Northern Ireland Troubles (Legacy and Reconciliation) Bill
Monday 26th June 2023
(1 year, 5 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-II Second marshalled list for Report - (22 Jun 2023)
16:14 - Division on Amendment 31 - Ayes: 203 / Noes: 179 - Amendment 31 agreed.
16:29 - Division on Amendment 66 - Ayes: 197 / Noes: 185 - Amendment 66 agreed.
16:42 - Division on Amendment 98A - Ayes: 183 / Noes: 191 - Amendment 98A disagreed.
17:25 - Division on Amendment 110 - Ayes: 181 / Noes: 197 - Amendment 110 disagreed.
“(3A) The Commissioner for Investigations must ensure that each review—(a) is carried out to criminal justice standards as modelled on Operation Kenova,(b) complies fully with obligations under the European Convention on Human Rights,(c) gathers as much information as possible in relation to the death or harmful conduct, and(d) explores all evidential opportunities.(3B) “Operation Kenova” means the independent investigation established under the overall command of former Chief Constable Jon Boutcher in 2016, known as Operation Kenova.”Member’s explanatory statement
This amendment establishes minimum standards for a “review” conducted by the ICRIR to ensure conduct is investigated to criminal justice standards, along the lines of Operation Kenova.
Baroness Ritchie of Downpatrick (Lab)
My Lords, we had an extensive debate on Amendment 31 last Wednesday and on behalf of my noble friend Lord Hain, I want to test the opinion of the House.
The Deputy Speaker (Lord Russell of Liverpool) (CB)
My Lords, I ask the House to be patient, as we now have to gallop through a series of amendments up to Amendment 99, so please bear with me and do not move around too much.
Amendment 32 and 33
Lord Caine
“(4A) In particular, the Commissioner for Investigations is to decide whether a criminal investigation is to form part of a review.”Member’s explanatory statement
This makes clear that the Commissioner for Investigations should consider whether there should be a criminal investigation as part of an ICRIR review.
“(7A) Subsection (A1) does not limit the duty of the Commissioner for Investigations to comply with the obligations imposed by the Human Rights Act 1998 when exercising other functions.”Member’s explanatory statement
This makes clear that the duty of the Commissioner for Investigations to comply with the Human Rights Act 1998 is not limited by the express provision in the new subsection (A1).
Lord Caine
“(2A) The final report must include a statement of the manner in which the review was carried out.”Member’s explanatory statement
This amendment requires the final report to include a statement about the manner in which a review was carried out.
Member’s explanatory statement
This amendment limits the material that is to be given to a person criticised by a draft report before the final report is produced (so that the person is only given the critical material).
“(6A) In the case of any review, if it is proposed to include in the final report material criticising a public authority, the Chief Commissioner must, before producing the report—(a) give a copy of that material to the public authority or to a person who, in the Chief Commissioner’s view, currently has responsibility for the public authority; and(b) allow that public authority or person to make representations about that material during the applicable response period.”Member’s explanatory statement
This amendment provides for a public authority that is criticised in a draft report to be given the opportunity to make representations about the critical material.
Lord Caine
Member’s explanatory statement
This amendment replaces existing wording with the new defined term “consulted” which is inserted into subsection (12) by the amendment in Lord Caine’s name.
Lord Caine
Member’s explanatory statement
This amendment replaces existing wording with the new defined term “consultation provisions” which is inserted into subsection (12) by the amendment in Lord Caine’s name.
Lord Caine
Member’s explanatory statement
This amendment replaces existing wording with the new defined term “consulted” which is inserted into subsection (12) by the amendment in Lord Caine’s name.
Member’s explanatory statement
This amendment is consequential on the amendment of subsection (6)(a) in Lord Caine’s name.
Member’s explanatory statement
This amendment replaces existing wording with the new defined term “consulted” which is inserted into subsection (12) by the amendment in Lord Caine’s name.
““consultation provisions” means subsections (3) to (6A);“consulted” means given a draft of a report or other material, and allowed to make representations, in accordance with the consultation provisions;”Member’s explanatory statement
This amendment adds the defined terms “consultation provision” and “consulted” to the interpretation provision of Clause 15. These terms replace existing references to subsections (3) to (5), and bring subsection (6) and the new subsections (6A) within the scope of those references.
““material criticising a public authority” means material which, in the Chief Commissioner’s view, constitutes significant criticism of a public authority (and that material may consist of or include criticism of one or more individuals, whether living or not);”Member’s explanatory statement
This amendment adds a defined term which is used in the new subsection (6A).
Lord Caine
Member’s explanatory statement
This amendment would divide Clause 15 into two Clauses.
Lord Caine
“(5A) If a final report is not published in such a case, the Chief Commissioner must publish the statement of the manner in which the review was carried out that is included in the final report in accordance with section 15(2A).”Member’s explanatory statement
This amendment requires the Chief Commissioner to publish the statement about the manner in which the review was carried out if the final report is not published.
Member’s explanatory statement
This amendment is consequential on the amendment in Lord Caine’s name to insert the new subsection (5A).
Lord Caine
(a) producing under section 15, and giving and publishing under section 16(2) and (3), the final report on the findings of an excepted review, or(b) publishing under section 16(5A) the statement of the manner in which an excepted review was carried out.(2A) For that purpose an “excepted review” is—”Member’s explanatory statement
This amendment expands subsection (2) to delay the production or publication of the final report, or the statement required by section 15(2A), where conduct is referred to a prosecutor.
Member’s explanatory statement
This amendment is consequential on the amendments to Clause 23 in Lord Caine’s name.
Member’s explanatory statement
This amendment is consequential on the amendment of subsection (2) in Lord Caine’s name.
Member’s explanatory statement
This amendment is consequential on the amendment of Clause 15(6), and the new subsection (6A) inserted into Clause 15, by other amendments in Lord Caine’s name.
Member’s explanatory statement
This amendment is consequential on the amendment of subsection (2) in Lord Caine’s name.
Member’s explanatory statement
This amendment is consequential on material in Clause 20(8) being removed and instead appearing in the new Schedule (No immunity in certain circumstances) by virtue of other amendments in Lord Caine’s name.
Member’s explanatory statement
This amendment is consequential on the amendments to Clause 23 in Lord Caine’s name.
Member’s explanatory statement
This amendment is consequential on the amendments to Clause 23 in Lord Caine’s name.
Lord Caine
(b) any other law that might or would prevent a prosecution of P for an offence from being begun or continued (for example, abuse of process—but see paragraph 3 of Schedule (No immunity in certain circumstances)).”Member’s explanatory statement
This provides that the immunity requests panel can ignore any law that would prevent a prosecution, when the panel is deciding when P’s disclosed conduct would tend to expose P to criminal enforcement action in respect of an offence.
Lord Caine
Member’s explanatory statement
This amendment is in consequence of new Clause (Subsequent convictions: revocation of immunity).
Member’s explanatory statement
This amendment is in consequence of new Schedule (No immunity in certain circumstances).
Lord Murphy of Torfaen
Member’s explanatory statement
This amendment would remove Clause 18 from the Bill, preventing a person from requesting immunity from prosecution as part of the ICRIR’s investigations of Troubles-related conduct.
Lord Murphy of Torfaen (Lab)
My Lords, this amendment deletes Clause 18, which introduces conditional immunity in the Bill. This is the most contentious and controversial part of the Bill. It is almost universally condemned in Northern Ireland, and I wish to test the opinion of the House.
Lord Caine
Member’s explanatory statement
The provision made by Clause 19 is moved to the new Schedule (No immunity in certain circumstances).
Lord Caine
Member’s explanatory statement
This amendment leaves out subsection (1) as corresponding provision is included in new Schedule (No immunity in certain circumstances) in Lord Caine’s name.
Lord Caine
“(7A) If the Chief Commissioner is unable to exercise some or all of the immunity functions, generally or in particular circumstances, the Chief Commissioner may nominate another person—(a) to temporarily exercise the immunity functions so far as the Chief Commissioner is unable to exercise them, and(b) to be a temporary member of, and to temporarily chair, the immunity requests panel so far as those functions are panel functions.(7B) But the Secretary of State may nominate a person under subsection (7A) if the Chief Commissioner is unable to make a nomination.(7C) A person may not be nominated under subsection (7A) if the person—(a) would be disqualified from appointment as a Commissioner by paragraph 7(2) of Schedule 1 (imprisonment, insolvency or disqualification from being a company director), or(b) does not hold, and has not held, high judicial office (within the meaning of paragraph 7 of Schedule 1).(7D) This Act is to apply to the exercise of immunity functions by a person appointed under subsection (7A) as if the functions were being exercised by the Chief Commissioner.(7E) In this section—“immunity functions” means—(a) the function conferred by subsection (6), and(b) panel functions;“panel functions” means functions of the Chief Commissioner as a member or the chair of the immunity requests panel.”Member’s explanatory statement
This amendment would allow a person to be nominated to act temporarily if the Chief Commissioner is unable to act, whether generally or in particular circumstances (eg. because of a potential conflict of interest), in relation to requests for immunity.
Lord Caine
Member’s explanatory statement
This amendment is consequential on the amendment in Lord Caine’s name to leave out subsection (1).
Lord Caine
“(1A) The ICRIR must take reasonable steps to obtain any information which the Commissioner for Investigations knows or believes is relevant to the question of the truth of P’s account.”Member’s explanatory statement
This amendment would require the ICRIR to take reasonable steps to obtain information in connection with determining the truth of P’s account (see Clause 18(3)).
Member’s explanatory statement
This amendment is consequential on the insertion of the new subsection (1A) by the amendment in Lord Caine’s name.
Member’s explanatory statement
Subsection (4) needs to be removed in consequence of the insertion of the new subsection (1A) by the amendment in Lord Caine’s name.
Member’s explanatory statement
This would require (instead of allow) guidance to be given under subsection (6); and would require the guidance to be given by the Chief Commissioner (instead of the Secretary of State).
Member’s explanatory statement
This is consequential on the amendment of subsection (6) conferring the function of giving guidance on the Chief Commissioner (instead of the Secretary of State).
(a) the making of decisions”Member’s explanatory statement
This would require (instead of allow) guidance to be given under subsection (7); and would require the guidance to be given by the Chief Commissioner (instead of the Secretary of State).
Member’s explanatory statement
This is consequential on the other amendment of subsection (8) in Lord Caine’s name.
“(8A) The immunity requests panel must take account of guidance given under subsection (6) or (8) when exercising functions to which it relates.”Member’s explanatory statement
This is consequential on the other amendments of subsections (6) and (8) in Lord Caine’s name.
Lord Caine
“(3A) For provision about the nomination of a person to act temporarily instead of the Chief Commissioner, see section 20(7A).”Member’s explanatory statement
This amendment is consequential on the amendment in Lord Caine’s name adding subsection (7A) to Clause 20.
Lord Caine
“Personal statements by persons affected by deaths etc
(1) This section applies in relation to—(a) each review of a death which the ICRIR carries out following a request made under section 9;(b) each review of other harmful conduct which the ICRIR carries out following a request made under section 10;(c) each request for immunity from prosecution that is made under section 18 (whether or not the ICRIR carries out a review following a decision made under section 12(2) or (3), and whether or not the ICRIR has made such a decision).(2) The Chief Commissioner must give an eligible person an opportunity to provide a personal statement to the ICRIR.(3) If an eligible person provides a personal statement, the Chief Commissioner must give that person an opportunity to supplement the statement.(4) In this section “personal statement” means a statement by an eligible person about the way in which, and degree to which, the Troubles-related events have affected and continue to affect—(a) that person, and(b) other relevant persons (if, and to the extent that, the person providing the statement is aware of, and wishes the statement to deal with, the effect on those persons).(5) The definitions in subsection (6) are to be used for the purposes of this section in cases where this section applies—(a) in relation to a review of a death which the ICRIR carries out following a request made under section 9, or(b) in relation to a request for immunity from prosecution that is made under section 18—(i) where the ICRIR carries out a review of a death following a decision made under section 12(2), or(ii) where, if the ICRIR were to carry out a review in connection with the request for immunity, it would be a review of a death following a decision made under section 12(2).(6) In any of those cases—“eligible person” means—(a) each known close family member of the deceased (and Part 1 of Schedule 3 is to apply for the purpose of determining who is a close family member), or(b) if there are no known close family members, each other known family member of the deceased to whom the Chief Commissioner considers it is appropriate to give an opportunity to provide a personal statement;and here “known” means known to the ICRIR by virtue of any of its other functions;“other relevant person” means—(a) a member of the family of the person to whose death the review relates;(b) a member of the family of any other person killed in the relevant event;(c) a person who suffered serious physical or mental harm in the relevant event and has subsequently died;(d) members of the family of a person falling within paragraph (c);“Troubles-related events” means—(a) the death to which the review relates, and(b) the relevant event (which has the same meaning as in section 15(4)).(7) The definitions in subsection (8) are to be used for the purposes of this section in cases where this section applies—(a) in relation to a review of other harmful conduct which the ICRIR carries out following a request made under section 10, or(b) in relation to a request for immunity from prosecution that is made under section 18—(i) where the ICRIR carries out a review of other harmful conduct following a decision made under section 12(3), or(ii) where, if the ICRIR were to carry out a review in connection with the request for immunity, it would be a review of other harmful conduct following a decision made under section 12(3).(8) In any of those cases—“eligible person” means—(a) each known close family member of the injured person (and Part 1 of Schedule 3 is to apply for the purpose of determining who is a close family member), or(b) if there are no known close family members, each other known family member of the injured person to whom the Chief Commissioner considers it is appropriate to give an opportunity to provide a personal statement;and here “injured person” means the person who was caused the physical or mental harm by the other harmful conduct concerned; and “known” means known to the ICRIR by virtue of any of its other functions;“other relevant person” means—(a) a member of the family of any person killed in the relevant event;(b) a person who suffered serious physical or mental harm in the relevant event and has subsequently died;(c) members of the family of a person falling within paragraph (b);“Troubles-related events” means—(a) the other harmful conduct to which the review relates, and(b) the relevant event (which has the same meaning as in section 15(5)).”Member’s explanatory statement
This amendment requires the Chief Commissioner to give individuals affected by a death or other harmful conduct the opportunity to provide personal statements to the ICRIR about the effects of the Troubles-related conduct.
