Northern Ireland Troubles (Legacy and Reconciliation) Bill

Baroness O'Loan Excerpts

Committee stage
Tuesday 24th January 2023 Lords Chamber

Moved by

[Baroness O'Loan]

At end insert “but that the House should not be invited to read the Bill a third time until the Northern Ireland Assembly has agreed a Legislative Consent Motion in respect of the Bill”.

[Baroness O'Loan (CB)]

My Lords, policing and justice were devolved to the Northern Ireland Assembly in 2009, years after other areas of governance. How to handle Northern Ireland’s legacy of pain has been a source of contention for decades, for reasons which are well known. Despite that, agreement was reached in principle in the Stormont House agreement of 2014, the terms of which were compliant with all international legal obligations and the rule of law, of which the UK is so proud. For a variety of reasons, the Northern Ireland Assembly has not yet legislated a way forward, although the content of the agreement is largely accepted in Northern Ireland. We do not have an Assembly at the moment, the reasons for which your Lordships are very well informed about. However, in July 2021, a Motion rejecting the proposals contained in the Government’s Command Paper on legacy, which led to the Bill now before your Lordships’ House, was passed without any dissent by the Northern Ireland Assembly; the Motion was accepted by the Assembly.

When the Government legislate on a matter which has been devolved, the Sewel convention—of course, it is only a convention—requires that the Government seek legislative consent from each devolved Administration affected by the legislation. There has been no legislative consent Motion from the Northern Ireland Assembly for the Bill we will discuss today. My amendment to the Government’s Motion is very simple: it requires that a legislative consent Motion be secured before the Bill goes to Third Reading.

The reasons for that are equally simple. The Bill has been rejected by every political party in Northern Ireland and by the churches, victims’ groups and other individuals, human rights organisations, the Northern Ireland victims’ commissioner, victims’ organisations—such as the cross-community group WAVE, which has done magnificent work to help those who have suffered so grievously during the Troubles—and veterans’ organisations. The Minister has himself admitted that he has not met anyone who actually wants it to be enacted; he has encountered constant opposition to the Bill. It has been seriously criticised by the chief commissioner of the Northern Ireland Human Rights Commission, whose role is to advise government, because it is not compliant with the UK’s international legal obligations or with the fundamental precepts of the rule of law. There has been a total failure to consult victims and survivors properly and to respond meaningfully, even at this stage, to their very real objections and concerns.

The Government and the Bill have been seriously criticised by the Council of Europe Commissioner for Human Rights, the Council of Europe Committee of Ministers, the Irish Government, the United States State Department and UN special rapporteurs, who warned that the Bill would place the UK in flagrant breach of its international human rights obligations. Last Thursday, the UN High Commissioner for Human Rights criticised it in trenchant terms, and, again, Members of the US Congress wrote to the Prime Minister about this yesterday, I believe. The Bill deprives survivors and victims of the Troubles of their fundamental legal rights. The Government’s legal obligations under these measures are being set aside in the Bill.

--- Later in debate ---

[Lord Caine (Con)]

I am grateful to the noble Lord. Without prolonging this, I hope that we might get to those amendments this evening and have a proper discussion and debate on them. But I am grateful for the spirit of what he said.

In conclusion, the Government clearly cannot support the amendment of the noble Baroness, Lady O’Loan. I understand completely the motivations behind it, but, in the Government’s view, the Bill provides an opportunity to give more information to victims and survivors in a timely manner, and it is the Government’s view that it should proceed.

[Baroness O'Loan (CB)]

My Lords, I express my deep gratitude to everyone who spoke on the Bill today: noble Lords spoke with such eloquence and gravitas on these most sensitive issues. I thank the Minister for his response, and I hope he will understand that, despite all the nice things he said, I cannot accept much of what he said, particularly his comments on the Stormont House agreement. Things have moved on in the eight years since then, and we are now in a different place. All of us who were in Northern Ireland at the time of the Good Friday agreement had grave difficulty with things such as the release of prisoners. It was a difficult time, and people are trying to find ways that will enable everyone to engage in one process for dealing with the past.

