Northern Ireland Troubles (Legacy and Reconciliation) Bill

Committee stage
Tuesday 24th January 2023 Lords Chamber

Committee (1st Day) (Continued)

20:37

Amendment 5

Moved by

[Baroness O’Loan]

5: Clause 2, page 3, line 18, at end insert “unless an investigation is one to which subsections (2) and (3) of section 17 apply”
Member’s explanatory statement
This amendment removes the duty to produce a report on the finding of any investigation until the matter under investigation has been dealt with by the Prosecutor.

[Baroness O’Loan (CB)]

My Lords, these amendments relate to the reporting functions of the commission that will be established by the Bill. Noble Lords will know that the process of reporting and producing a report for public consumption is enormously important because it complies with the requirements to be open and transparent about the work that has been done.

At the same time, those who report must rightly engage in a complex but necessary fairness process—a process in which one has to consider all one’s obligations to all the various actors mentioned in the report. I did so most recently in June 2021, when I reported on my work for the Home Secretary in relation to the Metropolitan Police Service’s handling of the case of Daniel Morgan. The fairness process at the end of that report lasted months and months, because it was so important to ensure that letters went to everyone who might be mentioned and even very faintly criticised in the report, to receive their responses and then to produce a report that reflected precisely what we wanted to say. I am very much aware, as I am sure noble Lords are, of the difficulties attached to this reporting process.

These amendments apply to the reporting process following review or investigation because of the other amendments I have tabled. Amendment 5 in my name removes the requirement to produce a final report on an investigation if that investigation has been subject to a referral to the prosecutor under Clause 23 and the prosecutor has yet to make a prosecutorial decision or a prosecution has not occurred. This is an amendment to Clause 2, so it is the first time the Bill is introducing the functions of the commission, and one of those functions is to report. The amendment says simply that you do not have to do so if there has been a referral to the prosecutor and it is not resolved. I want to put that in the Bill to prevent any expectation that there is an obligation to report in these circumstances. I think that expectation would exist but for this amendment.

Similarly, Amendment 89 to Clause 15 would mean that the Chief Commissioner is under no obligation to produce a final report or to provide the specified information where a matter has been reported to the prosecutor. Obviously, where an investigation has occurred it is not possible to provide the information referred to in Clause 15 until all prosecutorial possibilities have been exhausted. This is to protect the integrity of any investigation that has occurred.

Amendment 98 refers to the requirement in the Bill to provide a copy of a whole report to somebody who is criticised in it. I may have misread or misunderstood the impact of this clause, but I think the Bill requires the commission to send the report to anybody who has been criticised in it. I am suggesting an amendment that would introduce a process similar to that of the Salmon or Maxwellisation principles and would require only information that relates to the criticism of the individual in question to be shared with that individual, not the whole report. Were the whole report to be provided, it would give the individual who has been criticised access to information about other criticisms and other information that it may not be appropriate to include before the final editing of the report. For example, the commissioner might find that his criticisms were not justified when he gets a response from those to whom the material has been provided. Clause 15(11) may be attempting to deal with this problem, but it is not clear what is meant by that subsection. I do not know whether the Minister will be able to enlighten us as to the extent of that subsection and how it applies. I hope that the amendment as suggested would limit the obligation on the commissioner while still satisfying the requirements of fairness for those who are criticised and still enabling him or her ultimately to produce the necessary report.

Clause 15 provides that if there is a criticism of the criticism, the commissioner will exclude the material. In Amendment 100 I suggest that it is very helpful, when one is producing the material, if one can modify the material that one has sent out, rather than exclude it in its entirety. There may well be issues that still need to be raised for the purposes of completeness and accountability in reporting. I think it would give the commissioner much more flexibility and allow the production of a fair but more complete report.

Clause 24(4) provides that the commission may not request information from a victim or survivor of the Troubles or their family member. Clause 24(5) modifies that slightly by providing that information can be sought if they hold a public office or something like that. To enhance the confidence of victims in the proposed process, my Amendment 141 provides a right for such a person to provide information. I think that is important in caring for victims.

Amendment 142 is a probing amendment, simply to consider the circumstances in which confidential information should be available to the ICRIR for the purposes of historical reports. For example, I have seen multiple situations in which information held by organisations such as the PSNI, the RUC or the Metropolitan Police has been marked confidential despite the fact that, even by government marking standards, it does not warrant such classification. When you are confronted with information marked confidential, you can challenge the classification and get it downgraded so that it does not attract the protections that confidential information attracts, but I think it is important for the Minister to consider whether it is possible to arrange for situations in which information that may have been marked confidential might be made available for historical purposes.

20:45

Similarly, if a person has been, for example, a counsellor for a rape or murder victim’s family in a case covered by the Bill, they would have an obligation of confidentiality to that person. However, it may be that the person to whom the obligation is owed would be content to release the counsellor from the obligation. It is also the case that confidential marking in post by an organ of a state other than, for example, the police could be amended to reflect the marking which should have occurred originally. Really, the purpose of these amendments is to enable the placing of as much information as possible in the public domain and on the historical record. I think that is what is intended by the Minister.

Finally, I move to Amendment 136, which requires the provision of adequate resources for the commission. The cases arising in 1966 to 1998, as defined in the Bill, occurred very significantly during the period when Northern Ireland was subject to direct rule. We did not have our own Assembly and the UK Government were running the show: things happened on their watch. It is therefore incumbent on the Government to ensure that the resources are provided and not require those resources to be provided by the current Government of Northern Ireland out of their current budget. These events were all under the watch of the Government and it would be appropriate for the ICRIR to be appropriately resourced to enable it to conduct the work it must conduct. I beg to move.