“Publication of personal statements
(1) This section applies where—(a) an eligible person provides a personal statement in accordance with section (Personal statements by persons affected by deaths etc), and(b) the person notifies the Chief Commissioner that the person wishes the personal statement to be published by the Chief Commissioner.(2) The Chief Commissioner must publish the personal statement.(3) But that duty does not apply if publication of the personal statement—(a) would breach section 4(1) or 26(2), or(b) would, in the Chief Commissioner’s view, be contrary to the public interest.(4) If it is possible to do so, the Chief Commissioner must instead produce an edited version of the personal statement which can be published without—(a) breaching section 4(1) or 26(2), or(b) being, in the Chief Commissioner’s view, contrary to the public interest.(5) But the Chief Commissioner must not publish an edited version unless the person who provided the personal statement agrees to the publication of that version.(6) The Chief Commissioner does not breach the duties imposed by subsections (2) and (4) if the Chief Commissioner—(a) wishes to publish an edited version in accordance with subsection (4),(b) is not able to obtain the agreement to publication of an edited version from the person who provided the personal statement, and(c) accordingly does not publish the personal statement or any edited version.(7) The duties imposed by subsections (2) and (4) do not apply if, and for as long as, section 17(2) or (3) has the effect of suspending the duty to publish any final report that is related to the personal statement.(8) If the Chief Commissioner—(a) intends to publish an edited version of the personal statement in accordance with subsection (4), or(b) intends to publish neither—(i) the personal statement because subsection (3) applies, nor(ii) any edited version of the personal statement because it is not possible to do so in accordance with subsection (4),the Chief Commissioner must give to the person who provided the personal statement the reasons for taking that course of action.(9) A reference in this section—(a) to a personal statement includes anything which supplements a personal statement;(b) to an edited version of a personal statement includes a version of the statement which has been redacted.(10) For the purposes of this section a final report is “related to” a personal statement if—(a) the statement is provided in a case where section (Personal statements by persons affected by deaths etc) applies in relation to—(i) a review which the ICRIR carries out following a request made under section 9 or 10, or(ii) a request for immunity from prosecution where the ICRIR carries out a review following a decision made under section 12(2) or (3), and(b) the final report is the final report of the findings of that review.”Member’s explanatory statement
This amendment requires the Chief Commissioner to publish a personal statement provided under new Clause (Personal statements by persons affected by deaths etc).
Lord Caine
“(2) If the Commissioner for Investigations considers there is evidence that relevant conduct constitutes an offence under the law of Northern Ireland by an individual whose identity is known to the Commissioner, the Commissioner—(a) may refer the conduct to the Director of Public Prosecutions for Northern Ireland, and(b) if the conduct is referred, must notify that prosecutor of the offence concerned.(2A) If the Commissioner for Investigations considers there is evidence that relevant conduct constitutes an offence under the law of England and Wales by an individual whose identity is known to the Commissioner, the Commissioner—(a) may refer the conduct to the Director of Public Prosecutions (for England and Wales), and(b) if the conduct is referred, must notify that prosecutor of the offence concerned.(2B) If the Commissioner for Investigations considers there is evidence that relevant conduct constitutes an offence under the law of Scotland by an individual whose identity is known to the Commissioner, the Commissioner may—(a) refer the conduct to the Lord Advocate, and(b) notify that prosecutor of the offence concerned.(2C) 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.(2D) In any case where the Commissioner for Investigations refers conduct to a prosecutor under this section, the Commissioner—”Member’s explanatory statement
This amendment would enable the Lord Advocate to require the Commissioner for Investigations to refer relevant conduct to the Lord Advocate.
(b) any other conduct that relates to, or is otherwise connected with, the main conduct;and for this purpose other conduct is to be regarded as connected with the main conduct, in particular, if all of that conduct formed part of the same event.”Member’s explanatory statement
This expands the kinds of conduct that can be referred to a prosecutor after an ICRIR review relating to a death or other harmful conduct. Other conduct related to or connected with the death or other harmful conduct can also be referred.
Lord Caine
“Subsequent convictions: revocation of immunity
(1) If—(a) a person is convicted of an offence under section (False statements: offence),(b) that offence was committed in the course of requesting the ICRIR to grant the person immunity from prosecution under section 18, and(c) the person was granted the immunity from prosecution,the court which sentences the person for the offence must revoke that grant of immunity from prosecution.(2) If—(a) a person is convicted of a terrorist offence or an offence with a terrorist connection, and(b) the person had been granted immunity from prosecution under section 18 before the offence was committed,the court which sentences the person for that offence must revoke every grant of immunity from prosecution under section 18 given to the person before the offence was committed.(3) For the purposes of subsection (2) a person is convicted of “a terrorist offence or an offence with a terrorist connection” if—(a) the person is convicted of an offence by a court in Northern Ireland and either—(i) the offence is listed in Schedule 1A to the Counter-Terrorism Act 2008, or(ii) the court determines under section 30(2) of that Act that the offence has a terrorist connection;(b) the person is convicted of an offence by a court in England and Wales and either—(i) the offence is listed in Schedule A1 to the Sentencing Code, or(ii) the court determines under section 69 of the Sentencing Code that the offence has a terrorist connection;(c) the person is convicted of an offence by a court in Scotland and either—(i) the offence is listed in Schedule 1A to the Counter-Terrorism Act 2008, or(ii) section 31 of that Act applies to the offence (offences with a terrorist connection in Scotland).(4) Where—(a) an offence is found to have been committed over a period of two or more days, or at some time during a period of two or more days, and(b) a grant of immunity from prosecution is given at any time during that period,that grant of immunity from prosecution is to be regarded for the purposes of subsection (2) as having been given before the offence was committed.(5) A revocation of immunity under this section—(a) has immediate effect;(b) does not prevent a person making a further request for immunity under section 18 (but see Part 2 of Schedule (No immunity in certain circumstances) for provision about requests that overlap with revoked immunities).”Member’s explanatory statement
This amendment requires courts to revoke immunity granted under Clause 18 if a person is subsequently convicted of making a false statement in the course of applying for that immunity (see new clause (False statements: offence) or convicted of a terrorist offence or offence with a terrorist connection.
Lord Caine
“False statements: offence
(1) A person commits an offence by making a false statement to the ICRIR in connection with any of its functions under sections 18 to 22.(2) For the purposes of this section—(a) a person makes a false statement by—(i) making a statement which the person knows to be false in a material respect, or(ii) recklessly making a statement which is false in a material respect;(b) “making a statement” includes giving an account in connection with a request for immunity under section 18.(3) A person guilty of an offence under this section is liable—(a) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both;(b) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both;(c) on summary conviction in England and Wales, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine or both;(d) on summary conviction in Scotland, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum or both.(4) Proceedings for an offence under this section may be instituted—(a) in Northern Ireland, only by or with the consent of the Director of Public Prosecutions for Northern Ireland;(b) in England and Wales, only by or with the consent of the Director of Public Prosecutions.”Member’s explanatory statement
This amendment prohibits (knowingly or recklessly) providing a statement to the ICRIR that is materially false.
Lord Caine
Member’s explanatory statement
This would remove the provision that allows reports or statements about criminal investigations to be produced for a limited period after Clause 34 comes into force. It is no longer needed in consequence of the amendment in Lord Caine’s name providing for Clause 34 to come into force on 1 May 2024 (instead of two months after royal assent).
Member’s explanatory statement
This is consequential on the other amendment of Clause 34 in Lord Caine’s name.
Lord Caine
Member’s explanatory statement
This is consequential on the other amendment of Clause 36 in Lord Caine’s name.
Member’s explanatory statement
This amendment is consequential on the amendments to Clause 23 in Lord Caine’s name.
Member’s explanatory statement
This amendment is consequential on the amendments to Clause 23 in Lord Caine’s name.
“(2A) An ICRIR officer, or another person acting in connection with the exercise of the ICRIR’s functions, may arrest or otherwise detain P in connection with the offence by P.(2B) An ICRIR officer, or another person acting in connection with the exercise of the ICRIR’s functions, may charge P with the offence by P; and a prosecutor may conduct criminal proceedings arising from any such charge.(2C) If subsection (2) becomes applicable to the offence by P, criminal enforcement action against P in respect of the offence may no longer be taken in accordance with subsection (2A) or (2B).(2D) But that does not limit the criminal enforcement action that may be taken in accordance with subsection (2) after it becomes applicable (and, in particular, action previously taken in accordance with subsection (2A) or (2B) may be continued in accordance with subsection (2)).(2E) Subsections (2), (2A) and (2B) only authorise a person to take criminal enforcement action by the exercise of powers which that person has otherwise than by virtue of this section.”Member’s explanatory statement
This expands the criminal enforcement action that can be taken where immunity has not been granted and where a referral to a prosecutor has not been made. It allows P to be arrested, and preserves the possibility of the ICRIR charging P with an offence.
Lord Caine
Member’s explanatory statement
This removes the use of “P” to refer to a person who is being prosecuted for an offence.
Lord Dodds of Duncairn
“(3A) For the purposes of subsection (3), a criminal prosecution of P is to be treated as having begun when a file relating to the criminal investigation into P’s conduct has already been submitted to the Public Prosecution Service for Northern Ireland on or before the day that section 33 comes into force.(3B) But if no prosecution of P is directed on the basis of the file submitted to the Public Prosecution Service for Northern Ireland, the case relating to P must be returned to the ICRIR for investigation in accordance with this Part.”Member’s explanatory statement
The purpose of this amendment is to treat a public prosecution as having begun when the file is passed to the Public Prosecution Service for Northern Ireland.
Lord Dodds of Duncairn (DUP)
My Lords, the purpose of this amendment is to treat a public prosecution as having begun when a file is passed to the Public Prosecution Service for Northern Ireland. It is an important issue; it would allow work to continue in those cases which have already completed their police investigation. I wish to test the opinion of the House. I beg to move.
Lord Faulks
“Authorisation of interim custody orders under the Detention of Terrorists (Northern Ireland) Order 1972
(1) Article 4 of the Detention of Terrorists (Northern Ireland) Order 1972 is to be treated as always having had effect as authorising an interim custody order under that article in relation to a Troubles-related offence to be made by and with the authority of any Minister of the Crown whose signature was required for the making of such an order (and not just by and with the authority of the Secretary of State personally).(2) Subsection (1) does not revive any criminal conviction quashed before the coming into force of this section.(3) But a person whose conviction for any Troubles-related offence (whether or not quashed) or whose detention (whether or not as a consequence of such a conviction) depended, directly or indirectly, on the validity of such an interim custody order is not entitled, by or under any enactment or otherwise, to receive any damages or compensation in respect of that conviction or detention if the only reason for impugning its validity relates to whether the order was made by and with the authority of the Secretary of State, personally.(4) Subsection (3) applies irrespective of whether the claim for damages or compensation was made before or after the coming into force of this section.”
Lord Faulks (Non-Afl)
My Lords, this amendment, which is supported by the noble Lord, Lord Godson, and the noble Baroness, Lady Hoey, was debated in Committee. It concerns a judgment of the Supreme Court in a claim by Gerry Adams arising out of his internment in the 1970s and his escape from prison. The issue before the Supreme Court was whether his internment, or interim custody order as it was more formally known, was lawful in light of the fact that the Government could not prove that the ICO had been personally signed and approved by the then Secretary of State for Northern Ireland. The lower courts decided that it was, but the Supreme Court, in a single judgment from Lord Kerr, reached a conclusion, which surprised many commentators, that it was unlawful—thus leaving the door open for substantial claims by not only Gerry Adams but a number of others who could rely on the decision.
