Northern Ireland Troubles (Legacy and Reconciliation) Bill

Committee stage
Thursday 11th May 2023 Lords Chamber

Committee (4th Day)

Relevant documents: 5th Report from the Constitution Committee, 6th Report from the Joint Committee on Human Rights

12:03

Clause 34: No criminal investigations except through ICRIR reviews

Amendment 146

Moved by

[Lord Browne of Ladyton]

146: Clause 34, page 28, line 10, leave out “continued or”
Member’s explanatory statement
This probing amendment deletes “continued or” from Clause 34(1).

[Lord Browne of Ladyton (Lab)]

My Lords, I will also speak to Amendments 155 and 156, and to consequential amendments 152 and 157 to 161. These are supported variously by the noble Baroness, Lady O’Loan, and my noble friends Lord Murphy of Torfaen and Lady Ritchie of Downpatrick. My preference would be to see the removal of Clauses 39 and 40 from the Bill, as proposed by the noble Baroness, Lady O’Loan, and my noble friends Lord Murphy, Lady Ritchie and Lord Hain. However, I will restrict myself to the amendments in my name.

I take this opportunity to thank the Minister for his continued engagement on the Bill with me and others. I am sure we will have an opportunity in future to discuss some of the significant lengths he has gone to since the Committee last met to deal with some of the issues we have raised. In my view, some of these amendments make parts of the Bill—which I do not fundamentally support, but that is another matter—slightly more palatable. The Minister is very open and has done prodigious work in this regard, as have his officials, who are doing a very good job. They are admired by all noble Lords who have been engaged in this process.

Truth and justice are not merely two sides of the same coin; they exist in active relation to one another. They both are—and must be—indispensable elements of an alloy that can carry and sustain a lasting peace in Northern Ireland. Amendment 146 and its consequential amendments delete the time-limiting element of Clause 34, thus preventing criminal investigations being discontinued precipitately. I do not wish to stray into broader territory that is more customarily the stuff of Second Reading debates, but I wish to adduce an example that shows why this is important. In August 1974, John Pat Cunningham was shot and killed by a British serviceman. The soldier in question was finally put on trial in Belfast in 2021, 47 years later.

There are other families from all communities in Northern Ireland in that position—seeking justice for the deaths of loved ones. In earlier debates on this subject we heard of the case of Malvern Moffitt, murdered by IRA terrorists around 40 years ago. That is not an uncomfortable footnote in history but a tragedy whose concentric circles continue to lap at his family. His widow has expressed her profound upset at the prospect of the Bill in its current form receiving Royal Assent. His children gave a powerful and moving television interview in response to the Committee stage in the other place last year—something that should give us pause today.

Noble Lords will be familiar with the rule 9 submission by the Council of Europe Commissioner for Human Rights, dated 16 August 2022, which specifically focuses on this Bill. The submission is informed by a year’s close monitoring of the Government’s legacy proposals, engagement with the different stakeholders and, during a week-long visit, engagement with the Minister and his officials in the NIO.

I direct your Lordships’ attention to paragraph 15 of that well-written and comprehensive submission, which reads:

“In her September 2021 letter, the Commissioner already highlighted the importance of the interaction of different mechanisms in ensuring justice, truth and reconciliation. With regard to justice, it was noted throughout the visit that other mechanisms than prosecutions, such as inquests, Police Ombudsman investigations and civil proceedings have often been instrumental in uncovering information that could subsequently be used to ensure accountability. Furthermore, the various mechanisms have been able, to some extent, to cater for the different needs of victims, since these will not be the same for all. At the end of her visit, the Commissioner noted in this respect that ‘unilaterally shutting down options that many victims and families value greatly as part of their way of dealing with the past ignores their needs and wishes, and is causing many of them deep distress’”.


This is a question not merely of fairness but of compliance under our Article 2 ECHR obligations. In raising the question of these obligations, I realise that I am failing to conform with recent innovations whereby breaching these obligations is advertised as a bold innovation rather than a prohibition. In the case of Armani Da Silva v the UK, the court ruled that:

“Having regard to its fundamental character, Article 2 of the Convention contains a procedural obligation … to carry out an effective investigation into alleged breaches of its substantive limb”.


The question of effectiveness is crucial. I will quote further from that decision, as it speaks directly to what constitutes an effective investigation. If an investigation is to meet the preconditions of effectiveness, it must have the possibility of leading to punishment. The relevant passage runs:

“In order to be ‘effective’ as this expression is to be understood in the context of Article 2 of the Convention, an investigation must firstly be adequate … This means that it must be capable of leading to the establishment of the facts, a determination of whether the force used was or was not justified in the circumstances and of identifying and—if appropriate—punishing those responsible … This is not an obligation of result, but of means”.


This seems both compelling and clear. It would be useful to know with what elements of that judgment the Government wish to disagree and upon what authority such a disagreement might rest. In this context, it may be worth recalling the words of the Minister for Veterans Affairs, who, in giving evidence to the Joint Committee on Human Rights in 2020, conceded that there had been

“a serious generational problem with the standards of investigations”

carried out into the conduct of British servicemen and that

“a lot of the investigations have not withstood rigour as regards ECHR compliance”.

He concluded those remarks by stating boldly that that

“has been a major problem”.

I regret to say that as it stands, this Bill will deepen and not mitigate that problem.

This same question of Article 2 compliance also underlies Amendments 155 and 156, together with their consequential amendments. Probing Amendment 155 would delete Clause 39(1) from the Bill. That subsection states:

“A relevant Troubles-related civil action that was brought on or after the day of the First Reading in the House of Commons of the Bill for this Act may not be continued on and after the day on which this section comes into force”.


Again, this seems to breach not only the demands of natural justice but our Article 2 obligations. Amendment 156 in my name and that of the noble Baroness, Lady O’Loan, and my noble friend Lord Murphy seeks to defang this particular risk by deleting the words “on or after” from Clause 39(2) and substituting “three years after”. The amendment would ensure that a Troubles-related civil action can be brought up to three years after the coming into force of Clause 38.

Amendments 155A, 161A, 161B and 178A are easy to explain. Clause 52(8)(c) refers to the

“actual date of the First Reading”.

The actual date was 17 May 2022, so the formula proposed in Clause 52(8)(c) is unnecessary if the Bill is otherwise amended to refer to 17 May 2022, which is exactly what this group of amendments does.

Lastly, I turn to the role of the Secretary of State in curtailing criminal investigations. Under these provisions, as it stands, it threatens incompatibility with Section 48(5) of the Scotland Act 1998. Two committees of the Scottish Parliament examined the Bill, and the consequent legislative consent memorandum points out that the Bill makes “novel and unwelcome changes” to the functions of the Lord Advocate as the head of the systems of criminal prosecution in Scotland. In particular, the power of the ICRIR to refuse to refer appropriate cases to the Lord Advocate compromises their independence, a supposedly inviolable principle under-pinning the whole architecture of the Scottish legal system. I would be grateful if the Minister made it clear why, and in what way, he believes that the role of the Lord Advocate is not compromised as I have outlined. Passing legislation aimed at bringing harmony to one constituent part of the United Kingdom by creating constitutional problems in another seems at the very least a somewhat quixotic way to proceed.

I would be grateful if the Minster could answer these questions of compatibility. If he is not disposed to accept these amendments, could he further explain how the Government will ensure that these provisions do not breach our obligations, both in the context of my earlier points on Article 2 of the ECHR and this Bill’s compliance with the Scotland Act 1998? I beg to move.

[Lord Faulks (Non-Afl)]

My Lords, I shall speak to Amendment 154A. I apologise for my late arrival to the debate on this important Bill, and for the lateness of this amendment, in my name and that of the noble Lord, Lord Godson.

At first sight, noble Lords may be a little bewildered as to where the amendment is directed. It arises out of a decision of the Supreme Court in a case concerning Gerry Adams. The decision was given on 13 May 2020.The only judgment of the court was given by Lord Kerr, who described the regime in Northern Ireland, commonly known as internment. As many noble lords will be aware, the way in which interment operated was initially by an interim custody order, or ICO, which was made when the Secretary of State considered that an individual was involved in terrorism. That person was taken into custody and had to be detained there, to be released within 28 days unless the chief constable referred the matter to a commissioner. Detention continued while the commissioner considered the matter. If satisfied that the person was involved in terrorism, the commissioner would make a detention order. If not so satisfied, the release of the person detained would be ordered.

12:15

An ICO was made in respect of Gerry Adams on 21 July 1973. It was signed by a Minister of State in the Northern Ireland Office; it was then referred to a commissioner on 10 August, who decided that Adams should continue to be detained. He attempted to escape on more than one occasion and was sentenced to terms of imprisonment for each offence.

What was at the centre of the appeal before the Supreme Court was the validity of the ICO made on 21 July 1973. Although the order could be signed by a Secretary of State, a Minister of State or an Under-Secretary of State, the relevant legislation provided that the statutory power to make the ICO arose

“where it appears to the Secretary of State”

that a person was suspected of being involved in terrorism. In the view of the court, there being no evidence that the Secretary of State personally considered whether Adams was involved in terrorism, the question was whether the ICO was validly made.

The Supreme Court decided, in reversing decisions of the lower court, that it had not been validly made, notwithstanding the well-established Carltona principle which had been persuasive in the lower courts. This principle, which dates back at least to 1943, means that a decision entrusted by Parliament to the Secretary of State may generally be taken by a suitably qualified official, while the Secretary of State remains accountable to Parliament. I shall not go into the reasoning of the Supreme Court, but it is enough to say that it rejected the argument that the Carltona principle applied to the ICO and questioned whether a presumption existed as to its application in circumstances like this. The court appeared to be influenced by the momentousness of the decision to intern, and concluded that in all the circumstances it was Parliament’s intention that the power under Article 4(1) of the 1972 order should be exercised by the Secretary of State personally.

The decision was greeted with considerable surprise in a number of quarters—not least, I suspect, in the Civil Service, and by Ministers who had awareness of these provisions. It had significant consequences for many other decisions made by ICOs and placed in doubt what had been well understood and embedded in government practice. Among the critics of the decision was the think tank Policy Exchange, which published a paper on the case three years ago. Its authors were Professor Richard Ekins KC and Sir Stephen Laws. A foreword was written by Sir Geoffrey Cox KC and an introduction provided by the noble Lord, Lord Butler, who is in his place. All agreed that the decision was wrong and that the Detention of Terrorists (Northern Ireland) Order l972 authorised a Secretary of State, a Minister of State or Under-Secretary of State to authorise temporary detention. Personal consideration by the Secretary of State for Northern Ireland was not required.

A significant concern was expressed that the consequence of the decision was that Adams and perhaps many others would seek compensation for what was essentially a technical matter on the basis that they had been deprived of their liberty unlawfully. As the noble Lord, Lord Butler, put it, the judgment

“could spur litigation that will hamstring effective government and create unnecessary doubt about who in government may lawfully act”.

The noble Baroness, Lady Hoey, who is in her place, asked the Minister in a Written PQ in November 2021 whether there had been any claims resulting from the decision. The Answer, given commendably promptly, was that Adams had not made a claim but there were a number of other claims at an early stage based on the allegation that

“they were unlawfully detained on a similar basis to Mr Adams”.

The Minister may well be able to update the Committee. Newspaper sources suggest that there may be as many as 400 claims and that the sums involved may be substantial.

This amendment seeks to overturn the decision of the Supreme Court. It does not revive any criminal conviction quashed, as with Adams’s attempted escape from prison, but it does prevent any damages being recovered where the only basis for claims is the Adams technicality, if I may call it that. I understand that the Minister and his officials have had only limited time available to them to respond to this amendment. However, I hope it will be welcomed by the Government. It represents an opportunity to put right an erroneous decision and prevent unmeritorious claims being pursued. Just as importantly, it would restore the well-understood and important Carltona principle to its proper place.

[Lord Butler of Brockwell (CB)]

My Lords, I support the amendment in the names of the noble Lords, Lord Godson and Lord Faulks. The principal point I want to make is that this amendment is not about the justice of internment as a general principle or the justice of the internment of a particular individual. It is purely about whether an individual should receive compensation because there was found to be a glitch in the procedure in ordering the internment because the Secretary of State did not personally consider it.

As has been said, such orders were signed by Ministers acting under the authority of the Secretary of State in accordance with the very well-established Carltona principle. That was certainly something that has always been understood by the Civil Service, and the reversal of it would have quite serious consequences for government. But whether or not there was a procedural glitch, the issue in my mind is whether compensation should be paid, not for an injustice but for such an error in procedure. I submit that the Government are entitled to protect themselves from having to pay compensation from the public purse for what is not an injustice but a procedural glitch. On those grounds, I support Amendment 154A.

[Lord Macdonald of River Glaven (CB)]

My Lords, I want to briefly offer some words of support for that amendment. In their paper, Professor Ekins and Sir Stephen Laws, the former First Parliamentary Counsel, make a compelling argument that the United Kingdom Supreme Court judgment was wrong. I will not address that, because it is not important for the purposes of the amendment. What is important is that they also make a compelling argument for the deleterious practical consequences that are likely to flow from Adams because of the importance of the Carltona principle to the good and smooth running of government. That is beyond argument, and the risk here is that that principle has been in some way undermined.

Let me give an analogy. As your Lordships will be aware, a number of the most serious and sensitive criminal cases require the consent of the DPP before they may proceed. But the system has always been that the Director of Public Prosecutions designates a small number of his or her most senior prosecutors to exercise this consent function on the DPP’s behalf. Of course, if the DPP wishes to call in a particular case to consider himself or herself, that will and does happen. But if it were ever to be the case that every file requiring DPP consent had to be placed before the DPP in person, the system would swiftly grind to a halt; or, the DPP would exercise that consent allegedly personally but really and practically on the basis of advice that he or she had received elsewhere. So the present system is the more honest. The individual giving the consent, exercising the consent function, is the individual who has actually read and considered the papers. To the extent that this amendment will protect and fortify the Carltona principle, it has my full support.

