safety of any person”.
Of course, national security and risks to persons are matters to which people should have regard in a situation such as this and bear in mind carefully, but how will the words “must not do anything” which could engender prejudice or cause a risk operate? How is the commission to construe that phrase? It is something that could create a chill in the commission’s operations so it would have to think, “Is there any risk attached to what we are doing?”. At what level does the risk become something where it must not do anything to bring it about?
There may be a way out of this. Trying to rewrite this clause is not something we can do easily in the time available to us, but there is a way to put this on a better basis, and that is in the provisions for the Secretary of State to issue guidance about the exercise of the function. That might use language that provides a better balance than the words before us here. Mention of the guidance raises the question: when will it become available? Will it be available before Third Reading? If it is not ready then, will it become available in a form that will enable this House to give it some scrutiny? These are matters about which we would like to hear from the Minister, and he will bear in mind that our Delegated Powers and Regulatory Reform Committee has recommended that the guidance should be treated as a legislative instrument subject to negative resolution. That will enable scrutiny to take place here, so having it come out in a way that means we cannot look at it and then relate it to the overall objectives of the commission should be avoided if at all possible. I look forward with interest to what the Minister has to say on this point.
Lord Rogan (UUP)
My Lords, I thank the noble Lord, Lord Dunlop, for his courtesy in allowing us some very helpful meetings on the Bill. I fully support the amendment of the noble Lord, Lord Alderdice. In the past, many inquiries and commissions have taken far too long and, in the end, when they do report, what they were originally reporting on is perhaps forgotten. I cite the Saville inquiry. It went on and on, cost £200 million and, quite frankly, its report satisfied no one.
I turn to Amendment 2 in the name of the noble Lord, Lord Empey. Northern Ireland is a comparatively small geographical area. To be precise, it consists of 5,344.8 square miles. You can get from point A to point B in one and a half hours. We have a population of some 1.7 million. The effect of these facts is that we all know each other, or we know a friend of a friend. It is almost impossible to meet a fellow Ulsterman or Ulsterwoman and not, within 15 minutes of conversation, find some geographical or other link. At times we are accused of being tribal, whether we come from the inner cities, with their peace walls, from leafy suburbs or the rural countryside.
All these facts make it difficult to identify people who are seen to be completely neutral. I think we did achieve that when we appointed the noble Lord, Lord Alderdice, and the noble and right reverend Lord, Lord Eames, if not, perhaps, with some other appointees. However, in order to appoint people who are neutral and seen to be neutral—and many people in Northern Ireland would fit that bill—we must end the practice of political appointments, appointments being made, currently, by only two of the main parties. We need to broaden it out so that the broadest possible organisation can be the appointing body. While I absolutely agree that the police authority is not the ideal—when are we ever going to get an ideal body?—I feel that the Policing Board would fulfil this role. There still definitely is a political element, with political appointees, but the appointed lay members will dilute that somewhat. I support the amendment.
Lord Browne of Belmont (DUP)
My Lords, I support the amendment of the noble Lord, Lord Alderdice, and I shall also speak to the amendment of the noble Lord, Lord Empey. It is important that the Executive in Northern Ireland continue to tackle paramilitarism, criminality and organised crime, and therefore I very much welcome the provision for the establishment of the Independent Reporting Commission. No doubt, it will expose those in both the republican and loyalist paramilitary groups who continue to engage in criminal acts of violence. Regrettably, over past weeks, we have witnessed the murder of the prison officer Adrian Ismay in east Belfast, the murder of Michael McGibbon in north Belfast and the serious wounding of Harry Boyle in Londonderry. The Police Service of Northern Ireland has stated that these all bear the hallmarks of the action of violent dissident republican groups. I am sure that all Members of the House will condemn the vile actions of those groups.
This is why it is all the more important that the Independent Reporting Commission is in place and fully operational as soon as possible, so that it can report to the Northern Ireland Executive and enable them to draw up a programme to promote the ending of paramilitary activity. This commission is to be established through an international agreement between the UK Government and the Republic of Ireland Government. I trust that a Government in the Republic can be formed soon so that there will be no delay.
Lord Kilclooney (CB)
In saying that the First Minister would have a veto, does the noble Lord recognise that there is an election under way in Northern Ireland and that the next First Minister could easily be a former IRA terrorist?
Lord Browne of Belmont
What I said was that the veto would rest within the Office of the First Minister.
Lord Lexden (Con)
My Lords, like all who have spoken in this very interesting and wide-ranging debate, I warmly endorse and support the amendment of the noble Lord, Lord Alderdice. We seem to have strayed also into Amendment 2, in the name of the noble Lord, Lord Empey, and I have great sympathy with what he said about it. However, I think that this debate is primarily about Amendment 1.
We all remember the deep sense of crisis that existed last summer in Northern Ireland with regard to the extent and viciousness of paramilitary activity. It has been touched on from time to time in this debate, bringing it home to us again. The latest police figures show that nearly 100 people were injured last year as a result of paramilitary assaults or shooting incidents. The sooner the new commission is able to get to work, the better it will be. The effectiveness of its work would surely be most usefully demonstrated by regular twice-yearly reports. No one speaks with more authority on this matter than the noble Lord, Lord Alderdice, who is hugely respected for the work that he did on the Independent Monitoring Commission, to which tribute has been paid today. I would like to be part of that tribute.
The Government will have noted the strength of feeling that exists and I hope they will respond in the way that all of us who have spoken in this debate would wish.
Lord McAvoy (Lab)
My Lords, I welcome the contributions of all noble Lords on these amendments. I record the Labour Party’s appreciation of the Independent Reporting Commission, the creation of which is extremely important. The Labour Party also expressed that appreciation in the other place.
As regards representation, the noble Lord, Lord Rogan, echoed almost completely the view put forward by the Labour Front Bencher in the Commons, Steve Pound. The only thing that I think Steve Pound missed out was the square mileage, but he certainly referred to the saying that everybody knows one another. I have listened to many debates on representation in Northern Ireland on various bodies. With due respect to those who have far more experience than I do and who live in the place, no one has come up with a solution that is accepted by everyone. That is the difficulty we face with the representation issue. It is important that the view of the noble Lord, Lord Empey, on that issue is heard.
On the amendment of the noble Lord, Lord Alderdice, I make it clear that if the Government can come up with a form of words in an amendment to reflect that position, we would support it. On the other hand—there are always three hands in Northern Ireland—if that would delay the passage of the Bill in any way, we would support the Government on that.
Although the legislation refers to reporting once a year, does that preclude further reports? Can the commission of itself respond to any given situation and issue a report or carry out an investigation and comment on any incidents that arise, or is an amendment needed to enable it to do so? The legislation does not strike me as restricting the commission to producing only one report. As we all know, events can move very quickly in Northern Ireland. Therefore, I would be grateful if the Minister could clarify that the commission will be able to carry out reports as and when required.
