Northern Ireland Troubles (Legacy and Reconciliation) Bill
Wednesday 21st June 2023
(1 year, 4 months ago)
Lords ChamberNorthern Ireland Troubles (Legacy and Reconciliation) Act 2023 View all Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 37—R—I(Rev) Revised marshalled list for Report - (20 Jun 2023)
Lord Caine
Member’s explanatory statement
This provides that the ICRIR will have between one and five other Commissioners (in addition to the Chief Commissioner and the Commissioner for Investigations), with the actual number to be decided (as currently) by the Secretary of State under paragraph 6 of Schedule 1.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)
My Lords, before I begin, I will take a moment to mark, on the longest day of the year, the annual day of reflection to remember the losses experienced by so many during the Troubles. It is also an opportunity to remind ourselves of how far Northern Ireland has come since the most difficult days of the Troubles; to remember the steps that have been taken since 1998 to build a more peaceful, prosperous and stable Northern Ireland; and to ensure that the experiences and horrors of the Troubles are never repeated.
I remind the House that this is Report, and the Bill has been debated extensively in Committee. I have held countless meetings with noble Lords over recent weeks and months. In accordance with the Standing Orders of the House, I will seek to be brief, and I hope that other noble Lords will attempt to follow suit.
I have always maintained that central to the effective delivery of this legislation is the need for an independent body to carry out reviews and, where an individual co-operates properly with the body, to grant immunity from prosecution. The Government fully recognise the need for the commission to have credibility, expertise and legitimacy so that effective investigations can be carried out and information provided to families as soon as possible.
As I mentioned, we debated the independence of the commission extensively in Committee, and I have sought to address as many concerns as possible. On the final day of Committee, I announced the intended appointment of the former Lord Chief Justice of Northern Ireland, Sir Declan Morgan KC, as the chief commissioner, having obtained input from the Lord Chief Justices of Northern Ireland and England and Wales, and the Lord President of the Court of Session in Scotland.
To allay further concerns around the integrity and independence of the immunity process, I tabled Amendments 79 to 83, placing a duty on the commission to produce guidance related to determining a request for immunity. This will replace the power that, in the Bill as currently drafted, sits with the Secretary of State for Northern Ireland. It was the subject of some debate, as noble Lords will recall.
Alongside this, I retabled Amendments 132, 133 and 137 to 140, seeking to ensure that there is international expertise among the commissioners and requiring consultation with the relevant senior judge where the appointee no longer holds high judicial office. This is complemented by Amendments 1 and 131, increasing the number of possible commissioners from five to seven, which helps to ensure that there is an appropriate range of skills, experience and independent scrutiny across the commission.
Amendments 141 and 142 ensure that terms of appointment of the commissioners do not exceed a period of five years. In our view, that will facilitate the periodic refreshment of commissioners to provide new perspective, impetus, views and specialist expertise, while ensuring that there is also continuity. These amendments will strengthen the independence of the commission. I beg to move.
Lord Murphy of Torfaen (Lab)
I associate myself with the Minister in remembering those who suffered violence over the last number of years and thank him for the way in which he has engaged with Members of this House and beyond. His amendments generally improve the Bill, but I suspect that he will find this evening that they do not go far enough for those with fundamental objections to the Bill. We shall certainly not vote against them today or Monday, as they do, as I say, improve it.
The Minister made reference to Sir Declan Morgan, who has been appointed as the chief commissioner designate—a clever move on the Government’s part, because he is a man of huge integrity, experience and expertise. There is some doubt as to whether it should have been announced quite this early, but I understand why the Government decided so to do.
I am sure that this evening we will hear a number of important points on the many issues, from immunity to prosecution and other matters. I hope that the House will be able to give consideration briefly to those points.
Baroness Suttie (LD)
I echo a lot of the comments that the noble Lord, Lord Murphy, has just made, and the Minister’s comments about remembering. It is very important that we never forget all those impacted and killed by the Troubles.
I too start by thanking the Minister for the constructive way in which he has engaged on the Bill, given the constraints that he faces at the other end of the building. He has always shown himself willing to meet and discuss, and I know that he has dedicated a considerable amount of time to the Bill, including during the summer holiday last year, perhaps. For that we thank him.
Again, like the noble Lord, Lord Murphy, most of us feel that, although the amendments are to a very large degree to be welcomed, they are not game-changing; they have not really changed the Bill to the extent to which many of us would have liked to see. I am sure that we will return to that issue at later stages, but this group is a positive example of amendments that these Benches are happy to welcome.
Lord Caine (Con)
I am very grateful to the noble Lord and noble Baroness for their support and kind words, and I hope that this year I might actually get some time off during the summer. That might be the triumph of hope over experience, but you never know. I take great heart from the comments of the noble Lord, Lord Murphy of Torfaen, when he describes the Government as having made a “clever move”. I welcome that, and I am very grateful. The amendments that I have proposed will strengthen the independence of the commission.
Lord Caine
“(3A) The principal objective of the ICRIR in exercising its functions is to promote reconciliation.”Member’s explanatory statement
This would impose the principal objective of promoting reconciliation on the exercise of the ICRIR’s functions.
Lord Caine (Con)
My Lords, at Second Reading I committed to carrying out extensive engagement, which has just been recognised by the noble Lord and the noble Baroness—and I hope it is recognised more widely across the House that this is exactly what I have done. The amendments that I am bringing forward in this group seek to take on board and respond to a number of concerns raised in the House and elsewhere, as far as possible.
The Government remain committed to delivering better outcomes for those most affected by the Troubles by providing more information in a more timely manner to more people than is possible under current mechanisms. This is a hugely difficult task, and the legislation—as I have admitted both in this House and in the media—requires some finely balanced political and moral choices that are challenging for many, myself included. We must be realistic about what we can deliver. I have reflected on how we can strengthen the Bill and I am thankful for the many conversations that I have had on this, including with the Commissioner for Victims and Survivors in Northern Ireland, Ian Jeffers. While we have our differences, I am grateful for the way in which he has always conducted our meetings. It is widely recognised that the current mechanisms for addressing legacy issues provide satisfactory outcomes to very few of those affected, leaving far too many victims and families—including many of those who died while serving the state—empty-handed.
Amendments 2, 3 and 7 to Clause 2 in my name place the commission, when exercising its functions, under a duty to have regard to the general interests of persons affected by Troubles-related deaths and serious injuries. These amendments also provide that, in exercising its functions, the commission’s principal objective is to promote reconciliation. It is our view that putting more information in the public domain via an effective information recovery process, subject to the exceptions set out in Clause 4, will help to do that. These amendments seek to strengthen our commitment to victims, provide greater direction to the commissioner and respond to the debate in Committee, where your Lordships raised concerns over the extent to which the commission would take a victim-centred approach to its work.
Amendment 85 will place the commissioner under a new duty to offer victims and their families the opportunity to submit personal impact statements setting out how they have been affected by a Troubles-related death or serious injury. Amendment 86 creates a corresponding duty to publish those statements, subject to limited exceptions. This will give families a voice in the process. As the noble Baroness, Lady Smith of Basildon, put it in Committee:
“Without that, this will be one of the biggest failures of the Bill”.—[Official Report, 31/1/23; col. 646.]
That is something that we are attempting to rectify. The new duty corresponds to recommendations made by the Commissioner for Victims and Survivors, Ian Jeffers, and is complemented by a separate duty to publish the statement if the individual so wishes. I am also grateful to the noble Baroness, Lady Suttie, for raising this amendment in Committee.
Baroness Ritchie of Downpatrick (Lab)
My Lords, I thank the Minister for his explanation of the amendments in this group about making the Bill more victim-centred. Undoubtedly, the most important people in all this are the victims. Many of them have passed on and their families—some of whom have passed on, through the passage of time—have not seen justice and truth: the very things they were looking for. I acknowledge what both the Minister and my noble friend Lord Murphy said, on the summer solstice, the longest day of the year, which is the day that victims of the Troubles in Northern Ireland are remembered.
In relation to Amendment 2, can the Minister, in his wind-up, explain the practical application of the amendment on the operation of the ICRIR. How will the amendment really promote reconciliation in the exercise of those functions, given that the Bill has been opposed by legal representatives, such as the European Council of Ministers, political representatives from the Irish Government and all the political parties in Northern Ireland, and the victims and survivors—a wide spectrum?
Lord Weir of Ballyholme (DUP)
My Lords, first, my colleagues and I associate ourselves with the earlier remarks noting and indeed supporting real victims of the Troubles. It is important that they are at the forefront of our mind as we debate all these amendments today.
I acknowledge that the amendments before us in this group all represent very small steps forward. They are small ameliorations and small improvements. It is difficult to quibble with their exact wording; there is nothing that we would seek to divide on in this group of amendments. However, by their very nature, they are symptomatic of the wider problems with this Bill. Whatever small improvements are made, they cannot turn the irreconcilable and the unacceptable into something that is acceptable and worthy of legislation. They omit some of the most important aspects. Indeed, part of the problem with these amendments is that they have sins of omission, rather than sins of commission. What do I mean by that? If we first take Amendment 2, we see that it introduces the concept of reconciliation, which is on the face of the Bill, directly into the work of the commission, but there is a danger of that being seen as tokenistic. At no stage does the Bill actually define what the objectives of reconciliation are. There is a danger that this has been thrown in simply so that there can be a direct reference to reconciliation, but with no meat put on the substance.
The other, more fundamental, issue regarding reconciliation is that many victims will see this legislation as being entirely unacceptable, taking away from them any prospect at all of justice and granting immunity to those who carried out some of the most heinous crimes during the Troubles. Therefore, the idea of reconciliation being at the heart of the Bill while immunity from prosecution remains is a central paradox of the Bill that is not properly addressed by Amendment 2.
On Amendment 3, the weakness is in the reference to the
“general interests of persons affected”
by the Troubles. Having a victim-centred is something that no one would disagree with but, in this wording, no distinction is drawn, for example, between a perpetrator and a victim. Someone who, for example, could have suffered injuries or death as a result of their own terrorist actions is put on the same plain as those innocent victims. I think that, again, there has been a problem of successive Governments failing to tackle this particular problem.
Finally, on Amendment 85 and 86, the involvement of victim statements is generally welcomed but, again, this belies the flaws within this process as a whole. Victim statements are commonplace within the criminal law and give an opportunity for those who have suffered directly to have their views taken into account. However, with that, the norm is that a victim impact assessment is taken into account by the courts to establish, for example, whether a tariff should be greater or less than would otherwise be imposed. The views of the victims can genuinely be taken into account. In this case, however, while it is welcome that those views will be published, it will have no impact whatever on the potential immunity. Therefore, the question for many victims will be: what is the point if whatever they say has no impact whatever?
We do not oppose these amendments and will not be dividing on them, but they fundamentally do not change the flawed nature of this Bill.
Baroness O’Loan (CB)
My Lords, today, the Day of Reflection, was proposed many years ago by Healing Through Remembering. It is a very symbolic day, as noble Lords have noted, for families of victims, and we tonight, as they remember the dead and support the injured, are debating a Bill which takes away the rights they have under the law. They do not want the Bill; it is important to say that.
I thank the Minister for the amendments he has tabled that reflect my earlier comments during the passage of the Bill. On behalf of the noble Lord, Lord Hogan-Howe, who cannot be here today, I thank him for the meetings he held with the noble Lord and with me.
It may seem desirable—admirable, indeed—that the Minister has introduced a requirement in government Amendment 2 that the principal objective of the ICRIR in exercising its functions is to promote reconciliation. However, it seems to me that there may be a contradiction between the promotion of reconciliation and the conduct of an investigation. How does one conduct an independent, impartial investigation with the principal objective of promoting reconciliation? Does that objective detract from the duty to investigate fearlessly, regardless of what the outcome of an investigation may be, so that people can be assured that the Government act in accordance with their obligations under the rule of law?
Investigation can lead to the exposure of matters that were hitherto unknown or unconfirmed but which may demonstrate, for example, that a named individual or individuals were responsible for a particular atrocity, and that can cause massive concern, particularly in circumstances in which terrorist perpetrators regard their activities as justified by circumstances, or where state actors did not take action to prevent a planned murder of which they were aware. It may certainly lead to hostility and distrust, rather than promoting reconciliation. I do not know what the answer to this is, but I think there is a conflict there, or a dissonance.
I welcome the two government Amendments 85 and 86, which provide for victim statements and the publication of those statements. The Government have yet to provide, as the NIHRC has stated, that victims or family members are informed when an individual has applied for immunity. Victims or family members are not currently expressly required to be informed of the outcome of the immunity request. There is no express requirement for the independent commission to provide reasons why it is or is not granting immunity, and there is no proposed option for an individual requesting immunity, or an interested person, to appeal a decision on immunity made by the ICRIR. In short, the Bill still does not comply, in this context, with the requirements of the victims’ rights directive in its provision for victims.
Lord Morrow (DUP)
My Lords, the Minister was at pains to point out that Amendment 2 is all about reconciliation, yet no matter how much you search through the Bill, there is no definition of reconciliation in it. I am having difficulty, as are my colleagues, in being reconciled to the Bill and to have reconciliation with it, but I hope the Minister will—and I am sure he will—when he is winding up on Clause 2, give his definition of reconciliation. It seems to me that reconciliation means different things to different people. I am sure he will have observed that all the victims groups that have spoken about the Bill have not spoken in favour of it; therefore, I think he has a job to do. However, as my noble friend Lord Weir has said, we will not be dividing the House on this, but I earnestly ask the Minister why there is no definition of reconciliation in the Bill.
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, I know my noble friend Lord Weir touched on this, but Amendment 3 requires the ICRIR to
“have regard to the general interests of persons affected by Troubles-related deaths and serious injuries”.
I ask the Minister to clarify: have the Government failed conclusively to rule out perpetrators, including those who died or were injured at their own hand, from the scope of this duty which is now being placed upon the ICRIR? It would certainly be wrong that those who have been perpetrators and died or were injured at their own hand should be placed on the same level as those who are innocent victims.