The most prominent critics of the decision were from Policy Exchange, which has consistently and cogently argued that the decision flew in the face of the well-established Carltona doctrine. This is embedded in government practice and can be found in the cautious guidance given to civil servants about “the judge over your shoulder”. It means, for fairly obvious reasons, that such a decision can be taken by more junior Ministers or civil servants and does not require the personal attention of the Secretary of State to render the decision lawful. This practice was spoken to in Committee by the noble Lords, Lord Butler, Lord Murphy, Lord Howell, Lord Macdonald of River Glaven and Lord Browne of Ladyton, among others.
Your Lordships’ House is always slow to legislate contrary to a decision of the Supreme Court. Parliament affords our highest court great respect, and rightly so. When I had the privilege of chairing the Independent Review of Administrative Law, the committee received a number of submissions, including from Supreme Court judges, suggesting caution in our approach to the reform of judicial review, but it was always emphasised by them that Parliament had the right to legislate to reverse decisions of the court. My committee concluded that Parliament could and should do so, but only after very careful consideration of the arguments.
In advancing this amendment, I am considerably reassured by the criticism of the Supreme Court decision by the former Supreme Court judges Lord Sumption and Lord Brown of Eaton-under-Heywood, who last week had an article published on the subject by the Daily Telegraph. I will refer to the beginning of the article, although all of it bears close attention. He said:
“In the last few years, almost without exception, every judgment of the Supreme Court, certainly every unanimous one, has seemed to me to be plainly right, and certainly not plainly wrong. But the Court’s unanimous 2020 decision in Adams is an exception. Importantly this has introduced needless legal doubt about one of the most important principles on which the everyday work of government depends. Parliament has an opportunity—with a proposed amendment to the Northern Ireland Troubles Bill, now before the Lords—to put this right. It should do so”.
While on the subject of Lord Brown, noble Lords will probably have noticed that last week he formally retired from the House. I take this opportunity to pay tribute to his immense contribution to the work of this House. His voice has enriched so many debates. Many noble Lords will remember his sustained championing of the cause of IPP prisoners. His instincts were liberal, but he always understood the difficult choices that any Government have to make. It was not always easy to predict which side he would take in a debate, which made his views so well worth listening to. He also made an enormous number of friends right across the House, and we will miss him a great deal.
The Government understandably wanted time to consider their response to the amendment after it was debated in Committee. Their initial response, while not unsympathetic, was that there were legal impediments in the way of the amendment. I was not convinced by those arguments, despite having the opportunity generously afforded to me by the Minister to meet his officials. Policy Exchange, once more, stepped into the fray and published an article that provided a convincing counter to those arguments.
However, I am glad to say that the Government’s position has changed. For this I am very grateful both to the Minister and to the Secretary of State, Chris Heaton-Harris. I am also grateful to all noble Lords who have lent their support to the amendment. I understand that the Government need a little more time but are proposing to bring forward an amendment at Third Reading that will reflect the concerns contained in this amendment. I have indicated to them that, if the amendment proposed by the Government does not meet the objectives contained in this amendment, we reserve the right to—and we will—vote at Third Reading. In the meantime, I thank them for their constructive approach. The Bill is about legacy. This amendment provides an opportunity to put an injustice right. It will provide legal certainty. What better legacy could there be? I beg to move.
Lord Butler of Brockwell (CB)
My Lords, I support the amendment moved by the noble Lord, Lord Faulks. I also echo his remarks about Lord Brown of Eaton-under-Heywood, for many years my noble friend in this House and on the golf course. His wisdom and contribution have been tremendous. The very powerful article he wrote in the Daily Telegraph last week could have been the speech he would have made today.
I want to add two things. One is about public administration and the other is about the implications of not accepting this amendment.
Lord Howell of Guildford (Con)
My Lords, I, too, support this amendment, so powerfully moved by the noble Lord, Lord Faulks, and supported by the noble Lord, Lord Butler. I realise that behind the amendment is the wider concern of protecting the Carltona principle from being undermined—and I shall come to that a bit more in a moment.
It may help your Lordships if I explain some of the detailed background of how we operated during this period in Northern Ireland and Belfast after the fall of Stormont in 1972. In doing so, I draw from extensive personal notes that I made of almost every occasion during the two or three years I served there, and what they emphasise and remind me of. I will share with the House a brief picture of how we worked and the plan that we had to devise in order to operate in a very violent, dangerous and fast-moving situation.
There was the Secretary of State, the late Lord Whitelaw, and three Ministers with him, of whom I was one, with about 12 or 13 departments that we had to take over between us in the Northern Ireland Government. We each had quite a lot of departments to cover. The plan was always to have one duty Minister at Stormont right through the weekend at all times. During the week, there was one Minister usually out in the field, visiting hospitals, victims, violent situations and communities, doing the work of their departments. We tried to keep one Minister at Westminster, constantly accountable and ready to meet Members of Parliament and Members of your Lordships’ House, answer PNQs and so on.
This was a very dangerous moment; the violence was very great indeed, and people were being killed all the time. At all times, the four of us—the Secretary of State and the three Ministers—kept in very close contact with each other; my notes refer to a lot of telephone calls that we had with each other and our constant movements. One moment the Secretary of State would need to be in the Cabinet and the next moment he would have to fly back to Belfast—then the next moment he would be in his own constituency. The same applied to the two others of us as well. Of course, Lord Windlesham was a Member of this House at the time.
This is a recorded picture of an extraordinary situation, which I do not believe has ever been repeated, for British Ministers or a department of government. Just to give an example, I see that I noted in my memoirs that one week I crossed the Irish Sea five times—and I am sure that my fellow Ministers were having the same experience of constant movement, all the more so as the Government at the time had quite a narrow majority and the Whips were saying, “Why aren’t you here instead of in Belfast?” You had to be in two places at once.
Throughout all of this, dependence on the Carltona principle and being able to conduct matters in accordance with that principle was absolute and unquestioned. We could not possibly have managed without that principle operating. It was for that reason—and this has possibly been missed by some commentators—that, when we put the provisions about Carltona in the Detention of Terrorists (Northern Ireland) Order 1972, we strengthened it—it is a strengthened principle there, because it limits the permission to sign to Ministers rather than to officials, referring specifically to Ministers and Under-Secretaries of State. The provision is absolutely crystal clear; it is in print and a parliamentary clear wish, passed without any opposition at all and applied in good faith, because we knew that that was the law and the wish of Parliament.
I have no doubt, as the noble Lord, Lord Butler, has wisely reminded us, that, if the judgment is allowed to stand unreversed, it would severely constrain normal government operations. Looking backwards in the rear-view mirror, as it were, it would have made our work in Northern Ireland absolutely impossible, as we moved towards the power-sharing agreement of 1973, which is said to have been the foundation for the Good Friday agreement some 20 years later. We could not have conducted affairs in that atmosphere of violence and killing—indeed, the IRA called it a war, although we did not—without the Carltona principle being applied. Of course, the judgment opens the door to all sorts of meritless litigation and unreserved compensation, which would be completely wrong.
I am astonished, frankly, that such a legal error could have been made. If the Government are not able to meet this—as I hope that they are, from indications by the noble Lord, Lord Faulks—and are not able to respond in a positive way, I shall be even more astonished that such an error could be perpetuated.
Baroness Hoey (Non-Afl)
My Lords, when I asked a question about this some six months ago I was assured that something would be done to sort it—I think that was the word used—so I am very pleased to support the amendment in the name of the noble Lords, Lord Faulks and Lord Godson. I am pleased and waiting to hear what the Minister will say, because I am very hopeful now that this will get sorted and that we will not have to have a vote on it. It would be good if he were able to make it very clear that the legislation will definitely be amended, so that we get the result before Third Reading. I think it is useful to remind noble Lords; the noble Lord, Lord Howell, gave a very clear view of what things were like back in 1972.
In the judgment, Lord Kerr said that the law said that it had “to appear” to the Secretary of State that the person in question was suspected of organising terrorism. Ironically, the case of Gerry Adams was one where it could unquestionably have appeared to Mr Whitelaw that a custody order was appropriate; his personal consideration was just not recorded in the archives. I am sure that the Secretary of State knew, rather than suspected, that Adams was a key figure, because he had him flown over for negotiations with the IRA at Cheyne Walk in 1972, a year earlier. Lord Kerr also said that Mr Whitelaw should have been able to sign all such custody orders, as
“there was no evidence that this would place an impossible burden”
on him or be “unduly onerous”, given that Merlyn Rees, his Labour successor from March 1974, managed to.
I think this is a reflection of an unhistoric assertion lacking context, given the terrible violence outlined by the noble Lord, Lord Howell, of 1972 and 1973, let alone the logistics involving Ministers, one of whom had to be in England and one in Belfast. Furthermore, it took no account of the differing political circumstances involving Secretary of State Merlyn Rees, who was very keen to end internment and sought to minimise the number of orders being placed in front of him. In fact, internment ended a year later.
Noble Lords should also remember that the Supreme Court President, Lord Reed of Allermuir, in effect supported a correction when he spoke to the House’s Constitution Committee in March 2021. There he said, in response to the noble Lord, Lord Howell:
“I cannot say very much about the particular case because I did not sit on it myself. Lord Kerr wrote the judgment. The Lord Chief Justice and some other justices were sitting with him. I am well aware that it is a controversial judgment ... I really cannot remember the details of the case. From what you say, it sounds like a wayward judgment, in which case it will be put right in another case”.
I believe that this amendment and what the Government are now going to do are a valuable substitute for such another case at the Supreme Court, which could otherwise take years to appear.
Baroness Suttie (LD)
My Lords, when this amendment was introduced at a very late stage in Committee, I expressed concern that this is a complicated matter and should be examined in greater detail. While the amendment is focused on the specifics of the Supreme Court case in 2020, it is clear that the judgment might well have wider implications for the Carltona principle and therefore also for wider government.
I remain firmly of the view that this important matter requires deep and careful consideration; indeed, longer consideration than we have had between Committee and now. I think that is what the Minister said in his earlier meetings with the noble Lord, Lord Faulks. Will the Minister commit to taking this matter away for further discussions within and across government? Perhaps most importantly, will he endeavour to update this House on the decision well in advance of Third Reading?
Lord Murphy of Torfaen (Lab)
My Lords, this has been an interesting debate. I begin my brief remarks by paying tribute to Lord Brown; he was a great influence on me when I first entered this House and I always enjoyed listening to what he had to say. He was a fine lawyer.
I have looked at the legal arguments put forward by Policy Exchange on this amendment. I cannot say that I understood every word of them, but they looked impressive to me. However, from my experience, the practicalities of the situation indicate that something must be done.
The noble Lord, Lord Howell, quite rightly reminded us what the situation was like back in the 1970s. I assure him and your Lordships that, 25 years later when I was doing the same job, it had not changed all that much in terms of signing warrants. When I was the Minister of State in Northern Ireland, I knew that Mo Mowlam, who was Secretary of State at the time, was aware that I was signing these warrants on her behalf. Similarly, three years later when the roles were reversed and I became Secretary of State, I realised that the Minister of State signing those warrants on my behalf was doing so absolutely properly and within the law.
I have no doubt that everybody signing these warrants in Northern Ireland over all these years believed that they were doing the right thing—and I am sure that they were—but there is clearly a problem because of the Supreme Court ruling. I look forward to the Minister telling us how he will change this situation and make things better.
Lord Caine (Con)
My Lords, I am very grateful, as always, to noble Lords who have spoken in this short but very important debate led by the noble Lord, Lord Faulks, to whom I am very grateful for the constructive engagement and discussions we have had over the past few days. This has been an excellent debate. I join in the tributes to Lord Brown of Eaton-under-Heywood, whose contribution to this House over many years has been immense.
The Government are extremely sympathetic to the aims of this amendment. It aligns with our desired policy aim to reduce pressure on the civil courts in Northern Ireland, which currently have a considerable case load. In our view, it would not be appropriate for the Government to give an opinion on the judgment of the Supreme Court in R v Adams, but we are of the view that this judgment, which was unexpected, has led to a degree of confusion in our law that merits clarification in some way. If I may go slightly further than my brief, when the judgment appeared some of us were—to put it mildly—somewhat baffled by its content.