[Lord Howell of Guildford (Con)]

My Lords, I strenuously support this amendment spoken to by my noble friend Lord Faulks, supported by my noble friend Lord Godson, and for two specific and extremely important reasons.

The first is simply this. If your Lordships go back to the 1972 detention of terrorists order passed through the House of Commons and this House, they will find specific provision in the text of that order for 28-day and night ICOs to be signed by Ministers of State, junior Ministers or other officials. We were doing that—I had the privilege of being involved in taking it through the House of Commons at the time—not just to reinforce the eminently sensible Carltona principle but for the most practical, hard-headed considerations of the circumstances in which these matters would have to be handled.

What we were dealing with seems to have fallen out of the memory of many people. Although we said that it was not a war, the Provisional IRA said it was, and indeed there was talk from Dublin of the same thing. We were having to deal with war conditions, whether or not we accepted that a war was being waged against the United Kingdom. The practicality of that was that the Secretary of State—Mr William Whitelaw at the time, under whom I served—was having to move very quickly between Belfast and the Cabinet, handling the situation in the Houses of Parliament and a variety of other commitments as well. It was perfectly obvious that, for the smooth working of the procedures and the empowerment of the detention of terrorists order and many other pieces of legislation, he would need support of all kinds in handling these matters—in particular, in accordance with the detention of terrorists order and Carltona.

Much of the discussion since has been detached from the context and intense pressures in which we were working after the fall of Stormont and the arrival of the Whitelaw mission in Northern Ireland. Incidentally, this had the support of the whole House. The House of Commons supported it unanimously; there were maybe one or two queries but no amendments at all.

The second reason for my support for this amendment is that, while I do not wish to criticise the courts in anyway—I would not dare do so—I am absolutely baffled that legal and court procedures in a complex matter of this kind, going back in history, did not involve calling any witness of any kind to corroborate what actually happened and what went on in Stormont and in the procedures we are discussing. Ministers should have been called in those proceedings. It happens that I am the only Minister left from the Whitelaw team who is still alive, and I should have expected to be asked exactly how these things went on. What happened when one was asked on a Sunday night to sign an ICO? Who was consulted? To what extent did one talk to the Secretary of State beforehand, or to other Ministers of State or important witnesses from the police and other authorities? This was extensive but none of it was ever discussed.

It is utterly bizarre that somehow the court procedures should ignore what was specifically provided for in the original order. This seems to be almost incomprehensible. I therefore ask strongly that the Government reconsider what my noble friend Lord Faulks has put so eloquently and the point that the noble Lord, Lord Butler, has rightly argued about the procedure. Was there really a procedural glitch? No one knows; it was never discussed, and yet here we are with the prospect of millions of pounds being claimed on the basis of a judgment that appears to be based on sand—on nothing.

This is a very serious matter; it is a dangerous and costly matter. It may encourage many more difficult feelings at a time when—heaven knows—the whole balance and fragility of Northern Ireland is once again in question. It would be a great mistake not to accept the validity behind this clause, even if it needs amending in certain ways, and to pass it by or cast it aside on the grounds of matters settled. This is not settled; it is unsettled and most unsatisfactory. It needs very serious determination and consideration now.

[Baroness O'Loan (CB)]

My Lords, the discussion on Amendment 154A shows the importance of getting legislation right in the first instance. I speak in support of Amendment 146 to Clause 34, to which I have put my name. This amendment and Amendment 152 will remove the provision that all existing investigations must transfer from the existing investigation body to the ICRIR. Chief officers of police have to notify the Secretary of State of all criminal investigations of Troubles-related matters. The only exception to this under the Bill arises when a prosecution is under way and the investigation is pursuant to the prosecution.

12:30

In February, the Government announced the establishment of a public inquiry under the Inquiries Act into the Omagh bombing. That announcement followed a High Court decision that a plausible argument could be made that the state had failed to comply with its obligations under Article 2 of the European Convention on Human Rights to take reasonable steps to prevent the bombing. There are many other cases in which there are plausible grounds to believe that the state, through its agents, failed to prevent planned murders of which they had knowledge. There is a pattern that shows that there were many circumstances in which the state, through its agents, prioritised keeping those agents in place over their duty to prevent murder and did not take disruptive action to save life. That happened in cases involving both loyalist and republican agents. I have investigated some of those cases myself; I do not speak of rumour and innuendo but of fact.

It is good that the state has acknowledged its obligations in the Omagh murders, though we have yet to see any progress on the establishment of the inquiry. This Bill, however, will create a review and investigation process that would not have the powers given to the Omagh bombing inquiry or any normal police investigation powers, which are essential for the discharge of the state’s obligations under Article 2. Those necessary unqualified powers to compel the production of documentation—especially documentation held by the security and intelligence services and police intelligence units—will not be available. The proposed powers to identify and gather information will be subject to veto by the Secretary of State under the extensive provisions of Clauses 29 and 30 of the Bill. Access to information could be severely curtailed through the exercise of powers conferred on the Secretary of State in this Bill.

The acknowledgement by the Government of their obligations to those who died as a consequence of the bombing of August 1998 is right. Their actions in promoting this Bill, with its non-Article 2-compliant processes, are a denial of those same rights to others in the UK whose loved ones died before the Good Friday agreement. There is nothing in that agreement that provides that legal rights should be curtailed before 10 April 1988. Indeed, the reverse is true. That is why, of course, this Bill has been so roundly rejected, not just in Northern Ireland, not just here in England, but internationally—including, most recently, by the UN High Commissioner for Human Rights.

Some weeks ago, the Council of Europe’s Committee of Ministers met to make decisions on the supervision of the European Court of Human Right’s judgments in a series of Northern Ireland cases relating to the actions of the security forces in the 1980s and 1990s in Northern Ireland. The Committee of Ministers had, in September and December 2022, expressed serious concerns about this Bill and has now said that the amendments proposed by the Government do not sufficiently allay those concerns. It has again emphasised that it is crucial that the legislation that is progressed and ultimately adopted is in full compliance with the convention. It has called on the Government to ensure that the Secretary of State’s role in the establishment and oversight of the independent commission is more clearly circumscribed in law in a manner that ensures that the ICRIR is independent and is seen to be independent. It is my understanding that the chief commissioner has now been appointed, despite the fact that this Bill is still in Committee.

The Committee of Ministers also called on the Government to ensure that disclosure provisions unambiguously require full disclosure to be given to the ICRIR and to ensure that the Bill adequately provides for the participation of victims and families, transparency and public scrutiny. It strongly reiterated its calls upon the authorities to reconsider the conditional immunity scheme in the light of concerns expressed around its compatibility with the convention. It also reiterated its serious concerns about the proposal to terminate pending inquests that have not reached substantive hearings and its call on the authorities to reconsider this proposal. It stressed the importance of the success of any new investigative body of gaining the confidence of victims, families of victims and potential witnesses. It is going to re-examine the McKerr group of cases at its next meeting and, in the absence of tangible process on this Bill, will take further action.

There is no evidence that the Government intend to do anything other than force the Bill through, despite its incompatibility with our international legal obligations. I am aware of an article that the Evening Standard ran last night—there have been various rumours about the Government introducing further amendments, which they have chosen not to introduce in Committee. I am not sighted on those amendments, but the amendments produced thus far do not cause me to get excited about them.

Clause 34 allows no new criminal investigations after 17 May 2022. Can the Minister assure the House that cases that have come to the top of the investigation queue are currently being investigated by the PSNI, and that the police have not paused such investigations since May 2022? Can he provide to the House details of how many investigations of Troubles-related offences have been initiated by the PSNI since this Bill was introduced, so as to reassure the House that the PSNI is continuing to fulfil its legal obligations?

Apart from renewed or new investigations, the key factor in determining whether a case has to be transferred to the ICRIR is whether a prosecution has been directed by the PPS. If a prosecution has been directed, the case can remain with those who investigated it. If not, it must go to the ICRIR, which must then come to terms with what are often very complex cases, consider to what extent it wishes to reinvestigate and then, having done that, produce the prosecution files to the Public Prosecution Service. This provision will apply to many cases currently under investigation and ready for prosecutorial decision, including murder cases currently under investigation by the PSNI from the period from 1996 to 1998 and the Operation Kenova investigations, which have been much cited in your Lordships’ House—I refer again to my membership of the Kenova steering group.

The focus of Kenova is to ascertain whether there is evidence of the commission of criminal offences by an alleged agent known as “Stakeknife”, who was at the head of the IRA’s internal security unit. It was responsible for identifying suspected informers, and many of them were kidnapped, tortured and executed. Kenova’s investigations include, but are not limited to, murders, attempted murders and unlawful imprisonments attributed to the IRA, and whether there is evidence of criminal offences having been committed by members of the Army, the security services or other government personnel. Some of the cases are the murders of alleged IRA informers, such as Joe Mulhern in 1993 and Joe Fenton in 1989. The Kenova team is also investigating the murder of three officers who died on the Kinnego embankment, near Lurgan, in October 1982. That case was formerly investigated by Greater Manchester Police Deputy Chief Constable John Stalker and then by Sir Colin Sampson.

Currently, 36 cases investigated by Mr Boutcher and his team are currently with the DPP for Northern Ireland for decision—I have referred to them before. If there is no decision before the Bill is passed, those cases will all pass to the ICRIR. No decisions have been made. I am fully in support of Amendment 154, in the names of the noble Lord, Lord Dodds, and others. It would at least ensure that cases in which a file has been submitted to the PPS would not fall to be transferred to the ICRIR but would continue to be dealt with by the PPS.

It is in the interests of all the victims and all those affected in these cases that they should continue to be investigated by the existing investigation team. The delay in progressing the Kenova files is not attributable to the investigation team: we know that the PPS has said it does not have the resources and that decisions will be made before files are impacted by the Bill. However, similar assurances were made early last year. If decisions are not made in these cases, they will all have to transfer, with huge additional resource implications.

Similar considerations apply to Operation Denton, which is reviewing the activities of the Glenanne gang, which comprised loyalist paramilitaries, police officers and members of the military and which is said to have been responsible for at least 127 murders. Amendment 147, in the name of the noble Lord, Lord Hain, the former Secretary of State for Northern Ireland—who cannot be in his place today and asks that his apologies be given—in the names of the noble Lord, Lord Hogan-Howe, who is in his place today, and the noble Lord, Lord Blair, and in my name, which we have already debated, provides sensible and effective protection against this: the Denton review. The Bill deprives many victims and survivors of the Troubles of their fundamental legal rights to an official investigation. As stated in the Supreme Court just 16 months ago, the state’s domestic and international legal obligations are being set aside in the Bill.

Moving from criminal to civil actions relating to Troubles-related cases, with the noble Lords, Lord Murphy and Lord Hain, and the noble Baroness, Lady Ritchie, I have indicated my intention to oppose the inclusion of Clause 39. There should be no restriction on the bringing of civil actions in Troubles-related cases, yet Clause 39 removes any right of action in relation to such cases. There will be an ongoing right of action for non-Troubles-related cases, including those which occurred before, during and after the period of the Troubles, and those which do not involve offences causing

“serious physical or mental harm”

as defined in Clause 1(6). If concrete blocks were dropped on a person’s leg, causing him to lose the limb, he would not be able to sue because of Clause 39. However, if those same concrete blocks resulted in injuries that did not require amputation but left him in constant, serious pain, with serious disability and any associated trauma, he would be able to sue. If a person died after the Good Friday agreement in April 1988, he would be able to sue because his is not a Troubles-related death, according to the definition. This is manifestly and grossly unfair.

No alternative provision is made to enable people to bring civil actions and recover compensation in cases in which evidence emerges as to who was liable for an atrocity such as the Enniskillen bomb, for example. The provision of Clause 39(11) in relation to the application of the 2008 mediation directive, which applies to cross-border mediation, does not address or resolve the lacuna left by the deliberate denial by government of the process of civil actions to those who have suffered what is often ongoing serious harm as a consequence of the Troubles. Very often, these people might have been able otherwise to live a fulfilling life and to care for their families, and that is no longer the case. In order to mitigate some small part of the effects of Clause 39, I have also put my name to Amendments 155 to 161 in the name of the noble Lord, Lord Browne.

The noble Lords, Lord Hain and Lord Murphy, and the noble Baroness, Lady Ritchie, have also indicated our opposition to Clause 40 standing part of the Bill. Clause 40 as drafted would mean that, after 1 May 2023, or the date on which the Bill is enacted, whichever is earlier, no coroner can start an inquest into a death that occurred between 1966 and 1988. As I said previously, the Council of Europe’s Committee of Ministers said recently that normal inquest procedures should be allowed to continue for Troubles-related deaths if the UK is to be compliant with its international legal obligations. Under the Bill, any inquest that has started must stop

“unless the inquest is at an advanced stage”,

whatever that means. Does it mean that an inquest that has started and had a day’s, or a few days’, hearing and then been listed for next year will be terminated by the Bill?

The duty to inquire into the circumstances of sudden death by force has existed for centuries. It will continue to exist, if the Bill is passed, for the families of those who die in the United Kingdom, with the exception only of those deaths that fall within the definition of a Troubles-related death. Inquests into deaths by terrorism occurring in the United Kingdom during the years of the Troubles but caused by groups other than, for example, the IRA, the UDA and the UVF, will also continue to occur. It is discriminatory and unjustifiable to deprive the relatives of those who died Troubles-related deaths of inquests while enabling all others in the UK who have suffered the death of a loved one in similar circumstances which require an inquest to have one.

12:45

Victims of these killings are still awaiting inquests because of underresourcing. Recent inquests have resulted in the disclosure of information that had previously been withheld by the state and, on occasion, the coroner has had to take lengthy legal action to get that information. Inquests should continue for this relatively small group of people, as for all others who have suffered the loss of a loved one in similar circumstances and who can secure an inquest. The clause should not remain part of the Bill.

