Northern Ireland (Interim Arrangements) Bill

Baroness Hoey Excerpts

3rd reading & Committee stage
Tuesday 23rd May 2023 Lords Chamber

I accept what the noble Baroness, Lady Ritchie, says about having the Executive to deal with these issues. Regrettably, when the Executive was in place, the issues were not dealt with because, as I have indicated, the Finance Ministers of the day did not bring forward budgets. So it is important to listen to the independent voice in Northern Ireland, and that is the Fiscal Council. I hope the Minister will take that on board in his response.

[Baroness Hoey (Non-Afl)]

My Lords, I strongly support this amendment in the names of the noble Lords, Lord Morrow and Lord Dodds. I agree very much with what has been said by everyone who has spoken so far, although obviously I disagree with the noble Baroness, Lady Ritchie, that somehow the only way in which this can be dealt with is by getting the Executive back. There is no reason for that, given that the Fiscal Council said what it did, and the Minister knows that Northern Ireland is not being fully funded because the Barnett squeeze is getting greater. Surely if the Government know that that is happening to a part of the UK, they should be able to act without waiting for an Assembly or an Executive, which, given what has been said, is very unlikely to come back in the near future. I urge the Minister not to treat this as some kind of bargaining point with politicians in Northern Ireland; that is not the way to deal with this serious financial situation.

It is important that the point about consultation be included in the Bill. Being realistic, there are things in Northern Ireland that—forgetting the whole issue of the Barnett formula and the overall funding—could raise more money. That has always been difficult because controversial decisions are very difficult to take between the two mainstream political parties and the two factions —or perhaps three factions—in Northern Ireland. There are some things that are not the same as in the rest of the UK but should be. No doubt I would be slated by the media in Northern Ireland for saying this, but I genuinely think we should be looking at prescription costs. There is a huge amount of waste due to the fact that prescriptions are free for everyone in Northern Ireland. That is just one small thing, but I am certain that, if the public were properly consulted on it, talked about it and understood it, there would be support in many areas for that way of raising extra funds.

There are other such issues but I will not go into any of those. I know the Minister is particularly knowledgeable about and supportive of Northern Ireland, but he may not have a Secretary of State who is necessarily quite so knowledgeable and supportive, so it is important that the Secretary of State listens to what people who understand Northern Ireland are saying.

As we are on finance, I will ask the Minister about policing in Northern Ireland, which is in a particularly difficult situation over its funding. Morale among the Police Federation there is very low. Are the United Kingdom Government giving extra money to the police to make up for the huge amount that it cost to have the very short visit of President Biden and all the other dignitaries who flew in and flew out again as quickly as possible, having joined in the commemoration of the Belfast/Good Friday agreement? It cost a huge amount of money to bring over police officers from Great Britain. Have the Government given any extra money for that? If not, why not?

We had a wide-ranging debate at Second Reading, so there is no point going over all the arguments again; we cannot in a debate on an amendment anyway. But let us not forget that we are here discussing the Bill only because we have no Executive, and we have no Executive because this Government—our Government—have decided that Northern Ireland is to be treated differently. We are being left under EU trading rules, which have set us apart and will set us further apart as time goes on. That is the really important issue that noble Lords need to remember.

[Lord Dodds of Duncairn (DUP)]

My Lords, I too am sorry that I was not able to be present, along with other noble Lords and noble Baronesses who have spoken, for the Second Reading of the Bill last Thursday because of other commitments in Northern Ireland. I put it on record that it was somewhat strange that the Second Reading was scheduled for the day of the local government elections in Northern Ireland. If nobody in the Government realised that, it tells us a lot about competence; if they did realise it and scheduled it anyway, it tells you a lot about their regard for Northern Ireland. I would like to know what actually happened that such a thing should be scheduled in that way.

I am glad that we have the opportunity to debate the amendment in the names of my noble friend Lord Morrow and me. It raises an important issue because, despite what is constantly said about the restoration of the Executive and the Assembly, if they were back tomorrow that would not make the slightest difference to the underfunding of Northern Ireland. In fact, Ministers—newly installed Ministers—would have to go about the business of slashing public services in health, education, policing and so on to an unprecedented degree. I do not agree with the idea that we should wait for the Executive and the Assembly to be restored. The need is here and now. The underfunding is taking place as a result of decisions taken here, in Whitehall and Westminster, by the Treasury.

It used to be the case over many years that the Northern Ireland Office was the advocate for Northern Ireland vis-à-vis central government and the Treasury, but it now appears that the current Secretary of State’s position is to become an advocate for the Treasury against the interests of Northern Ireland. He came on the other day to say that there would be no problem finding £100 million for a sports stadium. That is somewhat controversial in Northern Ireland but he was saying, “No problem at all—we’ll find the money if the bid’s successful”. But he cannot find an extra penny piece to deal with extraordinarily long waiting lists in the health service, education underfunding, police underfunding and the rest.

That sort of glib response to the crisis in Northern Ireland by the current Secretary of State, married to the refusal in this Bill to bring forward powers to give direction to civil servants, is an absolute abdication of responsibility by government Ministers who will no doubt respond and say, “Well, you should get into the Executive”. But they themselves are responsible for the current position in Northern Ireland by their refusal to restore the power of the Northern Ireland Assembly to make laws over 300 areas. Right across the economy of Northern Ireland, there are powers that do not reside in Belfast or here at Westminster or in Whitehall; they reside in Brussels with the European Commission—unaccountable and unanswerable. The Government need to recognise the current situation as it exists.

My noble friend Lord Morrow has very ably and in considerable detail set out the arguments behind our amendment. The Government may respond by saying that for many years they have funded Northern Ireland considerably well; the Minister referred to this at Second Reading. But whatever the past, what we are dealing with is now. As a result of government decisions taken by the Treasury, Northern Ireland is more below need on a funding-per-head basis than has ever been the case in any constituent part of the United Kingdom in the last 40 years. That is unacceptable and should not continue a moment longer. They cannot justify underfunding today on the basis of past settlements. Today’s budgetary position in Northern Ireland means social, economic and political dislocation. That is agreed and assented to by all the political parties in Northern Ireland across the board. It cannot be justified by looking backwards to previous financial settlements.

We will no doubt be told that Northern Ireland receives 20% per head more than the UK average spend. But, as we have heard, the true measure is spending against need. In Wales, steps were taken despite spending per head there being above the UK average. This is a question of asking not for favours or a privileged position but that the funding is structured so that services for the people of Northern Ireland meet the level of need, as is the case elsewhere in the United Kingdom. It is a quest not for privilege but for a level playing field. It is not a question of comparing Northern Ireland spending per head against England; it is about comparing Northern Ireland spending against need.

Of course, many people in Northern Ireland suspect the real game that the Northern Ireland Office is playing. I do not include in this the Minister answering on the Front Bench today, who has displayed time and again a willingness to fight Northern Ireland’s corner and stand up for the union. There are people within the NIO who no doubt believe that, by imposing this kind of budget and underfunding Northern Ireland both in the short term and going back some years, we will fix all this or come forward with a package if only the Executive and Assembly are restored and unionists operate the Northern Ireland protocol/Windsor Framework. That would entail operating measures that are injurious to the union and breach the Belfast agreement, the Acts of Union and the New Decade, New Approach document—the basis on which Northern Ireland devolution was restored in January 2020.

We have to face the reality that the failure of the Government to restore Northern Ireland’s place within the United Kingdom—subjecting it to arrangements that undermine democracy and are a breach of the agreements—is the fundamental problem we are grappling with. Unless that issue is tackled, we will continue to have a lack of devolved government in Northern Ireland. We have to accept the fundamental reasons why we are in the present position. Of course we do not want to see legislation having to be passed in this place to deal with the situation and would far rather have the Executive and the Assembly restored, but we have to have it back on the basis that we have powers to make the laws that affect and govern the economy of Northern Ireland. That cannot be avoided, and the fact is that the restoration of devolution lies in the Government’s hands.

