Northern Ireland Troubles (Legacy and Reconciliation) Bill
Tuesday 24th January 2023
(1 year, 10 months ago)
Lords ChamberNorthern Ireland Troubles (Legacy and Reconciliation) Act 2023 View all Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 37-I Marshalled list for Committee - (20 Jan 2023)
Lord Caine
That the House do now resolve itself into Committee.
Amendment to the Motion
Baroness O'Loan
At end insert “but that the House should not be invited to read the Bill a third time until the Northern Ireland Assembly has agreed a Legislative Consent Motion in respect of the Bill”.
Baroness O'Loan (CB)
My Lords, policing and justice were devolved to the Northern Ireland Assembly in 2009, years after other areas of governance. How to handle Northern Ireland’s legacy of pain has been a source of contention for decades, for reasons which are well known. Despite that, agreement was reached in principle in the Stormont House agreement of 2014, the terms of which were compliant with all international legal obligations and the rule of law, of which the UK is so proud. For a variety of reasons, the Northern Ireland Assembly has not yet legislated a way forward, although the content of the agreement is largely accepted in Northern Ireland. We do not have an Assembly at the moment, the reasons for which your Lordships are very well informed about. However, in July 2021, a Motion rejecting the proposals contained in the Government’s Command Paper on legacy, which led to the Bill now before your Lordships’ House, was passed without any dissent by the Northern Ireland Assembly; the Motion was accepted by the Assembly.
When the Government legislate on a matter which has been devolved, the Sewel convention—of course, it is only a convention—requires that the Government seek legislative consent from each devolved Administration affected by the legislation. There has been no legislative consent Motion from the Northern Ireland Assembly for the Bill we will discuss today. My amendment to the Government’s Motion is very simple: it requires that a legislative consent Motion be secured before the Bill goes to Third Reading.
The reasons for that are equally simple. The Bill has been rejected by every political party in Northern Ireland and by the churches, victims’ groups and other individuals, human rights organisations, the Northern Ireland victims’ commissioner, victims’ organisations—such as the cross-community group WAVE, which has done magnificent work to help those who have suffered so grievously during the Troubles—and veterans’ organisations. The Minister has himself admitted that he has not met anyone who actually wants it to be enacted; he has encountered constant opposition to the Bill. It has been seriously criticised by the chief commissioner of the Northern Ireland Human Rights Commission, whose role is to advise government, because it is not compliant with the UK’s international legal obligations or with the fundamental precepts of the rule of law. There has been a total failure to consult victims and survivors properly and to respond meaningfully, even at this stage, to their very real objections and concerns.
The Government and the Bill have been seriously criticised by the Council of Europe Commissioner for Human Rights, the Council of Europe Committee of Ministers, the Irish Government, the United States State Department and UN special rapporteurs, who warned that the Bill would place the UK in flagrant breach of its international human rights obligations. Last Thursday, the UN High Commissioner for Human Rights criticised it in trenchant terms, and, again, Members of the US Congress wrote to the Prime Minister about this yesterday, I believe. The Bill deprives survivors and victims of the Troubles of their fundamental legal rights. The Government’s legal obligations under these measures are being set aside in the Bill.
Viscount Hailsham (Con)
My Lords, I shall speak very briefly to the amendment moved by the noble Baroness, with which I am bound to say that I have very great sympathy, although for different reasons from those advanced by the noble Baroness. I would like the Assembly to consider the propriety of the linkage between what is, in effect, an amnesty and the establishment of and participation in the commission. I happen to think that those are wholly different issues and should not be linked.
As it happens, I am an agnostic on the question of the commission, but I am not an agnostic on the question of a statute of limitations—an amnesty. I feel very strongly in favour of it. There should be a statute of limitations to preclude prosecutions in respect of any crimes alleged to have been committed and connected with terrorism prior to the Good Friday agreement. There are a number of pragmatic reasons for that, which I am not going to trouble noble Lords with, but there is an essential concern that I have: I believe that it is offensive and a serious abuse of process for servicemen to be prosecuted for alleged offences while at the same time many people who have been, or are alleged to have been, involved in the commission of terrorist offences have been admitted to high political office. I find the letters of comfort offensive if servicemen are to be prosecuted. I look at Mr Martin McGuinness, who served as Deputy First Minister; it seems that he did participate in serious offences. Given all that, can it be right to prosecute servicemen, when in all probability their level of culpability is lower?
It is in my view an abuse of process to do so, and it is for that reason that I want to see a statute of limitations that covers all offences. I do not think that it is possible, in law or practice, to make a distinction between those who are alleged to have been terrorists and servicepeople. I do not think that that distinction is possible, so it has to be a general statute of limitations. I would like the Assembly to discuss this matter, although I am bound to say that I think that the outcome is likely to be different from that which I would wish.
Lord Eames (CB)
My Lords, in producing this amendment, the noble Baroness is representing the widespread frustration that exists in Northern Ireland in the light of this proposed legislation. Speaking from my experience and years of service to Northern Ireland, I have never come across such widespread opposition to a proposal such as this as is the case today. A lot of that frustration, I have to say to His Majesty’s Government, is caused by their failure to produce the amendments to this legislation that they had promised. They made a solemn promise to this House and the other House that they would take very seriously the expressions of frustration that many of us had brought to the Floor of this House and to the other place. We are disappointed in the result and the failure to fulfil that promise.
The failure of this legislation to have at its heart the needs of survivors and victims and their families and loved ones is a total disaster. Because of the way this new commission is proposed to operate, many people in Northern Ireland are going to be denied justice and denied the opportunity to be heard. I speak from many years’ experience of pastoral service to the people of Northern Ireland when I say that this is nothing less than a tragedy.
It is for those reasons that so many of us have a lot of sympathy with what the noble Baroness has said. No one knows better than she does, from her public service, what the feelings of opposition amount to in Northern Ireland at the present time. I appeal to those noble Lords who have serious concerns, who do not live in Northern Ireland, who have not experienced what we have come through; I appeal to them to see the opposition to this legislation as a matter of right and wrong, for it is, I believe, verging on a moral issue.
Viscount Brookeborough (CB)
My Lords, I want to say briefly why I support this amendment. I must declare an interest in that I am a military veteran who served for a long time in Northern Ireland and members of my family were in the police.
Veterans are, inevitably, really against the Bill, but I think one ought to accept that veterans are not just people like me and not just their families: they are our societies. If you take rural areas like where I come from, a village or a locality, those societies have become veterans of the Troubles. If you do not live there, you do not know how completely the lives of everybody who wanted peace were changed. It is not restricted to the brothers, sisters and parents who waited for their family members, whether they be police, prison officers or simply, like one of my soldiers, driving a lorry that was providing cement to build security posts. This is not a funny thing where people were in the Army or the police, now they are out of it and it is all finished: this is a whole society, and it really affects people. They are 100% against this, as are other victims who may not be totally related at that stage.
Imagine a small village. In one case, one of my soldiers drove a school bus. The noble Baroness, Lady Foster, is not here today, but she was a child on that bus. One of my soldiers drove it and he kept the bus at home: it was the most secure place. He searched under the bus every morning. His son helped him do so. They watched them do it. The place that was most difficult to search was behind the engine block on the other side. They put the bomb there. He got into his bus, he drove for a distance, he picked up children and the bomb went off. Luckily, the noble Baroness was towards the back. One of my other soldiers, plus one of the children and others who were on the bus, were injured. That child nearly lost its arm. But the next year, my soldier and his son committed suicide, because he had not searched the bus. So this is not just about veterans, but this Bill is seen as leaning the other way, and that is that.
It is an opportunity for Sinn Féin and the terrorists following, or whatever, to investigate the records that were kept by the police of every incident, through records of everything. But on the return side, there is not so much as a written note on a cigarette packet; that is how they planned their business, because at road checks, they could be searched, so they wrote it on little pieces of paper. Those are all gone. I ask Members of this House to remember that this is not something far away; this is part of the United Kingdom. It is whole societies that have been wrecked, and now this is putting the cap on the whole thing.
Lord Dodds of Duncairn (DUP)
My Lords, I too would like to thank the noble Baroness, Lady O’Loan, for tabling this amendment to the Motion to move into Committee. It provides us with the opportunity to once again ask the Government to consider very carefully how they wish to proceed, given the level of opposition that there is to this Bill, which has again been laid bare in the contributions that we have heard from those from Northern Ireland already this afternoon.
The Minister, about whose personal integrity I have no doubt whatever, is fronting for the Government on this issue, and he did give a commitment that the Government would take their time before proceeding, or would move very carefully and consider amendments —and some amendments have been forthcoming. But I would urge the Minister to think very carefully about what has been said already, and also what has been said over the previous months since the Bill was published.
We have been told repeatedly throughout the period of what is euphemistically called “the Troubles” that the victims should be at the centre of any process which is about legacy, truth recovery, justice and so on. It is very clear that victims have been treated abominably by this Bill and by this Government, and that is a terrible thing to have to say about a Government who are committed to the union—although their actions in recent times, both in the protocol and on this, would cause many unionists to doubt what exactly is now going on with the Conservative and Unionist Party. It is certainly not the case for all members of that party, and certainly not all parliamentarians, but at the centre there is something deeply and fundamentally wrong with how Northern Ireland is now being treated as part of this United Kingdom. This is one of the most egregious examples of where victims and their views are being set aside. There is universal opposition, yet this Government are intent on proceeding.
I appeal to the Government: listen to the victims. We heard the noble Baroness mention various organisations, institutions, foreign bodies, and all the rest of it, and I have respect for very many of them. However, I do make the point that some of these people now speaking out against this Bill supported, against the views of victims in Northern Ireland, the proposals to reduce the length of any sentence on conviction of the most heinous terrorist crimes, some of which we have heard about just now, to two years, and to allow those who have already served two years to walk free. Regardless of that, we should listen to the victims and, even now, pause, and urge the Government to withdraw and not move into Committee.
Victims have listened very carefully to the voices that have been raised in opposition to this Bill, and among the voices that have been raised are the voices of the victim-makers. We have the appalling situation where the representatives of terrorist organisations, who glorify and eulogise murder and the murderers—I am talking about Sinn Féin—have the audacity to come out and use this piece of legislation to bash the Government. Their support for victims is mock support: it is a pretence. Their agenda is completely different. They are pocketing the concession for their members, and those who carried out violence, then turning it to bash the Government.
So the Government cannot win on this. They are in the invidious position of doing something that has no support across the board. Therefore, I urge them to withdraw the Bill. They need to counter the twisted narrative of the Troubles that is out there, and to be more proactive in terms of the balance of the past. There is a widely shared view in Northern Ireland that there is an imbalanced process, where the story of the terrorists and their organisations is continually played out in the media. We have had some examples of that even this week—but where is the balance, with the countless thousands of families, their extended families and their communities and neighbours who were terrified daily by the threat of terrorists living among them, spying on them and betraying them at their work?
I do not advocate looking at Twitter too much, but I urge noble Lords to look at one that talks about “on this day” and an atrocity carried out by the IRA almost every day. It details the normal day-to-day activities of ordinary people going about their daily business—dropping their children at school, driving a bus, being in a bakery, carrying out a profession—who were murdered. They were cut down by terrorists who now claim that they have the right to talk about human rights and lecture everybody else about them. The Government are doing those people, their relatives and their kith and kin such a disservice. Therefore, I urge the Government and the Minister to think again at this stage.
Baroness Ritchie of Downpatrick (Lab)
My Lords, as a Member of this House coming from Northern Ireland, having represented a constituency in the other place, I—like others from Northern Ireland—have met many victims. The Troubles have imbued the lives of all of us from Northern Ireland because, in some way, we have been deeply affected, either by the deaths of loved ones or neighbours or by the destruction of property. All of that has left many victims searching for truth recovery and justice. The ordinary people I am talking about feel that the Bill robs them of their opportunity to access justice, investigations and inquests which they believe, quite rightly, is their right.
I agree that there should be a pause placed on the Bill and that the Government should go away and think again—and think in terms of the Stormont House agreement. We said this at Second Reading, but other things have happened since then. Other organisations in the human rights field have raised important considerations to be taken into account. The European Commissioner for Human Rights, the UN High Commissioner for Human Rights, the victims’ commissioner and the Northern Ireland Human Rights Commission, which has a statutory responsibility in all of these areas, have all highlighted the faults in the Bill and the fact that the very premise on which it is based—immunity from prosecution—goes against the very heart of what the UK democratic system should be about, and what we as Members of your Lordships’ House should be fighting for.
I can understand what the noble Baroness, Lady O’Loan, is talking about as a former Police Ombudsman for Northern Ireland, and what the noble and right reverend Lord, Lord Eames, said, as he was part of the Eames-Bradley commission which looked into this area in detail with a microscope. There is no doubt that the deaths, injuries and massacres have caused immense pain, whether to members of the security forces or to people on whatever avenue of any political perspective or whatever location they came from on the island of Ireland, as well as here in Britain. People suffered pain and anxiety and were deeply affected.
I believe that the fulfilment of rights and the rule of law must be central to the legacy process. That goes to the very heart of the Bill; immunity from prosecutions and the prevention of civil actions will not deal with what was already agreed in the Stormont House agreement and will not bring peace, justice and reconciliation. I firmly ask the Minister, who was involved with Stormont House and many other agreements to do with victims and legacy in Northern Ireland, to go back to the drawing board and the Stormont House agreement. The Bill, with the amendments, and particularly the government amendments that we will deal with later, is an exercise in denying justice. It will breach the European Convention on Human Rights and threaten the Good Friday agreement. It is bad for justice, for human rights and for the thousands of people who lost loved ones, who were injured during the Troubles, or whose property was destroyed, and who have very bad memories of what happened to them, their families, their communities and their colleagues.