On the numbers of cases in scope, we are aware of around 300 to 400 civil claims being brought on a similar basis to the Adams case, including those at pre-action stage, with 40 writs filed before First Reading of this Bill. It is therefore likely that a number of Adams-type cases will be allowed to continue in spite of the prohibition on civil claims in Clause 39 of the Bill. We are aware that this amendment has a wider application than just civil damages claims, which are otherwise within the scope of Clause 39, but the numbers of other types of cases in scope are limited.
The Government also understand that the amendment covers applications for compensation for miscarriages of justice under the statutory scheme established by Section 133 of the Criminal Justice Act 1988, following the reversal, as a result of the Adams judgment, of convictions for escaping or attempting to escape from internment facilities. The Government anticipate that it is unlikely that many more cases could in theory be brought along these lines; based on the numbers of escapees, this is unlikely to be more than around 30 and could be substantially less.
Claims brought as a result of the Supreme Court judgment in Adams are claims for compensation that are not based on any allegation against the state of mistreatment or misfeasance in public office, as other claims in this area are, but on a technical point regarding the signing of interim custody orders, as the noble Lord, Lord Butler of Brockwell, made absolutely clear. At the time of their detention and conviction for escape-related offences, and for decades afterwards, these individuals could not have expected the Supreme Court to find as it did.
The Government have always acted on the understanding that those interim custody orders made by Ministers of the Crown, under powers conferred on the Secretary of State, were perfectly valid on the basis of the well-established and understood Carltona principle. This is a clarification that needs to be made, in our view, to restore legal certainty around this crucially important element of the way in which government works in this country.
I listened with great interest to my noble friend Lord Howell of Guildford, who is the surviving member of the Northern Ireland Office from 1972 as Minister of State. He gave a very vivid and accurate description of just how difficult life was at the time, and how dangerous and fast-moving the situation was.
I agree with the noble Lord, Lord Murphy of Torfaen, in his description of how the warrant system works in Northern Ireland. As many Members know, I have worked for a number of Secretaries of State, and the signing of warrants is something all of them have taken a huge amount of care over to ensure that they are done properly and within the law.
In response to the noble Baroness, we are not far away from Third Reading, as she will be aware, but I will endeavour to consult with interested parties between now and then.
On this basis, as the noble Lord, Lord Faulks, indicated, I will commit to bringing forward an amendment at Third Reading next week, following consideration by officials and lawyers, that addresses these matters. In return, I ask that the noble Lord and my noble friend Lord Godson withdraw their amendment, subject to the caveat that the noble Lord, Lord Faulks, made in his remarks.
Lord Faulks (Non-Afl)
My Lords, I am very grateful to all those who have taken part in this debate, and I am grateful to the Minister for his remarks. I am sure the House is grateful for all those who associated themselves with the comments I made about the noble and learned Lord, Lord Brown of Eaton-under-Heywood.
The Minister said with his usual understatement that many were somewhat baffled by the decision of the Supreme Court. The bafflement was widespread, I can assure the House, and the notion that we should wait until another case comes along was never a convincing argument in favour of Parliament not acting to put right this injustice. As the Minister rightly said, Clause 39 of the Bill will not deal with this essential unsatisfactory aspect of the judgment, and there could be many cases arising out of the error made by the Supreme Court.
Of course courts make mistakes from time to time; the whole basis of an appeal from one judgment to another is predicated on the fact that they do. The Supreme Court rarely makes mistakes, but Parliament puts them right when it does. Parliament also makes mistakes, and would then reverse those mistakes. There is nothing in this amendment which shows a lack of respect for the Supreme Court or its decisions in any way.
I look forward very much to meeting the Minister and his officials, to help, I hope, provide an amendment which reflects what is in our amendment—government amendments are always better than amendments put forward by Back-Benchers. Provided it does what this amendment was intended to do, that would be satisfactory.
I need not weary the House any longer at this stage. I have repeated that we will bring back the matter at Third Reading if, sadly, we are unable to find a satisfactory way through. In the meantime, I thank all noble Lords and beg leave to withdraw the amendment.
Lord Caine
Member’s explanatory statement
This would require any inquest initiated before the commencement of Clause 40 to be discontinued on the commencement of that Clause, unless the inquest is at its very final stage (the determination, verdict or findings).
Member’s explanatory statement
This would remove new section 16B, which allows a pre-commencement inquest to continue if it is at an advanced stage. A pre-commencement inquest will now be able to continue if it is at its very final stage (the determination or verdict) as it will be outside the scope of the amended new section 16A.
Member’s explanatory statement
This is consequential on the amendments in Lord Caine’s name relating to new sections 16A and 16B.
Member’s explanatory statement
This is consequential on the amendments in Lord Caine’s name relating to new sections 16A and 16B.
Baroness O'Loan
Member’s explanatory statement
This amendment would delete the Clause that prohibits all existing and future inquests, investigations and inquiries into the deaths resulting directly from The Troubles.
Baroness O'Loan (CB)
My Lords, this amendment would delete the prohibition on inquests, which are an ancient part of our legal history. I wish to test the opinion of the House.
Lord Caine
“(2A) On and after the day on which section 41 of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 comes into force, the Ombudsman—(a) is not to begin any formal investigation of a matter, and(b) is to cease any formal investigation of a matter begun before that day,insofar as the matter relates to conduct forming part of the Troubles.”Member’s explanatory statement
This prevents the Police Ombudsman for Northern Ireland from beginning, or continuing, to investigate matters that relate to conduct forming part of the Troubles. That power of investigation is in addition to the power to deal with complaints (already covered by Clause 41).
“(2B) This section does not prevent the Ombudsman from carrying out a criminal investigation of a Troubles-related offence if—(a) a public prosecution of a person for the offence had been begun before the day on which section 34 of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 comes into force, and(b) the criminal investigation is carried out for the purposes of that prosecution.(2C) For the purposes of subsection (2B)—(a) “public prosecution” means any prosecution other than a private prosecution;(b) a public prosecution of a person for an offence is “begun” when a prosecutor makes the decision to prosecute that person for that offence.”Member’s explanatory statement
This ensures that activity of the Ombudsman which constitutes a criminal investigation can continue where a prosecution of a person has begun before commencement.(This exception from the effect of Clause 41 is the same as the exception from the effect of Clause 34 set out in Clause 38(3).)
““formal investigation” means an investigation under section 56 (whether resulting from a referral to the Ombudsman, or a decision by the Ombudsman, under section 55).””Member’s explanatory statement
This is consequential on the amendment in Lord Caine’s name which prevents the Police Ombudsman for Northern Ireland from beginning, or continuing, to investigate matters that relate to conduct forming part of the Troubles.
“(2) In section 28A of the Police Reform Act 2002 (application of complaints and misconduct provisions to matters occurring before 1 April 2004), after subsection (6) insert—“(6A) On and after the day on which section 41 of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 comes into force, this section—(a) ceases to apply to a pre-commencement matter or a matter to which subsection (5) applies (if the direction under subsection (1) or (4) relating to the matter was given before that day), or(b) does not apply to a pre-commencement matter or matter to which subsection (5) applies (if the direction under subsection (1) or (4) relating to the matter is given on or after that day),insofar as the matter relates to conduct forming part of the Troubles.(6B) In subsection (6A) “conduct forming part of the Troubles” has the same meaning as in the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (see section 1 of that Act).”(3) After section 47 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 insert—<strong>“47A</strong> Complaint or investigation relating to Northern Ireland Troubles(1) On and after the day on which section 41 of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 comes into force, this Part—(a) ceases to apply to a complaint or investigation (if the complaint was made, or investigation was begun, before that day), or(b) does not apply to a complaint or investigation (if the complaint is made, or investigation is to begin, on or after that day),insofar as the complaint or investigation relates to conduct forming part of the Troubles.(2) In this section “conduct forming part of the Troubles” has the same meaning as in the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (see section 1 of that Act).””Member’s explanatory statement
This extends Clause 41 so that the legislation dealing with police complaints in England, Wales and Scotland also does not apply to complaints relating to the Troubles.
Lord Dodds of Duncairn
“(2A) The designated persons have an overarching duty to ensure that no memorialisation activities glorify the commission or preparation of Troubles-related offences.”Member’s explanatory statement
This amendment is intended to ensure that designated persons responsible for making recommendations about the initiation and carrying out of relevant memorialisation activities are under a duty to prevent the glorification of Troubles-related offences.
Lord Dodds of Duncairn (DUP)
My Lords, we now come to this group of amendments on memorialisation. This is a very difficult and complex area that we have to wrestle with, both in this Bill and more widely in Northern Ireland. The purpose of Amendments 114A and 114B in my name and those of my noble friends is to ensure that memorialisation activities in no way end up glorifying, eulogising or defending terrorism in any form, whatever side of the community it comes from.
Sadly, as we have said in previous debates on this Bill, it appears there has been an increase in the carrying out of commemorations and eulogies for terrorists by elected representatives including Members of Parliament, Members of the Northern Ireland Assembly, a person who would seek to be the First Minister of Northern Ireland, academics and others. They have all commemorated the activities of criminals and murderers in the IRA. It is important that in this Bill—certainly, I will seek reassurances from the Minister on this issue—that we make it clear that that type of eulogy, commemoration or glorification is not acceptable. For the victims, this is an extremely important issue.
Time and again when you meet victims of the terrorist criminal gangs who carried out so much violence in Northern Ireland, the issue they raise is the continued trauma that they have to endure as a result of such celebrations and commemorations. They feel that their trauma, hurt and pain are sidelined while those criminals who carried out this type of heinous activity are elevated.
The purpose of Amendment 114A is
“to ensure that designated persons responsible for making recommendations about the initiation and carrying out of relevant memorialisation activities are under a duty to prevent the glorification of Troubles-related offences”.
Clause 48 tells us that designated persons carrying out Troubles-related work must have due regard
“to the need to ensure that … there is support from different communities in Northern Ireland for the way in which that programme is carried out, and … a variety of views of the Troubles is taken into account in carrying out that programme”.
Those responsible for drafting the memorialisation strategy are bound by this duty under Clause 51(1).
This focus on representativeness can be problematic, given that there are, as I have outlined, sections of our community, including those in high places and political life, who not only refuse to disavow violence but actually express the view that glorifying terrorism via parades, vigils, rallies and so on is a perfectly legitimate memorialisation activity when it is patently not. The Government propose to require the Troubles work programme to promote reconciliation, anti-sectarianism and non-recurrence of political and sectarian hostility between people in Northern Ireland. However, none of these terms are defined. It should be made clear in the Bill that designated persons are not permitted to recommend activities that a reasonable person in Northern Ireland would regard as glorifying past terrorism—in fact, they should be under a duty to prevent this. Memorialisation should not open the door to revisionism and the rule of law must be respected.
Amendment 114B is intended to ensure that only innocent victims are included as victims in the memorialisation strategy. It is critical that the law in this respect is in line with the line that the Government took in relation to the payment of compensation to victims of the Troubles in the Troubles permanent disablement payment scheme and Regulation 6 of the Victims’ Payments Regulations 2020, in which it was made clear, rightly, that someone who had injured themselves as a result of their own actions by being engaged in terrorism would not be eligible under the scheme. There was a difference between those who were injured in innocent circumstances as a result of terrorism carried out by others and those who were injured by their own hand.
We believe it is important for the sake of the victims and respect for the rule of law that a memorialisation strategy does not give credence to terrorists injured or killed by their own hands. They should not be considered victims for the purposes of consultation under this section.
It is regrettable that we have to even raise these issues and put them on the record in the House. However, sadly, as time moves on, the years pass and we move further away from the crimes that were carried out in the names of paramilitaries in Northern Ireland—IRA and loyalist alike—there is a tendency among those in Sinn Féin to ensure that the history of the past is rewritten.
I have a recent example. Someone who was described as a commentator but who was actually a teacher in a secondary school came on to say, “Well, you know, if people are engaging in memorial activities for the military, such as acts of remembrance in November, it’s perfectly acceptable for republicans to remember their dead”. In other words, they were suggesting equivalence between members of the security forces and terrorists who set out with murder and mayhem in their hearts and as the purpose of their activities.
There is no, and can never be, equivalence between members of the security forces in Northern Ireland—Army, Ulster Defence Regiment, Royal Ulster Constabulary, PSNI—and those who, by contrast, came as terrorists to carry out bloodshed against the rule of law. It is important to put that firmly on the record in this debate.
I would like the Minister to consider very carefully the purpose behind these amendments and to reassure us that the memorialisation strategy will indeed reflect the rule of law and will not end up glorifying or eulogising terrorism in any form.
Baroness Ritchie of Downpatrick (Lab)
My Lords, I have a certain sympathy with Amendment 114A in the names of the noble Lords, Lord Dodds, Lord Weir and Lord Morrow, because, like the noble Lord, Lord Dodds, I have seen so much revisionism over the last number of years. We have seen revisionism from paramilitary forces in order to justify their campaign of terror and to forget about the real victims, who were never involved in perpetrating acts of violence but were simply in the wrong place at the wrong time.