The DUP stood on a manifesto in which we made it clear that the Northern Ireland protocol—the Windsor Framework—needs replacing

“with an arrangement that passes our seven tests”,

including getting rid of the Irish Sea border. It means restoring democracy and giving us the power to formulate and pass laws over our own economy, which seems very simple, straightforward and basic in terms of equal citizenship for all citizens of the United Kingdom. We are asking for something that would be seen as a matter of fact and common sense in every other part of the United Kingdom. Indeed, those who advocate different arrangements would never accept it for one minute for their own constituency, region or country in the United Kingdom.

Northern Ireland (Interim Arrangements) Bill

Baroness Hoey Excerpts

2nd reading
Thursday 18th May 2023 Lords Chamber

[Baroness Hoey (Non-Afl)]

My Lords, the Minister said it was with profound regret that he was bringing forward this Bill; I think we all share that sentiment. I do not want to repeat what the noble Lord, Lord Morrow, said, but it is important that we remind ourselves why we are here: we are here because the United Kingdom Government decided that Northern Ireland could be treated differently, and our citizenship is being eroded in many ways. The internal market has gone and all the hype about the Windsor protocol, as I would call it, is being exposed more and more. Therefore, we are here through the Government’s own making, and because they are not committing to the whole of the United Kingdom leaving the European Union—which was what was on our ballot paper in Northern Ireland as well.

Of course, we have to go ahead with this Bill; it is important. However, I think we should also remind ourselves that the 1998 devolution process, which we have been commemorating recently, is inherently unstable. It may have enhanced peace, yet there have been over 150 terrorist murders in that period, mostly killings between terrorist groups and each other. None were caused by the state, although around five involved the deaths of security force and prison staff. You could be forgiven for thinking otherwise, given the ceaseless list of 1970s legacy cases going through the courts in Belfast—every week there is another one—all of which are trying to rewrite history by reallocating blame for killings from the IRA to some element of state forces. It is really important that your Lordships realise and remember that.

A working Executive could do various things. They could agree on dividing up the money from the block grant. However, as we know in this House, any issues which require the two communities to yield on their particular hard and fast views mean we in Parliament end up legislating time after time: on legacy, abortion, gay rights or welfare reform—anything that is really controversial ends up here. We need to remember that as well.

The 1998 consociational structure means that Stormont operates on two tracks that do not meet. Local government works because it operates more on a committee system that cannot be boycotted easily. We see, and it is quite sad, that the Government, having changed the date of the local council elections to today, then put Northern Ireland legislation on the agenda for today. My personal view is that we should be strengthening local government in Northern Ireland, increasing the numbers of Members of Parliament, and doing away with and abolishing the whole Stormont set-up.

The current Secretary of State will not remember it, unlike the Minister, but when David Trimble twice pulled down the Executive over decommissioning, or the lack of it, he experienced the same wave of outrage that we hear in the media in Northern Ireland about what is not happening and Stormont not sitting. Today that rage is compounded by the strategic budget cuts. I believe that Northern Ireland needs the same focus on the Barnett formula, and how it works, that Wales got—it really is time for that. People in Northern Ireland are not stupid. They know that some 98% of government spending in Northern Ireland will proceed, regardless of whether Stormont is sitting or not. The financial situation is dire, and of course some of that happened under Stormont. The Sinn Féin Finance Minister could not get his budget through Stormont, so the idea that if we all get back to Stormont tomorrow the finances would be sorted is rather silly.

We have a legislative lockdown, but with only the minimum of law changes needed to keep the show on the road and to stop the lack of money supply actually wrecking sections of the economy. However, I feel the Secretary of State has perhaps decided that punishing the Northern Ireland people is the way to get devolved government back. We have seen senior civil servants—who I am sure are taking soundings from government Ministers—choose the most conspicuous cuts, such as this week’s cut to nurse-training funding, to frighten the public. I am sure this is being given the green light by certain people in certain positions. That health cut is going to inflict a major workforce shortfall in three years’ time, when those nurses who should have been graduating and entering the local profession will not do so—and of course there is a huge shortage of trained nurses in Northern Ireland and Great Britain.

There is some common sense in the Bill. Clause 2 gives powers for the Secretary of State to direct departments to provide advice or information, and even to oblige them to carry out a consultation. There might be a seed of a possible return to what I think would be a more sensible solution, and that would be a form of direct rule.

I know the noble Lord, Lord Murphy, on the Front Bench, will probably have a different view, but I think the Orders in Council system could have been a better way. We are going to find it extremely difficult to get Stormont set up and working well. It is time we started to think about that and to realise that Northern Ireland does need the direct attention of this place, and not treat devolution as some way of getting rid of it. We need to remember that while we have the Windsor protocol we will not have devolution.

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[Lord Murphy of Torfaen (Lab)]

My Lords, obviously, I join the Minister and other Members of your Lordships’ House in referring to the work of Lord Brooke. Peter Brooke was a man of huge decency and integrity. He was a colleague of mine in the House of Commons, and obviously a very effective Secretary of State in the sense that he actually progressed the peace process. Also, and sometimes forgotten, he was a very effective chairman of the Northern Ireland Select Committee. He will be missed. He played his part in Northern Ireland history; there is no question about that.

We of course agree with the necessity of the Bill. It has a very innocuous name, the Northern Ireland (Interim Arrangements) Bill. What it actually means is that we are going to carry on with a sort of direct rule until we can resolve the problems with regard to the restoration of the institutions. That is not good, of course—we deeply regret it and I will come to that in a second—but with regard to the Bill, particularly on the issue of finance, there are important questions that the Government have to address. They have been raised by the noble Lord, Lord Morrow, the noble Baroness, Lady Suttie, and others. There is a case—I speak as a former Finance Minister for Northern Ireland—for a re-look at, reform of and rethink of how the Barnett formula applies to Northern Ireland.

The noble Lord, Lord Morrow, quite rightly referred to Northern Ireland, in the formula sense, being underfunded. He referred to the position of Wales, which I know a little about. It is quite interesting to reflect that the settlement changed for Wales because of the work that was done and the pressure that was put on the Government by the Welsh Assembly and the Welsh Government. Would that have happened without devolution? It might have done, but I doubt it. A sitting Government in Cardiff and a sitting Parliament could address these issues in detail and then negotiate with the United Kingdom Government. Therefore, the issue which the noble Lord, Lord Morrow, referred to is best addressed in the context of a restored Executive and Assembly in Northern Ireland.

I do not agree with the noble Baroness, Lady Hoey, that we could exist without an Executive and an Assembly in Northern Ireland. If we completely forget about the Good Friday agreement and the peace process, with a Parliament in Edinburgh and a Senedd in Cardiff, it would be impossible not to have a devolved Parliament in Northern Ireland, irrespective of the peace process. We must live with that, and we should, because it is the only answer to the problems of Northern Ireland. Every time a Member from Northern Ireland gets on their feet in the Commons or in this House, ultimately it is not good enough. Those people in the Assembly in Belfast are elected directly by the people of Northern Ireland to address the specific issues which are devolved to Belfast. The Minister knows that there are dozens and dozens of huge decisions which cannot be taken by civil servants. It is totally unfair, in a modern democracy, to put on the backs of people who are unelected the burden of having to make huge decisions which only politicians can decide, particularly regarding finance.