Lord Alton of Liverpool (CB)
My Lords, at Second Reading I made clear my own distaste for the Bill and pleaded with the Government not to proceed to Committee or Report. Of course, it is open to the Government at any stage to pull the Bill and to suspend our proceedings. My noble friend’s amendment does not do that; it says that we will proceed with Committee in the normal way. However, it says that before giving the Bill a Third Reading—which is also open to us to decide as a House—we would have a chance to pause it in the way that the noble Baroness, Lady Ritchie, the noble Lord, Lord Dodds, my noble and right reverend friend Lord Eames, my noble friend Lord Brookeborough, and the noble Viscount, Lord Hailsham, have argued in our proceedings; it would be wise for this not to go on to the statute book. This would be a way to do that.
I was grateful to the Minister for the invitation he offered to Members of your Lordships’ House to attend one of his briefing sessions—I think everyone in this House admires the diligence which he applies to his duties. However, during that meeting I had to reiterate my view that it is unwise and unnecessary to proceed with a Bill that, as we have heard again today, has united all shades of opinion in Northern Ireland and beyond.
One of my own principal reasons for opposing further progress on the Bill at this time is that, as we have heard, it has not been laid before the Northern Ireland Assembly, which is non-functioning, and so has not been considered by it. That contributes to the emasculation of power-sharing and devolution, and places in jeopardy one of the most important building blocks of the Good Friday agreement: the very formula which allows people from divergent and different parts of the community to live alongside one other and learn to honour and value each other’s traditions and experiences. Again, I plead with all sides that the Assembly be restored as soon as is humanly possible. Anything which smacks of victors or vanquished will lead to alienation and hostility, and potentially worse, which is why no effort should ever be spared to revive and restore the Northern Ireland Assembly.
I know that some would welcome the death of power-sharing and devolution and are ready to impose Westminster-baked solutions on Northern Ireland. That flies in the face of subsidiarity, is disrespectful of diversity and risks the gains which have been made. We need changes of heart and mind, not ill-considered legislation. For those reasons alone I support the amendment to the Motion that my noble friend has laid before your Lordships’ House.
Lord Cormack (Con)
My Lords, during my time as chairman of the Northern Ireland Affairs Committee in another place I came to know, respect and admire a lot of people, none more than the noble Baroness, Lady O’Loan—a Roman Catholic of deep faith and a police ombudsman of utter impartiality—and the man who had been Primate of All Ireland, the noble and right reverend Lord, Lord Eames, who is respected and indeed loved by people throughout the island of Ireland. They have both made very powerful speeches today, and we should reflect very carefully on what they and others have said.
But we are dealing with thousands of human tragedies, and this terrible legacy, without the input of the devolved Assembly in Northern Ireland. I want to make a plea to the party politicians in Northern Ireland: for goodness’ sake, come together and discuss. It is absurd not to because of one issue over the protocol, important as it is. They have not even discussed that. There is an Assembly, it has been elected, and an Executive could be appointed within 24 hours of its meeting. In my view, it is very important indeed that, before we go very much further forward with the Bill, the Assembly comes together and recognises its constitutional responsibility to the people of Northern Ireland to make its views known on all issues of importance to them.
Of course, the amendment moved by the noble Baroness, Lady O’Loan, would allow this House to proceed, as the noble Lord, Lord Alton, said a moment or two ago. On balance, I think she is right to do that, because we have a constitutional duty too. But for the Bill to pass on to the statute book without a proper input from Northern Ireland would be, to put it very mildly, deeply unfortunate. So I hope that our friends and colleagues who have influence over the Members of the Assembly, as many do, will urge them to come together and discuss. Of course, they will not agree on everything. Of course, there will be vigorous debates on the protocol. But that is the purpose of a democratically elected body.
My noble friend the Minister’s behaviour has been exemplary: he listened carefully to all that was said on Second Reading, indicated his own discomfort with the Bill—I do not think that anybody could be comfortable with it—and promised to come back with some amendments. He has done that. He is an honourable man. He knows and cares more about Northern Ireland than most people who do not live there. He has spent much of his life there and has given much of his professional career to serving its people.
We have a good Minister, a decent man, with a bad Bill. I do not think that anybody disputes that. But I think that what the noble Baroness, Lady O’Loan, said was wise and sensible. We ought to resolve that this will not go on to the statute book until the Assembly in Northern Ireland has met. It must not continue to abdicate its responsibilities. It has a duty to the people who elected it, to serve them.
So, really, the substance of my brief remarks is to appeal across the Irish Sea, to a very beautiful part of the United Kingdom which I got to know well and love deeply: please do not continue to neglect your democratic responsibilities. Let us have your views on this Bill. I suspect that they will not be very different from most of ours.
Lord Dannatt (CB)
My Lords, I realise that I run the risk of striking a discordant note in this afternoon’s debate, and I very much understand the widespread criticism of this Bill from virtually every quarter that has been identified. However, I choose to identify with the remarks made earlier by the noble Viscount, Lord Hailsham, and take issue with just one of the comments made by the noble Baroness, Lady O’Loan, when, in the list of those opposing the Bill, she mentioned veterans.
Veterans are not a homogenous group; veterans come in very different categories. I feel that this debate would be lacking if someone did not speak for UK-based veterans who, for 38 years, served and did their duty, in the main, to the utmost of their ability. Yes, of course, there were tragedies, and errors were committed by the British Army. We know what they were, and I am not going to go into those; but the vast majority of soldiers, as we have debated in this Chamber before—I have had debates in my name making exactly these points over the years—did their duty to the best of their ability. Their voice must be heard.
We do not want, as a veteran group, to set ourselves against all the other powerful arguments against the Bill, but the voice that I speak for is the voice that has had enough of investigations being mounted on now quite elderly soldiers on the whim of evidence, often causing them a lot of fear and upset, some of them going to their grave with the allegations not fully investigated. If the Bill is intended by the Government to stop that process, it is a very blunt instrument to achieve a particular aim. On that basis, I would ask the Government to think again about the Bill, but if the Bill is lost, for all the very good reasons that people have been talking about, what must not be lost is some way for veterans who did their duty to be protected.
I am not going to personalise it; I am one of them. My colleagues and I, on the whole, did our best, serving to the best of our ability. There must be some protection for us. We tried to raise it in the context of the overseas operations Bill, but those protections were dismissed by the Government, who said we would come back to it in the Northern Ireland Bill. We are back now. If we lose this Bill, the vast majority of UK-based veterans—not all—will feel that they have been let down by the Government and that successive promises have been broken. That is the only point that I will make.
Viscount Hailsham (Con)
I agree with everything that the noble Lord has said. Would he agree that, at the end of the day, we are going to have to have a statute of limitations? It has to apply to all security personnel, but because of that, I am afraid that it has also to apply to those who are alleged to have been involved in terrorist activities.
Lord Dannatt (CB)
I accept the noble Viscount’s point. I say simply that, if investigations are going to continue, and the rule of law is going to continue to be applied, I would seek for protocols to be put in place to protect the manner in which investigations were carried out and the way in which people who were required to take part in questioning were handled. I would want to ensure that their dignity, their respect, their age and their previous service were taken into due consideration. That is a minimum ask. That is a reasonable ask, and I speak on behalf of veterans who served their country in Northern Ireland over a very extended period.
Viscount Brookeborough (CB)
I suggest that the noble Lord may have meant GB-based veterans and not UK-based veterans, since Northern Ireland is part of the United Kingdom.
Lord Dannatt (CB)
I accept that point entirely. I meant people such as me who live in England—I am three-quarters English and one-quarter Welsh. It is people such as me whom I had in mind, fully accepting that veterans from Northern Ireland have a very different outlook on the whole matter—quite understandably—because they were living and working within their own homeland. I am talking about soldiers who were brought up elsewhere than in Northern Ireland. I apologise for poor use of our language.
Lord Hain (Lab)
My Lords, in supporting the amendment from the noble Baroness, Lady O’Loan, I will not repeat the cogent and compelling case she put. While Secretary of State for Northern Ireland I tried to grapple with legacy issues, which are incredibly difficult. I was bruised by them, and I had to withdraw a Bill I introduced that had been in gestation prior to my appointment because it was opposed by everybody. That is what should happen to this Bill.
However, I would have liked to support the Bill for that very reason of having grappled with these issues. I would particularly have liked to support the Minister, the noble Lord, Lord Caine, because of his commitment to Northern Ireland, his long service and the high regard in which we all hold him in this House. But the Bill is opposed by every political party in Northern Ireland, and by every victims group. They do not agree between themselves very often and they do not agree about the definition of a victim, but they agree in their total, unanimous opposition to the Bill.
Lord Weir of Ballyholme (DUP)
My Lords, I also support the amendment in the name of the noble Baroness, Lady O’Loan. I am the first to acknowledge that many sensible amendments have been put forward from all sides of the House; there are also some that I would not be quite so keen on, but no matter how good some of those amendments are, they do not and indeed cannot deal with the fundamental flaws in the Bill.
Similarly—and I speak after a former Secretary of State for Northern Ireland—I am acutely aware of how difficult it is to find a way forward on legacy that is acceptable to everyone. Again, I am the first to acknowledge that, but I am completely convinced that the Bill before us is not that way forward.
The noble Baroness’s amendment goes to the heart of the process because it deals with the issue of democratic legitimacy and gives this House and Parliament an opportunity, if taken, to pause for thought. There are four good reasons why we need to pause.
First, as others have indicated, the Bill does not have a level of consensus within Northern Ireland among the political parties—indeed, quite the opposite. As someone who in a previous life served for 24 years in the Northern Ireland Assembly, and indeed for six of those as the Chief Whip of the largest party in the Assembly, I can say better than most that it is difficult at times to get a consensus within the Assembly. It is difficult to get a consensus in Northern Ireland. Indeed, in recent days on other issues there has been a level of debate as to what counts as sufficient consensus in Northern Ireland: is it a simple majority, or a cross-community majority? But one thing indicated by the proposer of the amendment is beyond doubt, as shown by the vote in 2021: every single party in Northern Ireland is opposed to this Bill. That is a complete consensus.
We may question in particular the bona fides of one of those parties, Sinn Féin, whose military wing inflicted violence for many years and was the biggest single contributor to deaths in Northern Ireland. But even leaving aside the fact that republicans were responsible for around 60% of the killings in Northern Ireland, nevertheless there is a complete consensus within all the parties in Northern Ireland that this is not the way forward.
Secondly, there is also a consensus among victims that this is not the way forward. As previously indicated, in the same way that veterans are not necessarily a homogeneous group with the same views on every subject, that is undoubtedly true of victims of the Troubles in Northern Ireland. Indeed, not only do they often desire different outcomes and have different perspectives on the world, but even members of the same family of a victim of the Troubles sometimes have different views. So it is extremely rare that a consensus emerges, but it is difficult to find a single victim, let alone a single victim group, who is in favour of this as a way forward. If indeed victims are supposed to be at the centre of this, by proceeding pell-mell with this Bill we are not moving forward.
Thirdly, the Bill very clearly represents a denial of justice. When we look at the Troubles, two myths are sometimes perpetrated. They are quite lazy assumptions. The first is that everybody in Northern Ireland is a perpetrator. That is clearly not the case. The vast majority of people, from whatever side of the community, got on with their lives, tried to make progress in a democratic way and gave the lie to the idea that there was no alternative to violence.
The second myth is that everyone is Northern Ireland is also a victim. I was extremely fortunate: although I grew up throughout the entirety of the Troubles, I did not lose a family member or close friend to the Troubles. Indeed, I probably grew up in one of the safest parts of Northern Ireland. I was able to grow up in such safety because of the bravery of veterans throughout the United Kingdom, both soldiers and police officers, in keeping that peace in Northern Ireland. I cannot claim to be a victim, which makes me particularly reluctant as a Member of this House to impose a denial of justice on victims. I would be imposing that on other people.
There is no doubt that many victims out there do not seek a particular form of justice or a conviction. It is also the case—none of us should be naive, particularly in historical cases—that the opportunities for a trial and conviction to hold somebody directly accountable for the murder of your loved one are extremely remote. I believe the Bill is fundamentally flawed in that it provides the “solution” of simply snuffing out, and taking away from families that want justice, any opportunity to have their day in court. That is the third reason why this is fundamentally flawed.
There is a final reason why we need to look at this. Understandably, when we are dealing with legacy the focus is quite often on the past and the legacy of the past, but I do not believe the Bill provides reconciliation in the future. Indeed, I believe it provides a very dangerous pathway for the future.
Unfortunately, we have already seen a younger generation in Northern Ireland—sometimes fuelled particularly by comments from those who have been supportive of terrorism—effectively trying to rewrite history. It is not unique to Northern Ireland, but the glib mantra of some people is that there is no alternative to violence, and there is an attempt retrospectively to justify that level of violence. Let me make it absolutely clear: from whatever source, whether republican or loyalist, violence in Northern Ireland was never justified and never will be. But if we rewrite history by effectively whitewashing what happened and providing an amnesty, we are in danger of sending out a signal to the future that violence is an acceptable way forward. That is a very dangerous pathway and not one that any of us would intend to go down, but I think we are inadvertently going down it.
