Northern Ireland Troubles (Legacy and Reconciliation) Bill

Committee stage
Tuesday 31st January 2023 Lords Chamber

Committee (2nd Day)

16:21

Relevant documents: 9th and 20th Reports from the Delegated Powers Committee, 5th Report from the Constitution Committee, 6th Report from the Joint Committee on Human Rights

Schedule 1: The ICRIR, the Commissioners and ICRIR officers

Amendment 12

Moved by

[Lord Browne of Ladyton]

12: Schedule 1, page 50, line 34, leave out “Secretary of State” and insert “Northern Ireland Judicial Appointments Commission”
Member’s explanatory statement
This and subsequent probing amendments in the name of Lord Browne remove the Secretary of State from various roles in connection with the appointment and holding office of Commissioners.

[Lord Browne of Ladyton (Lab)]

My Lords, I will speak to Amendments 12 and 13 in my name and those of the noble Baroness, Lady O’Loan, and my noble friend Lord Murphy of Torfaen; Amendment 16 in my name and that of the noble Baroness, Lady O’Loan; Amendments 24 to 30 inclusive, which are all consequential; and, finally, Amendment 178, which will not detain us for very long.

Amendments 12 and 16 and their consequential amendments are probing amendments. Their effect is to remove the Secretary of State from the various roles in connection with the appointment and holding office of commissioners of the ICRIR, which, with the leave of the House, I will hereafter refer to as “the commission”. The amendments would replace the Secretary of State with the Northern Ireland Judicial Appointments Commission —NIJAC.

As it stands, the Bill confers sweeping powers on the Secretary of State, including the power of appointment to the newly established commission and powers over the process of the commission itself. These powers include but are not limited to: control over the commission’s funding; the power to request reviews; the appointment of commissioners; the devising of procedures for dealing with requests around immunity; the power to withhold permission for the disclosure of sensitive information; the power to terminate a review on national security grounds; and, most importantly, the power to wind up the commission itself.

The Government have noted the concerns relating to the commission’s lack of independence and have proposed an amendment to strengthen the commission’s independence by making it clear that the Secretary of State should consult individuals before appointing the chief commissioner. It is clear that independence is a precondition for investigations to satisfy our obligations under Article 2 of the ECHR. The purpose of the probing amendments in my name, and the consequential amendments, is to discern to what extent the extraordinarily wide-ranging powers conferred on the Secretary of State, even after the Government’s amendment, compromise that independence and risk a breach of our ECHR obligations.

One of the functions of independence is securing public confidence in the operation of investigations; to do that, it is necessary for the investigations to be independent—and to be seen to be independent. The role of the Secretary of State in relation to the commission, as currently envisaged, has attracted criticism from all communities in Northern Ireland. The Government have assured us that the commission will have full operational independence; we are assured that that includes the establishment of terms of reference, the appointment of staff and the making of all decisions related to the conduct of investigations. Of course, the commission may appoint its own staff, but that will be done by the commissioners appointed by the Secretary of State. The commission may make decisions related to the conduct of investigations, but with the hand of the Secretary of State ever present and able either to block disclosure or to shut the body down altogether. The commission may make decisions related to immunity applications, but only if the salient question is whether the applicant is telling the truth to the best of their knowledge and belief, and they must take account of any guidance given by the Secretary of State about when that condition is met. It is difficult to consider that a genuine and objective decision at all.

Defending the system, the Government have cited the Northern Ireland Human Rights Commission and various independent public inquiries as precedents, suggesting that it is common practice for the Secretary of State to appoint commissioners or chairs to organisations which enjoy absolute operational independence. The problem is that that is not comparing like with like; there is no way that an individual inquiry or human rights body with limited powers is comparable with the amount of responsibility being placed on the commission by the Bill. That responsibility is to provide the sole route to justice for anyone who lost a loved one during the Troubles.

Noble Lords will have noticed that my amendment does not seek to address all the powers of the Secretary of State. Because of its probing nature, it concentrates, in this form, on only some of those powers, particularly as there is a genuinely independent alternative to the Secretary of State: the Northern Ireland Judicial Appointments Commission. Additionally, the commission’s functions include:

“To select and appoint and recommend for appointment, in respect of all listed judicial offices up to and including High Court Judge … To recommend applicants solely on the basis of merit … To engage in a Programme of Action to secure … that appointments to listed judicial offices are … reflective of the community in Northern Ireland.”


Again, that provides independence, but, crucially, it does so in a way which is transparent and will disarm those who may suggest that the commission is simply an arm of the UK Government in Northern Ireland. Why not forestall those criticisms and remove the Secretary of State from the area of appointments altogether? The NIJAC is accustomed to appointing those who fulfil statutory requirements and who are of good character and have integrity. Furthermore, the link between the commission and the judiciary is embedded in the Bill, as the chief commissioner must be a person who holds, or has held, high judicial office, and almost all those candidates have been appointed to their judicial role by NIJAC.

In addition to the issues with the composition of the commission, many noble Lords will be aware of an uneasiness about how this body will work, from where it will derive its legitimacy, what mechanisms exist for scrutiny, and, where necessary, how we can ensure that it is responsive to concerns in a way that is not simply subject to the fiat of whichever Secretary of State happens to be in post. Those issues speak to a wider systemic problem with the Bill.

The delegated powers memorandum contains a remarkable paragraph which encapsulates my concerns and those of other noble Lords:

“Legacy matters are highly controversial, politically charged and divisive in Northern Ireland. A vast number of issues remain unresolved as a result of political and societal impasse and there is no single accepted or agreed way to address them … There is a very real prospect that providing the Northern Ireland Assembly with the power of veto in relation to delegated powers could frustrate the purpose and application of the provisions in the Bill, which in the Government’s view is necessary to achieve progress and reconciliation in Northern Ireland.”


That is an explicit acknowledgment that the Government have decided to exclude the elected representatives of the people of Northern Ireland from important decisions for fear that they will not agree with the direction of travel determined from London. If we were to mould the Bill into a shape which will satisfy everyone in Northern Ireland and be seen as an attempt, in good faith, to further the course of reconciliation, the composition of the commission will need to be seen as independently determined.

Further, it will need to be seen as an avowedly apolitical body aimed at achieving a true incremental reconciliation woven from the skeins of public opinion in Northern Ireland, not a reconciliation based on our perceptions in London. I do not propose to put my amendments to a vote but urge the Government to engage with their provisions critically and take appropriate steps before Report.

I intend to dispose of Amendment 178 at the earliest possible opportunity. Consequently, with the leave of the Committee, I shall say no more about it. I beg to move.

16:30

[Baroness O'Loan (CB)]

My Lords, this group of amendments refers to the independence of the commission to be created. Throughout the Bill, there are restrictions on that independence in the form of not only the Secretary of State’s control over the number of commissioners, and in this instance the appointment of commissioners, and the budget, but many of the other requirements made of the commission and the various powers given to the Secretary of State.

I find some of these powers astonishing. They include the power to give guidance to the ICRIR about how to exercise its functions so as not to prejudice national security, put a life at risk or act in any way which might prejudice actual or prospective criminal proceedings. This exercises the minds of senior investigating officers, chief officers, prosecutors and judges on a very regular basis—decisions have to be and are made. Why do the Government think that the ICRIR will not be capable of making such decisions?

There is also a power to identify sensitive information to be given to the commission, the chief constable of the PSNI, chief officers of police forces in Northern Ireland, the Police Ombudsman, the director-general of the Independent Office for Police Conduct, Northern Ireland departments and Scottish Ministers. Managing and identifying sensitive information is done routinely by people such as chief constables. It is difficult to understand why the Secretary of State should be required to make regulations and give guidance in these situations. To those looking in from the outside, from whom I have heard quite extensively, it appears that this may enable the Secretary of State to control the work of the ICRIR.

The Secretary of State has a further extraordinary range of powers throughout the Bill, which we will come to later. Combined, they introduce a unique group of powers regarding the operations of the ICRIR. All the powers conferred on the Secretary of State to enable him to regulate, manage, control or otherwise dictate the proceedings of the ICRIR rest on the appointment of the commissioners. Amendments 12, 13 and 16, to which I have put my name, and Amendments 24 to 30, all in the name of the noble Lord, Lord Browne, seek to address a profoundly important control given to the Secretary of State in Schedule 1 by giving the appointment-making function for the commissioners to the Judicial Appointments Commission rather than to the Secretary of State.

The Judicial Appointments Commission comprises nine people, five of whom are judges and four of whom are not members of the legal profession at present. The requirement in the schedule on the Secretary of State to consult the relevant senior judge and such other persons as he or she considers appropriate will be indicative to many of those in Northern Ireland who want to see a truly independent commission of a total lack of independence. Noble Lords will know that perception is as important as reality in cases such as this. If the commission is to gain any credibility, it must above all be seen to be independent.

It seems to me that, were the House to agree the noble Lord’s amendments—which he has just said he will withdraw but which I may well retable on Report because they are so important—the Minister’s Amendments 14 and 15 would be unnecessary. In any event, they would not meet the requirement for an independent appointment. The appointment of a person who has gained experience outside the UK, as provided for in Amendment 14, may be an asset, but it could occur in any case, and it seems to me superfluous.

The one thing that emerges from a study of this Bill is that the ICRIR will not be enabled to be independent by its provisions. Rather, it is clear that so much power is reserved to the Secretary of State that it cannot be independent. There is no legislative consent Motion in support of this Bill and no support for it. We are talking about the past and future of the people of Northern Ireland. Independence is critical for this commission.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I support the amendments in the name of my noble friend Lord Browne of Ladyton. Over the last number of days, increasingly people have said to us, right across the community in Northern Ireland, that they are opposed to this Bill on the basis that it does not have victims and survivors at its heart and centre. Last night, I was very pleased to sponsor a meeting for SEFF in your Lordships’ House, where that was the message, yet again, that was given to us. Right across the community, irrespective of political or religious persuasion or, shall we say, whatever job the person may have had, as a victim or survivor, people do not support the Bill because their needs and requirements are not placed at its centre.

The need for the independence of the commission goes to the very heart of the Bill. We have seen quite clearly that the Secretary of State will have undue and unfettered powers. My noble friend Lord Browne is absolutely correct: the membership and work of the commission need to be independently determined and it must not be shackled by the unfettered powers of the Secretary of State.

In fact, many human rights organisations have concerns about the influence of the Secretary of State over the processes of the ICRIR as proposed by the Bill. For example, the Secretary of State will have the power to appoint its chief commissioner, who must be a UK judge, moving significantly away from the process envisaged in the Stormont House agreement of appointing an international figure to be jointly agreed by both the UK and Irish Governments. Where is this process of engagement and consultation with the Irish Government and, of course, the agreement that is urgently required? Things in Northern Ireland do not go ahead successfully unless there is reconciliation, consensus, agreement and consent. There is definitely not consent for this Bill. There will be no legislative consent Motion because there is not an Assembly at the moment, but the five main parties are opposed to the Bill, so it would not happen anyway.

While the proposed government amendments to Schedule 1 seek to provide that the Secretary of State consults relevant figures, they are unspecified. In advance of appointments, the wide discretion given to the Secretary of State in Northern Ireland over appointments to the ICRIR remains. Furthermore, requiring the Secretary of State to ensure, as far as practicable, that there is a commissioner with international experience is a weak substitute for an independent, international individual or group of individuals. I sincerely endorse the views of my noble friend Lord Browne and ask the Minister to go back and look at this issue.

The submissions given to us are quite clear. Liberty says that

“While this may be a ‘Northern Ireland Bill’ in title and in focus, it is explicitly one that is directed by Westminster. This is not just true in the exclusion of stakeholders in Northern Ireland and Ireland alike in the introduction of the Bill, but in the deep vein of political interference that runs through the legislation”,


and that the ICRIR

“stands a chance of working only if it is seen to be independent in its operation.”

Yet the hand of the Secretary of State looms large throughout all aspects of its function.

A similar view is expressed by Amnesty, which quite clearly states that the ICRIR does not meet ECHR procedural requirements, and that the Secretary of State retains control over the appointments, the resources and caseload of the ICRIR as well as the powers to terminate its work at any point. In view of that, it is quite clear that the ICRIR will not be independent and I would like the Minister to outline to the House how he and the Government will address that issue, and how he will toughen up the legislation by amendments on Report to ensure independence. If the needs and requirements of victims and survivors are to be placed at the centre of the Bill, this is an urgent priority and I urge the Minister to do that and to use the Judicial Appointments Commission to fulfil the requirements of the ICRIR in achieving independence.

[Baroness Hoey (Non-Afl)]

My Lords, before I speak to my Amendment 14A, I just want to say that we may be wearing the same colours but I disagree with the noble Baroness, Lady Ritchie, on her support for the amendment from the noble Lord, Lord Browne. I really do not see the need for that and, in my view, “independent” can mean so much to so many different people. As far as I am concerned, the Secretary of State is the Secretary of State for the United Kingdom Government of Great Britain and Northern Ireland, and I see absolutely no reason why appointing commissioners would not be done by the Secretary of State. There have been some brilliant Secretaries of State and there have been some terrible ones, but the reality is that they are the representative of our Government of the United Kingdom and that should happen. Perhaps not being a lawyer, I do not share the confidence that so many people seem to have in the Judicial Appointments Commission.

In talking to my Amendment 14A, I had not realised that the Minister would not have spoken to his Amendment 14. Mine is really a probing amendment and in a spirit of genuinely asking a few questions. I would like to see all five of the commissioners not only have relevant experience before appointment. Also, very clearly, that experience must be gained in the United Kingdom and not exclusively in other places. My amendment would ensure that this would happen.

I am not convinced as to why the Minister has conceded the point about a commissioner needing relevant international experience if practical, and of having that prescribed on the face of the Bill. I have to say again that maybe there is a romanticised idea about international involvement in Northern Ireland. But, from experience of internationalising the Troubles—that horrible word that people use—reinvestigation has not always been good and has not always been considered successful. What type and level of experience is anticipated for these commissioners? Will they have to be former police officers or lawyers? As I said in the previous debate, I think it is sad that the Minister is unwilling to put into the Bill that ex-RUC and PSNI officers can definitely be considered. We saw what Jon Boutcher did by ruling out instantly ex-PSNI and ex-RUC. That is wrong and implies, as I said before, that there is somehow something wrong with them and that they are not to be trusted.

We need to know some of these things so that the appointment does not get decided with us and the victims not knowing exactly how that person will be put there. Without the benefit of my amendment, the Minister’s Amendment 14 leaves open the possibility of appointing an individual who not only has no experience of UK policing but has never even set foot in Northern Ireland or gained any relevant experience there. Of course we must remember that, once they are appointed, they take on the considerable powers of a constable. That is exceptionally important. Noble Lords should require assurance on this; their acceptance of my amendment would provide that.

16:45

[Lord Hogan-Howe (CB)]

My Lords, I just want to comment on a small but important point that the noble Baroness, Lady O’Loan, made; I wondered whether the Minister would like to respond to it. The noble Baroness said that the advice being issued potentially by a Minister about the restriction on evidence could be quite worrying. As an investigator, I share that view, as I am sure the judiciary would in a court hearing. There are some present restrictions but the list is a small one; it includes the interception of communications, journalistic material, legally privileged material and, most of the time, medical advice. I suspect that this is something to do with foreign intelligence material, which is provided only under certain conditions. That is usually about source protection, and the usual condition is that the material can be shared further only in the event that the provider of the information agrees. I suspect that is what this is about but, if it is not, some reassurance ought to be offered; however, if it is, it could probably be explained quite quickly.