The Government’s actions in bringing the Bill and continuing to push it are doing very serious damage to our reputation as a country. They are also doing huge damage and causing a lot of pain, grief and loss of trust in the United Kingdom Government among the people affected by the Bill. That is profoundly important, as noble Lords said.

I will say a word of reassurance on veterans to the noble Viscount, Lord Hailsham, and the noble Lord, Lord Dannatt. As I have said previously in this House, members of my family served in Northern Ireland during the Troubles, so I know exactly that I do not intend, and that it is not the intention of any of us, to cause grief to veterans. Those who served honourably really have nothing to fear, and the statistics show that, but I will not delay your Lordships on that.

Finally, the people of Northern Ireland are united against the Bill. Your Lordships will have seen the extent of unity among those of us from Northern Ireland about the Bill. I do not intend to press my amendment to a Division today, but I ask the Government again to pause and even to dispense with the Bill and start again. There is no necessity or urgency to deal with this situation; there is a need to get it right. I beg leave to withdraw my amendment.

Amendment to the Motion withdrawn.

--- Later in debate ---

[Lord Hogan-Howe (CB)]

My Lords, I rise to support Amendment 147 from the noble Lord, Lord Hain. In passing, it might be worth mentioning that I am open-minded about whether this Bill should progress. I think that there are arguments both ways, and we have heard some powerful ones today, but it relies on the consent and support of those people most affected by it.

One thing that has struck me in the debate today is that certain groups of people have not been mentioned whom I am sure no one wanted to forget. It was not until the Minister responded that we talked about the RUC’s losses and about its involvement in some of these cases. As we consider the immunity that might be offered, I think that we all respect and support the military’s losses and involvement in these things. Of course, the RUC was directly involved, and its members did not return to barracks at the end of the day but went home to their children, their parents and many other people. I do not think that anybody is choosing to forget, but we ought to keep that in mind.

We also ought to keep in mind that, here in mainland UK, the people of Warrington, Manchester, Birmingham and London lost people. Their thoughts have to be borne in mind too. It is not a case of “This is predominantly a Northern Ireland Bill”. There are other people who must be considered too, and they have not been spoken of today.

I support Amendment 147 because I think that the progress made by Operation Kenova is very significant. I accept the point made by the noble Lord, Lord Weir, that we should be concerned that this might extend to a whole new group of investigations that might be extended. But we should have the reassurance that the number of investigations is quite discrete. A significant number of these are already with the DPP in Northern Ireland. They have been for quite a while, and there is a question about whether there are sufficient resources there and the skills necessary to make these decisions—none of which are easy, as we all know, but at least we have got to the point of a case going to a prosecutor to consider a charge. That is a very significant number.

There is also the outstanding case of Operation Denton, which has been investigated for a significant amount of time. As the noble Lord, Lord Hain, has already suggested, it is thought that there will be cases going to the DPP by the beginning of next year. There is no certainty about this, but that is a professional judgment which I think is not unreasonable. The main thing to consider there is that, obviously, the families and all those interested in the outcome of those investigations now have a trust and expectation: a trust in the investigation team, which has been hard won and can easily be lost, and also a trust in the process.

Of course, it may be that the Government have to decide that they will end these investigations and fold them within this proposal. I think we all understand that that is a real dilemma. But, for the families involved, and given all the hard work that has gone into this, it would be a terrible shame. Some of the previous investigations have not had the support that we heard described by the noble Lord, Lord Hain, and that, from my experience, has been garnered in this case. It would be a shame if that hard work and trust were lost on this occasion.

[Baroness O’Loan (CB)]

My Lords, I support Amendment 1 in this group, from the noble Baroness, Lady Suttie. She made the case with absolute clarity. No more needs to be said.

On Amendment 147, I reassert my declaration that I am a member of the international steering group advising on Operations Denton and Kenova. It is, as the noble Lord, Lord Caine, said, a very long-overdue review of cases involving the Glenanne gang, which is reported to have involved loyalists, including members of the security forces, who carried out shooting and bombing attacks against Catholics and Irish nationalists in the 1970s. We know that there are some 127 victims.

