Northern Ireland (Stormont Agreement and Implementation Plan) Bill
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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 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 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 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.