Northern Ireland Troubles (Legacy and Reconciliation) Bill

(Limited Text - Ministerial Extracts only)

Report stage
Wednesday 21st June 2023 Lords Chamber

Moved by

[Lord Caine]

1: Clause 2, page 3, line 11, leave out “one, two or three” and insert “between one and five”
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.

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[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.

Amendment 1 agreed.

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Moved by

[Lord Caine]

2: Clause 2, page 3, line 11, at end insert—
“(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?

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[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.

Amendment 2 agreed.

Moved by

[Lord Caine]

3: Clause 2, page 3, line 26, at end insert—
“(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.

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Moved by

[Lord Caine]

4: Clause 2, page 3, line 26, at end insert—
“(4A) At least three months before the start of each financial year the ICRIR must—(a) produce and publish a work plan for that year, and (b) give a copy of the plan to the Secretary of State.But this duty does not apply in relation to any financial year which starts before 1 April 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.

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[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.

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[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.

Amendment 4 agreed.

Moved by

[Lord Caine]

5: Clause 2, page 3, leave out line 27 and insert—
“(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).

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[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.

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[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.

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[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.

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[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?

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Moved by

[Lord Caine]

11: Clause 4, page 4, line 29, at end insert—
“(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.

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[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 Bew (CB)]

I beg leave to withdraw Amendment 12.

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Moved by

[Lord Caine]

14: Clause 5, page 5, line 21, leave out from “require” to “to” in line 22 and insert “any of the following persons”
Member’s explanatory statement
This amendment is consequential on the other amendment of this Clause in Lord Caine’s name

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Moved by

[Lord Caine]

16: Clause 7, page 6, line 15, at end insert—
“(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.

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Moved by

[Lord Caine]

19: Clause 8, page 7, line 37, after “section” insert “—
“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.

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[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.

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[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.

Amendment 19 agreed.

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Moved by

[Lord Caine]

22: Clause 9, page 8, line 17, leave out sub-paragraph (i)
Member’s explanatory statement
This is consequential on the amendments in Lord Caine’s name relating to Clause 40.

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Moved by

[Lord Caine]

30: Clause 13, page 11, line 1, at end insert—
“(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.