[Lord Bew (CB)]

My Lords, I will speak to Amendments 99 and 101 in this group, which are in my name and those of the noble Baroness, Lady Hoey, and the noble Lords, Lord Empey and Lord Godson. As we have just heard from the noble Baroness, Lady O’Loan, the amendments are designed to focus on the possible functioning of the commission, the ICRIR. I think I will say “the commission” and follow the Minister’s advice on that: I do not want to struggle late at night with that mouthful of letters.

I say first to the Minister that it has been a hard day’s work. He has all my sympathy and is entitled to feel, given the amount of work and effort he has put into this Bill, that he has also somebody who supports the Bill, albeit somebody who is coming up and raising difficulties, although I hope of a containable sort. That might be a little bit more than flesh can bear at this stage in the proceedings.

I want to address an issue that has been at the centre of discussion during the week in Belfast: the article by Neil Faris in the Belfast News Letter—three articles in fact—about the possible functioning or the future functioning of the commission. It is perfectly possible that some of the concerns that exist and are expressed in those articles may be overstating and the Minister can allay them. But essentially my two amendments are both directed in that respect. They seek to balance the rights of those who may be named in reports with the rights of those requesting reviews, and particularly (6A)(a), (b) and (c) in my amendment are designed to achieve that end.

In the case of Amendment 101, it is a linguistic change, again with the same objective of balancing the rights of those who are at the other side of this process with those actually carrying out any review. One key point I want to make is quite simply that we have talked a lot already about what is or is not Article 2 compliant. But the UK Government also have a responsibility with respect to Article 8, respect for private and family life, and Article 10, freedom of expression, and both these rights also must be respected.

The particulars in new subsections (6A) and (6B) draw on best practice in the world of civil litigation, particularly inquiries by public bodies into alleged misconduct falling short of criminality. I would be happier if I felt that the Government were considering this best practice and how it has evolved, particularly since 2016, to ensure fairness when the commission indeed gets up and running. There are concerns at the moment about how the commission might actually work in practice. Those are concerns that the Minister and the Government have the capacity to meet, and that is really the point that lies behind my amendments, which are also in the name of the noble Baroness, Lady Hoey: Amendments 99 and 101.

[Lord Hain (Lab)]

My Lords, in speaking—briefly, the Committee may be pleased to hear—to Amendment 136, I again thank the noble Lords, Lord Hogan-Howe and Lord Blair, and the noble Baroness, Lady O’Loan, for adding their considerable names. I am indebted to the noble Baroness for her forensic analysis and for bringing her long experience into the debate through her amendments.

We all understand that, due to the age and complexity of legacy cases, prosecutions will be rare—very rare—but it is important that the Public Prosecution Service for Northern Ireland is sufficiently resourced, with appropriately skilled and experienced lawyers, to promptly review cases referred to it by the commissioner of investigations of the ICRIR, and that is not happening at the moment in respect of the Kenova model. Families have been waiting many years to understand what happened to their loved ones. Delays in prosecution decisions must not be allowed to prolong the wait still further.

Currently, legacy cases are glacially slow, to be decided upon by the PPS Northern Ireland, and, when a decision to prosecute does result, those cases can be expected to take five or more years to come to a conclusion. These cases involve recurring legacy issues and present specific legal challenges, such as the admissibility of evidence, hearsay and the continuity of exhibits. They need to be dealt with by lawyers with experience and expertise in these matters. As an example, Operation Kenova now has 33 files with the PPS Northern Ireland for consideration. The first tranche of files was submitted in October 2019, over two years ago. For most of these cases, families have been waiting for more than 25 years, and in some cases almost 50 years.

The PPS Northern Ireland prioritisation criteria mean that legacy files are effectively put in a queue for examination, as resourcing and demand allow. Understandably, perhaps, given the resources available, priority is given to cases relating to current offences, so the review of legacy cases slips further and further backwards, to the frustration and unnecessary additional traumatisation of the families concerned. The Bill claims to be victim-focused, but it is time that legacy legislation actually demonstrated such an intention because, as currently drafted, it does not do so.

The way that the Public Prosecution Service for Northern Ireland reviews cases differs considerably from the way that terrorism cases are dealt with by the Crown Prosecution Service in England and Wales. The CPS has a specialist counterterrorism division that engages with the investigation team as soon as a file is submitted. Early joint case conferences with senior counsel and the investigation team are held to assist in understanding the evidential strengths and weaknesses of the file, enabling further evidential recovery and facilitating prompt decision-making. This collaborative approach allows a more informed understanding of the cases and speedy and effective decision-making. The PPS Northern Ireland simply does not have the resources to dedicate lawyers to legacy files in this way.

As part of this Bill, it is important that sufficient funding is allocated to the Director of Public Prosecutions for Northern Ireland to review files and make timely and good decisions on them. It is essential that the creation of the ICRIR is supported by robust operating practices within the Public Prosecution Service for Northern Ireland that must be adequately resourced to deal promptly with legacy files referred by the ICRIR Commissioner of Investigations.

In conclusion, the Minister cited resources as one of the reasons why he questioned the validity of the Kenova model being inserted into this Bill, as I am proposing to do on Report. The alternative to adequately resourcing this—and Jon Boutcher has already disputed that it will involve massive resources, at least compared to what has been devoted to these legacy cases in the past—is leaving victims betrayed. What is the point of this legislation unless it is to give some relief, closure and sense of justice, as well as, crucially, truth recovery, which is the predominant objective victims are seeking? If this Bill does not deliver that, and if the model adopted does not have the resources to deliver that, then it will fail in its objective, and we might as well say so. If the Government are going for a resource-thinned, slimmed-down operation, as I am afraid this Bill seems to propose—and the Minister’s response to the previous debate seemed to indicate that resources are one of his top concerns about the Kenova model—then they will leave victims completely dissatisfied. I do not think that is where your Lordships’ House wants to be, and I do not think that is where legislation seeking to bring to a head this whole legacy trauma should be either.