For all those reasons, this is an opportunity to think again and pause for thought. I therefore welcome the noble Baroness’s amendment. I believe it is a productive and balanced way forward, and I therefore urge the House to support it.
Baroness Suttie (LD)
My Lords, I too thank the noble Baroness, Lady O’Loan, for the amendment and for what, if I may say so, was an incredibly powerful speech today. We have heard so many powerful speeches today from all sides of the House. I noted here that we have had speeches from Northern Ireland and not Northern Ireland. We have had the noble and right reverend Lord, Lord Eames, the noble Lord, Lord Hain—a former Northern Ireland Secretary—and the noble Lord, Lord Cormack, who made an incredibly powerful speech. Then there were the noble Lords, Lord Weir and Lord Alton, who also made speeches that made a very powerful case. We even heard from the noble Lord, Lord Dannatt, and the noble Viscount, Lord Hailsham, making a slightly different case but supporting, none the less, the aims of the amendment before us this afternoon.
As I said at Second Reading, the strength of opposition risks undermining the Bill’s stated intentions of dealing with the past and promoting reconciliation—“reconciliation” is in the very title of the Bill. But the Bill is not promoting reconciliation and is opposed by so many who have spoken today. It is for this reason that on these Benches we support the amendment from the noble Baroness, Lady O’Loan. A Bill of such sensitivity and consequence cannot and should not proceed without the consent of the Northern Ireland Assembly. To quote the noble Lord, Lord Dodds, who I thought also made a very powerful speech this afternoon, we need to listen to the victims and pause this Bill before Third Reading.
Baroness Smith of Basildon (Lab)
My Lords, it is rare that I speak in this House and say how disappointed I am to be here. But I think there was some optimism that, when we had the Second Reading, the Government would go away and, in thinking again, perhaps have that pause for discussions that we had hoped. I pay tribute to the Minister, because he did. This has taken longer to come back to us; the Bill has had quite a long gestation period to get to this point. But it is worth noting that the reason the noble Baroness has brought her amendment before us today is that, for all the engagement the Minister has undertaken and all the discussions that have been had, there has been no movement in the opposition to this Bill. It is not a lack of engagement that is causing the problem. It is not a lack of talking to people. It is perhaps a lack of listening and changing.
The noble Baroness’s amendment before us today is a very unusual one, so I hope the noble Lord recognises that it indicates the strength of feeling across this House and outside in Northern Ireland. I think it is a rare and dubious honour to have united every Northern Ireland voice in your Lordships’ House.
The noble Baroness, Lady O’Loan, and the noble and right reverend Lord, Lord Eames, have tried to deal with some of these issues themselves in the past, and no one is pretending that it is easy or that there is an easy solution. But what is essential is that victims, survivors and indeed veterans and others—anyone who has been associated with this time—have confidence in the process. This is what we are lacking today. I suppose the point—it is not necessarily a disagreement —is that we all know the views of the Northern Ireland Assembly. If the Northern Ireland Assembly were up and running and debated this tomorrow, it would not make any difference. It would still oppose the Bill, such is the strength of feeling. I was there for just a few days, the week before last, and in every single meeting we had with every single political party, and at every meeting afterwards, this was raised as an issue and there was no support.
It is appropriate that in Committee we should be clear about our approach to the Bill. The Minister has been generous with his time and we have had numerous discussions, but our position remains the same: we do not support the Bill. Indeed, at Third Reading in the other place we voted against it. That remains our position. The leader of our party has said he will repeal the Bill, such is his opposition to it. He does not say that to wipe the issue to one side; he says it in order to find a better and different way of trying to deal with some of these issues, recognising that most people want to find a process that works and that this difficult, complex and painful for so many.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)
Well, my Lords, I said at Second Reading that I was well aware that this legislation had been met with far from universal acclamation, and, if I may say so, the last hour and seven minutes has reminded me of that in spades.
A number of noble Lords were kind enough to reference my role in this legislation. I am particularly grateful to my noble friend Lord Cormack and a former Secretary of State, the noble Lord, Lord Hain. I think one suggested that had it been my Bill it might have been slightly different. That may or may not be the case, but I tried to assure the House at Second Reading that I was committed to working with noble Lords on all sides and to continue engaging with groups outside Northern Ireland to see what could be done to improve the legislation in line with the proper constitutional functions of your Lordships’ House that the noble Baroness, Lady Smith of Basildon, reminded us of. That is what I have sought to do.
The noble Baroness, Lady O’Loan, in moving her amendment—I hope it was inadvertent—cast some doubt on the level of engagement, and the noble and right reverend Lord, Lord Eames, referred to it. I can only say that, since the end of July, I have done over 30 meetings—frankly, I have lost count—on legacy with political parties in Northern Ireland, Members of your Lordships’ House, victims’ groups and others. Those meetings have always been frank and candid, and I have sought to listen and take on board as many points as I can. I will continue that engagement and, indeed, I will be doing more such meetings in Northern Ireland next week. That has been a genuine attempt to fulfil the promises I made at Second Reading. Again in response to the noble and right reverend Lord, whom I hold in the highest regard—he is a man of great principle and has made a huge contribution in Northern Ireland over many decades—I say that I believe that the amendments I have brought forward are a reflection of the promises I gave at Second Reading. I am very happy to sit down, at any time, with the noble and right reverend Lord to go through those amendments, but we will be debating them anyway, I hope, at a later stage.
I understand the motive behind the noble Baroness’s amendment. I have long had sympathy with the notion that the Northern Ireland Assembly should have greater involvement in these matters. It was always the position, for many years, that addressing the legacy of the past should be owned and tackled primarily by Northern Ireland’s elected representatives. Some of us remember—it was not that long ago—10 years ago, when the Northern Ireland Executive invited Richard Haass, along with Meghan O’Sullivan, in the aftermath of the flags protest and difficulties over disputed parades, to address the issue of flags, parading and the past. That initiative was driven by the Northern Ireland Executive, supported by the parties in the Assembly. Unfortunately, as with other attempts to deal with these very difficult issues, that process did not find a consensus, and 12 months later, we found ourselves at Stormont House trying to deal with the same issues.
The noble Baronesses, Lady Ritchie of Downpatrick and Lady O’Loan, referred to the Stormont House agreement. At the risk of repeating what I said at Second Reading, I was in the room, as it were, for all but a few hours—time off for good behaviour—for about 11 weeks of that entire process. The level of consensus reached there has always been exaggerated. I can well remember the spokesman for the noble Baroness’s former party, the SDLP, opposing just about every line on legacy—she is smiling because she knows to whom I refer—in that agreement as “a dilution” of Haass-O’Sullivan, which was itself a dilution of Eames-Bradley. So the SDLP was not exactly oversold on it. I do not see the noble Lord, Lord Empey, in his place, but the noble Lord, Lord Rogan, is there, and he will attest to the fact that the Ulster Unionist Party did not support the provisions in the Stormont House agreement. So, that is two out of five that opposed it, pretty well right from the outset. Over the years, the level of consensus fell away even further.
Baroness Ritchie of Downpatrick (Lab)
I point out to the Minister that, from my very deep recollection, the SDLP supported the Stormont House agreement.
Lord Caine (Con)
As one who was in the room on 23 December 2014 when the final document was handed out, I think the approach of the former Member for Belfast South, Alasdair McDonnell, who was the leader of the party at the time—he might want to correct me if my recollection is faulty—was to say that they would look at it and give it a fair wind, but he made no commitments beyond that. As I say, the party’s spokesman was in a rather different position, but that might not be the first or last time that has been the case.
I also recall vividly that, after the Stormont House agreement was reached in late 2014, in early 2015 the then First Minister and Deputy First Minister in the Northern Ireland Executive came to the then Secretary of State and asked her whether the UK Government would take the legislation through this Parliament in Westminster to implement it, citing the enormous difficulties that would be encountered by trying to get it through the Assembly. That in part is why we are here; it went from something that it was envisaged would be dealt with in the Assembly to something that it was then requested we do here. It has, if I can put it like this, been a Westminster responsibility ever since. That is in part why the Government are bringing the Bill forward and why I stand here today.
Given that context, as the noble Lord, Lord Hain, and others reminded us, we have been grappling with this—it was never dealt with in the 1998 agreement because it was too difficult then. Successive Governments have sought to deal with it; they have failed to achieve consensus and resolution has proved elusive, frankly, to Governments of both parties. But we are, in a sense, running out of time in that people are getting older—some are passing away—and the chance of getting information to victims and survivors becomes more difficult the longer time passes.
Perhaps I may briefly try to pick up one or two further comments from the debate. My noble friend Lord Hailsham referred to a statute of limitations, as did the noble Lord, Lord Dannatt. This provides me with an opportunity to remind the House that the Bill has changed considerably from the original Command Paper proposals. People have referred to the vote in the Northern Ireland Assembly in 2021—I think the noble Lord, Lord Weir of Ballyholme raised it—but that was on the proposals in the Command Paper rather than the Bill that we are dealing with. It has changed, and I am on record in this House as opposing a statute of limitations on this issue. My noble friend and I have discussed it before; he and I have different views, as I am opposed to it. If there were a statute of limitations in the Bill, I would not be here doing it. The Bill has changed so that the immunity provisions within it are conditional and must at least be earned. Where there is no co-operation with the new commission, the prosecution route remains open.
My friend, as I think I can call him, the noble Viscount, Lord Brookeborough, referred to veterans being opposed. The exchange that he had with the noble Lord, Lord Dannatt, probably drew out one of the points that I was going to make: that veterans are not a homogeneous group. I met the Northern Ireland Veterans Movement last week and it is very supportive of the Bill. Where I definitely agree with the noble Viscount and the noble Lord is that we should be proud of the record and service of members of the Royal Ulster Constabulary and our Armed Forces. As I have said in this House on many occasions, my view is that without their contribution, sacrifice and service there would have been no peace process in Northern Ireland. We owe them a huge debt of gratitude and we should never forget that.
Baroness Smith of Basildon (Lab)
Forgive me, my Lords, but I wanted to clarify that our position has always been that this Bill should never have been brought forward in this form until it had commanded some support. That has not changed, so it is not a pause or delay if nothing has changed. If there is a fundamental problem with the Bill, we would rather it be pulled back. My noble friend Lord Murphy and I met the Secretary of State and the Minister himself to say, “Don’t proceed with this Bill; we will work with you to find a better way.”
Lord Caine (Con)
I appreciate the noble Baroness’s tone and comments. The only point I was trying to make is that pausing or stopping the Bill, as some have suggested—or if it gets to the statute book and it were to be repealed by a Government of a different colour in 18 months’ time or so; although I do not predict that for one second—we risk, in those circumstances, prolonging this for at least another five years while there is consultation, attempts to reach consensus, which will probably never happen, and the need to draw up legislation, et cetera. During that period, as I have referenced before, more people will have passed away and more people’s memories will be defective, so the chances of getting information to people will be even more remote and the chances of prosecutions more so.
Lord Hain (Lab)
I am grateful to the Minister for giving way. I actually agree with the last point he made. I think that we would all like to take this opportunity to resolve the issue, but it cannot be resolved in a way which antagonises everybody—that is the problem. I urge him again, as I have done in private, to look again at the Operation Kenova amendments; they provide a working model to deliver the Bill and they have universal support. I am open to technical tweaks and any discussions with the Minister to make those amendments more acceptable technically, but the substance is there to get a consensus on this for the first time in generations, if not ever.
Lord Caine (Con)
I am grateful to the noble Lord. Without prolonging this, I hope that we might get to those amendments this evening and have a proper discussion and debate on them. But I am grateful for the spirit of what he said.
In conclusion, the Government clearly cannot support the amendment of the noble Baroness, Lady O’Loan. I understand completely the motivations behind it, but, in the Government’s view, the Bill provides an opportunity to give more information to victims and survivors in a timely manner, and it is the Government’s view that it should proceed.
Baroness O'Loan (CB)
My Lords, I express my deep gratitude to everyone who spoke on the Bill today: noble Lords spoke with such eloquence and gravitas on these most sensitive issues. I thank the Minister for his response, and I hope he will understand that, despite all the nice things he said, I cannot accept much of what he said, particularly his comments on the Stormont House agreement. Things have moved on in the eight years since then, and we are now in a different place. All of us who were in Northern Ireland at the time of the Good Friday agreement had grave difficulty with things such as the release of prisoners. It was a difficult time, and people are trying to find ways that will enable everyone to engage in one process for dealing with the past.
The Government’s actions in bringing the Bill and continuing to push it are doing very serious damage to our reputation as a country. They are also doing huge damage and causing a lot of pain, grief and loss of trust in the United Kingdom Government among the people affected by the Bill. That is profoundly important, as noble Lords said.
I will say a word of reassurance on veterans to the noble Viscount, Lord Hailsham, and the noble Lord, Lord Dannatt. As I have said previously in this House, members of my family served in Northern Ireland during the Troubles, so I know exactly that I do not intend, and that it is not the intention of any of us, to cause grief to veterans. Those who served honourably really have nothing to fear, and the statistics show that, but I will not delay your Lordships on that.