Obviously, we still understand the problems that the Democratic Unionist Party has with the settlement in Northern Ireland regarding the European Union. However, the Windsor Framework is a real step forward and should be the basis of proper negotiation to arrange a settlement. This morning I was looking, yet again, at Section 1 of the Northern Ireland Act1998, which I had the privilege of steering through the House of Commons a quarter of a century ago. It says specifically that Northern Ireland is a part of the United Kingdom and will only cease to be so if the people of Northern Ireland so decide by a majority. I cannot see that happening for some time to come—who knows?—but that is what it says. The principle of consent—

[Baroness Hoey (Non-Afl)]

I thank the noble Lord for giving way and I agree with that part of the 1998 Act. I am sorry for going on about a very simple thing, but it is the kind of basic thing that makes people in Northern Ireland feel very left out: duty-free. Why can people flying from Belfast to anywhere in the EU not get duty-free, when you can fly from the rest of the United Kingdom to anywhere in the EU and get it? I got an answer recently which almost implied that part of the reason was because you could fly from Northern Ireland to the Republic of Ireland. Of course, as the noble Lord knows, you cannot fly from Northern Ireland to the Republic of Ireland, but that is just a simple thing that sets us apart.

[Lord Murphy of Torfaen (Lab)]

I do not think that in any way alters the position that Northern Ireland is a part of the United Kingdom. The noble Baroness will recall, because she comes from Northern Ireland and lived the early part of her life there, that there has always been a difference between Northern Ireland and the rest of Britain in certain respects. For example, livestock and agriculture have always had to be checked as they came across the Irish Sea, for various reasons. There was a separate Government for decades in Northern Ireland which imposed various restrictions, but that in no way affected the fact that Northern Ireland is part of the United Kingdom, so long as the people in Northern Ireland decide it should be. I do not underestimate the problems that have arisen, frankly because of Brexit. Without Brexit, this dilemma would not be in front of us, but we have to live with it. It seems to me that the Windsor agreement is a good start.

There are elections today in Northern Ireland. We will not know the outcome for another day or so. The marching season will soon be upon us. The recess is not far away. However, that should not stop the Government from planning for proper structured negotiations with the political parties in Northern Ireland and the Irish Government, so far as they affect the agreement. There should be a big role for the Prime Minister in the weeks and months ahead to work with parties in Northern Ireland to get a settlement. Despite the problems which we have had in Northern Ireland over the last two years regarding the protocol and the difficulties about the suspension of the institutions, there is no doubt from when we celebrated the Good Friday agreement some weeks ago in Belfast and elsewhere—and I do mean celebrated—that there has been a huge change. The noble Baroness, Lady Hoey, said quite rightly that, tragically, there have been 150 deaths in Northern Ireland over the last 25 years, mainly as a result of terrorism. However, that must be set against the 3,500 people who perished in the 25 years before the Good Friday agreement. That is the real measure of where we are in Northern Ireland.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Baroness Hoey Excerpts

Committee stage
Thursday 11th May 2023 Lords Chamber

[Lord Eames (CB)]

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

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

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

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

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

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

[Baroness Hoey (Non-Afl)]

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

--- Later in debate ---

[Baroness Hoey (Non-Afl)]

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

--- Later in debate ---

[Lord Dodds of Duncairn (DUP)]

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

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

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

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

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

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

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

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

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

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

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

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

[Baroness Hoey (Non-Afl)]

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

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

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

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

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

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

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

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

Windsor Framework (Democratic Scrutiny) Regulations 2023

Baroness Hoey Excerpts

Wednesday 29th March 2023 Lords Chamber

[Lord Thomas of Gresford (LD)]

The noble Lord, Lord Robathan, referred to his experience in the forces in Northern Ireland. It reminded me that when I was defending in the Brighton bomb trial in 1986, I was surprised to discover that Daniel O’Connell, the leader in the 19th century of the fight for Catholic emancipation and the scrapping of the Act of Union 1800, was, despite his nickname of “The Liberator”, dismissed as a traitor. The inspiration of the IRA was the rebellion of 1798, when Wolfe Tone and Emmet sought full independence for Ireland, with French republican support. That rebellion was a horrific episode, characterised by the dragooning of Ulster and other atrocities. I was appalled to discover that the Ancient Britons, a Welsh regiment of fencibles who were foremost in that savagery, had been raised in my neighbourhood in north Wales.

I therefore have some understanding of the deep and historic roots of the divide between the Catholic and Presbyterian communities, although not of course the lived experience of the noble Lords who are speaking in this debate. The more I come to understand the issues as a member of the Protocol on Ireland/Northern Ireland Sub-Committee, the more I am led to the conclusion that the Belfast/Good Friday agreement was something of a miracle, wrought by many across the political divide. Surely today’s politicians on all sides can emulate Paisley and McGuinness and sit together, to co-operate in government and to resolve issues by discussion and compromise.

The Windsor Framework is by no means perfect, as the noble Lord, Lord Jay, remarked. In my view, although there are many improvements in the Windsor Framework to the previous protocol, the Stormont brake is so surrounded by qualifications that it is unlikely ever to be used. It is instructive to look at what the European Commission has published in its commentary on the framework:

“The Stormont Brake is a new emergency mechanism that will allow the UK government, at the request of 30 Members of the Legislative Assembly in Northern Ireland … in the most exceptional circumstances, as a last resort as set out in a unilateral UK Declaration, to stop the application of amended or replacing provisions of EU law, that may have a significant and lasting impact specific to the everyday lives of communities in Northern Ireland.”


That is the EU view.

Thus, the Stormont brake goes only a short way to address the undoubted democratic deficit. Further, since it can be triggered by a petition of concern advanced by a minority of Members of the Northern Irish Assembly, it creates a positive Grand National of high jumps and fences which could easily lead to political conflict and a new impasse. The brake comes into play only after the 27 continuing members of the EU, having engaged in the necessary discussions and compromises needed to reach agreement, have put together a final legislative Act or regulation. It is then presented as a fait accompli to the people in Stormont.

What the people of Northern Ireland need is input into the pre-legislative discussions. But let us not despair. I believe that changes can be made without renegotiation of the Windsor Framework, and certainly without placing the protocol in the dustbin. In the same EU commentary to which I referred, the EU states that it recognises that Northern Ireland stakeholders have valuable insights to offer on Northern Ireland’s unique circumstances, and it will take into account their views in a timely and meaningful manner:

“The Commission will, in particular, be guided by the Commission Work Programme to identify specific Protocol-relevant measures for which space for intensified engagement with Northern Ireland stakeholders will be created.”


In the same spirit, the framework agreement strengthens the work of the joint consultative working group by the creation of themed subgroups, which are designed to be the conduit by which advanced notice of policy proposals in the EU will be conveyed to the UK Government.

In my view, the UK Government should now give firm assurances that a major part of the team which attends the joint consultative working group formed by the protocol should come from Northern Ireland. After all, most of the measures are concerned with devolved matters. This would of course have implications for expanding the Northern Ireland Civil Service to allow it take on such responsibilities.

Similarly, the joint committee to which the JCWG reports should have expanded representation from the Northern Ireland Assembly. Currently the First Minister and Deputy First Minister are invited to attend. No doubt they have an expert team of advisers, but token membership of the joint committee would most certainly not be enough. There must be room, where a particular measure or set of measures is referred to the joint committee, for the Minister responsible in the Northern Ireland Executive to attend as of right. The issue of who attends these committees is in the hands of the UK Government and does not require the assent of the European Commission.

The democratic deficit can never be completely resolved in the absence of a vote in the European Parliament. But the views of NI stakeholders and elected representatives can be fed in at an early stage through the revived and reformed joint consultative working group. This would give to the people of Northern Ireland not just the convoluted and clumsy mechanism of the Stormont brake but an essential and effective voice in the creation or subsequent amendment of EU measures.

[Baroness Hoey (Non-Afl)]

My Lords, I welcome the tabling of the fatal amendment to the Motion. At the very least, it has given your Lordships’ House an opportunity to discuss something that has been rushed through by His Majesty’s Government. I see that they are called the Windsor Framework (Democratic Scrutiny) Regulations. We are not really having much scrutiny. We have this SI on one aspect, although Downing Street said that this was the way that we could discuss the Windsor Framework. If I was going back to my days way back when I taught, I would want to start by asking how many people have actually read the detail of the Windsor Framework, and then how many people have actually read the EU legal text interpretation of it, because the two things are very different.