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, I join my noble friend Lord Dodds and the noble Baroness, Lady Ritchie, in supporting Amendments 114A and 114B in the names of my noble friends Lord Dodds, Lord Weir and Lord Morrow.
Recently, the absentee MP for North Belfast, John Finucane, was the main speaker at what was billed a “South Armagh Volunteers commemoration and fun day”. Let me remind noble Lords of just one action of these South Armagh IRA terrorists—there is certainly no reason to celebrate it, or even commemorate it. I want noble Lords to imagine a young husband leaving home and going to work as usual. His family hear later on that their loved one has gone missing; his young wife is pregnant and has three young children already. Think of the agony this family circle is going through as it becomes clear that the IRA have abducted this young man. Think of the absolute terror he is feeling as he is hooded and taken captive by IRA terrorists.
Then there comes that—in many ways inevitable—phone call that tells the family that that young man has been found dead. However, that call also tells them that his body cannot be recovered, even though it is seen lying in a field in south Armagh, because it is surrounded by Claymore mines. Yes, that body is booby-trapped to explode if moved. A huge, 500-pound bomb is attached to him in milk churns, with command wires leading across the border. Any attempt to move him will blow his corpse to pieces, along with anyone attempting to retrieve him. The authorities have to let him lie there, dead, covered in blood and mud, naked except for his pants and on display for all to see, until the explosives are defused by the bomb squad. Can anyone with a heart have any idea what that dear wife, her three young children and the family circle have to go through as they wait and wait?
In another place, a Member of Parliament at that time said:
“One of his relatives said that they were horrified at the look of torture and agony … on the face. The fingers of both hands were blackened to the knuckles and holes were punched in the finger tips. Handfuls of grass and earth were clutched in the hands. One side of the face was smashed … to the extent that the nose was broken and displaced to one side. Both arms seemed limp and the genitals had been kicked until swollen out of all proportion. The teeth were smashed, he was shot through the wrists, the mouth, the neck, the throat and several times in the chest”.—[Official Report, Commons, 25/5/72; col. 1788.].
What was his crime? His crime was that he was a part-time UDR corporal. Of course, Sinn Féin said that he was therefore a legitimate target; he was a part of the British war machine, simply because he wore the uniform and tried to keep people safe from those who so cowardly and viciously ended his life. Sinn Féin’s Michelle O’Neill has claimed that there was no alternative to such IRA activity and yet, amazingly, she is lauded and applauded by Presidents and Secretaries of State, and John Finucane thinks such deserve to be commemorated—actually, their names written on a marble scroll as if they were heroes and then celebrated with a family fun day.
I ask you: what sort of persons could be so evil as to commit such torture on another human being? What sort of mentality justifies this in any shape or form? Nobody has ever been charged or convicted of this murder, this torture, and those who directed it are equally guilty. The so-called IRA Army Council has not been brought before the International Court of Justice. Rather, some of its leaders are lauded and applauded too. The Sinn Féin leaders and John Finucane talk much about and demand inquiries, they pontificate about human rights, equality and justice, but they do not want justice for them. They do not want inquiries into their leadership role in some of the most vile atrocities ever carried out against mankind. All they want is to blame the police, the Army and the part-time soldiers—indeed, everyone who stood against their 30-year campaign of slaughter and murder in their quest for their dream of a united Ireland. Sadly, on many occasions, successive Governments rolled over to Sinn Féin demands and granted it concession after concession. Even just over a week ago, we found that the chief constable apologised to those who were called the hooded men. I ask the Minister: does this legislation stop the memorialisation and glorification of those terrorists across our community?
I finish by saying that every year, in January, I gather with others at the side of a road outside Cookstown, the Teebane. The men there were returning from doing an honest day’s work, but they were murdered, slaughtered, on their way home. We stand at a roadside. Yes, there is a stone there with the names of those lads on it: not to glorify but to humbly remember that they were cruelly done to death along that road.
We cannot have the glorification of terrorist acts. They are to be condemned. While many tell us that everyone, every political party in Northern Ireland, is against this legislation, let me make it clear that the party which I belong to is not to be equated with Sinn Féin/IRA, because its objection to the legislation is that it does not want its comrades to be prosecuted, but it wants the security forces to be persecuted. I will not lend my hand to that.
Baroness Hoey (Non-Afl)
My Lords, I speak to support Amendments 117 and 118 in my name but agree with the amendment from the noble Lord, Lord Dodds, as well.
I want to look at the academic research clause, because it addresses a problem with the Government’s funding body, UK Research and Innovation and its councils. Many of us interested in legacy are genuinely concerned about what seems to be the one-sided nature of much of the academic research into our past and the way that the funding has been monopolised by what could be seen as a single legal view that is radical and investigates only faults with the UK state and its security responses during the Troubles.
I need to refer to the Queen’s University Belfast’s transitional justice department, which produced the model legacy Bill and many briefings that Opposition and Cross-Bench Peers will have been provided with. That department alone has received the huge amount of £4 million in funding for legacy research—nobody else has. The transitional justice department works in open conjunction with the Committee on the Administration of Justice, the CAJ, which is a largely anti-state nationalist body in Belfast that encourages legacy litigation. Indeed, it is leading efforts to get the Dublin Government to take an inter-state case against the United Kingdom at the European Court of Human Rights over this very Bill once it receives Royal Assent.
Lord Weir of Ballyholme (DUP)
My Lords, within any democracy it is healthy and appropriate that people have a battle of ideas and their own thoughts and opinions. People are perfectly entitled to their own allegiances and opinions. What people are not entitled to is their own truths and their own facts. Sadly, when it comes to the Northern Ireland Troubles, we have seen a perverse and dangerous attempt to rewrite history to pervert the truth and the facts of what happened. In the spirit of ensuring that facts remain, let me highlight four universal facts and truths that I believe everyone in this House could unite around.
First, terrorism was and is wrong. There was never an excuse for terrorism, be it republican or loyalist—I treat both the same. There was never, ever any excuse for violence. Secondly, it therefore flows that memorialisation of that terrorism in present-day circumstances is equally wrong. Whether it is a shrine, a commemoration or the perversity of the equivalent of bouncy castles for a family fun day to commemorate those who carried out the most heinous acts within our society—again, irrespective of the source—that is fundamentally wrong.
Thirdly, we need to nail the lie that there was no alternative to violence. There are many within this Chamber, from all sections of our community, who put their head above the parapet, stood for election in Northern Ireland and used democracy to pursue often competing aims. There was always democracy within Northern Ireland; there was always the opportunity for democratic arguments to be moved forward.
Fourthly, as highlighted by the noble Baroness, Lady Ritchie, there was never a democratic mandate for violence. Violence was never the majority opinion within unionism, it was never the majority opinion within nationalism, and it was never the majority opinion among those who did not identify with either. Similarly, for those who would pursue a particular Irish republican view on it, it was never a majority opinion within any section of the island, north or south.
It is upon those fundamental truths of history and the present-day situation that we must rest where we are. Any attempt to unpick those truths—and the memorialisation of terrorism goes to the heart of that—is deeply dangerous.
Unlike others in this House perhaps, although my entire childhood and much of my adult life was lived through the Troubles, I did not have any personal examples of suffering at the hands of the Troubles directly. I was very fortunate. There was never an attempt on my life or the life of a close family member. I did not lose anybody. There are others in this House who bear much greater burdens than that, and beyond. I cannot even place myself in the shoes of those innocent victims and their families, who suffered at the heart of terrorism throughout the Troubles. It is right that we commemorate innocent victims of the past, and it besmirches their name to create a level of equivalence between them and those who carried out violence. The commemoration and memorialisation, from whatever side, of those who committed those heinous crimes is deeply injurious to the memories of those victims.
This is partly about the past; it is also about the present. For those relatives to have to suffer commemoration and potential memorialisation of those who inflicted that on their families is wholly unacceptable. Even if those were the only reasons, we should be rejecting the idea of memorialisation of terrorism, but it is also, pertinently, about the future. We have seen too many examples of late of the glorification of terrorism resonating among wider society, particularly among younger people who have no collective memory of what happened in the past, be that from circumstances in which there is chanting for terrorist organisations to a recent situation which is not just anecdotal but can be looked up on social media—when the police came to arrest a suspect in relation to the attempted murder of the police officer in Omagh, the suspect was cheered by people within that neighbourhood.
It is deeply worrying that, even today, we see dissident republicans putting up posters against the PSNI and making threats against recruitment of the police and the Prison Service. That rightly drew the ire of political parties, and a joint letter condemning that was signed by four of the five major parties in Northern Ireland—my party, the Ulster Unionist Party, the Alliance Party and the SDLP. Shamefully, to date no representative of Sinn Féin has signed that letter condemning those activities. That is deeply unacceptable. A situation in which hatred and violence are stoked up by a glorification of a violent terrorist past is deeply worrying because it runs the risk of dragging young people into repeating that evil. That is why memorialisation is not simply about the issue of the past or the present but about what future Northern Ireland has.
I await the remarks of the Minister and know that the Government will say that they have no intention of allowing memorialisation. I am sure that is their intention, but in terms of this legislation and why we have put down these amendments we must, as a House and a legislature, be absolutely clear that memorialisation of terrorism in any shape or form is to be prevented. If that means that we have to go the extra mile and put the belt and braces on, beyond what is there at present, let us not be afraid of doing so. Let us ensure that the evils of the past are not repeated in the present or the future.
Lord Morgan (Lab)
My Lords, I intervene not as an Irish person but as someone who comes from another Celtic country, which has found another way of dealing with potential and actual terrorism, and that is called political democracy. It has been a terrible thing that, throughout so much of modern Irish history, the tendency has been to equate democratic practices and human rights with one side and not with another.
Baroness O'Loan (CB)
My Lords, this part of the Bill, providing for history and memorialisation, is about creating as true and honest an account as is possible of what happened during our tortured, troubled past, an account which must have integrity.
It is right that no memorialisation activities glorify the commission or preparation-of Troubles-related offences. Yet every day as I drive around Northern Ireland at this time of year, I see the flags erected—the flags which tell me that, as a Catholic, I am not welcome. In today’s Irish News we have an article about one of the Shankill butchers, a gang which went around killing Catholics simply because they were Catholics. This man served life. He is pictured erecting UVF flags commemorating the activities of the organisation to which he belonged.
Terrorism occurred right across our community. It occurred and was perpetrated by members of illegal organisations such as the UVF, the UDA, the IRA et cetera. However, there were also members of the security forces—both the police and the Army—who engaged with those groups. We cannot deny this; it has been proved. Most police officers served with honour. Most acted to protect us, as they acted to protect my family one night, when we were under attack, but that was not always the case. There were those who did such terribly wrong things. I think about the Glenanne gang, who for years terrorised south Armagh, killing some 127 Catholics. This is the subject of the present Operation Denton review.
Just a mile down the road from where I live was a young Catholic man who ran a little shop. One night, at two o’clock in the morning, two men came to the door, knocked, and said, “We have a sick child: we need medicine”. The shopkeeper, William Strathearn, got up. His wife and children were sleeping upstairs. He went down, opened the door, and was murdered. The two people who were convicted of his murder were serving members of the Royal Ulster Constabulary.
So it ran from the earliest days of the Troubles, and ran right through after the Good Friday agreement. I think of my own work investigating the UVF in north Belfast. The UVF murdered Catholics until 1994 and then, once the IRA declared a ceasefire, went on to murder indiscriminately both Catholics and Protestants.
Regrettably, we still see, at regular intervals, events from different sections of the community which glorify individuals who contributed to atrocities and occasions which cause immense pain to so many of us, but particularly to those whose loved ones died or were permanently maimed in the attack being celebrated. Those events cause great pain. They reignite the terrors and agonies of the post-traumatic stress disorder suffered by so many as a consequence of these events. There is no justification whatever for the glorification of terrorism.
The fact remains that, apart from all those who died and were maimed in the Troubles, so many families lived in terror and fear. I remember watching my husband driving out every day with our five sons in the car, and every day I prayed that there would not be a bomb under our car. He was a serving member of the Social Democratic and Labour Party—the party of the noble Baroness, Lady Ritchie—and for years we lived with terror because of that, and because of my role as police ombudsman. I have no difficulty in supporting any measure which can prevent the glorification of terrorism.
I find myself unable to support Amendment 118A, in the name of the noble Lord, Lord Godson. It requires that within three and a half years, a definitive public history of the Troubles, commissioned by the Secretary of State for Northern Ireland, should be completed. I have a number of difficulties with this proposal. Until the work of the ICRIR is completed, it will be a work in progress in establishing, as far as possible, what happened during the Troubles. Therefore, to attempt to write any history of the Troubles would be premature. To attempt to write an official history of the Troubles while the representatives and organs of government are conducting reviews would definitely be premature. In addition to this, and as Sir Joe Pilling’s April 2009 report on the official history programme indicates, there would be minimum government requirements relating to access to papers and clearance of the draft report.