Baroness Suttie (LD)
My Lords, I place on record my thanks to the Minister for introducing Amendments 85 and 86, which, in essence, as he has said, are the same amendments that I tabled in Committee and were recommended by the victims’ commissioner, Ian Jeffers. It is a very welcome and common-sense change to the Bill, allowing for individuals affected by death and other harmful conduct to provide and publish personal statements to the ICRIR. I am very grateful that he is willing to make this small but important change, notwithstanding my earlier comments about the bigger picture of the Bill, including, in particular, immunity and other issues that we will get to later this evening. I will be very interested to hear the Minister’s response to the important points raised by the noble Baroness, Lady O’Loan, about the potential conflict between reconciliation and investigation.
Lord Murphy of Torfaen (Lab)
My Lords, I agree with every word spoken by every Member of this House who has taken part in this very brief debate. First, I thank the Minister for certainly improving what was there before—there is no question about that—but it does not, of course, go to the heart of the issue of why it is that victims, victims groups and the victims’ commissioner are probably the people most opposed to the Bill as a whole. Putting the word “reconciliation” in it does not mean to say it makes it any better, because, as my noble friend Lady Ritchie and the noble Lord, Lord Weir, said, there is a vagueness about the definition, so it does not actually mean very much at the end of the day.
What is purposeful, I think, is the fact that there are going to be victim statements. I think that is a distinct improvement, but ultimately the reason that victims and their families and their advocates in Northern Ireland are opposed to the Bill is because of the proposals on immunity, which we will reach a little later this evening. However, the Opposition will not oppose the amendments.
Lord Caine (Con)
My Lords, again, I am very grateful to those who have participated in the admirably short debate on this group of amendments.
Returning briefly to the issue of personal impact statements, as I set out, these are designed to give victims and families a voice in the process, and an opportunity to set out how they have been personally affected by the Troubles. The noble Lord, Lord Weir of Ballyholme, referred to the way in which the amendment is drafted and the fact that the victim’s impact statement will not be part of the immunity process. The Government’s clear view is that determinations for applications for immunity must be solely a matter for the chief commissioner of the new ICRIR to determine within the framework of the legislation. The commission will decide, of course, to what extent families should be involved in the immunity process more generally.
The noble Baronesses, Lady Ritchie and Lady O’Loan, touched on the issue of the potential conflict between the duty on reconciliation and investigations. As the amendments set out, the primary objective of reconciliation does not contradict the functions of the ICRIR—I shall say “the commission” for short—which are focused on the provision of information to families and the powers of the ICRIR will facilitate that. There is no question of the duty getting in the way of investigations. Certainly, when it comes to family reports, the only thing that will not form part of the final family report will be those that are referred to in Clause 4 regarding national security and the duty to keep people safe and secure and not to put people’s lives at risk.
In response generally to the noble Baroness and the noble Lord, Lord Morrow, I touched on the issue of reconciliation way back at Second Reading in November, when I said that no Government can legislate to reconcile people or to impose reconciliation on people. However, we can try to put in place as many measures as possible to promote reconciliation. In my view, reconciliation in Northern Ireland means a place where society is peaceful and prosperous and which most people who live there would be proud to call home. I hope that deals with some of those points.
On the point made by the noble Lords, Lord McCrea and Lord Weir, the Government have never accepted any kind of moral equivalence between those who injured themselves at their own hands and the victims of terrorism in Northern Ireland. We made it quite clear when we passed the victims’ payment scheme in this House a few years ago that we did not accept any equivalence and there is certainly no intention to do so here.
On that note, I hope that I have managed to respond to a number of points and beg to move.
Lord Caine
“(4A) In exercising its functions, the ICRIR must have regard to the general interests of persons affected by Troubles-related deaths and serious injuries.”Member’s explanatory statement
This would require the ICRIR to have regard to the interests of various categories of person when carrying out its functions.
Lord Caine
“(4A) At least three months before the start of each financial year the ICRIR must—(a) produce and publish a work plan for that year, and (b) give a copy of the plan to the Secretary of State.But this duty does not apply in relation to any financial year which starts before 1 April 2025.(4B) A work plan must deal with the following matters—(a) the caseload which the ICRIR is expecting;(b) the plans which the ICRIR has for dealing with its caseload;(c) the plans which the ICRIR has for engaging with persons entitled to request reviews of deaths and other harmful conduct;(d) policies which the ICRIR is planning to introduce, review or change;(e) such other matters as the ICRIR considers appropriate.”Member’s explanatory statement
This would require the ICRIR to produce a work plan for each financial year before the start of the year.
Lord Caine (Con)
My Lords, I will again try to be mercifully brief given that, with one technical exception, I have retabled these amendments from Committee, where they were debated extensively. They are designed to amend operational matters in the legislation. I hope noble Lords will bear with me as they are very technical.
Amendments 4, 5, 6 and 8 to Clause 2 and Amendment 125 to Clause 54 ensure that the commission produces and publishes a work plan for each financial year. This will ensure that the commission has properly considered and planned for its expected caseload in each financial year. The work plan will set out the commission’s engagement strategy and any plans to make policy changes. This will ensure that it has properly considered and planned for its expected caseload.
Amendment 127 is entirely technical in nature. It seeks to change the definition of “reserved provision” in regard to this legislation, reflecting the fact that Section 8(b) of the Northern Ireland Act 1998 requires consent to a Bill for an Act, rather than to the Act itself. This will simply tidy up the drafting.
Amendment 130 to Schedule 1 will require the commission to keep accounts, prepare an annual statement of accounts and provide that statement to the Secretary of State and the National Audit Office, which will be under a duty to audit the commission with audits laid in Parliament. Amendment 134 to Schedule 1 deletes a reference to a commissioner having been removed from office on grounds of ill health, as ill health is not a ground for removal from office, as is standard for such posts.
Amendment 135 to Schedule 1 provides a definition for being insolvent in regard to this legislation. Amendments 136 and 143 update the provisions about the application to the commissioners and ICRIR officers of the law relating to the rehabilitation of offenders, which ensures that the Bill reflects the current approach taken in law.
Amendment 144 to Schedule 1 ensures that the commissioner for investigations, who is also an ICRIR officer, falls only within paragraph 14 of Schedule 1, as a commissioner, and not also within paragraph 20 of that schedule as an ICRIR officer. Paragraphs 14 and 20 make equivalent provision to ensure that the prohibitions on trade union activity which govern the police do not apply to the ICRIR, which I am sure noble Lords opposite will welcome.
Baroness O'Loan (CB)
My Lords, most of the amendments in this group are unexceptional. I have tabled Amendments 21 and 26 to Clause 9, which provides that close family members will have to apply to have their cases reviewed. There is a definition of “close family members” which effectively excludes those who are not parents, spouses, partners, children, brothers, sisters, half-brothers or half-sisters. For example, it does not include cousins, aunts and grandparents. This does not reflect modern families, who are much smaller than previously, where the deceased may be an only child with no issue or where the only surviving relatives are more distant but may be close.
In such cases, while a family member can make a request, the decision over whether it is appropriate will be made by the investigation commissioner. My Amendments 21 and 26 to Clause 9 remove from them that power to decide whether it is appropriate for a family member to make a request and leave it where it should belong—with the family member in question. This would be a victim-informed approach and go some way to meeting the requirements of the victims’ directive.
I hope the Minister will see that these two amendments are simply designed to give effect to the rights of victims, taking a victim-centred view of those who might not fit within the definition of a close family member but might well have been very close to the deceased person—even if they have felt forced by circumstances such as a threat by paramilitaries to leave Northern Ireland and therefore have not been able to return or have found it too traumatic to do so.
To respond to the Minister’s comments on the removal of access to communications data and the removal of the RIPA scheduling which was originally provided for in this Bill, this is not such a remote matter as he appears to think. Those powers were used most recently in Operation Kenova, which is investigating matters that occurred during the period covered by this Act. Those powers were used and should remain in the Bill.
Lord Murphy of Torfaen (Lab)
My Lords, there are a lot of technical amendments to this and obviously we support those, as we support the other amendments in this group. Annual reports, work plans—all very sensible—but, in the nature of things, this is a relatively small part of this controversial Bill, and we will not oppose the amendments.
Lord Bew (CB)
My Lords, I wish to return to something I focused on in Committee: the role of the ICRIR and its officers. Tomorrow, I have the honour of addressing former Chief Constable Boutcher’s staff who are working on the Kenova inquiry. There are some 80 staff and a budget, so far, of over £40 million. We must have in our mind’s eye the criteria for people who work for the ICRIR. The concerns I had in the past have been greatly mollified by the fact that Sir Declan Morgan will now play such a key role in this new body. It is important to recall that there is no obstacle to employment in the ICRIR for those officers with, for example, HET experience, who did a good job, and former officers of the PSNI, and I am simply asking for reaffirmation of this from the Minister. We have to think about the complexity of issues, such as expense. Kenova is running to a cost of £40 million now, dealing with only a tiny percentage of the case load that the ICRIR might have, and therefore we do need experienced officers who know the ground working in this area. The Minister has been helpful in the past, but I am looking for a degree of reassurance.
Baroness O’Loan (CB)
Before the noble Lord sits down, I have a question. He talks about the tiny proportion of the cases which are dealt with by Operation Kenova. The reality is that Operation Kenova has dealt with over 200 cases of the 1,000 which currently remain to be dealt with. My understanding is that the budget of the ICRIR is to be £50 million a year, which will come to £250 million, so the approximate cost will be very much the same.
Lord Bew (CB)
I am grateful to the noble Baroness for the intervention. I did not express it quite correctly; I was thinking of the likely number of prosecutions, which is a substantially lower number. She is right to make the correction.
Lord Caine (Con)
I am grateful to noble Lords for their contributions. I turn first to Amendment 10 to Clause 4, in the name of the noble Lord, Lord Bew. The legislation is clear in relation to the powers provided to the ICRIR to assist in the performance of its functions. That includes Clause 5, in relation to disclosure, and Clause 6, which provides for ICRIR officers to have the powers and privileges of a constable. Clause 14 provides the ICRIR with the power to compel individuals to provide information, a power which is not provided to police officers but, in the Government’s view, is necessary to ensure that the commission can deliver effective legacy mechanisms while complying with our international obligations. Although I am sympathetic to the intent behind the amendment, I suggest that it is not necessary.
In respect of the noble Lord’s comments about the employment of former Royal Ulster Constabulary officers—former members of the Historical Enquiries Team—there is absolutely no prohibition, as I made clear in earlier comments in Committee. I think he is aware of my steadfast support and gratitude for the service and sacrifice of the Royal Ulster Constabulary over many years.
I turn to Amendments 21 and 26 in the name of the noble Baroness, Lady O’Loan. We had an extensive discussion about this issue yesterday afternoon so she will be unsurprised by my response. In our view, the Bill’s definition of a “close family member” is already extensive and covers spouses, civil partners, cohabitees, children, parents and siblings, as well as stepchildren, step-parents and half-step-siblings, and the ICRIR must accept a request for a review from any of these individuals. Therefore, this is a provision which is unlikely to be required in the majority of cases, given the comprehensive scope of the definition of close family member. However, where no close family member exists, it is right that the ICRIR has discretion—I repeat, discretion—to consider whether that request is appropriate. This could, for example, be considering the nature of the relationship to the deceased by the person requesting the review, both in terms of how they are related or the reality of that relationship. Factors such as whether they were estranged or were closely involved in the individual’s life could be relevant.
In respect of the comments made by the noble Baroness about data, we discussed this extensively. I am afraid I do not know the details of the circumstances in which Kenova has made the request to which she referred, but I think the Government’s position on this is solid.
Lord Caine
“(5) No later than six months after the end of each financial year, the ICRIR must— (a) produce and publish an annual report in relation to that year, and(b) give a copy of the annual report to the Secretary of State.(5A) An annual report must deal with the following matters—”Member’s explanatory statement
This amends the existing provision about annual reports so that it takes the same form as the new provision in the amendment in Lord Caine’s name about work plans (including by imposing a time limit for producing the reports and requiring the reports to relate to financial years).
Member’s explanatory statement
This is consequential on the amendment in Lord Caine’s name which amends the existing provision about annual reports.
“(9) In this section “persons affected by Troubles-related deaths and serious injuries” means—(a) family members of persons whose deaths were caused directly by conduct forming part of the Troubles (and the reference to those deaths has the meaning given in section 9(9)), (b) persons who suffered serious physical or mental harm that was caused by conduct forming part of the Troubles, and(c) family members of persons who suffered such harm and have subsequently died.”Member’s explanatory statement
This is consequential on the amendments in Lord Caine’s name about the duty to have regard to certain persons’ interests.
“(9) In this Act “financial year”, in relation to the ICRIR, means—(a) the period which—(i) begins with the day on which this section comes into force, and(ii) ends with the following 31 March; and(b) each subsequent period of one year which ends with 31 March.”Member’s explanatory statement
This is consequential on the amendments in Lord Caine’s name about work plans and annual reports.
Lord Eames
“ICRIR: immunity consent
(1) The ICRIR process must have as its central feature the requirement for a close family member of a deceased person to grant consent prior to the granting of specific immunity for deaths caused by a troubles-related offence, subject to section (Objections to request for immunity)(3).(2) If there is an objection raised to a request for immunity in relation to deaths then the ICRIR may not exercise any powers in section 14, 15 or 16, subject to section (Objections to request for immunity)(3).(3) The Chief Commissioner may still conduct a review under section 9(3) to (6) if they deem it to be proportionate and in the public interest.(4) Nothing in this section affects the operation of section 23.”Member’s explanatory statement
This provides for the victim’s consent to be central to the process. In the absence of such consent in regards offences causing death, there can be no immunity (subject to subsection (3) of the new clause in Lord Eames' name after Clause 12). If there is no consent, it is also the case that the ICRIR may not supply information or produce a public report, but nevertheless may still exercise the power in section 23 to refer to prosecutors.