Finally, the people of Northern Ireland are united against the Bill. Your Lordships will have seen the extent of unity among those of us from Northern Ireland about the Bill. I do not intend to press my amendment to a Division today, but I ask the Government again to pause and even to dispense with the Bill and start again. There is no necessity or urgency to deal with this situation; there is a need to get it right. I beg leave to withdraw my amendment.
Baroness Suttie
Member’s explanatory statement
This amendment is to probe whether the definition of “serious physical or mental harm” in the Bill is sufficiently broad to ensure all those who wish to avail themselves of the ICRIR’s services are able to.
Baroness Suttie (LD)
My Lords, Amendment 1 is in my name and those of the noble Lord, Lord Murphy of Torfaen, and the noble Baroness, Lady Ritchie of Downpatrick. For the record, I too thank the Minister for his willingness to engage in this process. I echo the sentiments of the noble Baroness, Lady Smith of Basildon, that he has been an exemplary Minister. I congratulate and thank him very much, and I appreciate that he gave up a large chunk of his summer holiday last year to engage in this process.
Baroness Suttie (LD)
Indeed, it was in response to my request. So I think we in this Chamber all recognise that the Minister not only has engaged very actively but has a tremendous amount of personal experience on this. Because of this, he has a tremendous amount of doubt about some of the elements currently in the Bill.
It is very welcome that the Minister has made a commitment to use Committee to continue to listen and engage on these concerns, and to listen to the very strongly held views of the House, which reflect the wider concerns in Northern Ireland and beyond. It is in that spirit that I hope that he will listen to the debate today.
Amendment 1 seeks to probe whether the definition in the list of eight narrowly defined characteristics on page 2 of the Bill is sufficiently broad to ensure that all those who wish to use the ICRIR are in a position to be able to do so. The trouble always with producing such lists is that they often accidentally result in some people being excluded and could therefore risk seeing some victims being denied justice. While acknowledging that the list is actually broader than was contained in the Stormont House agreement, it should be noted that the Stormont House agreement allowed for alternative legal routes, such as civil cases and inquests. It is worth exploring in Committee whether a longer list, or a more flexible approach to a list, could be adopted. We would be very happy to discuss the possible wording with the Minister between now and Report.
The Minister will know that the Commission for Victims and Survivors has expressed particular concern about the need to demonstrate severe psychiatric damage. At the time when many of the atrocities took place, people did not always have access to mental health medical services, so the link between the incident and mental health may not be clear.
The Minister will be aware that the Joint Committee on Human Rights has also expressed concern about the current list of eight characteristics producing arbitrary outcomes. As paragraph 73 of its report on the Bill states:
“For example, consider that there are two similar cases concerning torture but resulting in differing harms. The first case results in severe brain injury—this type of harm falls under the definition of a ‘serious offence’. Where immunity is not granted, the case may be prosecuted. The second case of torture results in severe damage to one or more organs—this type of harm does not fall under the definition of a ‘serious’ offence—there is, therefore, no possibility of a prosecution. It is not clear why these cases ought to be treated differently.”
To give another specific example, I would query the use of the terms under subsection (6)(e) and (f), which list the characteristics of “total blindness” or “total deafness”. Surely, partial blindness or partial deafness would still have a potentially very traumatic impact on a person’s life. I urge the Minister to examine this section of the Bill again to see whether it could be redrafted in a more flexible manner so that people are not accidentally excluded from access to the ICRIR. I am sure—or at least I hope—that this was not the original intention behind the drafting of this clause. I beg to move.
Baroness Ritchie of Downpatrick (Lab)
My Lords, as a signatory of Amendment 1 in the name of the noble Baroness, Lady Suttie, I am happy to support that amendment. In various discussions with the victims commissioner in Northern Ireland, he has raised this issue on behalf of victims and survivors. We have already referred to the fact that there is cross-party support, as well as support in the victims’ organisations and in the churches for the Bill to go back to the drawing board of the Stormont House agreement. The role of the House of Lords is clearly to review, scrutinise and try to improve legislation before returning it to the Commons. However, challenges remain, because this legislation is, I feel, irremediable, as it centres on immunity from prosecution and ending all judicial processes for victims, thus making the amendments to the Bill—from the Government—a tinkering process.
Amendment 1 is probing. It seeks to broaden the quite narrow definition within the Bill in relation to medical conditions. In fact, a more expansive approach would enable more people to avail of the ICRIR’s services, whereas a restrictive approach will limit the efficacy of the legislation. Within Stormont House, other legal routes—civil cases, inquests and criminal prosecutions—would have been retained. This amendment was favoured and promoted by the victims commission, particularly on its visit to both Houses last week.
Baroness Hoey (Non-Afl)
My Lords, first, I have a quick comment on the previous debate. Many noble Lords—in fact, nearly all—talked about the consensus in Northern Ireland opposing this legacy Bill. I just remind them that there may be consensus, but it is from very different points of view.
My Amendment 63, which is also in the name of the noble Lords, Lord Bew, Lord Godson and Lord Empey, is designed to narrow the criteria for a reinvestigation being started by the ICRIR. If the previous investigations listed in my amendment, such as by the HET or the PSNI’s Legacy Investigation Branch, and the stated need for the provision of “compelling new evidence”—a phrase that I remind noble Lords was thought necessary and appropriate for the overseas operation Act—are not added to the Bill, I have a very depressing prediction to make to your Lordships’ House. I think the ICRIR will end up reinvestigating many—indeed, every one—of the nearly 4,000 deaths. The cost will be billions of pounds, not the budgeted £250 million, and the process will last not for five years but for a decade or more, because this is where judicially led enquiries go, especially when internationalised. If the ICRIR, as suggested in the Minister’s letter to noble Lords on 17 January, is obliged to act simply on allegations, that can be the only consequence.
Legacy practitioners—which is the new force in Northern Ireland, not the victims’ relatives as the Bill believes, I believe, naively—using the concept of collusion, or “collusive behaviours”, the version relied on now by the Police Ombudsman, can design a case to investigate every death. Collusion can be alleged in relation to all loyalist killings and, indeed, all republican ones, by virtue of the use of security force agents in both paramilitary groups, let alone alleged investigatory failings that Strasbourg complains of.
When I spoke at Second Reading of the overseas operations Bill, almost exactly two years ago on 20 January 2021, I said:
“Let us not forget that the only cases now involving veterans are ones pending in Northern Ireland, which concern events of 50 years ago or more. For that reason, we need to get on with a Northern Ireland equivalent law”.—[Official Report, 20/1/21; col. 1236.]
Of course, extending that Act to cover Operation Banner, as I suggested then, and others, would have dealt with the issue in hand, rather than this increasingly complex confection of ICRIR.
No murder case in England would ever see this level of reinvestigation, and certainly not of funding. Have we learned no lessons from the Iraq historical allegations, and solicitor Phil Shiner? Let us remember, as was mentioned earlier, that it is good to remind people of who actually died in the three decades of the Northern Ireland terrorist campaign. Nearly 4,000 persons died violently; 60% of the deaths were caused by republicans and 30% by loyalists. The state—police officers and soldiers—was responsible for approximately 10% of the killings. Very few of those state killings were unlawful, as the force used was not unreasonable, but all the republican and loyalist murders were most certainly unlawful.
The rewriting of history is about the complexity of the Troubles being distorted into a single concern with state killings, which of course republicans and their allies then use, slowly, case by case, to construct the narrative of the IRA being somehow a popular resistance force that had no alternative to killing. The Committee of Ministers at the Council of Europe, when enforcing the ECHR judgments on the so-called McKerr line of cases, refers only to killings
“either during security force operations or in circumstances giving rise to suspicion of collusion in their deaths by security force personnel.”
So Strasbourg has effectively accepted a nationalist perspective on the matter for the past 20 years, and there has been no public challenge by our Government. Some 90% of victims’ families are thus being told by the human rights court that they do not really matter. They are not wanted in the world of lawfare; they are an embarrassment.
When ICRIR opens for business, I believe the following will happen: there will be a smattering of requests for reviews from very distressed relatives; the IRA Army Council will almost certainly not be tempted by the immunity opportunity; and loyalists may not know how to respond. The vast majority of requests will be from legacy practitioners, once again, who will demand rigorous reviews—in fact, new criminal investigations—of hundreds of cases on the flimsiest of allegations, unless curbed by our amendment. The Northern Ireland Office has to brace itself for the judicial reviews and civil suits that will keep on coming.
Legacy has been a poisoned chalice since the Belfast agreement, and it is worth remembering that the 1998 document never envisaged what has since happened. About victims it said simply:
“The achievement of a peaceful and just society would be the true memorial to the victims of violence.”
The United Kingdom failed to deal with legacy, although we now have something close to peace. There has been no substitution; nobody has brought forward a real legacy plan since the Eames-Bradley report of 2009, which did have some elements of legacy. The only credible initiative was from former Chief Constable Sir Hugh Orde’s Historical Enquiries Team within the PSNI. But that was closed down because a radical academic, given access, misconstrued what was happening, and Her Majesty’s Inspectorate of Constabulary joined in the unwarranted criticism of the PSNI and HET—I believe to the anger of Sir Hugh.
This amendment is designed to stop mission creep by the ICRIR. It needs to be accepted because, without a statutory mention that narrows access and prohibits repeat applications, the commission’s remit will grow, just as the police ombudsman’s did. We need finality and I hope that the Minister will respond in detail to my speech and those of other noble Lords on this very important issue.
Lord Eames (CB)
My Lords, in his response to the previous debate on the amendment in the name of the noble Baroness, Lady O’Loan, I fear that the Minister may have misunderstood some of the phrases I used in my own remarks. I do not in the slightest attach any personal criticism to him for the failure of the amendments we asked for from the Government on a previous occasion. I hold him in the highest possible regard personally for all he has done for Northern Ireland, and I hope that that respect is, despite the remarks, mutual.
Lord Caine (Con)
My Lords, I would not normally intervene, but I thank the noble and right reverend Lord for his very kind words. If I did misunderstand him, that is my failing. I assure him that the admiration is indeed very mutual.
Lord Eames (CB)
My Lords, turning to the amendment the noble Baroness, Lady Suttie, has brought to the attention of the House, may I refer to just one aspect of what I believe is the almost impossible task that the commission will face? It is the question of contact, discussion and analysis of those who are involved in cases brought before it. It is not just a question of medical phraseology and limiting the field in which people could claim to have consequential difficulties because of the Troubles. From my experience over the years, I have seen that it is almost impossible to define and limit the consequences of the experience of people—families, relatives and neighbours—because mental scars are very hard to define, but they are vivid in their consequences for people’s lives.
Secondly, I support what the noble Baroness said in moving her amendment in terms of the difficulty of the construction we will eventually give to this commission. I know from experience—as do many Members of your Lordships’ House—how difficult it is when distinct definitions are not spelled out and people have their own approach to what they think was defined or underlined. If this part of the Bill is to proceed, I suggest to the Minister that a closer examination is needed of the definition of the commission’s role—how it is to be described, how it will relate to jurisprudence and how it will relate to the way in which individual cases are presented. There is, I believe, real opportunity for this concept of the new commission to proceed, and proceed in a positive way, but I still think that a great deal of preliminary thought is necessary at this stage.
Lord Hain (Lab)
My Lords, I will speak briefly first to Amendment 63, which seems to be based on the premise that if any investigation was carried out or any report written on a Troubles-related incident, that would be enough to take it off the desk of the commissioner for investigations, and that any request for an investigation must be rejected unless the family requesting it “has compelling new evidence”. However, we know that one of the genuine concerns of many victims and survivors is that the case of their loved one was never properly investigated in the first place. In many cases at the height of the Troubles, there were understandable security reasons why proper investigations by the then RUC simply were not possible. We also know that information was very often withheld from investigating teams.
Baroness Hoey (Non-Afl)
I accept part of what the noble Lord is saying about how the victims feel about what has happened in the past and the need to understand more. However, does he not agree that the reality is that for the people from the terrorist organisations who perpetrated these acts, there are no records, as was said earlier, and there is nothing that at this stage will ever lead to anyone ending up in court and being found guilty? Indeed, many of those people who were involved with some of these killings have in fact been given letters of freedom and have been given immunity.
Lord Hain (Lab)
The point I am making is that there were files, and Operation Kenova has had access to those files. They are held principally by the security services but, under very strict conditions and with trust, the investigation has been able to retrieve information on a sensible basis without compromising the work of the security services, and that has been of great comfort for victims. That is my point and my concern about the noble Baroness’s amendment.
I turn to my Amendment 147. I thank the noble Lords, Lord Hogan-Howe and Lord Blair, both distinguished former Metropolitan Police Commissioners, together with the noble Baroness, Lady O’Loan, a distinguished former Police Ombudsman for Northern Ireland, for adding their names. The amendment is designed to ensure, as my noble friend Lady Ritchie has already argued, that the Bill does not prevent the continuation of the review into the Glenanne gang series, known as Operation Denton, which is expected to conclude and report in spring 2024—that is, after the Bill could have received Royal Assent.
What is known as the Glenanne gang series includes a significant number of murders and other terrorist offences committed in both Northern Ireland and the Republic of Ireland during the Troubles between around 1972 and 1978. The cases within the Glenanne gang series are connected by common features, such as individuals, weapons, areas or targets involved. In some of these cases, direct evidence has already demonstrated the collusion of police or security force personnel.