[Lord Dodds of Duncairn (DUP)]

My Lords, I want to comment briefly on the amendments in this group. Before I do so, once again, I put on record our thanks to the Minister and his officials for their continued engagement with us on the matters under consideration in the Bill.

I also want to put on record—the noble Baroness, Lady Ritchie of Downpatrick, referred to this—the meeting that we held yesterday with the victims’ group SEFF. Many of its members travelled from Northern Ireland to speak with your Lordships and highlight their concerns about the Bill. It is right that we pay tribute to those victims and the efforts that they are making to try to get across their profound concerns about it. Again and again, they emphasised something that I want to emphasise. While we discuss these amendments and debate independence, appointments and all that, no matter what improvements we make to the Bill, it is—in their view, certainly in my view, and in our view—irredeemable in its terms and fundamental aspects as a piece of legislation. Whatever we do in relation to justice, victims and getting at the truth, it cannot be right to have at the heart of government policy and a piece of government legislation the idea of immunity from prosecution for those who have committed crimes in the United Kingdom.

I want to touch on Amendment 14 in the name of the Minister. It concerns appointing a commissioner who has international experience. Can the Minister develop his thinking in relation to the motivation behind this amendment? I know that this was raised in the other place but it has not really been explained why it is thought necessary that someone should have international experience. It should be relevant to the work of the commission, okay, but what does that mean? Does it mean that they have done some academic studies or spent a bit of time abroad? Does it mean that they have been part of an international organisation? If so, what is the effect of the singling out of a particular position for such a person in relation to other appointments in the commission where other people may be better qualified but lack that particular qualification? I just think it is superfluous, as has been mentioned. There was nothing in the draft legislation to prevent the appointment of such a person, if it was thought necessary, but to put it in the Bill seems puzzling and I would like the Minister to develop his thinking on that.

On Amendment 12 and the other amendments in the name of the noble Lord, Lord Browne, I am not entirely convinced by the arguments that have been put forward. We have to remember that the commission and the commissioners, as has been said, will have the power of a constable. They will play more than just a judicial or quasi-judicial role; they will also have investigatory powers, they will be carrying out reviews and so on, so it is much wider than just a judicial-type role. Fundamentally, it gives more accountability if a Secretary of State, accountable to Parliament, is responsible for this, rather than a judicial appointments commission, whose appointments we really cannot question. Given the role of the judicial appointments commission in Northern Ireland and the fact that, throughout all the period of the Troubles, it has been above party politics and has never been dragged into any real controversy, here we are putting it into a position where it will be responsible for making what will be controversial appointments that could be the object of some criticism, in terms of balance and so on. I am not sure that that is a healthy or sensible position in which to place it.

Fundamentally, we come back to the point that was emphasised and re-emphasised to me at our meeting last night with the victims: whether the commissioners are appointed by the Secretary of State or a judicial appointments committee or whoever, fundamentally, they do not have the confidence and will not have the confidence of the victims. Therefore, all this is very interesting and important—absolutely—but it does not actually deal with the real fundamental flaw at the heart of this legislation.

[Baroness Suttie (LD)]

My Lords, I start by agreeing with the noble Lord, Lord Dodds, in thanking the Minister for his general approach to the Bill. I think we all feel that, unlike so many Bills at the moment, this is a Bill where we have the opportunity to get the Minister to genuinely listen and change it. That is very much to be welcomed in this Chamber. I also agree with the comments of the noble Lord, Lord Dodds, that many of us think the Bill is fundamentally irredeemable, to use his word. It is irredeemable in the eyes of the victims and, therefore, however many amendments and proposals we put forward this afternoon and this evening, it is, for many, an utterly irredeemable Bill and we have to view it through that prism.

However, going back to the amendments in this group, I feel that the noble Lord, Lord Browne of Ladyton, set out very clearly in his probing amendments the concerns about the significant amount of power that is being granted to the Secretary of State for Northern Ireland in the Bill. I very much share his views and concerns about that. I will not repeat the many points he made, other than to say that these are views shared by the House of Lords Constitution and Delegated Powers Committees, which both felt that this was giving far too much power to the Secretary of State for Northern Ireland. As the noble Lord, Lord Browne, and the noble Baronesses, Lady O’Loan and Lady Ritchie, have also said, if we are going to proceed with the ICRIR, the new commission, it is vital not only that it is seen to be independent but that this independence is maintained and seen so that the trust of all the people concerned with it can be maintained. It is also incredibly important that the process for how people are appointed to the ICRIR is seen as genuinely independent and, as others have said, above party politics. I think this is an area we really need to return to and look at in more detail before Report.

I appreciate that Amendments 14 and 15, tabled by the Minister, are intended to ensure that there is greater flexibility in the ability to appoint the best people to these roles, but, even given these amendments, there remains very real concern about the amount of power being given to the Secretary of State. Like the noble Lord, Lord Dodds, I wonder whether the Minister could expand a little on Amendment 14 and the requirement to appoint one or more people with relevant experience outside the UK. I think this is generally to be welcomed as a means of ensuring that the best commissioners with the broadest relevant experience are appointed.

Given the complexities and the history involved, it is not always going to be the case that someone from outside Northern Ireland will automatically understand the Northern Ireland context. But, in the history of the peace process, external people have often played an extremely valuable role, and for that reason I cannot support the position taken by the noble Baroness, Lady Hoey, in Amendment 14A. It would, however, be useful to hear from the Minister what sort of people he has in mind—although obviously he cannot name them, because that would be inappropriate in terms of due process. I would also be interested to know if the phrase

“as far as it is practicable”

in his amendment is intended as a sort of get-out clause if no sufficiently qualified people put their name forward.

Finally—I gave earlier notice of this question—is this going to be a proactive process of recruitment, where the Secretary of State for Northern Ireland and others go out and try to find international experts, or will it be more of a sort of passive process? I would be interested to hear how the Minister views this being introduced in reality.

[Lord Eames (CB)]

My Lords, the amendment of the noble Lord, Lord Browne, gives us the opportunity to do two things at this stage of our work: first, to pay tribute to the Minister for the way in which he has listened, constantly, to the many voices clamouring at our doors over this Bill; and, secondly, to be reminded that there are two key words to this legislation. One is “legacy”—and my goodness, we have said enough in this Chamber already to have analysed legacy—and the other is “reconciliation”, and, not for the first time, I am left wondering how His Majesty’s Government intended us to interpret that word.

The noble Lord, Lord Browne, is talking about one of the most sensitive parts of this proposed Bill: the appointment of this commission. I cannot, with my experience of Northern Ireland, imagine any issue that is going to be more productive of comment for and against this legislation than the question of the appointment of this commission. The noble Lord, Lord Dodds, has already reminded us of that significant period of this process. I welcome the opportunity given to the Minister to tell us a little more about what the thinking is about the structure of this commission. It is that point where many of us would have concerns about the involvement of the Secretary of State in this process.

Time and again in my correspondence, the messages I receive constantly underline the fact that victims and survivors are not at the centre of this legislation. This opportunity is given to us again to place on the record the needs of that part of our community. It is not just about those in the security forces or victims of either side in the conflict; it is about the mental instability that has been caused to another generation inheriting the deep thought and the deep suffering of the victims of the Troubles in Northern Ireland.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, the independence of commissioners will be vital to the success of this commission, and I agree that the confidence of the community, who are the victims and survivors, must be at the heart of any body. But how do we interpret “independent”? The truth is that many outside Northern Ireland have little or no concept of what has happened in Northern Ireland over the past 50 years. In fact, it is hard for those who have lived through it to understand it fully. Therefore, the independence question is of great importance.

17:00

It is a fact that, when the Secretary of State makes an appointment, he can be scrutinised by Members of this House, but many noble Lords will find it difficult to question appointments made by the Northern Ireland Judicial Appointments Commission, because doing so will be misinterpreted by many. Bearing in mind the complexity and history of Northern Ireland, the appointment of such commissioners will be of vital importance.

Therefore, I would like such appointments to have at least the scrutiny of Members of both Houses. Over the years, many commissioners have been appointed to deal with many sensitive issues, but those appointments have been questioned within the community. I come back to the beginning: the independence of commissioners is vital for success.

[Lord Murphy of Torfaen (Lab)]

My Lords, this is an interesting and timely debate. I join many of your Lordships in thanking the Minister for his engagement on this Bill. It does not always happen, but it does in his case, and we thank him for that.

I also thank my noble friend Lord Browne, who introduced his amendment extremely ably, as I would expect, but also forensically. He pointed to the issue of independence, but in reality this is also about confidence. Independence means confidence, and a lack of independence means a lack of confidence. The system for appointing different people has been fraught with difficulty over the years, because those appointments have lacked the confidence of one side of the community or the other. Your Lordships referred to international comparisons, and the reason why people of international repute have been involved in Northern Ireland over the years is to try to ensure that all the people of Northern Ireland had confidence in them. When I was Secretary of State, we appointed Judge Cory to look at various inquiries. It was important that a Canadian judge—in his case—was involved.

If more people in Northern Ireland are to accept this Bill—I am sure it is not accepted at the moment—one possibility is to look at how the commissioner is appointed and who it should be. The Secretary of State has far too many powers in the Bill generally, and on the appointment of the commissioner specifically. When I was the Secretary of State, I tried to shed responsibilities so that they rested with the people of Northern Ireland themselves. I hope that, in the next couple of months—perhaps in a couple of years—we see the restoration of institutions in Northern Ireland. But responsibility for these matters should be taken by the people who were elected in Northern Ireland, not a Secretary of State who represents a constituency in Great Britain. We should be thinking about how there can be confidence in such an appointment.

There may be different ways in which we could ensure independence. The Judicial Appointments Commission in Northern Ireland could do it. Committees of this House and the other House could be involved in the scrutiny; there is merit in what the noble Lord, Lord McCrea, said about that. But it should be transparent and open, and it should certainly not take place through a British Secretary of State, who I hope will eventually have to pass powers to legislators and others in Northern Ireland.

There is another reason too: all the international criticism of this Bill—whether from the Council of Europe, the United States, the United Nations, bodies such as Liberty and all the rest—is about the inadequacy of the Bill’s compliance with human rights. It strikes me that the lack of independence in the way the commissioner is appointed is seriously linked with those concerns. In other words, if there were a more independent system of appointment, perhaps it would be more human rights compliant.

Even though the report is lengthy, I am not terribly convinced by the Government’s reasoning on the Bill’s compliance with the ECHR. Your Lordships will of course remember, as we have said consistently, that in a few months’ time it is the anniversary of the Good Friday agreement, which is based on compliance with the European Convention on Human Rights. This is therefore a timely and important debate, and we very much look forward to the Minister’s reply.

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

My Lords, I am very grateful to the noble Lord, Lord Murphy of Torfaen, for his kind words, and to other noble Lords for their engagement on this Bill. I think we are meeting again very shortly, almost immediately after Committee stage concludes, and I will continue to engage closely with all interested parties, bodies and noble Lords across the House on this legislation.

With one thing the noble Lord said, I could not agree more: to be honest, I would be more than happy for the people and the Assembly of Northern Ireland to deal with most of the matters in the Bill. However, I set out to the House at Second Reading and, to some extent, last week in Committee, why and how it went from being primarily a Northern Ireland Executive and Assembly responsibility to a UK Government one. Martin McGuinness and Peter Robinson came to see the then Secretary of State after Stormont House and said, “This is all far too difficult for us to do at Stormont. Please will you do it all at Westminster?” We agreed.

I also agree with those noble Lords who have argued that central to the effective delivery of this legislation is the need for an independent body to carry out reviews, including investigations, and to grant, where the tests are met, immunity from prosecution. The Government fully recognise the need for commissioners to have credibility, expertise and legitimacy, so that effective reviews and investigations can be carried out and information provided to families as soon as possible. The UK-wide nature of the legislation provides for the appointment of a person who holds or has held high judicial office across the United Kingdom. It would therefore not be appropriate, in our view, for the appointment function to sit with the Northern Ireland Judicial Appointments Commission, which, by definition, is concerned solely with judicial appointments within Northern Ireland.

I respectfully disagree with the noble Lord, Lord Browne of Ladyton, and others who have spoken about the independence of the commissioner if he or she is appointed by the Northern Ireland Secretary. The Northern Ireland Act 1998, as the noble Lord alluded, provides the Secretary of State with the power to appoint the commissioners of the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland. The Inquiries Act 2005, passed by the Government of which the noble Lords, Lord Murphy and Lord Browne, and the noble Baroness, Lady Smith of Basildon, were members, provides for the appointment of an inquiry panel by a Minister.

My experience of the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland is that they are fiercely independent of government. I think nobody would dare suggest that the fact that they are appointed by the Secretary of State for Northern Ireland makes them in any way in hock to government. They carry out their duties with total independence and they are not slow, as we have seen in respect of this legislation and other legislation which has recently been before your Lordships’ House, to voice their criticisms and their opinions vociferously. Therefore I simply do not accept that appointment by the Secretary of State somehow limits or inhibits the independence of the commissioners.

Another example to which I could refer is that I was involved as a special adviser in the setting up the independent review into the on-the-runs administrative scheme back in 2014 which was conducted by the noble and learned Baroness, Lady Hallett, then Lady Justice Hallett. She was appointed in 2014 by the Northern Ireland Secretary in consultation with the Lord Chief Justice at the time. The appointment process did not in any way impact on the independence of the review.

To give a further example, in the absence of a sitting Executive in 2019, it was the then Secretary of State for Northern Ireland, Karen Bradley, who appointed the current Police Ombudsman for Northern Ireland. I do not think anyone would remotely suggest that Marie Anderson is influenced by His Majesty’s Government because she was appointed by the Northern Ireland Secretary, any more so than any of her distinguished predecessors—I am looking towards the noble Baroness, Lady O’Loan, as I make those comments.

The noble Lord, Lord Browne of Ladyton, and the noble Baroness, Lady O’Loan, referred to some of the overarching powers of the Secretary of State for Northern Ireland. The noble Lord, Lord Browne, raised specific concern over the winding-up power under Clause 33. I remind noble Lords that the Secretary of State has a similar wind-up power contained in the Inquiries Act 2005, which was passed by the previous Labour Government. In respect of this legislation, the Secretary of State for Northern Ireland may wind up the commission via an affirmative procedure that would have to be debated by both Houses of Parliament. The Government believe that it is for Parliament to have the final say in the potential winding-up and abolition of what Parliament has created. However, the winding-up order will be laid only when the Secretary of State is satisfied that it is has delivered on its functions.

The noble Baroness, Lady O’Loan, referred to some of the Secretary of State’s powers in relation to national security. I hardly need to remind her, given her various roles over the years in Northern Ireland, that the Northern Ireland Secretary ultimately has responsibility for national security in Northern Ireland. The powers contained in the Bill are very reflective of what was proposed in the Stormont House agreement and the draft legislation that accompanied it. The power is not in any way extraordinary. I hesitate to remind her that Section 65 of the Police (Northern Ireland) Act 1998 also requires the police ombudsman to have regard to guidance given by the Secretary of State on matters relating to disclosure and national security.