In ending my remarks, and as I think that everything has been said, I just echo the view expressed by the noble and right reverend Lord, Lord Eames, that although we know that not everybody listens to what is said in this place, there is a place for us in appealing in moderate language for cross-party and cross-community support. I value his point of view very much.
The Parliamentary Under-Secretary of State, Scotland Office (Lord Dunlop) (Con)
My Lords, I rise to speak to Amendments 1 and 2, tabled by the noble Lords, Lord Alderdice, and Lord Empey, respectively. I thank all noble Lords who have spoken in what has been, as my noble friend Lord Lexden said, a very interesting and wide-ranging debate. My noble friend Lord Trimble raised a number of issues that go wider than the amendments. He asked, in particular, about the strategy to tackle paramilitary activity. The commission will report on measures of the three Administrations, including but not restricted to the strategy. He also mentioned issues that had been raised by the Delegated Powers Committee: the duties of the Independent Reporting Commission and the guidance the Secretary of State can issue. I have responded to the Delegated Powers Committee. My noble friend raised a number of detailed broader points and I am happy to respond to him in writing on those.
Before addressing the substance of the amendments, I will give an overview of the Independent Reporting Commission and Clause 1, to which the amendments relate. The new commission is one of a series of measures set out in November’s fresh start agreement to tackle ongoing paramilitarism. The new commission builds on the precedent set by the Independent Monitoring Commission, on which the noble Lord, Lord Alderdice, gave such distinguished service as a commissioner. As the House knows, the Independent Monitoring Commission operated between 2004 and 2011, during which time it monitored activity by paramilitary groups and oversaw the implementation of security normalisation measures, which culminated in the ending of Operation Banner in July 2007. Like the Independent Monitoring Commission before it, the Independent Reporting Commission will be an international body, established through an international agreement between the UK Government and Irish Government. Its objective will be to promote progress towards ending paramilitary activity. Its functions will be to report annually on progress towards ending paramilitary activity; to report on the implementation of the measures taken by the Government, Northern Ireland Executive and Irish Government to tackle paramilitary activity, including oversight of the implementation of the Executive’s strategy to end paramilitarism; and to consult a wide range of stakeholders, including law enforcement agencies, local councils, communities and civic society organisations.
I said that the commission will report annually on progress towards ending paramilitary activity. The amendment of the noble Lord, Lord Alderdice, proposes that Clause 1 be amended to prescribe that the new commission must report twice annually. I have absolutely no doubt that this reflects the noble Lord’s considerable experience, as he suggested, as a member of the Independent Monitoring Commission, which reported twice annually while in operation. I am sure that all sides of the House would agree that there should be urgency in tackling paramilitary activity and establishing momentum in this process.
However, as I have outlined, the new commission, while subject to similar governance arrangements, has a different objective and functions from the IMC, as the noble Lord, Lord Alderdice, recognised in his own remarks. The frequency with which it reports must necessarily take account of those different functions. This question was considered as part of the discussions that led to the fresh start agreement, where it was agreed that annual reporting would strike the best balance between ensuring regular and adequate oversight of measures taken to tackle paramilitary activity and allowing sufficient time between reports for progress to be made. Paramilitary activity has unfortunately been a scourge on Northern Ireland society for many years. The measures to be taken to tackle it, on whose impact the commission will report, will not work overnight.
An annual reporting cycle was judged most appropriate to properly measure progress towards the goal of tackling paramilitarism and offer meaningful commentary on the implementation of measures to this end. The fresh start agreement therefore gives the new commission a function to report annually on progress towards ending continued paramilitary activity connected with Northern Ireland, or on such further occasions as required.
Lord Trimble
The Minister says that he is quoting what was said in the fresh start agreement but, as I pointed out, that agreement, while saying “annually”, also clearly anticipated other reports as required. I hope the Minister will come on to that.
Lord Dunlop
I am glad that my noble friend raised that point because I am indeed about to address it. I recognise that the intent behind the amendment of the noble Lord, Lord Alderdice, is to highlight that more frequent reporting may be necessary. To respond directly to the noble Lord, Lord McAvoy, this does not preclude more frequent reports. The fresh start agreement does provide flexibility for more frequent reports, as my noble friend Lord Trimble said, should circumstances mean that this is appropriate, but it does not envisage that this will be the norm. This will, I suggest, allow more flexibility to respond to circumstances that may arise than by prescribing twice-yearly reports. We will discuss the circumstances in which more frequent reporting may be appropriate with the new Irish Government, as soon as it is formed. To address the point on which the noble Lord, Lord Alderdice, sought reassurance, the final agreement establishing the committee is still under discussion with the Government of Ireland. It is our expectation, however, that the sponsoring Governments will be able to request more frequent or ad hoc reports as circumstances dictate.
I turn to the make-up of the commission and Amendment 2, in the name of the noble Lord, Lord Empey. As set out in the fresh start agreement, the commission will consist of four members: one nominated by the UK Government, one by the Irish Government, and two by the Executive. For the purposes of the Bill, in the case of the Executive’s nominees, it has been necessary to confer the power to nominate members on a specific statutory office holder or body within the Executive, as the Executive is not a body under the Northern Ireland Act. Clause 1(4) therefore confers on the First and Deputy First Ministers the power to jointly nominate their members.
The noble Lord, Lord Empey, has proposed that the Northern Ireland Policing Board should be given this power instead. The same amendment was proposed in the other place. The fresh start agreement specified that the Executive should nominate two members to the IRC. I note what the noble Lord has said about the extent of all-party agreement; notwithstanding that, the Northern Ireland Assembly did give legislative consent to aspects of this Bill that we are bringing forward. It is the Government’s view that the First and Deputy First Ministers, acting jointly, are the most appropriate officeholders to nominate members on behalf of the Executive as a whole, in view of the objective and functions of the commission, which go beyond criminal justice. In particular, they have responsibility for delivering a number of the Executive’s measures to tackle paramilitarism on which the IRC will report. Moreover, requiring the First Minister and Deputy First Minister to act jointly—which is how they currently exercise almost all of their powers and, as my noble friend Lord Trimble said, the panel on which the noble Lord, Lord Alderdice, serves has emerged from this process—is intended to ensure a collaborative process and nominees that have cross-community credibility.
The NI Policing Board is not part of the Executive and the amendment proposed would therefore be inconsistent with the terms of the fresh start agreement. However, neither the Bill nor the fresh start agreement specifies how the First and Deputy First Ministers will decide on their joint nominees. They may, therefore, seek suggestions from external stakeholders, such as the Policing Board, and consult with their Executive colleagues in reaching their decision. We would, of course, encourage them to do so. The key point, as I said at Second Reading, is that the four-person commission should collectively carry credibility across the Northern Ireland community. In this vein, as I also said at Second Reading, I welcome the commitment given by Minister Emma Pengelly during the debate on 15 March —in which the Northern Assembly passed a legislative consent Motion for several provisions in this Bill—to consult with the Justice Minister.