Various parties, including families, have significant concerns about the rigour and professionalism of previous investigations into these cases and have for many years sought a comprehensive, overarching, thematic analysis of the Glenanne series and the extent of any state collusion. On 5 July 2019, the Barnard judgment set out the requirement for an independent review of the activities of the Glenanne gang, a statutory requirement in accordance with Section 35(5) of the Justice (Northern Ireland) Act 2002 and Article 2 of the European Convention on Human Rights. The chief constable of the PSNI requested that the former chief constable of Bedfordshire Police, Jon Boutcher, carry out this review. It was named Operation Denton, commenced in February 2020 and is part of the cases being conducted under the umbrella of Operation Kenova.
To date, Operation Denton has identified 127 murders resulting from 93 separate incidents connected to this series. It has met and is supporting families of the victims. It has had success in securing the release of material from the Republic of Ireland through lobbying for and securing the introduction of secondary legislation by the Irish Government to ensure access to records held by the Garda to assist the review. It is anticipated that Operation Denton will conclude and report publicly and to families no later than spring 2024.
Operation Denton is so well progressed and has developed such strong levels of trust and confidence with the families that it would cause unnecessary delay to the review—and, crucially, undue stress to families, who have suffered grievously already—for this inquiry to be passed to the ICRIR. It is important therefore that Operation Denton be allowed to complete its work. I hope that the Minister, who I see is nodding, will confirm that in his reply to this group of amendments. The lawyers and NGOs supporting the Glenanne series’ victims and families have indicated that they will legally challenge any decision to stop Operation Denton and will not co-operate with the ICRIR, such is their confidence in the work currently being done.
In conclusion, it is almost certain that Operation Denton’s work will be completed and families informed of its findings before the ICRIR is open for referrals. I therefore very much hope that the Minister will give the Committee the assurance that I seek and the absolute assurance that the victims desire.
Lord Weir of Ballyholme (DUP)
My Lords, I will deal first with Amendment 1. I support this probing amendment. That is not necessarily to make a judgment that what is in place at present is insufficient, but it is probing to establish whether what is placed in the legislation is comprehensive enough and whether it covers all the situations. There can be nothing worse than finding that there are inadvertent consequences and that, through a degree of misunderstanding or because we have not been exacting enough, some people are excluded wrongly, or perhaps even that the net is drawn too widely on other occasions. As I said, I draw no conclusions as to whether that is the case at present but I will listen with care to the answers given by the Minister on that.
To take the last point on Amendment 147, I have some sympathy for the case that the noble Lord put forward. However, I have some level of reservation. It is undoubtedly an investigation into one of the most horrendous series of murders that have taken place; they were horrific, and it is correct that they should be condemned. Where I have a little reservation in perhaps suggesting that the whole Bill is flawed is that if we start looking at individual operations, however well advanced, and singling them out for some level of exemption, that can create a concern that other areas of investigation into horrendous murders which are needed are not also covered. That is my concern about Amendment 147.
On Amendment 52, again, I look forward to what the Minister will say on that. I have some reservations about it. At the moment, there is a five-year period in which there is an opportunity for a request to be made. It is hard to see in genuine cases why a family would not make that within the five-year period, so I am not clear why this is necessary. Indeed, are we shifting the goalposts by making this entirely open-ended in terms of making the request? Therefore, at this stage I am certainly sceptical about that but I look forward to what will be said in connection with it.
I support the proposals put forward by the noble Baroness, Lady Hoey, in Amendment 63. The noble Lord, Lord Hain, made the point that there is a concern about the inadequacy of some investigations. I take that very much on board. However, what the noble Baroness says is proportionate, fair and practical. I say that because Amendment 63 would take into account what previous investigations had taken place. Surely the aim of the investigations in review is to bring everything up to the same level. If work has already been done, that should be built on where necessary. We should not look to duplicate work; that is from a practical point of view because there is a danger of the level of funding becoming open-ended to the extent that it is simply unaffordable.
We also need equality of treatment. There would be a concern that if we simply disregarded an investigation —indeed, if we have investigation after investigation in some cases—then some high-profile cases in which people are able to shout the loudest may go to the front of the queue and get an additional level of investigation, rather than there being equality of treatment for victims.
Amendment 63 has been carefully worded. It does not say that a previous investigation would preclude a review or an investigation. It would place the onus on the Chief Commissioner to take account of what has happened before. In many cases, particularly in the early days of the Troubles, that investigation might well have been inadequate. What information is available should be a key factor in determining the level of work that must go into an individual case. What is there is balanced.
The proposed opposition to Clause 7 standing part of the Bill is also in this group. I again have considerable sympathy for what has been put forward. Undoubtedly, we must ensure that the net for what evidence is inadmissible to the courts is not thrown too wide. There is a concern that what is presently within Clause 7 is not fit for purpose and, at the very least, creates elements where clarity is needed. For example, it is not clear in what circumstances an applicant for immunity would provide information that is not connected with the application process. Perhaps the Minister can expand on this. Separately, Clause 7(3)(b) has the effect of making material that is later obtained “as a result” of material provided by the applicant inadmissible. That seems quite tenuous. We must ensure that the inadmissibility net is not any wider than it needs to be.
There are considerable concerns over Clause 7. I know that the Government are proposing some changes to it but again, there is a lack of clarity. For example, there is an interaction between admissibility of material, as mentioned in Clause 7, and Clause 23, on the provision of information to prosecutors. That needs to be clarified. If Clause 7 was to remain within the legislation, the Minister must clarify what impact Clause 23 has on Clause 7. Without such clarification, there would be a strong case at least for re-examination of what is in Clause 7, and perhaps for exclusion altogether.
Lord Browne of Ladyton (Lab)
My Lords, I will speak to Amendments 71 and 83, which are in my name and that of my noble friend Lady Ritchie of Downpatrick. Amendment 83 is also in the name of the noble Baroness, Lady O’Loan, and my noble friend Lord Murphy of Torfaen. I am grateful to them for their support. I too have benefited from engagement on my amendments with not only the Minister but the Bill team and his private office, and I put on record my thanks and appreciation.
Amendment 71 requires that, as far as possible, ICRIR reviews be conducted in public, providing for transparency in the conduct of reviews by that body. Transparency is not only desirable in reconciliation but a necessary precondition for it to occur. Many of the reviews that the ICRIR will be charged with conducting will have decades of mutual suspicion to contend with. My amendment to Clause 13 attempts to bring greater transparency to those reviews where possible. It is not merely a question of procedural efficiency; it will make clear to those for whom we are seeking the truth that they can be as confident as possible that there is no thumb on the scales, that the review process can be trusted, and that those tasked with handling these hugely sensitive investigations are doing so without the pressure to conform to some predetermined narrative.
Lord Hogan-Howe (CB)
My Lords, I rise to support Amendment 147 from the noble Lord, Lord Hain. In passing, it might be worth mentioning that I am open-minded about whether this Bill should progress. I think that there are arguments both ways, and we have heard some powerful ones today, but it relies on the consent and support of those people most affected by it.
One thing that has struck me in the debate today is that certain groups of people have not been mentioned whom I am sure no one wanted to forget. It was not until the Minister responded that we talked about the RUC’s losses and about its involvement in some of these cases. As we consider the immunity that might be offered, I think that we all respect and support the military’s losses and involvement in these things. Of course, the RUC was directly involved, and its members did not return to barracks at the end of the day but went home to their children, their parents and many other people. I do not think that anybody is choosing to forget, but we ought to keep that in mind.
We also ought to keep in mind that, here in mainland UK, the people of Warrington, Manchester, Birmingham and London lost people. Their thoughts have to be borne in mind too. It is not a case of “This is predominantly a Northern Ireland Bill”. There are other people who must be considered too, and they have not been spoken of today.
I support Amendment 147 because I think that the progress made by Operation Kenova is very significant. I accept the point made by the noble Lord, Lord Weir, that we should be concerned that this might extend to a whole new group of investigations that might be extended. But we should have the reassurance that the number of investigations is quite discrete. A significant number of these are already with the DPP in Northern Ireland. They have been for quite a while, and there is a question about whether there are sufficient resources there and the skills necessary to make these decisions—none of which are easy, as we all know, but at least we have got to the point of a case going to a prosecutor to consider a charge. That is a very significant number.
There is also the outstanding case of Operation Denton, which has been investigated for a significant amount of time. As the noble Lord, Lord Hain, has already suggested, it is thought that there will be cases going to the DPP by the beginning of next year. There is no certainty about this, but that is a professional judgment which I think is not unreasonable. The main thing to consider there is that, obviously, the families and all those interested in the outcome of those investigations now have a trust and expectation: a trust in the investigation team, which has been hard won and can easily be lost, and also a trust in the process.
Of course, it may be that the Government have to decide that they will end these investigations and fold them within this proposal. I think we all understand that that is a real dilemma. But, for the families involved, and given all the hard work that has gone into this, it would be a terrible shame. Some of the previous investigations have not had the support that we heard described by the noble Lord, Lord Hain, and that, from my experience, has been garnered in this case. It would be a shame if that hard work and trust were lost on this occasion.
Baroness O’Loan (CB)
My Lords, I support Amendment 1 in this group, from the noble Baroness, Lady Suttie. She made the case with absolute clarity. No more needs to be said.
On Amendment 147, I reassert my declaration that I am a member of the international steering group advising on Operations Denton and Kenova. It is, as the noble Lord, Lord Caine, said, a very long-overdue review of cases involving the Glenanne gang, which is reported to have involved loyalists, including members of the security forces, who carried out shooting and bombing attacks against Catholics and Irish nationalists in the 1970s. We know that there are some 127 victims.
I will address the comments made repeatedly that terrorists do not keep records and that the police and Army do. Having investigated many of these cases of alleged collusion, I can tell noble Lords categorically that those involved in collusion do not keep records: for example, of instructions to not investigate; to bring people in for questioning during an investigation, provide them with a cup of tea and some sandwiches, leave them in the room but not actually ask any questions, then release them, to protect them so that they have been investigated in the eyes of the general public; to perhaps lose evidence, which I have seen; or to contaminate physical evidence. None of this is recorded. That is why, where you can identify collusive activity of that kind, it is very usually impossible to bring a prosecution—and it is right that there should be no prosecution where there is no unbroken chain of evidence.
Denton has made very significant progress. It was reviewed by the National Police Chiefs’ Council in January 2021, which explained that Denton differs from Kenova in that it is being conducted as a review and not a criminal investigation at this time. This makes the approach by the operational team fundamentally different from that of Kenova, which is an investigation, from an evidential perspective. As the noble Lord, Lord Hain, said, Denton is due to be finished next year. Former Chief Constable Boutcher will then report.
Considerable resources have gone into this review. Were the Bill to be passed without an amendment of this kind, Denton would not be completed by Chief Constable Boutcher and his team and would fall for review by the ICRIR. Given the progress already made, to bring in a new team in would professionally require a review of what has been done before. I know we say that we do not reinvestigate, but, in professional terms, if you pick up a case that somebody has been managing, you must examine it to make sure you are satisfied that all investigative opportunities have been explored. That would result in a huge and unnecessary waste of resources, and it would be particularly damaging to victims and survivors, who would be required to revisit yet again what they suffered and have been suffering.
Such is the difference between investigations and reviews that An Garda Síochána, who have been very helpful to Denton and Kenova, was unable to provide sensitive material to Denton. That material could have been provided under international agreements for police co-operation, were Denton an investigation. But, because Denton is a review and not an investigation, it could not be provided under the European police co-operation agreements, et cetera.
At the request of the Operation Denton steering group and Chief Constable Boutcher, the Irish Government have passed a statutory instrument. The effect of that is to allow them to pass sensitive material, which they could not otherwise pass, to Operation Denton. When I was engaged in discussions about that matter with the Irish Government and Garda Commissioner Drew Harris, I was simultaneously considering this Bill. It was very odd to me that my Government in the United Kingdom were moving to close things down and the Irish Government were moving to open things up and be helpful.
So, given the complexity and extent of Operation Denton, I suggest to the Minister that it would clearly be in the public interest to permit Mr Boutcher and his team to complete the work in which they are engaged. I therefore support this amendment.
Amendment 52 in my name and that of the noble Lords, Lord Murphy and Lord Hain, and the noble Baroness, Lady Ritchie, would remove the five-year rule contained in the Bill, which effectively introduces a limitation on prosecution that is inconsistent with the Good Friday agreement and our international legal obligations.
This work of dealing with the past is incremental. It requires consideration of victims’ needs. A five-year limitation period for the seeking of investigations or reviews would place huge pressure on people who may be suffering the consequences—for some, very severe mental health problems—of the incident in question. I know that noble Lords will think that five years is a very long period, but I assure them that, in investigation terms and for people dealing with the mental health problems that have arisen as a consequence of the Northern Ireland Troubles, to add the additional pressure of knowing that you have to be there before five years are up is difficult.
Noble Lords will also understand, I think, that it will take some time to grow confidence in these new ICRIR processes. In light of the international condemnation of the Bill as it stands, questions might rightly be asked about whether victims, survivors and their families will use the new processes. That is another reason for us to think about the need to amend the Bill very significantly.
Does the period when the ICRIR becomes operational include or exclude the period of finding premises, setting up an office, agreeing a budget, getting staff, establishing processes, providing training, and the Secretary of State drafting all his guidance, et cetera? We do not have limitation periods for criminality in this country, for very good reasons. If a person was murdered before 10 April 1998, under this Bill they will have only five years to seek an investigation. If they were murdered four months later—in the Omagh bomb, for example, or in any of the other atrocities—that limitation would not apply. It is arbitrary. How do the Government justify the introduction of a limitation for a very small subset of the victims of crime in the United Kingdom?