The noble Lord, Lord Hogan-Howe, raised an important point, and I will try to deal with it. Clause 30(2) stipulates that the Secretary of State may by regulations make provision about the holding and handling of information by the commission. This is about ensuring that information is held securely and destroyed when no longer needed. It is not intended to be a power to place restrictions on the use to which the information can be put nor is it a power to restrict the use of information as evidence in a prosecution. I hope that goes some way to answering the noble Lord’s query.

17:15

I turn to the amendments in my name, which make it clear that, when appointing the Chief Commissioner, the Secretary of State should always consult the relevant senior judge and any other persons they consider appropriate. I did at one point toy with the idea of producing a list but decided against it on the grounds that every list is imperfect and open to challenge; that should be left to the Secretary of State’s discretion. I intend to set out in the coming weeks more information about how we expect the appointments process to take place to provide greater transparency. I hope that goes some way to answering the point raised by the noble Baroness, Lady Suttie. It will be proactive, of course, but I will provide more details on that point very shortly.

I recognise that some people query the value of consultation in this respect. I can only speak from experience, having worked as an adviser to six Northern Ireland Secretaries and now alongside three, in just over a year, in a ministerial capacity. I have always been fully confident in, and impressed by, the seriousness with which they carry out the duty to consult in respect of any appointments process. In my experience, these have never been box-ticking exercises but have been carried out with seriousness and propriety. As we take this legislation very seriously, we will take the appointments process seriously too.

To strengthen the commission’s independence, I have also brought forward an amendment requiring the Secretary of State to ensure that, as far as is practicable, there is at least one commissioner who has relevant international experience. This matter was brought up and debated at length in the other place at Committee stage, so the amendment is in large part a response to the debates that took place at the other end of the building. I stress that this does not require a foreign national; it can be a UK national with relevant international experience.

To respond on that point to my noble friend Lord Dodds of Duncairn, as well as the noble Baronesses, Lady Hoey and Lady Suttie, we want to avoid being overly prescriptive in trying to identify an individual or category of individual, but we would expect the person concerned to have experience working outside the UK. It could be a UK national who has worked outside the UK; for example, with experience of working with international organisations in such areas as peacebuilding or reconciliation. The amendment makes it clear that these criteria apply so far as is practicable and would not preclude an individual with UK-only experience from being appointed.

The aim of this amendment is to ensure that the commission benefits from the broadest range of experience, including gained in the UK and abroad, rather than excluding any particular type of relevant experience—as, alas, does Amendment 14A in the name of the noble Baroness, Lady Hoey. On this point, I have had representations from people saying that the commission should exclude anybody who has ever set foot in Northern Ireland, and from people saying it should include only those who have experience in Northern Ireland. I have had representations trying to exclude all sorts of people.

In response to the point about the Royal Ulster Constabulary, I made it clear last week, when we debated this at length, that there is no prohibition on former members of that fine police force being appointed to serve on the commission, or indeed on former members of the Historical Enquiries Team that Hugh Orde set up some years ago.

In conclusion, the Government believe that we have struck the right balance here and that there is no threat to the operational independence of the commission. It is far from unusual that the Secretary of State makes appointments to public bodies in Northern Ireland. That is very long-established and has worked effectively in the past, and I see no reason why it cannot work effectively in future.

On that note, I invite noble Lords not to press their amendments, as I of course shall not press mine.

[Lord Browne of Ladyton (Lab)]

I thank the Minister for his characteristically engaging response. He addressed a significant number of the issues that I and other noble Lords raised, reflecting the co-operation that we have all had from him, his Bill team and his private office. I have previously expressed my thanks for that but I am perfectly pleased to associate myself with the words of other noble Lords on that issue.

The one thing that is certain about the Bill, if it becomes an Act of Parliament, is that the independence of the ICRIR will be tested in legal proceedings that will define independence for us. It will not be, as a number of noble Lords have suggested, a question of independence meaning different things to different people; in that context, it will mean some very specific things.

When I introduced this group of amendments, I sought to give some indication of what I think that body will look for in independence if it is to conclude that the process is complying with the European Convention on Human Rights and with our history and the rule of law in these islands. In my view, it is highly improbable—in fact, impossible—that it will conclude, with this level of political interference in the commission’s work and the way in which it has been set up, that this not only is independent but can be seen to be independent. That will be a significant flaw in the whole process. I think all noble Lords realise that. They may not agree with me that that will be the conclusion, but there is an overwhelming body of opinion and expertise out there that believes that is the case, and we have all been briefed on that.

I thank all noble Lords who have contributed to this interesting debate, particularly those who supported my amendments. Those amendments were intended not to be definitive on this whole issue of independence but to be a way into the debate, and I am glad to say that they succeeded in being that. I am particularly grateful to the noble Baroness, Lady O’Loan, for bringing in her contributions experience that showed that, beyond the points that I identified, there are other issues in the Bill that undermine independence.

I am grateful to the noble Lord, Lord Dodds of Duncairn. I share his view about the Bill, that this whole exercise is irredeemably flawed. The major issue that he raised, which is clearly foremost in his mind, is that of immunity, which we shall come to later today. I am focusing on independence at the moment, and in this group we are looking at independence. I cannot see how that can be consistent with what we have heard today from people with experience interpreting the words of the Bill and relaying to us, from their experience with victims, that there is concern here about the issue of independence.

I say to the noble Baroness, Lady Hoey, that the independence that I am talking about is not restricted to any part of the geography of these islands. It is independence from political control at a level that does not allow the informed examiner of how this will work to conclude that it is independence that is necessary for a process of this nature to satisfy the text. Now, that is going to be tested. I invite the Minister to look at this issue beyond the point that I highlighted in order to get into this debate, which is the appointment of the commissioners. I see the criticism that he makes of that, but the criticism goes much beyond just the appointment of the commissioners.

I ask the Minister to consider some of these points and take seriously some of the well-informed criticism from outside about where this is all going to end up. There are alternatives if he wishes to proceed on this basis—although I am not certain that they can be applied—to give the Government the results that they want. I ask the Minister to go away and think about this and perhaps come back with a response. I will look carefully at the words he has said. I have indicated that I intend to withdraw the amendment in my name, but if the Minister does not come back in anticipation of Report with some response to this issue which is convincing on independence, there will be a race between me and the noble Baroness, Lady O’Loan, to put down an amendment of this nature to be debated and perhaps voted upon on Report. I beg leave to withdraw my amendment.

Amendment 12 withdrawn.

Amendments 13 to 32 not moved.

Schedule 1 agreed.

Clause 3: ICRIR officers

Amendment 33 not moved.

Clause 3 agreed.

Amendment 34 not moved.

Clause 4: Actions of the ICRIR: safeguards

Amendment 35 not moved.

Amendment 36

Moved by

[Lord Bew (CB)]

36: Clause 4, page 4, line 31, at end insert—
“(4) Before carrying out any reviews, the ICRIR must publish, and in carrying out any reviews, the ICRIR must take into account, guidelines containing best practice on the rights of those likely to be named in any reports.”Member’s explanatory statement
This new subsection makes it clear that when carrying out reviews and in the exercise of its power to make findings in reports the ICRIR will follow best practice for the due protection of the rights of any person who may be named with critical comment.

[Lord Bew (CB)]

My amendment to Clause 4 is similar to Amendments 99 and 101, which I spoke to in previous discussions on the Bill. I express my gratitude to the noble Lord, Lord Murphy of Torfaen, and the noble Baroness, Lady Smith, for their support for those amendments. My concern here is the functioning of the commission rather than its appointment.

I would also like to express my thanks to the noble Lord, Lord Caine, in a rather different vein from the thanks expressed already, for the very fair, frank and open discussion he gave to the people of Northern Ireland on Ulster Television last night, explaining the whys and wherefores of this Bill, in difficult circumstances. I was at times slightly puzzled, because it felt as if the Bill is the first assault on the principle of equality of justice for the people of Northern Ireland that we have seen. But for 25 years there has been irregular process.

I well remember Tony Blair, at the time of the Good Friday agreement, talking about tearing up the criminal justice system and the release system that was then put in its place, and the importance of getting a referendum result in its favour because it was so complicated, difficult and controversial. I well remember new Labour’s entirely reasonable—in my opinion—interest in an amnesty across the board, which was pursued at some length. While it failed because of party machinations in Northern Ireland, it did not fail because of an uprising of victims or sensitivity to the opinions of victims. It fell because of the workings out of political intrigues, particularly between the SDLP and Sinn Féin. I remember the letters of comfort and the royal pardons. All of these things were very unusual and all long pre-date this Bill. I remember Denis Bradley, the distinguished co-author of the noble Lord, Lord Eames, saying that we were now in a place where we could not reasonably expect Governments to deliver justice but that they should be doing their utmost to deliver truth. However inadequate and flawed this Bill is, it is an attempt to deliver more truth. We are in a darker place, and I felt for the Minister as he struggled under the weight of an accusation which is at least 25 years old and could be directed to others with more point than to him, especially in the context of the amendments that he seeks to make to the Bill.

17:30

Again, there has been no discussion of the elephant in the room. The Minister mentioned the White Paper and said that the Bill is significantly different. He is entirely correct, but the most significant change in the environment is the Supreme Court ruling in December 2022. I look again at the headline of the Times law report, which stated that:

“Northern Irish police are not required to re-investigate incidents from the Troubles”.

When I drew attention to this in our earlier debate, I was told that newspaper headlines are often misleading, but the Times law report is not the Daily Star. I went back and checked it and, to be blunt, that is an accurate account of what the Supreme Court ruled. That is a major change in the environment since the—

[Baroness O'Loan (CB)]

I thank my noble friend for giving way. I think the Supreme Court decided that the particular applicants in that case were not entitled to get their cases reinvestigated—or investigated. They did not say that there was no obligation on the state to provide investigation.

[Lord Bew (CB)]

I thank my noble friend for that intervention. I think the implications of the Supreme Court ruling are somewhat broader. I was going to say that, at some point or other, the Government will have to refer to this major change, possibly with the Attorney-General, because there is controversy about what it really means. We cannot finish the Bill as though something of that importance has not happened, because it clearly bears on the issues at stake in the Bill and on the international obligations or otherwise of the United Kingdom Government.

Like my previous amendments, my Amendment 36 is designed, essentially, to get the best possible practice in play for the commission. It calls for the ICRIR to publish

“guidelines containing best practice on the rights of those likely to be named in any reports”.

I think the Minister will have a reasonable reply. We already know that there is a process of Maxwellisation. During the long period of the Iraq report, many will have felt frustrated about the amount of time devoted to Maxwellisation but, none the less, people who are challenged in their conduct have every right to take time to give a decent reply.

I am sure that that will be the Minister’s reply—that we already have rights in law. But things have moved on since then. It seems to me that the best practice now is something that we might call Maxwellisation-plus. I again draw attention to the way in which the Green Paper to the Commons Treasury Committee sets out proceedings and an approach to the rights of those involved under questioning in the ICRIR, which the Government should adopt. They should follow that Green Paper.

[Lord Hain (Lab)]

My Lords, I too pay tribute to the Minister for his open door and willingness to engage. I hope to knock on that door in the next few days to persuade him to support the Operation Kenova amendments.

[Lord Caine (Con)]

The noble Lord is always welcome.

[Lord Hain (Lab)]

I thank the Minister. However—this is no criticism of him—I think that he is doing his very best to defend the indefensible and that if he were the architect of the Bill, it would not look like this. I am not expecting him to agree with me, although it would be interesting if he did. I see that he has zipped his mouth, which perhaps says it all.

I will speak to Amendments 112 and 124 in my name and those of the noble Lord, Lord Cormack, the noble Baroness, Lady Suttie, and my noble friend Lady Ritchie. Once again, I am grateful to them for their support.

The Bill grants immunity, in effect giving an amnesty, to people who may have committed horrific crimes. Victims and survivors find that most difficult to take. The Bill is opposed by every political party and every victims’ group in Northern Ireland—an unprecedented unity between people who almost never agree with one another, even on the definition of a victim.

Before turning to the substance of the amendments, I will briefly refer back to our debate last Tuesday on Amendment 72 in my name, which for convenience I will call the Operation Kenova amendment. In his response, the Minister made a number of assertions in relation to the upscaling of Operation Kenova to deal with the outstanding legacy cases which I am afraid cannot go unchallenged and need correcting.

I have had access to independent advice which supports the view that Kenova can be upscaled and expedite investigations and would represent real value for money in such a role. If the alternative is some kind of cheapskate, back-of-an-envelope process, of course that will be cheaper. But I hope your Lordships’ House is seeking and will express unity on a proper process that investigates the past and includes within it a crucial truth recovery priority for victims. As we have seen in the past, in a very small minority of cases the evidence uncovered would qualify for consideration of prosecution.

Inevitably, that will be more expensive than a back-of-the-envelope operation, but Kenova represents real value for money. I will write to the Minister before Report explaining all this and copy it to any interested Members of your Lordships’ House. It is very important to do so because the Minister’s arguments against modelling the Bill on the hugely successful and popular Operation Kenova are at best specious and, I am afraid, misleading to many. Granting immunity—an amnesty—to perpetrators of terrible crimes drives a stake through the rule of law. I am afraid it is at the core—the rotten core—of this odious legislation.

At Second Reading, I raised the case of 18 year-old John Molloy, who was stabbed to death in a random sectarian attack near his north Belfast home in August 1996. I asked the Minister to explain to John’s parents, Linda and Pat, why he and his Government see a difference between John’s sectarian murder in Belfast and a racially motivated murder in London or in his own home city of Leeds—both horrific crimes. Linda and Pat are still waiting for an answer.

I can do no better than to quote from a powerful article in the Belfast Telegraph on 24 January. In it, Linda, John’s mother, gets to the heart of the matter:

“‘It feels like John has been archived and forgotten about. You’re talking about a child’s life here and the repercussions of what we’ve gone through. How dare they treat my son as a number? Because that’s how we feel; he’s just another number, and they haven’t even tried. John’s murderers are walking the streets while he’s lying in the cemetery.’”


Quoting Dr Sandra Peake, the article goes on:

“‘Why does John’s life mean so little that the taking of it will no longer be of any interest to a state whose first duty should be to protect its citizens? If this legislation is passed … the person who stood over John as he bled to death on a cold, hard pavement will have the protection of the state. And to earn it, all they have to do is to tell the story of that night to “the best of their knowledge and belief”. Once they do that, the lifelong protection of the state is extended to them as if nothing happened on the night of 10th of August 1996. It will be as if John Molloy never existed.’”


We hear much in the legacy debate about the rewriting of history. What is giving legal absolution to those who murdered John Molloy and so many others like him if not rewriting history? The Government seem perplexed when victims and survivors call this perpetrator- friendly legislation.

I have heard it argued that, over the course of the peace process, decisions have been made that have radically changed fundamental aspects of the criminal justice system. That is true. Sentencing legislation which meant that those convicted of Troubles-related offences would serve only two years in prison before being eligible for early release is cited as the prime example. Those who point to it claim that the immunity granted in this Bill is simply another manifestation of Northern Ireland being a place apart, but I would contend that this is of a radically different order.

Almost 25 years ago, the people of Northern Ireland, including many thousands of victims and survivors, were given a choice: they could vote for the Good Friday/Belfast agreement, in the knowledge that the early release of prisoners was a consequence, or they could vote against it. For many victims and survivors, that was a cruel choice, and every Member of this House who lives in Northern Ireland or who has had the privilege of serving there as a Minister or in another capacity will have met and will know people who had to make it. I have sat with men and women who had to make that agonising choice, who lost loved ones or live with catastrophic injuries, and I have spoken with and listened to them. Many—possibly most—victims and survivors voted “Yes”. There were those who could not bring themselves to vote for a settlement that contained that provision—I am sure that some are sitting in this House—but the key point is that they had a choice; in this legislation, victims and survivors are denied a choice.