[Baroness Smith of Newnham (LD)]

My Lords, I speak for the first time on this legislation. During Second Reading, I was in the south Atlantic on the 40th anniversary of the liberation of the Falklands. Having expected to be fully part of the legislation, I have not been so far. I speak with a fair degree of trepidation because there are clearly so many experts and former Secretaries of State. When I speak on my normal portfolio, I feel as if I am probably just about pitching things right, and I hope this evening I manage to get the tone right.

First, I join the noble Lord, Lord Hain, in pointing out that we are indebted to the noble Baroness, Lady O’Loan. So many of the amendments on this Bill have been framed by the noble Baroness, who has reviewed the Bill forensically as far as anybody can tell. She has certainly caused these Benches to look at and think about some of the issues that have been raised.

In reporting, there is always a balance between needing to have appropriate reporting and putting too many requirements on to Ministers, officials and others. It is a tendency for opposition parliamentarians when amending legislation to say, “We’d like the Government to report on something.” Amendment 5 makes a lot of sense; we should not have excessive reporting expectations.

I have a few questions about the extent of the pressure we are putting on officials. Would we be able to deliver some of the amendments being proposed? Also, one of the issues that has come up across this group seems to be about resources. One of the issues for your Lordships’ House is that, if something is deemed to be a finance Bill—if we say there needs to be resources—at some point the other place might say “That is not your remit.”

One of the things I want to ask the Minister is the extent to which he envisages it being possible for the Government to look at the appropriate resource to enable the aims and ambitions of the Bill to be fulfilled. As the noble Lord, Lord Hain, pointed out, there is not a great deal of point in pushing through legislation, which in itself is disputed and contested by so many, if, in the end, victims feel that their cases are not being looked at adequately. Can the Minister either tell the House or undertake to go away and consider whether it is realistic to be thinking about resources to ensure that His Majesty’s Government will provide additional funding to investigate legacy cases, so that those do not fall on the budget of the current Government of Northern Ireland? That seems to be something which we ought to look into.

21:00

I have a couple of other questions relating to Amendment 98, in the name of the noble Baroness, Lady O’Loan. There was talk about a Maxwellisation process; is that realistic? Does the Minister think that offering somebody the opportunity to comment on some aspects of a report about themselves, and not the whole report, is a viable approach? Or when the report comes out, is somebody likely to say, “That doesn’t reflect what I said”? I have some concerns about that.

Similarly with the amendments put forward by the noble Lord, Lord Bew, the first part of Amendment 99 appears very sensible and to be fairly well delimited. But on the second part, proposed new subsection (6B), one concern is whether it would be proportionate if we are suggesting that

“the Chief Commissioner has used his or her best endeavours to locate a close family member”

and so on. If the Minister were minded to accept this amendment or something like it, would it be possible or desirable to define a little better what could be meant by “best endeavours”? Again, we could be looking at putting a lot of resource into some activity that might be really difficult. All these amendments have some merit, but with Amendment 99 there are some questions about its proportionality.

[Lord Murphy of Torfaen (Lab)]

I think the amendments are very sensible, they come from sensible people and the Minister should take them very seriously. They improve a Bill which we do not like, as we are again in this dilemma. Nevertheless, the amendments of the noble Baroness, Lady O’Loan, and the noble Lord, Lord Bew, really are worth investigating and we would support them.

My noble friend Lord Hain again has made an extremely sensible suggestion that we need to look at the resourcing. In the case of his amendment, that is with regard to prosecution, but the noble Baroness, Lady Smith, has made the very valid point that the whole apparatus that is to be set up by the Bill needs to be resourced. We are not in good financial times, so I am assuming that the Government have costed what all this will take and that it will be put into a Budget. We will have the Budget in a week or two’s time, so it is probably too early yet for the establishment of these institutions. Nevertheless, these are hugely important issues, not the least of which is linked to time. People should not have to wait a long time to have their case heard because there are no resources for it. We look forward to the Minister’s reply.

[The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)]

I am grateful to the noble Lord, Lord Murphy of Torfaen, and will, as ever, seek to deliver a sensible reply. My friend the noble Lord, Lord Bew, referred to this having already been a hard day’s work. I trust that it will not turn into a hard day’s night—but enough song references for this evening.

I turn to the amendments introduced by the noble Baroness, Lady O’Loan. Clause 15 places a duty on the chief commissioner to produce a final report on the findings of each review that the commission has carried out, as soon as is practicable once the review has concluded. This, as noble Lords will recognise, is designed to support information recovery.

However, where the commissioner for investigations has referred a case to prosecutors for possible prosecution, Clause 17(2) and (3) already require the chief commissioner to postpone publication of the final report pending a decision by the prosecutor, or the outcome of any criminal proceedings which might flow from that decision. In the Government’s view, therefore, Amendments 5 and 89 are not needed as the Bill already achieves their purpose.

I note the noble Baroness’s comments on sharing reports, which I take seriously. The commissioner will of course be subject to the safeguards set out in Clause 4, but I am happy to sit down with her and the noble Baroness, Lady Smith of Newnham, whom I welcome to our debates, to discuss the matter further. Where the legislation makes reference to “material” criticising an individual under Clause 15, it means

“material which, in the Chief Commissioner’s view, constitutes significant criticism of a living individual who was involved in the conduct forming part of the Troubles, or other harmful conduct … to which a review relates”.

I am advised that language in that space is aligned with the Inquiries Act, but, as I have said, I am very happy, between now and the next stage, to sit down with the two noble Baronesses to discuss those matters further.