Lord Dodds of Duncairn (DUP)
My Lords, I want to briefly comment on Amendment 52, which the noble Baroness raised, in relation to the five-year limit. When the Minister replies to this group of amendments, I hope he will respond to this point.
The Minister said in the previous debate that, if someone did not co-operate with an ICRIR investigation or review, a criminal route remains open—I think I am quoting him directly. But this amendment points to the fact that the Bill provides for a five-year limit: unless a case is brought to the commission within five years it cannot be brought, and the commission is the only body that can investigate Troubles-related crimes. Therefore, if somebody does not co-operate, after five years the body will continue to exist but it will not be able to take on or open any new investigations. How is it that a criminal route remains open, as there is no other body and the police will be prohibited from investigating? There is no other body that can do any investigations, so after five years, there is no criminal route open; it ends at that point. I would like an explanation as to what the Minister meant by his statement that a criminal route remains open if you do not co-operate. Under the Bill, after five years no further new investigations can be launched, nobody can make a complaint and there is nobody else who can do any investigations.
Baroness Smith of Basildon (Lab)
My Lords, this has been a deeply respectful debate. A number of issues have come to light, and it would be helpful if the Minister could respond to them. Some of the issues are quite complex. I am grateful particularly to the noble Baroness, Lady O’Loan, for the experience that she brings to this.
I turn first to Amendment 1, in the name of the noble Baroness, Lady Suttie. This definition is something that the victims’ commissioner has raised with a number of Members of your Lordships’ House. The phrase “serious physical or mental harm” is really key here. Many of us have met victims who have suffered harm that is not always immediately evident. We have to look at this again, because there is no power for the definitions to be amended. Given the Government’s fondness for Sis—not that I am recommending this route—there possibly needs to be some discretion for the commission. We discussed this briefly with the Minister, and he is rightly wary of having a list, which can never be exhaustive, but this has to be revisited and looked at again. Some discretion might possibly be the way forward.
On the amendment of my noble friend Lord Hain, I do not know whether the Minister is considering opening this up. Operation Denton is due to report in spring next year—I know that is an elastic term in government announcements. We will come to our amendment on this later in proceedings, but to have this investigation running for so long and for it then to be ended by the Bill would clearly be the wrong thing to do. It seems a sensible process, and one that started in 2020, and the point made by my noble friend Lord Hain is well made. I would like to hear the Minister’s response to that so I can understand the timing.
There is no commencement time in this Bill. It would be helpful to know when, if the Bill were to conclude all its stages and become law, the Minister envisages that it would start. That is important in this context.
My noble friend Lord Browne talked about transparency. That is clear-cut: if we are to have confidence in a process, it needs to have transparency. I think it might be a mistake in the Government’s drafting that someone could be compelled to attend but not compelled to give evidence. That seems to be a bit of a loophole, and I hope that the Minister can come back with something positive on that. did
I turn to the amendment of the noble Baroness, Lady Hoey. I can see the point that she is trying to address, which was repeated by the noble Lord, Lord Weir—that in repeated inquiries it is the people who shout the loudest who have more access to the various mechanisms in place—but it seems to me to be a very absolute point. If compelling new evidence was brought forward, in any circumstances and by anybody, surely there should be the option for the commission to consider that compelling new evidence.
Lord Weir of Ballyholme (DUP)
I entirely agree with the point that the noble Baroness has made. However, to be fair to the noble Baroness, Lady Hoey, is that not why the amendment refers to “take into account”? That then would not preclude it being taken into account and a different approach being taken.
Baroness Smith of Basildon (Lab)
It may be. I do not have the amendment in front of me—I will look at it again later—but there seemed to be an absoluteness. I understand the principle, but I want to make sure that the detail and specifics of the amendment do what they intend to and not cut off options for—
Baroness O’Loan (CB)
Proposed new subsection (5B) inserted by that amendment says that the commissioner
“must consider whether the close family member … has compelling new evidence, and if not, must reject that request.”
Baroness Smith of Basildon (Lab)
That is helpful; I am grateful. It is “the close family member” as well.
A number of issues arise from the amendments from the noble Baroness, Lady O’Loan, and the question of Clause 7 standing part. Amendment 52 seeks to delete the five-year deadline from the start of the ICRIR’s operation—it is a nifty little acronym—for seeking reviews of Troubles-related deaths and offences. I can understand where the Government are coming from in saying that the process cannot be open-ended, but could the Minister say why they settled on five years? What consultation or views expressed led to five years? What assessment was made of the risk of people refusing to engage because they think that they can be timed out given the five-year cut-off? Did he receive any representations on that? Was it discussed? Was there a consultation, or was it plucked out of thin air? That is what I seek some clarity on.
I would be grateful for any guidance from the noble Baroness, Lady O’Loan, but it seems to me that Clause 7 creates restrictions on the use of material against a person in criminal proceedings where that material is obtained by or provided to the ICRIR by that person, but it does not affect the use of material in proceedings brought against any other person. That seems to be a contradiction that needs to be addressed, and perhaps the Minister can clarify that. I have read the clause several times—that is why I was slightly delayed in getting up. It seems strange in the context of what the Government are trying to achieve.
The debate on this has again shown the respect that the Committee and this House have for victims, survivors and all those affected by the Bill. It also shows some of the tweaks and changes that will need to be made to address the particular concerns that have been raised today.
Lord Caine (Con)
I am very grateful to noble Lords for their contributions on this group of amendments. I will start with Clause 7. As the Committee knows, the Government’s overriding objective is to put in place mechanisms that have the potential to deliver better outcomes for those most affected by the Troubles, particularly victims and survivors, while seeking to help society look forward. The Bill is designed to help achieve those objectives.
The primary focus of this legislation is effective information recovery. The commissioner will conduct investigations for the purposes of providing answers to those who seek them. Central to that is Clause 7, which creates restrictions on the use of material against a person in criminal proceedings where that material was obtained by or provided to the ICRIR—that acronym of which the noble Baroness, Lady Smith of Basildon, is so fond—by that person. This is very much in line with the approach for information recovery included in the Stormont House agreement in 2014 and is extremely important in avoiding the creation of a disincentive for people to come forward and provide information to the ICRIR. In the Stormont House agreement there were similar provisions on evidence given to the ICIR, as was. It is very much in line with previous approaches to this issue.
The clause does not affect the use of material in proceedings brought against any other person, so it would be possible for a witness to provide information about an individual who was involved in a death or serious injury and for that information to be used in any subsequent prosecution against that individual. Equally, the clause does not affect the use of material obtained by a designated ICRIR—I am just going to say “the commission”—officer, for example when exercising police powers. This would ensure that the content of an interview given by a suspect while under caution, as part of a criminal investigation, could be used in criminal proceedings in the normal way.
I hope that goes some way to addressing the concerns of my noble friend Lord Weir of Ballyholme in respect of Clauses 7 and 23. If not, I am more than happy to sit down with him with my officials and go through it in greater detail, well in advance of the next stage of the Bill.
Baroness Suttie (LD)
My Lords, I agree that this has been a very thoughtful and—as the noble Baroness, Lady Smith of Basildon, said—respectful debate. It is probably the kind of debate that shows the strength of this Chamber in Committee, looking at a Bill in some detail and putting forward suggestions and improvements to it, even though—as the noble Baroness, Lady Ritchie, and others have said—some of us still face a dilemma as to whether the Bill is actually improvable. For many of us, it is still a fundamentally flawed Bill.
Earlier I did not mention the other amendments in the group, but I particularly highlight Amendment 147 and the powerful speeches made by the noble Lords, Lord Hogan-Howe and Lord Hain. These are issues I hope we can return to before the passage of the Bill is complete, and I welcome the Minister’s reassurance on that.
There is also the important question of accidental consequences of the five-year limit. The noble Baroness, Lady O’Loan, made a powerful speech giving examples of where there is a cliff edge. Cases could accidentally be dropped, which would be unfortunate.
I thank the Minister very much for his response to Amendment 1 and welcome that we can perhaps discuss this in more detail. I think we all feel—the noble Lord, Lord Weir, expressed it very clearly in his support of this amendment—that we really do not want accidental consequences. I feel it would be very positive indeed if we examined this further between now and Report. On that basis, I beg leave to withdraw the amendment.
Baroness O'Loan
Member’s explanatory statement
This and other similar probing amendments in the name of Baroness O’Loan impose a function of investigation on the ICRIR as well as the function of review.
Baroness O'Loan (CB)
My Lords, I will speak to Amendments 2 to 4 in my name and the consequential amendments in this group. Noble Lords will be relieved to hear that I will not speak to each amendment, as in many cases the purpose is clear. The amendments are necessary to place the investigation function clearly in the Bill on each occasion on which it is relevant.
It is important to say that the Bill relates only to incidents that occurred before the agreement signed on 10 April 1998. It does not refer to atrocities arising during the Troubles that occurred after April 1998. For example, PSNI security statistics show that, in the past 10 years, 23 people have been killed in the Troubles; there have been 304 bombing incidents and 477 shooting incidents; more than 1,500 people have been arrested under the Terrorism Act; and 235 people have been charged with terrorist offences. Terrorism is alive and well in Northern Ireland, though not to the scale—thank goodness—of previous atrocities. Most recently, two men have been charged with the murder of Lyra McKee in Derry in 2019. Noble Lords will probably be aware that it is believed that was an attempt to kill a police officer.
Lord Hain (Lab)
My Lords, I support Amendment 2, which has been so ably moved by the noble Baroness, Lady O’Loan. I shall speak specifically to Amendment 72 standing in my name and those of the noble Baronesses, Lady Suttie and Lady Ritchie, and the noble Lord, Lord Cormack. I am grateful for their support and for the backing that these amendments have had from victims’ groups in Northern Ireland, especially the WAVE Trauma group, which, notably, represents victims from all parts of the community. That breadth of support is also the case for Amendments 112 and 124, which are also in our names.
Amendments 72, 112 and 124 form a coherent whole and a coherent alternative to this most objectionable Bill by putting on a statutory basis a process for addressing the legacy of the Troubles that will command cross-community, cross-party and cross-victim-group support where this Bill, with or without the government amendments tabled by the Minister, most certainly does not. With or without those government amendments, the Bill remains totally toxic. Our amendments would transform the Bill into a consensual one, and I very much hope that the Minister will be able to persuade the Defence Secretary and the Northern Ireland Secretary to support them, because if not then we will need to divide the House on them.
I come to this issue of legacy not from a legal or policing perspective; there are other noble Lords who have that experience, and no doubt they will speak to these amendments and others, drawing on their expertise. I come to it, as I know others will, with a degree of humility, trying to put myself in the shoes of those who are looking to us—looking specifically to your Lordships’ House to do this in a way that the Commons so palpably failed to do—to help them to try to address issues that have scarred them emotionally and psychologically, and in some cases physically, for decades. As I made clear at Second Reading and in the debates on the committal Motion, I do not think that the Bill as drafted does that in any way. Indeed, I think that for many it will have the most devastatingly adverse impact. I have proposed amendments that would turn a terrible Bill into one that could command acceptance.
As I have said before, I do not envy the noble Lord, Lord Caine, his task of taking this legislation through the House. Given his long experience in Northern Ireland and the great respect in which the whole House holds him for his knowledge and care for Northern Ireland, I doubt very much that, had he been asked to frame legislation to try to deal with the pain and trauma of Northern Ireland’s horrifically violent past, he would have come up with the Bill before us or indeed the amendments that he has tabled on behalf of the Government to try to remedy its most awful features. Bluntly, his tweaks here and there do not fix this fundamentally flawed Bill.
With his customary courtesy, the Minister wrote to Peers in advance of Committee, and I thank him for that, as I do for the meetings that he has readily offered to me and others to discuss the matter. In that letter, the Minister writes that he understands that
“for many in Northern Ireland the legislation is extremely challenging”.
I am afraid to say that in this context the Civil Service word “challenging”—I recognise it from my ministerial experience—must enter the lexicon of ironic political euphemism. To the victims and survivors of the Troubles, who should be at the heart of what we are trying to do, this is not challenging; it is devastating.
We have been told that the Government has been engaging with key stakeholders since Second Reading. Government Ministers and officials may well have heard what victims and survivors have had to tell them, but I am afraid they have not listened. They still seem intent on seeing though a kind of Faustian pact between the state and those who brought injury, death and destruction to thousands of our citizens. Putting the interests of perpetrators though a low-bar immunity process over the needs of victims is not only morally corrupt; it is politically disastrous.
Baroness O'Loan (CB)
My Lords, I apologise and crave the indulgence of the Committee. On the point that those who are dealing with certain ongoing investigative processes get no updates, as police ombudsman I established a process of six-weekly updates for complainants. I know that the police ombudsman has contact with the families and a lot of very good work has been done on that process. It is for that reason that there is confidence in the police ombudsman processes. I can tell the Committee that the police ombudsman has no power to investigate anyone other than police officers. That is the deficit there: it is that they cannot investigate civilians or soldiers. I hope the noble Lord will forgive me for the intervention.
Lord Hain (Lab)
I am very grateful to the noble Baroness for her interruption. She makes a telling correction, or at least clarification, to the point I make. I agree with her, and take her point entirely, especially having worked with her and respected her for her work when I was Secretary of State.