I will address the comments made repeatedly that terrorists do not keep records and that the police and Army do. Having investigated many of these cases of alleged collusion, I can tell noble Lords categorically that those involved in collusion do not keep records: for example, of instructions to not investigate; to bring people in for questioning during an investigation, provide them with a cup of tea and some sandwiches, leave them in the room but not actually ask any questions, then release them, to protect them so that they have been investigated in the eyes of the general public; to perhaps lose evidence, which I have seen; or to contaminate physical evidence. None of this is recorded. That is why, where you can identify collusive activity of that kind, it is very usually impossible to bring a prosecution—and it is right that there should be no prosecution where there is no unbroken chain of evidence.

Denton has made very significant progress. It was reviewed by the National Police Chiefs’ Council in January 2021, which explained that Denton differs from Kenova in that it is being conducted as a review and not a criminal investigation at this time. This makes the approach by the operational team fundamentally different from that of Kenova, which is an investigation, from an evidential perspective. As the noble Lord, Lord Hain, said, Denton is due to be finished next year. Former Chief Constable Boutcher will then report.

Considerable resources have gone into this review. Were the Bill to be passed without an amendment of this kind, Denton would not be completed by Chief Constable Boutcher and his team and would fall for review by the ICRIR. Given the progress already made, to bring in a new team in would professionally require a review of what has been done before. I know we say that we do not reinvestigate, but, in professional terms, if you pick up a case that somebody has been managing, you must examine it to make sure you are satisfied that all investigative opportunities have been explored. That would result in a huge and unnecessary waste of resources, and it would be particularly damaging to victims and survivors, who would be required to revisit yet again what they suffered and have been suffering.

Such is the difference between investigations and reviews that An Garda Síochána, who have been very helpful to Denton and Kenova, was unable to provide sensitive material to Denton. That material could have been provided under international agreements for police co-operation, were Denton an investigation. But, because Denton is a review and not an investigation, it could not be provided under the European police co-operation agreements, et cetera.

At the request of the Operation Denton steering group and Chief Constable Boutcher, the Irish Government have passed a statutory instrument. The effect of that is to allow them to pass sensitive material, which they could not otherwise pass, to Operation Denton. When I was engaged in discussions about that matter with the Irish Government and Garda Commissioner Drew Harris, I was simultaneously considering this Bill. It was very odd to me that my Government in the United Kingdom were moving to close things down and the Irish Government were moving to open things up and be helpful.

So, given the complexity and extent of Operation Denton, I suggest to the Minister that it would clearly be in the public interest to permit Mr Boutcher and his team to complete the work in which they are engaged. I therefore support this amendment.

Amendment 52 in my name and that of the noble Lords, Lord Murphy and Lord Hain, and the noble Baroness, Lady Ritchie, would remove the five-year rule contained in the Bill, which effectively introduces a limitation on prosecution that is inconsistent with the Good Friday agreement and our international legal obligations.

This work of dealing with the past is incremental. It requires consideration of victims’ needs. A five-year limitation period for the seeking of investigations or reviews would place huge pressure on people who may be suffering the consequences—for some, very severe mental health problems—of the incident in question. I know that noble Lords will think that five years is a very long period, but I assure them that, in investigation terms and for people dealing with the mental health problems that have arisen as a consequence of the Northern Ireland Troubles, to add the additional pressure of knowing that you have to be there before five years are up is difficult.

Noble Lords will also understand, I think, that it will take some time to grow confidence in these new ICRIR processes. In light of the international condemnation of the Bill as it stands, questions might rightly be asked about whether victims, survivors and their families will use the new processes. That is another reason for us to think about the need to amend the Bill very significantly.