My friend, the noble Lord, Lord Bew, rightly considered the importance of ensuring that the commission should follow best practice in carrying out reviews within the exercise of its power. The commission is already under a clearly defined obligation in Clause 4, to which I have just referred, not to do anything that

“would risk putting, or would put, the life or safety of any person at risk”.

It is the Government’s view that this safeguard is wide enough to offer sufficient protection to the rights of anyone likely to be named in reports. Therefore, in our view, the amendment is unnecessary. Additionally, we would expect the commission, as a public body, to maintain high standards and follow best practice when discharging all its functions, including those which relate to naming individuals in reports—but, as ever, I am very happy to discuss that further.

The noble Lord, Lord Hain, the former Secretary of State, referred to prosecutions and acknowledged, as he has done throughout, that the prospect of prosecutions is very rare. It is worth remembering, when looking at this legislation, that the most recent case that will be examined by the commission is now over a quarter of a century old, and the oldest case is just slightly older than me. I will be 57 in April, for those who are unaware.

[Lord Hain (Lab)]

He is a young man.

[Lord Cormack (Con)]

He is a very young man.

[Lord Caine (Con)]

I am a child in your Lordships’ House.

We are looking at cases which go back very many years and where, as the noble Lord rightly says, the chance of prosecutions is rare. In response to his amendment requiring the Secretary of State to make payments where conduct has been referred, I do not think he will be remotely surprised to hear me repeat what I have said in the Chamber on a number of previous occasions in response to him and the noble Baronesses, Lady O’Loan and Lady Ritchie of Downpatrick, the latter of whom is not in her place, unfortunately: that funding for the Public Prosecution Service for Northern Ireland is a devolved matter, and one for the Executive to consider.

I will say, almost in parenthesis, that I understand the comments about resource, but I have spoken to senior members of the legal profession in Belfast. While they would of course always welcome more resources, they are also adamant that the speed with which some of the cases proceed is not entirely down to resourcing; there are other issues involved. Having said that, I remind the Committee that the 2021 spending review set out historical levels of funding for the devolved Administrations, including the Northern Ireland Executive. Spending per head in Northern Ireland is already the highest of any region of the UK: Northern Ireland receives 21% more funding per head than the UK average. Also, a sizeable amount of money— £250 million, to be exact—will be made available by the Government to fund the institutions established by the Bill, including the investigative function of the commission.

I turn now to the noble Baroness, Lady O’Loan, and her amendments—

[Lord Hain (Lab)]

I apologise; I do not want to detain the Committee, but what proportion of that extra spending or allocation that the Minister said Northern Ireland gets compared with other parts of the UK is down to the unique security needs of Northern Ireland that are not present elsewhere in the UK?

[Lord Caine (Con)]

A lot of it is determined by the Barnett formula, but, in large part, it is not just security but the additional needs that Northern Ireland has. I have no issue with the additional spending: it is right that, as part of the United Kingdom, Northern Ireland benefits from the same levels of service as every other part, and that should continue. But the additional spending is not just down to security, by any means.

[Baroness O'Loan (CB)]

Is the Minister sure that Northern Ireland benefits from the same level of services as the rest of the United Kingdom? Our waiting lists are very much longer than any in the health service here—far more people are waiting for appointments there than here—and we have major difficulties in our education system because of funding matters. So the service is not the same.

[Lord Caine (Con)]

I completely appreciate the point made by the noble Baroness. To some extent, the problems there are exacerbated by the lack of a devolved Administration between 2017 and 2020: we are still living with the consequences of there being no decision-making during that period, when Sinn Féin pulled down the institutions. Of course, we are also suffering from the lack of a functioning Executive at the moment. I suspect that we might return to some of these issues when we debate the Northern Ireland Budget Bill in your Lordships’ House in two or three weeks’ time. However, I accept that the situation, particularly regarding health and waiting lists, is considerably worse in Northern Ireland, but we stand by the principle that Northern Ireland, and all parts of the United Kingdom, should benefit from the same levels of service.

I turn to the noble Baroness’s amendments on the historical record. If families do not request an investigation into the death or serious injury of their loved one, or their cases are not referred to the commission by the Secretary of State in circumstances where he has deemed it appropriate to meet international obligations, the researchers responsible for compiling the record will use only publicly available information and will not contact families. This is of the utmost importance because we know that, for perfectly understandable reasons, a number of families in Northern Ireland would rather not resurrect the past, and we entirely respect that. Nothing in the current drafting prevents individuals voluntarily providing information to the commission, but, again, I am happy to continue to talk to noble Lords on this matter. On that basis, I urge the noble Baroness to withdraw her amendment.

[Baroness O'Loan (CB)]

My Lords, once again, I thank noble Lords for their contributions on these issues. Amendment 136, on the need for funding for prosecutions, covers a very complex and sensitive issue. The reality is that a case takes an average of three years—probably longer now in Northern Ireland—to come to prosecution once it is presented to the prosecutors. With the various stages of the trial process, it lasts a number of years. If the commission has a lifespan of five years for the receipt of information, with a consequential period for investigation, which may well exceed a year for each one, there will be difficult problems in trying to process cases. Quite simply, we are trying to do too much in a limited amount of time with limited resources. That is why I am afraid I have to challenge the Minister again on his assertion that the money must come from the current Northern Ireland budget—it quite simply is not there. I hope that the Minister will recognise the need to resource both investigations and prosecution.

If we set up a commission to deal with the past and it is capable of doing what Jon Boutcher has done in Kenova, which I am serving on, and the cases go into a black hole called the prosecution service and nothing comes out the other end, conclusions will be drawn about what Parliament’s intentions were in setting up this legacy process—and they will not be positive conclusions. I just reiterate that issue.