Lord Eames (CB)
My Lords, I rise to address Amendment 9, recognising the consequential relationship of Amendments 20, 27, 29, 59, 61, 62 and 69. In Committee, I frequently reminded noble Lords of the centrality of the urgency of victims’ needs. I also referred to my personal experience, over my adult life, of being in close contact with so many victims. No later than this week, knowing this debate was taking place, I have been reminded of this by two families who are not members of any organisation for victimhood, but who quietly and with dignity carry the wounds of their victimhood in the privacy of their own homes.
It is that morass of emotions which prompted me to table this amendment, because back home in Northern Ireland there is almost universal opposition to this Bill. The more you think about it and try to analyse it, you come up with a conclusion that, first, we differ on what reconciliation means; secondly, any attempt through legislation to define reconciliation is going to run into a multitude of difficulties; and, thirdly, the reconciliation in the Bill is, for many of us who have experience of the Troubles, nothing short of hypocrisy. My amendment seeks to recognise the need of victimhood not just to be recognised as a term but to be experienced in the process of reaching what the Bill is set out to aim for: reconciliation with a small R.
Baroness Hoey (Non-Afl)
My Lords, as a signatory to Amendment 9 in the name of the noble and right reverend Lord, Lord Eames, and the amendments that follow from it, I support it very strongly. Realistically, we know that the Government are going to push the Bill through, so rather than trying to wreck it completely, it is important that we try to make it as good as it can be.
Fundamentally, Amendment 9 seeks to make what is imperfect legislation that little bit less imperfect. It would do so by at least making the immunity process absolutely victim centred. To put it simply, save for exceptional circumstances which we have set out in the amendment—such as a disagreement among family members as to whether to consent—the core principle will be that an immunity certificate cannot be granted unless there is the consent of a victim.
We have built in a provision whereby if a close family member requests a review, that is taken as consent. Once consent is given, a perpetrator—within the scope set out in the Bill—can obtain immunity, the family can obtain information and the chief commissioner can publish a report of his findings. But crucially, if there is no family consent, none of those things can happen. The chief commissioner may still conduct a review if a referral is made by one of the specified statutory bodies, but he may not grant immunity, provide information to families or publish a report if there is no consent. That means that the wishes of victims’ families are central to the process.
We would prefer that the Bill in this format was not here at all—but it is. These amendments seek to make the best of a bad situation and at least give victims, in all but exceptional cases, a veto over perpetrator immunity.
It should be noted—I raise it now because it is central to the whole issue of outcomes for victims—that if you look at paragraph 5(1) of Schedule 11, it appears that Section 4 of the Northern Ireland (Sentences) Act 1998 is being amended to, in effect, reduce the tariff to zero or at the most one day. At the moment, it works out as a two-year sentence for anyone convicted of a pre-1998 offence. On the face of it, this seems to mean that even if one were to be convicted of an offence on referral to the DPP by the chief commissioner, there would be a term of imprisonment of, in effect, one day maximum. That may not be called an amnesty, but it is a de facto amnesty. I am very sad about that and regret it. It is wrong. It was wrong in 1998, it is wrong now and it will be for ever wrong.
If the Government are determined to force the Bill through, at least our amendment would put victims at the centre of an imperfect process. I ask a simple question: how could anyone reasonably object to elevating the interests of victims over those of perpetrators?
Lord Dodds of Duncairn (DUP)
My Lords, first, I join with other noble Lords who have thanked the Minister for his engagement in relation to both the amendments he has tabled on Report and the amendments we considered in Committee and have brought forward again on Report. I think it has been a genuine engagement. I am pleased that the Minister has listened to some extent and that there have been improvements as a result of the discussions that have taken place, and indeed following amendments tabled in the other place which the Government responded to.
In paying tribute to the Minister, we should also pay tribute, as others have, to the innocent victims of terrorism, murder and mayhem in Northern Ireland over many years. We should pay tribute to their enormous tenacity and fortitude in the face of what has been happening in recent days in Northern Ireland, with the continuing eulogy and glorification of murderers and criminals by elected representatives, including those who purport to be the First Minister “for all”.
In relation to the Bill being brought back, given the pause and the length of time that has passed, and the universal opposition to it, some had hoped that this would be one area where the Government might actually listen to all the parties in Northern Ireland, but that does not appear to be the case. The Minister and your Lordships will be aware that on 19 June, the leader of the Democratic Unionist Party, Sir Jeffrey Donaldson, and others wrote to the Prime Minister asking, even at this stage, for the proposals to be withdrawn. The letter restated our fundamental opposition to an amnesty—which is what the Bill in effect creates—paid tribute to the victims and recognised that while we and other noble Lords have tabled amendments, that should not be misconstrued in any shape or form as providing tacit consent to this regime, which undermines confidence in the rule of law and has done so much harm to victims.
I will speak to the amendments in my name and those of my noble friends, but I say initially that I have a lot of sympathy with Amendment 9, moved by the noble and right reverend Lord, Lord Eames, on putting the victims at the centre of this immunity process if we are to have it. It talks about those cases that involve death; I would prefer it to cover all cases. Having said that, I think it is worthy of support, and I hope the Government will consider it.
The noble and right reverend Lord, Lord Eames, talked about hypocrisy in relation to mentioning reconciliation, yet we have the Bill before us. That was a very powerful but correct description, and I often hear that word mentioned by victims in relation to the approach taken in the Bill by the Government.
Amendment 59A, standing in my name and in the names of my noble friends, would require the commissioner for investigations to refer a file to the PPS when an individual is found to have provided false statements to the ICRIR. At present there is no explicit provision in the Bill to require the ICRIR to provide material evidence of false statements to the prosecutor in aid of proceedings. I would be grateful if, when the Minister responds, he can address that point and reassure your Lordships that this is not some kind of loophole that can be exploited but that, in the absence of this amendment, there will be no gap and that we will ensure that there is a joined-up approach to pursuing convictions.
Amendment 61A would require an individual to be disengaged from activity which would be reasonably regarded as precluding reconciliation in order to be eligible for immunity from prosecution, Although the concept of immunity is in our view irredeemable, a further problem is that the Bill as drafted places no impediment to a perpetrator gaining the protection of immunity and then going on to publicise, promote or commemorate—the favourite word now used by terrorist apologists—his or her deeds in such a way that harms victims and generally offends the cause of peace and reconciliation. The Government have brought forward new proposals allowing immunity to be revoked in instances of glorification of terror, and I welcome that. However, I think it could go further in capturing activities that do not necessarily constitute offending but which will cause deep harm to victims, survivors and their families. Our Amendment 86A follows on by requiring the permanent revocation of immunity of individuals engaged in the sort of activity that I have outlined.
It should not be acceptable in general terms that political representatives of the IRA and Sinn Féin, including the potential First Minister or anyone else, and especially people who have taken advantage of this system, should go around the country, not doing enough to fall foul of the “glorification of terrorism” legislation but doing enormous harm psychologically to victims and their families by their continuing commemoration, eulogising and glorification of the perpetrators of some of the most heinous criminal and obscene acts that we have seen anywhere over the last 30 years. The purpose of these amendments is to address that point and to urge that the Government do something about it. It is not only causing trauma to victims and retraumatising their families but is toxifying the political atmosphere in Northern Ireland as people try to get the Assembly up and running again.
Baroness Ritchie of Downpatrick (Lab)
My Lords, we are now on one of the main debates in this Bill: the issue of amnesty and immunity. As the noble Lord, Lord Dodds, and the noble and right reverend Lord, Lord Eames, said, this issue goes to the heart of the legislation, but it also drives a dagger through victims in Northern Ireland—people who have endured immeasurable suffering because of the loss of their loved ones in unexplained circumstances, because many of them have not been told how or why that loss happened, or the nature of the wounds inflicted on them. Those who are victims suffer many wounds in later life that can never be measured in terms of compensation or monetarily but can be measured only in terms of loss of family lives and family time, because they have lost their loved ones. We all know many of those people, whose lives have been totally turned around by the actions of paramilitaries and—we cannot deny it—of state forces.
However, this issue of immunity strikes at the heart of everybody. As the noble and right reverend Lord, Lord Eames, said, there is universal opposition to this Bill and this particular part of it on immunity, and the clauses dealing with the withdrawal of access to inquiries and investigations. That is very much a denial of basic human rights in any normal democracy.
In the unavoidable absence of my noble friend Lord Hain, I will speak to Amendment 63, which is in his name and those of the noble Baroness, Lady O’Loan, the noble Lord, Lord Blair of Boughton, and my noble friend Lord Murphy of Torfaen. As the Bill stands with the Government’s amendments, there are only two circumstances in which immunity for some of the most heinous crimes imaginable can be revoked: if there is a conviction for misleading the ICRIR or for a subsequent terrorist offence. This is not good enough. Amendment 63 sets out other circumstances which would put in place at least some accountability measures as to the future conduct of perpetrators.
Are the Government seriously saying that, as far as they are concerned, someone who has confessed to a sectarian murder, for example, is perfectly free to harass that person’s family, laugh at their grief, celebrate their loss and still retain their immunity? Are they saying that they should still retain their immunity if they are a threat to the public? Where in this legislation is there any element of accountability for perpetrators? They do not even have to express remorse or regret for their actions. Presumably, they could appear before the ICRIR, describe what they have done to the best of their knowledge and belief, say, “By the way, I would do it all over again”, and still walk away with lifelong immunity in their pocket. As far as the world at large is concerned, they will not have a stain on their character, but we will never forget, nor will those who were the victims. They will carry the cross of the loss of their loved ones, in the most heinous circumstances, to their graves.
If we let this element of the legislation go through as the Government currently propose, we will be telling victims and survivors that we care more about the perpetrators than we do about them. I cannot believe that that is the message this House wants to send. The clauses regarding conditional immunity and those dealing with the eradication of inquests and investigations undoubtedly go to the very heart of this legacy debate. To impose conditional immunity and remove access to inquests and inquiries is a denial of basic civil liberties.
It is worth noting the following from the Council of Europe’s Commissioner for Human Rights, Dunja Mijatović, who spoke yesterday on immunity. She said:
“Despite this, the UK government has decided to go ahead with the Bill in a way that does not recognise Northern Ireland’s violent past or honours the suffering of victims. While the government has recently published amendments, these leave the fundamental problems with the Bill intact, such as the conditional immunity scheme that would result in impunity for serious human rights violations”.
She went on to talk about the cutting off of
“avenues to justice for victims”,
and questioned the ability of the ICRIR
“to deliver outcomes that would meet human rights standards”.
I would like the Minister to comment on the commissioner’s words and the actions the Government will take on foot of that.
It is noteworthy that victims organisations throughout Northern Ireland, such as Amnesty, the CAJ and the Human Rights Commission, have asserted in their submissions that the government amendments are not compliant with the provisions required by the ECHR—a point denied by the Secretary of State yesterday.
I am told that the Secretary of State relies on the amnesty provisions in the weapons Act as a basis for the amnesty in this Bill. When he was Secretary of State, Sir Patrick Mayhew, later Lord Mayhew—a former colleague of the Minister—said on the then Northern Ireland Arms Decommissioning Bill that that amnesty was “tightly defined”, and
“available only to those who adhere to the strict terms of a decommissioning scheme, and only for offences that they technically commit in respect of anything done in accordance with such a scheme”—
mainly offences of a possessory nature. He continued by saying that these provisions
“in no sense constitute some form of general amnesty covering other offences: the security forces will go on with undiminished resolution pursuing and bringing to justice those responsible for other crimes”.—[Official Report, Commons, 9/12/1996; col. 24.]
How does that square with this information and this clause on immunity? Maybe the Minister could comment on that in the light of the Government’s current Bill.
For all these reasons, I support the amendments in the names of my noble friends Lord Hain and Lord Murphy. If my noble friend Lord Murphy pushes Amendment 66 to a vote on Monday, I will support him in the Division.
Baroness O’Loan (CB)
My Lords, I must apologise to the House. I omitted to declare my interest as a member of the Operation Kenova steering group when I spoke on it previously.
The amendments in this group cover a massive range of issues affecting the proposed immunity provisions, which are contrary to the UK’s obligations under the Human Rights Act 1998 and the European Convention on Human Rights and are not consistent with the Government’s obligations under the Good Friday agreement. They will provide immunity from prosecution for murder, torture and other terrible crimes that have left people dead or with life-changing, life-limiting injuries. The only crimes for which immunity will not be possible are sexual ones.
Northern Ireland has not previously had immunity from prosecution. What we had were prosecutions that, on conviction, resulted in a maximum two-year sentence. We also had law that said that certain evidence was not admissible in a case. So, where information led to the recovery of one of those whom the IRA disappeared, that information could not be used for the purpose of prosecution. Similarly, when guns were brought in for decommissioning, they and any information attached to them could not be used as evidence. However, that did not confer immunity on an individual; it was still possible for them to be prosecuted for the crimes they had committed.
Those laws on the disappeared and decommissioning, and even the sentences Act, resulted from the Good Friday agreement and were not in breach of our convention obligations. However, these immunity provisions are different. The extent of the problem was made clear yesterday by the Northern Ireland Human Rights Commission, which is made up of advisers to the Northern Ireland Government. It said that,
“even with the UK Government’s additional amendments … fundamentally, the Northern Ireland Troubles (Legacy and Reconciliation) Bill is not compliant with the European Convention on Human Rights … the Belfast (Good Friday) Agreement 1998 requires the UK Government to incorporate the ECHR into Northern Ireland law and to do so to provide people with ‘direct access to the courts, and remedies for breach of the Convention’ … Therefore, our previous advice stands that closing off any pursuit of justice outside of the ICRIR is incompatible with human rights and the Belfast (Good Friday) Agreement”.
I would like to the Minister to explain to me, if he can, how people will have direct access to the courts and remedies for breaches of the convention under this Bill.
Even with the Government’s amendments—more than 120 of them—this legacy Bill will not provide something that is compliant. It will prevent direct access to the courts and to remedies. The Government’s 25 amendments to their immunity scheme do not, even in their totality, make the scheme compliant with convention rights. Such things as the revocation of immunity in particular circumstances do not change those facts. Amendment 63 in the names of the noble Lord, Lord Hain, and others would require that, to get immunity, a person would have to comply with the ICRIR’s requirements to provide fingerprints and “non-intimate samples”. It would also mean that a grant of immunity could be revoked in the event that a person commits a Terrorism Act offence, is a danger to the public or, to echo the comments of the noble Lord, Lord Dodds, attempts to make a profit from their criminality.