This Government are clear that paramilitarism has no place in Northern Ireland society. The new commission will therefore play an important role in tackling paramilitary activity and associated criminality. For the reasons I have outlined, I urge noble Lords to withdraw their amendments and beg to move that Clause 1 stand part of the Bill.
Lord Alderdice
My Lords, I am grateful to all noble Lords who took part in this debate and expressed their strong support for the amendment in my name. I am also grateful for the kind words many of them have said about my own efforts. I hope that the existence of such robust support for Amendment 1 will affect the continuing thinking of Her Majesty’s Government and of the Minister here. I was at least a little encouraged by his saying that there were still negotiations to be had with the Irish Government. That is important, and I have little doubt that I will be making my views apparent to them. I am also a little encouraged by the Minister’s telling the noble Lord, Lord Trimble, that there was more to be said on what the Secretary of State might say and do on regulations, for example. I think we will continue to show interest in that area even after this legislation is passed.
It is very important that the Government understand that it is the relentless pressure that often reaches the successful outcome. The noble and right reverend Lord, Lord Eames, said that we can provide by this process encouragement to those who want to give up, as well as pressure on those who do not necessarily want to. That point has been apparent in my own conversations over the last two or three months. I hope that it will be part of the calculus of Her Majesty’s Government. With that hope, and being a little encouraged by the Minister’s comments. I beg leave to withdraw the amendment.
Lord Lexden
Lord Lexden
My Lords, at Second Reading I raised an issue of terminology in relation to the Bill. The text of it contains four references to Ireland as a state, which led me to wonder how this usage had arisen. Surely in international law the name of the state referred to in the Bill as “Ireland” is in fact “the Republic of Ireland”. I have tabled this probing amendment so that the issue could be explored and discussed.
Twenty-six counties of Ireland left the United Kingdom in 1922 to become the Irish Free State in international law. That state significantly amended its constitution in 1937 and, in 1948, its Government declared their intention to create a republic. The legislation which passed through its parliament is entitled the Republic of Ireland Act 1948. Its purpose was,
“to declare … the description of the state”,
as “the Republic of Ireland”. This Parliament brought itself into line with the new state of affairs when the then Labour Government of Clement Attlee passed the Ireland Act 1949. It stated that the “part of Ireland” which had declared itself a republic would,
“after the passing of this Act be referred to, by the name attributed thereto by the law thereof, that is to say, as the Republic of Ireland”.
So in 1949, an admirably clear state of affairs came into existence. Northern Ireland was plainly part of the United Kingdom and the rest of Ireland, now named the Republic of Ireland, was equally plainly a separate state on the same divided island.
Why depart from that clear position, settled in law by Acts of the United Kingdom Parliament and the parliament of the Republic of Ireland, sometimes referred to in everyday usage as the Irish Republic? As far as I can see, neither country departed from that for many years after 1949. I have been in touch with a number of constitutional experts, for whose advice I am deeply grateful, and they tend to take the same view.
The Government of the Republic of Ireland who signed the European Convention on Human Rights did so in that name; so did the later Government who signed the Anglo-Irish agreement of 1985. Legislation passed by this House which made reference to the Republic used the established legal terminology but suddenly, in an Act passed just 16 years ago in 2000 to amend the Northern Ireland Act 1998, there appears a reference to a Minister of “the Government of Ireland”. How could this have happened? The Ireland Act 1949 defined the name of the 26 counties of Ireland outside the United Kingdom as the Republic of Ireland, not as Ireland tout court.
Was this Parliament asked to approve the change of terminology? I have not been able to trace such approval and, in its absence, three questions immediately arise. Was the change the result of a ministerial decision? Could the change be legitimately made in that way without explicit parliamentary approval? If those were the circumstances, should Parliament reassert the law as defined in 1949? I pose those questions and make no party-political points. I accept that constitutional arrangements evolve but surely they should evolve clearly and openly, with full explanations of changes being provided to Parliament. This probing amendment seeks to draw attention to what seems a not unimportant issue. I beg to move.
Lord Bew (CB)
My Lords, I support the amendment in the name of the noble Lord, Lord Lexden. On Second Reading, he said that it was a terminological point but it is rather more than that, as he has demonstrated today. It is actually a substantive point of some significance. I will draw attention to the fact that the loose use of the phrase “the Government of Ireland” has a bad history. The noble Lord said in his remarks on the Anglo-Irish agreement of 1985, accurately, that in the British text it is defined as an agreement between the Republic of Ireland and the Government of the United Kingdom of Great Britain and Northern Ireland, but there were two texts of this agreement. In the Irish text, the agreement was defined as between the Government of Ireland and the Government of Great Britain.
The consequences of that are really severe for something vital to the whole peace process: the protection, preservation and respect for the principle of consent. When the McGimpsey brothers challenged the agreement of 1985 in Dublin’s Supreme Court, that Supreme Court ruled that it was an agreement between something called the Government of Ireland and the Government of Great Britain, and that any apparent remarks in the agreement of 1985 acknowledging the right of the people of Northern Ireland to determine the status of Northern Ireland were therefore of no substance because it was not clear what Northern Ireland was. It could conceivably have been the case that it was part of the Government of Ireland. This is fairly obviously a spurious argument; none the less, it was so used and accepted by the Irish Supreme Court. It therefore diluted what Her Majesty’s Government thought that they had achieved in 1985: an acknowledgement of the right of the people of Northern Ireland to determine their own future, which exists in the British version of the documentation.
Given the rather difficult history of the loose use of the phrase “Government of Ireland” it seems very surprising that it now not only appears in Irish government documents, which is to some degree understandable, but is starting to appear in the documents of the United Kingdom Government. This is surely a step too far. It has a dangerous prehistory and we need to be very careful about it. I believe that the Irish Government today fully support the principle of consent and that one of the great achievements of the agreement of 1998 was the fact that that support became absolutely explicit through a referendum of the Irish people, passed by a large majority. But having achieved this remarkable development, and therefore the possibility on which the whole peace process rests, we should not be playing around in any of our internal documents by using this loose language, which has such a troubled prehistory.
Lord Kilclooney
My Lords, briefly, I support the amendment in the name of the noble Lord, Lord Lexden. The term “Ireland” is being used very loosely by the present Conservative Government, which is causing great offence to the vast majority of people in Northern Ireland. This error of decision by the Conservative Government has been increasingly noticeable over the past 18 months. Nationally, it is contrary to the laws of this country, as has been said. The Ireland Act 1949 made it clear that the Government in the southern part of our island are the “Republic of Ireland” —nothing else, not “Ireland”. Why are the present Government pretending that the Government in Dublin are now the “Government of Ireland”, because that is causing offence?