The noble Baroness, Lady Smith of Newnham, made very valuable and thoughtful contributions. In relation to the question of whether it is possible to give a criticised individual a partial report, rather than a whole one, report writers have to take into account the privacy rights of the individuals who appear in the report, whether they are named or might be recognised by the role that they hold. There is that need to try to balance the need to ensure accountability and transparency with the proper protection of the privacy rights of others. My amendments seek to make the process of preparing those reports more compliant with all the requirements of fairness.

21:15

The other issue that is relevant is that it is normal practice in this type of work to supply to the criticised individual only that part of the report that refers to them. I reference, for example, the provisions of the Inquiries Act—it is late at night, but I think it was 2005—which provides in Section 13, I think, for letters to be sent to people providing the criticisms that are made against them but not providing the whole report. So this is standard practice, and I think that it would work in these circumstances. I very much welcome the Minister’s commitment to further discussions on these issues. I beg leave to withdraw the amendment.

Amendment 5 withdrawn.

Amendment 6

Moved by

[Lord Caine]

6: Clause 2, page 3, line 26, at end insert—
“(4A) At least three months before the start of each financial year the ICRIR must—(a) produce and publish a work plan for that year, and(b) give a copy of the plan to the Secretary of State.But this duty does not apply in relation to any financial year which starts before 1 April 2024.(4B) A work plan must deal with the following matters—(a) the caseload which the ICRIR is expecting;(b) the plans which the ICRIR has for dealing with its caseload;(c) the plans which the ICRIR has for engaging with persons entitled to request reviews of deaths and other harmful conduct;(d) policies which the ICRIR is planning to introduce, review or change;(e) such other matters as the ICRIR considers appropriate.”Member’s explanatory statement
This would require the ICRIR to produce a work plan for each financial year before the start of the year.

[Lord Caine (Con)]

My Lords, I beg to move the amendment in my name. Most of the amendments in this group are technical in nature, and as such I shall try at this late hour not to dwell on them too long.

Amendments 6 and 189 are designed to ensure that the commission produces and publishes a work plan for each financial year. Amendment 7, 10 and 11 make changes to the existing provisions on annual reporting, bringing them in line with the process for producing a work plan. This will ensure that the commission has properly considered, and planned for, its expected caseload in each financial year. This is similar in rationale to comparative provisions in other legislation, including the Domestic Abuse Act 2021, which requires the Domestic Abuse Commissioner to publish strategic plans and annual reports.

I have also tabled a series of technical amendments that are clarificatory in nature. Amendment 17 deletes a reference to a commissioner having been removed from office on grounds of ill health, as ill health is not a ground for removal from office. Amendment 18 ensures that the definition of “insolvent” which applies for the purposes of the provision on the removal of commissioners also applies for the purposes of the provision on the appointment of commissioners. Amendments 19 and 31 update the provisions about the application to the commissioners and commission officers of the law relating to the rehabilitation of offenders. They ensure that the Bill reflects the current approach taken in law.

Amendment 32 ensures that the commissioner for investigations, who is also a commission officer, falls only within paragraph 14 of Schedule 1 as a commissioner and not also within paragraph 20 as an ICRIR officer. Paragraphs 14 and 20 make equivalent provision to ensure that the prohibitions on trade union activity that govern the police do not apply to the commission.

Amendment 42 avoids overlap with provisions of the Assaults on Emergency Workers (Offences) Act 2018, which will apply to designated commission officers operating in England and Wales. Amendment 194 changes the definition of “reserved provision” with regard to this legislation, reflecting the fact that Section 8(b) of the Northern Ireland Act 1998 requires consent to a Bill rather than to the Act itself. The commissioner for investigations will have the powers and privileges of a constable and be able to designate other commission officers with police powers as required.

Amendments 179 and 181 will enable the commission to enter into bespoke agreements with relevant oversight bodies—namely, the Police Ombudsman for Northern Ireland, the Independent Office for Police Conduct in England and Wales, and the Police Investigations and Review Commissioner in Scotland—regarding arrangements for external oversight of the commission’s use of police powers. This will ensure that powers are used proportionately.

The Bill as drafted includes consequential amendments giving the commission the power to request communications data directly from UK companies. Schedule 12 currently gives the commissioner for investigations the power to grant authorisations to obtain communications data for the purpose of preventing or detecting crime or preventing disorder under the Investigatory Powers Act 2016. However, following further consideration, it is the Government’s view that providing the commission with such powers would be disproportionate, particularly given the complex statutory regime associated with such powers and the scope of the commission in relation to the review of historic cases, the most recent of which, as I said in my response to the last group, are more than a quarter of a century old.

It is important to note that telecommunications operators are required to comply with the Data Protection Act, meaning that they would need a business justification for retaining communications data from 1998 and before. Therefore, the likelihood of providers holding relevant data for the purposes of the commission’s functions is very remote indeed. Removal of this clause will have no impact on the commission’s ability to obtain communications data previously obtained and still held by the relevant authorities using investigatory powers as part of previous investigations. Nor does it affect powers which flow purely from commission officers having the powers and privileges of constables. On reflection, the Government do not consider it necessary or proportionate to give the commission access to this power, given the nature of legacy investigations. I have therefore tabled Amendments 180, 182 and 183 to address the Investigatory Powers Act. The noble Baroness, Lady O’Loan, and I discussed this issue last week and I acknowledge that she has some concerns, which, again, I am very happy to discuss with her further. I beg to move.

[Lord Rogan (UUP)]

My Lords, my remarks will focus on Amendment 33 in the name of my noble friend Lord Empey, who has asked me to apologise to your Lordships for his absence tonight. His wife is currently still in hospital after several days. I have no doubt that noble Lords will wish to join me in wishing Lady Empey—our friend Stella—a full and swift recovery.