Our history has been the cause of so much division. For the state to commission a history of the Troubles would immediately arouse suspicion in some parts of the community. People have watched over the years as those with control over materials relating to the Troubles have done all they can to ensure that, in respect of so many critical incidents, the truth has not emerged because of the refusal to disclose the relevant documents, until case after case has been the subject of judicial review and judges’ and coroners’ orders. This has happened from the Bloody Sunday Widgery report in 1971 right through to, most recently, the findings of the inquest in relation to the Ballymurphy shootings. No matter how noble and well-intentioned any historian designated to do this work might be, in Northern Ireland there would be suspicions and assumptions that such a history would not be free from bias. It would be most unlikely to secure public confidence.
One of the things I learned when I investigated police collusion with the UVF was that the loyalist and Protestant community felt very betrayed by the activities of those members of the security forces who colluded with loyalist paramilitary organisations. To impose a duty on the Secretary of State to commission such a history would be to introduce further cause for concern, suspicion and dissension in the communities in Northern Ireland. It would be better that history, in so far as it can be established, should be established by derivation from the findings of inquests, civil actions and criminal prosecutions.
As Maya Angelou said:
“History, despite its wrenching pain, cannot be unlived, but if faced with courage, need not be lived again”.
That is why this Bill is so misconceived: normal processes under the rule of law are to be abandoned, despite the objections of all the political parties, victims and the people of Northern Ireland. The Secretary of State’s power is woven throughout the new procedures in a way which means that, notwithstanding the integrity of any individual involved, all that will happen if there is an attempt to commission such a history is that it will divide, rather than create reconciliation. We cannot afford further community tensions, such as would emerge in attempts to write an official history of the Troubles.
Lord Eames (CB)
My Lords, I have frequently felt moved to speak in this House about the suffering that has been endured across Northern Ireland and which is obviously the centre of the approach of this legislation. However, we have also had occasions to be reminded that so little of our society finds, in this proposed legislation, anything that they can have confidence in.
On one occasion in Committee, I centred on the use of the word “reconciliation” in the title of the Bill. The speeches we have heard tonight come from the heart of people who have intimate knowledge of what they are talking about—people who have carried, and through their families have carried, scars over the years. For myself, there are numerous occasions upon which I have tried to bring comfort and reconciliation, in ordinary terms, to people. In the rawness of what we have heard tonight, this is really taking us now to the centre. We are not dealing with the niceties of this legislation. We are being reminded that the rawness of the suffering of ordinary people has brought us to this point.
I have no hesitation in saying that I have total dismay when I look at this legislation. So much could have been achieved. So much was expected, when we were told it was coming, and so little has been achieved, in what we have listened to and discussed. Now we are talking about how future generations will be told about our Troubles. We are told of the need to have an official history. My heavens, do we understand the first fact of what we are talking about when we refer to an “official history” of the Troubles? I venture to suggest it is an impossibility. The history of the Troubles is the photograph on the mantelpiece; the insertion on an anniversary; the plaque on a wall of the church, or a memorial window. The history of the Troubles is when a mother says, “Please, let me know the truth, before I die, of what happened”. And we turn around and produce ways of limiting inquiries, investigations, and questioning—not in the purely legal sense, but in the sense in which normal suffering people are crying out for answers. We have fallen so far short in this legislation of doing that.
Lord Patten of Barnes (Con)
My Lords, I did not intend to contribute to this debate, but sitting here listening to some of the speeches, not least the wonderful remarks we have just heard, reminded me of what I think was the most difficult period of my life, when I was responsible for the committee that, after the Good Friday agreement, reorganised the police service in Northern Ireland. With my colleagues—people such as the late Maurice Hayes, Peter Smith and others—we thought we needed to have public meetings around Northern Ireland. When we suggested this, people said, “But nobody’ll come, nobody goes to public meetings now”. But come they did; to 40 meetings, probably 40,000 people came, and each of those meetings was a reminder not just of exactly what has just been said, the horror of the violence, but of the intimacy of the violence.
I think people who have not lived or been very much to Northern Ireland simply never comprehend how awful the intimacy of that violence is. I remember one evening having a public meeting in a rather raw little town in Northern Ireland—I had better not mention which one—and it was pretty difficult. A terrorist from the borders, Slab Murphy, had come down with some of his colleagues and we were quite worried that there would be violence. I undertook all those public meetings without police protection because you could not examine the record of the police and have yourself guarded by policemen. We got out of the meeting in one piece—I think it was Maurice Hayes and myself—largely because of the extremely sensitive and sensible chairmanship of a solicitor who had made her reputation invariably defending republicans who were accused of violence.
From Portadown we then went to a meeting in Craigavon and the first three questions I had were from the widows of police officers. The man accused in the case of the husband of the last of these had been got off on a technicality in his trial, with the solicitor working for him being the same woman who had kept the peace in the meeting I had just come from.
I think going through all those horror stories, trying to be objective and balance one bit of horror against another, is a less than useful idea. I think I am right in saying that it was the episcopal father of Louis MacNeice who said in a famous sermon words to the effect that we should remember the past the better to forget it. Northern Ireland remembers the past too much and does not spend enough time building a better present and a better future, even today; even today that is the situation.
The very last public meeting that we had in Northern Ireland was in a little fishing village. It was a difficult meeting; three of us were sat up on a stage like that in “Cinema Paradiso”, and, as the meeting went on and on, the thought of getting back to Hillsborough for a glass of whiskey became more and more enticing. Eventually, we brought the meeting to a close and got up ready to leave, and I made a little speech about reconciliation, healing and hope. A little lady at the back of the room stood up and said, “Mr Patten, before you go off, before you go back to London, before you make any more speeches about reconciliation, healing and hope, and all of us getting on with one another, I would like you to know that this man here”—and she put a hand on the shoulder of the man in front of her—“killed my son”. It was true. He had been one of those let out as part of the Good Friday agreement. We forget sometimes, standing in a queue in Morrisons, how it would be seeing in the next queue somebody who killed your uncle or tried to kill you. I have never believed that you actually deal with that problem by going over again and again who was right and who was wrong about that particular barbarity—the sort of barbarity that was mentioned earlier.
The best book I have read on Northern Ireland was Seamus Mallon’s memoir. I think Seamus Mallon is one of the great, largely unsung heroes of the attempt to produce decency in Northern Ireland. I recall from that extraordinary book how he went again and again to the funeral or wake of anybody in his constituency who had been killed. It was difficult. Sometimes he had a problem getting out without being beaten up by people who did not want to see him there because he was from the wrong side. On one occasion, he is at a wake and they do not want him there. He is helped to leave safely through the intervention of a man who is a part-time—a reservist—police officer. Two days later, on his way to the pharmacy in the local village, Seamus sees the same man gunned down by republicans. Seamus has to spend the man’s last moments with him, under a lorry leaking animal urine, as they lie there saying the Lord’s Prayer.
As I say, I do not see how you deal with those sorts of memories by going through the catalogue of who did what to whom and whether one horror was greater than another. I think it is the case that good sermons are likely to make more of an impact than endless historical reconstruction.
When it comes to that, I will say what I have never said before: I am not sure that the Church of which I am a member has been wise in the view that it has taken over the years about segregated education. If we want kids to learn the sort of history that we would like them to, you do not slant it and insist that, in order to listen to your version, they must go to one of your schools otherwise they cannot get confirmed, which was the situation when I was a Minister in Northern Ireland for years.
I had not meant to say any of this. When it comes to history, however brilliant the historians and however balanced they try to be, we have difficulty even in producing official histories of our relationship with the EU, so producing a balanced history of what has happened in Northern Ireland would be very difficult. We should try to understand what has happened, of course, but—I sound like a bishop now—we should build on the decencies that have ensured that, despite all the trouble and the extremism, Northern Ireland still exists as, in many respects, a thoroughly decent community.
The people who I remember when I look back are the heroes. Some of the civil servants and public servants that I had, people such as Norman Dugdale and Maurice Hayes, were great human beings who gave their lives to the attempt to produce decency, prosperity and peace in Northern Ireland. But, please—no official history.
Lord Murphy of Torfaen (Lab)
This has been a powerful debate in many ways. I suppose it should be, bearing in mind what has happened in Northern Ireland over 40 years. This part of the Bill was meant to be the easy bit but it is not; as noble Lords have heard over the past hour or so, it is possibly even more difficult than the rest of this legislation.
I remember vividly going to Northern Ireland to help chair the talks on the Good Friday agreement, back in 1997. About 10 months in, I was chairing strand 1 of the talks and I had had enough of history by then. I told the people at the talks that I had spent 17 years of my life before I became an MP teaching history but had had enough of it, 10 months into the talks. I suddenly realised that it was a bit daft to say that because the people in those talks were revealing their past in a very special way. Looking back, I can see that there were not just one or two but even more versions of the same history, in exactly the same place, and we have heard a bit about that in today’s debate. That is not easy.
Lord Caine (Con)
My Lords, I am grateful as always to those who have contributed to this debate, which was lengthier than some of us had perhaps anticipated. We went over many of these issues extensively in Committee only a few weeks ago. I will therefore try to be as brief as possible and address my remarks in large part to the amendments.
Obviously I am aware that there have been a number of powerful and deeply moving contributions today that reflect the experiences of individual Members of your Lordships’ House who have suffered at the hands of terrorism and violence in Northern Ireland over many decades. I refer in particular to the comments of the noble Lord, Lord McCrea of Magherafelt and Cookstown, and the noble Baroness, Lady O’Loan, who shared some of her personal experiences. The House cannot fail to be moved by some of the remarks and reflections, including also those of the noble Baroness, Lady Ritchie of Downpatrick, that we have heard today.
As I have said many times, we are never going to agree on a common narrative about the past in Northern Ireland, but we can seek to put in place structures that will help all in society, including future generations, to have a better understanding of the past, with the overarching aim of enabling people in Northern Ireland to move forward, on which I agree wholeheartedly with the comments of my noble friend Lord Patten of Barnes.
I turn first to the memorialisation strategy, which will seek to build consensus around new structures and initiatives to commemorate those lost during the Troubles and to seek to ensure that the lessons of the past are not forgotten. The noble Lord, Lord Dodds of Duncairn, highlighted with his Amendments 114A and 114B that this objective would be fundamentally compromised if it allowed for the glorification of acts of terrorism. I am on record many times in this House as saying that politically-motivated violence on all sides, whether republican or loyalist, was never justified in Northern Ireland, and I agree completely with the words of the noble Lords, Lord Dodds, Lord McCrea of Magherafelt and Cookstown and Lord Weir of Ballyholme, and others on that. The Government will never accept any suggestion that there was, to use the quote, “no alternative”, which is peddled by those with a political motivation to rewrite history in order to denigrate the actions of the state along with the Royal Ulster Constabulary and the Armed Forces.
I take on board some of the comments of the noble Baroness, Lady O’Loan. There are of course examples where members of the security forces have fallen short of the highest standards, but I maintain that the vast majority of those who served in Northern Ireland did so with great courage, professionalism and integrity, while defending democracy and the rule of law. Without their service and sacrifice, there would have been no peace process; we owe them an enormous debt of gratitude. The noble Lord, Lord Dodds of Duncairn, can be assured that this Government will never accept any moral equivalence between those who defended democracy and the rule of law and those who sought to destroy both.
Having listened to the strength of feeling on this issue, the Government have tabled an amendment to Clause 48, adding an overarching duty that would require the designated persons to have regard to the need to promote
“reconciliation … anti-sectarianism, and … non-recurrence of political and sectarian hostility”.
In the Government’s view, this goes further than the amendments of the noble Lord, Lord Dodds, in that the overarching duty would apply to all the measures in Part 4, not only to the memorialisation strategy set out in Clause 44. Any attempt to glorify terrorism, or to revise or rewrite history in ways that justify it, would be fundamentally incompatible with this new overarching duty. Non-recurrence speaks to the avoidance of future political violence, which necessarily includes ensuring that no memorialisation activities glorify the commission or preparation of Troubles-related offences. The Government will also ensure that this understanding is reflected in any guidance documents or terms of reference.
Further amendments tabled by the Government commit the Secretary of State to consulting organisations with experience and expertise in promoting reconciliation and anti-sectarianism between communities in Northern Ireland before designating the delivery organisations and, crucially, before responding to each of the
“recommendations made in the memorialisation strategy”.
I hope that the Government’s amendments here address some of the noble Lord’s concerns around glorification, which I know are shared across the House, as has been so vividly set out this evening. Indeed, a core objective of the strategy, along with other measures in Part 4, is to confront the glorification of terrorism.