The government amendments in the group are intended, it appears, to sweep up and dispose of any residual powers that the Police Ombudsman—I remind the Committee that I was the first Police Ombudsman—and the English and Scottish police complaints handling officers currently have to investigate any conduct that occurred during the Troubles. This will mean that where there is evidence that, for example, a police officer fabricated evidence, perjured himself in a court hearing, misconducted himself or herself in public office or committed any other crime in the context of the planning or aftermath of a murder which does not fall into the category of offences provided for in the Bill, will not face investigation. Again, this is a total denial of the obligations the state has to those who have suffered in this way.

In total, this group of amendments, with the exception of the government amendments, are attempts to make better a Bill that is fundamentally flawed, in breach of our international legal obligations and inconsistent with the rule of law. It is my hope that, when we are finally informed about the content of the Government’s further proposed amendments, they will address these very serious issues.

[Lord Dodds of Duncairn (DUP)]

My Lords, as we return to the Bill in Committee, it is right, given the inevitable focus, often, on the actions of the security forces, to pay tribute to the Army, the UDR, the RUC—part-time and full-time members—the security services and all who worked to safeguard the people of Northern Ireland through some of the worst days in the decades of Troubles and to remember the innocent victims who were cut down by terrorism, whether it came from loyalists or republicans. It is worth putting on record, every time we debate these matters, that the overwhelming number of deaths and murders were carried out by terrorists.

In the context of the fight against terrorism, I think it is appropriate to add a personal tribute to Lord Robert Carswell, who recently passed away. He was a Member of your Lordships’ House and from 1984 to 2004 was a senior judge and Lord Chief Justice in Northern Ireland who valiantly upheld the principles of legal justice in Northern Ireland through some of the darkest days. People like Lord Carswell and others are often bypassed. Many who engaged in violence over the years have been elevated into personalities and lauded by world leaders, but it is people like Lord Carswell who deserve the thanks and gratitude of so many in Northern Ireland for the work they did during the Troubles.

Like the noble Baroness, Lady O’Loan, I heard the Secretary of State, I think it was yesterday in Northern Ireland Questions in the other place, refer to amendments to the Bill that will be coming forth as “game-changers”. He was very adamant that these would be very significant amendments indeed, and it seems a shame that we should be kept waiting, having gone through the entire Committee, now into our fourth day, and be told that there will be game-changing amendments.

I hope the Minister can tell the Committee what these game-changing amendments may prefigure and are likely to do, because it seems wrong that we should be left to debate them on Report. I certainly look forward to examining them in detail, although I share the reservations of others about their likely content.

This is the fourth day of Committee. We have seen other Bills dropped; the protocol Bill has been dropped, there has been massive change to the retained EU law Bill and there is speculation that other major planks of government legislation will be dropped. Still, this Bill, which is unwanted and has no support in Northern Ireland—neither among the political parties nor in the Assembly—persists. It grinds on, unwanted and unloved. The only people who seem to be driving it forward are the Government. For the life of me, I fail to understand why they cling to this obnoxious piece of legislation.

While that is our view of the Bill overall, it is our duty to examine these matters in detail and try to mitigate it if it is going to proceed on to the statute book. I fully support Amendment 154A tabled by the noble Lords, Lord Faulks and Lord Godson, which is very timely; the decision taken by the Supreme Court mystified and astounded many commentators and those who follow these things closely. The Carltona principle has been embedded in British political life for many decades, and the prospect that tens of millions of pounds could be spent in compensation for some technicality, at a time when we are struggling to fund vital services in Northern Ireland, will cause outrage on all sides there. Nobody will support this. The Government should take on board this very considered amendment and I hope they will adopt it quickly.

Amendment 154, which has already been referred to, is in my name and those of my noble friends. Its purpose is to treat a public prosecution as having begun when the file is passed to the Public Prosecution Service for Northern Ireland. It is entirely wrong for the Government to cast aside the significant work that has gone into a number of high-profile investigations, such as Operation Kenova, which deals with the actions of the leading informer and head of the IRA’s so-called internal security unit, Freddie Scappaticci. This investigation must be able to conclude irrespective of whether a decision to prosecute has been made by the time the Bill’s provisions come into force. However, it is not just about that investigation or others. The principle is worth defending. The prohibition of criminal enforcement action under this Bill’s provisions is immoral and contrary to the principles of natural justice. This amendment attempts to mitigate that damage.

[Baroness Suttie (LD)]

My Lords, I apologise to the Minister and the Committee that, due to an earlier engagement, I will unfortunately have to leave before the end of this group. If noble Lords will indulge me, I will speak briefly now. I agree with an awful lot of what the noble Lord, Lord Dodds, has said about the general approach to the Bill. This is the fourth day and we continue to have tremendous dissatisfaction with it, notwithstanding the generally positive approach of the Minister, who has been exemplary in his ability to listen to us and respond at every stage.

I thank the noble Lords, Lord Faulks and Lord Butler, and others for their explanation of newly tabled Amendment 154A, but it is potentially quite a detailed change. We should discuss it in much more detail, perhaps on Report. It could have significant consequences, so I hope we can look at it in more detail before then. I look forward to at least reading the Minister’s response in Hansard.

These Benches strongly agree with the powerful and detailed speeches from the noble Baroness, Lady O’Loan, and the noble Lord, Lord Browne. These primarily probing amendments correctly ask the Government to explain their position on the continuation of investigations. The amendments from the noble Baroness seeking to remove Clauses 39 and 40 raise some extremely important points. I look forward to reading the Minister’s response to many of the issues she raised, because they are still unresolved and we have not yet had satisfactory answers to them. As a general point, can he reassure the many victims and their families that their hopes of justice will not be undermined by those two clauses as drafted? Can he clarify the situation for those who had been given additional hope through an investigation, inquiry or inquest having started, and give us more details on the process and timescale proposed in this Bill?

The Minister knows that we are all very grateful for his active engagement on this Bill. He has shown repeatedly that he is prepared to listen and respond. However, I suggest that discussions with noble Lords such as the noble Baroness, Lady O’Loan, who has so much experience to share, about some of the realities and consequences of Clauses 39 and 40 would be very welcome—indeed, necessary—between now and Report.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I support the amendments in the names of my noble friend Lord Browne and the noble Baroness, Lady O’Loan, to which I was a signatory along with my noble friend Lord Murphy on the Front Bench, because we are firmly opposed to the removal of access to inquests for victims. The standard bearer in all this should be adherence to the rights, needs and requirements of the many victims and survivors, as the noble Lord, Lord Dodds, is clearly also saying in his amendment. Victims and survivors should have primacy.

In all the debates on this Bill, noble Lords from Northern Ireland and across the House, political parties in Northern Ireland, the Commission for Victims and Survivors and all those organisations that represent the needs of victims and survivors have clearly enunciated their opposition to it as drafted because it does not provide for the needs of victims and survivors.

Like the noble Lord, Lord Dodds, and the noble Baroness, Lady O’Loan, I heard the Secretary of State refer yesterday to “game-changing amendments”, to which reference has been made today on the BBC Northern Ireland website. Can the Minister tell us what those game-changing amendments are that will be brought forward on Report? The only amendments should be those that reject this Bill; like all the other Bills that have been withdrawn or substantially changed, it should be withdrawn.

13:00

I support the amendments in my name and those whose principal signatories are the noble Baroness, Lady O’Loan and my noble friends Lord Browne and Lord Murphy, because the Bill foresees the closure, prohibition or restriction of existing avenues for seeking truth and justice. Criminal prosecutions would, in theory, remain possible but they will be significantly dependent on the ICRIR, which would act as a gatekeeper, and, given problems around independence, there could well be perceptions that the ICRIR was acting politically, if recommendations for prosecution focused on one part of the community only.

Inquests, unless at an advanced stage, ongoing police and police ombudsman’s investigations and civil claims would all be discontinued. To me, that is totally immoral, anti-democratic and anti-justice. The proposed government amendments to Clause 41 would restrict the Police Ombudsman for Northern Ireland from formally investigating Troubles-related incidents. They would further restrict routes to justice and consequently exacerbate, rather than allay, concerns.

The noble Baroness, Lady O’Loan, has quite rightly said that she was the first police ombudsman in Northern Ireland, and I know full well what she did in that role on behalf of my former constituents in South Down, in terms of the Loughinisland inquiry, where six men were brutally murdered by loyalist paramilitaries—six people who were utterly innocent. That report eventually came out in various iterations, but it found that there was collusion and things happened that should not have happened—their deaths, the destruction of evidence material, et cetera.

My Lords, in supporting Amendments 146 and 152, and the consequent amendments, I say that the Human Rights Commission believes that the Government’s amendments do not address its grave concerns raised in the initial advice regarding the immediate cessation of criminal investigations, other than those referred by the ICRIR to the prosecutor, police complaints, civil proceedings inquests and inquiries linked to Troubles-related offences. The CAJ, with which I believe the Minister is acquainted, believes that the Bill provisions and the Government’s amendments entrench the extent to which impunity will be facilitated. In this regard, it refers to the provisions to prevent the police ombudsman from any inquiry that touches on police actions during the conflict, beyond the existing prohibition in the Bill on dealing with future and current complaints from victims. In this regard, our amendment scores out the removal of inquests and civil actions. To remove civil actions, inquests and the role of the police ombudsman in cases prior to 1988 is totally undemocratic and leads to a lack of transparency and accountability. I therefore ask the Minister if he could indicate the extent of the exercise of police powers by the ICRIR against a person who has immunity.

Some of the amendments dealing with the question of investigations consider many of those issues. In the past the Minister has confirmed that the ICRIR can use police powers in some circumstances. However, can he confirm that such powers would not be exercisable against a person who has immunity for the offence under investigation? He has stated that police powers can be used by the ICRIR. In introducing the Bill a year ago in the other place, the former Secretary of State for Northern Ireland stated that the Bill would mean military veterans would no longer face a knock at the door or be taken in for questioning—that is, police powers would not be used against veterans. Is that still the Government’s position, given the contradictions?

The noble Baroness, Lady O’Loan, has already referred to the Council of Ministers decision, issued after the March meeting, setting the UK Government the deadline of 3 May to make tangible progress on an alternative ECHR-compatible approach. I note that the NIO issued a two-page response letter on 4 May, not committing to any changes to the Bill and urging the Council of Ministers to defer consideration until September, by which time the Bill will have commenced on current timing, and damage will have been done. I ask the Minister to consider the views of many people throughout Northern Ireland—victims’ groups, survivors’ groups, political parties—and ensure that accessibility to inquests and all forms of civil action and criminal prosecutions is continued, because it is only through those mechanisms that justice can prevail. At the end of the day, the people who have been so deeply grieved want peace of mind, justice and truth.

I support the amendments in my name and those additional amendments in the names of my noble friends Lord Murphy and Lord Browne, and the noble Baroness, Lady O’Loan, and the amendment in the name of the noble Lord, Lord Dodds, because we do not want to see the Bill as it is currently drafted, but we want those game-changing amendments referred to by the Secretary of the State in the other place.

[Lord Sandhurst (Con)]

My Lords, I speak in support of Amendment 154A tabled by my noble friends Lord Godson and Lord Faulks. I apologise for not speaking at Second Reading.

As others have explained, the Supreme Court reached a decision which surprised many legal observers. In this respect, I commend to the Minister and his officials the Policy Exchange paper of May 2020, which explains the well-established Carltona principle, how the Supreme Court reached its decision, what it did not refer to and, in particular, what was said in the debates leading up to this Order in Council being passed—it is necessary to look at that. I am not going to go into that now; I shall be short.

For a long time, the principle has meant that officials and junior Ministers routinely act in the name of the Secretary of State, whose personal involvement in each and every decision is not required. Noble Lords who have much experience in this field—I refer in particular to the noble Lords, Lord Butler, Lord Howell and Lord Macdonald, all of whom have great experience with or as Ministers, or as the Director of Public Prosecutions—have explained the significance of the Carltona principle to our system, and agreed that the Supreme Court’s interpretation was, if I may put it this way, somewhat implausible.

It is plain that the Minister, in this case, acted in good faith and, I suggest, without negligence and in accordance with the well-established principles. Quite simply, this amendment does not overturn the acquittal, which was founded on a Supreme Court decision, but it will ensure that damages should not flow. It will also have the benefit of restoring the Carltona principle to its necessary place in jurisprudence. I commend this amendment to the House.

[Lord Eames (CB)]

My Lords, I make no apology for the fact that my contributions to the debates on this Bill and legislation stem from my personal experience over the years with victims and survivors, and their families. If noble Lords had a similar experience, they would live with it and continue to live with it until the end of their lives.

At this juncture in our debates, we are addressing for technical reasons—which I accept—and for reasons of jurisprudence and legality, what is, I believe, the greatest failure of this proposed legislation. It is proposed that victims and survivors will be denied the last jurisprudential opportunity to gain some answer to their doubts, worries and concerns, and above all their search for justice.

I am very glad that the noble Lord, Lord Dodds, recently referred to the death of my long-term colleague and friend, who began, as I did, to study law at Queen’s, all those years ago, and who ended up as Lord Chief Justice of Northern Ireland. For reasons that must be obvious, I personally know something of the strain that he encountered during the Troubles, and the honesty, integrity and decency of Bob Carswell needs no defence from me. I pay tribute today to a man who often sat beside me on these Benches of latter years.

I cannot speak too strongly of the feeling of so many people who have encountered grief, loss and sorrow during the Troubles when they view the proposals of this Bill, and in particular the amendments and the area that surrounds them that we are looking at currently. They are to be denied the possibility of answers to their questions, and denied the justice that they feel is not just a legal necessity but a legal obligation. They are to be denied the possibility of having their questions answered and doubts removed. Now we see what is proposed in our legislation. To say that it is adding salt to the wounds is too little; it will be devastating in its effect. We must put on record that this Committee recognises, beyond the technicalities that our legal friends are now explaining to us, the human side of what is happening and what is proposed.

Many tributes have been paid to the Minister, and I add my name to them, for I do not know how he has had the patience to listen to so many approaches. But I say to him that, on this occasion, he must recognise above all else that, in guiding us through this legislation, he is defending something that we who live and work there, and who have had our being in Northern Ireland, find extremely hard to accept. That must be said plainly. Above all else, if this Committee does not hear those voices and those claims, we are failing to do the duty that we are obliged to fulfil.