The noble Lord, Lord Hogan-Howe, who is not in his place tonight, mentioned that we were near the end of the amendment of the noble Baroness, Lady O’Loan, before the RUC was mentioned. Like the noble Lord, Lord Caine, I thank him for his kind remarks about that force, which suffered so much during the Troubles. My noble friend Lord Empey’s amendment seeks to insert a legal guarantee that former members of the Royal Ulster Constabulary George Cross, the Historical Enquiries Team or the Police Service of Northern Ireland will not be precluded from employment by the ICRIR. Of course, there is no reason that they should be; however, recent history tells us that some will, none the less, seek to find a reason.

Noble Lords will be aware of Operation Kenova, mentioned many times tonight, set up in 2016 to investigate a series of terrible crimes, including kidnapping, torture and murder, involving an individual codenamed Stakeknife. The Operation Kenova team is led by Jon Boutcher, who, at the time of his appointment, was Chief Constable of Bedfordshire Police. He retired as chief constable in 2019, coinciding with a decision to expand Operation Kenova’s remit to four separate investigations, and he continues to lead that team. For the record, last year he found time to launch an unsuccessful bid to become Commissioner of the Met. One of Mr Boutcher’s first decisions when appointed to lead Operation Kenova was to prohibit former RUC GC and PSNI officers from involvement in the investigations. This ban has remained in place as his remit has widened. There is no logic to this, and neither is there any merit in blocking their route to employment by the ICRIR.

There are various interpretations of what this legislation is or is not intended to do. However, conducting thorough investigations into the multitude of unsolved murders and other horrific incidents throughout the long years of the Troubles should clearly be at the top of the list.

Clause 3(3)(a) provides that the ICRIR officers should

“have experience of conducting criminal investigations in Northern Ireland”.

So, if proper investigations are to be carried out by individuals with first-hand experience of this work in Northern Ireland, surely former RUC GC and PSNI officers, as well as serving PSNI officers on secondment, should be at the head of queue to be engaged with the ICRIR.

I have always been a strong advocate of law and order. Throughout Northern Ireland’s darkest days, it fell to the brave men and women of the RUC, alongside the Armed Forces, to maintain law and order. Some 312 RUC officers lost their lives at the hands of terrorists, with 302 of those tragic deaths occurring in the Troubles. Over 10,000 more officers were injured in attacks, with over 300 left with life-changing injuries. While I remain a strong supporter of the Belfast agreement, the loss of the RUC GC’s name and cap badge were bitter pills to swallow. However, I cannot, and will not, allow the remarkable achievements and bravery of that force to be airbrushed from history, as many would like, especially IRA Sinn Féin, which is carrying out an intense and continuing campaign to rewrite the history of the Troubles and—as the noble Baroness, Lady Hoey, has alluded to—to show IRA Sinn Féin in a better light than its former bestial acts would merit. That includes barring former RUC officers from serving once again. Similarly, serving, and former officers of the successor force, the PSNI, must be afforded the same access to skilled employment that the ICRIR will offer.

I ask the Minister for an assurance that the intention behind my noble friend Lord Empey’s amendment will be respected and adhered to by His Majesty’s Government when the Bill receives Royal Assent.

[Baroness Hoey (Non-Afl)]

My Lords, first I say that, on the whole, I support most of the government amendments; they are sensible, and I am sure noble Lords will find them reasonable. As one of the sponsors of the amendment in the name of the noble Lord, Lord Empey, I agree with everything that the noble Lord, Lord Rogan, has said. It is shocking that we need an amendment to make clear the position of those people who served our country so well for so many years in the Royal Ulster Constabulary, the Historical Enquiries Team or the Police Service of Northern Ireland—it is shocking that it should even be contemplated that they might not be considered to be a commissioner.

The reason we have to put it into the Bill is because there are very large numbers of people, particularly from the nationalist side, who spend their lives denigrating what was done by the RUC. Of course, there were bad apples, but I do not think there were probably as many bad apples as we have seen in the Metropolitan police force over the last few years. I urge the Minister to include this in the Bill so that people in Northern Ireland will know that this House and this Government—the Government of the United Kingdom of Great Britain and Northern Ireland—realise and celebrate the steadfast and dedicated work put in by so many people in the RUC, so many of whom, as the noble Lord, Lord Rogan, mentioned, paid with their lives and with their injuries. Can I suggest that the Minister comes back and says very clearly and simply “Yes, we will put it into the Bill”?

21:30

[Lord Morrow (DUP)]

My Lords, I will speak very briefly on Amendment 33, and I commend the signatories to it. I ask the noble Lord, Lord Rogan, to convey our concerns and best wishes to Lady Empey. We wish her a speedy recovery.

I have a few brief remarks on the RUC, the RUC Reserve, the UDR and the Army. It is often forgotten that the RUC in particular stood between sanity and insanity, and more than 300 RUC members were murdered. It strikes me very often that their lives and the sacrifice they made are seen to be much less important than others, but I want to state in your Lordships’ House today that we appreciate and respect all that they did. As the noble Baroness, Lady Hoey, said, some people have used their lives to vilify what the RUC sought to do.