I must say right at the beginning that the problem with His Majesty’s Government on this issue has been that they started off by overselling hugely what was in the framework. The Prime Minister went to Northern Ireland, spoke at the Coca-Cola factory and made out as if everything had been solved; it was just wonderful. He was almost jumping up and down with delight, as has been the Secretary of State—who I am very pleased to see here listening to us today. Of course, there were all the things said in that first 24 hours: the blandness such as

“Removes the Irish Sea Border … Restores the free-flow of trade … Protects NI place in our Union”—


that was a tweet from the Secretary of State. Northern Ireland people are not stupid, and Northern Ireland people then went on to read the framework document and what the EU said and, as I said, they are very different indeed.

In his speech, the noble Lord, Lord Morrow, talked about the new issues that arose just yesterday following a contribution from a spokesman in the European Parliament. I will mention that in a moment, but I want initially—and this should be a wider debate, because that is what the Prime Minister said we would have in discussing the framework and this SI—to deal with the actual brake. I genuinely think it is a bit of a sham. It is similar to what takes place in Norway, which is not in the EU although it is aligned with it in certain respects. That measure has been invoked only once, when Norway tried to stop something called the post office workers directive. I remember being involved in helping to support people in Norway on that issue. They campaigned and worked extremely hard but, in the end, the EU set out the many penalties it was going to impose if the directive did not go through. So I do not think that anyone should think that this is a proper brake.

Even if the brake worked and was brilliant and everyone said, “There’s no problem with it”, I do not accept that we should have to have it in Northern Ireland. Northern Ireland had the same ballot paper in the referendum. We voted to leave the European Union as a United Kingdom. We joined the original common market as one United Kingdom. Why are we even having to discuss this?

It is interesting how many of your Lordships have talked about how we must compromise. One noble Lord said that we could not possibly have a border between Northern Ireland and the Republic of Ireland because it would be absolutely dreadful, and he asked what would happen if there were some kind of border. Let us think about why we say these things. We say them because the republican movement, the IRA, bombed all over Northern Ireland and on the mainland. The pro-union people in Northern Ireland did not bomb in Northern Ireland or on the mainland, although there were of course paramilitary terrorists on all sides. The reality is that we would not even be thinking of talking about some kind of structure—we do not need structures anyway; even the EU has said that a border could be invisible—yet we immediately put an Irish Sea border into our own country because there is no threat there. All noble Lords should examine their consciences on this matter in terms of what we are prepared to do. We are letting violence and threats of violence attack our sovereignty. So let us not talk about this Stormont brake as being anything other than a wonderful bit of camouflage that has been applied in the hope that it will be agreed to—as, of course, it will.

I refer again to what Bernard Van Goethem, one of the senior veterinary officers in the European Commission, said yesterday. One sometimes thinks that perhaps this is why the Government wanted to rush all this through—because so much is now coming out about what the framework actually says and does. He said that the EU has now said that new light-touch arrangements for the movement of retail food consignments from GB to Northern Ireland will not be fully implemented until SPS inspection facilities at Northern Ireland ports have been completed and audited. He told the European Parliament that officials from the EU veterinary office in Grange, Co. Meath, will carry out an audit of the facilities before the new system under the Windsor Framework becomes fully operational. He went on to say that the process to change EU law through so-called implementing Acts to facilitate the arrangements was conditional on the completion of agri-food inspection at four Northern Ireland ports. He told members of the European Parliament’s Agriculture Committee that none of the implementing acts will be adopted

“unless we are sure controls are done in a proper way … The controls currently in NI are not up to the standard required by EU legislation. We have the assurance from the UK Government that the current facilities … will be upgraded by October 2023 and that the final definitive SPS inspection facilities will be built by July 2025.”

Finally, he said that EU officials will be present to oversee the operation of border control posts where agri-food controls will be carried out under EU rules. What sovereign country would allow a foreign entity to be responsible for examining borders, checks and customs in its own country?

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Baroness Hoey Excerpts

Committee stage
Wednesday 29th March 2023 Lords Chamber

I hope the Minister will take on board the comments that have been made today. This is about reconciliation. For a period after the Belfast agreement, there was a genuine attempt to engage in reconciliation, but not recently. I have had it said to me—as everyone in this House knows—right to my face, about “Up the Ra” and what have you. Nowadays, there is a casual attitude to those sorts of statements. There is, as my noble friend Lord Weir said, a normalisation of those statements. Therefore, the Government need to send a very clear message that this is wrong and will not be tolerated, and that we are looking out for all the young people in Northern Ireland to keep them safe from this sort of behaviour.

[Baroness Hoey (Non-Afl)]

I rise very briefly to say that I do not think anyone could not support the amendments in the name of the noble Lord, Lord Dodds, and indeed all the amendments in this group. We should all abhor the glorification of terrorism, but we have to recognise that it has sometimes come about because of a longer period of sanitising terrorism. As a society in Northern Ireland, we have accepted unrepentant terrorists being able to end up on the Policing Board and other agencies within government. If unrepentant terrorists are given or can achieve such positions, that sends a message out. I understand why this is, given the way our system works in Northern Ireland, but it does not help in telling young people that there is something wrong with terrorism if you can end up in such a position, or in government, without having in any way repented, or said that what happened was wrong, or condemned it.

One other thing which may come up later, either tonight or another time, is that through the definition of a victim in Northern Ireland, we have somehow also sanitised terrorism. The definition of a victim in Northern Ireland can be someone who perpetrated an act and put the bomb wherever it went off. That is just not acceptable. They would not be seen as a victim in the rest of the United Kingdom. So, we have to look ourselves at some ways that we have actually helped to get to a situation where young people now feel that there is absolutely nothing wrong in chanting and singing support for the IRA. Indeed, the First Minister herself said that there was no alternative, and we have then had the threat level going up this week. We have to think that there might be some kind of effect there, with people thinking, “Well, clearly there was no alternative then, so there is obviously still no alternative”. Therefore, we have actually encouraged the sanitisation of terrorism.

I will say one mild thing to my noble friend Lord Brookeborough. Yes, integrated schools are fine, but do not let us go away with this idea that somehow state grammar or secondary schools are not doing their bit. For example, at the state grammar school I went to, Belfast Royal Academy, now nearly 40% of the young people are from a Catholic background. When I was there, there were hardly any young people from Catholic backgrounds but there were a large number of people from a Jewish background. Unfortunately, many of the Jewish people in Northern Ireland left and we have a very small Jewish community now. This idea that a Catholic in a certain area is stopped from going to a state school is just wrong. We have to say that the Catholic Church has a lot to do with this; I do not think there is any point in trying to ignore that. Therefore, integrated schools are fine, but they are much better if they come naturally.

[Baroness O’Loan (CB)]

To place this on the record, does the noble Baroness agree that Catholic schools now have a significant proportion of Protestant pupils as well? This movement of children is dominated and dictated by the quality of the schools.

[Baroness Hoey (Non-Afl)]

The noble Baroness is absolutely right; that is happening on all sides of the community. However, if you become an integrated school, you get a lot of extra money. A lot of schools now are becoming integrated—of course they have to sign up to the whole ethos of it. I am just putting in a slight point that integrated education is not this panacea that it somehow gets taken for. Particularly for the diaspora from Northern Ireland in England, that is the sort of thing it gets involved in, calling for integrated education.

The amendments in the name of the noble Lord, Lord Dodds, are important and I hope that when we come to the next stage of the Bill, the noble Lord, Lord Caine, will have found a way of getting this into the final Bill.

[Lord Murphy of Torfaen (Lab)]

My Lords, obviously I have a lot of sympathy with the amendments. I have never really agreed with the phrase that one man’s terrorist is another man’s freedom fighter. There is never any sort of justification for killing innocent people, particularly women and children and people going about their business. The only killing I suppose you can justify—and even that is doubtful—is in wars, if you have to do it in self-defence or whatever. There is no justification for the wickedness that accompanies such terrorism—none whatsoever. It offends both my human and my Christian principles; you cannot glorify these things.