However, they are making their voices heard loud and clear through their political representatives in every party in Northern Ireland, through their churches, their victims’ commissioner, their victims’ groups and their representations to the Irish Government, to the US Administration and directly to this Government. I believe that they want us in your Lordships’ House to speak for them. Recently, the Secretary of State for Defence—

[Baroness Hoey (Non-Afl)]

I am sorry to interrupt. How were the victims consulted, and what did they think about the pardons and letters of pardon that were given to people who probably did appalling things, although we were never told? The victims were not asked about that.

[Lord Hain (Lab)]

Actually, those letters, which started before my time as Secretary of State, were not pardons at all; the so-called “on the runs” letters were statements that there was no evidence, to the best of the PSNI’s knowledge at the time, to bring a prosecution against them. However, in fact, a prosecution was brought against at least one of them afterwards, so they were not pardons—how could they be? If they were, that prosecution would never have been brought.

We are speaking about the current Bill, but I will pause since the noble Baroness raised a wider issue. All of us have tried to grapple with this terribly difficult and fraught issue of legacy. All of us, including me as Secretary of State, have tried to do this, but it is extremely difficult. I sympathise with the Minister, who is trying to get to grips with it, as he has done in serving as a special adviser in Northern Ireland over many years— I pay tribute to him for that. It is not easy to do. However, this Bill is not the way to do it.

I hope that the Minister will listen to all the victims and that the Secretary of State for Defence, who recently visited Belfast, will do too, because he referred to a

“merry-go-round of legacy inquests”.

I hope that the Minister will acknowledge how deeply hurtful that comment was to victims and survivors. He will know, even if the Secretary of State for Defence does not, that the Ballymurphy families did not regard themselves as being part of a legal fairground entertainment as they listened to how their loved ones died and how their reputations were trashed and damned for 50 years. The Secretary of State for Defence also answered those crying out for the Government to abandon this ill-conceived legislation by saying

“give the legislation a try and see if it works.”

That casual dismissal of the pain of victims and survivors is disgraceful.

There is a second difference between what is proposed here and what has gone before: accountability. People who committed crimes were held accountable, even if the sentence they served was short. With this legislation, there is no accountability: they do not even have to pretend to express remorse or regret for their actions. They will, in effect, confess to having committed, or having been involved in the commission of, the most serious crimes—but, if their word is accepted as being true “to the best of” their “knowledge and belief”, as the Bill says, they must be granted immunity. As far as the world at large is concerned, they would not have a stain on their character. They could have committed murder, but a future employer would never know it. If I have misinterpreted the outworking of the legislation in this specific example, I would very much welcome the Minister putting me right.

17:45

Amendment 112 aims to make the granting of immunity more conditional and to give the ICRIR more discretion in granting immunity at the outset, along with the powers to revoke it once granted if the terms set out by it are breached, as set out in Amendment 124. If, in verifying whether the account given by the person seeking immunity is true to the best of their knowledge and belief, the ICRIR uncovers evidence or credible intelligence that the applicant is engaged in activities—I will set these out—that, if uncovered after immunity had been granted, could lead to revocation, it would have the discretion to withhold granting immunity. Thus, an applicant for immunity may have satisfied the conditions set out in paragraphs (a) to (c) of Clause 18(3) but, if they are found to be engaging with a proscribed organisation or harassing a victim or victim’s family, for example, the ICRIR may withhold the granting of immunity.

The Minister has proposed that there is only one circumstance in which immunity could be revoked: if a person knowingly misleads the ICRIR. There must be more circumstances than that to hold perpetrators to account, in however limited a way—if not for what they have done, then for their behaviour in the future. This is the thrust of my amendments: they would put some conditions on the granting of immunity, much like those imposed on those released from prison on licence. If they reoffended, they would be locked up again.

Amendment 124 would grant immunity on terms set out by the ICRIR. Its purpose is to give the ICRIR some discretion in the terms on which immunity is granted. Paragraphs (a) and (b) of proposed new subsection (14A) are designed to do two things. One is to link a person who has confessed to committing a crime, but who will have no criminal record, to the criminal justice system. If they subsequently commit offences that are sufficiently serious to warrant the revocation of their immunity, having fingerprints and DNA on record would be appropriate.

Proposed new subsection (14B)(a) would see immunity revoked if the person granted that immunity is subsequently found to actively engage with a proscribed organisation. It may well be that the crime—I will call it that, even though, through this legislation, it would seem that no crime has been committed—that has been confessed to will have been carried out on behalf of a proscribed organisation. It would be outrageous if the person granted immunity could simply carry on with that association as if nothing had happened.

Proposed new subsection (14B)(b) stipulates that, if a person granted immunity is a danger to the public in the view of the police and if the ICRIR concurs, they should have their immunity revoked. If there is a counterargument to that, I would be interested to hear it from the Minister.

Proposed new subsection (14B)(c) stipulates that, if a person granted immunity harasses a victim or a victim’s family, the immunity would also be revoked. This is important: people who work with victims and survivors of the Troubles often talk of the intimacy of violence in Northern Ireland. This is not often appreciated by those who have not experienced it. Even today, before this amnesty legislation is in force, victims and families are stared at, winked at and smiled at by those who have wronged them.

I can give a living example. A woman who had just given birth to her son was visited in hospital by her husband, who was a member of the RUC. When he left, she heard gunshots: he was murdered in the car park. Years later, thanks to advances in forensic science, someone was prosecuted for her husband’s murder and found guilty. He went to prison, albeit for only two years. Associates of this individual would stand outside this woman’s place of work. One day they came in and asked her to make a donation to a hardship fund for the man who had murdered her husband. Surely, we must give some protection, however limited, to victims and their families, for instance in that case.

Proposed subsection 14B(d) would prevent someone using their immunity to benefit financially from the crime or crimes for which they have been granted immunity. Again, that seems to me to be self-evident. These amendments set out a range of circumstances in which it would be appropriate to either withhold immunity or revoke it, and I hope that the Government will adopt the amendments without dividing the House on Report—otherwise I would need to ask leave to do so. If there are technical issues associated with the phrasing, I would be more than happy to work with the Minister to suggest how those might be corrected. If not, then I must divide.

I will draw my remarks on these amendments to a close. We have to show victims and survivors that, in this House at least, they have not been completely abandoned. I strongly appeal to the Minister—and, above all, to the Cabinet Ministers behind the Bill—to think again. If they agree our Kenova Amendments 112, 124 and 72, including the ones on immunity, they will be able to deliver a Bill with cross-community support rather than the one we have before us—with or without his government amendments, which do not really address the substance—which has provoked near-universal cross-community hostility in Northern Ireland and, frankly, huge opposition across the UK, and this House in particular. I urge him to persuade his colleagues sitting above him in the Cabinet to think again and to engage constructively on this.

[Lord Cormack (Con)]

My Lords, I am very glad to have added my name to Amendment 112, in the name of the noble Lord, Lord Hain. But there was a contradiction running through even the very eloquent and powerful speech that we have just heard from my friend—I deliberately call him that—the noble Lord, Lord Hain. He worked with extreme sensitivity when he had the honour to be Secretary of State for Northern Ireland, and I saw at first hand how he agonised over things and cared about people. At the beginning of his speech, he said—in as many words—that this Bill was beyond improvement: that whatever we did to it, we could not really make it into a decent Bill. Then he went on to urge us all to support the amendments. I understand the contradiction—of course I do, because we have the Bill before us. But every word I have heard uttered in these debates—and I have heard most of them—and on Second Reading, underlines the fact that, to quote the noble Lord, Lord Reid of Cardowan, in a different context, this is not fit for purpose. It really is not.

Much as I admire—and I do admire—the noble Lord, Lord Caine, as I have said before during the passage of this Bill, with all the good will in the world, and I know he has a great measure of that, he cannot really make this better. It is as if you are confronted with a cake made with poisonous fruit. Any amount of cream, any amount of icing and any amount of titivation will not make it anything other than a poisonous cake. I am afraid that the Government have, with a combination of insensitivity and ignorance—and this emphatically does not apply to my noble friend on the Front Bench—created a monster of a Bill that has alienated every community in Northern Ireland. There is only one answer, and I have said this before, and that is to go back to the drawing board and try to produce something that really does meet many of the points that have been made by the noble Lord, Lord Hain, and others during the course of our debates.

While I am here because I believe that the subject is important—I care deeply about Northern Ireland, although I have never had the good fortune to live there, and have been there many times and heard many stories—I feel we are not serving the people of Northern Ireland as we should if we try to make the proverbial silk purse out of the sow’s ear that the Bill is.

For those who are not from Northern Ireland, I would say this: a fortnight ago, I had a message that somebody from Northern Ireland wished to see me. Of course, I saw him. He was a man who had appeared as a witness when the Northern Ireland Affairs Committee—under my chairmanship—conducted an inquiry into organised crime. We had to take a unique departure for a Select Committee—I do not think it has happened since—which was that every evidence session was taken in camera, because people were not prepared to give evidence in public as their lives were at stake. This was a man who had suffered from extortion by—I hate the term—loyalist terrorists. How you can be a loyalist and a terrorist is completely beyond me, but the term is used. He wanted to come and tell me what had happened since that day in 2006 when he gave evidence to my committee. I was moved and impressed by his courage, his resilience and his determination. He had suffered quite considerably, and suffered physically as well. How would a man like that ever buy this Bill? It is from individual examples such as that that one can try to gain an understanding of what it is like, and has been like, in Northern Ireland, and realise that we really have a duty to produce something that can be acceptable to those who have suffered so much.

[Lord Hain (Lab)]

I do not disagree with anything the noble Lord has said. The problem is that the House’s role is not normally—if ever—to reject a Bill, especially one that, at least in part, has a manifesto commitment in it. So we just have to do our best to make it less unacceptable. That is what my amendments have been designed to do and I am very grateful that he has supported them.

18:00

[Lord Cormack (Con)]

The noble Lord says that we cannot reject a Bill, but of course we can. It should be done very rarely. The Parliament Acts of 1911 and 1949 make provision for it. There have been Bills rejected during my time in Parliament—only three in the 53 years that I have been here. The War Crimes Bill was rejected by the House of Lords. Mrs Thatcher pursued it, and it went on to the statute book, but I think I am right in saying that it has never been used in this country. Similar Bills have hardly been used elsewhere; they have little application. However, we have the opportunity to say, “Sorry, up with this we will not put”. To say that is entirely consistent with our constitutional position. It is not something that I would ever likely advocate, but it is something I would contemplate—and I think we have to contemplate it in this case. I do not like saying that, because I like to think I am a good constitutionalist. My belief is that this House has a duty to ask the other place to think again; it has an opportunity, if something is irremediable, to say, “Sorry, we won’t have this”.

Of course, if the Bill is then presented in an exactly similar form a year later in the next Session of Parliament, it will go through. However, I remind your Lordships that we are more than half way through this Parliament, and it probably would not apply in this case. That makes our responsibility all the greater before we do such a thing. Clearly, the obvious answer is to pause the Bill after Committee and to not have a Report stage—that is the tidiest and most constitutional way forward. I say to my noble friend—while, again, reiterating my admiration for his determination, sincerity, knowledge and commitment; all those words apply to him—that the Bill really should not pass.

[Baroness O'Loan (CB)]

I will add to the words of the noble Lord, Lord Cormack, about the options open to the House at present. One of those would be to support an amendment such as the one I tabled at the beginning of Committee, and to decide that the Bill should not proceed until such time as a legislative consent Motion has been obtained from the Northern Ireland Assembly.

With the noble Lord, Lord Murphy, and the noble Baronesses, Lady Ritchie and Lady Suttie, I have indicated that Clause 18 on immunity should not stand part of the Bill. I agree that we have seen limited measures for immunity in Northern Ireland. We saw, for example, the legislative provisions which allowed the information to be supplied for the recovery of the remains of the disappeared, in which situation the information provided could not be used for a prosecution. We also saw the decommissioning of arms, the information gathered as a consequence of which could not be used for a prosecution. But we have not seen the like of this Bill before, and I do not know of any other democracy which has agreed to the like of this Bill before.

We are faced with a situation in which the obligations of the United Kingdom to provide processes for criminal investigation and prosecution, for civil action and for inquests are being removed, and in which immunity is being provided for perpetrators for their previous criminal offences. That is not compliant with our domestic and international legal obligations, which require the provision of processes to enable the investigation and prosecution of offences. For example, we have very clear obligations as high-contracting parties to the European Convention on Human Rights. Under Section 1, we are committed to securing that everyone in the jurisdiction has all the rights and freedoms provided for in the convention. Those rights were incorporated into UK law by the Human Rights Act 1998, although their application, as domestic rights, has been limited somewhat by the jurisprudence of the courts.

In addition, under the Good Friday agreement of 1998, the participants of the multiparty agreement dedicated themselves

“to the achievement of reconciliation, tolerance, and mutual trust, and to the protection and vindication of the human rights of all.”

They stated:

“The tragedies of the past have left a deep and profoundly regrettable legacy of suffering. We must never forget those who have died or been injured, and their families. But we can best honour them through a fresh start, in which we firmly dedicate ourselves to the achievement of reconciliation, tolerance, and mutual trust, and to the protection and vindication of the human rights of all.”


They agreed that

“neither the Assembly nor public bodies can infringe”

the European Convention on Human Rights, and that there should be

“a coherent and cooperative criminal justice system, which conforms with human rights norms.”

However, the Bill does not provide that.

In England and Wales, people seem to be under the illusion that paramilitaries no longer have areas of Northern Ireland under their control—that is not the case. Paramilitaries, both loyalist and republican, are still at work, and they still exercise, on occasion, brutal control in their areas. Since 1998, when the Good Friday agreement was signed, 155 people have been killed, and there have been 1,660 bombing incidents and 2,700 shooting incidents. Over 1,500 people have been arrested under the Terrorism Act, and 235 people have been charged with terrorist offences in the last 10 years alone. Terrorism is alive and well, although not to the scale of previous atrocities.

The mere existence of those paramilitaries means that people who may have information to give which might lead to the arrest and conviction of people for Troubles-related events will, very often, fear to do so, lest they themselves be attacked. The consequence is that it seems that many of Northern Ireland’s terrorists have, by their very existence, created for themselves de facto immunity from prosecution. Now the Government are preparing to enable immunity for those few who may come to fear that prosecution might become a reality.

It is said that the Bill owes its genesis to the statement in the Conservative Party manifesto:

“We will continue to seek better ways of dealing with legacy issues that provide better outcomes for victims and survivors and do more to give veterans the protections they deserve.”


Victims across the UK have stated that the Bill is not victim-centred and that it does not provide better outcomes for victims; rather, it deconstructs the existing legal framework, creating a web of protections for perpetrators. There can be no doubt that the Bill is intended to give veterans protection, but most veterans who served in Northern Ireland did not commit criminal offences—and certainly not the most serious Troubles-related offences created by the Bill.