As the noble Baroness, Lady Ritchie, said, the Council of Europe’s Commissioner for Human Rights issued the following statement yesterday:
“I have repeatedly warned that the Northern Ireland Troubles (Legacy and Reconciliation) Bill would undermine the human rights of victims, as well as truth seeking, reconciliation and justice efforts. Serious concerns have also been expressed by the Council of Europe’s Committee of Ministers, the Parliamentary Assembly of the Council of Europe, the UN High Commissioner for Human Rights, UN Special Rapporteurs, national human rights institutions, parliamentary committees”—
of this Parliament, indeed—
“and civil society organisations, including victims’ groups. Despite this, the UK government has decided to go ahead with the Bill in a way that does not recognise Northern Ireland’s violent past or honours the suffering of victims. While the government has recently published amendments, these leave the fundamental problems with the Bill intact, such as the conditional immunity scheme that would result in impunity for serious human rights violations, the unilateral shutting down of avenues to justice for victims, and questions about the ability of the Independent Commission for Information Recovery to deliver outcomes that would meet human rights standards”.
It is clear that, even with the Government’s amendments, this Bill is not compliant with our international obligations. As has been said, it continues to be the case that nobody in Northern Ireland or elsewhere—apart from the Government, it seems—thinks that the Government’s amendments will fix the Bill.
As the Northern Ireland Human Rights Commission has said, the fundamental issue is that the ICRIR’s conditional immunity scheme is not, at its core, compliant with human rights. The noble Lord, Lord Dodds, has proposed Amendment 98A in this group. He said that it would be welcomed by those who have seen investigations completed and files just sitting there, waiting to be dealt with by the prosecutor of the Public Prosecution Service for Northern Ireland. The Kenova files have been waiting for up to four years. They include the Stakeknife files and the file that dealt with the terrible murders of three young constables on the Kinnego Embankment in Lurgan. All that will be lost. It will simply cease to operate unless the amendment in the name of the noble Lord, Lord Dodds, is accepted. I urge colleagues to think very seriously about the terrible injustice that would be done if we did not get that amendment through.
Despite all the amendments, the conditional immunity scheme remains in breach of our obligations. As we look at conditional immunity for murder, it must be more questionable—indeed, offensive—that immunity from prosecution will not be available for sexual offences but will be for the most heinous murders and tortures carried out by people like those who abducted and murdered Jean McConville, a mother of 10, in 1972; like those who planted the Enniskillen bomb; and like those who murdered people watching a football match in Loughinisland, as well as for all the other atrocities. Why? To know that your loved one was savagely murdered—even to witness it, as some did—is surely as egregious and terrible as any sexual offence.
Nobody in Northern Ireland wants these provisions. I urge noble Lords to support the amendments that seek to remove them, in particular Amendment 66 in the name of the noble Lord, Lord Murphy, to which I and the noble Baronesses, Lady Suttie and Lady Ritchie, have added our names.
Lord Blair of Boughton (CB)
My Lords, I will not detain the House much on this issue and Amendment 63, to which my name is attached, because I am really here to talk about Amendment 31, the Kenova amendment, which we will come to later on. I just want to remind noble Lords of the shocking effects of letters of comfort. We are about to repeat that same mistake if we continue with this process and do not do something to get Amendment 63 through the House on Monday.
Lord Morrow (DUP)
My Lords, I will speak to Amendment 61A, tabled by me and my noble friends Lord Dodds and Lord Weir. My noble friend Lord Dodds has already spoken very eloquently on this, but I will add some comments.
Amendment 61A would require
“an individual to be disengaged from activity which would be reasonably regarded as precluding reconciliation in order to be eligible for immunity from prosecution”.
Earlier, I tried to push the Minister a little on this, because although reconciliation is laced through the Bill, its definition is anything but clear. I still feel strongly that the definition should be in the Bill. However, we are where we are.
Admittedly, the Government have brought forward new proposals allowing immunity to be revoked in incidents involving glorification of terror, as my noble friend Lord Dodds said. It is very disturbing when one watches our television screens or reads a newspaper to see leading, prominent politicians elegising the past—murder—and commemorating those who were intercepted by the security forces while carrying out murder, or who were blown up by their own bomb. In an age of reconciliation, how can this continue? Yet those same people tell us that they will be a First Minister for everybody.
That is the strangest way of setting out. If that is their idea of reconciliation, then I no longer understand plain English. Surely it is time for the Government to take a long hard look at this situation. As has already been said by others, this is not good legislation. It is bad legislation, and it has no support back in Northern Ireland from anyone who has spoken publicly about it. I have not read of support for this legislation, yet the Government are intent on pushing on and pushing it through. Those of us who have these great concerns are therefore making an honest attempt to make this less bad. That might not be good grammar, but it is the best way that I can say it.
We want the Government to stop and think. Admittedly, they brought forward new proposals allowing immunity to be revoked for the glorification of terror, but this does not go far enough in capturing activities that do not necessarily constitute offending, but which will cause deep harm to victims, survivors and their families. If this Bill is about reconciliation, it must take into account the hurt caused not only 30 years ago but right up to recent times. Some tell us that we have every right to remember our dead, and maybe that is true, but we have absolutely no moral right to glorify those who carried out these evil deeds of terror. “Reconciliation” is in the title of the Bill, but that seems to be as far as the Government are willing to go.
The ICRIR will be statutorily required to oversee an amnesty process which runs contrary to reconciliation and which is opposed almost unilaterally by victims. Any sense that the ICRIR can deliver on its primary objective is diminished from the word go. It should be made clear in Clause 18 that one condition for immunity, applied not just at the point of application but thereafter, is that an individual is not engaged in activity which can reasonably be regarded as precluding reconciliation by glorifying terror and violence, eroding support for the rule of the law or traumatising victims yet again.
Lord Browne of Ladyton (Lab)
My Lords, I will speak to Amendments 71, 72, 73 and 74 in my name, which are amendments to Amendment 70, tabled by the Minister, who has continued diligently to engage with all shades of opinion in your Lordships’ House. Like other noble Lords, I thank him for that.
For the reasons given, I support the amendments in the name of my noble friends Lord Hain and Lord Murphy of Torfaen. At this stage, I feel no need to go over those reasons again. In proposing these amendments, I am conscious that, when juxtaposed with the larger issue of immunity itself, they are confessedly procedural and administrative in their scope. But they do seek to do something in the province of responsible legislation: they anticipate that which can be anticipated, minimise the effect of contingency and, in this particular case, ensure that, if the chief commissioner is unable to consider requests for immunity—whether for reasons of misadventure or owing to a potential or perceived conflict of interest, or for any number of reasons—there is a person empowered to do so. To some extent, this has been anticipated by Amendment 70 in the name of the Minister.
While the government amendment is welcome, the amendments I have tabled seek to do three specific things. Amendments 71, 72 and 73 mandate the appointment of a deputy for the chief commissioner. This deputy would be appointed by the Chief Commissioner immediately upon their own appointment and would be empowered to exercise some or all of the immunity functions if the chief commissioner were absent or otherwise unable to do so. I believe that the mandatory appointment of such a deputy would better ensure a consistency of approach, strengthen institutional memory in respect of such decisions and place a further brick in the wall dividing the Secretary of State—mindful as I am of new subsection (7B) in Amendment 70—from the fraught question of immunity.
Where Amendment 70 seeks to engage that eventuality by recourse first to a rapid nomination by the chief commissioner and, if that is not possible, through an ad hoc appointment by the Secretary of State, my amendments would see such a person already in place. This person would be fully briefed on these issues and placed in their position by the chief commissioner at the start of their term.
Given that new subsection (7C) in Amendment 70 quite rightly mandates that a stand-in for the chief commissioner must have held high judicial office, it is evident that one of the qualities such a person must possess is impartiality. Surely, being appointed by the Commissioner rather than by an active politician in the shape of the Secretary of State would strengthen claims to judicial objectivity rather than the reverse. Moreover, having a named deputy in place from the beginning of the chief commissioner’s term will provide confidence that, where decisions must be made in his absence, they will conform with the standards set by the chief commissioner and follow the tramlines of decision-making in a manner that is consistent across all cases. I beg to move.
Viscount Brookeborough (CB)
My Lords, I have listened to everything. I have not bothered to intervene because I basically agree that this is not a great Bill and that all we can hope to do is make it less damaging to what is happening in Northern Ireland.
The one thing that strikes me is that reconciliation is on the face of the Bill. I have been struggling with that and with the definition of “reconciliation”. I decided to look it up on my phone. It is on the face of the Bill: therefore, it is the number one objective of the Bill. If we had reconciliation, we would not be worried about the other things. “Reconciliation” is defined as
“the restoration of friendly relations”
and
“the action of making one view or belief compatible with another”.
The definition goes on to say
“an act of reconciling, as when former enemies agree to an amicable truce”.
The problem is that we know that there is not an amicable truce. We know from the glorification of terrorism and lots of other parts of what we have been discussing that that is not there. Yet it is on the face of the Bill as being the number one objective.
What troubles so many of us in Northern Ireland, whether our families have directly suffered a death, or for all the people we k now who have suffered and their families—one family has been mentioned; three of my soldiers were killed, one after the other, and a sister was mown down on a checkpoint for serving in the security forces—is that the people in Northern Ireland see the Bill coming and would love to have reconciliation but the Government are not giving one little inch to assuaging their lives and their fears. I know that there have been amendments, and everybody is very grateful for that, but, if people are to accept this and if it is to work, there has to be something significant, so they actually feel that it was made for them.
All I plead is this: we really hope that the Government accept some of these amendments, which will enable people to say “Yes, but they have done this and they have worked towards us, and we want to make it work”. We know that at the moment virtually nobody in Northern Ireland is saying that.
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, Amendment 61A stands in the name of my noble friends Lord Dodds, Lord Weir and Lord Morrow. The explanatory statement says:
“This amendment would require an individual to be disengaged from activity which would be reasonably regarded as precluding reconciliation in order to be eligible for immunity from prosecution”.
There is another amendment in the name of my noble friends that is in a similar vein.
I draw attention to something that my noble friend Lord Dodds has already mentioned. There is a question in my mind concerning the legislation as it stands. My noble friend mentioned the late Joe Clarke, one of the hooded men who received an apology on his deathbed from the chief constable of the PSNI over his treatment while he was interned in 1971. He was one of 14 men who claimed that they were subjected to state-sanctioned torture. They all claim innocence. However, at his funeral the other day, Mr Clarke was buried with what appeared to be full so-called IRA military honours: his coffin was draped in the tricolour and he was escorted by men and women in some sort of uniform—white gloves, black ties and white shirts. I believe that this is reserved for members of the IRA, particularly those who have carried out what is known as IRA active service—and we know what that really means.
To deepen the plot, one of those carrying Clarke’s coffin in that military-style uniform was none other than a man who had been arrested and imprisoned over the murder of two soldiers at the Massereene barracks in Antrim during the time when I was the local Member of Parliament for that constituency. That person and his doctors told the court that he had only three to four years to live at most. Strangely, 14 years later, he is the picture of health, miraculously cured and carrying an IRA man’s coffin. Actually, that person is a neighbour of mine. I ask the Minister this: would the likes of Mr Shivers receive immunity or an amnesty under the present legislation as it stands, without the amendments suggested by my noble friends Lord Dodds, Lord Weir and Lord Morrow?
Baroness Suttie (LD)
My Lords, the sheer number and scope of amendments in this group should serve as a clear indication to the Government that there continue to be grave concerns about the proposals for immunity set out in Clause 18. I have added my name on behalf of these Benches to Amendment 66, tabled by the noble Lord, Lord Murphy, and also signed by the noble Baronesses, Lady O’Loan and Lady Ritchie, which would remove Clause 18.
Lord Murphy of Torfaen (Lab)
This was bound to be a powerful and very emotional debate about an issue which goes, as many noble Lords have said, to the very heart of the legislation. It also goes to the heart of the opposition to the legislation. We heard some excellent speeches from the noble and right reverend Lord, Lord Eames, onwards on various amendments which have been tabled, which are very welcome and sensible.
As the noble Baroness, Lady Suttie, said, she and I and others have tabled Amendment 66, which removes the clause dealing with immunity. One of my later successors as Northern Ireland Secretary, the right honourable Karen Bradley, said some years ago that proposals for legacy must follow the rule of law. She went on:
“Conservatives in government have consistently said that we will not introduce amnesties or immunities from prosecution”.
It is as clear and simple as that.
Why then should we be so drastic as to propose the deletion of that vital clause? First, we need to send a message as clearly and strongly as we can to the Members of the House of Commons when they consider the amendments that go back from this place. The Government have a majority of 80. Inevitably, with that large majority they can do what they want, but they should think again because of the nature of this Bill. Every single Northern Ireland Member of Parliament from all parties in Northern Ireland voted against it. To send a signal to the House of Commons that this House recognises the significance of the opposition to the Bill in Northern Ireland would be very powerful.
People say that the release of prisoners under the Good Friday agreement was similar—not the same because prisoners had to have served at least two years in prison before they could be released. The big difference between this and that is that the people of Northern Ireland, in a referendum on the Good Friday agreement, however distasteful they thought it was, voted in favour. No one in Northern Ireland is voting in favour of this. In fact, this entire Bill, with the possible exception of some national security elements, should have been passed by the Assembly in Belfast, and I suspect that the reality is that not one single Member of the Belfast Assembly would have voted for this Bill. Perhaps a handful might have done so, but I very much doubt that.
That is why it is so important that the Government should think again about this. They should think in terms of who is against it. Every church in Northern Ireland is against it. Every single political party is against it. All the victims’ groups and the victims’ commissioner are against it. The Northern Ireland Human Rights Commission and every single human rights group are against it. Internationally, only a day or so ago the Tánaiste—the Deputy Prime Minister and Foreign Minister of Ireland—said how much the Irish Government are against it because their legacy provisions in the Republic are affected by it. The Council of Europe is against it. The United Nations is against it. The list goes on and on but, most significantly, it is because there is no consensus in its favour.