However, I accept that there is a generational problem, as the noble Baroness, Lady Foster, said, for example. Just after the Good Friday agreement, there was a different feeling about the place, and as the generations go on and they forget what everybody has talked about today, things change and people’s attitudes change. Perhaps they ought to look at some pictures of the mayhem, murder and destruction caused by terrorism. I have said it before in the Chamber that one of the worst times in my political life, if not the worst, was when I had to go to Omagh two days after the bombing and talk to the relatives of the children who had been killed there. How on earth can we justify that sort of activity? There is no justification.

My own amendments refer specifically to people making money out of glorifying terrorism and that they should not be allowed so to do. The issue that the Minister faces is that, although everybody agrees that this is the wrong thing to do, how we then incorporate that into law and at the same time ensure that we all take into account what the noble and right reverend Lord, Lord Eames, said to us today: this is all about reconciliation.

Windsor Framework

Baroness Hoey Excerpts

Tuesday 7th March 2023 Lords Chamber

[Lord Caine (Con)]

Well, I appreciate very much the comments of the noble Baroness and the tone with which she expressed them. Of course, we all hugely desire the restoration of the political institutions at the earliest opportunity, not least as we approach the 25th anniversary of the Belfast agreement, which the party opposite negotiated in government. On the panel, that is of course a matter for the Democratic Unionist Party. The Government are committed to working with all parties to take this process forward. Where there is a need for official technical briefings, we are quite prepared to provide those and, as I say, we will work with all parties to take this forward.

[Baroness Hoey (Non-Afl)]

My Lords, last week Maroš Šefčovič told his MEPs that the European Court still reigns supreme over Northern Ireland, despite what the British Prime Minister said. He also said that the framework was designed in a way to avoid hostile headlines in the British press, and that the Stormont brake is very much limited in scope and under very strict conditions. Does the Minister accept that the truth about the framework agreement is now out, and it shows that the Prime Minister has hugely oversold it as a triumph, when in fact it is a small tinkering with the methods of delivering the very same protocol that has done so much damage to Northern Ireland?

[Lord Caine (Con)]

I thank the noble Baroness. I am afraid that I have to disagree rather fundamentally with her characterisation of the agreement negotiated by my right honourable friend the Prime Minister and others, which I regard as a very considerable improvement in all respects on the existing protocol. In respect of a number of issues that she raised, the Windsor Framework will allow for the free flow of trade between Great Britain and Northern Ireland, it will underpin Northern Ireland’s position within our United Kingdom, and the Stormont brake will give the United Kingdom Government a sovereign veto over new legislation within the scope of the protocol.

Northern Ireland (Executive Formation and Organ and Tissue Donation) Bill

Baroness Hoey Excerpts

2nd reading
Monday 27th February 2023 Lords Chamber

[Baroness Hoey (Non-Afl)]

My Lords, I add my condolences to the family of DCI John Caldwell following the terrible terrorist act last week. It is an act that has been condemned universally but sent a chilling message. Even more chilling has been the official declaration by the New IRA over the weekend that it was responsible and the warning in that message to members of the security forces that it had gathered data and that further attacks on the security forces were in the planning. It described this as a “military operation”. That is a very chilling message that we in your Lordships’ House should all be well aware of and condemn utterly.

I absolutely agree with the noble Lord, Lord Dodds of Duncairn: it is so hypocritical of the leaders of Sinn Féin to stand there condemning what happened last week and, literally two days later, attend a memorial for people killed because they had been involved in shooting policer officers. Let us not think that somehow the leaders of Sinn Féin have the moral superiority that they sometimes try to put forward.

I am very pleased that Dáithí’s law has come through. As I said in my last contribution, I am an integrationist and believe that Northern Ireland should have been added when the organ Bill was going through Westminster. So many things happen where it would be much better if the decision could be taken in the Houses in Westminster. I hope there will be a new Assembly at some stage before next year, when this legislation will come into force, but I also hope we will be able to see that an awful lot of things could be done here.

As everyone knows, we are here only because, long before the election in Northern Ireland last year, the Democratic Unionist Party made it very clear that it would not go back into government until it was satisfied that the problems with the protocol had been fixed—the protocol that so many other parties in Northern Ireland said had to be rigorously implemented. Of course, now they have a very different attitude, which I welcome.

The seven tests that the DUP put forward before the last election were not just plucked out of the air but grounded in promises already made in one form or another to the people of Northern Ireland by various Ministers and Prime Ministers in government. Sitting here, we do not yet know the exact details of the arrangements made today and the deal that has been coming for so long and has finally, apparently, been signed today. But it is worth reminding your Lordships’ House what those seven tests are and that they have not been just plucked out of the air, as I said.

As a staunch loyalist, I am deeply saddened by the fact that the President of the European Commission and our Prime Minister have chosen today to bring about this cup of tea with His Majesty the King. I think that is a deliberate act of the Prime Minister, which presumably his advisers and he thought would be welcomed by the loyal people in Northern Ireland. I have to say that it is misguided. As the former First Minister in Northern Ireland, the noble Baroness, Lady Foster, said today that it is a “crass” act. It was very mistaken of our Prime Minister and he will live to regret that, whatever happens to the deal today.

I would like to go through the seven tests quickly and without much detail. The first and most important is the constitutional issue of the Act of Union. Any deal must fulfil the guarantee of Article 6 of the Act of Union. It is not an ordinary statute; it is a constitutional statute which created the United Kingdom. It makes it clear that everyone in the United Kingdom is entitled to the same privileges and is on the same footing as regards goods in either country and in respect of trade in the United Kingdom. We know that that is no longer the case, because of the protocol.

The second test is that any new arrangements must avoid any diversion of trade. We have seen the diversion of trade that has been taking place. In fact, so much diversion of trade has taken place that Article 16 of the protocol could have been implemented and was said to have been broken over a year ago. If that had happened then, we might not have had to spend so long on this as we have over the last year. That is a very important test; will it be changed?

Thirdly, it is essential that any new arrangements do not constitute a border in the Irish Sea. The Secretary of State said on many occasions that we need new arrangements to see that that border disappears. I know that there has been talk of green and red lines. If a business in Bristol is trading with Belfast, it has to do exactly the same thing and have exactly the same issues as it would if it were dealing with Glasgow, for example, or Cardiff—no difference. That is another crucial test. We will see whether the green lanes and the dropping of the word “customs” is somehow meant to make us all feel that everything will be okay.

The fourth test—I have nearly finished—must give the people of Northern Ireland a say in the making of the laws which govern them. I expect there will be some compromise that says that the Executive in Northern Ireland will be involved in some way when new laws come in from the European Union to Northern Ireland, but if they do not have a veto, they are worthless. That is another important test.

Fifthly, the new arrangements must result in

“no checks on goods going from Northern Ireland to Great Britain, or from Great Britain to Northern Ireland”.

That is exactly what the Prime Minister said on 8 December 2019. We will see how that ends up after today.

Sixthly, the new arrangements should ensure no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless agreed by the Northern Ireland Executive and Assembly. That must be on a cross-community consent basis. Everything else in Northern Ireland, because of the Belfast/Good Friday agreement, is cross-community consent. Suddenly, the Government changed that to make it majority consent—we cannot have that.

Finally, the seventh test is, again, very important. New arrangements must

“Preserve the letter and spirit of Northern Ireland’s constitutional guarantee”,

as set out in the Belfast/Good Friday agreement, by requiring, in advance, the consent of a majority of the people of Northern Ireland

“for any diminution in its status as part of the UK”.

That is crucial too; we have already seen the status change and go against the Belfast agreement, which is why the late Lord Trimble said that the Belfast agreement had been broken by the protocol.