I have mentioned before that it is said that the state kept records while the terrorists did not. However, the state forces did not keep records of instructions not to investigate, not to transmit information or intelligence to investigators, not to arrest or to interview suspects, to lose evidence, or to contaminate physical evidence so that it would be inadmissible. Those things emerge only through painstaking investigation, usually because there are gaps in the chain of evidence, and sometimes people come forward to explain that they tried to do something but were stopped. Those processes enabled murderers to continue their nefarious business, sometimes as agents of the state, despite the best-intentioned processes, such as the passing of legislation by Parliament designed to regulate and to help in this area.

For the record, it is not the case that state actors, such as soldiers and agents, are more likely to be prosecuted than terrorists—and, of course, some state agents were terrorists. According to a House of Commons Library research briefing paper of May 2022, four soldiers have been convicted and sentenced following the Troubles, and one case is currently before the courts. Some 300,000 soldiers served under Operation Banner, which continued until 2007. Since 2011, 26 prosecutions have been brought by the Public Prosecution Service, 21 of which involved republicans and loyalists.

The provisions of the Bill suggest that the commission, and on very limited occasions, to some extent, the criminal law, is supposed to fill the vacuum left by the removal of criminal investigation processes, civil actions to recover damages for harms caused and inquests. Until now, we have had processes which are compliant with all our legal and moral obligations. If this Bill is passed, we will no longer have such processes.

The Government have stated that their aim is to get to those people who need it information which might help them and to achieve reconciliation. The Bill, unfortunately, has only one provision for reconciliation, and it relates to memorialisation. The response of the political parties, the victims’ groups, the NIHRC, the Equality Commission and all the international organisations, including the UN High Commissioner for Human Rights, do not indicate any confidence that the immunity provisions will actually achieve what the Government are aiming for. The general response that I have encountered in Northern Ireland, and among those British victims to whom I have spoken, is: “Why would they tell what they know? They don’t need to. They just need to sit it out”.

There is a view that immunity clauses and the provisions about early release et cetera create a perpetrator-focused regime, under which perpetrators will be able, should they wish to do so, to provide information which really will not be capable of challenge, and through which, should they avail of it, they will be free from all fear of prosecution. Clause 18 will enable an offender to provide a statement to secure immunity for prosecution for murder and other serious crimes which comprises limited information; information which has already been supplied in other circumstances, and even information which is already in the public domain. The information must be true, but there is nothing which says that it must be complete. Will the Minister tell the House whether there is a requirement that P should tell the whole truth?

The provisions in Clause 18(11) state that the commission can grant immunity for not only all identified offences but

“all serious or connected Troubles-related offences which are within a description determined”

by the commission. Will the Minister tell us what this means? I have read it several times and am trying to work out what those offences might be.

[Lord Caine (Con)]

Sorry, I missed that.

[Baroness O'Loan (CB)]

It is complicated. Clause 18 provides that the commission can grant immunity for not only all identified offences but

“all serious or connected Troubles-related offences which are within a description determined”

by the ICRIR. Will the Minister tell us what that means and what types of offences are envisaged by these provisions?

Clause 18 does not provide that the commission must investigate whether there is information available which may undermine or assist the verification of P’s account. The commission will have to make the decision on the basis of the information supplied by P, the information already in its possession and P’s statement that to the best of his knowledge and belief it is true.

Clause 18 is fundamentally flawed. It is in contravention of our legal and moral obligations. It is actually offensive to those who are expected to believe that the perpetrator has fulfilled his obligation to provide complete information. My experience as Police Ombudsman for Northern Ireland, and even as chair of the Daniel Morgan Independent Panel during my service on the independent steering group for Kenova, has shown that perpetrators very often do not tell the whole truth even when they are swearing that that is what they are doing. Their information is frequently disproved by other available information when the necessary investigation occurs.

One of the most questionable things about the Bill is that, under Clause 18 and government Amendment 85, and the new schedule to follow Schedule 4, a perpetrator of Troubles-related sexual offences, which includes attempted sexual offences, cannot be granted immunity but immunity will be available for murder, and for things such as dropping concrete blocks on people’s limbs, shooting them in the knee so that they will live their lives with constant pain and disability, or other forms of torture. Paramilitaries were known for torturing people to confess to that which they had not done so as to justify their subsequent murder, with bodies left mutilated and naked on country roads as a warning to others, or even concealed for ever so that they became disappeared. These are the kind of offences for which the Government intend to grant immunity from prosecution in return for information. The big question is whether the commission would ever really be in a position to know that the whole truth, or even a semblance of the truth, had been provided, even if the proposed amendments are accepted. For this reason, Clause 18 should not form part of the Bill.

18:15

While I have no doubt that Clause 18 should be removed from the Bill, like other noble Lords, I have sought to try to mitigate the worst effects of these measures, because that is what we must do. I support Amendment 112 to Clause 18 in the names of noble Lord, Lord Hain, and others. Had they not got there before me, I would have tabled such an amendment. Amendments 113, 115 and 119 to Clause 18 in the name of noble Lord, Lord Browne, to which I have put my name, would require the commission to be satisfied that any grant of immunity would be compatible with human rights et cetera. That is a very significant requirement. I also support Amendment 114 in the name of the noble Lord, Lord Dodds, though I think that it might be improved by the inclusion of a requirement to investigate and then, where appropriate, to submit a file to the prosecution service. I support Amendments 120 and 121 in the names of the noble Baronesses, Lady Suttie and Lady Ritchie. My own Amendment 122 is designed to ensure that there is consideration of all identified possible Troubles-related offences arising from P’s conduct and which were disclosed by P, because I think that Clause 18(10) is possibly ambiguous.

It is most important that there is a provision in the Bill for the revocation of immunity. I think that has now to some degree been accepted by the Government. My Amendments 123 and 126, also in the names of the noble Lords, Lord Murphy and Lord Hain, and the noble Baroness, Lady Ritchie, provide for revocation where it can be shown that P has not actually complied with the requirements for the grant of immunity in the first place.

The Government’s opposition to Clause 19 standing part, to be replaced by government Amendments 125, 139 and 140, provides for revocation by a court after a court has held that an offence has been committed under the new offence created in government Amendment 139. That amendment involves making a false statement. Will the Minister explain whether a statement which is true but incomplete is a false statement which would attract a penalty on conviction? Moreover, will the Minister consider how an accusation of making a false statement might be proved beyond a reasonable doubt in an environment in which it is so difficult to prove so much of what happened in the past and in which there are such limitations on the disclosure of information, particularly sensitive information, which may well be needed to prove a perpetrator’s involvement in a crime to which he has not admitted? Disregarding the inadmissibility of various forms of evidence, as referred to by the noble Lord, Lord Hogan-Howe, many very expensive and lengthy trials collapsed in the past when the evidence which was available which might have led to a conviction could not be presented because of the need to protect lives and sources. What will be different about this situation? If a conviction is impossible because of matters like this, under the Government’s amendment there can be no revocation of immunity.

Amendment 124, in the name of the noble Lord, Lord Hain, provides an alternative: the revocation of the grant of immunity by the commission for specified conduct by P. Amendment 127, in the name of the noble Lord, Lord Dodds, provides for revocation where an offence of encouragement of terrorism or glorification of terrorism is subsequently committed. That may require some consideration as to the legitimate expectations of a person who is granted immunity that they will not be prosecuted. I am not sure about that; perhaps the Minister and the noble Lord, Lord Dodds, could help us.

In reality, in most cases, all that any perpetrator has to do is sit it out until the end of the five-year period provided for in the Bill, and then they know that the murders and the life-changing injuries which they inflicted, and the serious mental health issues which were caused by their actions across the generations, will no longer be a cause for concern. Nothing can happen to them. The measures in this Bill, in particular Clauses 18 and 34, could mean, among other things, that ultimately any murderer or torturer, whether IRA, loyalist, state agent or member of the security forces, could not be prosecuted unless the commission agreed to an investigation within the five-year period at the request of a family member or a victim/survivor. Is it possible that these people could be subjected to pressure not to seek investigation by the perpetrators? The commission has no power, such as the police and the Police Ombudsman for Northern Ireland have, to initiate an investigation because there is a serious matter which requires to be investigated.

For this reason, with the noble Lords, Lord Murphy of Torfaen and Lord Hain, and the noble Baroness, Lady Ritchie, I have tabled Amendment 130 to Clause 21. It would impose an obligation on the ICRIR to investigate and seek information, which would allow a more informed decision to be made about whether P has actually told the truth—something which in most cases may well be incapable of verification.

Our subsequent Amendment 131 removes the Secretary of State’s power under Clause 21 to give guidance to the ICRIR about how to operate the immunity system. It would leave the immunity requests panel, which comprises the chief commissioner—a person who holds or has held high judicial office—and two ICRIR officers, who must be senior lawyers, as provided for in Clause 22, to make its decisions with complete and unfettered independence. If this immunity system is to operate at all—and I do not believe that it should—it will be vital that there can be no suggestion that the independence of the immunity requests panel is in any way compromised by political interference.

[Lord Browne of Ladyton (Lab)]

My Lords, I have amendments in this group. I say emphatically at the outset to the noble Lord, Lord Cormack, and other noble Lords that I am not in the business of silk purse manufacturing. But I do have amendments in this group and I will explain the purpose of them. My noble friend Lord Hain’s decades—in fact, lifetime— of commitment to human rights issues, peace and reconciliation, and latterly, for decades, to the people of Northern Ireland, is to be commended. I do not believe that he is in that business either; he explained himself the purpose of these amendments. I say in support of him that, if his Kenova amendments were accepted, we would not be dealing with this Bill. It would fundamentally change the legislation we have before us and, in my view, open up lots of other opportunities. In terms of the support for reconciliation, it may be potentially more valuable than what we have here.

Amendments 113, 115 and 119 are in my name and supported by the noble Baroness, Lady O’Loan, for whose support I am once again extremely grateful. They are probing amendments with the effect of ensuring that the ICRIR—the commission—must consider whether granting immunity from prosecution would be compatible with convention rights and, as important, compliant with the constitutional principle of the rule of law, as well as satisfying the interests of justice. Amendment 115 is the active amendment, Amendment 113 is a paving amendment and Amendment 119 is consequential.

The other purpose of Amendment 115 is to create an opportunity for your Lordships’ House to explore the compatibility or otherwise of the immunity provisions of the Bill with our obligations under Article 2 of the European Convention on Human Rights and the constitutional principle of the rule of law. Also inherent in this question is the scope of the commission to deal with the question of immunities without the guiding hand of the Secretary of State, in a way that is truly and avowedly independent—a point I made in the earlier debate.

To deal briefly with that second question first—and to repeat myself in a sense, if I may—the Bill does empower the commission to make decisions relating to immunity applications. But if the only salient question precedent to the exercise of this power is whether the applicant is telling the truth “to the best of” their “knowledge and belief”, and at the same time it

“must take account of any guidance given by the Secretary of State”

about when this condition is met, it is very difficult to consider this as any genuinely independent decision at all. I ask the Minister to consider the language of the Bill here. “Take account of” could imply various widely divergent systems in practice. Does it imply oversight, indifference or interference? Given the importance of independence and the appearance of independence in the conduct of reviews and investigations, I would welcome guidance from the Minister here in clarifying what this would look like in practice.

Turning to the wider question of compatibility, I read the Government’s ECHR memorandum issued by the Northern Ireland Office with great interest. It acknowledges candidly that the Bill will

“restrict or prohibit the investigation and prosecution of offences arising out of Troubles-era deaths”

and will

“therefore engage the UK’s obligations under Article 2 of the Convention.”

But there are certain minimum requirements that investigations must meet for the state to be conforming with its duties to protect the right to life as defined by its obligations. Investigations must be independent—as we debated earlier—effective, prompt and open to public scrutiny and must involve the next of kin.

Noble Lords have considered and are considering the questions of independence and transparency elsewhere, and we may come back to them on Report. But, speaking to the questions on the involvement of the next of kin and effectiveness, I would observe that, while the involvement of the next of kin is mandated, the European court previously has ruled that the state cannot rely solely on the next of kin, but rather that

“authorities must act of their own motion, once the matter has come to their attention.”

However, the Explanatory Notes to the Bill suggest that reviews primarily will be instigated by the next of kin rather than by the state. I hope the Minister will help me to square that circle in his response.

Most of all, it is unclear just how “effective” a commission review can be said to be, considering the weakness of the body’s powers and the immunity provisions in the Bill, to which I now turn. In their ECHR memorandum, the Government argue that the conditional immunity scheme can be justified as

“a proportionate means of achieving and facilitating truth recovery and reconciliation in Northern Ireland”.

In interrogating this assertion, we must ask two questions. First, will the immunity scheme prove an effective and proportionate means of achieving reconciliation? Secondly, may amnesties be accepted at all under the European convention?

Under the Bill’s provisions, to receive immunity, a person must just offer an account of their behaviour that is

“true to the best of”

their “knowledge and belief”, even if this account is already entirely in the public domain. This contrasts with the South African Truth and Reconciliation Commission, which demanded

“full disclosure of all the relevant facts”

as a precondition of amnesty. What fresh truths could one expect to uncover given this somewhat anaemic provision? It is hard to see how the cause of reconciliation is furthered by the spectacle of killers being granted immunity in return for partial and self-serving recollections.

Even if it were effective, it is far from clear that amnesties might be accepted at all under the ECHR. The Government acknowledge that previous amnesty schemes launched without reconciliation processes have been found to undermine Article 2, citing the case of Ould Dah v France and the court’s finding that

“an amnesty is generally incompatible with the duty incumbent on the States to investigate such acts.”

Yet the Government suggest that it is unclear in case law whether amnesties will be incompatible in all cases. The ECHR memorandum reads—this is crucial, because this is the basis of the Government’s immunity and amnesty—that the European Court of Human Rights

“has countenanced the possibility of an amnesty being compatible with Article 2 in some particular circumstances, including where a reconciliation process is in existence”.

The Government specifically cite the case of Marguš v Croatia. They go on:

“It is therefore an open question as to whether the Court would find an amnesty to be compatible with the Article 2 procedural obligation where there are alternative procedures that allow for investigation, information recovery and reconciliation.”


An “open question” where a “possibility” has been “countenanced”. This is hardly an endorsement of the Government’s legal position.

18:30

In Marguš v Croatia and in the Government’s response to questions from the Committee of Ministers, it appears that the Government are building their case on this paragraph from the Court’s conclusion, which says:

“A growing tendency in international law is to see such amnesties as unacceptable because they are incompatible with the unanimously recognised obligation of States to prosecute and punish grave breaches of fundamental human rights.”

That is pretty clear. But this is the sentence that matters to the Government:

“Even if it were to be accepted that amnesties are possible where there are some particular circumstances, such as a reconciliation process and/or a form of compensation to the victims, the amnesty granted to the applicant in the instant case would still not be acceptable since there is nothing to indicate that there were any such circumstances.”

The active part of this judgment is a commentary, and I repeat it because it is crucial:

“Even if it were to be accepted that amnesties are possible where there are some particular circumstances, such as a reconciliation process”.

This daisy chain of conditionality is extremely shaky ground on which to overhaul a country’s entire system of justice relating to a several-decades long conflict. The Bill, if passed, will be challenged in the courts. To base such a radical and controversial shift on a hypothetical statement, deemed irrelevant to its own case, is an adventurous act in a process that is supposedly about reconciliation.

[Viscount Brookeborough (CB)]

My Lords, I would like to mention one factor which may be naïve and maybe I just cannot see it, but we appear to be talking about amnesty for individuals who have committed a heinous crime of some type. I wonder whether noble Lords understand what actually occurred in practical terms? This is from my own experience of living there and serving there.