The last thing I will say at this stage is simply this. Whatever the future of this proposed legislation, whatever the future of the peace process in Northern Ireland, and whatever the future for the new generation coming up who will read in the history books what so many of us have lived through—whatever the answers to those questions are—what remains fundamental is justice in its widest human sense. For that reason, I add my support to these amendments.

[Baroness Hoey (Non-Afl)]

My Lords, I give my support to Amendment 154A, in the names of the noble Lords, Lord Faulks and Lord Godson. We are now on the fourth day of Committee, but it has been six months since this Bill was first introduced to the Lords. I kept hoping that, as time went on and on, somebody in the Government would think that this was one of the Bills that they should be retreating on and getting rid of, as they seem to be doing with so many other Bills. But here we are, and so we want to ensure that we end up with the best Bill possible.

13:15

I am delighted that such senior noble Lords as the noble Lords, Lord Howell, Lord Butler and Lord Macdonald, are all here today supporting Amendment 154A. It is a common-sense amendment. When I asked a question some time ago on this issue and the failure to comply with the Carltona principle, I was assured that something would be done to sort it. This is a real opportunity, which I am sure the Minister realises, to change the legalisation. This compensation could run to millions of pounds. Nobody should underestimate that, although the whole issue around Gerry Adams has not got a huge amount of publicity, everyone who thinks they have got a chance of getting compensation will apply, and it will be a huge amount of money. This amendment is crucial to ensuring that people in Northern Ireland feel confident that the injustice of people getting compensation for an administrative error is going to be dealt with.

I add my support for what the noble Lord, Lord Dodds, said about the RUC, the UDR and our Armed Forces. I am afraid that we are seeing the rewriting of history. It is very important that we in this Committee remember the sacrifice of so many people who defended people in Northern Ireland—particularly those members of the Armed Forces working in border areas. It is very sad that so many terrorists absconded over the border, having bombed or killed, and the Irish Government did very little—in fact, they refused—to send back many of those people. We must always look at this in the context of where the real problem was, and that was with terrorists, not with the Armed Forces.

Sadly, we are seeing more and more lawfare, where lawyers are able to continue probing incidents where individual soldiers and individual members of the UDR and the RUC killed someone and perhaps a mistake was made. The balance has got to be that we treat people and victims fairly. Sadly, victims and the families of victims killed by terrorists in some of the big atrocities are not getting that justice; they are not getting ombudsmen or inquiries into what happened. That is why people from all sides have different ideas of why this legacy Bill is not going to help stop that kind of lawfare.

I hope that the Minister will come back at the end and say that he does not think, as the noble Baroness, who is no longer in her place, said, that Amendment 154A needs much detailed scrutiny. It is very simple and it addresses something that should not have happened, and will make sure that compensation cannot happen.

I also ask the Minister this. Who decided the salary that the new head of the ICRIR will be getting? It was reported in the media that they will be getting £150,000. I would be interested to know who made the decision about the salary, or whether that is just media speculation.

[Lord Murphy of Torfaen (Lab)]

My Lords, I support the various amendments brought forward by my noble friend Lord Browne, which aim to give room for ongoing criminal investigations to conclude and to allow space for civil action to be brought for an additional three years. I very much understand the concerns that the noble Baroness, Lady O’Loan, put forward regarding the closing off of other routes to justice under Clauses 39 and 40.

I often agree with the noble Lord, Lord Dodds. I sometimes disagree with him, but today I agreed with absolutely every word he said, particularly when he opened his remarks by making reference and paying tribute to those in the security services who lost their lives, and indeed the tens of thousands of other people who lost their lives over 30 years in Northern Ireland. I also agreed with his tribute and that of the noble and right reverend Lord, Lord Eames, to Lord Carswell, who I knew very well too. Our interest was not simply legal or political; we were both great lovers of classical music. He was a great expert—much more than I was—and I think that we in this House will all miss his wise words.

My noble friend Lord Browne referred to the fact that the First Reading of the Bill took place in the other place one year ago, and we are nowhere near finished. This is the fourth day in Committee—it seems a bit longer to me—over the last number of months in which we have been dealing with this, and there seems no end to it. I honestly think—and this is where the noble Lord, Lord Dodds, and I think most Members in the Committee would agree—that it is time to dump the Bill. There is no support for it. All my experience in Northern Ireland has been based on the fact that if there is not support across the community for something, it is doomed. I think it premature to advertise for the office of commissioner. I believe it is wrong that something as controversial as this can go ahead unless there is community support, political support and legal support, both here and, in particular, in Northern Ireland. There is still time. The noble Lord, Lord Dodds, referred to the fact that a number of Bills have been dumped. The Schools Bill was the other one that he did not mention, I think, but there are others. Now is the time to do that.

To refer particularly to the new amendment that has been introduced, Amendment 154A, I am glad that I am not the Minister answering this. I am sure that the Minister will have an answer, at least a temporary one, to this very interesting amendment. I do not want to comment on an individual case, obviously, but I do want to comment on the implications of what happened as a result of that case. I had never heard of the Carltona principle before, so I have learned something today, but I obviously operated under it when I was Secretary of State for Northern Ireland and, more significantly, when I was Minister of State for Northern Ireland, because as Minister of State I undoubtedly signed warrants on behalf of the Secretary of State at the time, understanding that everything I did was perfectly legal and right. Obviously, that has now been brought into doubt.

Very often, a Secretary of State’s name is used in tens of thousands of communications and letters for technical reasons, but this is not a technicality in Northern Ireland. This is about actually locking people up, tapping their phones or whatever it might be, so it really has to be got right—not least the issue of compensation, which could be absolutely horrendous. The Minister is not going to give us a complete answer to this today, but I hope that he will be able to assure us that by the time we get to Report, which I guess is not that long away, the Government will be taking action on this important measure.

I hope that the Minister, who has been extremely patient over the last seven or eight months with the Bill and with us, will look not just at that amendment but at the other amendments. They go to the heart of the criticism of the Bill: that the Government are wiping out any legal routes to ensure that there is some redress for the terrible things that have happened to people in Northern Ireland over the last 40 years.

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

The noble Lord, Lord Murphy of Torfaen, referred to the past seven or eight months—I assure him that, from this side of the Committee, it seems much longer. He, my noble friend Lord Dodds of Duncairn and the noble and right reverend Lord, Lord Eames, somewhat pre-empted my opening comments on this group of amendments by referring to the sad passing of Lord Carswell. As this is my first opportunity to address your Lordships since his death, I join those who pass on their condolences to his friends and family. Lord Carswell spent many years as a very dedicated public servant, including as Lord Chief Justice of Northern Ireland, as a Law Lord and as a distinguished Member of this House. We will miss his very wise and profound contributions.

I am also grateful to my noble friend Lord Dodds of Duncairn, the noble Baroness, Lady Hoey, and the noble Lord, Lord Murphy, for their references to the security forces. I intend to touch on that at slightly greater length in replying to the next group of amendments, but I concur with every word that was said.

As has become customary on the Bill, this has been a thorough debate. Before I respond directly, I would like to take a couple of moments to make an announcement in the Chamber. Last month, on 20 April, I laid in the Library of the House a paper setting out the selection process for the chief commissioner of the ICRIR. I am pleased to announce today that, following recommendations from the three Chief Justices across the United Kingdom, the Secretary of State has identified the right honourable Sir Declan Morgan KC to be appointed to the role of chief commissioner of the commission upon Royal Assent. The Secretary of State is today laying a Written Ministerial Statement providing more detail.

It is important that a chief commissioner be identified now in order to help victims, survivors and their families receive the answers they need with minimal delay, should this legislation receive Royal Assent. Sir Declan brings a wealth of experience from his previous role as former Lord Chief Justice of Northern Ireland from 2009 to 2021. A hallmark of his distinguished career has been his commitment to addressing the legacy of Northern Ireland’s past. I am confident that he will bring the highest level of experience, expertise and integrity to this post, and that this will help build public confidence in the work of the commission.

Sir Declan will begin work early next month to identify other commissioners and design how the new commission will carry out its role. Formal appointment as chief commissioner will take place only following Royal Assent and the establishment of the commission, taking account of any further considerations and final requirements of the Act. In particular, the chief commissioner will lead the process to recruit the commissioner for investigations and provide a recommendation to the Secretary of State. The role is currently advertised and subject to a fair and open competition, with appointment on merit. I trust that noble Lords across the House will warmly welcome this appointment.

[Baroness O'Loan (CB)]

Does it not seem slightly precipitate to be engaging the services of the chief commissioner and other commissioners when the powers and duties of the commission have yet to be decided by your Lordships’ House? It seems to me that, notwithstanding the amount of time needed to establish the new offices, the Bill is not yet in a state in which the chief commissioner can approach commissioners and say to them, “This is what we’re going to do, and this is how we’re going to do it”, because the House has not decided those issues.

[Lord Caine (Con)]

As I just made clear in my remarks, the appointment is as chief commissioner-designate, and the formal appointment will not take place until after Royal Assent. That will take into account any further considerations that the House will have upon this legislation. It is important to enable the work of the commissioner to start now in order that, once Royal Assent is—I hope—received, the commission’s work can begin without delay.

[Baroness Ritchie of Downpatrick (Lab)]

Further to the question from the noble Baroness, Lady O’Loan, could the Minister indicate in more detail the functions that Sir Declan Morgan will undertake in this interim period before Royal Assent is given?

[Lord Caine (Con)]

As I just said, the Secretary of State is laying a Written Ministerial Statement today which should be available very shortly, and I refer the noble Baroness to it for further detail on that.

[Baroness Hoey (Non-Afl)]

Very briefly, could the noble Lord answer my question about who decided the salary and whether the person will be paid before Royal Assent?

13:30

[Lord Caine (Con)]

The salary is based on judicial pay scales, as set out by the Ministry of Justice. I cannot off the top of my head tell the noble Baroness precisely what day his remuneration will begin, but I will get back to her on that. However, it is consistent with the MoJ’s judicial pay scales.

I turn to the amendments on criminal investigations, and first to Amendments 146 and 152 in the name of the noble Lord, Lord Browne of Ladyton. Under the Bill, the only existing criminal investigations that will be allowed to continue will be those where a decision to prosecute has been reached by the time of the Act’s commencement, currently two months after Royal Assent.

As the noble Lord knows, it has long been the Government’s view that to allow too many existing processes to continue alongside the ICRIR’s establishment would dilute the commission’s credibility as the sole investigator of Troubles-related deaths and serious injuries, and the wider objectives of the legislation to encourage information recovery and—an issue on which many noble Lords have touched today—the truth of what happened. In the Government’s view, the legislation as drafted strikes the right balance between allowing existing criminal cases that have made significant progress in the prosecutorial process to continue while giving the ICRIR the space it needs to become established as the sole responsible body for these types of investigations.

The legislation does not prevent the new commission, once it is operational and subject to a request being made, resuming criminal standard investigations into deaths or serious injury which the police have been prevented from pursuing under Clause 34(1). As we have discussed many times in the past, the commissioner for investigations will have the full powers of a police constable.

[Baroness O’Loan (CB)]

It has to be said that the powers of investigation conferred on the commissioner for investigations in the statute are not the same powers as the powers—for example, to access information, and other powers—which are held by an ordinary chief constable and his officers. The powers of investigation in the Bill are circumscribed by the role of the Secretary of State and the interventions which he can make.

[Lord Caine (Con)]

I disagree with the noble Baroness. The commissioner for investigations will have the powers of a police constable and will have access to far greater information and records than is currently the case. We have been over this many times before. It is written into legislation that the commission will have access to far more archive and intelligence material than has ever been made available before.

The noble Lord, Lord Browne of Ladyton, quoted the decision of Armani Da Silva v the UK in regard to what constitutes an effective investigation. Again, we have debated this at length on previous days in Committee. To reiterate a point I made during those debates, the commission, working together with public prosecutors and making full use of the police powers to which I have just referred, will be able to institute criminal proceedings against suspected offenders in cases where conditional immunity has not been granted.

In the Government’s view, 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 therefore consistent with the Government’s stated objective to provide more information to victims and survivors of the Troubles in a timely and efficient manner.

In response to his question about the compatibility of the Bill with the Scotland Act 1998, it has always been our expectation that the power of referral will be exercised in consultation with the relevant prosecuting authorities, including the Lord Advocate, and I commit to consider this matter further in advance of Report.

In response to Amendment 154 in the name of my noble friend Lord Dodds of Duncairn, where a decision to prosecute has already been made, the case will be allowed to continue to trial and the individual involved will not be able to apply for immunity until its conclusion. If they are convicted of an offence, they will not of course be able to apply for immunity from that offence, as we have discussed previously.

Clause 6 designates the commissioner for investigations as a person having the powers and privileges of a constable, as I referred to a few moments ago, and they have access to the functions they need to carry out robust investigations.

On the very important Amendment 154A, in the name of my noble friends Lord Faulks and Lord Godson, I am very aware of the issues being raised following the Supreme Court ruling in 2019—indeed, I was a special adviser in the Northern Ireland Office at the time that that ruling was made by Lord Kerr. It has been brought back into focus following a court judgment in the past few days and I am aware of its importance. I hope my noble friend will understand, as he alluded to in his comments, that, given the lateness with which the amendment appeared and important legal considerations on which it touches, I am not in a position to give him or other noble Lords a full response today. But I do take on board the very powerful points made by a number of noble Lords: the noble Lords, Lord Butler of Brockwell, Lord Macdonald and Lord Murphy of Torfaen, my noble friend, Lord Howell, who reminded the House that he was indeed a Minister in the Northern Ireland Office in 1972 with some responsibility for these matters, and my noble friend Lord Sandhurst. All upheld the importance of the Carltona principle. As I say, I cannot give a definitive response today, but I do commit to discussing it further before Report and possibly returning to this when the Bill comes back on Report.