While I accept that this legislation needs to go through and hope that it will not be necessary for it to come back again in a year, I agree with those who said that, if the Government had listened more quickly, they could have put this through right at the beginning and not had this nonsense of the Secretary of State coming over, threatening people that there would be an election and then going back on it as we all knew he would have to do. Let us make sure that this does not happen again.

Finally, I ask noble Lords what other country in the world would be in the middle of signing off a deal with a foreign body—the European Union—to talk about getting control over a part of its own country back from that body. What other country would have allowed that to happen in the first place? We have an opportunity now to change that and make it last. If not, if the deal is not satisfactory, there will be no devolution. If there is no devolution, we will be back discussing this time and time again, and any deal that the Prime Minister thinks that he has signed off today will not last.

Northern Ireland Budget Bill

Baroness Hoey Excerpts

2nd reading & Committee negatived & 3rd reading
Tuesday 7th February 2023 Lords Chamber

[Baroness Hoey (Non-Afl)]

My Lords, I totally support everything the noble Baroness said about the need for more financial support for policing. Our police force in Northern Ireland has very different pressures from those in the rest of the United Kingdom.

We are here again, late at night, discussing Northern Ireland with more or less the same people we see at every debate. I sometimes think that if only the Conservative Party—sorry, the Conservative and Unionist Party—and the Labour Party had spent much more time over many years taking a genuine interest in Northern Ireland, getting properly organised there and standing for election, we might be in a very different position. The Labour Party does not even allow candidates to stand in Northern Ireland; yet, from all over, it keeps telling people in Northern Ireland what they should or should not be doing. That is important to stress.

I am disappointed in the amendment from the noble Lord, Lord Hain, who I count as a friend from long years of knowing him. It says to me that he no longer supports the Belfast/Good Friday agreement; the amendment is clearly completely against the spirit and words of the agreement in relation to cross-community support. I point out gently, as has been pointed out already by the noble Lord, Lord Dodds, that I did not see much pressure coming from the Labour Party during the three years that Sinn Féin was not in the Assembly. I did not see Motions to change the Belfast agreement or take the salaries away from those who would not take their seats. I support what the Minister has done to reduce the salaries of the elected MLAs; that was perfectly sensible, as I think the parties themselves recognise, but what the noble Lord, Lord Hain, is suggesting goes much further than that. Elected members of Sinn Féin, who say they have a mandate not to take their seats in the other place, still get huge amounts of money. They fly back and forth at the taxpayers’ expense. They do not get salaries but they get huge office expenses, which they use for campaigning, as has already been said. I wonder whether the noble Lord, Lord Hain, would similarly support stopping Sinn Féin’s money, since they refuse to take their seats.

They say they have a mandate—well, the DUP has a mandate. Whether your Lordships like it or not, the DUP has a mandate to stay out of the Assembly and the Executive until such time as the protocol has been sorted. It is simple. The Government have known for a very long time that it is devolution or the protocol. You cannot have both. The Minister probably realises that. What we do tonight we are doing because we have the protocol and we do not have an Executive to put a budget through. I of course support the fact that we are doing this, and I support quite a lot of the elements of the budget. I believe that this is an opportunity for His Majesty’s Government to look at some radical changes to what is happening in Northern Ireland.

As has been said before, even if the Executive were back tomorrow, the huge problems that exist are very unlikely to be solved in the way that we would like to see, because of the way the Executive work, the way the Finance Minister can decide how the money will be spent and the fact that there has to be agreement. The fact that the previous Finance Minister did not get a budget agreed by any of the parties is symbolic. As the noble Lord, Lord Dodds, has said, we cannot go on like this forever, with the way things are going with the European Union. We will get a decision tomorrow in the Supreme Court. Even if the court refuses to rule out the protocol, it will probably say things that, hopefully, will show again that the Government have broken the Act of Union; they have admitted that in the courts in Northern Ireland. They have subjugated the Act of Union; that is where we are today.

I hope the Minister will say how long he thinks we can go on in this situation. In my view, there will not be an Executive or Assembly until the protocol goes. That is what people are beginning to realise. It is definitely not going to happen until we see real sovereignty being taken back, and Northern Ireland back as an integral part of the United Kingdom. As Sir William Cash said very expressively and well last night on a television programme in Northern Ireland, how could any Government anywhere in the world give away—basically—a part of their own country, ceding power as we have done to the institutions of the European Union?

We will have to come up with some other solutions that do not mean coming back every month with a Bill to do something else. At the moment, it seems that Ministers decide what they will and will not allow to happen, but we want to see that in a much more systematic way. Perhaps it is time that we returned to the system of legislating, as we did in the past, by Orders in Council. At the moment we have these erratic emergency Bills coming through to which the Government very rarely accept changes, but, despite past criticism of the limited time given to Orders in Council in both Houses of Parliament, and of the fact that an order was unamendable, it would be far preferable in terms of good government to return to that system, as well as making much better use of your Lordships’ time here. Legislating in that way would allow Northern Ireland’s separate body of law to be updated when necessary, instead of many years later than needed.

It is worth recalling what used to happen before Stormont reappeared spasmodically. There were an average of 20 Orders in Council every year until 2006-07. In the last 15 years there have been only six, yet there have been numerous Northern Ireland Bills. Those six orders were exceptional measures to introduce the welfare reform that involved universal credit—Stormont Ministers were not willing to be seen to legislate in that area so they asked Westminster to do the needful—and another one reformed the sexual offences law. I cannot help but think that this buck-passing is what happens with the current legacy Bill. I think we have all forgotten, because it is convenient to forget, that the five local political parties oppose the legacy Bill but previously they sent it to Westminster because they could not agree on any way forward for themselves.

We have to face up to the fact that this House and the other House have become the legislature for Northern Ireland. It is time that the noble Lord, Lord Caine, started to convince Ministers and the Prime Minister that we cannot go on like this, and that there is a need to put in an extra couple of Ministers for Northern Ireland and beef up local government. Over many years, people have argued against devolution and said that integration was the way forward. People sometimes say that the train has gone too far to be pulled back, but we might need to look at whether what we are doing now is going to be sustainable in future. Sufficient integration on a transitory basis until the Assembly is back needs sensible government consideration.

Money is getting through now—practically everyone who was entitled to it now has the energy money—but we need radical change in how we deal with our finances in Northern Ireland. Some bad financial decisions have been taken in Northern Ireland over the past two or three years. Sometimes, because one side gets something, the other side then has to get something, and the two things come together but it is not actually the best way to spend money for people in Northern Ireland.

We should use this opportunity—although I am sure no one will want to say it is an opportunity—to look seriously at what we are doing at this moment and how we can make the changes now that will mean, should the protocol go and the Executive come back, there is a better footing to make things better in Northern Ireland generally for all its people.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Baroness Hoey Excerpts

Committee stage
Tuesday 31st January 2023 Lords Chamber

[Baroness Ritchie of Downpatrick (Lab)]

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

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

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

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

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

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


and that the ICRIR

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

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

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

[Baroness Hoey (Non-Afl)]

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

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

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

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

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[Lord Hain (Lab)]

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

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

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

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

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

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

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

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

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


Quoting Dr Sandra Peake, the article goes on:

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


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

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

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

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

[Baroness Hoey (Non-Afl)]

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

[Lord Hain (Lab)]

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

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

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

“merry-go-round of legacy inquests”.

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

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

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

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

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Baroness Hoey Excerpts

Committee stage
Tuesday 24th January 2023 Lords Chamber

Other amendments would require greater levels of transparency and accountability from those required to give information. In particular, I refer to Amendment 147 in the name of my noble friend Lord Hain, which is really about Operation Denton, which he will deal with in quite a detailed way. The amendment refers to the fact that Operation Denton, which is dealing with the Glenanne murders, is so well progressed, and has developed such strong levels of trust and confidence from the families, that it will cause undue stress for those families and unnecessary delays to the findings being released for this inquiry to be passed to the ICRIR. It is therefore important that Operation Denton be allowed to complete its work. Will the Minister go back and explore further the need to keep Operation Denton? Its work will conclude in 2024 and it has already done vital work in the whole area of review by Jon Boutcher, supported by all of those families and victims who are involved in it—I am aware of that from having talked to some of them.