The Minister has been involved in Northern Ireland for a very long time, and he knows that you cannot simply impose things on Northern Ireland. You cannot impose resolution on Northern Ireland. People in Northern Ireland should decide for themselves on this, which is the most crucial and delicate issue that they can possibly make a decision on. Imposition is entirely improper. That is the message I hope we will be able to send to the House of Commons when we vote on these issues on Monday.
The Minister will say this wrecks the Bill. It does not. It takes out the part of the Bill which is most severely disliked. The Government will still have their commission and their reviews, but they will have to put something else in place of this proposal on amnesties and immunity, and that something else has to be based upon the co-operation and consent of the people of Northern Ireland. I went to Belfast in April when we were dealing with the anniversary of the Good Friday agreement, and not one single person came up to me and said they agreed with this legislation—indeed, the opposite. All the people, right across the political spectrum, I talked to about the Bill were against it because this immunity issue is the one that they particularly disagree with for all the reasons that noble Lords have spoken about in this short debate. Why on earth are the Government persisting in something that should not be imposed upon the people of Northern Ireland against their will?
Lord Caine (Con)
My Lords, this has been a very thorough debate, as indeed it was in Committee. At the outset, I am very grateful to the noble Lord, Lord Murphy of Torfaen, for quoting some words which I think I probably drafted for Karen Bradley when she was Secretary of State a few years ago. I gently remind the noble Lord, Lord Murphy, of a letter to which he put his name, as did the noble Lord, Lord Hain, to Karen Bradley in 2018. They wrote that
“the priority is surely now … not investigations that have little or no likelihood of either prosecution or alternative closure satisfactory to victims”.
I would be interested to hear at some stage what the alternative proposal of His Majesty’s Opposition might be.
Lord Murphy of Torfaen (Lab)
I rarely do this in the House of Lords, but I think that is worth an answer. It would have been based on consensus. Whatever was done would have been done with the agreement of the people of Northern Ireland through their elected representatives and through the people in their other organisations. That is the difference.
Lord Caine (Con)
The noble Lord will be aware from his own experience that the search for any consensus around this subject has eluded successive Governments of—I was going to say “both parties”, but it is actually three parties if you include the coalition.
The noble Baroness mentioned devolution. I well remember the history of why we are in this position in the first place: after the Stormont House agreement, the First and Deputy First Ministers came to what was then Her Majesty’s Government and said, “This is all far too difficult for us to do in Stormont. Please do it at Westminster”. The assumption always was that these issues would be dealt with in Stormont, with some parallel legislation in this House. Anyway, enough of the history.
I genuinely accept that this is the most controversial and challenging aspect of the Bill. As I acknowledged at Second Reading, I have found this very difficult. I reminded the House at the time that one of my first jobs in politics was to work alongside the late Ian Gow MP, a wonderful man, when he was chair of the Conservative Northern Ireland Back-Bench committee, so I understand. I have had many meetings with victims’ and survivors’ groups over many years, and intensively ever since I took on responsibility for this Bill in your Lordships’ House. Indeed, I responded to a request from the noble Baroness last year. I have done this very willingly and have heard many harrowing stories that I will never forget. One of the most difficult parts of the job of being a Northern Ireland Minister, as the noble Lord, Lord Murphy, will acknowledge, is that one has to listen to some of the most appalling stories of suffering and grief; I completely acknowledge that.
As I said earlier, the Government are determined, through the legislation, to attempt to deliver better outcomes for those most affected by the Troubles. I do not underestimate that this is a hugely difficult task and that the legislation contains, as I have said, finely balanced political and moral choices that are challenging for many.
On the comments that have been made about our international obligations, we debated that extensively in Committee and I have had lots of discussions in private. We are not going to agree. The Government’s advice is clear that the provisions of the legislation are compatible with the Human Rights Act and the ECHR.
Baroness O'Loan (CB)
Could the Minister explain to us how they are compatible?
Lord Caine (Con)
I explained that at length in Committee. They allow for investigations to an Article 2-compliant criminal standard, they allow for prosecutions in cases where people do not co-operate with the commission, and they allow for revocation.
Baroness O'Loan (CB)
Possibly my question was not properly phrased. Could the Minister explain how an immunity provision such as this is compliant with our obligations?
Lord Caine (Con)
There are circumstances where setting aside the prospect of a prosecution, if it is for the greater good of providing more information to victims and survivors that will help society to move on, can be justified.
On the noble Baroness’s other point, I think she referred—I hope she will forgive me if I did not hear her quite right—to recourse to human rights remedies. The Bill does not remove the right of individuals to bring challenges under the Human Rights Act 1998, and that could include judicial review of decisions taken by the ICRIR in relation to the conduct of reviews. As a public authority, the ICRIR is under a duty to act compatibly with human rights obligations, something that we will probably talk about more in the next group of amendments.
Viscount Brookeborough (CB)
I have just a quick point. When we talk about the individual giving all the relevant and truthful knowledge, to what extent will he be asked about the other people involved in the incident, whenever it was? If he fails to give information on them, does that mean that he has fallen short of what is required by the commission, because there is virtually no incident that did not involve a number—or in fact quite a lot—of people? If he gives information but the other people he has named do not come forward when asked to, will they then be open to prosecution using some of what that original person either said or failed to say as evidence?
Lord Caine (Con)
I am grateful to the noble Viscount, Lord Brookeborough, for his intervention. Much of what he says will of course be dependent upon the way in which the criminal investigation, if there is one as part of a review, is carried out. But there is a duty to take reasonable steps to establish the truthfulness of an individual’s account by looking at all the relevant information that is available. If an individual’s account is deemed to be not truthful to the best of their ability, they will not qualify for immunity.
Baroness O'Loan (CB)
My Lords, I would like to query what the Minister said about Amendments 94 and 97 and about me. I have never suggested that the officers of the ICRIR would not have the powers of a constable.
Lord Caine (Con)
Forgive me, I am having difficulty hearing the noble Baroness.
Baroness O'Loan (CB)
My Lords, I said that the Minister made some allusion to me in the context of Amendments 94 and 97 as he was concluding his remarks. I have never suggested that the officers of the ICRIR would not have the powers of a constable. I just want to place that on record.
Lord Caine (Con)
I am grateful to the noble Baroness. I do not think I was in any way ascribing those opinions to her. If she thinks I was, then I apologise.
Lord Eames (CB)
My Lords, I appreciate once more the manner in which the Minister has dealt with my amendments. I want to do everything I can to encourage him to take forward a little further the area I addressed. In light of what he has said, which does not surprise me, I beg leave to withdraw my amendment.
Lord Bew
“(d) would create or exercise police powers additional to those exercised by the PSNI, or(e) would create or exercise new duties towards prosecutors, additional to those exercised by the PSNI.”Member’s explanatory statement
These additional paragraphs in Clause 4(1) make clear that the ICRIR will not be exercising additional powers of any description not normally available to police officers.
Lord Bew (CB)
My Lords, I rise to address the subject of the fairness of the working of the commission in future. This amendment is alongside Amendments 37 and 47, which essentially have the same effect.
Lord Caine (Con)
Just to clarify: does the noble Lord wish to speak to Amendment 12, which we have not yet reached?
Lord Caine
“(2A) Subsection (1)(c) does not apply to grants of immunity from prosecution by the ICRIR under section 18 (but see paragraph 3 of Schedule (No immunity in certain circumstances).”Member’s explanatory statement
This amendment is consequential on paragraph 3 of new Schedule (No immunity in certain circumstances) in Lord Caine’s name.
“(4) Before carrying out any reviews, the ICRIR must publish, and in carrying out any reviews, the ICRIR must take into account, guidelines containing best practice on the rights of those likely to be named in any reports.”Member’s explanatory statement
This new subsection makes it clear that when carrying out reviews and in the exercise of its power to make findings in reports the ICRIR will follow best practice for the due protection of the rights of any person who may be named with critical comment.
Lord Bew (CB)
My Lords, I apologise for being, as they say in Northern Ireland, a little bit previous. I want to address the fairness of the functioning of the commission. My concerns on this matter, like many people in Northern Ireland and on this island, have been greatly allayed by the appointment of Sir Declan Morgan as the chair of the commission. None the less, fairness has to be at the heart of the future working of the commission. This applies both to people who might work for the state forces who come before it, and those who do not.
It has been established in recent years that good practice in such inquiries is what might be called pre-Maxwellisation. I recall the Green report to the Commons Treasury Committee of 2016, which laid out ground rules for handling people who come before a commission in guaranteeing fairness. I know that to some, these will be seen as exaggerated concerns, but we have talked a lot about the international requirements and obligations that the United Kingdom has under Article 2. There is also an international requirement in, I think, Article 6 to protect reputation and to be fair to the reputation of individuals.
I wish to return to the theme—the Minister has listened already with some responsiveness to it—of the importance of guaranteeing as much as we can that when the commission is set up, it works as fairly as possible in respect of the rights of the individuals who may be coming before it.
Baroness Ritchie of Downpatrick (Lab)
My Lords, with permission, and in the unavoidable absence of my noble friend Lord Hain, I will speak to Amendment 31, upon which a vote will take place on Monday. The amendment is in his name and those of the noble Baroness, Lady O’Loan, the noble Lord, Lord Blair, and my noble friend Lord Murphy of Torfaen. This amendment seeks to turn a terrible Bill into one that could at least act in the interests of victims, rather than the perpetrators of horrendous crimes of violence, by inserting as a method of bringing some form of justice a model based upon Operation Kenova, led by former Chief Constable Jon Boutcher. This model was referred to by the noble Baroness, Lady O’Loan.
Operation Kenova has the interests of victims, survivors and their families at its core, in stark contrast to the current legislation, in which victims and survivors are barely mentioned and to which they are universally opposed, along with each and every political party in Northern Ireland, as well as the Irish Government. In Operation Kenova, there is a proven model of the way to deal effectively with the legacy of Northern Ireland’s violent past.
After his remarks on this amendment in Committee, my noble friend Lord Hain wrote a detailed letter of rebuttal to the Minister. Sadly, the Minister’s reply completely failed to rebut any of my noble friend’s arguments. While acknowledging the excellent work of Operation Kenova, the Minister, the noble Lord, Lord Caine, made a number of assertions that simply do not stack up. The first was that, in some cases, a full Kenova-type investigation would not be appropriate if a family simply wanted information that could be readily found. The second was that an Operation Kenova model could not be upscaled and it would take too long to deal with the legacy case load. The third was that it would not be value for money. Each of these contentions does not stand up to scrutiny.
On the first, this circumstance has arisen with Operation Kenova, and it has been dealt with in a sensible and pragmatic way by the Kenova team, as the family requested. It is simply not an issue. Indeed, Kenova has been praised by victims’ groups precisely because of its effective truth recovery, providing information never before revealed on what actually happened to loved ones. In fact, Jon Boutcher visited a gentleman who lived quite close to me and whose son was brutally murdered. He did so before the gentleman, sadly, passed away, to explain the circumstances in which his son was murdered. That person was deeply grateful for that information and then, sadly, died some days later.
On the other contentions, I urge the Minister to take note of the independent National Police Chiefs’ Council’s review of Operation Kenova. The reviewers are recognised nationally as experts in investigations, especially homicide investigations—they deal in analysis, not assertion. On upscaling to deal with outstanding legacy cases, they said that
“the Terms of Reference … included the question as to whether Kenova might offer a ‘scalable’ model upon which to build any future Legacy Investigative capability for Northern Ireland. Having exhaustively reviewed its strategy, governance, partnerships and all facets of its operations, the review team firmly believes that Kenova would form the best possible foundation for this purpose”.
In his evidence to the Northern Ireland Affairs Committee on 2 September 2020, Jon Boutcher, who leads Kenova, said that legacy cases could be addressed within “five to 10 years” because Operation Kenova has developed processes that can now carry out comprehensive investigations expeditiously, not least because it now has unfettered access to security and police files that have hitherto been hidden. This is the considered view of a hugely experienced and highly regarded senior investigator.
Baroness O'Loan (CB)
My Lords, I will speak to my Amendment 13, which is also in the name of the noble Baroness, Lady Ritchie, and which simply requires the removal of the word “reasonably” from Clause 5. The noble Lord, Lord Hogan-Howe, is unable to be with us today, but he associates himself with my remarks.
The Government told us that one of the purposes of the Bill is to provide families with information that was not previously available to them, and another is to gather all investigative and review functions within the ICRIR. This was always the proposal under the Stormont House agreement, and I have no difficulty with it, except for the way in which it is done and the immunity clause. But the powers accorded under the Bill do not provide to the ICRIR the access to information that will be necessary to obtain the information that families need, without lengthy judicial reviews and threats of judicial reviews, which have bedevilled inquiries such as the Saville inquiry and, indeed, the Kenova investigation.
In normal criminal investigations, there is a proviso that an investigator will not do anything which would prejudice national security or put someone’s life at risk. There is law that deals with this. The law also provides mechanisms which include a power to recover information, such as the search process when a warrant has been obtained. For example, police will seize all the computers in a house to determine whether the contents of any of them may be relevant to the matter under investigation. Those are general statutory investigation powers. Those charged with criminal investigation also have powers to require the provision of information from agencies and individuals. For example, under Section 17 of the Police Reform Act 2002 there is a simple duty on every chief constable and local policing body to provide information to the IOPC. Similarly, Section 66 of the Police (Northern Ireland) Act 2000 says:
“The Chief Constable and the Board shall supply the Ombudsman with such information and documents as the Ombudsman may require for the purposes of, or in connection with, the exercise of any of his functions”.
There is no qualification, simply a duty to provide information. However, this Bill as drafted states that a relevant authority
“must make available to the ICRIR such … information … documents, and … other material as the Commissioner for Investigations may reasonably require”.