I turn to the group of amendments put forward by the noble Lord, Lord Browne of Ladyton, supported by the noble Baroness, Lady O’Loan, and other noble Lords, to address some of the concerns raised over the inclusion of a number of clauses. I begin by reminding the House that, as regards civil cases, over 700 writs were issued against the state in legacy civil claims before the First Reading of the Bill a year ago on 17 May 2022.

As has been stated many times, the Government’s policy intent regarding civil claims is to reduce the burden on the Northern Ireland civil courts—which currently have a huge case load backlog to work through—while enabling the commission to establish itself as the sole investigative body looking at Troubles-related deaths and serious injuries. It is the Government’s intent that families should no longer have to go through the strained civil court system in order to receive the answers they seek.

In the Government’s view, there is a danger that these amendments in the name of the noble Lord and others would significantly dilute both of those aims, taking potential casework away from the ICRIR and putting it back into an already clogged system that on current estimates will take decades to work through. In our view, this is much less likely to provide answers for families in an efficient manner, which again sits in opposition to our stated aims.

On Amendment 156 specifically, filing claims can be done relatively quickly. This means that if a three-year grace period were to be given, it is possible that a huge number of claims would be filed, as a clear deadline would be in sight, and would remain in existence for a number of years. That would mean that the system would be hugely clogged up and have to deal with an even higher case burden than is currently the case.

Our current position will allow existing claims that were filed before the Bill’s introduction to continue to conclusion while bringing to an end new processes, to ensure that not too many concurrent cases are running once the ICRIR is established. Clause 39(7) simply allows any civil cases where a final judgment has been reached before commencement to continue to conclusion, where they would otherwise be caught by the prohibition in Clause 39(1). We believe that this is a reasonable approach to ensuring that the prohibition on civil claims does not interfere with cases where the court has handed down a final judgment when the prohibition would otherwise apply.

I appreciate that coronial inquests are a matter of huge concern to a number of noble Lords. I gave a commitment that this Government would not rush the legacy Bill through this House, and that we would prioritise steady passage and provide ample time for continued engagement. That is what we have done, in good faith. As noble Lords will be aware, the original working assumption was that the ICRIR would be fully operational by 1 May 2023 at the latest, on the assumption that Royal Assent would have been received some time before then. At that point, the intention was that those inquests which had reached an advanced stage would continue, while those which had not would move into the new commission. It will not have escaped the attention of noble Lords that 1 May 2023 has come and gone without Royal Assent, and that the establishment of the new commission has not yet happened, largely due to the extra time that we have given for thorough consideration of this legislation. However, this raises important issues that we must address. I will discuss this further with noble Lords between now and Report.

As the Bill has not yet become law, all current criminal justice processes may, for now, continue as normal. In that context, the noble Baroness, Lady O’Loan, asked me how many PSNI investigations have been initiated since the introduction of the Bill. That information rests with the PSNI, which, as the noble Baroness knows, is operationally independent from the Government, but I will seek an answer.

As Lord Chief Justice of Northern Ireland, Sir Declan Morgan demonstrated his leadership and his determination to provide answers for families of victims, through the work of coroners’ courts in legacy inquests. Sir Declan’s commitment to providing effective, efficient and independent coronial investigations won the respect and trust of countless families and the wider community in Northern Ireland. I am confident that he will take forward the work of the ICRIR with the same determination and commitment. The Government believe that once the commission is established there should be one process for investigating the past that is available equally to all those—I repeat, all those—who have lost loved ones, providing parity to all families, victims and survivors, while allowing other organisations to focus on contemporary issues.

While the coronial process has proved more effective than other mechanisms in providing information, accountability and acknowledgement to some families, including in some very high-profile cases, it is undeniably a resource-intensive process that can tackle only a small number of Troubles-related cases when compared with the many families who still wait for similar outcomes. The commission seeks to provide this, and it is worth reminding noble Lords that the commission will have easier access. The noble Baroness and I disagree here, but it will have easier access to more information than coronial inquests, through the obligation of full disclosure from relevant authorities, as outlined in Clause 5. This is particularly relevant to information that is national security sensitive. The commission will also have comparable powers to compel witnesses, and only on the basis of evidence will be able to make findings public via a final report, in a manner similar to an inquest.

The Government are confident that the legislation provides the chief commissioner with all the requisite tools to fulfil the commission’s functions fully and effectively. Indeed, it is fair to say that any chief commissioner, given their senior status within the judiciary, will be very cognisant of the legal obligations on all public authorities, including the commission, to meet the requirements of the ECHR.

13:45

Moving on, I brought forward Amendment 163, as the noble Baroness referred to, to clarify that the activity of the ombudsman which constitutes a criminal investigation can continue where a prosecution of a person has begun. Amendments 162 and 164 clarify that the ombudsman will be prevented from undertaking formal investigations in relation to referrals made, for example, by the Department of Justice, the Secretary of State or the ombudsman herself which relate to conduct forming part of the Troubles, in addition to preventing complaints made by members of the public. We want the ICRIR to be responsible for investigating Troubles-related incidents, so that police forces can get on with their day-to-day policing obligations and the Police Ombudsman for Northern Ireland can focus her resources on current policing issues.

On a similar note, Clause 41 as drafted makes provision that legislation in Northern Ireland dealing with police complaints and disciplinary proceedings will cease to apply to complaints relating to Troubles-related conduct made before the day the law comes into force, as well as complaints made on or after that date. Amendment 165 will ensure that the prohibition on police complaints relating to Troubles-related conduct applies consistently across the UK.

The noble Baroness pressed me on who investigates complaints concerning Troubles-related police misconduct. It is the function of the commission to review deaths and serious physical or mental harm, and it would be possible for this to relate to an incident that was the subject of a police complaint or otherwise relates to the conduct of the police.

Finally, a number of noble Lords referred to the possibility of amendments and to the comments made by my right honourable friend during Northern Ireland Questions yesterday. As I have made very clear throughout the passage of the Bill, I have never viewed the amendments I have brought forward and that have been debated in Committee as the end of the story. It would be unusual for me to trail amendments on Report before we had actually finished Committee, but, as a number of noble Lords have been kind enough to point out, the one thing I do not think I can be criticised for is a lack of openness and engagement.

As the noble and right reverend Lord, Lord Eames, knows, I made clear at Second Reading that this is challenging legislation—it has been challenging for me from the outset—but my commitment has always been to try to bring forward amendments that will improve it, putting it in a better state to go back to the House of Commons. That commitment will continue through to Report. On that note, I request that the noble Lord, Lord Browne, withdraw his amendment.

[Baroness O'Loan (CB)]

Before the Minister sits down, will there be any process by which complainant compensation or damages can be awarded after Clause 39 comes into effect, or will anybody who was injured or whose loved one was killed have no right of action at all and no route to compensation? Is this the end of the road for any right to compensation in Northern Ireland?

[Lord Caine (Con)]

As the noble Baroness is aware, claims that were filed before the introduction of the Bill last year will be allowed to continue, but there will be a cut-off thereafter. As she is also aware, other avenues are available for compensation which Parliament has introduced in recent years, such as payments for those who were injured and so on in the Troubles.

[Lord Browne of Ladyton (Lab)]

My Lords, I will be brief. I thank the Minister for his characteristic way of responding to debates such as this. Subject to a few interventions on parts of the argument that noble Lords thought he had not dealt with, he covered the debate, as he always does, very comprehensively. He is probably the most open Minister I have ever been involved with in debates in your Lordships’ House. He did it at speed, though, so this issue probably bears some consideration between now and Report. In any event, he is inviting us to do that and will be doing it himself.

I thank all noble Lords who have contributed to the debate. My amendments were probing in nature, but once grouped with the amendments from the noble Baroness, Lady O’Loan, and the noble Lord, Lord Dodds of Duncairn, this became a comprehensive debate on issues that the noble and right reverend Lord, Lord Eames, correctly described as, in the view of many, the greatest failure of this legislation. This debate is about the scale of that failure. I admire the Minister’s ability always to defend the Government’s policy intent, but we have an argument with that intent. The fundamental challenge of this debate is that others, almost universally, think that the policy intent is wrong and that the sacrifices having to be made in other areas, such as the needs of survivors and victims, should not be made. In any event, I do not propose to say anything further on this.

Before I sit down, however, I must make some reference to Amendment 154A, and I do this in a personal context. Between 2001 and 2003, I was a Parliamentary Under-Secretary of State in the Northern Ireland Office. I signed a number of warrants—thankfully, none authorising an interim custody order—some of which were on behalf of my noble friend Lord Murphy of Torfaen when he was Secretary of State. So, if the implications of the current state of the law are sufficiently far-reaching, they may reach me as well. I am not sure that they are: I got notice of this amendment very late and have had insufficient time to look at it and its implications.

The noble Lord, Lord Faulks, will appreciate that, while, on the face of it, I was persuaded of the importance of this amendment—or at least part of it—by his introduction and the other contributions, I will keep my powder dry until Report, when I am sure it will come back. In the meantime, I beg leave to withdraw the amendment.

Amendment 146 withdrawn.

Amendment 147 not moved.

Clause 34 agreed.

Clause 35: Grant of immunity: prohibition of criminal enforcement action

Amendments 148 and 149 not moved.

Clause 35 agreed.

Clause 36: No grant of immunity: restrictions on criminal enforcement action

Amendments 150 and 151 not moved.

Clause 36 agreed.

Clause 37 agreed.

Clause 38: General provision and saving for ongoing pre-commencement action

Amendments 152 to 154 not moved.

Clause 38 agreed.

Amendment 154A

Tabled by

[Lord Faulks]

154A: After Clause 38, insert the following new Clause—
“Authorisation of interim custody orders under the Detention of Terrorists (Northern Ireland) Order 1972
(1) Article 4 of the Detention of Terrorists (Northern Ireland) Order 1972 is to be treated as always having had effect as authorising an interim custody order under that article in relation to a Troubles-related offence to be made by and with the authority of any Minister of the Crown whose signature was required for the making of such an order (and not just by and with the authority of the Secretary of State personally).(2) Subsection (1) does not revive any criminal conviction quashed before the coming into force of this section.(3) But a person whose conviction for any Troubles-related offence (whether or not quashed) or whose detention (whether or not as a consequence of such a conviction) depended, directly or indirectly, on the validity of such an interim custody order is not entitled, by or under any enactment or otherwise, to receive any damages or compensation in respect of that conviction or detention if the only reason for impugning its validity relates to whether the order was made by and with the authority of the Secretary of State, personally.(4) Subsection (3) applies irrespective of whether the claim for damages or compensation was made before or after the coming into force of this section.”

[Lord Faulks (Non-Afl)]

I thank all those who took part in the debate for the support that has been given— wholeheartedly in some instances and with some reservations in others. I am grateful for the debate that it generated. I am also grateful to the Minister for his helpful response. I wholly understand why he was not able to give a fuller response at this stage, and I welcome his reassurance that we will visit the matter between now and Report. This is an important amendment, as I endeavoured to make clear during the course of the debate. It is important in terms of the large number of claims which may result from the decision and in establishing once more the primacy of the Carltona principle in the way the Government work.

Amendment 154A not moved.

Clause 39: Tort, delict and fatal accident actions

Amendments 155 to 161 not moved.

Clause 39 agreed.

Schedule 8 agreed.

Schedule 9: Civil actions to which the 2008 Mediation Directive applies

Amendments 161A and 161B not moved.

Schedule 9 agreed.

Clause 40 agreed.

Schedule 10 agreed.

Clause 41: Police complaints

Amendments 162 to 165 not moved.

Clause 41 agreed.

Clause 42 agreed.

Amendment 166

Moved by

[Lord Hogan-Howe]

166: After Clause 42, insert the following new Clause—
“Amendment of the Code for Prosecutors for Troubles-related offences
In section 37 of the Justice (Northern Ireland) Act 2002 (Code for Prosecutors), after subsection (3) insert—“(3A) The code must ensure that the views, interests and well-being of victims, and of the families of deceased victims, are considered when determining whether criminal proceedings should be instituted for a Troubles-related offence.(3B) In relation to a Troubles-related offence the code must take account of—(a) the likelihood of the accused re-offending,(b) the time elapsed since the offence,(c) the volume and seriousness of the crime, and(d) the character and behaviour of the accused since offending.””

[Lord Hogan-Howe (CB)]

My Lords, I must make an apology because the noble Lord, Lord Hain, is unable to be in his place and I did not leap up quickly enough to speak to Amendment 147. I shall infuse into my comments on Amendment 166 some of what I would have said on Amendment 147.

My approach here is going to be brief. I am no expert on Northern Ireland. There are many people who live there and are experts. I spent two years as HMIC for the Police Service of Northern Ireland and I was head of the Met, which leads on counterterrorism investigations for the United Kingdom. That is the extent of my experience.

My interest in this Bill stems from a couple of things. First, my instinct is always that murderers and others who commit serious crime should not get away with it. However, I would subsume that interest if the people involved believe that no further action should be taken. The more this Bill has been heard in its various stages, the more I have been persuaded that no one from Northern Ireland supports this Bill and nor do many other people, which makes it rather difficult to support it in principle. My comments are really about how to mitigate some of the damages, should the Bill became law rather than whether it should become law, because it seems that it does not have the support of the people of Northern Ireland or, most importantly, the families and people who were most affected by the Troubles.

14:00

In Amendment 166, we are trying to improve the DPP code relating to prosecutors. Account must be taken of the views of the families and those most affected before a prosecution decision is made not to prosecute. The amendment also looks at whether they consider the number of offences that might have been committed, the amount of time since they were committed and what involvement some of the people have. We think that would improve the way that these judgments are made.

I was not able to speak to Amendment 147, but what really concerns me is that under Operation Kenova, which has been talked about an awful lot in various discussions in this House, 127 incidents are already being investigated by that team, and there are presently over 30 files with the DPP, as there have been since February 2020. That means there is a series of families who are waiting for an answer. It also means that an awful lot of witnesses have come forward and put themselves at risk already. For them to have taken that risk but then to find that there is no further action—neither a charge nor a court hearing where that would be appropriate—seems to be a significant failure of duty on behalf of the Government to the people who have put themselves forward to take those risks on our behalf.