It has been stated that, in international law, they are the Government of the Republic of Ireland, but that is not so in European law. When the United Kingdom decided to accede to the treaty of Rome, the southern part of Ireland agreed to do the same on the same day, just as it is suggested now that, if the United Kingdom leaves the European Union, the southern part of Ireland will also leave the European Union on the same day—that is for the future to decide. At the time of accession, it was the Conservative Prime Minister who was there on behalf of the United Kingdom, and it was Mr Lynch, the then Prime Minister of southern Ireland, who was there on behalf of the Republic of Ireland. As they were signing, Jack Lynch said to Ted Heath, “Do you mind if I sign as the Prime Minister of Ireland?”, and the Conservative Prime Minister of the United Kingdom said, “It’s fine, go ahead”. Since that day, the European Union has referred to the southern part of Ireland as being Ireland and, I am sorry to say, it is Ireland in the context of the European Union and its laws.
However, in the context of the United Kingdom and our laws, it is the “Republic of Ireland”, and the present Government are going contrary to the laws of this nation by referring to it as the “Government of Ireland”.
Lord Empey
My Lords, as usual, the noble Lord, Lord Lexden, has an uncanny habit of putting his finger on something that sparks a series of comments.
I am no lawyer or expert in these matters. All I can say is that, when we came to the Belfast agreement in 1998, no agreement would have been reached had the constitution of the Irish Republic remained as it was. We had the issue of Articles 2 and 3, which claimed the territory of Northern Ireland as part of the nation. If I remember correctly, “the island and its territorial seas” was the terminology at the time. Had that remained in place, there would have been no agreement.
A treaty was eventually written to implement the agreement—although it was brought in here as the Northern Ireland Act 1998, there is of course a treaty. The Irish Republic effectively changed its constitution by referendum in 1998 to remove those offending articles. So in terms of our operational day-to-day relationships with the Republic, when we were going to meet Irish Ministers, deal with them and set up bodies with them—which, as the result of the noble Lord, Lord Trimble, appointing me to positions, I had the opportunity to do—it was clear to us that the perceived threat/claim no longer existed from a practical position.
However, the problem was demonstrated by the 1985 arrangements, when there were two separate documents, as was pointed out. There was the question of the United Kingdom being given its full title—the mirror image of this question. This country was not getting its proper legal title from the Republic. We are the United Kingdom of Great Britain and Northern Ireland, as anyone who looks at the passport will see. The Irish state was not legally permitted to acknowledge anything other than Great Britain as part of our national territory. That was where the agreement of 1998 made progress, in that it was then accepted that we are an integral part of the United Kingdom. That had been the missing link and something that we had attempted to achieve. Several noble Lords who are here today were part of that negotiation.
So we have made huge progress. I am not qualified to judge what the international implications of this could be, but we know from dealing with this issue that things can creep in over time to dilute the agreements that we have made, because there are always people who will never give up their ultimate objectives. We know that people have been prepared to kill, be killed and do all sorts of other things to achieve an objective which does not meet with the democratic will of all of the people on the island of Ireland, as was expressed by the 1998 referendum.
Your Lordships will recall that John Hume’s argument always was that, if you got the people on the island to vote, you would undermine the arguments of 1918 and the republican movement, because you would actually get people to vote to accept the position. That was, of course, the whole purpose of the agreement. People were forced into accepting that—through gritted teeth, I suspect—and we got the vote.
I thank the noble Lord, Lord Lexden, for raising this matter, because it brings out whether people truly and actually believe what they have signed up to.
Lord Trimble
My Lords, everything that has been said by the previous three noble Lords who have spoken is significant, and how people feel about things and the language that is used is also significant, but in assessing the legal situation we must bear in mind that Ireland—the Republic of Ireland, the Irish Free State, whatever you want to call it—operates under a formal, written constitution. Here, I am speaking from memory, not having consulted documents to refresh my memory and ensure that it is accurate, which is a dangerous thing to do, but the 1937 constitution, in giving a name to the state, said that the name of the state was “Éire, which in English means Ireland”. That is a nice one to reflect on. That constitution was still in force in 1949, when the state was declared to be a republic, but that was legislation. No amendment was made to the constitution, so in Irish constitutional law, the name remained unchanged.
A noble Lord
Lord Trimble
My apologies. I hope that the microphone caught what I was saying and that the noble Lords could hear it, but I thank the noble Lord for drawing my attention to that. I hope that the noble Lord, Lord Lexden, will not mind if I turn my back to him for the rest of my comments; that is no reflection on him at all.
I was saying that the 1949 Act did not change the Irish constitution, and in Irish constitutional law the name remained unchanged. There is nothing unusual about that, where common popular usage varies from the formal usage. There is a central European state that is always described incorrectly in our media as the Czech Republic. The name of the state is Czechia, but we call it the Czech Republic because we find it difficult to get our tongue around the name Czechia.
The point where we run into difficulties is that the Irish constitution was changed as a result of the agreement in 1998. What the noble Lord, Lord Empey, said about that agreement was absolutely true. But the question then is: did that constitutional change change the name of the state? I rather suspect that it did, but I would like to go and check. Perhaps I will pause at that point and leave the Minister to direct inquiries on our behalf.
Lord McAvoy
My Lords, this is an interesting debate, but I wonder—I might annoy a few people by saying this—about what the noble Lord, Lord Trimble, said about people’s perceptions and about the indication by the noble Lord, Lord Kilclooney, that people feel strongly about this. I always listen very carefully and closely to the noble Lord, Lord Kilclooney, because in his life he has experienced things which, to my mind, give him the right to speak on these issues.
I will pose a question—and maybe run for cover once I have asked it. Does this debate, with some of the things said here today, help the situation in Northern Ireland? Does it contribute to cross-community spirit? Does it allay suspicions? Or does it increase them? Clearly, in 1998 the people of the whole of the island of Ireland voted to accept the status quo, so any change must come through consent—and, as far as I am concerned, the principle of consent is a complete and utter guarantee that any change, if it ever happens, will be through consent.
Unlike the noble Lord, Lord Trimble, I managed to call on somebody to give me some advice on the current position. Article 4 of the constitution of Ireland refers to the country as “Ireland”. Legally, that is the country’s name. We cannot tell that country what to call itself. We in the United Kingdom of Great Britain and Northern Ireland cannot dictate to somebody else what they can call themselves. To suggest that in any formal treaty or any signed agreement between our two sovereign countries we should tell the Irish Government that they should call themselves the Republic of Ireland is surprising, coming from the noble Lord, Lord Lexden.
Lord Kilclooney
I think that the noble Lord is missing the point. We are not telling the Dublin authorities what to call themselves. We are trying to get the present Government of the United Kingdom of Great Britain and Northern Ireland to comply with the law that we created in 1949.