It was mentioned in an earlier debate that 60% of the murders committed in Northern Ireland were committed by republicans, 30% were committed by loyalists, and 10% were allegedly committed by the security forces. Of course, that is not correct; if you drill down into that 10%, you arrive at a figure of something like 2%. It seems to me that instances where the security forces were engaged are included in that 10%. On many occasions, they intercepted terrorists going about their business of murder and mayhem, but those instances are included in that 10%, so it is not accurate. I want to put that on the record here tonight. I have sought to do so on other occasions—

[Lord Weir of Ballyholme (DUP)]

I thank my noble friend Lord Morrow for giving way. Would he agree with me that if we fail to put this on the face of the Bill and run the risk that former operatives of the RUC, the PSNI and the HET are barred from the ICRIR, we would be sending out a signal that, institutionally, we regard those organisations as being party to the conflict and that we would, in effect, be placing them on a parallel level and a par with the paramilitary organisations, given that the purpose of this is to investigate all crimes across the Troubles? That would send out a signal. If there is concern—which I think all of us share—about some who try to rewrite the past and justify what happened, this would send out completely the wrong signal. I suspect also that if there was a legal challenge in terms of a fair employment case, the provision would not survive that.

[Lord Morrow (DUP)]

I thank my noble friend Lord Weir for making that very important and valid point. It would be absolutely disgraceful if, in any way, that happened. Former members of the RUC, and indeed some members of the PSNI, have also been on the receiving end of republican terrorism. I was delighted to hear earlier in the debate that someone, at long last—I must have missed this—has been apprehended for the murder of that young journalist in Londonderry, Lyra McKee. It is a known fact, or it is believed—I think the noble Baroness, Lady O’Loan, also made this point—that the bullet which took her life on that dreadful evening was meant for a police officer.

I sometimes think that noble Lords and others in this part of the United Kingdom do not fully comprehend and grasp what the security forces had to put up with over all those years. I say with some regret that there are a few of us, particularly on the unionist side of the community, who had very close friends—I have had them, in my family—who were blown up, but because they were members of the RUC, there was no other crime. That was the only crime. Thankfully, that particular friend survived, albeit with very serious injuries.

I ask your Lordships’ Committee not to shy away from talking about the RUC, which perhaps made the biggest sacrifice of over 300 of its serving officers. That must never be forgotten. Certainly, the law-abiding community, whether on the nationalist or unionist side, will never forget the sacrifice they made.

[Lord Hain (Lab)]

My Lords, I will ask the Minister two brief questions. It may be that I have not understood his amendments, in which case that is my fault. First, on government Amendment 42, it seems that the trade union rules that apply normally to police officers will not apply to the ICRIR. Is that because it is a technical amendment to avoid overlap with the provisions of the Assaults on Emergency Workers (Offences) Act 2018, which will apply to designated ICRIR officers but which is the law only in England and Wales at the moment?

[Lord Caine (Con)]

My understanding is that it reflects the fact that, while the commissioner for investigations will have the powers of a police constable, technically he is not a member of the police service.

[Lord Hain (Lab)]

So there is no dilution of the rights of staff in the ICRIR?

[Lord Caine (Con)]

No.

[Lord Hain (Lab)]

Okay. Secondly, on Amendment 183, does that in any way dilute the investigatory powers of the ICRIR? This is one of the concerns about the whole thrust of the Bill.

[Lord Caine (Con)]

I beg the noble Lord’s pardon—I missed the amendment number.

[Lord Hain (Lab)]

Amendment 183.

[Lord Caine (Con)]

Absolutely not—nothing here is intended to dilute the investigatory powers of the commission at all.

[Baroness O’Loan (CB)]

My Lords, I acknowledge the need for many of these government amendments, which clarify technical and procedural points. They do not go to the heart of the objections to the Bill that have been articulated tonight.

Some amendments, such as Amendments 6 and 7, are very minor. They provide for the provision of annual work plans, six-monthly reporting and things like that. It seems slightly heavy that you have to produce those as a matter of good governance—the auditors will require that. There is a requirement to provide annual reports and things like that, but, as regards putting that in statute, I do not object to it, but it is kind of heavy-handed. It goes again to the suspicion that the Secretary of State wants to be very involved in the work plans, how they are doing it and how they intend to distribute the resources that are available to them within the commission. I simply draw that to the Minister’s attention.

I am not sure about the meaning of Amendment 35. I know it is not the Minister’s amendment, but can he say whether it is possible that it may have the effect of limiting the application of some of the provisions of the Bill and some of the amendments that we have discussed and will discuss? There are powers other than those commonly known as police powers which may apply. I do not expect the Minister to answer that tonight, but will just leave the thought with him.

It seems that Amendment 41 may limit the ability of the commissioner to be flexible in the use of his staff. Obviously, the commissioner will be making decisions about which staff are required to have police powers and which are not. Those who have police powers will be able to do things such as arresting, searching and seizing, et cetera, while those who do not will not, but they can accompany and assist. I am not sure—perhaps the Minister can clarify this at a later time—whether an officer can have a limited subset of police powers, as provided for in the legislation, and I am not sure what that would add. So Amendment 41 may in fact not be particularly helpful in ensuring the most economic and effective use of the resources available to the commissioner.

The Minister referred to my reservations about Amendment 183. That refers to the removal of the provision making the ICRIR a relevant authority under the Investigatory Powers Act 2016—which goes to the question that the noble Lord, Lord Hain, has just asked. As I understand it, as drafted, the Bill gave the commission the right to require the delivery of data. Information may or may not have been requested by a previous investigation. If it was requested, it should be available in the files of that previous investigation. However, we know that, in many cases, data which may have been available was not requested by previous investigations for a variety of reasons, and therefore it will not be available to the commission unless the commission has the power to ask for it. The suggestion has been made—I thank the Minister for the discussions we had about this—that the holder of the data could voluntarily surrender it. That may or may not be correct, but my question is: this is actually a tool in the toolkit of a standard investigation, so why take it away?

[Baroness Smith of Basildon (Lab)]

I was expecting the noble Lord, Lord Bew, to speak on this group of amendments.