Any investigation has various stages. The first is engagement—talking with the families and building a level of trust. The team seems to have done that in some very difficult circumstances, particularly where the state is alleged to have been involved with some of the attacks. That has taken an awful lot of work, and to destroy it at this stage in these cases would be rather terrible because that trust, hard-won, is easily lost, and I argue that this is not the time to do that.

Of course, the investigation itself takes some time. A file has to be prepared. We have heard already that there are many files with the DPP, and surely what has to happen is that those files are considered and eventually all the investigations are completed. I realise that this is difficult for the Government because it would mean shifting the line by which they will allow the commission to start its work, but in the case of Kenova it is vital that these cases are considered and allowed to continue into the future.

[Lord Caine (Con)]

My Lords, I am grateful to the noble Lord, Lord Hogan-Howe, for his intervention on this amendment. We have debated these issues at length so I do not propose to detain the House for long at this stage, but I commit to speaking further with him and the noble Lord, Lord Hain, in whose name the amendment stands.

The noble Lord has referred to Kenova. I am on record as saying that we are deeply appreciative of the work of Jon Boutcher and the way that he has gone about his business over the past number of years. As I say, I do not intend to detain the House, but I will engage with both noble Lords between now and Report.

[Lord Hogan-Howe (CB)]

I thank the Minister for his assurance and beg leave to withdraw the amendment.

Amendment 166 withdrawn.

Amendment 167 not moved.

Schedule 11: Prisoner release

Amendments 168 to 170 not moved.

Schedule 11 agreed.

Clause 43: Oral history

Amendment 171 not moved.

Clause 43 agreed.

Clause 44: The memorialisation strategy

Amendment 172

Moved by

[Lord Dodds of Duncairn]

172: Clause 44, page 35, line 25, at end insert—
“(2A) The designated persons have an overarching duty to ensure that no memorialisation activities glorify the commission or preparation of Troubles-related offences.”Member’s explanatory statement
This amendment is intended to ensure that designated persons responsible for making recommendations about the initiation and carrying out of relevant memorialisation activities are under a duty to prevent the glorification of Troubles-related offences.

[Lord Dodds of Duncairn (DUP)]

My Lords, in this group we have come to memorialisation. I want to say a few words on the amendments in my name and those of my noble friends. Amendment 172 is

“intended to ensure that designated persons responsible for making recommendations about the initiation and carrying out of relevant memorialisation activities are under a duty to prevent the glorification of Troubles-related offences”.

Clause 48 says that “designated persons” carrying out the Troubles-related work programmes

“must have regard to the need to ensure that—(a) there is support from different communities in Northern Ireland for the way in which that programme is carried out, and (b) a variety of views of the Troubles is taken into account in carrying out that programme”.

This focus on “a variety of views” is problematic given that, sadly, a significant number of people in our community repeatedly not only refuse to disavow violence and terrorism but go further and eulogise and glorify acts of terrorism.

They want to put on a pedestal those who carried out acts of violence. They do this through parades, vigils, rallies and the installation of memorials and so on at sports grounds, on housing executive property and on roadsides. This is to continue what has been referred to throughout these debates as the revision of history—the rewriting of the history of the Troubles, so that those in the security forces who stood fast in the way of terrorism are denigrated to a large extent in the eyes of some. The terrorists are elevated by some to have been engaged in noble acts of warfare.

The noble and right reverend Lord, Lord Eames, referred to his experience. The sad reality is that we know the sordid, grubby, filthy acts of terrorism and violence that were carried out against innocent men, women and children daily in Northern Ireland, at times on the mainland as well and even on the continent of Europe in pursuit of the aims of violent men and women of terrorism.

Look at some of these daily events. Children witnessed the murder of their father or mother. Wives ran down lanes having heard the gunshots that cut down their farmer husband at the end of the lane. Consider the case of a young wife who had just given birth in hospital and who had been visited by her husband. As he left and went down into the car park, he was murdered. Then, at the funeral, they gloated over his murder. I know a young boy—now a man—who had lost his mother. His father was made to kneel down and was shot through the head in front of him; he ran down the lane to try to get help.

This is the reality of terrorism and what these people carried out, yet we have a situation where these people are eulogised and young people in Northern Ireland are shouting “Up the Ra”. We have a designate First Minister of Northern Ireland who says she wants to reach out to people but who continually goes to the eulogies of terrorists, continually defends the actions of terrorists and men of violence and puts these murderers on a pedestal. Until Sinn Féin disavows that, it will never reach out successfully to the unionist community or indeed to families on all sides of the community.

There will never truly be a peace process and a political process in Northern Ireland that is stable and enduring unless people move forward and stop eulogising violence. It is one of the main causes of community dislocation and the continued problems that we have in Northern Ireland. We are told continuously to move ahead, but these people continue to point backwards and eulogise the actions of terror. Today, in 2023, they are still doing it.

My Amendment 172 is intended to ensure that the designated persons will not have as part of their duties allowing terrorist activities to become the subject of glorification or justification—they should be under a duty to prevent this. They cannot be held to ransom by those who would rewrite history.

My Amendment 173 is intended to ensure that only innocent victims are included as victims in the memorialisation strategy under the Bill. It is critical that any Troubles-related work programme does not give credence to terrorists injured or killed by their own hand. They should not be considered victims in the same way as those whom they went out to maim and murder. The need to avoid drawing a moral equivalence between the victim and the perpetrator has been accepted as part of the Troubles permanent disablement payment scheme. We on these Benches and in the other place fought hard and long to ensure that that distinction was made, and Regulation 6 of the 2020 regulations made that part of the law. It is time that we saw this reflected in primary legislation. There should be a UK-wide definition of a victim that does not include the perpetrators of violence.

[Baroness Hoey (Non-Afl)]

My Lords, I support everything that the noble Lord, Lord Dodds, said and his Amendments 172 and—in particular—173; it has been a long time coming, and we need to make that definition of victim the same across the United Kingdom.

I will speak to my Amendments 174ZA and 174A. Amendment 174ZA addresses a problem with the Government’s funding body, UK Research and Innovation—UKRI—councils. Many of us who are interested in legacy are concerned about what seems the one-sided nature of much of the academic research into our past and the way that UKRI funding has been monopolised by what seems to be a single legal view. That view is radical and investigates faults only with the United Kingdom state and its security responses during the Troubles.

I cite here Queen’s University’s transitional justice department, which produced the model legacy bill referred to by the noble Lord, Lord Murphy, and others. Almost alone, that department has received some £4 million in UKRI funding. It works in conjunction with the Committee on the Administration of Justice, a largely nationalist body in Belfast that encourages legacy litigation. I note with concern that the speakers’ list at the transitional justice institute’s seminars during the events at Queen’s University on the recent 25th anniversary of the Belfast agreement was drawn from one outlook only.

The wording of my Amendment 174ZA stems from an Answer that I received on 8 November last year from the noble Lord, Lord Callanan. He said that UKRI funding on legacy

“is allocated according to research excellence as assessed by independent peer review”.

I am aware—I am sure that many noble Lords will also be—that peer reviews can often become what you could call “chum reviews”, especially when few other academics work in the same field. One academic, Dr Cillian McGrattan, wrote that

“the UKRI record does not bode well for the government’s plan to create a multi-disciplinary history that encourages the acceptance of ‘different narratives’ that transcend and challenge ethnic taboos; that is plural rather than single-identity; that is based upon the actual historical record rather than after the event collective and communal memories; and that fosters reconciliation rather than continued division”.

This lack of balance of legacy and justice at Queen’s University makes it essential that the Bill has more safeguards about academic diversity and fair funding—hence this amendment, which dovetails with others in the group that the noble Lords, Lord Godson and Lord Bew, have endorsed.

14:15

I turn to Amendment 174A, also to Clause 46, which speaks about the production of an analysis of patterns and themes in events during the Troubles, addressing in particular the experience of women and girls. This rightfully mentions what constitutes a majority of the population. My addition refers to researching the experience of the gay and lesbian community. This is a small minority—2.1% of our people, according to the recent census figure—but it figured centrally in disputes and debates throughout the decades of the Troubles, perhaps more so than any other group outside the two main communities.

The process from decriminalisation to now gay equality was effected in a long series of legislative steps, always at Westminster. My good friend Jeff Dudgeon, of the Northern Ireland Gay Rights Association, was a successful plaintiff in Strasbourg against the UK Government in a case which ran from 1975 to 1981. He initiated what was to become a tortuous reform process, after decriminalisation by the Government in 1982. Some eight further pieces of legislation were involved over the decades.

I played my small part back in 1994. The issue then was the gay age of consent which, for England and Scotland, was brought down from 21 to 18 by the Criminal Justice and Public Order Act. John Major’s Conservative Government had, once again, left Northern Ireland out of the proposed gay law reform. I said then:

“I am sure that the House would not want homosexual people in Northern Ireland to suffer inequality under the law”.—[Official Report, Commons, 12/4/1994; col.171.]

Tony Blair, who was then Shadow Home Secretary, helped me whip sufficient support from MPs across the parties, enabling my amendment to win by 254 votes to 141.

The particular reason why the gay community’s experience needs addressing is that it suffered—as we all did—from death and injury through killings, bombings and shootings by illegal organisations. It then had, separately, to face those organisations when they brought further death and destruction just to the gay community. That even occurred after the 1995 ceasefires, in the case of a police officer, Darren Bradshaw, who was murdered by the INLA in the Parliament bar in 1997. The BBC is currently broadcasting a series about it entitled “Blood on the Dance Floor”. The Reverend David Templeton was murdered by the UVF in the same year. Their killings followed a series of bombings of gay venues over 30 years by the IRA and loyalist paramilitaries, and of murders of gay men—often off the street—especially in the darkest days of the 1970s.

Academic research can provide not just a record of those events but a valuable analysis of how life amidst death occurred in the gay community. I sincerely hope that the Minister will see the justice in this amendment and make it one of the NIO’s promised additions on Report.

[Baroness O’Loan (CB)]

My Lords, this part of the Bill provides for history and memorialisation. It is about creating as true and honest an account as possible—one which has integrity—of what happened during our tortured, troubled past.

This is hugely sensitive. I hear what the noble Baroness, Lady Hoey, has said. All I will add is that, given the fact that the eyes of the whole community will be on those who are attempting to deal with these matters, it is vital that there is equity and fairness for all.

I fully support Amendment 172 from the noble Lord, Lord Dodds, in particular. It is right that no memorialisation activities glorify the commission or preparation of Troubles-related offences. We see at regular intervals events from different sections of the community, not just the republican community, which glorify individuals who contributed to atrocities and occasions that caused immense pain to so many of us, but particularly to those whose loved ones died or were permanently maimed in the attack being celebrated. Such events cause great pain; they can reignite the terrors and agony of the post-traumatic stress disorder suffered by so many as a consequence of these events. There is no justification whatever for the glorification of terrorism.

[Lord Weir of Ballyholme (DUP)]

I rise to support the amendments tabled in my name and the names of the noble Lord, Lord Dodds, and others, but also to give a broad welcome to this group in its entirety—notwithstanding some of the major concerns that have been expressed by ourselves and others from across the Chamber about the overall contents of the Bill. From that point of view, no amendments can make the Bill itself acceptable. Nevertheless, actions that we can take to deal with the issue of memorialisation have a level of importance.

Memorialisation can be a force potentially for good, but we also need to be aware that it can also be a major force for further problems and further evil. If done correctly, memorialisation can be beneficial in helping to remember innocent victims and, one hopes, helping towards a level of reconciliation. If we get the conditions right, that can be something of benefit to society and, potentially, to some families. But there is a real danger that memorialisation can be got wrong, which is the thrust of the amendments that we have proposed. It is about trying to provide a level of consistency.

As in previous groups of amendments, we are talking about the real danger of a glorification of terrorism, which must be prevented—certainly from anybody who seeks to benefit from this legislation. It is also the case that, if memorialisation is used as a back door to glorify or justify terrorism, it would be deeply damaging to society. It is not simply a question of rubbing salt in the wounds of the innocent victims and their families—although, if there were no other consideration, that would be a reason why Amendment 172 needed to be proposed and supported completely. But, as the noble Lord, Lord Dodds, indicated, it goes beyond simply dealing with the legacy of the past; it is about the implications for the future and the present day.

We have a generation growing up who did not experience the Troubles but who are clearly susceptible to the message that there was no alternative to violence in the past and that terrorism could be justified today and into the future. That is not simply an academic concern or one that might be moot. We have seen dissident organisations sucking in those young people to be directly involved in terrorism. That is the real danger for the future. Let us send out by this legislation, or at least through these amendments that we are putting forward, a very clear and unambiguous statement: there was always an alternative to violence. That is why, throughout the entire history of the Troubles, there was never a majority in either community for violence; it was opposed by the ordinary people throughout, and it was a minority on both the loyalist and republican sides who engaged in that terrorism and the wickedness and pain that it caused. It is critical that we send out the clear message that there was no justification for terrorism and that there was always a democratic alternative.

Allied to that, we cannot be ambiguous about those who went out to perpetrate the evil of terrorism, from whatever side they came, and those who were the innocent victims. Therefore, it is right that we draw this distinction, which is in line with some changes that the Government have made in other spheres. That is why Amendment 173 is also critical.

It is also the case—and why I welcome the amendments of the noble Lords, Lord Godson and Lord Bew, and the noble Baroness, Lady Hoey—that, overall, it is critical that memorialisation is approached with academic rigour and diversity, and a balanced approach that provides a fair and accurate summary of what happened. Again, if this is a one-sided process or one that in some way gives some level of light to those who would argue for violence in the past, it will do irreparable harm. Therefore, the academic approach that needs to be taken is critical.

I have a good deal of sympathy for the amendment of the noble Lord, Lord Godson, on an overall tone in regard to the Troubles. One thing that has struck me as a former Education Minister is that, unfortunately, at times, we see the ignorance of history. We see young people who simply do not know what happened. It is therefore important that we educate people in a neutral and fair way. There is no doubt that there are contested opinions and views as regards Northern Ireland but there cannot be contested facts. That is why we need to approach this with a level of academic rigour, and that is why I welcome the amendments.