Does the period when the ICRIR becomes operational include or exclude the period of finding premises, setting up an office, agreeing a budget, getting staff, establishing processes, providing training, and the Secretary of State drafting all his guidance, et cetera? We do not have limitation periods for criminality in this country, for very good reasons. If a person was murdered before 10 April 1998, under this Bill they will have only five years to seek an investigation. If they were murdered four months later—in the Omagh bomb, for example, or in any of the other atrocities—that limitation would not apply. It is arbitrary. How do the Government justify the introduction of a limitation for a very small subset of the victims of crime in the United Kingdom?

--- Later in debate ---

[Baroness O’Loan (CB)]

Proposed new subsection (5B) inserted by that amendment says that the commissioner

“must consider whether the close family member … has compelling new evidence, and if not, must reject that request.”

[Baroness Smith of Basildon (Lab)]

That is helpful; I am grateful. It is “the close family member” as well.

A number of issues arise from the amendments from the noble Baroness, Lady O’Loan, and the question of Clause 7 standing part. Amendment 52 seeks to delete the five-year deadline from the start of the ICRIR’s operation—it is a nifty little acronym—for seeking reviews of Troubles-related deaths and offences. I can understand where the Government are coming from in saying that the process cannot be open-ended, but could the Minister say why they settled on five years? What consultation or views expressed led to five years? What assessment was made of the risk of people refusing to engage because they think that they can be timed out given the five-year cut-off? Did he receive any representations on that? Was it discussed? Was there a consultation, or was it plucked out of thin air? That is what I seek some clarity on.

I would be grateful for any guidance from the noble Baroness, Lady O’Loan, but it seems to me that Clause 7 creates restrictions on the use of material against a person in criminal proceedings where that material is obtained by or provided to the ICRIR by that person, but it does not affect the use of material in proceedings brought against any other person. That seems to be a contradiction that needs to be addressed, and perhaps the Minister can clarify that. I have read the clause several times—that is why I was slightly delayed in getting up. It seems strange in the context of what the Government are trying to achieve.

The debate on this has again shown the respect that the Committee and this House have for victims, survivors and all those affected by the Bill. It also shows some of the tweaks and changes that will need to be made to address the particular concerns that have been raised today.

--- Later in debate ---

Moved by

[Baroness O'Loan]

2: Clause 2, page 3, line 13, after “out” insert “investigations and”
Member’s explanatory statement
This and other similar probing amendments in the name of Baroness O’Loan impose a function of investigation on the ICRIR as well as the function of review.

[Baroness O'Loan (CB)]

My Lords, I will speak to Amendments 2 to 4 in my name and the consequential amendments in this group. Noble Lords will be relieved to hear that I will not speak to each amendment, as in many cases the purpose is clear. The amendments are necessary to place the investigation function clearly in the Bill on each occasion on which it is relevant.

It is important to say that the Bill relates only to incidents that occurred before the agreement signed on 10 April 1998. It does not refer to atrocities arising during the Troubles that occurred after April 1998. For example, PSNI security statistics show that, in the past 10 years, 23 people have been killed in the Troubles; there have been 304 bombing incidents and 477 shooting incidents; more than 1,500 people have been arrested under the Terrorism Act; and 235 people have been charged with terrorist offences. Terrorism is alive and well in Northern Ireland, though not to the scale—thank goodness—of previous atrocities. Most recently, two men have been charged with the murder of Lyra McKee in Derry in 2019. Noble Lords will probably be aware that it is believed that was an attempt to kill a police officer.

--- Later in debate ---

One of the sources of huge frustration for families dealing with these painful cases outside the Kenova process is that they have little or no contact with the investigations. They have no idea whether they are active or have been shelved. They have no updates, no reports. That is not how Kenova works: there is regular contact with the families and regular updates.

[Baroness O'Loan (CB)]

My Lords, I apologise and crave the indulgence of the Committee. On the point that those who are dealing with certain ongoing investigative processes get no updates, as police ombudsman I established a process of six-weekly updates for complainants. I know that the police ombudsman has contact with the families and a lot of very good work has been done on that process. It is for that reason that there is confidence in the police ombudsman processes. I can tell the Committee that the police ombudsman has no power to investigate anyone other than police officers. That is the deficit there: it is that they cannot investigate civilians or soldiers. I hope the noble Lord will forgive me for the intervention.