Lord McAvoy
I am contributing to the length of this debate and I should not be. These are international treaties. We cannot tell somebody else how to designate themselves. So I am quite surprised at the noble Lord, Lord Lexden—although I was very impressed that the noble Lord, Lord Bew, weighed in to support him. It made me a bit wary of saying what I said—but, on the other hand, I have said it and I will leave it at that.
Lord Dunlop
My Lords, in rising to respond to this short debate, I will echo the noble Lord, Lord McAvoy, in saying that when we have heard from two very eminent historians, the noble Lord, Lord Bew, and my noble friend Lord Lexden, we should tread very warily—but tread I must.
Amendment 2A relates to a number of clauses in the Bill that deal with the Independent Reporting Commission. As my noble friend Lord Lexden made clear, he raised this issue at Second Reading and I am very grateful to him for giving the House an opportunity to debate it this afternoon. My noble friend has proposed that the reference to “Ireland” in Clause 2(3)(a) should be changed to “Republic of Ireland”. I have known my noble friend for well over 30 years and know that throughout that time his interest in and commitment to Northern Ireland has been constant and steadfast—and his sense of history is unfailing. Having also worked under his tutelage, I can also personally attest to his great attention to important detail.
With regard to my noble friend’s amendment, I can confirm that it has been the practice since 2006 to refer to “Ireland” in international agreements and in UK legislation, and that the references to “Ireland” in the Bill are therefore in line with current drafting practice. Indeed, I think I am right in saying that the legislation that established the IMC in 2003 used the term “Ireland”. So the Government are confident that the 1949 Act does not require the use of the term “Republic of Ireland”.
Lord Lexden
My Lords, this has opened up an interesting and quite valuable debate. It has brought me some mildly critical comments from the noble Lord, Lord McAvoy. In the past his criticisms have been slightly stronger: thus I am grateful to the noble Lord, Lord Bew, for achieving a degree of change. I sometimes wonder whether I will ever be able to produce anything that will appeal wholly to the noble Lord, Lord McAvoy. He even picks me up from time to time on passages that he finds in publications to which I have contributed. Of course, I am extremely grateful for the kind references from my noble friend Lord Dunlop.
The essential point that I would ask the Government to bear in mind is that in 1949, this Parliament voted for a Bill that clearly defined the 26 counties as the Republic of Ireland. This point was stressed by my noble friend Lord Kilclooney. It is important in our documents and laws that the 1949 position should be very clearly borne in mind. I thank all noble Lords who have contributed to the debate and I beg leave to withdraw the amendment.
Lord Empey
“Victims and survivors
In Article 3 of the Victims and Survivors (Northern Ireland) Order 2006, at the end insert—“(3) In this Order references to “victim and survivor” shall not include an individual appearing to the Commission to be any of the following—(a) someone who is or has been physically or psychologically injured as a result of or in consequence of their undertaking a criminal act in a conflict-related incident;(b) someone who was in whole or in part responsible for an unlawful conflict-related incident if that person took part in all or any of the planning or execution of that unlawful act.””
Lord Empey
My Lords, I will take this opportunity first to remind noble Lords of our contributions at Second Reading. The co-called Stormont House agreement is a two-stage rocket. The first stage took place in 2014. Of course, even in 2015 a large part of the discussions rested on legacy issues and not on the issues contained in the Bill. So the Bill is largely devoid of the matters that were discussed for prolonged periods during both sets of negotiations.
I will take this opportunity to thank the Minister for holding a meeting. Sadly, it was in Committee Room 10A, which was far too small and stuffy for the number of people who showed up, but I thank him for holding it. I do not know whether he believes that it served him any purpose—a number of noble Lords are here this afternoon who were there last week to express their views—nevertheless, it gave an opportunity to ventilate on the legacy issues, which the Minister had indicated he hoped to bring before your Lordships at a future date, in a separate piece of legislation. We also have people in this House today, such as the noble and right reverend Lord, Lord Eames, who have a distinguished history of work in this very sensitive area.
As someone who, fortunately, came out of our Troubles without a member of my family or a close acquaintance being directly affected, in the sense of being either killed or injured as a result, I am in a minority, but I know there are still a lot of people who are deeply unhappy that the issues they feel are so significant to them are not being addressed. Consequently, this amendment seeks to amend the Victims and Survivors (Northern Ireland) Order 2006 to make it clear that, if a perpetrator of an act of violence should subsequently try to claim compensation, that they would no longer be eligible. The situation is fairly clear in English law. When a person is responsible for something that is their own doing and that thing is unlawful, it seems perverse that they should then have full access and be treated as being in exactly the same position as the person against whom an act of violence was committed. Effectively, that is what the amendment seeks to deal with.
There is no common view or belief on what is a victim. For a variety of reasons, it has not been possible to get an agreed definition, despite the fact that many people have tried. We understand the rationale for this—that those who were members of paramilitary organisations feel that they have been fighting in their terms a just war, and therefore they see themselves in the same light as we would see veterans of our Armed Forces, for instance. Strange as that may seem to many people, it is nevertheless the fact, and we have to be aware of that. Similarly, the loyalists and republicans felt that they were involved in just wars. But of course, that is not how the law of this country sees it, and it is not unreasonable to see a distinction between someone involved in an act of terrorism—an unlawful act—and a person who was a victim of that particular unlawful act, and treat them differently. That is what this addition to the Victims and Survivors (Northern Ireland) Order 2006 seeks to achieve. I beg to move.
Lord Rogan
My Lords, efforts are increasingly being made by Sinn Fein/IRA to rewrite the history of the Troubles. The forces of the Crown are being portrayed as the bad boys and the bad side and, indeed, have been shown as the perpetrators of most of the violence. The terrorists are being seen as not really to blame—indeed, if it had not been for the British Government’s misrule, they would all have been model, peace-loving citizens. They are attempting to airbrush terrorists and terrorist atrocities out of history, and they portray themselves as victims, putting themselves in the same category as those thousands of innocent victims. This revisionism must not be allowed to happen. There is absolutely no way that someone injured or killed when carrying out an unlawful terrorist incident can be equated with an innocent civilian or member of the Crown forces performing their duties of protecting us.
In giving evidence to the Northern Ireland Affairs Committee yesterday, the victims commissioner stated that some 200,000 persons in Northern Ireland, 12% of the population, are suffering from mental health problems as a result of the Troubles. A disproportionate number of these victims—and these people are as much victims as those with physical injuries—live in areas which were, and in some cases still are, controlled by paramilitaries. Paramilitaries were terrorising and exploiting their own communities—one more reason why no more justification can be given to equate innocent victims with terrorists. I support the amendment proposed by the noble Lord, Lord Empey.
Lord Eames
My Lords, the amendment proposed by the noble Lord, Lord Empey, takes us to the very heart of the legacy issues that have haunted us every time we look back on the beginnings of the peace process. I have no reservation whatever in supporting what the noble Lord, Lord Empey, said, and how he defined the distinction between those who, in uniform and on behalf of society, protected us, and those who took it into their hands, as the noble Lord, Lord Rogan, has just reminded us, and simply thought that they were involved in a just war. There is no comparison. Having said that, I want to express a certain apprehension.