Finally, there is an iterative process to be done, particularly with victims’ families, regarding memorialisation. It may well be that, as part of that process, there is the gathering of an oral history of the stories of the Troubles. It is important that people are able to do that through organisations with a good track record of fairness and balance, and organisations which we can trust. I declare an interest as a member of the Linen Hall Library, which for many years has taken a wide range of views and worked with all parties on reflecting the troubles in a fair and historic manner. It is a role that the library and others can play. We need to make sure that that is not one-sided or biased in any way, and in particular that we draw a clear-cut distinction between, on the one side, the vast majority of people in Northern Ireland who simply wanted to get on with their lives and the victims, and, on the other side, the perpetrators.

[Baroness Foster of Aghadrumsee (Non-Afl)]

My Lords, I support all the amendments in this group, in particular those in the names of my friend the noble Lord, Lord Dodds, the noble Lord, Lord Godson, and the noble Baroness, Lady Hoey. This is an important issue. The last time we were in Committee on the Bill, the noble Lord, Lord Eames, was speaking about reconciliation, and we spent some time on that. Reconciliation will come only if there is an understanding that the things that happened in the past in Northern Ireland were wrong. To do that we need a factual history, because there has been a lot of rewriting of what has happened in Northern Ireland over the past 35 or 40 years.

Just this week, Gerry Adams was reported to have spoken in a podcast to Rory Stewart about the attempted murder of Baroness Margaret Thatcher back in 1984. When he was challenged by Rory Stewart about the violence, Gerry Adams said, “We never went to war, you came to me”. That is a skewed view of what happened in Northern Ireland in the 70s and 80s but a predictable source of rewriting of what went on at that time. But sometimes we have unpredictable sources of rewriting. It was distressing, not just for victims of terrorism but for many of us living in Northern Ireland, to hear the current Secretary of State, in an address to Queen’s University at the 25th anniversary event that the noble Baroness, Lady Hoey, mentioned, refer to Martin McGuinness, a self-confessed IRA commander, as a man of courage and leadership. That was astonishing, and many victims voiced their opinion and distress at those comments. Ann Travers, a victims’ advocate whose sister was murdered by the IRA on her way home from mass, said that those comments insulted innocent victims of republican terrorists. And so it continues, this rewriting of what actually happened in Northern Ireland.

Last year, we had the putative First Minister of Northern Ireland, Michelle O’Neill, telling us that there was no alternative to the violence that happened in Northern Ireland—no alternative to terrorism: that there was no alternative to the bomb in Enniskillen in 1987, when people went to remember the dead of the World Wars; that there was no alternative to the attempted murder of my friend the noble Lord, Lord Dodds, when he visited his son in hospital; that there was no alternative to placing a bomb on the bus that I was going to school on because the man driving the bus was a part-time member of the Ulster Defence Regiment. What about the alternative to lying in a hedge and waiting for police officers coming home from their day’s work, only to murder them as they stepped out of their cars?

14:30

The reality is that of course there was an alternative—there was always an alternative. That is why we need a factual history of what happened in Northern Ireland. I strongly support the amendment of the noble Lord, Lord Godson. It is so important that we do not have a one-sided, warped agenda as to what happened in Northern Ireland. It is important for three reasons. First, for historical reasons and context, it is important to have the facts. Secondly, as we have already heard today in the context of memorialisation, it is important that the young people of today are not encouraged by what happened in the past or by glorifying those acts of terrorism. I was deeply disturbed when, after the attempted murder of Chief Inspector John Caldwell, there appeared posters in Omagh encouraging young people to become involved with dissidents. That is the consequence of glorifying past terrorism. Thirdly, it is important because we cannot have equivalence between those people who stood between the community and terrorism and those people who committed these dreadful acts and heinous crimes against the wider community in Northern Ireland.

I strongly support the amendments in this group. I hope that my friend the Minister will listen carefully to the very clear need to have memorialisation in an appropriate way and to have a historical, fact-based history of what happened in Northern Ireland.

[Lord West of Spithead (Lab)]

My Lords, I support Amendments 174B in the name of the noble Lord, Lord Godson. I apologise to the Committee for not having been here at the beginning of the debate, but I was buried in a Secret Squirrel Intelligence and Security Committee meeting for four hours, which I have just managed to break out of.

Almost on a daily basis, for many years through the Troubles, members of the IRA and its splinter groups went out to cause death and mayhem on the streets of Northern Ireland. On a daily basis, the police and the Army went out with the aim of looking after the security and safety of the people in Northern Ireland. There is no moral equivalence whatever, yet there seems to be a surge of information that paints a different picture of what actually happened. We need a clear, objective view of the things that happened there.

It was a dreadful period, as has been said by a number of speakers. People did not need to be involved in terrorism; they could have achieved things in other ways. This needs to be highlighted and shown, but we obviously need an objective and proper history of what happened, which people can read and have easy access to. For example, towards the end of the Troubles, the Army and police had learned lots of lessons and were doing things better, and the terrorist groups had been penetrated and all sorts of things were happening to them. These things need to be reflected in the history, so that we know what went on. It is very important that we have accurate, precise, unbiased history, so that future generations can understand this. Apart from anything else, they will understand that terrorist violence does not really achieve your aims; that needs to be laid out starkly.

[Lord Godson (Con)]

I shall speak to Amendments 174 and 174B to 176. I thank noble Lords across the Committee for their support for these amendments, including the noble Lords, Lord West, Lord Robertson of Port Ellen and Lord Carlile of Berriew, in particular. I spoke at Second Reading about the memorialisation of the Troubles and expressed my concerns that the oral history project commissioned by the Bill will be politicised and will become another weapon in the battle to recast the Troubles from an anti-state perspective that seeks to justify the actions of terrorists and to denigrate the security forces, as noble Lords have pointed out. Any attempt at equivalence between those who upheld our civic values and law and order for those three decades and those who waged Europe’s worst terrorist campaign must be robustly guarded against.

One defence against this blatant revisionism designed to retell the Troubles as a conflict which republicans had no choice but to fight is the production of an official history based on proper and considered documentary evidence. The Government have confirmed that they are now committed to such a history, but there is still no mention of it in the Bill. No doubt, there are reasons for this: after all, legislation is not needed for an official history and there is still an official history programme for which, in theory, this could be produced. However, it needs to be said now that there are major problems in excluding an official history from the scope of the Bill. The official history programme budget remains small and is not designed for a project of this scale, nor to deliver it in time for it to realise the purposes which the Government have in mind.

The subject matter of the Troubles, as has been rightly pointed out, is vast, with official documents from many government departments in London and Belfast, as well as from the agencies—the RUC previously and the PSNI, perhaps, now—and the Army. It is a task for a team of historians, supported by researchers, requiring a level of funding well beyond the parameters and experience of the current official history programme. It would hardly dent the £250 million already set aside by the Northern Ireland Office for the legacy projects set out in the Bill, as stated in the UK government response to a question from the Committee of Ministers in Strasbourg in June of last year.

An official history also needs to be published at a price that is in reach of ordinary readers and marketed to them, not least those in Northern Ireland, who deserve to be able to read it for themselves. This does not fit into the current official history programme’s publishing model, with limited print runs and prices, in some cases, of £40 for a paperback and £130 for a hardback—prices that self-evidently exclude the vast majority of the public. All this cannot be right; it would be a serious mistake and it should be rectified.

Producing an official history of the Troubles that can play its role in addressing legacy and reconciliation is possible only by placing the requirement for production of an official history within the Bill and giving the Secretary of State responsibility for ensuring that it is completed in time to be a support to the broader memorialisation strategy. Established on this basis, it will provide a major additional—and credible—strand of that memorialisation and will add much value across the whole programme. I believe that that would also be its chief legacy.

With that in mind, I am proposing, in Amendment 174B, a new section to follow Clause 46, to ensure that a public history—this being the term recommended by Sir Joe Pilling, the former Permanent Secretary at the Northern Ireland Office, in his 2009 review of the official history programme—is produced. The expression “official history” suggests that it is the Government’s view that is being put forward. Historically, that has never been the case: official histories are authored by leading historians granted access to official papers. A public history, recast as such, far better reflects what it is, and all this deserves to be in the Bill.

There are other matters of concern about the proposals for academic research set out in the Bill. A substantial role will be accorded to the UK Research and Innovation councils, which will determine the projects to be funded under it. Over the last 15 years they have financially supported the work of a small group of “transitional” academics at Queen’s University Belfast, referred to by several noble Lords. This is associated with the Committee on the Administration of Justice, a lobby group focused largely on state-perpetrated violence and abuse. This has created what Dr Cillian McGrattan of the University of Ulster, whose work has been referred to, has called

“a monopolistic capture of legacy ideas, ideology and policy within Northern Ireland”.

Not only are non-violent unionist and nationalist voices and their collective memory unwelcome, but the voices of those who were oppressed and manipulated by terrorist gangs in their own neighbourhoods on whatever side of the divide are unlikely to be sought, even though they are among the most affected communities. Were such a monopoly to be replicated in the academic research into the Troubles, as the Bill presently proposes, it would be contrary to two of the six Stormont House agreement principles: that it promote reconciliation and that it be

“balanced, proportionate, transparent, fair and equitable”.

To address these matters, I tabled Amendments 174, 175 and 176 to Part 4 of the Bill, requiring that memorialisation activity promotes a culture of anti-sectarianism, that the advisory forum is not dominated by any particular ideology or outlook and that in carrying out their duties the designated persons should have due regard to the historical records of deaths as required under Clause 24 of the Bill.

[Lord Swire (Con)]

My Lords, I crave your Lordships’ indulgence as a relatively new Member of the House—in fact, you can still smell the leather on my satchel. I came into the House only towards the tail end of last year, so I was not even here when this Bill came from the other place. As those who know me will be aware, I was a Minister of State for Northern Ireland between 2010 and 2012 and continue to have a passionate interest in not only what goes on there currently but what has happened in the past.

I am acutely aware of the divisions that a very one-sided approach can cause. As my noble friend the Minister will know—he was our esteemed special adviser at the time and was far more involved than I—I was a Minister of State during the publication of the Bloody Sunday report, on which David Cameron did extremely well, and the Finucane report we commissioned from Sir Desmond de Silva that followed in 2012. I gently point out that the Saville inquiry cost about £191 million by its end; we do not want to replicate that in this instance.

I support my noble friend’s eminently sensible amendments. I remember discussing all kinds of issues surrounding truth and reconciliation, such as whether to have a South African model—we went round and round in ever-decreasing circles. Critical for any public history of what went on is the co-operation of the bodies that were involved in some way, ranging from the DFA in Dublin and, critically, the Irish Government to the Security Service, Libya, the Church, Sinn Féin, former loyalist paramilitaries, perhaps the Royal Archives and Washington. We would want all these organisations to come up with any evidence that would contribute towards what we are all trying to get: an official version of the truth which everyone can subscribe to. Of course, not everybody will—there will be those who maintain their own versions of the truth, as we have heard today, but if we can get cross-party consent for such a history, we will move the dial on this.

I reiterate my support for the amendments. It was the 18th-century philosopher Jean-Jacques Rousseau who said:

“Falsehood has an infinity of combinations, but truth has only one mode of being”.


This public history could be just such a mode.

14:45

[Lord Bew (CB)]

My Lords, I rise to support the amendments in my name and the name of the noble Lord, Lord Godson, and to comment on Amendment 174B in particular; he has given a full exposition of the thinking that lies behind it. I would like to add one thing, and one thing only, to his exposition: the reference to the way in which the Saville inquiry created a kind of patent for this type of investigation. We definitely need a public history. I have long been an advocate of it; it is now a point in time when it is a job for a younger cadre of historian to carry out the work.

Let us stop and think what happens if we do not do that. I was a historical adviser to the Bloody Sunday inquiry, which led to the very eloquent apology given by David Cameron, to which the noble Lord, Lord Swire, referred. As a professional historian, you are often scrubbing around for documents, pleading with the Government and the Public Record Office for them. The amazing thing about the inquiry was that they were delivered to my door by trucks, and the material is still in my garage, now published by the Saville inquiry. It lays out a lot of really sensitive stuff: Cabinet minutes and discussions about Northern Ireland which were not then in the public domain—they mostly are now, but they certainly were not at the time of the inquiry —and intelligence documents about the debriefing of IRA informers and discussing the role of Martin McGuinness. These are really sensitive things which were released to me to work on. I produced an analysis which played into the statement to the inquiry by Christopher Clarke KC. In a Leverhulme lecture on contemporary British history, I was subsequently allowed to give my own take on what those documents meant.

That is why I strongly support Amendment 174B: that type of openness should be the patent for any subsequent work or research carried out. The world did not fall in; I have tried to indicate that this material was sensitive—it included discussions between the most senior military officers in the days and weeks before Bloody Sunday. This was not low-grade stuff. We did it, we published it, we took an honest decision about what it all meant—there was other evidence that Lord Saville had to consider—and we had the final conclusion, reached by David Cameron. However, if we say, “That’s it”, we will be saying that the only real public history the UK Government are interested in is—let us be clear—one of the very embarrassing moments of British history and the British state’s role in Northern Ireland, and that we are not interested in the rest of it. We will reveal stuff, and spend money and resources for that purpose, but we are not going to discuss in the round what really happened, which will inevitably lead to other occasions which are less than glorious.

None the less, it seems to me a simple proposition: if you do not support this proposal for a public history, you are saying that we need to deal only with that one particular inquiry—that is all; the rest is closed. For some reason not clear to me, it is the only time we are going to open to scholars the sensitive material which will allow—as it did—a full evaluation of the political, military and other dimensions to Bloody Sunday. It is in the interest of totality and a broader approach to history that I strongly support Amendment 174B.