However, there is regular contact with the families and regular updates; that should be the model adopted going forward. Not only is Kenova a model of effective police work and a model for how to work with the families concerned but it has the most robust governance and oversight structures in place. Two of our distinguished colleagues in this House, the noble Baroness, Lady O’Loan, and the noble and right reverend Lord, Lord Eames, serve on one such body, along with those who have extensive international policing experience. That is the model that should be adopted for any investigative process coming out of this legislation.
In bringing my remarks on this amendment to a close, I confess that I am still not absolutely sure where the Government stand on Operation Kenova. For a time, the mantra was trotted out at official and ministerial level that Kenova could not be said to be successful because no prosecutions had resulted. This was disingenuous at best. The Secretary of State who peddled this line knew full well that over 30 files sat with the seriously overstretched and underresourced Public Prosecution Service in Northern Ireland and have now done for three years or so. I will refer more to this in the debate on Amendment 136. If cases do not come before the courts for whatever reason, one cannot blame the investigation. Now it is conceded by Ministers and officials that Kenova does good work, but we are told it could not be upscaled, because it would be too expensive and investigations would take far too long. Jon Boutcher has made it clear that in his view the essential elements of Operation Kenova could be upscaled and investigations completed within a manageable timescale and not at an eye-watering cost.
I said at the outset that this is bad legislation. Our amendments could turn it into acceptable legislation and surely the Government are therefore duty bound to accept them.
Lord Cormack (Con)
My Lords, I was very glad to add my name to the amendment tabled by the noble Lord, Lord Hain, and will speak briefly in its support. I also pay tribute to the noble Baroness, Lady O’Loan, for the way in which she introduced this mammoth group of amendments.
As I listened to the noble Baroness, and to my friend, the noble Lord, Lord Hain, I kept thinking of those immortal words from the Irish story: “I wouldn’t have started from here.” What we have is a terrible ragbag of a Bill. Of course, I agree with the noble Lord, Lord Hain, that if our amendment were accepted, the Bill would be very significantly improved. However, we really need to go back to the drawing board here. The Bill is far too complicated and complex. It tries to treat a whole range of people with what I would call an artificial equality and, in the process, upsets everybody. We have heard that quoted time and again, at Second Reading and in the debates today. You cannot please everybody; you have to try to be fair and just. In particular, you must have regard for those who have been slaughtered or maimed in terrible incidents of which they were not the perpetrators and where they were seeking to defend what was right.
The House does not need me to give a whole series of encapsulations of dreadful events such as Enniskillen. But we cannot have this Bill because it does not recognise—as the noble Lord, Lord Dannatt, put it graphically earlier in our debate today—for instance, the proper desserts of the veterans of those forces who were seeking to defend, and who were not engaged in terrorist acts.
Lord Blair of Boughton (CB)
My Lords, I need to apologise for not attending Second Reading, but I want to support the amendments of the noble Baroness, Lady O’Loan, and the noble Lord, Lord Hain. We need to understand what Kenova is, and it is worth going back to understanding that it is an investigation of 200 murders. It is probably the most complex investigation in British criminal history. It also involves allegations of kidnap and torture.
In October, Jon Boutcher wrote this, which I want to read into the record:
“The Kenova interim report will address what was, and was not, happening between organisations; the Provisional IRA and its Internal Security Unit, the police, armed forces, intelligence services and their agents and informants. In particular it will focus on”
the Provisional IRA,
“which committed these murders and whether steps were, or were not taken by the security forces before these abductions and murders occurred to protect people, or subsequently to bring those responsible to justice. It will also comment on the state’s approach to investigating such cases and the nigh on impossible operating environment that confronted the security forces”.
He went on to say this about the Bill:
“My commitment to publishing the results of all of the Kenova investigations remains as strong as ever and this takes us a step closer to achieving this. While there is much discussion about the future of legacy following the Government proposed Bill, the Bill should not impact the release of Kenova’s findings”.
I simply could not agree more.
In a month’s time, it will be 48 years since the murder of a young man with whom I trained at the Peel Centre in Hendon. Stephen Tibble was five months younger than me and a month ahead in training; He was shot dead in west London by the IRA. For the first 15 years of my career, the world of Irish republican terrorism spread not only from Ireland to the rest of the UK but in particular to London. Quite a lot of Metropolitan Police officers also lost their lives in this struggle.
I join with those who have said that the Good Friday agreement was one of the great moments of our lives, because it is not for me to put myself forward in that way. The idea that the Bill will allow a way to end investigations into these terrible atrocities seems completely appalling. Personally, I agree with the noble Lord, Lord Cormack, that if the Bill is not amended to be run on Kenova terms, we must in the end oppose and defeat it in this House.
Baroness Ritchie of Downpatrick (Lab)
My Lords, I support the amendments in the name of the noble Baroness, Lady O’Loan. I have already added my name as a signatory to those amendments and to those in the name of my noble friend Lord Hain in relation to Kenova. In relation to the amendments to do with investigations, I want to see these investigations as an avenue to justice, so that that justice is still open to victims and members of the public. Investigations must not be closed down and justice must be provided for. The question arises: why would the Government want to remove investigations and who does this benefit?
The review process, which I think is to be undertaken by the ICRIR, is unlikely to meet all the requirements of an independent and effective investigation with the participation of next of kin, in line with the ECHR. Many believe that the main damage the legacy Bill will do is in closing off all the routes to justice that currently exist in Northern Ireland and replacing them with a single new body that has insufficient powers and is constituted in a manner likely to breach the European Convention on Human Rights—hence the amendments in the name of the noble Baroness, Lady O’Loan. They are absolutely vital because we want to see investigations and access to inquests. We want to see proper justice and truth recovery for all.
As I understand it, the ICRIR will lose those investigatory powers. I am sure that the noble Baroness, Lady O’Loan, will correct me if I am wrong in the next respect: that the police ombudsman will be prevented from investigating matters related to the Troubles, on top of the limitation on dealing with complaints already in the Bill. Legislation for dealing with police complaints in Scotland, England and Wales will also be blocked off from applying to Troubles-related conduct.
I had direct contact with the police ombudsman’s office in relation to the Loughinisland inquiry. The noble Baroness, Lady O’Loan, initiated that inquiry, which I think was way back in 2004—it seems such a long time ago. It was practically complete by the time she left and was then taken over by her successor, who did not see avenues of collusion. I remember saying at that time that he was being unfair to the victims and families, and that he should vacate the post. I think I said it in terms that were stronger and a little more derogatory than those, if I cast my mind back to 2011.
In the subsequent report by a previous police ombudsman, Michael Maguire, it was quite clear that he had worked further with families and with members of the RUC and the PSNI. He discovered large avenues of collusion in the midst of our community being perpetrated against ordinary people and denigrating very good police officers who were operating according to the rule of law. We must always remember that.
While the UK authorities continue to claim that the ICRIR reviews will be capable of Article 2 compliant investigations, using full police powers, human rights organisations such as the Committee on the Administration of Justice assert that this will not be the case, particularly for those who avail of the immunities scheme. Police powers will not be exercisable against persons who cannot be subject to criminal proceedings for an offence as they have immunity for it. However, I agree with the noble Lord, Lord Cormack, who says that, unless we—or rather the Government—go back to the drawing board, the Bill, as it is currently drafted, will fail before it even starts, because it does not command the respect of victims, political parties or the churches in Northern Ireland. Unless it has that cross-community support and support from victims, it is redundant.
I turn now to the amendment tabled by my noble friend Lord Hain about Kenova. We all know of the good work that has been done by Jon Boutcher, particularly in relation to Kenova, the investigations into the activities of the alleged agent known as Stakeknife, the Provisional IRA and the security forces. The interim Kenova report is drafted and about to enter a process of representation for those who will be adversely impacted by its findings. One thing that Mr Boutcher has done is liaise with the victims and their families at every possible avenue; they know exactly what is going on and what the next steps will be. He does that in a sympathetic and empathetic way, while also being very assertive in the job he has to do. Another amendment deals with the PPS in Northern Ireland being properly resourced to ensure that those files are not left lying on the shelf without any form of prosecution. So I am very happy to support all the amendments in this group, as I believe that the Kenova model, because it establishes the minimum standards for an ICRIR review, would be a very good model, if the Minister would consider accepting it.
While I am very happy to support the amendments in this group and to add my name to some of them, I feel that the current proposals in the Bill do not fulfil what is required for investigations. Yesterday morning, I listened to an actor playing the role of a victim who had been subjected to a paramilitary shooting. It did not say where he lived in Northern Ireland, but he was subjected to the most horrendous shooting incident that was witnessed by his own daughter through their front window after he returned from the pub. He was set upon by about three or four gentlemen and shot; to all intents and purposes, it was a punishment shooting. Therefore, in terms of that particular incident, I firmly believe that investigations must be central, because we have to find out who is responsible for those acts of terror.
Alan McBride was on the radio today speaking about Kenova. He is part of the WAVE Trauma Centre, and his wife sadly died in the Shankill Road bombing in October 1993. He is a firm believer in the Kenova model, because he believes that that would establish the minimum standards for ICRIR reviews and because it commands respect across the community and of so many victims’ groups—particularly WAVE, which has done such good work in this regard.
So I am very happy to support the amendments in the names of my noble friend Lord Hain and the noble Baroness, Lady O’Loan, because investigations must go along with reviews; without investigations, review is redundant and it makes the Bill redundant.
Baroness Hoey (Non-Afl)
My Lords, I will speak to my Amendment 34 about human rights, to which the noble Lords, Lord Godson, Lord Empey and Lord Bew, have added their names.
Human rights are usually invoked by people in support of their political position, without actually admitting or understanding that there is always a conflict of rights in most situations. This could not be more true of legacy in Northern Ireland. One right is always mentioned—Article 2 of the European Convention on Human Rights on the right to life—but of course there are other ECHR rights that should arise in a legacy debate. Article 6 is the right to a fair trial, which has implications for those whom the ICRIR will consider in its reinvestigations and public reports. Article 8 is the right to respect for private and family life, which applies to an even wider range of people caught up in every Troubles death, especially those who served in our Armed Forces and the police. Article 10 concerns freedom of expression and the right to a reputation, and this applies to another group, including those who are critical of lawfare for different reasons but who fail to get much reported by our state broadcaster in Northern Ireland, BBC Northern Ireland.
For over 20 years, following the McKerr judgment of the European Court in May 2001, the slogan “Not Article 2 Compliant” has been thrown around, not just by the advocates of lawfare but by too many figures in the criminal justice system. In the McKerr case—he was a member of the IRA killed on active service in November 1982 by members of the RUC—Strasbourg invented a new right. The court did not say that the UK had violated McKerr’s substantive Article 2 right to life, but the seven human rights judges said that a new right had been violated due to an alleged inadequate investigation. That right became known as “Article 2 procedural”. The UK was required to continue to investigate and to ensure that
“the next-of-kin of the victim must be involved in the procedure”.
I am sorry to say that, in the context of Northern Ireland and terrorism, there are some relatives who might have an interest greater than justice, such as discrediting the way police officers and soldiers resisted republican and loyalist terrorism during the decades of the Troubles—and Strasbourg does not deign to notice that.
There is a second McKerr line of cases in the House of Lords, and later the Supreme Court, which the Committee on the Administration of Justice and academics never mention. On 2 October 2000, the Human Rights Act 1998 came into force. The House of Lords, in another McKerr judgment in 2004, said that Article 2 compliant investigations did not apply to deaths before that October 2000 date. This position was left in place in domestic law by our judges in the McCaughey case in 2011, the Keyu case, a Malaysian case, in 2015, and the Finucane case in 2019. Then, in December 2021, in a key Northern Ireland case called McQuillan, the Supreme Court reaffirmed the rule of no Human Rights Act requirement for such investigations —which, essentially, were reinvestigations—before October 2000, with a qualification, based on some controversial Strasbourg jurisprudence, that a 10-year pushback was permissible. The helpful headline in the Times Law Report read, “Northern Irish police are not required to re-investigate incidents from the Troubles”.
Solicitor Patrick Finucane was murdered by loyalists in February 1989, some 12 years before the human rights commencement date. His killers have been convicted but the need for reinvestigation—a public inquiry, as Strasbourg and his family demand—remains an open question. Some human rights lawyers query whether Strasbourg’s 10-year rule is even arguable under the Human Rights Act 1998. If the Supreme Court judgments are relied on to turn down a Finucane public inquiry, and the Supreme Court said that the Government, for various other reasons, were not obliged to have one, the matter should be over and we would save up to £100 million. For this reason, I believe that the Government need to beef up their responses at Strasbourg —I note what the Minister said in answer to the previous debate about the Northern Ireland Office making overtures; it would be helpful if we could see some of those—because they have to start ignoring what is seen as an international lynch mob currently baying at the Northern Ireland Office over the Bill.
I look forward to the Minister explaining how, given the McQuillan judgment, much of Article 2 procedure now applies to the nearly 4,000 Troubles killings. In 2021, in a PSNI statement just after the judgment, Assistant Chief Constable Jonathan Roberts, who well understood the import of McQuillan, wrote:
“The Police Service welcome the clear legal ruling that there are no legal obligations arising from Article 2 ECHR to investigate these cases”,
including McQuillan. He continued:
“We will now carefully consider the judgments and their impact on the legacy caseload.”