[Baroness Hoey (Non-Afl)]

My Lords, first, I have a quick comment on the previous debate. Many noble Lords—in fact, nearly all—talked about the consensus in Northern Ireland opposing this legacy Bill. I just remind them that there may be consensus, but it is from very different points of view.

My Amendment 63, which is also in the name of the noble Lords, Lord Bew, Lord Godson and Lord Empey, is designed to narrow the criteria for a reinvestigation being started by the ICRIR. If the previous investigations listed in my amendment, such as by the HET or the PSNI’s Legacy Investigation Branch, and the stated need for the provision of “compelling new evidence”—a phrase that I remind noble Lords was thought necessary and appropriate for the overseas operation Act—are not added to the Bill, I have a very depressing prediction to make to your Lordships’ House. I think the ICRIR will end up reinvestigating many—indeed, every one—of the nearly 4,000 deaths. The cost will be billions of pounds, not the budgeted £250 million, and the process will last not for five years but for a decade or more, because this is where judicially led enquiries go, especially when internationalised. If the ICRIR, as suggested in the Minister’s letter to noble Lords on 17 January, is obliged to act simply on allegations, that can be the only consequence.

Legacy practitioners—which is the new force in Northern Ireland, not the victims’ relatives as the Bill believes, I believe, naively—using the concept of collusion, or “collusive behaviours”, the version relied on now by the Police Ombudsman, can design a case to investigate every death. Collusion can be alleged in relation to all loyalist killings and, indeed, all republican ones, by virtue of the use of security force agents in both paramilitary groups, let alone alleged investigatory failings that Strasbourg complains of.

When I spoke at Second Reading of the overseas operations Bill, almost exactly two years ago on 20 January 2021, I said:

“Let us not forget that the only cases now involving veterans are ones pending in Northern Ireland, which concern events of 50 years ago or more. For that reason, we need to get on with a Northern Ireland equivalent law”.—[Official Report, 20/1/21; col. 1236.]


Of course, extending that Act to cover Operation Banner, as I suggested then, and others, would have dealt with the issue in hand, rather than this increasingly complex confection of ICRIR.

No murder case in England would ever see this level of reinvestigation, and certainly not of funding. Have we learned no lessons from the Iraq historical allegations, and solicitor Phil Shiner? Let us remember, as was mentioned earlier, that it is good to remind people of who actually died in the three decades of the Northern Ireland terrorist campaign. Nearly 4,000 persons died violently; 60% of the deaths were caused by republicans and 30% by loyalists. The state—police officers and soldiers—was responsible for approximately 10% of the killings. Very few of those state killings were unlawful, as the force used was not unreasonable, but all the republican and loyalist murders were most certainly unlawful.

The rewriting of history is about the complexity of the Troubles being distorted into a single concern with state killings, which of course republicans and their allies then use, slowly, case by case, to construct the narrative of the IRA being somehow a popular resistance force that had no alternative to killing. The Committee of Ministers at the Council of Europe, when enforcing the ECHR judgments on the so-called McKerr line of cases, refers only to killings

“either during security force operations or in circumstances giving rise to suspicion of collusion in their deaths by security force personnel.”

So Strasbourg has effectively accepted a nationalist perspective on the matter for the past 20 years, and there has been no public challenge by our Government. Some 90% of victims’ families are thus being told by the human rights court that they do not really matter. They are not wanted in the world of lawfare; they are an embarrassment.

When ICRIR opens for business, I believe the following will happen: there will be a smattering of requests for reviews from very distressed relatives; the IRA Army Council will almost certainly not be tempted by the immunity opportunity; and loyalists may not know how to respond. The vast majority of requests will be from legacy practitioners, once again, who will demand rigorous reviews—in fact, new criminal investigations—of hundreds of cases on the flimsiest of allegations, unless curbed by our amendment. The Northern Ireland Office has to brace itself for the judicial reviews and civil suits that will keep on coming.

Legacy has been a poisoned chalice since the Belfast agreement, and it is worth remembering that the 1998 document never envisaged what has since happened. About victims it said simply:

“The achievement of a peaceful and just society would be the true memorial to the victims of violence.”


The United Kingdom failed to deal with legacy, although we now have something close to peace. There has been no substitution; nobody has brought forward a real legacy plan since the Eames-Bradley report of 2009, which did have some elements of legacy. The only credible initiative was from former Chief Constable Sir Hugh Orde’s Historical Enquiries Team within the PSNI. But that was closed down because a radical academic, given access, misconstrued what was happening, and Her Majesty’s Inspectorate of Constabulary joined in the unwarranted criticism of the PSNI and HET—I believe to the anger of Sir Hugh.

This amendment is designed to stop mission creep by the ICRIR. It needs to be accepted because, without a statutory mention that narrows access and prohibits repeat applications, the commission’s remit will grow, just as the police ombudsman’s did. We need finality and I hope that the Minister will respond in detail to my speech and those of other noble Lords on this very important issue.

[Lord Eames (CB)]

My Lords, in his response to the previous debate on the amendment in the name of the noble Baroness, Lady O’Loan, I fear that the Minister may have misunderstood some of the phrases I used in my own remarks. I do not in the slightest attach any personal criticism to him for the failure of the amendments we asked for from the Government on a previous occasion. I hold him in the highest possible regard personally for all he has done for Northern Ireland, and I hope that that respect is, despite the remarks, mutual.

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There is a process that is working for families and is a model for how to deal with the legacy issue, and that is Operation Kenova. I and other noble Lords will be speaking at greater length on Kenova when further amendments are debated, notably in the next group. Many victims and survivors will be very suspicious of a process that seems have as its starting point mechanisms to shut down evidence finding and information gathering, and I am afraid that this Amendment 63 is badly flawed for that reason.

[Baroness Hoey (Non-Afl)]

I accept part of what the noble Lord is saying about how the victims feel about what has happened in the past and the need to understand more. However, does he not agree that the reality is that for the people from the terrorist organisations who perpetrated these acts, there are no records, as was said earlier, and there is nothing that at this stage will ever lead to anyone ending up in court and being found guilty? Indeed, many of those people who were involved with some of these killings have in fact been given letters of freedom and have been given immunity.

[Lord Hain (Lab)]

The point I am making is that there were files, and Operation Kenova has had access to those files. They are held principally by the security services but, under very strict conditions and with trust, the investigation has been able to retrieve information on a sensible basis without compromising the work of the security services, and that has been of great comfort for victims. That is my point and my concern about the noble Baroness’s amendment.

I turn to my Amendment 147. I thank the noble Lords, Lord Hogan-Howe and Lord Blair, both distinguished former Metropolitan Police Commissioners, together with the noble Baroness, Lady O’Loan, a distinguished former Police Ombudsman for Northern Ireland, for adding their names. The amendment is designed to ensure, as my noble friend Lady Ritchie has already argued, that the Bill does not prevent the continuation of the review into the Glenanne gang series, known as Operation Denton, which is expected to conclude and report in spring 2024—that is, after the Bill could have received Royal Assent.

What is known as the Glenanne gang series includes a significant number of murders and other terrorist offences committed in both Northern Ireland and the Republic of Ireland during the Troubles between around 1972 and 1978. The cases within the Glenanne gang series are connected by common features, such as individuals, weapons, areas or targets involved. In some of these cases, direct evidence has already demonstrated the collusion of police or security force personnel.