Early on in the Troubles there were cowboy shoots. There were people who went out just to murder a person. But after a certain time, I would like to think that the security forces not only became better, but they also became much more numerous. There were patrols all over the place. How was it that these people—supposedly individuals, as we seem to be talking about—were not caught? I will tell you why: after several years of the Troubles, no one except a madman carried out an incident on his own. It was not one person; it was a group of people.

When they went into Derryard checkpoint and reversed a lorry in and used flamethrowers, there were about—I am not sure—six people involved. Forty people were involved in that incident in total, and they were accomplices to murder. On every occasion, there were other people involved. Sometimes there was a change of gunman at the last minute. Does that make the other person any less guilty?

What I am really coming to is this: what is the evidence the commission will ask for in order to give immunity to a person? What can he say without giving evidence on some of the other people involved? Is he expected to do that, and how would it work? What evidence does the commission require to say that it knows he is telling the truth? If the commission asks how many were involved and he says, “Nobody. I carried a Mark 5 mortar on my back, crawled down the road and blew up the police station”, which is patently rubbish because you cannot do that, what is the proof it will require? What is the threshold of admission? Does that admission include any other names? If so, what is going to happen to these other people? Can the commission take it any further? This is really getting down into the practical side of how on earth this will work.

We talk about reconciliation—the noble Lord, Lord Browne, mentioned it a minute ago—saying that the truth would lead to reconciliation. Rubbish. What on earth are we talking about? There are people there who have lost loved ones and their families, and friends, who are equally hurt. In our case, in Fermanagh—I am talking about victims of all types, but these are my examples—every single one of my soldiers who was killed was killed off duty. They were killed feeding calves in the backyard; delivering vegetables; visiting a wife who happened to be Catholic, on a housing estate which was more Catholic; driving a lorry; leaving home in the morning.

How did they kill them? It was not the next-door neighbours; it was somebody close. If he is going to tell the truth, he is also going to say that his accomplice was his next-door neighbour. Do you call that reconciliation? Let us be realistic about this. There is a big hole here. How can you give immunity to individuals when there were multiple people in every incident who are equally guilty? Sometimes more so, because the gunman could be somebody who is instructed just to do it and is told: “I will drive you there and we will make sure that there are no patrols”. They did it to such an extent that they might have laid it on five mornings previously, one after the other; but lo and behold, there was a patrol and somebody said: “Don’t do it. They are closer to you than they can be”. The gunman, although he may have pulled the trigger, may never have done it without 20 people behind him, without the planning, without everything else.

Maybe I am being naïve but I just do not know where we are going with this at all, and I agree with everybody else that it is going to create rubbish and as far as reconciliation goes, which I would like to see in my own area, it is further from completion than anything I have ever heard.

[Lord Dodds of Duncairn (DUP)]

My Lords, it is an honour to follow the very powerful speech of the noble Viscount, Lord Brookeborough, who brings us back to the reality of the sordid terrorism, the violence and the campaign of the IRA—and other paramilitaries —during the period of the Troubles. It struck me very powerfully because just yesterday evening, Pam Morrison, who the noble Viscount will know well, as will others in this House, came to meet us as part of the delegation from SEFF, the victims group. In the space of six years from 1981, in the county of Fermanagh, she lost her three brothers to IRA terrorism—Jimmy, Cecil and Ronnie Graham. They were all slaughtered in the manner to which the noble Viscount referred: not on duty but going about their daily business. Pam also lost her sister, who was a Greenfinch in the UDR, as a result of the violence in Northern Ireland. This is the reality of what we are talking about. She was here at Westminster, along with others who have suffered terribly, basically to plead with lawmakers here to think of them, to bear in mind their loss and not to deprive them of hope, however difficult, as one of them said. They realise more than anyone the difficulty of getting justice, but to take away the hope of justice is a terrible thing.

I will deal with the amendments briefly because we have had a long debate, but this group of amendments on immunity is an important one; it goes to the heart of the Bill and it is right that we take time to examine it in detail. I just want to pick up on what the noble Lord, Lord Bew, said at the start of our debate on this group. He was absolutely right when he said about the concentration now by so many on this legislation that it is as if it is the first time there has been an attack on the equality of justice. We hear people in the United States complaining about this Bill. We hear people who have defended the IRA and raised money for it complaining about this Bill. We hear people in the Irish Republic who provided a safe haven over many years for terrorists and would not extradite them complaining about this Bill.

A number of examples have been listed, such as the letters of comfort to on-the-run terrorists, the royal pardons—we have never had a proper explanation of what crimes, and who, were covered by those—and, let us be frank, the 1998 agreement itself. To be fair, the noble Lord, Lord Hain, referenced the point about victims and that agreement, which released some of the most hardened criminals who had carried out some of the most obscene atrocities in Northern Ireland after only two years’ imprisonment. That was a grievous body blow to the victims, and many of us spoke out about it at the time. There has been a litany of issues affecting victims. I thank the noble Lord, Lord Bew, for making this point because it puts all this into context.

Having said all that, I want, if I can, to focus briefly and concisely on the amendments in this group in my name and those of my noble friends. The first is Amendment 149, which is

“intended to allow the offences for which immunity has been granted to be taken into account in sentencing for post-Troubles offences.”

That means offences committed after 10 April 1998. In my view, it is only right that, if a perpetrator or defendant committed a crime after that date and was convicted of that crime, a court of law should be able to take into account all previous convictions, including crimes for which they may have received immunity. Otherwise, we will have a perverse situation where post-Troubles crimes and sentencing are also affected by this legislation, which would be entirely wrong.

Amendment 114, also in my name and those of my noble friends, would

“require the Commissioner for Investigations to refer a file to the PPS when an individual is found to have provided false statements to the ICRIR in the course of its functions.”

I take the point made by the noble Baroness, Lady O’Loan, in relation to that. The Government have conceded that making a false statement should be an offence and that, if someone is found guilty of it, their immunity should be revoked. I very much welcome that limited progress, which my colleague, Gavin Robinson MP, spoke about and pushed an amendment on in the other place. I am glad that the Government have now come forward with something, albeit in a different form than we originally proposed, by creating an offence and then having a court revoke the immunity. However, in our view, Amendment 114 would tackle a deficiency in the Government’s drafting: the offence is established but it is not apparent who is to bring proceedings and where the burden falls. Although the Government are making provision to ensure that compelled material can be inadmissible in criminal proceedings, there is no provision to require the ICRIR to provide that material and evidence of false statements to the PPS. I just want to probe the Minister on that issue and see whether that gap can be rectified.

I very much welcome Amendment 130 in the names of the noble Baroness, Lady O’Loan, and others; indeed, we sought to table the same amendment. Again, there was a bit of a competition to get some of these amendments in, but it shows the level of cross-party support on many of these issues, in an effort to improve the Bill. If it can be improved, we should try to do that as part of the function of our House. Clause 21(4), which this amendment would remove, does need to be removed. It is wrong for the ICRIR not to be required to seek information from others in relation to someone who comes forward and gives their point of view on crimes they may have committed.

18:45

Government Amendments 45 and 85 will provide exemptions in relation to sexual offences; again, that is welcome. If I am right, this issue was the subject of a vote in the other place and the Government were defeated, which is very rare for government legislation. The Opposition led on that change, which we welcome.

Amendment 45 would exempt material gathered as part of the ICRIR’s functions and provide for access to that material in relation to safeguarding children in civil cases. Again, that is welcome. It is vital that those categories be regarded as sufficiently important for us to provide amendments and exemptions, but it comes back to this question: why are victims of some of the most terrible crimes possible, and their families, not sufficiently regarded? They are to be faced with the consequences of the perpetrators of the crimes against them being given immunity, but then we have these exemptions. It does not sit consistently with the view that people should be treated according to their human rights and human dignity.

There are other amendments I could speak to, but time is moving on and is short for us to consider some of the other important groups we must deal with. I support amendments that would limit the power of the ICRIR to grant general immunity, put in licence-type conditions and take away the mandatory need to grant immunity for discretion and so on. All those measures would lead to improvements. I look forward to reconsidering these issues and voting on some of them on Report.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, this has been a powerful debate because, irrespective of their party-political affiliation, where they come from in Northern Ireland or whether they reside here in Britain, all noble Lords have a deep aversion to the proposition in this Bill to eradicate, in many ways, civil actions and to provide immunity. That is very much anathema to victims and survivors.

The Minister probably finds this Bill particularly challenging. In his previous positions over many years, he will have dealt directly with many victims and survivors in discussing the various iterations of how the Government, along with others, intend to deal with the legacy issues, because that is one of the outstanding matters of the Troubles era. However, having listened to the people from SEFF yesterday evening and to other victims over the past few weeks and months, many of whom I know personally, I know that they find that part of the Bill particularly difficult. They say that this Bill is irredeemable—a word that was used last week and has been used this week.

Looking at this group of amendments, I agree that Clause 18 should not stand part of the Bill. I also agree with Amendments 120 and 121, in the name of the noble Baroness, Lady Suttie, which probe the Government’s general definition of immunity from prosecution. Will the Minister say a few words about that? Clause 18 should definitely not stand part.

All these amendments deal with the immunity process, which, along with the denial of access to justice measures at the heart of the Bill, is very troubling for victims. What they want is the truth about what happened to their loved ones. The noble Lord, Lord Dodds, recounted the story of Pam Morrison. She told me last night about her three brothers and sister, who were heinously murdered in such a summary fashion. I know the Minister will be aware of the incidents in Loughinisland, where I have neighbours and indirect relations who were murdered, or executed, in a very summary fashion. These people were never involved in politics or anything like that. The way they were murdered impacts on the lives of their loved ones, because those people are no longer there; it is about the way that people decided to take them out of society.

I ask the Minister to talk to his colleagues in government, particularly the Secretary of State for Defence, who was in Belfast, as the noble Lord, Lord Hain, referred to, only a couple of weeks ago. He seemed to be very gung-ho about this legislation, with little cognisance of the needs of victims and survivors. The Bill provides for the granting of immunity from prosecution for gross violations of human rights on the basis of participation in the review process, through telling recollections. It does not specify whether those recollections have to be detailed or whether they can be scarce in their content. To many observers, including me, this legislation and this section on immunity are incompatible with the UK’s obligations under international human rights law, particularly the European Convention on Human Rights. This has already been referred to by the Northern Ireland Human Rights Commission, which has just written to our protocol committee about this issue.

There is no doubt that the threshold for this immunity set out in the Bill is low, with a requirement that information provided is true only to the best of the person’s knowledge or belief, and no requirement objectively to test that information against evidence. Can the Minister elaborate on this? To me, there is something inherently wrong in that. It shows a terrible fault line in this legislation and the need for the legislation not to be pursued.

Finally, the government amendments, including on penalties for lying, do not in any way attempt to make changes to this part of the Bill; I come back to the issue that there remain incredibly limited mechanisms for testing the veracity of accounts. The bottom line is that the government amendments would make no change to the immunity provisions. I ask the Minister to look at this matter, because the issue of immunity and the denial of access to civil action and inquests are causing grave concern to victims and survivors who thought they would be able to get truth recovery and justice—the very things they are looking for.

[Lord Weir of Ballyholme (DUP)]

My Lords, in dealing with this group of amendments, as we have to, it is undoubtedly the case, as has been said on all sides of this Committee, that we cannot get away from the elephant in the room: no matter how good an amendment is put forward—I include the amendments I have added my name to—it cannot turn what is an unacceptable Bill into an acceptable Bill. I urge the Minister and his government colleagues to listen to the clarion voices from all sides of the Committee, from all sections of society within Northern Ireland and from all groups connected with victims that this is not the right way forward. At the heart of it is the completely unacceptable anathema of the immunity that the Bill proposes. I agree with the remarks of the noble Baroness, Lady O’Loan, and her call for Clause 18 not to stand part of the Bill.

However ultimately unamendable the Bill is in terms of its scope, we have no choice at this stage but to look at these amendments. It is a duty on all of us to make whatever improvements we can, however small, and at least try to take any step forward that we can, so I will touch on them briefly.

I welcome Amendments 120 and 121 in the names of the noble Baronesses, Lady Suttie and Lady Ritchie. Along with others, I met representatives of SEFF and have spoken to other victims’ groups as well. There is undoubtedly a deep sense of hurt and betrayal among victims. It is obviously not their biggest concern, but one of the concerns that adds to their hurt is a level of confusion and anxiety over the definitions of general and specific immunity. There is a lack of clarity around that. While this will not get to the heart of the issue, at the very least, can the Minister give us some clarity around that today? I would welcome these probing amendments if they can draw out that information.

I also welcome Amendments 112 and 124, brought forward by the noble Lord, Lord Hain, and others. To move from a position in which immunity is effectively compulsory to one which gives a much greater level of discretion to the commission is a sensible step forward. I think the scope of Amendment 124 has been accepted and government Amendments 139 and 140, dealing specifically with the issues around withholding information, move in a way that was not the case a while ago: at least there has been an acceptance that, if immunity is to be granted, it cannot simply be a one-off gift and that, where there are breaches, it can be revoked. That is an important principle as well.

We believe our Amendment 114 to be complementary with the provisions on the withholding of information or the giving of wrong information, because it gives a clear pathway for those prosecutions which the offence created in Amendment 139 can progress. The giving of false information or the withholding of information are of importance for two reasons. First, if we are to be stuck with this inequity of immunity, it should not be some form of tick-box exercise that anybody can qualify for no matter what information they give. Also, if there is anything to be gained from this at all in terms of truth—I very much share the views of the noble Viscount, Lord Brookeborough, that this whole process will be entirely counterproductive rather than helpful—one of the things that will aggravate victims is if the information provided is false, if they are given false hope and wrong information about the deaths of their loved ones.

[Viscount Brookeborough (CB)]

Perhaps the noble Lord would like to ask the question of what information given to the commission by somebody seeking immunity will be made available to the victims. That is the point at which reconciliation breaks down—when the names of the other people involved will horrify most families, people who have never appeared on the radar.

19:00

[Lord Weir of Ballyholme (DUP)]

That is an entirely fair and justified point. I look forward to the Minister responding directly to it.

Where revocation takes place, there is going to be a trigger mechanism that brings that about, as in the Government’s Amendment 125. I have a slight concern—this point has been raised by the noble Baroness, Lady O’Loan, and others in other amendments—about the length of time it takes for prosecution to take place and the amount of work required. That is why I think the wording of Amendment 126 in the name of the noble Baroness, Lady O’Loan, which is of a similar nature to the Government’s, is better. If false information has clearly been given, where immunity pertains and continues to pertain until we reach the final point at which there is a successful prosecution for that offence, we are giving a false and wrong position of immunity to perpetrators. I prefer the wording in Amendment 126.

I have one final point to touch on; again, I do not want to reiterate everything that has been said. Our Amendment 149, which would provide for the information on immunity to be made available to the court for a post-1998 serious offence to assist with sentencing, is important for a number of reasons. As somebody who worked as a lawyer in a previous life, as many in your Lordships’ House have, I know that when you are making a claim on behalf of a client, one of the critical elements in sentencing is looking at past behaviour and, in particular, the past criminal behaviour of that individual, to establish from the court’s point of view whether the conduct of that individual is simply a one-off or whether they have a long history of similar crimes. There is protection for the guilty party in that it does not come into play until the person is convicted and found guilty. That is along the lines of what we have put forward.