When the report, which I spent so much of my time helping to prepare some years ago, was produced, we had no latitude on the question of the definition of a victim. The survivors order, as it was known, was in existence, and that was the law of the land—as it is. The amendment touches on this and seeks to change it. However, in all seriousness, is this the right place and time and the right legislation to bring about that change?
The Bill before us refers to the months of discussion between the political parties in Northern Ireland on the way forward. If we are to believe that, these terms as we have them before us are the result of that negotiation and discussion. I worry that there are those who would wish to continue the Troubles, not by the gun, bomb or bullet but by the use of manoeuvring and language and manipulation. There are those at present in our society at home for whom the Troubles have not ended; for them, matters have simply moved into a different sphere, and they want to use that sphere in every possible way to achieve their aims. I am concerned that, in the legislative process in your Lordships’ House and the other place, if we should make the slightest mistake in the tactics of when these important issues are produced and brought together in legislation, that will play into the hands of those who will manipulate it for the very ends that I have just mentioned.
Having said that I fully endorse and support what the noble Lords, Lord Empey and Lord Rogan, have just said about the distinction in the term “victim” and the way in which it is used, I urge Her Majesty’s Government to think carefully about the implications of what is being suggested in the amendment, because of its timing and because of the place in which the noble Lord, Lord Empey, suggests that we should make this change. I underline again that I understand the distinction, and the difficulty of distinction, in the use of the word “victim”, but I express caution regarding the legislative process. I speak from constant work among the victims and survivors and after constant work and consultation with the organisations that represent them.
Lord Murphy of Torfaen (Lab)
My Lords, when I was asked to help out this afternoon, I reflected that it is 22 years, I think, since I last spoke from a Dispatch Box on Northern Ireland matters. It is 20 years since the noble Lord, Lord Empey, and I, and many others in the Chamber today, worked on the Good Friday agreement. I have a great deal of time for the noble Lord and for what he said about equivalence, which was echoed by the noble and right reverend Lord, Lord Eames. There is no equivalence whatever between what the Armed Forces of the state do in the performance of their duty to protect our citizens and what terrorists do. Therefore the essence of what the noble Lord, Lord Empey, said was right on that.
The noble Lord, Lord Rogan, was also right to bring to your Lordships’ House the importance of the victims issue. When he spoke, it reminded me of how many people have been affected physically or mentally by the Troubles over the past 30 or 40 years. It is an immense number. However, in the end, I am bound to agree with the noble and right reverend Lord, Lord Eames, about when we deal with this issue. It has to be dealt with, and he, above all, I suppose, has been dealing with this for many years now. I understand from the Government that the reason there are no legacy clauses in the Bill is that there has yet to be agreement among the parties in Northern Ireland on what they should be. I hope that there will be agreement on that over the next months and that perhaps in the Queen’s Speech there will be a Bill dealing with legacy issues. It is probably then that we will have to look at definitions of victims and survivors because it will be the result of intense negotiation and discussion. Therefore, although the Opposition have much sympathy with the points put in this amendment by the noble Lord, Lord Empey, we think the timing should be later and should be the result of discussions in Belfast and of further legislation.
Lord Browne of Belmont
My Lords, this amendment is essentially concerned with the definition or redefinition of a victim. This is one of the most sensitive issues which still have to be dealt with. People who have suffered most throughout years of terrorism in Northern Ireland and throughout Great Britain must be treated in an appropriate and sympathetic manner. They all deserve to have their plight recognised and their voice listened to. It was disappointing that the problem of confronting the past was not resolved during the recent talks, but I am confident and remain optimistic that, after the election of a new Assembly on 5 May, every effort will be made to come a consensus on this matter. I particularly welcome and congratulate the Minister on holding a briefing with all the interested parties. I am confident that in the not too distant future this House will receive legislation to deal with this matter.
I should make it clear that my party believes that the definition of a victim is wrong and needs to be looked at and possibly changed. As part of those plans, the party proposes that the perpetrators of violence during the Troubles are not defined as victims. The Victims and Survivors (Northern Ireland) Order 2006 makes no distinction between paramilitaries who were killed or injured and other victims. It is therefore important at some stage to look at possibly narrowing the scope of the definition of a victim. I want to see the peace process moving on and a Northern Ireland that puts the past behind it, but in dealing with the past, it is important that we should not be prepared to countenance a rewriting of the Troubles whereby the perpetrators of acts of terrorism, whoever they are, are placed on a par with the thousands of people who were killed or maimed.
Lord Dunlop
My Lords, I welcome the noble Lord, Lord Murphy, to the Dispatch Box. He played a very significant role in Northern Ireland, and it is great to see him speaking from the Dispatch Box.
Before I address the amendments, it has already been mentioned that organisations that deal with the legacy of the past may be the subject of legislation in future, but only if sufficient consensus can be established among the Northern Ireland parties. Amendments 3 and 5, tabled by the noble Lord, Lord Empey, relate to the definition of a victim in relation to the role of the Commission for Victims and Survivors. Before I engage on the detail of these amendments and the challenges that they pose, I first make clear that the Government are sympathetic to the import and feeling behind them. Noble Lords will be aware that the definition of a victim in Northern Ireland is a matter of considerable contention. It is a matter that has been debated in this House before—indeed, I think the noble Lord, Lord Empey, tabled a similar amendment to the Northern Ireland (Miscellaneous Provisions) Bill in November 2014—and it remains an area of disagreement between the Northern Ireland parties that is yet to be resolved.
The legislation defining a victim in the context of legacy matters in Northern Ireland relates to the work of the Commission for Victims and Survivors. Under that order, which is now a devolved responsibility, the term “victim and survivor” is defined as a person appearing to the commission to be physically or psychologically injured as a result of a conflict-related incident, or who regularly provides substantial care for such a person, or who is bereaved as a result. This is a broad definition and can include persons who are psychologically injured as a result of being a witness to an incident or of providing medical or emergency assistance to a person in connection with an incident.
The placing of restrictions on the definition of a victim is a difficult and complex issue affecting access to services for those who have suffered losses during the Troubles. However, let me be clear again that the Government believe that there is an unquestionable distinction between innocent victims and perpetrators. As my right honourable friend the Secretary of State said in February:
“The terrorist campaigns caused untold misery and suffering”,
and we will never accept any equivalence between those who sought to defend democracy and those who attempted to destroy it.
Under the current definition, it is possible for someone who was a perpetrator of violence or their family member or carer to be defined as a victim and to benefit from the commission’s assistance. The Victims and Survivors (Northern Ireland) Order 2006 was passed by the previous Labour Government, and the definition remains highly controversial, with the Northern Ireland parties divided on the issue. The lack of consensus around the definition of a victim is one of the key challenges in dealing with the past, and the issue has not formed part of the two agreements reached in recent cross-party talks: the Stormont House and fresh start agreements.