[Lord Hain (Lab)]

I am very grateful to the noble Baroness for her interruption. She makes a telling correction, or at least clarification, to the point I make. I agree with her, and take her point entirely, especially having worked with her and respected her for her work when I was Secretary of State.

However, there is regular contact with the families and regular updates; that should be the model adopted going forward. Not only is Kenova a model of effective police work and a model for how to work with the families concerned but it has the most robust governance and oversight structures in place. Two of our distinguished colleagues in this House, the noble Baroness, Lady O’Loan, and the noble and right reverend Lord, Lord Eames, serve on one such body, along with those who have extensive international policing experience. That is the model that should be adopted for any investigative process coming out of this legislation.

In bringing my remarks on this amendment to a close, I confess that I am still not absolutely sure where the Government stand on Operation Kenova. For a time, the mantra was trotted out at official and ministerial level that Kenova could not be said to be successful because no prosecutions had resulted. This was disingenuous at best. The Secretary of State who peddled this line knew full well that over 30 files sat with the seriously overstretched and underresourced Public Prosecution Service in Northern Ireland and have now done for three years or so. I will refer more to this in the debate on Amendment 136. If cases do not come before the courts for whatever reason, one cannot blame the investigation. Now it is conceded by Ministers and officials that Kenova does good work, but we are told it could not be upscaled, because it would be too expensive and investigations would take far too long. Jon Boutcher has made it clear that in his view the essential elements of Operation Kenova could be upscaled and investigations completed within a manageable timescale and not at an eye-watering cost.

I said at the outset that this is bad legislation. Our amendments could turn it into acceptable legislation and surely the Government are therefore duty bound to accept them.

--- Later in debate ---

I am conscious of time. To conclude, the Government are of the view that Amendment 76 in my name addresses the concerns raised by parliamentarians and international bodies: others will almost certainly disagree. In our view, it provides clear instructions to the commission, without needing to amend the entire legislation. I ask therefore that noble Lords do not press their amendments in this group, as I will not press mine, and we will return to discussions and debates on these matters at a later stage.

[Baroness O’Loan (CB)]

My Lords, I thank all those very powerful voices that have been heard in the Chamber tonight. I also thank the Minister. I will speak briefly—I know noble Lords are all waiting for their dinner—but I want to say a word in response to the Minister’s assertion that the absence of prosecution can be justified on the basis that the conferral of immunity is necessary to ensure recovery of information which would not otherwise come to light. We will come back to this on group 6, but I cannot understand how the possibility of immunity leading to disclosure of hitherto unknown information justifies departure from the requirements of Article 2. In the conduct of an Article 2 investigation, as the Minister has said, there is a requirement to take note of and comply with not only the requirements of our own criminal law but the procedural requirements of Article 2 and the other articles of the convention.

With great respect, I think the Minister’s comments on the historic backlog, the 1,000 cases that the PSNI currently has and the need to deal with them as proposed in the Bill explain why the Bill is not Article 2- compliant. Although there is provision in the Bill for the establishment of an investigative arm of the commission, and for persons being accorded police powers, such as powers of arrest, search, seizure, et cetera, those powers are necessary to carry out investigations, and that means that the structural investigation construct of the Bill really resembles that of police forces, the Police Ombudsman, the IOPC and the NCA. What is different about the Bill are the arrangements for access to criminal investigations and the extent to which the Secretary of State is empowered by the Bill to provide guidance, which must be complied with unless it can be shown it is reasonable not to do so. The Secretary of State has other powers to control and regulate the operation of the commission. Those powers are excessive and, I will argue, unnecessary, and they detract from the independence of investigation, which is fundamental to ECHR-compliant investigation.

I am not going to engage in argument with the noble Baroness, Lady Hoey, about the effect of McQuillan —we may come back to it anyway—but, having regard to the lateness of the hour, I beg leave to withdraw the amendment.

Amendment 2 withdrawn.