[Lord Bilimoria (CB)]

My Lords, I support the noble Lord, Lord Godson, and Amendment 174B, to enshrine in law the duty of the Secretary of State to ensure the production of an independent public history of the Troubles. I came as a boy, accompanying my late father, General Bilimoria, when he was a lieutenant colonel attached to the British Army at the School of Infantry in Warminster. Even as a young boy, I can remember the high security, the fear under which everyone lived, and the sad stories of people we knew and heard about on a regular basis. Fast forward to when I came to London as a student in the late 1980s, and then when I started my business: we lived under this fear, on a constant basis, and we witnessed the atrocities and tragedies that took place right until 1998 and the Good Friday agreement.

Successive Governments—of all political parties, to be fair—have sought to maintain peace during the Troubles, and at what a price. It is important that we record and acknowledge the history of those awful and terrible years, and the Government correctly regard a public history as playing an important role in addressing the legacy of Northern Ireland’s past. However, I hope the Minister will acknowledge that there is no mention of it in the Bill. It could in theory be managed through the Cabinet Office’s official history programme, but to my understanding that programme has been in a state of limbo in recent years. It is also insufficiently resourced to produce an official history on the Troubles—a topic that is going to be vast and require a huge amount of work from leading historians with substantial research support.

If the Government intend that the public history should support other academic research support programmes proposed by the Bill, we should note that these are to be concluded within seven years. Unless this public history is properly resourced through the Bill’s memorialisation programme, it is unlikely to be able to add meaningful value to other memorialisation activities within this timeframe.

We require an authoritative history to be produced in good time and to act as an absolute gold standard, and that this thoroughly informed history be communicated to the public, being both affordable and available to everyone who wants to read it. Additionally, it is a matter of equal concern to Ireland as well.

It is crucial that we support the proposal of the noble Lord, Lord Godson, for an additional clause in Part 4 after Clause 46, and I encourage the Government to accept this change.

[Lord Bruce of Bennachie (LD)]

My Lords, this has been an interesting debate; there is clearly a desire to have an objective record of a dark and troubled time, but it is a hugely sensitive issue that is going to present major challenges.

I absolutely agree that any history that glorifies terrorism or violence has no validity and can have no place. As the noble Lord, Lord Swire, said, people have looked at different examples such as in South Africa, and the genocide memorial in Rwanda is shocking and stunning and creates an impact. We also have to recognise that we have talked about the Troubles as a defined period, as if they just ended and the Good Friday agreement started, but we know that the divisions have not gone away. You even see in the Republic of Ireland newly elected representatives shouting, “Up the Ra”, so we are still in very difficult times.

I hear the call for an objective history, but I wonder how easy it would be to produce one and to ensure that it reflects the balance. I am not suggesting that it should not be tried, but we should not underestimate the challenges involved. At the end of the day, what would be the purpose of this history? The only fundamental purpose seems to be to ensure that, right across all sections of the community, it leads to a cry of “Never again”.

[Lord Murphy of Torfaen (Lab)]

My Lords, this has been a very interesting and thoughtful debate. For 17 years before I entered the House of Commons I taught history, and I thought that it had prepared me for the various jobs that I eventually had to do. When I became Minister of State in Northern Ireland, helping to negotiate the Good Friday agreement, I realised that it had not prepared me at all for what was up against me. Month after month, virtually every day, was occupied by a history lesson, which I was not teaching but which came from the different participants in the talks—of course, there were very different versions of what had happened over the last 30 or 40 years before then.

Teaching history had also not prepared me for the extent to which—as has been touched on a number of times in this debate—almost every single family in Northern Ireland was affected by violence in some form or another, either by people or their relatives being killed or by physical or mental injury. It struck me when I went back to Belfast a couple of weeks ago for the commemoration proceedings that, within 24 hours of getting there, I talked to two middle-aged men about their own history. In both cases, coincidentally, their fathers had been murdered. One had been murdered by the IRA, and the other had been murdered by loyalist paramilitaries. That was a coincidence; I did not seek it out. It just happened. It is the background of that communal history among people from all communities in Northern Ireland which makes this task immensely difficult. I am not saying that it should not be attempted, because I think it should be, but it will not be an easy task. It should be done by ensuring that there is as much impartiality and diversity as possible, which is a difficult combination to get together, so that it is written. The sensitivity behind this is enormous.

I make a very brief reference to the noble Baroness, Lady Hoey, and what I thought was a very good speech in terms of her reference to the gay community in Northern Ireland and how it suffered in a different way. There is particular resonance in my own constituency’s history because my immediate predecessor as Member of Parliament for Pontypool was Leo Abse, who in 1967 was responsible for the legislation which decriminalised homosexuality in Great Britain. Many people never realised that it was not replicated in Northern Ireland; it took many years before that was to happen. So, I think that this should be part of the history project as well.

When the Minister winds up, I am sure he will give us some good thoughts on what we should do about an official history. He might suggest the odd historian or two—there are one or two in here who might be very good at it—but at the same time he must understand that these matters, important as they are, have to be dealt with using the utmost sensitivity.

[Lord Caine (Con)]

Once again, my Lords, I am very grateful to all who have contributed to the debate on these amendments. We have heard a number of very moving contributions over the last 53 minutes or so. I was going to say that a number of noble Lords were, in my case, preaching to the converted—I do not need to be converted at all, and I agree with many of the sentiments that have been expressed throughout the past number of minutes.

Part 4 of the Bill builds in large part on the commitments made in the Stormont House agreement of 2014, such as the oral history initiative and new academic research, to help promote reconciliation and a better understanding of the past. A number of noble Lords will be aware that I was involved in all 11 weeks of negotiating that agreement in 2014. It underlines the importance of this work being carried out free of political influence, which has been one of our guiding principles—in fact, it has been our overriding guiding principle throughout.

To reiterate, in approaching these issues over many years, both this Government and I have been very clear from the outset that we will never accept any attempt to rewrite history in ways that seek to denigrate the contribution of the Royal Ulster Constabulary and our Armed Forces—the overwhelming majority of whom served with distinction and honour, and to whose dedication and courage we owe an enormous debt of gratitude. As I have said many times in this House and outside it, without their service and sacrifice there would have been no peace process, as was acknowledged by my right honourable friend the Prime Minister during his recent speech at the Whitla Hall in Belfast to mark the 25th anniversary of the 1998 agreement.

Politically motivated violence in Northern Ireland, whether it was carried out by republicans or loyalists, was never justified, and as the noble Lord, Lord West, and my noble friends Lady Foster and Lord Weir made clear, there was always an alternative to violence in Northern Ireland. We will never accept any suggestion of moral equivalence between the terrorists who sought to destroy democracy and those who in many cases paid the ultimate sacrifice to ensure that the future of Northern Ireland would only ever be determined by democracy and consent.

15:00

My noble friend Lord Dodds of Duncairn and the noble Baroness, Lady O’Loan, spoke about glorification, as did other noble Lords. We debated amendments on glorification on the third day of Committee, when I undertook to continue discussions with noble Lords. Of course I will do that and see whether we come to some agreement on changes to the Bill in that respect.

As I have acknowledged in this House before, we might never agree on a common narrative, as my noble friend Lord Swire pointed out—I look back fondly to my time with him in the Northern Ireland Office when he was Minister of State and I was a very lowly special adviser. Although we might not agree on a common narrative, what we can do, what we tried to do at Stormont House and what we are trying to do through the Bill is to put in place some structures that will help Northern Ireland move forward and which can encourage and promote a greater degree of understanding and reconciliation.

In that respect, I am aware of recent polling that suggests that only around a quarter of the population in Northern Ireland consider existing Troubles-related memorialisation strategies and memorials themselves to be a positive influence. The strategy in Part 4 seeks to address this by remembering those who were lost and ensuring that the lessons of the past are not forgotten.

As is highlighted in Amendment 173 in the name of my noble friend Lord Dodds of Duncairn, it is vital that victims and survivors have an opportunity to contribute fully to this process and a memorialisation strategy. That is why Clause 44(6) and (7) already require the organisations taking forward the strategy to provide opportunities for all interested persons—including victims and survivors, or those groups representing them—to contribute by sharing their views on existing initiatives or by suggesting new ones.

Clause 44(4)(a) further requires those expert organisations responsible for delivering the strategy to consider how initiatives promote or will promote reconciliation in Northern Ireland. This is intended to exclude initiatives that glorify terrorism or which are sectarian in nature from being promoted as part of this strategy. I hope that that offers some reassurance to noble Lords who have spoken.

For that reason, while I fully agree with the principles behind Amendments 172 and 173 in the name of my noble friend Lord Dodds of Duncairn, and Amendment 174 in the name of my noble friend Lord Godson, I do not think the additions are strictly necessary. However, I can assure noble Lords that my department will work with the relevant organisations to ensure that the initiatives in Part 4 are established in ways that are consistent with the overarching aim of promoting reconciliation, and that these important points are reflected in any terms of reference or guidance material. I am also happy to continue engaging with noble Lords and other relevant parties on their specific concerns and on possible instances where we can strengthen these key objectives.

On a similar note, while I support the sentiment behind Amendments 174A and 174ZA in the name of the noble Baroness, Lady Hoey, I respectfully suggest that they are not required. The provisions of the Bill as drafted would not preclude relevant research into LGBT experiences during the Troubles—I join her in paying huge tribute to our mutual friend Jeff Dudgeon for the work he has done on this over many years—or indeed those of other parts of the community, should the academic community feel there is a particular need. Clause 48 also requires that the measures in Part 4, including academic research, take into account a variety of views of the Troubles. However, I am aware of the concerns that have prompted Amendment 174ZA and am open to discussing the issue further with the noble Baroness. We are committed to ensuring that this work is implemented in a way that is rigorous and fair and not biased in any way towards those with a particular political motivation to rewrite history.

I turn to issues raised by my noble friends Lord Godson and Lord Bew. Amendment 176 would require the relevant organisations in Part 4 to have regard to the historical record produced by the ICRIR. Again, while I fully sympathise with the aim of this amendment, the historical record cannot be produced until at least the fifth year of the commission’s operation, when the investigative case load will be finalised. Our intent is to establish the measures in Part 4 well in advance of that. Similarly, Clause 49(2)(b) already states that, in establishing an advisory forum, due regard must be given to the need for it to have a balance in terms of cross-community membership. Therefore, Amendments 175 and 176, tabled by my noble friend Lord Godson, are not necessary. However, I would be more than happy to discuss this issue further, as I share his concern to ensure that the work in Part 4 is not hijacked by any particular political narrative. I am entirely in sympathy with his objectives around this issue.

I am particularly grateful for the debate generated by my noble friend Lord Godson’s Amendment 174B, which was supported by a number of noble Lords across the House, about including a public history of the Troubles in the Bill. I am fully aware of my noble friend’s long-standing interest in this issue. I well remember a lunch at Hillsborough Castle back in 2010 or 2011, which my noble friend attended with the then Secretary of State. I am not sure whether my other noble friend was present on that occasion, but it included a number of academics, and my noble friend raised the very idea at the time some 11 or 12 years ago that he is pursuing through this amendment. So I pay tribute to his work around this issue and his enthusiasm for taking it forward.

As he and other noble Lords will be aware, alongside the introduction of the Bill in May 2022, the Government announced their intention to commission such a history as a separate and complementary project. The intention has always been for this public history to be established through the Government’s long-running and established official history programme, which dates back to 1908. In response to the noble Lord, Lord Bilimoria, and my noble friend Lord Godson, the funding would be expected to come from the £250 million set aside for legacy mechanisms, rather than the Cabinet Office’s official history programme. Noble Lords will be aware that the programme grants historians special privileges to access all relevant information in government records and will provide an independent, authoritative examination of the Government’s policy towards Northern Ireland throughout the period of the Troubles.

I am happy to restate the Government’s firm commitment to taking this public history forward. Work on this is ongoing and I hope to provide further important detail in the coming weeks. On this basis, the amendment to the Bill is not strictly necessary, although I will reflect further and discuss this with my noble friend Lord Godson before Report.

I also assure noble Lords that this project will be steered by expert advice, including the important recommendations made in the Pilling report. On that note, I thank my noble friend Lord Bew for his ongoing assistance and advice. He gave us a fascinating insight into elements of the Saville inquiry, to which he was the historical adviser. My noble friend Lord Swire referred to David Cameron’s speech on Saville, which I had a small part in drafting. Overall, I think we did a pretty good job on that day.

Finally, there are technical Amendments 186 and 190 in my name. All that they seek to do is define the expressions of First Minister and Deputy First Minister for the purposes of the Bill. I hope that there is no issue with that.

In conclusion, we can all agree on the value of the measures in Part 4 of the Bill in principle and about the importance of promoting and encouraging reconciliation both for individuals and across society as a whole. On that basis, while committing to further engagement with all interested noble Lords between now and Report, I politely invite them not to press their amendments at this stage.

[Lord Dodds of Duncairn (DUP)]

My Lords, on behalf of noble Lords who have taken part in this debate, I thank my noble friend the Minister for his response. In light of the fact that he has, as usual, promised to go away and reflect on the amendments, including those in my name and those of my noble friends, and to have further discussions, I am very content to withdraw Amendment 172.

Amendment 172 withdrawn.

Amendments 173 and 174 not moved.

Clause 44 agreed.

Clause 45 agreed.

Clause 46: Academic research

Amendments 174ZA and 174A not moved.

Clause 46 agreed.

Amendment 174B not moved.

Clauses 47 and 48 agreed.

Clause 49: The advisory forum

Amendments 175 and 176 not moved.

Clause 49 agreed.

Clauses 50 and 51 agreed.

Amendment 177 not moved.

Clause 52: Consequential provision

Amendments 178 and 178A not moved.

Clause 52 agreed.

Schedule 12: Amendments

Amendments 179 to 184 not moved.

Schedule 12 agreed.

Clause 53 agreed.

Clause 54: Interpretation

Amendments 185 to 197 not moved.

Clause 54 agreed.

Clauses 55 and 56 agreed.

Clause 57: Commencement

Amendment 198 not moved.

Clause 57 agreed.

Clause 58 agreed.

House resumed.

Bill reported without amendment.