This provision applies only to information which the ICRIR reasonably requests. Of course, an investigator must always act reasonably and in compliance with the law. However, there is no process for which a chief constable may, for example, say, “No, it’s not reasonable for you to make that request for information”. I had those conversations in the early days of my tenure as Police Ombudsman. I was told, for example, that it was not reasonable for me to ask for sensitive information, such as information held by Special Branch—now the Intelligence Branch. I was able to point to the law, which said that the chief constable
“shall supply the Ombudsman with such information … as the Ombudsman may require”.
That is how it is in criminal investigations. It is not required that the investigator demonstrates the reasonableness of any request for information.
The Minister has said that a requirement that information shall be reasonably required is to be found in other statutes. He cited one, the Finance Act 2008, so I looked it up. Section 113 of and Schedule 36 to the Finance Act 2008 provides that an officer of His Majesty’s Revenue and Customs can require a taxpayer to provide information reasonably requested by the officer for the purposes of collecting a tax debt owed by a taxpayer. There is a big difference in the powers required to collect an unpaid tax debt and those required to investigate a murder, as is evidenced by the current state of the law, which provides necessary protections for privacy in appropriate circumstances under the GDPR and the Data Protection Act, for example, but also empowers criminal investigators to access information. This is the proper working out of UK compliance with its obligations under the Good Friday agreement and the European convention.
If an agency could respond to a request for information by the ICRIR by challenging the reasonableness of that request, there would be inevitable and very lengthy disputes, possibly—indeed probably—involving judicial review, about why what the ICRIR was asking for was reasonable. The reality is that the investigator—the ICRIR in this case—may be in possession of material justifying the reasonableness of the request for information, but that material cannot be disclosed at this particular point in time without compromising the integrity of the investigation. The result is that an agency may be unaware of the material which the investigator holds, but it may be very aware that information which is held by that agency is highly compromising of the agency and may indicate how it came about that, despite an agency, for example, being aware of a proposal to murder someone, it did not intervene to stop that murder. It has happened.
The necessary unqualified powers to compel the production of documentation, especially documentation held by the other agencies, security intelligence services and police intelligence units, will not be available to the ICRIR because of how the Bill is drafted and the definition of sensitive information. The proposed powers to identify and gather information will also be subject to veto by the Secretary of State under the extensive provisions of Clauses 29 and 30. Access to information could be severely curtailed through the exercise of powers conferred on the Secretary of State in this Bill, because it gives the Secretary of State powers to give guidance about how the ICRIR is to identify sensitive information such as that held by police intelligence units and how that information is held and handled, et cetera, and even to create new criminal offences in relation to such matters.
Last year, the European Committee of Ministers exposed serious concerns about the Bill, and the Commissioner for Human Rights has now said that the amendments proposed by the Government do not sufficiently allay those concerns. This emphasised again that it is crucial that the legislation, if progressed and ultimately adopted, is in full compliance with our convention obligations and will enable effective investigation into outstanding cases.
The Committee of Ministers has called on the Government, first, to ensure that the Secretary of State for Northern Ireland’s role in the establishment and oversight of the ICRIR is more clearly circumscribed in law, in a manner that ensures that the ICRIR is independent and seen to be independent. Secondly, it has called on them to ensure that the disclosure provisions unambiguously require full disclosure to be given to the ICRIR. Thirdly, it has asked that they ensure that the Bill adequately provides for the participations of victims and their families for transparency and public scrutiny, which is fundamental to Article 2. It has again stressed the importance for the success of any investigative body of gaining the confidence of victims, families of victims and potential witnesses.
I also put my name to Amendment 31 in the name of the noble Lord, Lord Hain, supported also by the noble Baroness, Lady Ritchie, who has spoken at length about it, as well as the noble Lords, Lord Blair and Lord Murphy. The noble Lord, Lord Hain, is unable to be with us today. I shall support that amendment if a Division is called. I do not think that I need to describe the reasons for it, but I shall say that the National Police Chiefs’ Council has said that the Kenova model could effectively be scaled up for the purposes of the ICRIR.
I regret that I cannot support Amendment 28 in the names of the noble Baroness, Lady Hoey, and the noble Lords, Lord Bew and Lord Godson, because it requires that, when a family is seeking a review or investigation, they will have to be able to show that, if there is to be a review, and there has previously been an investigation or an inquest, for example, the ICRIR should not decide to grant a review unless there is compelling new evidence. To require a family to provide compelling new evidence would be to deprive them of their Article 2 rights to investigation, in particular in older cases where investigations and inquests were not as thorough or impartial as they are now. It is not the role of a traumatised and bereaved family to gather compelling new evidence. They have neither the powers nor the access to do so. That is the job of the investigator—in this case, the ICRIR.
Baroness Hoey (Non-Afl)
My Lords, with regard to Amendment 28 in the name of myself, the noble Lords, Lord Bew and Lord Godson, I tabled similar in Committee and have changed it to take note of what the Minister then said, deleting the parts that he found objectionable, which related to family requests for reinvestigations. I hope that what remains the Minister will find acceptable, given that the purpose of my amendment to Clause 11 is to ensure that there will not be duplication by the ICRIR in relation to previous investigations, despite what the noble Baroness, Lady O’Loan, has said, without compelling new evidence. This is the concept that was used in the overseas operation Act, and I cannot understand why it cannot be used in this legislation.
If the previous investigations listed in the amendment, such as those by a public inquiry, HET, or the police services Legacy Investigation Branch are not added to the Bill, thus narrowing the ICRIR’s potential range, I repeat what I said at Committee: namely, that the ICRIR could end up reinvestigating every one of the nearly 4,000 deaths, the cost will be £1 billion at least, not the budgeted £250 million, and the process will last for many years.
Lord Blair of Boughton (CB)
My Lords, it is unusual for me to start by saying that I could not disagree more with what I have just heard from the noble Baroness, Lady Hoey. I was Metropolitan Police Commissioner at the time of the death of Jean Charles de Menezes, and it was a tragedy. I do not actually understand the connection that she is making with what is happening in relation to Operation Kenova.
Lord Blair of Boughton (CB)
I shall stop there on that point.
I support Amendment 31 in the name of the noble Lord, Lord Hain, and the other signatories to it. It concerns Operation Kenova—the multiple investigations being carried out by ex-Chief Constable Jon Boutcher into some 200 murders on both sides of the conflict in Northern Ireland. I last spoke on Kenova on 24 January this year, when I read into the record of the House comments made by Jon Boutcher the previous October. I will not repeat all of that, except to remind noble Lords of his summary of his focus, being on the Provisional IRA,
“which committed these murders and whether steps were, or were not taken by the security forces before these abductions and murders occurred to protect people”.—[Official Report, 24/1/23; col. 161.]
I am not an expert on Northern Ireland, but I bring before the House two aspects of my own professional experience which I believe are of relevance. First, I have investigated murders and I know how difficult it is to tell families of victims that the trail has run cold and the investigation is, at least for the time being, being closed. Secondly, I have led some very large and complex investigations and watched many others. Never have I seen such a comprehensive, transparent and outstanding investigation as Kenova. Mr Boutcher has meticulously worked to gain the trust of families and has submitted a number of files, as we heard during the debate, to the Northern Ireland prosecution services. The submissions await a decision and the families know that. To discontinue all those inquiries by an Act of Parliament in these Houses seems to me to be an extraordinary step.
Of course, like many others in the House, I am a great supporter of the truth and reconciliation process in South Africa, but that process took place instead of investigations, not after they had been completed. Moreover, entering into such an approach has to be a voluntary process; and, having come this far, from a position of deep cynicism to trust in Kenova’s approach, I doubt whether many families will wish the completed investigations into these deaths just to be put to one side. With respect to the Minister, he knows that the continuance of Kenova is supported by politicians of every stripe in Northern Ireland, a position which I believe is not a common occurrence on any topic, let alone one as explosive as this. Any suggestion that the Kenova model is too expensive is risible, given all the suffering and all the costs that have preceded it.
I hope that when the House returns to this subject next week, it will ask the Government to think again.
Baroness Suttie (LD)
My Lords, this has been an interesting short debate. These Benches fully support Amendment 31, tabled by the noble Lord, Lord Hain, and signed by the noble Lords, Lord Blair and Lord Murphy, and the noble Baroness, Lady O’Loan; if it is pushed to a vote on Monday, we will certainly support it. As other noble Lords have spelled out so clearly—perhaps not the noble Baroness, Lady Hoey, who has reservations, but certainly the noble Lord, Lord Blair, and the noble Baroness, Lady Ritchie—the Operation Kenova model, with investigations to criminal justice standards, has been proven to work and should and could provide an effective alternative to the approach being adopted by the Government. I still hope that the Government will move further in this direction and support at least the spirit of Amendment 31. If they will not, it would be very useful to hear why from the Minister in his concluding remarks.
Lord Murphy of Torfaen (Lab)
My Lords, I very much appreciate the amendments put forward by the Government in this group, which are a genuine attempt to improve the Bill. In particular, Amendments 30 and 33 make it clear that the commission must act in a way that is consistent with the Human Rights Act and therefore the European Convention on Human Rights. The problem is that the Government need to ensure that the people who take these matters very seriously are convinced, when it is said that the legislation is compliant, that it actually is. That is a job of work that the Minister must undertake in the weeks ahead.
I very much support Amendment 31 in the name of my noble friend Lord Hain, ably moved by my noble friend Lady Ritchie. I have met Jon Boutcher on a number of occasions and have been deeply impressed by his work and by him personally. Operation Kenova has achieved a very compassionate and efficient way of dealing with these issues, not just in a couple of cases but in anything up to 200, as the noble Lord, Lord Blair, has said. I hope the Government seriously consider my noble friend’s amendment on this issue, because it would be more generally acceptable than the present system.
Lord Caine (Con)
My Lords, I am grateful to all those who have spoken. We have debated compatibility with the European convention at length, as recently as the last group. I do not propose to revisit all those arguments in response to this group.
I have, however, brought back Amendment 32 to make it clear in the Bill that the independent commissioner for investigations will determine whether a criminal investigation should form part of a review. I have also tabled Amendments 30 and 33 expressly to confirm that the commissioner, when exercising operational control over the conduct of reviews and other functions, must comply with obligations imposed by the Human Rights Act. In addition, I will place a duty on the commission to publish a statement outlining how each review was conducted as part of its final report, thus enhancing the transparency of its work through Amendments 34, 49, 50 and 55.
The legislation rightly ensures that the independent commission, via the commissioner for investigations, has the flexibility to determine whether and when it is appropriate to use police powers during its review. An approach requiring a criminal investigation in all cases, as would be required under Amendment 31 in the name of the noble Lord, Lord Hain, would remove such flexibility and significantly increase the likely time to complete reviews, further delaying the provision of information to many families. I do not intend to go over the contents of my letter to the noble Lord again; it is there for everybody to see.
As I have said in the House on numerous occasions, I recognise the work carried out by Operation Kenova and the way in which Jon Boutcher, to whom I pay tribute, has developed strong relationships with the families of victims. There are many features of Operation Kenova’s work that the Government consider capable of being built on, should the commission choose to do so. However, as I have put on record numerous times, the Government view it as vital that the commission is free to determine its own approach to these complicated matters. That would be constrained if we were to adopt the amendment of the noble Lord, Lord Hain.
In response to amendments tabled by the noble Baroness, Lady O’Loan, in Committee, I have brought forward Amendments 14 and 15 to Clause 5. These would extend the list of authorities which may be required by the commissioner for investigations to provide the commission with assistance for the purposes of, or in connection with, the effective use of information, documents and other material provided by those authorities under Clause 5.
On the issue of Maxwellisation, I have introduced a series of amendments to Clauses 15 and 17, in response to discussions with the noble Baroness, Lady O’Loan, requiring the chief commissioner to share only relevant sections of a report criticising a person rather than the full draft report and allow them to make representations about that material.
I am sympathetic to what Amendments 39 and 41 in name of the noble Baroness, Lady O’Loan, attempt to do. We explored this in Committee and the noble Baroness and I discussed these matters yesterday, so I do not intend to go over all the arguments again. Suffice it to say that, in our view, the current drafting ensures that the chief commissioner can modify material as well as exclude it, so in our view the amendments are unnecessary.
In response to Amendments 12, 37 and 47 tabled by my noble friend Lord Bew, the ICRIR is already under a clearly defined obligation, in Clause 4(1)(b), not to do anything that would risk putting, or would put, the life and safety of any person at risk. It is the Government’s view that this safeguard is wide enough to offer sufficient protection of the rights of anyone likely to be named in reports, and therefore my noble friend’s amendment is unnecessary.
In respect of Amendment 13 to Clause 5, again in the name of the noble Baroness, Lady O’Loan, it is not unusual for legislation giving a power to require the provision of information to be subject to the requirement of reasonableness. Reasonableness is a widely used and understood term, which is included in other legislation. She referred to one example which I provided, in the Finance Act. I could add the paragraph 19ZA of Schedule 3 to the Police Reform Act 2002, which uses the same reasonableness requirement formulation in the equivalent power of the director-general of the Independent Office for Police Conduct. The Inquiries Act 2005 gives the chairman of an inquiry the ability to require a person to provide evidence and documents to the inquiry panel within such a period that appears reasonable to the inquiry panel. Section 17(2) of the Criminal Appeal Act 1995, which gives equivalent powers to the Criminal Cases Review Commission, is also drafted in those terms, so there are a number of other examples.
In practice, the commissioner for investigations will decide, based on the facts of the particular review, what information can reasonably be required of a relevant authority. If there is a dispute, and the relevant authority considers the commissioner has acted unreasonably in imposing the requirement, the matter will ultimately have to be resolved by the courts. I believe the noble Baroness, as we discussed recently, is reading too many restrictions into the Bill, where do they not exist and there is no intention for them to exist, and where our purpose is to get as much information into the public domain as possible.
