Northern Ireland: Legacy of the Troubles

Baroness O'Loan Excerpts

Tuesday 7th May 2024 Lords Chamber

[Lord Caine (Con)]

My Lords, what is really important, now that the independent commission is operational as of last Wednesday, is that we give it the time and space to carry out investigations and do its work in delivering answers for victims and survivors. I must point out that I read the interview with the shadow Secretary of State for Northern Ireland in the Irish News last week, and what was clear, once I managed to decipher the complete muddle in that interview, was that the party opposite has no coherent plan for dealing with legacy matters whatever, other than taking us back to square one.

[Baroness O’Loan (CB)]

My Lords, is the Minister aware that one of the legacies of the Troubles is the high level of trauma and PTSD suffered by victims? The answers to the questions on the legacy Act did not include the Minister informing the House that major provisions of that Act have now been held by the High Court in Belfast to be in breach of national and international law. In those circumstances, can the Minister tell the House what proposals the Government have to provide support to those who have been further traumatised by the passing of this Act and the consequential termination of normal processes, such as inquests, many of which could not proceed because of the refusal of the Northern Ireland Office and MI5 to grant disclosure of materials, even in the form of gists prepared by the PSNI? What support will be available to families who have attended up to 40 hearings trying to get that information and whose inquests are now closed?

[Lord Caine (Con)]

I thank the noble Baroness for her question. As I said in an earlier answer, the High Court in Belfast found that the legislation is compatible with human rights law in respect of independence and the ability to carry out effective investigations. To take her point about disclosure, the disclosure provisions offer the prospect of better outcomes than current mechanisms.

Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024

Baroness O'Loan Excerpts

Tuesday 13th February 2024 Lords Chamber

The fundamental conundrum is that Brexit meant a stark choice for English Conservatives and unionists. The harder the Brexit—and both the Tories and the DUP chose a very hard Brexit—the harder the trade border in the Irish Sea and the greater the discomfort for unionists and those Conservatives who trumpet their support for the union but—notably like Boris Johnson and the noble Lord, Lord Frost, did with their Brexit deal—in fact often betray it. None of us knows how all this will play out over the next decade or so, but we can be sure that Brexit will continue to poison the shallow well of peace and stability on the island of Ireland, and that is a cause of continuing concern.

[Baroness O'Loan (CB)]

My Lords, I endorse the remarks of the noble Lord, Lord Hain, in relation to the wind-down of the inquests as a consequence of the legacy Act. What is happening in Northern Ireland is outrageous at the moment and causes huge distress to victims.

These instruments derive from the Command Paper Safeguarding the Union, which was stated to be the product of detailed discussions with the Democratic Unionist Party. Paragraph 2 of the paper refers to these discussions being conducted alongside

“engagement with other Northern Ireland political parties and the business community”.

Could the Minister tell the House with whom that engagement took place, since other parties were apparently not sighted of the content of this Command Paper? Can the Minister tell your Lordships’ House why the agreed processes of the Good Friday agreement, which are intended to ensure inclusivity and all-party engagement in order to make change or develop matters, and the Northern Ireland Act 1998, which was passed to make provision for the Government of Northern Ireland for the purpose of implementing the agreement reached at the multi-party talks in Northern Ireland, did not operate in this case?

It may have been predicated on enabling the DUP to return to government in the Northern Ireland Assembly—and I am glad to see the Assembly back and running. However, exclusion of all but one party at this critical time, and the failure to follow the principles established in the Northern Ireland Act in the creation of government policy affecting Northern Ireland, are unlikely to generate trust among the political parties or in the UK Government.

In the multiparty document recommending the Good Friday agreement to the people of Northern Ireland, the signatories said:

“We acknowledge the substantial differences between our continuing, and equally legitimate, political aspirations … we will endeavour to strive in every practical way towards reconciliation and rapprochement within the framework of democratic and agreed arrangements … we will, in good faith, work to ensure the success of each and every one of the arrangements to be established under this agreement. It is accepted that all of the institutional and constitutional arrangements—an Assembly in Northern Ireland, a North/South Ministerial Council, implementation bodies, a British-Irish Council and a British-Irish Intergovernmental Conference and any amendments to British Acts of Parliament and the Constitution of Ireland—are interlocking and interdependent and that in particular the functioning of the Assembly and the North/South Council are so closely inter-related that the success of each depends on … the other”.