This effectively brings the situation for post-1998 offences and those who have been granted immunity into line with what happens under the normal law. That is important. As has been mentioned by the noble Lord, Lord Bew, there is already a history of corruption of justice through this process, which treats perpetrators of crimes from the Troubles in a special place compared to other criminals. That is wrong. It is morally wrong, and it should be legally wrong. It is also deeply offensive and hurtful to the victims. But it is not simply a question of the impact on the past and the present. It is about what message is sent out to the future. We are seeing already in Northern Ireland, and in other jurisdictions, an almost casual attitude among some towards the Troubles, in which trite phrases are trotted out such as, “There was no alternative to violence.” If we continue to perpetrate a belief that those who were involved in Troubles-related murders are in some form of special category—that they are not really criminals on the same basis as others who have committed heinous crimes—we send a signal to current and future generations that in some way this was acceptable, and therefore there is a greater risk of it being repeated in future. It would apply only where a post-1998 conviction has taken place, rather than within a trial, but it would be a small but significant step in the direction of normality for those who have committed that crime.

I commend the range of amendments that have been put forward, but—among many in this Chamber; effectively everyone who has spoken, I think—there is a consensus that this is not the way forward. The Government, beyond this set of amendments or any of today’s amendments, need to think again, pause and withdraw.

[Lord Eames (CB)]

My Lords, apart from all else that has been said, this group of amendments takes the House to the substance of what is causing so much heartache, has united opposition and is destroying hopes of reconciliation back in Northern Ireland. The two words we have all used, “victims” and “survivors”, are very easy to use. When we really think about it, we are generalising in a way, which is doing immense harm to what those words mean. We are not speaking about some group that we cannot touch, hear or understand. We are talking about men and women who, perhaps two generations on in the same family, are feeling the repercussions of what we continue to call—and here is another word—the Troubles. We are talking about the need, somehow, to find a way—if this legislation is to have any use—to do something about the real faces behind “victims” and “survivors”.

I am sitting here listening to so much that has been said, and I am hearing other voices. I am hearing those countless voices I have ministered to over the years as a priest, a bishop and then an archbishop. I have listened to the service families, those who came out of their homes and, most importantly of all, those who, when off duty, came back into their homes in the very areas where they would be in danger. Can noble Lords imagine what that was like—the constancy of anxiety and thinking about the children? One child in particular, when I had performed the burial of her father who had been slaughtered by terrorism, tugged on my robes to draw my attention and looked up at me. As I looked down at this child—I can still see her—she said, “What have you done with Daddy?” That is the sort of human reaction we are talking about this evening. We are not talking about facts—“victims” and “survivors”. We are talking about ordinary, decent people caught up in a situation that I wonder whether we will all ever understand—its causes and consequences.

I have said publicly in this House, twice at least, that I feel so strongly for the position that the Minister is in and why he has tried to do so much to feel the tenor of what we are saying to him about this legislation. I plead with him to go beyond “victims” and “survivors” to the people who are actually asking this House and the other House to treat them as human beings. That is what they are, and they are at the centre of the need in relation to which this legislation is lacking.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, I agree with every word that the noble and right reverend Lord, Lord Eames, said. For 50 years, I ministered to the people. I was not only an elected representative for 14 and a half years in the area of Northern Ireland that was known as the “Killing Fields”—Mid Ulster, Castlederg and that area—but was a pastor. Like the noble and right reverend Lord, I have stood with many families grieving loved ones. Like him, I can still see a boy standing at the side of a street, when everyone around this little child was crying. His father had been murdered. The words he said were, “Why is everybody crying?” He did not realise that they were crying for him, because that father would never lift him again, cuddle him again, touch him again or kiss him again. Unfortunately, that has been replicated over and over again.

Here we are, some 50 years from the commencement of the Troubles, talking about the situation. Many people say, “Why don’t you just forget the past? Why don’t families just move on?” A person who says that has no idea of the hurt and grief that many to this day are carrying because their loved one has been murdered and no one has been brought to justice.

Can immunity be regarded as justice? Is an amnesty for those who have committed vile atrocities against their fellow human beings justice? The vast majority of people in Northern Ireland, way back 50 years ago, desired to live in peace with their neighbours. They had no ill will against them; they wanted to live in peace and harmony. But that was all changed by the insurrection of IRA terrorism, which sought to turn neighbour from neighbour. Fear and suspicion were rampant everywhere.

I agreed with the noble Viscount, Lord Brookeborough, when he drew attention to the fact that the persons who pulled the trigger did not act on their own. Information gatherers were in the community, watching the movements of that part-time member of the security forces who was doing his daily work but going out to try to bring peace and stability to the community in which he lived. Many of those watching were his neighbours; they were watching his every movement to be able to report back, until that final occasion when a trigger was pulled or a bomb was set off. So we are left with this legacy. Indeed, the Bill is called the Northern Ireland Troubles (Legacy and Reconciliation) Bill.

Reconciliation is not aided by persons who are guilty of the vilest crimes getting immunity or being let off. The hope of justice is the last thing that families hold on to. I pay tribute to members of the RUC, the RUCR and the UDR—all those who stood between the communities over many years. They were vilified by so many people; the propaganda machines of the IRA were condemning them, while of course the bombs were tearing their families and communities asunder. We must never forget the sacrifice that many of these people made.

I pay tribute to the young soldiers who came to Northern Ireland. Many of them did not know the roads they were patrolling. They did not know the community. They were there only to do a job: to try to bring peace and stability to Northern Ireland.

While I realise that time is limited, I will make one point. I have heard a lot of people saying that the whole Northern Ireland community is against this Bill. I can accept that—partially—but I will not accept the total hypocrisy of Sinn Féin in this situation. Make no mistake about it: Sinn Féin members are quite happy for legislation to pass so that their terrorist colleagues will escape justice—very happy. The only reason they come out with their words of condemnation of this is that they have a hatred of members of the security forces, the young soldier lads who patrolled the streets of Northern Ireland.

19:15

That is why I can say that every person who legitimately opposes terrorism can rightly say that they demand justice—and this Bill will not give them that justice. But let us not cover over the hypocrisy of those who caused over 30 years of murder and mayhem, and who do not, in reality, want justice to touch their loved ones. They want them to be spared while the security force members are pulled through the courts. That is hypocrisy.

[Baroness Suttie (LD)]

My Lords, as was said by the noble Baroness, Lady Ritchie, this is an extremely important debate. It may have been long, but it is extremely important. We have heard many detailed and deeply compelling speeches. I will just pay tribute to the noble and right reverend Lord, Lord Eames, because his intervention reminded us what this is all about. It is about people who have suffered, and it is important to focus on that.

As many noble Lords have said several times during debates on the Bill, we would have preferred it not to proceed at all, not least because of its Clause 18. I think I am not alone on these Benches in rather liking the radical noble Lord, Lord Cormack. He sometimes surprises us with his radicalism, but he was absolutely right to talk about this as trying to make a silk purse out of a sow’s ear. There are other, less polite, Scottish versions, but I will not use them today.

I will try to be brief, because time is ticking on and dinner break business is waiting. I am pleased to have added my name to Amendments 112, 124 and 135, tabled by the noble Lord, Lord Hain, who made a very compelling argument for them in his intervention. Clause 18 is absolutely the key clause of concern. It is at the very heart of people’s concerns about the Bill as currently drafted, and the proposals for immunity have caused a great deal of distress and anxiety to so many victims by potentially closing the door to hope. The maintenance of that hope that justice could be done has been so vital for so many victims and their families. If Clause 18 is left unamended, it is not clear to me how the Bill will be Article 2 compliant. I know that this view is shared by many others speaking in the debate, not least the noble Baroness, Lady O’Loan, and I feel that the Minister should respond to that in his concluding remarks.

At an earlier meeting on the Bill, I asked the Minister how the “general immunity from prosecution” set out in Clause 18 would sit alongside some of the government amendments proposed, which, in some way, restrict the definition of immunity. I am not a lawyer, but it is not clear to me how the general immunity framed in the existing Clause 18 would sit with some of the exemptions that the Government are proposing. I would be very grateful if the Minister could shed some light on this during his concluding remarks. We all appreciate that the Minister is trying to square multiple circles with this Bill, and that he himself has expressed deep concerns about the prospect of general immunity as it stands.

In conclusion, it would be useful to hear from the Minister whether there is still scope for movement on this between Committee and Report stages. He will have heard the united view of all noble Lords and Baronesses who have spoken this evening. Every single Peer who has spoken in this debate is against Clause 18. The victims are against Clause 18. I know that it was a Conservative Party manifesto commitment, but it is wrong and remains wrong. We would like to hear the Minister’s views on whether we can make progress, perhaps through the proposals of the noble Lord, Lord Hain, and the Operation Kenova process, but, personally, I think that it should be deleted from the Bill.

[Lord Murphy of Torfaen (Lab)]

My Lords, this has been a very impressive, rather stunning debate. I have tabled Clause 18 stand part, which would effectively omit immunity from the Bill. The noble and right reverend Lord, Lord Eames, quite rightly mentioned that this debate, and this and subsequent clauses, are at the heart of the legislation. Without them, there would be no Bill and no argument. If anybody reads in Hansard, or watches on television, the last two hours of debate in your Lordships’ House—and I hope they do—they will see how strong the feeling is across these Benches. This is not just because people do not like it but because noble Lords have spoken from deep experience over decades in Northern Ireland, from living there, being Ministers there, or whatever it might be, unanimous in the belief that this immunity, this amnesty—they are the same thing—should be dropped.

The other unanimous view in the debate was that the legislation completely ignores the victims: it is not about them, whereas it should be. Looking back over the last 25 years—particularly, I suppose, at the agreement—as I was saying to someone today, there were a number of things that we could have done and did not. We did many things when we introduced the agreement, but we could have improved on how we dealt with victims. In the years that followed, there were brave attempts: the Eames-Bradley review and others all tried to put right that which was not right a quarter of a century ago. What is certain is that this legislation does not. To the contrary, it makes things worse. Over 25 years, I have never experienced such unanimity on a difficult issue like this in Northern Ireland—I have experienced much disunity—so it cannot be right that we go ahead.

The noble Lord, Lord Cormack, made the interesting point about whether we should go ahead with the Bill, as it is so bad. Then the noble Lord, Lord Hain, the noble Baroness, Lady O’Loan, and others put their amendments forward, all first class with excellent speeches. They give an opportunity to improve it. Revocation of immunity, conditional immunity and licensing around immunity would all certainly improve it. The whole issue of trying to improve it was discussed last week in our first day of debates on Kenova. That is a dilemma for us in this House. We could have done nothing, let the Bill go through on the nod, and said that it was so bad that we would have to wait for a change of Government to repeal it, which the leader of my party has said that he will do. But there is a duty on us to try to ensure that it is not as bad as it is at the moment when it leaves this Chamber and goes back to the other place.

This part of the Bill in particular goes fundamentally against the rule of law. If I thought for one second that we could salvage some of this, that would be all well and good. But my feeling is that the Government simply want to go ahead, come what may. The amendments that they have put forward are all right, but they do not go far enough. My plea, and, I am sure, that of everybody in this Chamber, is to drop it.

[Lord Caine (Con)]

My Lords, I would like to say that I will try to be brief, but I fear that that might be impossible in response to a debate that has lasted for one hour and 58 minutes. I think the only debate that has lasted longer since I joined your Lordships’ House in October 2016 was on one of the amendments to the European Union (Withdrawal) Bill from my noble friend Lord Patten of Barnes, which lasted longer than two hours.

This has obviously been an extensive debate. I say sincerely that I am grateful to all those who have taken part. Noble Lords are absolutely right that these clauses and amendments go to the heart of the legislation before the Committee. I hope that noble Lords will forgive me if I take longer than normal in trying to respond to as many points as possible, in the knowledge that I will not be able to deal with everything but will try my best.

I start by expressing my gratitude to my noble friend Lord Bew for his kind words at the outset of this group some time ago. He and others who have spoken were absolutely right to draw attention to occasions in the past when quite extraordinary changes have been made to the criminal justice system in Northern Ireland: the noble Baroness referred to the decommissioning Act of 1997, the location of victims’ remains Act of 1999, and the early release scheme in the 1998 agreement and the subsequent Northern Ireland (Sentences) Act—the latter have caused so much difficulty, not least for my noble friends on the Democratic Unionist Benches. Those remind us that it is far from unknown for changes to be made to the normal process of the criminal justice system in Northern Ireland.

My noble friend Lord Bew referred to the importance of the commission following best practice in carrying out reviews and so on. I assure him that it is already under a clearly defined obligation in Clause 4(1)(b) not to do anything which

“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 protections of the kind to which he was referring.

A large number of amendments in this group, the vast bulk of them, consider the immunity process. It is worth reflecting at the outset that the Written Ministerial Statement of March 2020 and Command Paper of July 2021, both published by my right honourable friend Brandon Lewis when Secretary of State, envisaged a form of unconditional closure of cases which would apply to all Troubles-related offences, including offences carried out by members of terrorist organisations and the security forces. I am on record as saying that I do not support, and have never supported, a blanket statute of limitations. My position has not changed, so, as I said in the House last week, if the Government were still pursuing the position from the Command Paper of 2021, I would not be standing here taking the Bill through.

The point is that the legislation before us today is very different. Rather than a statute of limitations, it provides for a conditional immunity model whereby immunity from prosecution will be granted only on a case-by-case basis, and will depend on individuals providing an account that is assessed by the commission, using all the evidence available to it, to be true to the best of their knowledge and belief. I will go into some of the points raised in connection to that later. If individuals do not do so, they remain liable to prosecution should sufficient evidence exist or come to light.  I want to be absolutely clear that prosecutions in circumstances where individuals do not engage and co-operate fully with the commission will still be possible.

19:30

The Government maintain the view that the immunity process is robust, but I have heard the strength of feeling on this most serious of issues during numerous engagements with interested parties, and I am therefore bringing forward key amendments that will ensure that there are stronger incentives for individuals to engage in the truth recovery process and stronger penalties for those who do not.

Before I go on to Amendment 112, I shall respond briefly on the Kenova point, and perhaps we can take this away. The noble Lord is absolutely right that, in a technical sense, Kenova could be scaled up; I think the problem is applying the Kenova model to all outstanding cases and all cases that might be referred. For example, the PSNI Legacy Investigation Branch currently has a caseload of more than 1,000 cases. If you were to apply a full criminal standard investigation to all of them, you are looking at this process potentially taking many years indeed. That is one of the principal difficulties, but I am happy enough to talk to the noble Lord about this matter.

The noble Lord referred to prosecutions and so on within the legislation. I remind noble Lords that a number of former Secretaries of State, including Members of your Lordships’ House, wrote to the then Secretary of State for Northern Ireland in 2018 attacking the Stormont House legacy proposals that provided for prosecutions in the normal way:

“We understand why many victims and others attach great importance to the prosecution, conviction and sentencing of those responsible for the appalling loss that they have suffered … But experience suggests that it would be a mistake to expect that judicial outcome in any but a tiny percentage of the crimes that have not already been dealt with.”

That letter was signed by the noble Lords, Lord Hain, Lord Browne of Ladyton and Lord Murphy of Torfaen, and my noble friend Lord Cormack. I think there is an understanding that criminal justice outcomes would be very rare, and that is why, as I have said on previous occasions, the Government move towards the condition—

[Lord Hain (Lab)]

I of course acknowledge that letter, since I helped get it together, and I have said in debate that criminal prosecutions will be extremely rare. In fact, I think I quoted the HET example of 2,000 cases and three convictions. That is not an issue between us. What we did not have then was proof that the Kenova operation works. Notwithstanding what the Minister said—I look forward to engaging with him—we now have a ready-made model to drop into this Bill and make it palatable.