Various parties, including families, have significant concerns about the rigour and professionalism of previous investigations into these cases and have for many years sought a comprehensive, overarching, thematic analysis of the Glenanne series and the extent of any state collusion. On 5 July 2019, the Barnard judgment set out the requirement for an independent review of the activities of the Glenanne gang, a statutory requirement in accordance with Section 35(5) of the Justice (Northern Ireland) Act 2002 and Article 2 of the European Convention on Human Rights. The chief constable of the PSNI requested that the former chief constable of Bedfordshire Police, Jon Boutcher, carry out this review. It was named Operation Denton, commenced in February 2020 and is part of the cases being conducted under the umbrella of Operation Kenova.

To date, Operation Denton has identified 127 murders resulting from 93 separate incidents connected to this series. It has met and is supporting families of the victims. It has had success in securing the release of material from the Republic of Ireland through lobbying for and securing the introduction of secondary legislation by the Irish Government to ensure access to records held by the Garda to assist the review. It is anticipated that Operation Denton will conclude and report publicly and to families no later than spring 2024.

Operation Denton is so well progressed and has developed such strong levels of trust and confidence with the families that it would cause unnecessary delay to the review—and, crucially, undue stress to families, who have suffered grievously already—for this inquiry to be passed to the ICRIR. It is important therefore that Operation Denton be allowed to complete its work. I hope that the Minister, who I see is nodding, will confirm that in his reply to this group of amendments. The lawyers and NGOs supporting the Glenanne series’ victims and families have indicated that they will legally challenge any decision to stop Operation Denton and will not co-operate with the ICRIR, such is their confidence in the work currently being done.

In conclusion, it is almost certain that Operation Denton’s work will be completed and families informed of its findings before the ICRIR is open for referrals. I therefore very much hope that the Minister will give the Committee the assurance that I seek and the absolute assurance that the victims desire.

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[Baroness Hoey (Non-Afl)]

My Lords, I will speak to my Amendment 34 about human rights, to which the noble Lords, Lord Godson, Lord Empey and Lord Bew, have added their names.

Human rights are usually invoked by people in support of their political position, without actually admitting or understanding that there is always a conflict of rights in most situations. This could not be more true of legacy in Northern Ireland. One right is always mentioned—Article 2 of the European Convention on Human Rights on the right to life—but of course there are other ECHR rights that should arise in a legacy debate. Article 6 is the right to a fair trial, which has implications for those whom the ICRIR will consider in its reinvestigations and public reports. Article 8 is the right to respect for private and family life, which applies to an even wider range of people caught up in every Troubles death, especially those who served in our Armed Forces and the police. Article 10 concerns freedom of expression and the right to a reputation, and this applies to another group, including those who are critical of lawfare for different reasons but who fail to get much reported by our state broadcaster in Northern Ireland, BBC Northern Ireland.

For over 20 years, following the McKerr judgment of the European Court in May 2001, the slogan “Not Article 2 Compliant” has been thrown around, not just by the advocates of lawfare but by too many figures in the criminal justice system. In the McKerr case—he was a member of the IRA killed on active service in November 1982 by members of the RUC—Strasbourg invented a new right. The court did not say that the UK had violated McKerr’s substantive Article 2 right to life, but the seven human rights judges said that a new right had been violated due to an alleged inadequate investigation. That right became known as “Article 2 procedural”. The UK was required to continue to investigate and to ensure that

“the next-of-kin of the victim must be involved in the procedure”.

I am sorry to say that, in the context of Northern Ireland and terrorism, there are some relatives who might have an interest greater than justice, such as discrediting the way police officers and soldiers resisted republican and loyalist terrorism during the decades of the Troubles—and Strasbourg does not deign to notice that.

There is a second McKerr line of cases in the House of Lords, and later the Supreme Court, which the Committee on the Administration of Justice and academics never mention. On 2 October 2000, the Human Rights Act 1998 came into force. The House of Lords, in another McKerr judgment in 2004, said that Article 2 compliant investigations did not apply to deaths before that October 2000 date. This position was left in place in domestic law by our judges in the McCaughey case in 2011, the Keyu case, a Malaysian case, in 2015, and the Finucane case in 2019. Then, in December 2021, in a key Northern Ireland case called McQuillan, the Supreme Court reaffirmed the rule of no Human Rights Act requirement for such investigations —which, essentially, were reinvestigations—before October 2000, with a qualification, based on some controversial Strasbourg jurisprudence, that a 10-year pushback was permissible. The helpful headline in the Times Law Report read, “Northern Irish police are not required to re-investigate incidents from the Troubles”.

Solicitor Patrick Finucane was murdered by loyalists in February 1989, some 12 years before the human rights commencement date. His killers have been convicted but the need for reinvestigation—a public inquiry, as Strasbourg and his family demand—remains an open question. Some human rights lawyers query whether Strasbourg’s 10-year rule is even arguable under the Human Rights Act 1998. If the Supreme Court judgments are relied on to turn down a Finucane public inquiry, and the Supreme Court said that the Government, for various other reasons, were not obliged to have one, the matter should be over and we would save up to £100 million. For this reason, I believe that the Government need to beef up their responses at Strasbourg —I note what the Minister said in answer to the previous debate about the Northern Ireland Office making overtures; it would be helpful if we could see some of those—because they have to start ignoring what is seen as an international lynch mob currently baying at the Northern Ireland Office over the Bill.

I look forward to the Minister explaining how, given the McQuillan judgment, much of Article 2 procedure now applies to the nearly 4,000 Troubles killings. In 2021, in a PSNI statement just after the judgment, Assistant Chief Constable Jonathan Roberts, who well understood the import of McQuillan, wrote:

“The Police Service welcome the clear legal ruling that there are no legal obligations arising from Article 2 ECHR to investigate these cases”,


including McQuillan. He continued:

“We will now carefully consider the judgments and their impact on the legacy caseload.”


Sadly, nothing visible has happened since that.

I am sure that, in answer to my amendment, the Minister will say that Section 6(1) of the Human Rights Act 1998 means that all ECHR articles would apply to the ICRIR’s work. If the Government are being pushed by the CAJ and Strasbourg into Article 2 procedure—as they have been in Northern Ireland Amendment 76, which the Government will move—by adding criminal investigations to the review process, why can they not also say in the Bill, using the Minister’s phrase, that other ECHR articles, particularly Articles 6, 8 and 10, will be in play?

[Lord Hogan-Howe (CB)]

My Lords, I rise briefly to support the amendments. First, I was struck during the debate by this distinction between investigations and reviews. Everyone agrees that investigations should follow but the question is whether there should be prosecutions. There are arguments around whether a review is really an investigation—do the families really get the facts? If we could agree that an investigation was not always followed by a prosecution, this may be something that we could start to agree on.

Secondly, it seems that there is a broad consensus that, as an approach, Kenova is good. The standards of connection to the families and of investigation have been supported by the people who most need this—namely, those who have lost family members.

Finally, there is a bit of a definitional issue around the difference between a review and an investigation, and we will have to address that at some point. One of the things about an investigation is that, obviously, there is always an interview with the suspect. It has to be conducted by the rules of evidence and there is the potential for a charge at the end. One of the dilemmas with any review, including Kenova, is that a review can consider material that is not evidence. I will make two broad points in that area.

First, as we have heard, Kenova is looking at intelligence material from other countries as well as from within the UK. It may be able to look at such material but it will not be able to quote it or quote it in a court. Secondly, it is impossible to use intercept material—intercepted communications, usually by telephone—as evidence in the UK unless it has been obtained in a jurisdiction in which it is legally possible to use it as evidence. It is ironic, but that is our system. Reviews are able to consider telephone communications that may be indicative of, but not evidence of, certain actions or charges. That dilemma has to be resolved at some point because although the reviewer may be led by such communications to conclude that one particular person was responsible or a crime was committed in a certain way, they cannot quote it in a court of law—it regularly now has to be held back in serious and organised crime and terrorism cases. The only information that can be quoted in a court is the fact that the telephone call occurred, the time it occurred, who was at either end of the communication, and, more recently, where they were when they made the call, because there is information on mobiles. I raise this not because it is an easy answer for the Minister to give but because it is fair to put that dilemma in this domain.