In that context, there is a regrettable tone to parts of the Command Paper Safeguarding the Union. The agreements made seem to have been totally ignored, as the Government state in paragraph 14 of the executive summary of the Command Paper:

“Overall, this package of measures reflects the outcome of the negotiations with the Democratic Unionist Party; builds upon the progress secured by the Windsor Framework while securing further changes to its operation; looks forward with a broad range of significant further protections for the UK internal market, including in statute; and establishes the structures that will preserve these protections for the long-term”.


The Government say that there needs

“to be ongoing reflection … The Government is fully committed to that ongoing engagement and work, so that all agreed arrangements operate fully consistently with Northern Ireland’s place in the UK and its internal market, now and in the future”.

Much of what is of substance and contained in the Command Paper is not new; it derives from work done more than a year ago with the EU. Notwithstanding that, given the importance of trust to the functioning of the Northern Ireland Assembly, can the Minister assure the House that future reflection, negotiation and legislative activity will be the product of discussion with all the parties and that there will be no further situation in which the Government negotiate and then legislate on the basis of a document agreed with one party only?

Regulation 2(3) of the Windsor Framework (Constitutional Status of Northern Ireland) Regulations prohibits the UK ratifying a Northern Ireland-related agreement with the EU that would give rise to a “regulatory border”. Apart from the fact that no Parliament can bind its successor, that provision lacks clarity and could result, given the significant economic consequences involved in future EU-NI agreements, in complex and lengthy litigation between parties seeking to assert that a particular measure does or does not involve a regulatory border.

Much good work has been done between the EU and the UK, and there are now vastly simplified procedures applicable in a range of areas such as medicines, customs, the transportation of goods, agri-food, the movement of pets and the entry of plants, shrubs, trees and seeds to Northern Ireland. All that indicates good and constructive work between the UK and the EU, but it is most important that this constructive working relationship is not damaged by unilateral action on the part of the UK.

Many issues remain to be agreed between the EU and the UK. For example, while UK public health standards will apply to goods entering Northern Ireland from Great Britain, EU requirements for animal health and plant health remain fully in place to prevent any risk of transmissible diseases on the island of Ireland and such diseases spreading to other parts of the EU single market. There is also a significant outstanding problem with veterinary medicines, which requires urgent action to prevent significant problems for the agri-food industry in Northern Ireland.

Complex new arrangements have been introduced through the Command Paper for internal market assessments, which will require consideration of whether a new regulation may result in increased red tape or barriers for trade between the constituent parts of the UK and within our internal market. The Government have committed themselves in the Command Paper and the SI to

“an enforceable means for the economic rights of Northern Ireland to be upheld in accordance with the Windsor Framework”.

The amendment of Section 13 of the European Union (Withdrawal) Act 2018, to provide a new transparency obligation, is to be welcomed. But as the noble Lord, Lord Hain, said, in the absence of a definition of the term “significant adverse effect”, it is not clear how that provision will be interpreted and to what extent it will be effective. Can the Minister provide any more information than that provided to the Secondary Legislation Scrutiny Committee that this will be a matter for government departments to assess?

The second SI seeks to ensure unfettered access for Northern Ireland goods to the UK internal market—that is to be welcomed. Some very burdensome processes resulted from the Northern Ireland protocol. The evidence received by the Northern Ireland protocol committee—now the Windsor Framework committee, on which I serve—was extensive and indicative of significant additional costs being imposed on businesses seeking to import goods from GB, which might pass through that part of the EU internal market in goods that exists in Northern Ireland to EU states such as the Republic of Ireland. It articulates a number of provisions for the Secretary of State for Northern Ireland to issue guidance to assist business and authorities operating in what can be a complex environment. However, the Command Paper refers to the fact that two separate regulatory systems will continue to apply in Northern Ireland: that of the UK and that of the EU in so far as goods are affected.