Amendments 117 and 118 are in the name of the noble Baroness, Lady Hoey. As I said during Committee, I fully support the sentiment behind these amendments, which seek to ensure that any Troubles-related academic research is suitably diverse and not, as the noble Baroness said, monopolised by a single view. But while she rightly highlighted that funding applications are assessed based on the past record of those applying, that is not the sole criterion used by research councils: for example, research impact, value for money and public engagement are a few of the other criteria used. As such, the wording of this amendment would have little practical effect. Going further, Clause 48 specifically requires that the designated persons, in delivering this work, ensure that a variety of views of the Troubles are taken into account. However, I take on board the noble Baroness’s comments about even-handedness.
On Amendment 118, as I said in Committee, nothing in the provisions of the Bill would preclude research into LGBT experiences during the Troubles, should the academic community feel that there is a particular need. I am sure noble Lords will agree that if we were to debate the inclusion of every theme relating to the Troubles, or themes which occurred during the same period, we would be here for a very long time.
The noble Baroness, Lady Hoey, referred to the clauses that deal with the role of women. There are international precedents and standards affirming the important role of women in the resolution of conflicts, in peace negotiations and in reconstruction. I visited an exhibition dealing with those issues at Ulster Museum only a couple of weeks ago. I would therefore respectfully maintain our position that these amendments are not required, but I am grateful to the noble Baroness, along with Jeff Dudgeon and the Malone House Group in Northern Ireland, for their ongoing constructive engagement on these matters. I think the noble Baroness will be aware that I had a useful meeting with the Malone House Group in the last two weeks.
Touching briefly on the advisory forum under Clause 49, I think noble Lords are understandably concerned with ensuring that the advisory panel overseeing the measures in Part 4 is not politically biased in its composition. As I said in Committee, I respectfully suggest that this amendment is not expressly necessary. Clause 49(2)(b) already states that, in establishing an advisory forum, due regard must be given to the need for the forum to have a balance in terms of members who are associated with different parts of the community in Northern Ireland—“different communities” being defined in the Bill as those which have differing views on the constitutional status of Northern Ireland.
Lastly, Amendment 118A in the name of my noble friend Lord Godson would enshrine in legislation the Government’s commitment to commissioning an independent public history relating to the Troubles. The term used throughout the debate this evening was “an official history”; the updated term, following the Pilling review, is a “public history”. Noble Lords will recall the fairly recent debate on this amendment during Committee, when noble Lords had an opportunity to discuss these proposals. From those who contributed on that occasion, there was certainly support in Committee for this project in principle.
It is clear that the main practical concern is around the extent to which the Government’s official history programme, which has been in hiatus since 2008, is a suitable delivery vehicle for a historical project of this scale and importance. Let me therefore clarify to noble Lords that, while this project would be akin to the official history programme for the purpose of using long-standing protocols to grant the necessary access to archival material, it will be driven forward separately by the Northern Ireland Office, consistent with subsection (5) of my noble friend’s proposed new clause.
I turn briefly to the points raised by the noble Baroness, Lady O’Loan, the noble and right reverend Lord, Lord Eames—whom I have always listened to with huge admiration and respect, even when we may occasionally disagree slightly—and my noble friend Lord Patten of Barnes. It was in recognition of some of the difficulties that all three of them raised in their comments that the former Secretary of State specified in moving this project forward that, in keeping with previous official histories commissioned by the Government, this official history would focus primarily on the UK Government’s policy towards Northern Ireland during the Troubles, rather than attempting to write a general history of the Troubles themselves.
Returning to my noble friend Lord Godson’s amendment, in respect of funding, I can confirm that the project will be fully funded from the £250 million pot that the Government set aside for the establishment of legacy mechanisms as part of the Stormont House and New Decade, New Approach agreements. Having written to my noble friend, I hope that the update and clarifications have gone some way to providing assurances on the concerns which may have prompted his amendment, and otherwise demonstrated the seriousness with which the Government are approaching this endeavour, so I would respectfully suggest that he does not press his amendment. I am of course happy to engage with him further in advance of Third Reading, recognising his strong interest in this matter and his expert advice, which I warmly welcome.
On that basis, I urge noble Lords to withdraw or not to press these amendments.
Lord Dodds of Duncairn (DUP)
My Lords, this has been a very powerful debate, with powerful contributions from all sides of your Lordships’ House. What is clear from everyone who has spoken is the recognition that all terrorism, from whatever side it comes, is wrong. It is not a question of pitting one atrocity against another or of identifying terrorism with one community. I remember that, during the Troubles, some of the most powerful voices against republican terrorism were in the nationalist community. There were people such as John Hume, who spoke out against terrorism relentlessly. Sadly, what is happening today in Northern Ireland is that that history is being rewritten and there is a revision of the past.
Lord Caine
“(aa) consult relevant organisations in the course of considering each recommendation, and”Member’s explanatory statement
This requires the Secretary of State, when considering recommendations made in the memorialisation strategy, to consult organisations with expertise in reconciliation or anti-sectarianism.
Member’s explanatory statement
This provides for the Secretary of State to consult on the proposed response to the memorialisation strategy with appropriate Northern Ireland departments.
Lord Caine
“(c) that programme is carried out in a way that promotes—(i) reconciliation,(ii) anti-sectarianism, and(iii) non-recurrence of political and sectarian hostility between people in Northern Ireland.”Member’s explanatory statement
This requires designated persons to have regard to certain (additional) matters when carrying out the Troubles-related work programme.
Lord Caine
(b) consult relevant organisations about the proposed designation.”Member’s explanatory statement
This requires the Secretary of State, before designating a person under Clause 50 in relation to the Troubles-related work programme, to consult organisations with expertise in reconciliation or anti-sectarianism.
Lord Caine
““relevant organisation” means an organisation that the Secretary of State considers to have expertise in carrying out, promoting or otherwise facilitating activities that are intended to encourage reconciliation or anti-sectarianism;”Member’s explanatory statement
This defines a term used in the amendments in Lord Caine’s name related to the Troubles-related work programme under Part 4.
Lord Caine
“financial year | This has the meaning given in section 2(9).” |
This amends the table of definitions to include the definition of “financial year” that is added to the Bill by the amendments of Clause 2 in Lord Caine’s name.
Lord Caine
Member’s explanatory statement
This changes the definition of “reserved provision” to reflect 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).
Lord Caine
Member’s explanatory statement
This would provide for only Clause 39 (and the associated amendments in Schedule 12) to come into force two months after royal assent.
“(2A) Part 3, except for section 39, comes into force on 1 May 2024.”Member’s explanatory statement
This would provide for the rest of Part 3 to come into force on 1 May 2024 (instead of two months after royal assent).
Lord Caine
“5A_(1) The ICRIR must—(a) keep proper accounts and proper records in relation to them, and(b) prepare a statement of accounts in respect of each financial year.(2) The statement of accounts must be prepared in accordance with any directions that are given by the Treasury.(3) The ICRIR must send a copy of each statement of accounts to the Secretary of State and the Comptroller and Auditor General as soon as practicable after the end of the financial year to which the statement relates.(4) The Comptroller and Auditor General must—(a) examine, certify and report on each statement of accounts,(b) send a copy of each report and certified statement to the Secretary of State, and(c) lay before Parliament a copy of each such report and certified statement.”Member’s explanatory statement
This would require the ICRIR to keep accounts and provides for the accounts to be laid before Parliament.
Member’s explanatory statement
This is consequential on the amendment of clause 2(3)(c) in Lord Caine’s name which allows the ICRIR to have a maximum of 5 other Commissioners. It amends the provision which gives the Secretary of State power to decide the number of other members which the ICRIR has.
“(1A) In exercising the power to appoint Commissioners, the Secretary of State must ensure that (as far as it is practicable) the Commissioners include one or more persons who have experience gained outside the United Kingdom that is relevant to the work of the ICRIR.”Member’s explanatory statement
This requires the Secretary of State to ensure that there is at least one Commissioner who has relevant international experience.
(b) the Secretary of State has consulted—(i) the relevant senior judge, and(ii) such other persons as the Secretary of State considers appropriate.”Member’s explanatory statement
This requires consultation in cases where a potential appointee no longer holds high judicial office (as well as in cases where they still hold such office), and authorises the Secretary of State to consult other persons besides the relevant senior judge.
Member’s explanatory statement
This removes some wording that is unnecessary as ill health is not a ground for removal from office as a Commissioner.
“(5A) A reference in this paragraph to a person being insolvent, or to being disqualified from being a company director, has the same meaning as in paragraph 11 (see paragraph 11(4) or (5)).”Member’s explanatory statement
This applies definitions of certain terms which appear in paragraph 11 to those terms as used in paragraph 7.
“(6) The following Orders apply to the Commissioners as they apply to constables—(a) the Rehabilitation of Offenders (Exceptions) Order (Northern Ireland) 1979 (S.R. 1979/195);(b) the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (S.I. 1975/1023);(c) the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions)(Scotland) Order 2013 (S.S.I. 2013/50).”Member’s explanatory statement
This updates the provision about the application to the Commissioners of the law relating to the rehabilitation of offenders. It ensures that the Bill provision reflects the current approach taken in that law.
Member’s explanatory statement
This is consequential on the amendment in Lord Caine’s name about consultation when appointing the Chief Commissioner.
Member’s explanatory statement
This is consequential on the amendment in Lord Caine’s name about consultation when appointing the Chief Commissioner.
Member’s explanatory statement
This clarifies who is to be consulted where a retired judge held two or more kinds of high judicial office.
Member’s explanatory statement
This requires consultation with the President of the Supreme Court where a retired judge was a Law Lord.
(za) is of a duration, not exceeding five years, determined by the Secretary of State,”Member’s explanatory statement
This would require the Secretary of State to determine the period for which an appointment as a member of the ICRIR lasts - which must not exceed five years.
Member’s explanatory statement
This is consequential on the amendment requiring the Secretary of State to determine the period of an appointment as a member of the ICRIR.
“18_(1) The following Orders apply to ICRIR officers as they apply to constables—(a) the Rehabilitation of Offenders (Exceptions) Order (Northern Ireland) 1979 (S.R. 1979/195);(b) the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (S.I. 1975/1023);(c) the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions)(Scotland) Order 2013 (S.S.I. 2013/50).(2) This paragraph does not apply to the Commissioner for Investigations (instead see paragraph 7(6)).”Member’s explanatory statement
This updates the provision about the application to ICRIR officers of the law relating to the rehabilitation of offenders. It ensures that the Bill provision reflects the current approach taken in that law.
“(2) This paragraph does not apply to the Commissioner for Investigations (instead see paragraph 14).”Member’s explanatory statement
This ensures that the Commissioner for Investigations (who is also ex-officio an ICRIR officer) falls only within paragraph 14 of Schedule 1 (as a Commissioner) and not also within paragraph 20 (as an ICRIR officer). Paragraphs 14 and 20 make equivalent provision to ensure that the prohibitions on trade union activity which govern the police do not apply to the ICRIR.
Lord Caine
“(1A) Sub-paragraph (1)(a) does not apply to an assault on a designated ICRIR officer under the law of England and Wales (instead see section 1 of the Emergency Workers (Offences) Act 2018).”Member’s explanatory statement
This avoids overlap with the provisions of the Emergency Workers (Offences) Act 2018 which will apply to designated ICRIR officers (but is law only in England and Wales).
Lord Caine
Member’s explanatory statement
This increases the maximum penalty for failure to comply with an information notice under section 14 from £1,000 to £5,000.