Baroness O'Loan (CB)
I thank the Minister for giving way. Does he accept that, in the examples he gave of the time within which information might reasonably be provided, and the powers of the chair of a tribunal who is reasonably requesting information, there is a distinction between a reasonable request for information and a request for information to be provided within a reasonable time? We have seen, in the current judicial review, the difficulties faced by the Government in relation to the information held in respect of the Prime Minister which is required by the Covid inquiry.
Lord Caine (Con)
If I am honest, I am not entirely sure I follow the point the noble Baroness is making, but I stand by the point I have just made, that our intention is not to impose unnecessary restrictions through this legislation but to allow the commission to access information and be in a position to put more information about what happened into the public domain than has been the case.
Turning to Amendment 28 in the name of the noble Baroness, Lady Hoey, I understand the intention behind this amendment, but Clause 11(7) already requires the commissioner for investigations to ensure that the commission does not do anything that duplicates any aspects of a previous review, unless duplication is deemed absolutely necessary. We believe this is a proportionate approach that ensures the resources of the commission are not wasted through unnecessary duplication, while providing limited discretion for the commission where that might be required. In our view, the effects of the amendment tabled by the noble Baroness would be to hamper the ability of the commission to conduct reviews which might lead to the effective provision of information to many families, which would run counter to a key objective of the legislation. I therefore urge noble Lords not to press their amendments.
Lord Caine
Member’s explanatory statement
This amendment is consequential on the other amendment of this Clause in Lord Caine’s name
(a) the Chief Constable of the PSNI;(b) the chief officer of a police force in Great Britain;(c) the Police Ombudsman for Northern Ireland;(d) the Director General of the Independent Office for Police Conduct;(e) the Police Investigations and Review Commissioner.”Member’s explanatory statement
This would expand the persons subject to the duty to provide assistance under Clause 5(7) (currently the duty applies to the Chief Constable of the PSNI and the Police Ombudsman for Northern Ireland).
Lord Caine
“(3A) Subsection (2) does not apply in relation to proceedings against D for an offence under paragraph 8(1)(a) of Schedule (distortion of evidence); and subsections (2) and (3) do not apply in relation to proceedings against D for an offence under section (False statements: offence) (false statements).”Member’s explanatory statement
This amendment allows for certain evidence given to the ICRIR to be used (against the person who gave the evidence) in criminal proceedings relating to false statements and distortion of evidence.
Member’s explanatory statement
This amendment is in consequence of the amendment to insert subsection (3A).
Lord Caine
“civil proceedings” does not include— (a) family proceedings within the meaning of Article 12 of the Family Law (Northern Ireland) Order 1993 (S.I. 1993/1576 (N.I. 6));(b) family proceedings within the meaning of section 75(3) of the Courts Act 2003;(c) family proceedings within the meaning of section 135 of the Courts Reform (Scotland) Act 2014 (asp 18) or proceedings under the Children (Scotland) Act 1995 or the Children’s Hearings (Scotland) Act 2011 (asp 1);”Member’s explanatory statement
This excludes family proceedings from the scope of Clause 8.
Lord Caine (Con)
My Lords, as has been said many times, the Government’s primary focus has been to establish one effective legacy body focused on providing better outcomes for families. We want to ensure that organisations such as the PSNI, the Police Ombudsman and the judiciary are able to focus their capabilities and resources on the present, not the past.
It remains our view that the commission, when established, should be the sole body responsible for Troubles-related cases. However, we are mindful of concerns about the ending of some existing ongoing processes. This is particularly the case given the current legislative timetable and the expected timeframe for the independent commission to become fully operational. Amendments 106, 129, 151, 155 and 156 in my name therefore ensure that ongoing criminal investigations, ombudsman investigations, the consideration of prosecution decisions, coronial inquests and the publication of reports will continue until 1 May 2024, when the commission will become fully operational.
Amendment 91 removes the provision which allows reports or statements about criminal investigations to be produced for a limited period after Clause 34 comes into force. That is now redundant, given my amendments to extend this time to 1 May 2024.
I hope that the additional time provided will be welcomed by noble Lords who have expressed concern regarding specific work, including Operation Kenova and Operation Denton. We hope that the additional time provided will allow such cases to conclude their work while ensuring a smooth transition between the ending of the current mechanisms and the commission taking on all responsibility for outstanding cases.
Our amendment provides until 1 May 2024 for inquests to conclude. Since the Bill’s introduction, expeditious case management in order to reach an “advanced stage” has resulted in the overloading of a system that was already struggling under incredible pressure, causing delay and frustration. This amendment will ensure that resources will now be focused on completing those inquests that have a realistic prospect of conclusion in the next year.
Troubles-related cases that do not conclude by 1 May 2024 will be transferred to the fully operational new commission led by Sir Declan Morgan as chief commissioner—the man who was responsible, as noble Lords will know, for reforming the inquest system a number of years ago. It is the Government’s expectation that this amendment provides sufficient time for coroners and Sir Declan as chief commissioner to develop a considered plan that will allow for the seamless handover of outstanding cases to the new commission.
Going back to our previous debate, I remind noble Lords that the independent commission will be supported by a legislative requirement of full disclosure by state bodies, and it will have access to all necessary policing powers and the power to compel witnesses to comply with its reviews. At the conclusion of any review, the commission will be able to make findings, made public via a family report, in a manner similar to an inquest.
Baroness Ritchie of Downpatrick (Lab)
My Lords, I believe that the Bill and the government amendments to this clause to do with inquests and judicial outcomes clearly undermine the fundamental tenet of basic human rights: the right to access to inquests and investigations for those seeking truth and justice following the heinous murder of their loved ones. Clause 40 deals with investigations, inquiries and inquests, but the Government seek to eradicate such provisions.
In my former role as MP for South Down, as an MLA for that constituency and as a district councillor, on many occasions I met families who had lost their parents, their siblings or their sons and daughters through summary execution by paramilitaries or as a result of state violence. On all occasions, those people wanted truth, justice and, above all, to know what had happened to their loved ones, why it had happened, what were the circumstances, and most of all, whether it could have been avoided.
I suppose that I have the most direct experience with Loughinisland, where six men were gunned down on 18 June 1994. That was subject to an inquiry by the former Police Ombudsman for Northern Ireland, the noble Baroness, Lady O’Loan, which was then progressed by her successors until eventually a Police Ombudsman report was published in 2016 which found elements of collusive behaviour between security forces and members of loyalist paramilitary organisations. I knew many of those people who were killed, and I have to say that the people I knew had absolutely no participation in terrorism. They abhorred violence, and perhaps their only political act was to vote. In fact, two of those people who were killed on that night were indirectly related to me, one of them the eldest man to be killed in the Troubles; his brother was married to my aunt. Those things you do not easily forget.
Clause 40 deals with investigations and the Government seek to eradicate those provisions. I am a signatory to Amendment 110 in the name of the noble Baroness, O’Loan, which seeks to remove this clause from the Bill and try to ensure a redress system. This view is supported by the Commission for Victims and Survivors, Amnesty and the CAJ, and latterly by the Tánaiste, Micheál Martin. He wrote an opinion piece this week for the Financial Times in which he states:
“Existing mechanisms for dealing with the legacy of the past, while imperfect, deliver important outcomes for those families, such as the vindication of a murdered loved one’s innocence. In its Legacy bill, the UK government intends to permanently close off access to these mechanisms—inquests, police ombudsman investigations, civil cases and police investigations—which are working for families and, importantly, demonstrating a vindication of the state’s obligations under the European Convention on Human Rights to investigate killings effectively”.
With the government amendments in this group, all investigations into harmful conduct forming part of the Troubles will be brought to an end by the Bill and by the amendment of the deadline to 1 May 2024. That applies to inquests, investigations, inquiries and investigations by the Police Ombudsman. After that date, the only remaining available investigation will be a toothless light-touch review by the ICRIR. This is a much inferior mechanism to those that currently exist.
For example, in the case of the late Sean Brown from Bellaghy, whose inquest hearings were last week—he was murdered by loyalist paramilitaries about 30 years ago—if information from the MoD and the police does not reach the inquest hearing, which has been delayed, the family fear that what they believe to be deliberate delaying tactics, which have proved successful for the state agencies, will continue until 1 May 2024 and there will therefore be no redress. The late Sean Brown’s widow and family simply want truth and justice via the inquest system. It is important that this right is not denied to them through this arbitrary deadline of 1 May 2024. I am also aware of police widows who seek similar redress, which they are entitled to.
The Commission for Victims and Survivors wants the inquest system to remain as it is because of a number of families who are concerned about this change of approach. These are the people who carry the weight of loss in circumstances that have never been properly explained. The 1 May 2024 deadline has added to that weight and their sorrow.
The Human Rights Commission’s view is that the existing system should be developed, not regressed. There have been significant steps forward for several families in uncovering the truth and seeking justice that would not have been possible without the existing systems—I have already referred to Loughinisland and the Police Ombudsman’s investigation. That point is emphasised by the CAJ, which states that the Bill will shut down existing legacy mechanisms when such mechanisms are increasingly delivering for families. The government amendments are designed to copper-fasten and extend this process.
I therefore support the amendment in the name of the noble Baroness, Lady O’Loan, which seeks to remove Clause 40 and ensure that the existing work, which is being done very efficiently and is helpful to families, can continue. Can the Minister confirm whether he received support for or opposition to these amendments and for the Government’s intended purpose in this legacy Bill in all the meetings he had over the last number of months? I urge him to withdraw the 1 May 2024 deadline and go back to the drawing board of the Stormont House agreement as a basis for dealing with legacy, because it has the involvement of the parties and of the Irish Government. Will he and government colleagues meet the Irish Government to discuss this issue as a matter of priority? If the noble Baroness moves her amendment on Monday, I will be very happy to support it.
Baroness O’Loan (CB)
My Lords, group 6 refers to criminal justice outcomes. These really are the critical clauses. They remove from those affected by deaths and serious injuries between 1966 and 1998 the ability to pursue civil actions for the loss or damage that they have suffered; the ability to have investigations, as required by the ECHR; and, in cases where people have suffered a violent death, the ability to have inquests in respect of those deaths.
The noble Lord, Lord Hogan-Howe, who cannot be with us this evening, and I asked the Government to provide definitions of “review” and “criminal investigation” in order to inform your Lordships’ understanding of the difference between the two, which is a vital issue in this Bill. The Minister expressed the view that it was not necessary to provide such definitions. However, in its report of January 2021 on the work of Operation Kenova and the Glenanne review—Operation Denton—the National Police Chiefs’ Council explained:
“Operation Denton differs from Kenova in that it is being conducted as a review, and not as a criminal investigation at this time. This makes the approach by the operational team fundamentally different to that of Kenova”,
which is an investigation,
“from an evidential perspective”.
That fundamental difference of approach is why His Majesty’s Government were so strongly criticised for making the function of the ICRIR to conduct reviews of deaths. That confusion continues to permeate the legislation. Even by Third Reading, perhaps the Minister might seek the assistance of the National Police Chiefs’ Council and provide us with an amendment to define “review” and “investigation”, which would help the House in making its decisions.
In future, despite the Minister’s Amendment 32 to Clause 23, it is for the commissioner to decide whether investigations should form part of a review. Once the Act comes into force, there will be no criminal investigations as we know them today by the police or other agencies in relation to Troubles-related offences. Existing investigations will cease unless a decision to prosecute has been made and the ongoing investigation is for the purpose of that prosecution. A few minutes ago, the Minister expressed the hope that Operations Kenova and Denton would be complete by 1 May 2024. However, I have to point out to him that that is not to be determined by Kenova and Denton, which have finished their work and are simply waiting for decisions from the Director of Public Prosecutions, security reviews, Maxwellisation and that sort of thing. There is very little that Kenova or Denton can do; it is for others to do this. We have been told, however, that others cannot do it because there are no resources; we are also told that that is the fault of the Northern Ireland Assembly, which does not sit. This does not seem to be a particularly constructive approach to the problem.
Unless a family member, the Secretary of State for Northern Ireland, the Attorney-General for Northern Ireland or the Advocate-General for Northern Ireland asks for a review and the ICRIR decides both that there should be a review and that the review should take the form of a criminal investigation, other investigations will simply cease without any provision for victims. Earlier, I referred in particular to the case of those three young police officers who were killed in the Kinnego Embankment explosion and whose file has been referred to the DPP. It would be wrong for these cases simply to die with the passing of this Bill.
In more limited circumstances where a review involves a death that was caused directly by conduct during the Troubles, coroners, sheriffs and procurators fiscal in Scotland can ask for a review. In all other cases, the investigation will cease and there will be no investigation and no provision for victims.
As a consequence of the Government’s amendments to this Bill, even those that say that there must be compliance with the obligations imposed by the Human Rights Act, such compliance is de facto not possible because, among other reasons, there is provision for immunity from prosecution for murderers and the ICRIR does not have unqualified access to information held by relevant agencies under Clause 5. Despite the Minister’s comments on the previous group, I, as Police Ombudsman for Northern Ireland, had the right to require the delivery of information. The ICRIR has the right only to reasonably request information. It is different.
Lord Browne of Ladyton (Lab)
My Lords, I stand to speak to Amendments 100, 103, 104 and 148 in my name, which are in this group. I find difficulty in explaining this: there are other amendments in my name in this group. Respectfully, they are Amendments 101, 149 and 150, and the fact that they are in this group concerns me because they are consequential to Amendment 123, which is in the eighth group. I will take advantage of raising this: Amendment 123 simply seeks to remove the phrase,
“the actual date of the First Reading”,
from the Bill and to substitute the actual date of the First Reading, which was 17 May 2022. That will probably save me a few seconds when we come back on Monday. That is the position.
Before I turn to Amendments 100, 103, 104 and 148, I will say two things. I fully support Amendment 110 in the name of the noble Baroness, Lady O’Loan, and will vote for it if she divides the House. I thank the noble Lord, Lord Caine, for addressing an issue that I raised in Committee about respect for devolution and the recognition that Scotland has had a separate jurisdiction from England since 1707 in the context of the UK and the role of the Lord Advocate. He has tabled an amendment to ensure that, in circumstances where, following a review, the commissioner for investigations considers that there is evidence that an offence has been committed, a referral must be made to the Lord Advocate where the suspected offence is an offence under the law of Scotland.