Today’s disclosure that the financial settlement that accompanied the return of the Northern Ireland Assembly is to be accompanied by conditions to be detailed “in due course” does not encourage hope. Northern Ireland is the lowest-earning region of the UK. It has 130,000 long-term sick people and has economic inactivity rates of 26.8%, including those who care for the long-term sick and injured, many of whom suffered and continue to suffer as a result of the Troubles. If the whole of the UK suffered from those levels of long-term sickness, some 4.5 million people would be long-term sick, rather than the current 1.1 million. Can the Minister assure the House that the conditions to be imposed will not make life even harder for the Northern Ireland population, in effect stealth taxing them further and thus reducing the existing very low incomes of so many people in Northern Ireland?

These instruments will be passed by your Lordships today. What is important is that future government legislative activity is the product of consultation and discussion with all the parties in Northern Ireland, so that trust in the Government develops, and that it takes into account the knowledge and experience of those who do business in and with Northern Ireland, so as to ensure maximum future prosperity in the whole United Kingdom.

[Lord Dodds of Duncairn (DUP)]

My Lords, it is a pleasure to follow the noble Baroness, Lady O’Loan, and to take part in the debate. There are two aspects to the package that the Government have brought forward. One is the Command Paper itself, which contains much in the way of the presentation, justification, pledges and promises of new bodies and so on. I hope that there will be an opportunity, at some time in the near future, to debate in full the Command Paper, because what we are also dealing with tonight is the second aspect of the package: the legal instruments and provision. They are what really matter, because it is only legal change—by legislation—that can alter the current arrangements under the protocol/Windsor Framework.

What do these statutory instruments actually do? In essence, the critical question for many unionists in Northern Ireland, from various parties and none, is: do they remove the Irish Sea border and its cause—the subjection of Northern Ireland to foreign jurisdiction regarding the production of goods and agri-food, a large part of our economy?

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Baroness O'Loan Excerpts

Consideration of Commons amendments
Tuesday 12th September 2023 Lords Chamber

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, it is a pleasure to follow the noble Lord, Lord Weir. Noble Lords have been consistent across the House in their opposition to the contents of this Bill, which I believe are deeply iniquitous. For me, they represent a denial of basic human rights—access to justice and truth, the very things that victims and survivors have yearned for over many years.

I am deeply disappointed that the Commons, on a majority vote, rejected our reasonable amendment, which was supported across this House last week. None the less, I do not think that the issue will be resolved by this Bill. I believe that Sir Declan and his commissioners will meet many legal challenges; in fact, he invited them in his Irish News interview on Monday 28 August, which suggests that he might have doubts about this process.

Notwithstanding that, this House has stood solidly and steadfastly with the victims and survivors. I was disappointed again when I heard the Secretary of State in an interview a few days ago, as he did not seem to reflect on, think about, empathise with or sympathise with the views of victims. He simply dismissed them. This was another denial of their right to justice and human rights. Always remember that victims of the Troubles have suffered immeasurably in many ways, whether physically or mentally, over a long period, through the loss of loved ones.

So, we still disagree with this Bill. I am pleased that my honourable friend the Shadow Secretary of State has indicated that a future Labour Government will repeal the Act. I look forward to that day, because I know where I stand: it is with the victims and survivors, right across the board.

[Baroness O'Loan (CB)]

My Lords, I rise to speak in opposition to the Government’s removal of the opportunity for family members of those who died in the Troubles to play a role in the decision as to whether immunity should be granted under the Bill. Accepting your Lordships’ amendment would have given victims the opportunity, at least, to have a role in the decision as to whether to grant murderers immunity for the murder of their loved one.

Today is a terrible day for the people of the United Kingdom and for the rule of law in the United Kingdom. It is a day of shame. It is the day on which Parliament is legislating to remove from people across the UK who were victims of the Troubles access, in accordance with the rule of law and our international legal obligations, to criminal prosecutions, civil actions for damages for loss and injury caused, and to inquests. Moreover, His Majesty’s Government are forcing through not only these restrictions but their immunity clause, despite the fact that, as the Secretary of State said most recently,

“There are no guarantees that the Bill will bring information forward”—[Official Report, Commons, 6/9/23; col. 439.]


at all.