As I mentioned previously, this legislation is now a devolved matter and therefore the responsibility of the Northern Ireland Assembly. Accordingly, any change to the definition would require cross-community support in the Assembly, and at present the issue is not one on which the Northern Ireland parties have been able to agree a way forward. Even if the Assembly were currently sitting, I doubt that a legislative consent Motion would be agreed enabling this Parliament to change the definition.
Noble Lords will be aware of the significant progress that has already been made on legacy issues during the Stormont House talks towards the end of 2014. It included the Northern Ireland Executive agreeing the Victims and Survivors Commission’s recommendation for a new mental trauma service, better to meet the needs in this area. Advocate counsellor assistance was agreed for victims and survivors in order to provide support and help to individuals in accessing relevant services.
When it comes to the past, and I recognise that many noble Lords have strong views on how best to deal with it, it is clear that victims should be our first priority. These commitments in the Stormont House agreement have the potential to deliver better outcomes for victims and their families. The delivery of the Stormont House agreement still represents the best chance of making progress on these matters and remains the Government’s priority in dealing with Northern Ireland’s troubled past.
My noble friend has made an argument on the issue of victims with which it is easy to sympathise. As I have made clear, the Government agree that there is a clear distinction between innocent victims and perpetrators. However, the matter is one that I am sure noble Lords will agree is best resolved by the political parties in Northern Ireland, and on that basis I urge my noble friend to withdraw his amendment.
Lord Empey
I am obliged to the Minister for his response. I would point out to the noble and right reverend Lord, Lord Eames, and others that I and my party will take any legislative opportunity that we can to put this case forward. It should be drawn to people’s attention that the current legislation was introduced during direct rule. Had there been devolution at that time, there would not have been agreement on the current order because it does not do what it says on the tin. For that reason, we would object strongly. The reason why this Parliament has a role is its oversight over some of the fundamental issues. I still believe that while this particular legislative vehicle may not be the most appropriate, it is nevertheless possible to resolve this because it is such a fundamental issue.
The Minister says that Stormont has this responsibility today, but I can tell him that had Stormont been dealing with things at this stage in 2006 it would never have agreed to this particular set of proposals, because they leave the door wide open. They do not distinguish between a perpetrator and victim; in fact, they make the perpetrator and the victim equal. That is what the order says, and my amendment seeks to change that.
I understand the dilemma that the Minister is in. We can run away from this issue as much as we like but sooner or later we are going to have to confront it. Whether in this vehicle or some other vehicle is unimportant, but I personally and my colleagues in my party will take every legislative opportunity that comes our way to put this case until the matter is resolved. Having said that, I beg leave to withdraw the amendment.
Lord Empey
“(5) Standing orders must provide for a process for investigating any alleged breach of the undertaking by any member of the Assembly and for determining whether the undertaking has been breached.(6) Standing orders must provide for sanctions that shall apply to any member of the Assembly who has been found to have breached the terms of the undertaking.”
Lord Empey
My Lords, this amendment was moved in the other place. It is on the back of the fact that a series of pledges were included in the Stormont House agreement, to which people were asked to commit before they took office as Ministers and Assembly Members, relating to a series of things that I have no difficulty with, although I said at Second Reading that I had little faith in commitments because I thought some people would sign anything, and the history over the last 30 years was that they did so. We had issues at local government level where people had to sign, pledging to a peaceful way forward, when we knew that they had no intention of doing so. Still, the language in some of the pledges is quite positive and a step forward.
However, if there is a breach of those undertakings, no sanction whatever is provided for. The point was made repeatedly in the House of Commons from all parties, including the Labour Party, that there were gaps here that should be filled. I suggest that we make it clear that Standing Orders should be provided in the Assembly saying that if a person is clearly guilty of a breach of these undertakings, something happens. At present, nothing happens. What will happen in practice is what has happened before: even where someone is in breach or is challenged over their behaviour in the current Assembly, the party of which that person is a member puts down a petition of concern, if it is in a position to do so, which means that nothing happens. That means we can have the best form of commitments and statements of commitment to pursue peaceful means and all the rest of it, but at the end of the day nothing can be done in the Assembly to have any impact or effect any change. That point was made repeatedly in the other place. It makes sense if you have a series of commitments that people are being asked to make. What is the point of asking them to make those commitments if, when they breach them, absolutely nothing happens?
Lord Rogan
My Lords, Clause 7, which deals with the pledge of office, has seven objectives. The first six are so self-evident that no government Minister in any democracy would not adhere to them whether or not they had taken an oath or a pledge. However, the seventh pledge in new paragraph (ck)—
“to accept no authority, direction or control on my political activities other than my democratic mandate alongside my own personal and party judgment”—
is somewhat different and indeed significant, given that the IRA Army Council still exists and that we were led to understand that it directs political Sinn Fein.
The Secretary of State has clarified in another place that an individual who refuses to give the undertaking will not be able to participate in Assembly proceedings or receive any of the privileges of office or salary. That is very welcome but somewhat different from what applies to Sinn Fein Members of the other place, who refuse to take an oath of loyalty to Her Majesty yet suffer no loss of salary or expense. We have a situation whereby a sanction and penalty for refusing to give an undertaking is in place, but the glaring omission in the Bill is that there is no process for investigating or, more importantly, providing sanctions for those who breach their undertaking.
Not all politicians may be as honourable as noble Lords. A process for investigating an alleged breach of the pledge would be helpful. Surely some penalty must be administered to those who wilfully break it, perhaps after being given orders from a six-man Army Council. I support the amendment.
Lord Trimble
My Lords, I indicate my support for this amendment, which, as my noble friend Lord Empey says, was tabled in the other place and debated there. I think it was tabled by Sylvia Hermon, the Member for North Down, and it is a very sensible provision. What is the value of these pledges and undertakings if they can be disregarded? There has to be some form of penalty or sanction available in the event of the undertakings not being honoured.
At Second Reading, the Minister gave two reasons why the amendment was not accepted. The second of the two reasons was to refer to established mechanisms by which the Assembly holds its Members to account, including adherence to the Assembly code of conduct and so on. This is like asking IPSA to take on such a highly political job as deciding what sanctions to apply to Members who take directions from paramilitary and terrorist organisations and so on. That is not a terribly good reason to give for not accepting this. The other reason the Minister gave was that:
“The Government are firmly of the opinion that it would not be appropriate for us at Westminster to pre-empt the Assembly’s own consideration of this issue”.—[Official Report, 12/4/16; col. 225.]
I can understand that—it sounds reasonable enough—but you then have to bear in mind that the likelihood of the Assembly agreeing to significant sanctions as things stand at the moment is round about zero, and maybe even less than zero. Therefore that, too, is not a good reason.