Sadly, nothing visible has happened since that.
I am sure that, in answer to my amendment, the Minister will say that Section 6(1) of the Human Rights Act 1998 means that all ECHR articles would apply to the ICRIR’s work. If the Government are being pushed by the CAJ and Strasbourg into Article 2 procedure—as they have been in Northern Ireland Amendment 76, which the Government will move—by adding criminal investigations to the review process, why can they not also say in the Bill, using the Minister’s phrase, that other ECHR articles, particularly Articles 6, 8 and 10, will be in play?
Lord Hogan-Howe (CB)
My Lords, I rise briefly to support the amendments. First, I was struck during the debate by this distinction between investigations and reviews. Everyone agrees that investigations should follow but the question is whether there should be prosecutions. There are arguments around whether a review is really an investigation—do the families really get the facts? If we could agree that an investigation was not always followed by a prosecution, this may be something that we could start to agree on.
Secondly, it seems that there is a broad consensus that, as an approach, Kenova is good. The standards of connection to the families and of investigation have been supported by the people who most need this—namely, those who have lost family members.
Finally, there is a bit of a definitional issue around the difference between a review and an investigation, and we will have to address that at some point. One of the things about an investigation is that, obviously, there is always an interview with the suspect. It has to be conducted by the rules of evidence and there is the potential for a charge at the end. One of the dilemmas with any review, including Kenova, is that a review can consider material that is not evidence. I will make two broad points in that area.
First, as we have heard, Kenova is looking at intelligence material from other countries as well as from within the UK. It may be able to look at such material but it will not be able to quote it or quote it in a court. Secondly, it is impossible to use intercept material—intercepted communications, usually by telephone—as evidence in the UK unless it has been obtained in a jurisdiction in which it is legally possible to use it as evidence. It is ironic, but that is our system. Reviews are able to consider telephone communications that may be indicative of, but not evidence of, certain actions or charges. That dilemma has to be resolved at some point because although the reviewer may be led by such communications to conclude that one particular person was responsible or a crime was committed in a certain way, they cannot quote it in a court of law—it regularly now has to be held back in serious and organised crime and terrorism cases. The only information that can be quoted in a court is the fact that the telephone call occurred, the time it occurred, who was at either end of the communication, and, more recently, where they were when they made the call, because there is information on mobiles. I raise this not because it is an easy answer for the Minister to give but because it is fair to put that dilemma in this domain.
Lord Hain (Lab)
I thank the noble Lord for his support, which is extremely important. In making that important point, would he agree, with his long experience, that this kind of looking into the facts, if I can put it that way, through what I will call a review for these purposes, may not lead to that evidence going into court, for the reasons he explained, but could and does help considerably under Kenova, as I understand it, in the truth-recovery process, which is at the heart of this, in practical terms, for 99% of these cases, and what victims want?
Lord Hogan-Howe (CB)
I entirely agree. If you are able to say to a relative, “We are aware of a call and we know the content but we cannot tell you what was said”, you can start to fill that gap, which exists for every family, around what happened, when and how, and what the end was like—these are terrible questions to face, but it helps. I agree entirely: it is part of that truth-sharing, but, to be fair to everyone involved, I have to say that there is an evidential barrier which is available to help a reviewer but not a criminal charge.
Baroness Suttie (LD)
My Lords, I will be extremely brief, given the hour and the desire to move on to the dinner break business. From these Benches, we very much support the amendments of the noble Baroness, Lady O’Loan, to impose a function of investigation on the ICRIR, as well as one of review. She made very compelling arguments and I will not repeat them, but I hope that the Minister will take on board the strength of feeling in the debate on these amendments this evening.
I will speak briefly to Amendment 72 in this group, to which I have added my name. I was struck by the personal and powerful speech of the noble Lord, Lord Blair, as well as the practical suggestions of the noble Lord, Lord Hogan-Howe, for some ways forward. Perhaps we could take this forward with the noble Lord, Lord Hain, before Report.
The noble Lord, Lord Hain, made the case powerfully that the process being used by Jon Boutcher in Operation Kenova has cross-party support and has acquired the confidence of all those who have been directly engaged in it. Perhaps most importantly, it demonstrably works. As the noble Lord, Lord Hain, said, we do not need to reinvent the wheel. I suspect that virtually everyone taking part in this debate has spoken to Jon Boutcher. If you meet him, it is hard not to be overwhelmingly impressed by his commitment, dedication and drive. He is really committed to this process, and we should seriously consider it between now and report.
I urge the Minister to look closely at Amendment 72. I look forward to his response at the end of this group, not least to some of the questions that have been asked on the Government’s response to the option of upscaling the processes used in Operation Kenova, which seems to me to be a preferable approach compared to the proposals in the Bill.
Lord Murphy of Torfaen (Lab)
My Lords, if I were still Secretary of State for Northern Ireland and someone had suggested to me that the Bill should be introduced and then, immediately after suggesting it, said that all the international bodies concerned with human rights, Members of Congress in the United States, every single political party in Northern Ireland, every Church in Northern Ireland, and more or less everyone in Northern Ireland was against it, you might understand what my response would have been. The Bill certainly would not have ended up in this Chamber.
What I do not underestimate is the problem that the Minister and Government face. Of course, we have to try to resolve these issues—we have been 25 years trying to resolve these issues, and we did not do it when we did the Belfast/Good Friday agreement, because there were all sorts of other things to do. We have tried and tried, not least with the Eames-Bradley report, which I am sure the noble and right reverend Lord remembers. However, there is a dilemma: should the Government abandon the Bill—should they dump it? I think they probably should—or should it be improved? That is the work of the House of Lords, which is trying to improve it, to see whether there is any consensus at all among political parties here and in Northern Ireland as to what should replace it.
Lord Caine (Con)
As if I need reminding. I am grateful to all who have contributed to this extensive and far-reaching debate. The noble Lord, Lord Hain, referred to my all-Peers letter in which I described this legislation as “challenging”. I assure him that that word was not chosen by the Civil Service—it was inserted by me. I think that the intention could best be described as ironic understatement.
I am also grateful for the words of the noble Lord, Lord Murphy of Torfaen, about the role of this House and the attempts to improve the Bill. I genuinely hope that, whether one agrees with my amendments or not—and I suspect from what I have heard across the Chamber that a large number of your Lordships would fall into the latter category—it is recognised that I am trying sincerely to improve the Bill as best as I can, and will continue in those endeavours.
On the various amendments before the Committee, as noble Lords are aware, the legislation establishes the commission to carry out reviews of Troubles-related deaths and incidents involving serious injury. I have tabled Amendment 76 to make it clear, I hope, beyond any doubt that the commissioner for investigations is to decide whether a criminal investigation should form part of a review in any case that is considered by the commission. I reiterate the point that, under the legislation currently before the Committee, “review” is intended to be an umbrella term that can include a criminal investigation. We have tried to take on board some of the concerns and criticisms over the use of that word.
In the Government’s view, the amendment that I have tabled would confirm very clearly that the Government can meet and deliver on their international obligations in respect of investigations. The Bill does this by ensuring that the commissioner for investigations, as a person with the powers of a police constable, has access to the complete range of investigative measures, including as part of a criminal investigation, while giving them the discretion and flexibility to determine how they can best fulfil the needs of victims and survivors.
I completely understand that the noble Baroness, Lady O’Loan, who proposed a series of amendments, does not agree, and does not believe that the amendment goes far enough. In all honesty with your Lordships, I tread warily on this issue of the ECHR. I am not a lawyer, unlike the noble Baroness. The Government’s position on this is that obviously it follows that, when immunity is granted by the commission, the commission will not be capable of following that with a process leading to a prosecution or the punishment of an individual concerned. Nevertheless, the Government consider that result to be compatible with their international obligations, for the following reason. The absence of a prosecution or punishment outcome in individual cases where immunity is granted can, in the Government’s view, be justified on the basis that the conferral of such immunity in those circumstances, in a limited and specific way, is necessary to ensure the recovery of information about Troubles-related deaths or serious incidents that would not otherwise come to light. Such recovery is an important part of trying to help society in Northern Ireland move forward. I think we will touch on that issue further in a later group of amendments.
I turn to the amendments in the names of the noble Lord, Lord Hain, and others. The Government do not believe that it would be appropriate or effective to stipulate that all reviews must entail criminal investigations, which would be the effect of Amendment 72, or that in some cases a criminal investigation, and only a criminal investigation, must be carried out. There are circumstances where families might wish simply to gain a further degree of information about something that happened on the day, about some specific aspect of what happened, and we would envisage that the commission in those circumstances might determine that a short review is all that is required to answer a small number of specific questions—and that information might be readily available in the archive of material available to the commission without having to go down the criminal investigation route.
We believe that stipulating that all reviews entail criminal investigation would—I do not think the noble Lord will be surprised to hear me say this—add a significant amount of time and resource to how long it would take the body to work through its caseload and prevent it being able to prioritise appropriately. We are clear that, in all cases, the commission will be able to conduct full, effective investigations capable of discharging our obligations. The commission will have all the necessary powers to conduct investigations, including the powers and privileges of a police constable, the power to compel evidence from witnesses and full access to state records.
As I said in response to an earlier group, it is of course vital that the commission is informed by best practice from elsewhere, including Operation Kenova, which I agree with many noble Lords across the Committee has achieved very positive outcomes in building strong relationships with victims and helping them to better understand the circumstances around what happened to their loved ones. Like many noble Lords across the Committee, I have met Jon Boutcher on a number of occasions and continue to engage with him, and I pay tribute to him for the work he has carried out—specifically for the way he has conducted relations with families.
Lord Hain (Lab)
I understand the Minister’s point about some cases. The fear of victims is that “review” will be just a desktop job, that they will not be looked at—to underline the point that the noble Lord, Lord Hogan-Howe, made—to get at the truth in a way that Boutcher has been able to do. Yes, it does take time and resource, but if you do not know what the information is, because it is in files you have never had access to in the way that Jon Boutcher has, how can you possibly say that you can close off a case with a short review, even though it will cost less money?
Lord Caine (Con)
I am grateful. What I had in mind with short review is that if there are specific facts to which a family does not have ready access, they can go to the commission and ask: “We just want to know a bit more about what happened” on a particular day, and those facts can be very easily turned up by the commission, just by looking at its records, the archive, et cetera. That would be an appropriate way of responding to such a request.
To reiterate, the commissioner for investigations will have all the powers of a police constable, will have access to all the relevant information and, crucially in the legislation, will be somebody who has to have experience of investigations in Northern Ireland or elsewhere. So, it really will be for the director of investigations to exercise his or her judgment and discretion, but of course my amendment—I should say that we believe the legislation as drafted would allow for this anyway—makes it very clear that a full criminal investigation will be available to the commission should that be the decision of the director of investigations.
Lord Caine (Con)
Not the Secretary of State but the director of investigations, because the commission will be operationally independent from government.
In paying tribute to Jon Boutcher for the work he has done, a number of noble Lords, including the noble Lord, Lord Hain, spoke about scaling up Kenova. I do not have the transcript in front of me, but the noble Lord referred to Mr Boutcher’s evidence to the Northern Ireland Affairs Select Committee in the other place. He acknowledged that, while some aspects of his work could be built on and scaled up, not all of it could, so there are difficulties.
To give an example of the scale of this, the noble Lord’s amendment would require a criminal investigation in every case, and given that the Police Service of Northern Ireland currently has a caseload of around 1,000, the danger is that we would spend significant resource, but also, more importantly, significant time, dealing with this backlog, which would mean that we would spend almost as long investigating the legacy of the Troubles as the Troubles themselves lasted, which I think is not something anybody wants.
Baroness O’Loan (CB)
My Lords, I thank all those very powerful voices that have been heard in the Chamber tonight. I also thank the Minister. I will speak briefly—I know noble Lords are all waiting for their dinner—but I want to say a word in response to the Minister’s assertion that the absence of prosecution can be justified on the basis that the conferral of immunity is necessary to ensure recovery of information which would not otherwise come to light. We will come back to this on group 6, but I cannot understand how the possibility of immunity leading to disclosure of hitherto unknown information justifies departure from the requirements of Article 2. In the conduct of an Article 2 investigation, as the Minister has said, there is a requirement to take note of and comply with not only the requirements of our own criminal law but the procedural requirements of Article 2 and the other articles of the convention.
With great respect, I think the Minister’s comments on the historic backlog, the 1,000 cases that the PSNI currently has and the need to deal with them as proposed in the Bill explain why the Bill is not Article 2- compliant. Although there is provision in the Bill for the establishment of an investigative arm of the commission, and for persons being accorded police powers, such as powers of arrest, search, seizure, et cetera, those powers are necessary to carry out investigations, and that means that the structural investigation construct of the Bill really resembles that of police forces, the Police Ombudsman, the IOPC and the NCA. What is different about the Bill are the arrangements for access to criminal investigations and the extent to which the Secretary of State is empowered by the Bill to provide guidance, which must be complied with unless it can be shown it is reasonable not to do so. The Secretary of State has other powers to control and regulate the operation of the commission. Those powers are excessive and, I will argue, unnecessary, and they detract from the independence of investigation, which is fundamental to ECHR-compliant investigation.
I am not going to engage in argument with the noble Baroness, Lady Hoey, about the effect of McQuillan —we may come back to it anyway—but, having regard to the lateness of the hour, I beg leave to withdraw the amendment.