[Lord Caine (Con)]

I appreciate what the noble Lord has said. I pay tribute to the work of Jon Boutcher, and I hope to see him to discuss it very shortly, but we have yet to see whether prosecutions can take place. There are cases before the DPP which have been sitting there for some time, so we have yet to see any outcome; and we await his first interim report, so we should perhaps exert a bit of caution.

Turning to the noble Lord’s Amendment 112, as I have said, conditional immunity will be granted to individuals who provide an account true to the best of their knowledge and belief. In determining whether that is the case, the immunity request panel, which is chaired by the chief commissioner, who will be a senior judge, retired or serving, will of course exercise professional judgment in that respect. In our view, the noble Lord’s amendment would give the immunity request panel too broad a discretion to refuse to grant immunity, even where the statutory conditions are met, and we do not consider that appropriate. The existence of such discretion would lead to uncertainty over the terms of the process for those who might come forward with information, potentially discouraging their co-operation. Additionally, the application of such a broad discretion may undermine the perception of fairness which is critical to wider public trust.

However, the Government are tabling amendments that will enhance the robustness of the immunity process. My Amendment 139 will create a new offence for people who knowingly or recklessly make a false statement to the commission, including as part of an application for immunity. People convicted of this offence could go to prison for up to two years and face an unlimited fine. I hope noble Lords will agree that that is a significant strengthening of this legislation. Amendment 43 makes an important consequential change to Clause 7, ensuring that a false statement provided to the commission can be used in evidence against the person who provided it if prosecuted for the new offence. Government Amendment 140 proposes that a person convicted of this offence in relation to a request for immunity will automatically lose that immunity and therefore, under provisions in part 2 of the new schedule to be inserted by Amendment 85, will not be able to apply for immunity for those offences again. I hope noble Lords will agree that someone who has been proven to have deliberately or recklessly provided a false account to the commission, potentially frustrating the objective of families to know the truth about what happened to their loved ones, should not retain any immunity granted in relation to that false account.

I am instinctively sympathetic to Amendment 124 from the noble Lord, Lord Hain, which would attach certain licence conditions to somebody granted immunity. I am also sympathetic to the intent behind Amendment 149, in the name of my noble friend Lord Dodds of Duncairn, which would widen the circumstances in which immunity could be revoked. I am very happy to commit to considering these further and sitting down with the noble Lords to discuss them between Committee and Report. I am very sympathetic to the intent behind both those amendments.

Regrettably, I am not able to say the same to the noble Baroness, Lady O’Loan, in respect of Amendment 131, which seeks to remove subsections (7) and (8) of Clause 21, which will allow the Secretary of State to publish general guidance relating to decisions on immunity. Without going over some of the same ground that we discussed in considering the previous group, the Government are very confident that the commission will retain full operational independence in making decisions, including decisions on immunity, and the Secretary of State will have absolutely no say whatever in any specific individual immunity application. The intention of the general guidance the Secretary of State may issue, and to which the commission must have regard, is to help the commission apply the statutory criteria in a consistent and transparent manner when taking decisions. It will be important that we engage with a number of experts, including prosecutors, when developing this guidance so that it is effective and workable. On the previous group, I referred to the fact that there are examples of this in other legislation, including the Police (Northern Ireland) Act 1998, which set up the Police Ombudsman for Northern Ireland.

Turning to the question of whether Clause 18 should stand part of the Bill, I would gently take issue here. The noble Lord, Lord Murphy of Torfaen, said that without this clause there would not be an argument. Unfortunately, one of the reasons we are here is that there was no equivalent Clause 18 in the report compiled by the noble and right reverend Lord, Lord Eames, and Denis Bradley in 2009. There was no such clause in the Stormont House agreement, but there was no consensus around any of those attempts to deal with the legacy of the past. Yes, I agree that this clause is extremely challenging, and I have said on the record that it is extremely challenging for me, but to say that without it, everything would be perfect is probably mistaken.

[Baroness O’Loan (CB)]

I thank the Minister for giving way. I would just like to ask him: does he think that Clause 18 is compliant with all our international legal obligations?

[Lord Caine (Con)]

I dealt with this to some extent last week, but I will go on to deal with it later in the course of my remarks; I hope the noble Baroness will bear with me. I was reiterating that I completely accept that this is the most challenging part of the legislation—I have been completely up front and honest; it is challenging for me, too. However, as I said a few moments ago, the difficult reality is that the prospect of successful prosecutions is vanishingly small, and a single-minded focus on them offers the prospect of achieving very little for families and for wider society.

Again, in response to some of the comments about pausing, pulling or repealing the Bill—which is, I believe, the official position of the Opposition—the difficulty is that, if we go back to square one, it will take at least another five years to come up with something. The reality is that no Government of either colour will go anywhere near this anytime soon, if at all. Maybe I am wrong and the Opposition have a fully fleshed-out and workable model—but the noble Baroness is shaking her head, which indicates that they do not. If they are starting from scratch, I can tell her that the process is extremely laborious and will take a long time.

[Baroness Smith of Basildon (Lab)]

There is a big difference between starting from scratch and having something fully worked out. The Minister has heard the views from around this House. There is work to be done and we would like to do it.

[Lord Caine (Con)]

The words “I’ll believe it when I see it” spring to mind, given the experience of successive Governments over the past 25 years who have sought to grapple with this issue.

[Lord Cormack (Con)]

I do not want to delay things unduly but, if my noble friend were to have a round table with those who have taken part tonight, who have a fairly common view of the inadequacy of this legislation but a desire to make progress, I do not think we would be talking about five years—five months, maybe.

[Lord Caine (Con)]

It might well be that a round table of noble Lords who have taken part in this debate could produce some proposals within five months, but we have all seen the difficulty of getting agreement from all the political parties in Northern Ireland for legacy proposals, and the huge difficulty of getting consensus and agreement from the victims’ groups in Northern Ireland. That is a very laborious process. After the Stormont House agreement, I went through four or five years of trying to get that agreement into legislation and before your Lordships’ House; that was despite it being a manifesto commitment in 2015 and 2017 and a Queen’s Speech commitment in 2015.

It is a very long and difficult process to get consensus. With the criticism there is of this legislation—I accept that it is criticism and that it does not have widespread consensus—the onus would be on those coming forward with other proposals, alternative suggestions, to build consensus. That would take a long time, and then to turn that consensus into legislation, to legislate and to establish new bodies is not something that could be done very quickly.

Turning back to the debate itself, it is the Government’s view that the immunity test is robust. It requires individuals to apply for immunity and, in so doing, acknowledge their role in Troubles-related incidents. Immunity will be granted only in relation to conduct that individuals disclose, and only where the panel is satisfied that the conduct exposes the individual to criminal liability.

Crucially, it requires the individual to provide an account that is true to the best of their knowledge and belief. In determining whether that is the case, there is a legal obligation on the commission to consider all the information that it holds that is relevant to that decision. If an individual provides an account that contains truthful information about numerous offences, but that same account includes untruthful information about just one offence, they will not be granted immunity at all. This will help prevent people from trying to minimise their role in incidents.

19:45

The noble Baroness, Lady O’Loan, suggested that all a perpetrator would have to do is sit out the five-year period. Within the same five-year period, families, the Secretary of State, the coroners and, I think, the Attorney- General for Northern Ireland can all refer cases that could—depending on the outcome of immunity—lead to a prosecution of that individual. So it is not just about trying to sit something out.

The noble Baroness also raised an important point about whether the account to the commission has to be both true and complete. The commission can, of course, ask whatever questions it thinks appropriate and the director of investigations, as we have said before, will have the powers of a police constable. The way that someone answers those questions will help determine the outcome of the immunity application. The commission must also consider any evidence it holds when determining the truthfulness of an account and this should help the commission ensure that it will be able to obtain as full and complete an account as possible.

The noble Viscount, Lord Brookeborough, raised the question of someone who clearly lies because they do not want to name accomplices. That person would not get immunity because the commission would determine that they had not been truthful in their account. If they did name accomplices, those people could be investigated by the commission and, if they did not engage, they could be prosecuted.

[Viscount Brookeborough (CB)]

Does he mean that the commission will ask them who their accomplices were and that they must not refuse to name them?

[Lord Caine (Con)]

It is fairly straightforward. The commission will ask whatever questions it believes to be appropriate. On the basis of the answers it is given, it will have to make its decisions regarding immunity. If a person is untruthful or unwilling to give information, that will of course be taken into account.

I am delighted to say that I am sympathetic to the proposed Amendment 130 from the Baroness, Lady O’Loan, to Clause 21(4), which is designed to ensure that the commission has to take steps to seek information beyond that which it holds already for the purposes of testing an account. I am very much open to exploring further with her how this issue might be appropriately addressed, when we move to the next stage of the legislation,

I wish to focus very quickly on some other amendments that I have tabled. Under Clause 23, the commissioner for investigations currently has the power to refer for possible prosecution conduct causing death or serious injury which is the subject of the review under consideration. My Amendment 137 clarifies that the commissioner is also able to refer conduct that constitutes “connected offences” within the meaning of the Bill. These are offences which do not themselves meet the Bill’s definition of “serious offence” but are nevertheless factually connected to such offences, for example because they form part of the same incident. This would allow, for example, the commission to refer to prosecutors evidence of sexual offences connected to a death or serious injury, if it came to light during the investigation.

Noble Lords will have noticed my intention to oppose the proposition that Clause 19 should stand part of the Bill. To reassure, this is simply because I propose to move provisions made by Clause 19 to the new schedule introduced by Amendment 85, titled “No immunity in certain circumstances”. This will bring together these provisions and those relating to the revocation of immunity mentioned before. Moving Clause 19—

[Baroness O’Loan (CB)]

I thank the Minister for giving way. Very briefly, his Amendment 137 refers to “other harmful conduct” that is not Troubles-related conduct serious enough to justify being dealt with under the Bill. But the Bill says that no prosecutions can be brought except in respect of Troubles-related conduct, does it not?

[Lord Caine (Con)]

I will need to read the clause through again and come back to the noble Baroness on that, if I may. As I was just saying, moving Clause 19 into the schedule is simply intended to make this legislation easier to follow.

The ability of commission officers to use their powers of arrest and detention as part of its investigations is important. That includes cases where a suspect, having not obtained immunity, needs to be detained for the purposes of questioning. That would happen as part of the case-building process in a criminal investigation before a file was referred to prosecutors. I have tabled Amendment 151 to remove any doubt as to the circumstances in which criminal enforcement action can be taken where immunity has not been granted, and where a referral to a prosecutor has not yet been made. In addition to allowing for the exercise of powers of arrest and detention, the amendment also ensures that the commission would be able to charge a person with an offence before a referral to a prosecutor had been made. The amendment also clarifies that those with existing powers of detention—for example, the police—may continue to use those powers where they are being exercised in connection with the commission’s functions.

Amendments 150 and 153 are related minor and technical amendments. We touched on the importance of the chief commissioner’s actions over the course of a review leading up to a report, as per Amendment 36. Under Clause 15, the chief commissioner is required to share the draft report with the person who requested the review, with victims, where applicable, and with any relevant family members as defined in the Bill. These persons will have the right to make representations, which must be considered before a report is finalised. Separately, the chief commissioner must share the draft report with any living individual subject to significant criticism in the draft report, who also has the right to make representations that must be considered before a report is finalised.

We have discussed today the referral of conduct to prosecutors. Amendments 114 and 135 specifically would expect the commissioner for investigations to refer conduct to prosecutors in cases where the threshold is met, unless there is a good reason not to do so. If the commission were under an obligation to refer all relevant conduct to prosecutors that it considered an offence, there is a risk this would place an unreasonable operational burden on it—a concern that was also relevant to the Stormont House agreement. I will try to get through this as quickly as I can.

I turn to post-Troubles sentencing, and specifically Amendment 149 in the name of my noble friend Lord Dodds of Duncairn. All offences, including terrorist-type offences, committed after 10 April 1998 will remain the investigative responsibility of the relevant police force. I recognise the intent behind this amendment but we have already tabled an amendment which could mean that people lose immunity if they are convicted of knowingly or wilfully misleading the commission. I am content to keep engaging with noble Lords and others on possible instances where we can strengthen the incentives to engage with the body and ensure adequate and proportionate penalties for those who do not.

The noble Baroness, Lady Suttie, and my noble friend Lord Weir of Ballyholme have probed the meaning of “general immunity from prosecution” in Clause 18. To be clear, as I have said immunity will be granted only in respect of conduct disclosed by an individual as part of their application. “General immunity from prosecution” does not mean immunity for all Troubles-related conduct in which individuals may have been involved but which has not been disclosed. Clause 18(9) makes it clear that, where immunity from prosecution is framed as a grant of general immunity, it must be framed by reference to the particular conduct that the person has disclosed. In other words, it will not confer immunity in relation to other conduct. The noble Baroness is looking at me slightly quizzically; I am happy to go through this again with her.

The noble Lord, Lord Browne of Ladyton, proposed an amendment to add an additional condition that must be met before immunity is granted: that the commission is satisfied that the grant of immunity would be compatible with convention rights, comply with the constitutional principle of the rule of law and satisfy the interests of justice. In response, the Government remain confident that the legislation is legally robust and complies with our obligations, so it is not necessary to make specific reference in the Bill to the compatibility of convention rights in respect of the commission discharging specific functions. It is the Government’s view that this is already covered.

The noble Lord referred in one of his questions to cases being initiated by the state or being initiated by families. While the commission will carry out reviews where requested to do so by a family or where a person has requested immunity, I assure the noble Lord that the Secretary of State and other public officials, such as the Attorney-General in Northern Ireland, will be able to request a review where this is necessary to ensure an effective and efficient investigation for the purposes of discharging the UK’s international obligations. Those powers are there.

As I have explained before, the commission, as a public authority, will be under a duty under the Human Rights Act to act compatibly with convention rights when exercising its functions and making any of its decisions. Working together with public prosecutors and making use of its full police powers, it will also be able to institute criminal proceedings against suspected offenders in cases where conditional immunity has not been granted.

In response to the noble Baroness, who I know disagrees with me on this, I set out at length last week that the Government’s view is that the absence of a prosecution or punishment outcome in individual cases where immunity is granted can be justified on the basis that the conferral of such immunity in a limited and conditional way is necessary to ensure the recovery of information about Troubles-related deaths and serious incidents that is extremely unlikely to come to light in any other circumstances. It is through the recovery of information for the benefit of families and wider communities, in part by means of the conditional immunity process, that the new body will be enabled to contribute to moving society forward in Northern Ireland. It is therefore consistent with the Government’s stated objective to provide more information to victims and survivors in a timely and efficient manner, which would not happen if we engaged in a single-minded focus simply on criminal justice outcomes.

I have gone way over time. I have tried to answer as many points as possible, but if there are any that I have missed then I am happy to sit down with noble Lords following Committee. On that basis, I urge noble Lords not to press their amendments, as I will not press mine.

[Lord Bew (CB)]

I beg leave to withdraw the amendment.

Amendment 36 withdrawn.

Clause 4 agreed.

House resumed. Committee to begin again not before 8.35 pm.