I also add a rider to say that one of the things that disturbs me about our Government’s attitude to the devolved Administrations—it is not just in Northern Ireland but comes across in their attitude to the Scottish Parliament and the Welsh Assembly—is that an exaggerated view of their position runs through all of this. This is the sovereign Parliament of the United Kingdom. We have devolved matters, but power devolved is power retained. At the end of the day responsibility in all these matters rests with Her Majesty’s Government. For the Government to say, “Oh, we’ll leave it up to the devolved Administration” might sound appropriate and diplomatic but it gives far too exaggerated a view of it. To see how at the end of the day that puts you in difficulty, just look at the history of Stormont. The same exaggerated view of Stormont’s position from 1922 onwards was taken by this House, and the result of that was not good in that it led the central Administration not to pay proper regard to what was going on and not to involve themselves in what was going on. If Government here had paid closer attention to it, we might have avoided the Troubles. That is a small point, but I hope the Minister will bear it in mind.
Finally, I understand the Minister’s desire to be diplomatic, on the basis that he is only being diplomatic, and I realise that it will not be possible to accept the amendment without losing the Government’s timetable to get this out before the end of the Session—and that is fine. Can the Minister then change his language slightly when he says that he will leave it to the Assembly to see what it does with regard to it? However, if the Assembly fails to take action on this matter, the Government will have to consider what they do.
Lord Browne of Belmont
My Lords, I support Amendment 4, proposed by the noble Lord, Lord Empey. As I have said before, Northern Ireland goes to the polls on 5 May and it is only right that anyone who engages or supports paramilitarism should have no place in a democratic institution. Newly elected Members will thus be obliged to give an undertaking to abide by the principles outlined in Clause 8 and Schedule 2.
I fully concur with the noble Lord, Lord Empey, that it is only right and proper that, when a Member of a legislative Assembly gives an undertaking and then is seen to breach that undertaking, within Standing Orders there should be a robust mechanism, first, to enable an investigation of any alleged breach of the undertaking, and, if proved, surely there should be sanctions that can be enforced. Otherwise, the undertaking those Members take will be meaningless. If not, the public in Northern Ireland will have little confidence in their elected Members and in the operation of the Northern Ireland Assembly.
Of course, it is only right that the Northern Ireland Assembly should prescribe the nature of the sanction, but surely, as we have heard from the noble Lord, Lord Trimble, it is for the sovereign Parliament to ensure that the Standing Orders of the Northern Ireland Assembly reflect the need for such sanctions.
Lord Murphy of Torfaen
My Lords, again, I express a lot of sympathy with what the noble Lord, Lord Empey, and other noble Lords have said with regard to this amendment. There is no doubt that, if you have a pledge of office, there is not much point in having one unless you can enforce it. Your Lordships will recall that, during the course of the talks which led up to the Good Friday agreement, both Sinn Fein and a paramilitary party were excluded from them because they were seen to breach a similar sort of pledge. Therefore, in a way, this has run through negotiations in Northern Ireland politics for a long time.
I agree with the noble Lord, Lord Browne, that this is an issue of public confidence. There is no point in having the pledge, as the noble Lord, Lord Empey, said at Second Reading, unless it is enforceable. However, at the same time we know, and the Minister will undoubtedly tell us, that the Bill needs to go through quickly because of the election and other reasons. Therefore, how do you deal with a situation which is significant but which you are reluctant to legislate on because of the necessity of having to deal with it quickly?
I take the point made by the noble Lord, Lord Trimble, who was absolutely right that there are other ways of dealing with this. That is, the Secretary of State and Minister can return to Northern Ireland at the point when further discussions are held on these matters, ensure that the debate is held here and in the other place, and that there is cross-party support for the need for Standing Orders to express a view that, if the pledges are breached, there should be some method by which you can enforce some sort of punishment. What that would be I am sure would be a matter for great debate and negotiation, but it has to be addressed. Otherwise, the pledges are hollow and meaningless.
It seems to me that, during the course of the negotiations that led up to the fresh start agreement, people accepted the idea that there should be a pledge—obviously, it would not be in front of us otherwise. I am sure, although I do not know, that they must have talked about the enforceability of sanctions. So the ball is now in the Government’s court, and although it is not practical or feasible for this legislation to deal with it, it is practical and feasible for the Secretary of State for Northern Ireland to go back and talk with the political parties and try to get agreement.
Lord Dunlop
My Lords, this has been a short but important debate. Clause 8 makes provision for a new undertaking to be given by all Members of the Northern Ireland Assembly, in line with the fresh start agreement. To be clear with the Committee, it was necessary to introduce this undertaking through Westminster legislation because the Assembly is prohibited by the Northern Ireland Act from introducing a requirement for its Members to make an oath or declaration as a condition of taking office. The Assembly has established mechanisms for holding MLAs to account for their adherence to the existing Assembly code of conduct, through the Assembly Committee on Standards and Privileges and the independent Commissioner for Standards. The Assembly already has the power to introduce measures to investigate alleged breaches of the undertaking and to impose sanctions for any such breaches.
The amendment in the name of the noble Lord, Lord Empey, assumes that Standing Orders would be the obvious vehicle for introducing any such measures, but this is not necessarily the only vehicle. For example, it may be open to the Assembly to legislate. There may of course be other options, and it is right that the Assembly should be able to debate and explore the available options for itself. Indeed, the whole issue of devolution was mentioned by my noble friend Lord Trimble. There is considerable value in the Assembly and not this House determining how MLAs should be held to account for any breaches of the new undertaking, just as this House holds its Members to account for their behaviour. Any such measures would of course need to be built upon cross-community support in the Assembly, and it must be right that Assembly Members should be subject to scrutiny for their conduct.
To answer the noble Lord, Lord Murphy, the Government will of course encourage the Assembly to consider carefully how this might be achieved. However, for the reasons I have given, I urge the noble Lord to withdraw this amendment.
Lord Empey
Once again, I thank the Minister for his comments and thank other noble Lords who have participated in this. As with the Minister, it is great to see the noble Lord, Lord Murphy of Torfaen, at the Dispatch Box once again. He knows his onions when it comes to this subject.
The Minister is right that Standing Orders may not be the only mechanism. I do not care what the mechanism is, to be honest. The simple point—the noble Lord, Lord Murphy, put it very clearly—is that these pledges mean nothing if they can be ignored with no consequence. That is self-evident. The Minister hinted to us that he intended to bring forward another piece of legislation in the next Session, perhaps to deal with legacy and other matters. There will therefore be time for the Assembly to address this issue, and I welcome that, but there will also be time for the Assembly not to address it. However, I think that we, and the Government, will be provided with an opportunity and the time to get this matter resolved. If it is not resolved, it will continue to fester.
If I may paraphrase MacArthur, I assure the Minister that we shall return to this matter if it is not resolved. On that basis, I beg leave to withdraw the amendment.