Insofar as it goes, this respects devolution. New subsection (2C) in the amendment reads as follows:
“The Lord Advocate may direct the Commissioner for Investigations to exercise the power of referral and notification in accordance with subsection (2B); and the Commissioner must comply with any direction that is given unless the person concerned has been granted immunity from prosecution under section 18 for the offence concerned”.
So, the commission still has the power to impact or to make a decision which will have extrajudicial impact in Scotland. That of itself, I suspect, will be considered disrespectful of devolution by the Scottish Parliament. That is perhaps a debate for another day, but I imagine that that debate will have to be had.
I return to Amendments 100 and those following. In tabling and speaking to these amendments, I am seeking to ensure that civil actions relating to the Troubles are not discontinued precipitately; that we reduce the risk of non-compliance with our obligations under Articles 2 and 6 of the ECHR; and that we preserve for a period of time a path to justice—albeit narrowing—for those families whose concerns, after all, ought to be paramount as we seek to improve this legislation.
Amendment 100 removes the blanket proscription on Troubles-related civil actions continuing on or after the day this Bill comes into force and instead allows such civil actions to be brought up to three years after that date when necessary. Given that, as we know, the ICRIR does not provide a legal remedy for victims and their families, surely accompanying the Bill’s other provisions with a complete ban on civil actions adds an element of insult to injury. Perhaps more seriously, this precipitate closure of an avenue towards civil redress, as I explained in detail in Committee and will not repeat, directly engages the UK’s obligations to offer access to a court under Article 6 of the ECHR.
As this Bill has journeyed through its various stages in your Lordships’ House, we frequently heard concerns about the degree to which the scope and powers of the ICRIR may already compromise access to justice, echoing the view of the former Northern Ireland Director of Public Prosecutions, who suggested that the Bill is incompatible with the ECHR as it abolishes due process. Surely, precluding the possibility of any further remedy through civil actions only imperils compliance with our ECHR obligations still further.
In considering the amendments I have put forward in this group, I returned to the official record of the Committee debates and re-examined the Minister’s response, which was characteristically thorough and generous of spirit. In his response on civil claims, he outlined three principal reasons that underlie his desire to discontinue all civil claims as outlined in Clause 39. He expressed concern, first, that they may impose an additional burden on the already backlogged Northern Irish civil courts; secondly, that they might reduce the status of the ICRIR as the primary institution dealing with Troubles-related offences; and, thirdly, that a three-year deadline might concentrate minds and lead to an enormous number of filings before this avenue of recourse is removed.
My answer to the first of these reasons is quite simple. Where families feel that a civil action is more likely to bring them the justice they seek, surely, administrative sclerosis is not an adequate reason for denying them that recourse. There are plenty of examples of this. Although I understand that the pandemic exacerbated the already considerable difficulties in this area, I struggle to countenance the idea that the solution to a struggling justice system is to deny justice to specific groups, rather than for the Government just to get to grips with the problem and make access to justice easier.
On the Minister’s second concern, I understand his need for the ICRIR to establish itself as the primary actor in Troubles-related offences, but while that imperative is important, it is surely trumped by the interests of the families it will be established to serve. Where they feel that civil action is their preferred recourse, the institutional interests of the ICRIR are, to say the least, secondary.
On the third point, about the possibility of a flurry of actions being filed to meet the three-year deadline, what is wrong with that? Some 25 years ago, I regularly appeared before courts and quite often asked judges to do things. On occasion, the judges would say to me, “But Mr Brown, that will open the floodgates”, or the people on the other side of the argument would say that it will open the floodgates. I developed quite a neat line, which was to say, “My Lord, this is a court of justice. If you are considering granting justice to one person today, it’s hardly a reason not to do so because somebody will come and ask you to do the same thing tomorrow”. That is what courts of justice are there for. Again, I appreciate the level of the backlog being worked through by the Northern Irish courts, but ultimately it is their job to dispense justice.
Baroness Hoey (Non-Afl)
My Lords, I support the Government’s intention to set a deadline on the issue of inquests. I oppose Amendment 110 because it is a—“wrecking amendment” is probably wrong because there are lots of things about this Bill that we all want to wreck, but the reality is that, without incorporating all inquests into the new body at some stage, it might as well not exist. We would see what I have mentioned before: lawfare would recommence with a vengeance at a very high cost, forcing reinvestigations that, if we are honest, would never occur or be enabled to occur here in England.
As it is, the ICRIR is already showing signs of becoming just a one-stop shop for reinvestigations of historic deaths currently or previously undertaken, as I mentioned on the previous amendment, by the PSNI’s legacy investigations branch, HET, the Police Ombudsman, Strasbourg, public or judicial inquiry, civil suits or inquests. The 50 or so currently outstanding promised inquests are almost all reopened ones that the courts, the DPP or the Attorney-General have decided were inadequate previously. Inquests were apparently being reopened according to two loose criteria: first, the usual one where collusion was alleged, such as Glenanne and Finucane; and, secondly, where the deceased was a terrorist but the command and control arrangements of the security forces were in question—in other words, once again only the state was being reinvestigated.
At the height of the Troubles, as we know, evidence gathering was next to impossible for fear of another death, so inquests tended to be brief, especially for the 700 murdered soldiers. It is worth remembering too that in the case of the IRA’s 1974 Birmingham bombing there was never an inquest.
Reopening has been granted when some new information has come to light after inspection of, for example, new files in the National Archives at Kew. Quite often the new information is not that compelling and, increasingly, judicial reviews do not succeed when the killings occurred up to 50 years ago. Judges accept that memories fade and become unreliable.
The Human Rights Act and thus the ECHR Article 2 procedure, much quoted in recent days by the Secretary of State, do not require deaths to be reinvestigated prior to its commencement in 2000. The Supreme Court has of course suggested that the cut-off date should be a decade earlier but certainly not the 1970s, so I think His Majesty’s Government are absolutely right on this and I oppose Amendment 110.
Baroness Suttie (LD)
My Lords, I shall speak in favour of Amendment 110, to which I have added my name. It would remove Clause 40 from the Bill and would have the effect of leaving the inquest system as it currently stands. I shall be extremely brief because the noble Baronesses, Lady O’Loan and Lady Ritchie, have made the case so powerfully in favour of the amendment.
The Minister will know that the victims’ commissioner, Ian Jeffers, is deeply concerned that removing the current inquest system would be an additional blow to families who have already waited decades for an inquest, and it is just not clear how and when the ICRIR will work to deal with them. Does the Minister agree that, when an inquest has begun and the preparatory work has been done, it seems inefficient and impractical to start a new process with new personnel?
Lord Murphy of Torfaen (Lab)
My Lords, after immunity, this part of the Bill is the most disliked, criticised and disapproved of in Northern Ireland. I understand why: because we will have inquests abolished, civil action banned and investigations not allowed to go on. That means the rule of law in Northern Ireland is being denied to the people, because of the decision of the Government to impose this Bill upon them.
I am not saying that there might not be occasions when all those things should happen. The problem is that, as in the case of immunity, effectively the Government have no Northern Ireland mandate for what they are doing. You can abolish the rule of law in some forms in a country only if the people are behind it. If the people’s representatives from all the political parties in Northern Ireland, and through all the churches and the organisations representing human rights there, and the victims’ commissioner for Northern Ireland, are opposed to this serious deflection from the rule of law then the only way that it can happen is if there is consensus.
The Good Friday agreement and the St Andrews agreement were based on consensus. The Stormont House agreement was based on consensus; the clue is in the name. The Minister shakes his head at that, but he knows that it would be a good basis for action if the Stormont House agreement were put forward. He had a very good Secretary of State at the time, but Johnson sacked him—maybe because he was too good. The issue, at the end of the day, is that you cannot impose these draconian changes in how the judicial and legal system works unless they have a legitimacy among the people who will have to live with them. That applies to the whole Bill but particularly to this provision. The reason why I support Amendment 110 is, again, because it gives the House of Commons the opportunity, if it is passed here, to have another look at it—a deep look at why this aspect of the Bill is so unpopular.
I cannot get my mind or head around why the Government are so stubborn on this. They can do what they like in Britain because they have a mandate, for another year, in the House of Commons. But, more than anybody else in the Government, the Minister knows that it is different in Northern Ireland and that these enormous changes cannot be made effective unless there is some sort of consensus. I do not for one second believe that the Government are wrong in seeking and trying to find a solution. The problem is that, in this case, they simply have not.
Lord Caine (Con)
My Lords, I am tempted to write at some point the definitive account of the Stormont House agreement, and to reveal just how exaggerated the levels of consensus in that agreement were. It almost started to unravel right from the start, and it was not entirely about legacy. In fact, legacy was never the motivation behind the talks that led to the agreement; it was about the Executive’s finances and welfare reform, principally. Anyway, that is for another day.
I discussed the clauses relating to investigations and inquests when opening this group, and these issues have been discussed at length both at Second Reading and in Committee. I will therefore not repeat well-rehearsed arguments here, other than to note the intervention by noble Lords today and to reassert that the primary purpose of the new commission—the ICRIR—is to provide more information through reviews that can include investigations. Those are not necessarily light-touch, as the noble Baroness, Lady Ritchie of Downpatrick, suggested; they can include full criminal investigations. It is to get more information to more families in a timelier manner than happens under the current processes.
I will respond to one point the noble Baroness, Lady O’Loan, and the noble Lord, Lord Browne of Ladyton, made on the recovery of costs. I have just looked at the Bill, which provides for costs. Clause 39(8)(a) stipulates that, while the prohibition will bring the substantive claim to an end, it will
“not stop costs proceedings from being continued or begun”.
The noble Baroness will know that inquests are covered by legal aid. So, I do not think it is entirely right to say that costs cannot be recovered. I willingly give way to the noble Baroness.
Baroness O’Loan (CB)
The noble Lord is very generous. I want to ask him if legal aid is available to everyone for inquests, or is it assessed according to income?
Lord Caine (Con)
It is assessed in the normal way, which the noble Baroness will know, in Northern Ireland. Inquests are covered by legal aid. The noble Baroness will know from looking at the Bill that cost proceedings where civil cases have begun can be continued. Anyway, I just wanted to try to be helpful to the noble Baroness in clarifying that.
Lord Browne of Ladyton (Lab)
I apologise for intervening on the Minister, but he did provoke me. My amendments relate to civil proceedings in these islands. There are sophistications about this, but broadly, costs go with success. In civil litigation, the people who win get costs against the people who made them go through the process in the court, at all that expense, but lost.
If the Government prevent anybody from winning or losing, who is going to bear the costs? I would find no difficulty in persuading a court that my party to a civil action had not lost at all. Therefore, we are both left with our own costs. However, the Government are responsible, through this legislation, for that cost for both of us. Neither of us had the opportunity to win, so we would come to the Government looking for costs. Either the Government will anticipate that in this legislation, or they will have to legislate for the number of people who have had civil claims stopped.
Lord Caine (Con)
Well, maybe I was very mistaken in trying to answer some of the questions put to me. I was merely setting out what is stated in the legislation, as the noble Lord will appreciate. I thank him. I do not intend to go over all the same arguments we have had extensively on all these matters, particularly at this late hour.
Moving on to the amendments in the name of the noble Lord, Lord Browne of Ladyton, on civil claims, as has been set out many times, our clear policy intent regarding Troubles-related civil claims is to reduce the burden on the Northern Ireland civil courts, which are ill-equipped to process such numbers, while allowing the ICRIR the ability to establish itself as the sole investigative body looking at Troubles-related deaths and serious injuries.
The amendments in the name of the noble Lord, Lord Browne, include Amendment 159. This would provide a three-year grace period for civil claims to be filed and would direct potential casework away from the new commission while placing further strain on an already creaking system in Northern Ireland. Under current estimates, it will take decades to work through its current backlog of over 700 cases. This is much less likely to provide answers for families in an efficient manner, which, again, sits in opposition to the stated aims I have set out.
In relation to Amendment 104, I remind the House that all civil claims filed before the date of introduction—over 700 cases—will be able to continue to conclusion. Claims that were filed following the Bill’s introduction, and with the knowledge that this prohibition would come into force when the Bill became an Act, will not.
In response to Amendment 98A in the name of the noble Lord, Lord Dodds, I sympathise with the sentiment behind the amendment, which is to provide additional scope for prosecutions to proceed. The amendment tabled in my name provides additional time, until 1 May 2024, for prosecution decisions to be made by prosecutors. It is the Government’s hope that, with this additional time, resources can focus on concluding a number of decisions in legacy cases before the cut-off point of 1 May 2024, when the commission will become operational.
Baroness O'Loan (CB)
Can the Minister enlighten us as to what remedy the Bill will provide to those who seek, in the civil court, not information but damages for torts they have suffered and that will be removed from them by Clause 39? Judicial review is not a remedy for tort. The remedy for tort is damages, if you establish it.
Lord Caine (Con)
As I said and as the noble Baroness will be aware, 700 cases are currently stuck in the Northern Ireland courts, and they will still be allowed to proceed after the prohibition comes into effect. That will probably take many decades to bring to a conclusion but, thereafter, she is right: any cases that were filed after the First Reading of the legislation will not proceed and will therefore go into the new body for examination, should that be the wish of the families.
Lord Caine
Member’s explanatory statement
This is consequential on the amendments in Lord Caine’s name relating to Clause 40.
Member’s explanatory statement
This is consequential on the amendments in Lord Caine’s name relating to Part 1 of Schedule 10.
Member’s explanatory statement
This is consequential on the amendments in Lord Caine’s name relating to Part 2 of Schedule 10.
Member’s explanatory statement
This is consequential on the amendments in Lord Caine’s name relating to Part 2 of Schedule 10.
Lord Caine
“(A1) The Commissioner for Investigations must comply with the obligations imposed by the Human Rights Act 1998 when exercising functions under this section.”Member’s explanatory statement
This amendment expressly confirms that the Commissioner for Investigations (when exercising operational control over the conduct of reviews) must comply with obligations imposed by the Human Rights Act 1998.