How do your Lordships think the people of Northern Ireland and the other victims of the Troubles across Great Britain felt on hearing those words? At least the current system had been gradually providing verifiable and accurate information for victims, despite the best efforts of those who sought to limit access to information. The Secretary of State said yesterday that, despite the widespread opposition to the legacy Bill from politicians and victims, he has not been presented with an alternative option. This is untrue. The Government have been presented with alternatives during the passage of the Bill which included a fully empowered independent commission that would have investigated in compliance with all our legal obligations. Those alternatives have all been rejected by the Government, who have used their parliamentary majority to force through this iniquitous Bill against the wishes of every political party, community group, victims’ group, human rights organisation, et cetera. Nobody in Northern Ireland and nobody among the GB victims’ groups wants this law.

On this day, His Majesty’s Government are using their parliamentary majority to force through a Bill that is already subject to challenge in the courts. There is now tremendous pressure on the party in opposition to live up to its commitment to repeal the Bill if it wins the next election. Even more, there is huge international pressure on the Irish Government to institute legal proceedings in the European Court of Human Rights in respect of the UK’s failure to comply with its legal obligations under the treaty. I very much hope that they will bring those proceedings.

A country which does not respect the rule of law and its international legal obligations loses its legitimacy in the wider world. In passing this Bill, the United Kingdom is not, as His Majesty’s Government have claimed, seeking to provide truth and reconciliation for the people of Northern Ireland and for all the victims of the Troubles across the United Kingdom. The noble Lord, Lord Bruce, asked a very pertinent question, and I hope the Minister will reply to it. The effect of this Bill is to restrict access to legal remedies, which are enjoyed by everybody else in the United Kingdom, for that small and unfortunate group of victims, several thousand in number, who suffered so terribly during the Troubles. I cannot support this amendment.

[Lord Eames (CB)]

My Lords, in my years of service to this House I cannot think of an occasion when sadness, disillusionment and indeed anger pressed upon me to the extent they do today. Over the months we have worked to try to improve this Bill, I have listened to many highly technical speeches based on great parliamentary experience. But to that I have to add one other element today which it has been my sad duty to bring to the attention of this House over that period.

It is to tell noble Lords that the word “victimhood” has become so used that we have lost sight of what or who a victim is. A victim exists with a picture on the mantelpiece. A victim exists with frequent visits to a hospital for treatment. A victim exists in the grandmother trying to explain to grandchildren what happened to members of that family. A victim is one who believed at one stage that the mother of Parliaments would understand their dilemma.

I have paid tribute on several occasions to the Minister for his patience in dealing with this issue, but I have to say this afternoon that he has not gone far enough. The feeling of sadness which overwhelms me is based on my many years of service to victims—to the men, women and children who were the real sufferers of our Troubles. I cannot get them out of my mind at this moment: the funerals, the addresses at funerals, the comfort in the hospital ward or beside a bedside. That is the whole background: the human side of “victim”. The human side is an ageing population who have been through the Troubles, and who now, by the passage of time, have looked with some hope to what we were going to pass in Parliament.

Way back, all those years ago, when Denis Bradley and I were asked to make the first attempt at dealing with the combined reconciliation and legacy issue, we set out on a journey which ends at this moment, in your Lordships’ House, so my feelings run very deep. Irrespective of the Opposition’s assurance that they will repeal this legislation one day if they are in power, and irrespective of the politics of it all, I speak of the broken hearts, the broken bodies and the irreconcilable issues that face ordinary decent people. I think of the members of the Royal Ulster Constabulary, the Ulster Defence Regiment, the civilians, caught up in this. I think of the work in hospital wards by dedicated doctors and nurses, and I can still hear in my mind the drumbeat of the procession to the grave. I say to the Government: surely, they have brought us not to a crossroads but to the edge of a cliff, and Northern Ireland is tottering at the edge.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Baroness O'Loan Excerpts

Consideration of Commons amendments
Tuesday 5th September 2023 Lords Chamber

It is for that reason that I favour very much a statute of limitations, and I am prepared to call it an amnesty. That is what we recommended when I was at the Foreign Office for many countries that had been through periods of civil discord, and that is what I think is the proper way forward. However, I know full well that that is not a majority view, either in this House or in the Province, or indeed in Ireland itself. That being so, I favour the position adopted by the Government rather than that advocated by the noble Lord, much as I respect him.