Lord Caine
“NO IMMUNITY IN CERTAIN CIRCUMSTANCESPART 1SEXUAL OFFENCE, EXISTING CONVICTION OR ONGOING PROSECUTIONApplication of this Part
1_ This Part of this Schedule applies if—(a) a person (P) has requested the ICRIR to grant P immunity from prosecution (the “current request”) under section 18 and conditions A to C are met, but(b) this Schedule prohibits a grant of immunity for an identified possible offence (see paragraphs 2 and 3).Prohibition of grant of immunity: sexual offences
2_(1) A grant of immunity for an identified possible offence is prohibited if it is—(a) a sexual offence, or(b) an inchoate offence relating to a sexual offence.(2) For the purposes of this paragraph “sexual offence” includes—(a) rape;(b) any offence committed by—(i) sexual assault,(ii) sexual activity, or(iii) causing or inciting another person to engage in sexual activity;(c) any offence relating to indecent images of children.(3) For the purposes of this paragraph “inchoate offence relating to a sexual offence” includes an offence of—(a) attempting to commit a sexual offence;(b) conspiracy to commit a sexual offence;(c) incitement to commit a sexual offence;(d) aiding, abetting, counselling or procuring the commission of a sexual offence.(4) The Secretary of State may, by regulations, make provision about the meaning of—(a) “sexual offence”, or(b) “inchoate offence relating to a sexual offence”;for the purposes of this Part of this Schedule (including provision specifying offences which are to comprise, or to be included in, that definition).(5) Regulations under this paragraph are subject to negative procedure.Prohibition of grant of immunity: conviction or ongoing prosecution
3_(1) A grant of immunity for an identified possible offence is prohibited if—(a) P has a conviction for the identified possible offence,(b) P is being prosecuted for the identified possible offence, or(c) P is being prosecuted for any other offence (whether or not a Troubles-related offence), and the immunity requests panel is satisfied that granting P immunity from prosecution for the identified possible offence would risk having, or would have, a prejudicial effect on that prosecution.(2) For the purposes of this paragraph—(a) P is “being prosecuted for” an offence if a public prosecution of P for the offence has begun and is continuing;(b) a “public prosecution” means any prosecution other than a private prosecution;(c) a public prosecution of P for an offence “has begun” if a prosecutor has made the decision to prosecute P for that offence;(d) the circumstances in which a public prosecution of P is to be regarded as continuing include circumstances where the trial which forms part of the prosecution ends without P being convicted or acquitted or any other verdict being given and either—(i) the period for the prosecution to seek a retrial is continuing (without a retrial having been sought), or(ii) the prosecution have sought a retrial;(e) the circumstances in which a public prosecution of P is to be regarded as not continuing include—(i) circumstances where the trial which forms part of the prosecution ends with P being convicted or acquitted or with another verdict being given, and(ii) circumstances where the trial ends without P being convicted or acquitted or any other verdict being given and the period for the prosecution to seek a retrial ends without a retrial having been sought.Grant of immunity prohibited for all identified possible offences
4_(1) If this Schedule prohibits a grant of immunity for all of the identified possible offences, the ICRIR must not grant P immunity from prosecution in relation to the current request.(2) Accordingly, section 18(1) and (7) to (16) do not apply in relation to the current request.Grant of immunity prohibited for some identified possible offences
5_(1) This paragraph applies if this Schedule prohibits a grant of immunity for some (but not all) of the identified possible offences.(2) The immunity requests panel must not decide under section 18(7) that P should be granted immunity from prosecution for—(a) any identified possible offence for which this Schedule prohibits a grant of immunity, or(b) a description of offences that includes any identified possible offence for which this Schedule prohibits a grant of immunity.(3) The ICRIR must not grant P immunity from prosecution for any identified possible offence for which this Schedule prohibits a grant of immunity.(4) Section 18(7) to (13) have effect subject to this paragraph.PART 2NEW REQUEST FOR IMMUNITY AFTER REVOCATION OF PREVIOUS GRANT6_(1) This paragraph applies where—(a) under section (Subsequent convictions: revocation of immunity), a court revokes immunity from prosecution granted to a person (P)(the “revoked immunity”),(b) P requests the ICRIR to grant P immunity from prosecution (the “new request”),(c) the new request—(i) is made before the revocation and is not concluded at the time of the revocation, or(ii) is made after the revocation, and(d) conditions A to C in section 18 are met in relation to the new request.(2) When dealing with the new request, the duty of the immunity requests panel to decide (under section 18(7)) what immunity should be granted to P has effect subject to sub-paragraphs (3) and (4).(3) The panel must not decide that P should be granted immunity from prosecution for any identified possible offence which was also within the scope of the revoked immunity.(4) When the panel is determining under section 18(9) or (11)(b) a description of offences for which P should be granted immunity from prosecution, the panel must frame the description so that it does not consist of, or include, one or more offences which were also within the scope of the revoked immunity.(5) If the panel decides in accordance with sub-paragraphs (3) and (4) that there are no offences for which P should be granted immunity—(a) the panel must decide that P should not be granted immunity from prosecution, and(b) the ICRIR must not grant P immunity from prosecution (and accordingly section 18(1) does not apply).(6) For the purposes of this paragraph the new request is “concluded” when the ICRIR gives P written notice of the outcome of the request in accordance with section 18(13)(a).”Member’s explanatory statement
This amendment deals with offences for which a person cannot be granted immunity from prosecution. The provision about sexual offences is moved here from Clause 19. It contains provision about previous convictions and current prosecutions (replacing Clause 20(1)). It also deals with cases where a person’s immunity from prosecution is revoked under new Clause (Subsequent convictions: revocation of immunity).
Lord Caine
Member’s explanatory statement
This would require any inquest initiated before the commencement of Schedule 10 to be discontinued on the commencement of that Schedule, unless the inquest is at its very final stage (the determination and any findings).
Member’s explanatory statement
This would remove paragraph 2 of the new Schedule 1A, which allows a pre-commencement inquest to continue if it is at an advanced stage. A pre-commencement inquest will now be able to continue if it is at its very final stage (the determination and any findings) as it will be outside the scope of the amended paragraph 1 of the new Schedule 1A.
Member’s explanatory statement
This is consequential on the amendments in Lord Caine’s name relating to paragraphs 1 and 2 of new Schedule 1A.
Member’s explanatory statement
This is consequential on the amendments in Lord Caine’s name relating to paragraphs 1 and 2 of new Schedule 1A.
Member’s explanatory statement
This would require any inquiry initiated before the commencement of Schedule 10 to be discontinued on the commencement of that Schedule, unless the inquiry is at its very final stage (the determination).
Member’s explanatory statement
This is consequential on the amendment in Lord Caine’s name to paragraph 1(1) of Schedule A1.
Member’s explanatory statement
This would remove paragraph 2 of the new Schedule A1, which allows a pre-commencement inquest to continue if it is at an advanced stage. A pre-commencement inquest will now be able to continue if it is at its very final stage (the determination) as it will be outside the scope of the amended paragraph 1 of the new Schedule A1.
Member’s explanatory statement
This is consequential on the amendments in Lord Caine’s name relating to paragraphs 1 and 2 of new Schedule A1.
Lord Caine
““(6A) An offence is a qualifying offence if—(a) subsection (7) or (7A) applies to the offence, and(b) the prisoner was convicted of the offence—(i) before the day on which section 18(1) of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 came into force, or(ii) on or after that day by virtue of a public prosecution begun before that day.(6B) For the purposes of subsection (6A)—(a) “public prosecution” means any prosecution other than a private prosecution;(b) a public prosecution of a person for an offence is “begun” when a prosecutor makes the decision to prosecute that person for that offence.””Member’s explanatory statement
This will prevent a prisoner from being released under the Northern Ireland (Sentences) Act 1998 if the prisoner is convicted after the ICRIR’s power to grant immunity from prosecution becomes exercisable (and so is a case where the prisoner could have avoided conviction by obtaining immunity).
(b) the prisoner was convicted of the offence—(i) before the day on which section 18(1) of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 came into force, or(ii) on or after that day by virtue of a public prosecution begun before that day.(A2) For the purposes of sub-paragraph (A1)—(a) “public prosecution” means any prosecution other than a private prosecution;(b) a public prosecution of a person for an offence is “begun” when a prosecutor makes the decision to prosecute that person for that offence.””Member’s explanatory statement
This will prevent a prisoner from being released under the Northern Ireland (Sentences) Act 1998 if the prisoner is convicted after the ICRIR’s power to grant immunity from prosecution becomes exercisable (and so is a case where the prisoner could have avoided conviction by obtaining immunity).
Member’s explanatory statement
This removes some of the amendments proposed to the Northern Ireland (Sentences) Act 1998. Those amendments would have allowed prisoners to be released (a) if sentenced to less than 5 years’ imprisonment; and (b) without the need to serve a minimum period in prison.
Lord Caine
“2A_ After section 60ZC of the Police (Northern Ireland) Act 1998 insert—<strong>“60ZD </strong> The Independent Commission for Reconciliation and Information Recovery(1) An agreement for the establishment in relation to ICRIR officers of procedures corresponding or similar to any of those established by virtue of this Part may, with the approval of the Secretary of State, be made between the Ombudsman and the ICRIR.(2) Where no such procedures are in force in relation to the ICRIR, the Secretary of State may by order establish such procedures.(3) An agreement under this section may at any time be varied or terminated with the approval of the Secretary of State.(4) Before making an order under this section the Secretary of State must consult—(a) the Ombudsman; and(b) the ICRIR.(5) Nothing in any other statutory provision prevents the ICRIR from carrying into effect procedures established by virtue of this section.(6) No such procedures shall have effect in relation to anything done by an ICRIR officer outside Northern Ireland.(7) In this section—“ICRIR” means the Independent Commission for Reconciliation and Information Recovery;“ICRIR officer” has the same meaning as in the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023.””Member’s explanatory statement
This enables the Police Ombudsman for Northern Ireland to have jurisdiction over ICRIR officers.
Member’s explanatory statement
This removes the amendment of the Regulation of Investigatory Powers Act 2000 (which would have made the ICRIR subject to the jurisdiction of the Investigatory Powers Tribunal, something no longer needed as the ICRIR will no longer have investigatory powers by virtue of amendment in Lord Caine’s name to leave out paragraph 6(3) of Schedule 12).
“5A_ After section 26E of the Police Reform Act 2002 insert—<strong>“26F</strong> The Independent Commission for Reconciliation and Information Recovery(1) The Director General and the ICRIR may enter into an agreement for the establishment, in relation to ICRIR officers, of procedures corresponding or similar to those provided for by or under this Part.(2) Where no such agreement is in force, the Secretary of State may by regulations establish such procedures.(3) An agreement under this section must not be made, varied or terminated except with the approval of the Secretary of State.(4) Before making regulations under this section the Secretary of State must consult—(a) the Director General; and(b) the ICRIR.(5) Nothing in any other statutory provision prevents the ICRIR from carrying into effect procedures established by virtue of this section.(6) An agreement or regulations under this section may contain provision for enabling the Director General to bring and present, or otherwise participate or intervene in, any proceedings that are identified by the agreement as disciplinary proceedings in relation to ICRIR officers.(7) Procedures established in accordance with an agreement under this section, or by regulations under this section, have no effect in relation to anything done outside England and Wales by any ICRIR officer.(8) In this section—“ICRIR” means the Independent Commission for Reconciliation and Information Recovery;“ICRIR officer” has the same meaning as in the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023.”5B_(1) Article 4 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 (Consequential Provisions and Modifications) Order 2007 (S.I. 2007/1098)(agreements to establish complaints procedures) is amended as follows.(2) After paragraph (4) insert—“(4A) The Commissioner and the ICIRIR may enter into an agreement to establish and maintain procedures which correspond to or are similar to those contained in Chapter 2 of Part 1 of the Act in relation to complaints made about the acts or omissions of the ICRIR and ICRIR officers.”(3) In paragraph (7), after sub-paragraph (d) insert—“(e) any statement made by a person who is, or has been, an ICRIR officer about the terms and conditions of their service;”.(4) In paragraph (14), after sub-paragraph (b) insert—“(c) “ICRIR” means the Independent Commission for Reconciliation and Information Recovery;(d) “ICRIR officer” has the same meaning as in the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023.”5C_(1) The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602) is amended as follows.(2) In article 3 (agreements to investigate serious incidents), after paragraph (17) insert—“(17A) The Commissioner and the Independent Commission for Reconciliation and Information Recovery (the “ICRIR”) may enter into an agreement for the Commissioner to investigate and report, where requested to do so by the ICRIR, on any serious incident involving the ICRIR.(17B) A “serious incident involving the ICRIR” has the same meaning as a “serious incident involving the police” in section 41B of the 2006 Act except that “a person serving with the police” means an ICRIR officer (which has the same meaning as in the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023).”(3) In article 4 (investigation of crimes and deaths), after sub-paragraph (h) insert—“(i) an ICRIR officer (which has the same meaning as in the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023).””Member’s explanatory statement
This enables the Independent Office for Police Conduct (in England and Wales) and the Police Investigations and Review Commissioner (in Scotland) to have jurisdiction over ICRIR officers.
“(e) ”Member’s explanatory statement
This changes the amendment of section 58 of the Investigatory Powers Act 2016 so that it operates on section 58(4) rather than on section 58(2).
Member’s explanatory statement
This removes the amendment of Schedule 4 to the Investigatory Powers Act 2016 (which would have made the ICRIR a “relevant public authority” for the purposes of Part 3 of that Act and enabled it to use investigatory powers).
“7A_ In section 379 of the Sentencing Act 2020, in the table in subsection (1), at the appropriate place insert—“Northern Ireland Troubles (Legacy and Reconciliation) Act 2023
section(Subsequent convictions: revocation of immunity) | revocation of immunity under that Act | making of false statements”” |
This is in consequence of new Clauses (False statements: offence) and (Subsequent convictions: revocation of immunity).