[Lord Bew (CB)]

I do not have any amendments in this group.

[Baroness Smith of Basildon (Lab)]

My Lords, this has been an interesting discussion. I want to pick up on a couple of points and speak to our Amendment 198.

My comments on government Amendment 6 are not dissimilar to those made by the noble Baroness, Lady O’Loan. It seems quite prescriptive in terms of the work plan that has to be produced. Is there any flexibility within that? Is this a plan that must be adhered to? Is it for the Secretary of State’s benefit in terms of monitoring? I would be quite interested to know what the intention of the plan is and how much direction can be exercised by the Secretary of State.

Amendment 198 is a probing amendment on the timing of commencement. It would insert

“but such day or days must not be beyond the end of the period of two years beginning with the day on which this Act is passed”.

At the moment, it is open for the Secretary of State to implement commencement when he or she considers fit. I would like some clarity on when the Government think it will come into force. The Minister is looking at me with a rather puzzled expression. I direct him to page 47 of the Bill, where he will see what I am talking about. I am surprised that he is looking at me that way, but it is not unusual. Clause 57 says that the provisions will come into force

“on the day on which this Act is passed … Otherwise, this Act comes into force on such day or days as the Secretary of State may by regulations appoint”.

I am curious to know the Government’s intentions on that.

I will be interested in the Government’s comments on the amendment tabled by the noble Lord, Lord Empey, and spoken to by the noble Lord, Lord Rogan. I think that the Minister will recognise that he will have to reassure and give confidence to those who have raised the issue. What he says tonight will be very important in that regard.

[Lord Caine (Con)]

My Lords, as ever, I am very grateful to all noble Lords who have participated in this debate.

Responding directly to the comments of the noble Lord, Lord Rogan, and other noble Lords from Northern Ireland, regarding Amendment 33, the Government are very clear that we must set up the commission properly and with the best people to give it the best chance for success. As the Bill is currently drafted, there is no prohibition whatever on the employment of former members of the Royal Ulster Constabulary—which was awarded the George Cross—no prohibition on the employment of former members of the Historical Enquiries Team and no prohibition on former members or current members of the Police Service of Northern Ireland applying to become commission officers. There is no prohibition within the current legislation.

I have made it clear in response to earlier debates that I share the admiration of noble Lords from Northern Ireland for the service and sacrifice of the Royal Ulster Constabulary throughout the Troubles. The figure I have is that 302 officers were murdered in the course of their duties. I have always been struck by the montage that was produced a number of years ago of all those officers, under the banner “Our Murdered Colleagues”, a copy of which I have at home.

Slightly linking to Part 4 of the Bill, where we talk about oral histories, I agree with and share the concern of those noble Lords who believe that the record of the RUC is under sustained attack, mainly from republicans within Northern Ireland. I have said in this House before that what I have described as a pernicious counter-narrative of the Troubles has developed in recent years, which has put the state at the heart of every atrocity and seeks to traduce the record of the Armed Forces and the police. We ought to discuss this.

On that, I can do no better than to commend three volumes of outstanding oral history put together by a very good friend of mine, Colin Breen, beginning with A Force Like No Other: The Real Stories of the RUC Men and Women who Policed the Troubles. Colin is a former serving RUC officer. One of the reasons why those he interviewed were able to open up to him so candidly and vividly was because he is one of their own. Anybody reading those volumes will be struck by stories that range from the comic to the absolutely heartbreaking. I commend that particular oral history to Members of your Lordships’ House.

21:45

[Baroness Hoey (Non-Afl)]

I thank the Minister. Given what he has just said, is he saying quite clearly that he will not suggest putting it into the Bill? Given that we saw what happened to Kenova, does he share my concern that people feel slightly worried that what is said in this House and what Ministers think sometimes gets changed later if it is not in legislation?

[Lord Caine (Con)]

At this stage, I am not inclined to write a list of people who are disqualified from membership of the commission into the legislation. From reading the Bill, it is fairly clear that there is no disqualification, as I have set out. I would therefore probably argue that, while I agree entirely with its intentions, the amendment is not necessary as a matter of law. That would be my instinctive response.

On Amendments 35 and 41, the commissioner for investigations will have to be a person of significant standing and experience and will be responsible for the appropriate delegation of responsibilities to ensure that the commission can carry out effective investigations. The Bill is already clear that a person can be given the powers and privileges of a constable only if they are deemed capable of effectively exercising those powers and have received adequate training. In addition, Clause 3 makes it clear that the commission must ensure that, as far as is practicable, its officers include persons who have experience of conducting criminal investigations. Paragraph 4 of Schedule 2 also allows a designation under Clause 6 to be made, subject to any limitations specified in the designation. Paragraph 5 allows a designation to be time-limited.

Regarding the amendments and comments around timetabling, the commission’s processes will of course be complex. This is a significant undertaking, and it is our view that the commission’s delivery should be timely and not rushed. We have already taken a number of steps by establishing an implementation programme team within the Northern Ireland Office, whose job is, I stress, not to pre-empt the operations of the commission but to lay the foundations, looking at the estate, IT, procurement, and so on, should Parliament agree to establish the commission, so that it can begin its work as quickly as possible.

I hear what the noble Baroness, Lady Smith of Basildon, said about commencement. I might be in a position to say a bit more about that at the next stage of the Bill. I will talk to her about it before we return to the Floor of the House, if that is acceptable to her.

On which note, I urge noble Lords to withdraw their amendments and—suffering from a hard day’s work turning into a hard day’s night—I also beg leave to withdraw my own.

Amendment 6 withdrawn.

Amendments 7 to 11 not moved.

Clause 2 agreed.

House resumed.

House adjourned at 9.51 pm.