[Baroness O’Loan (CB)]

My Lords, I shall speak in favour of the amendment of the noble Lord, Lord Hain, to the Minister’s Motion on Clause 13, and the amendment of the noble Lord, Lord Murphy, to the Minister’s Motion on Clause 18.

The Bill removes fundamental legal rights from victims of the Troubles throughout the United Kingdom. The aim of the Bill is clear. The Minister referred to the purpose of the Bill in his introductory remarks, but actually the Long Title says that its purpose is to limit criminal investigations, civil legal proceedings and inquests, despite the fact that by May 2024, there will be some 15 outstanding legacy inquests to be heard. It is also to prevent police complaints investigations—all this into matters arising between 1966 and 1998. All these ancient and balanced legal procedures are being removed under the Bill, as well, it has to be said, as all the protections and powers that the courts have in the conduct of criminal, civil and inquest proceedings.

The Minister’s amendments do not address the deficiencies identified in the Bill by so many across the world—the noble Lord, Lord Murphy, referred to them—and the other place’s responses to the amendments made in your Lordships’ House do not address the deficiencies identified either.

It is important to remember that the Council of Europe, its Committee of Ministers, the Parliamentary Assembly of the Council of Europe, the UN High Commissioner for Human Rights, the UN special rapporteurs, national human rights organisations, our own parliamentary committees, civil society organisations, all political parties in the UK, with the exception of the Conservative Party, political parties in Ireland and the US, victims groups and community groups have all declared the Bill to be unacceptable because of its manifest deficiencies, and because of the breach of our international legal obligations.

I remind noble Lords of the fact that, under the Bill, the ICRIR does not even have powers to demand information as of right but must justify each request as reasonable. That does not happen in normal criminal investigations. Yet untrammelled access to information is fundamental to the conduct of criminal investigations, and it has frequently only been the determination of judges, coroners, lawyers and litigants which has resulted in the disclosure of relevant and important information which should have been disclosed as a matter of course. Even in that situation, the police and the MoD have frequently said that they cannot produce the material because they do not have the resources to do so.

The answer to this situation cannot be to close down the justice system; rather, as Patten recommended, policing must be delivered in the context of a coherent and co-operative justice system. We do not have that in Northern Ireland. For example, the Kenova investigation submitted some 33 files from 2019 onwards, but no decisions have been made by the Public Prosecution Service for Northern Ireland because it does not have access to the lawyers it needs.

The Secretary of State and the Minister keep reiterating that resources must be found within the Northern Ireland budget, yet what happened in Northern Ireland over the years of the Troubles was not the responsibility of paramilitaries alone. Agents of the state also played their part. In my 2007 report on the case of the murder of Raymond McCord Junior and associated matters, I said:

“it has emerged that all of the informants at the centre of this investigation were members of the UVF. There was no effective strategic management of these informants, and as a consequence of the practices of Special Branch, the position of the UVF particularly, in North Belfast and Newtownabbey, was consolidated and strengthened … information was withheld … Instructions were given that matters should not be recorded. The general absence of records has prevented senior officers, who clearly have significant responsibility for the failings, from being held to account. It is abundantly clear that this was not an oversight, but was a deliberate strategy and had the effect of avoiding proper accountability”.

That was accepted by the chief constable at the time and by the Secretary of State. In many other cases, there were similar findings. It is these situations, for which the state had responsibility, which demonstrate what happened and show the responsibility of the state for some of it. That is why I would argue that the Government have, at the very least, a moral duty to support those engaged in the pursuit of justice and truth and not to impede their search for it through passing this Bill—for that is what this Bill in its final form will do.

Your Lordships have discussed at length the requirements of the European Convention on Human Rights in the context of investigation and pondered the Government’s commitments under the Good Friday agreement. The Minister’s Motion A does not make the Bill compliant with the ECHR or the Good Friday agreement. The amendments of the noble Lord, Lord Hain, would at least impose an obligation for any regulations made by the Secretary of State in this context to be compliant with the European Convention on Human Rights and be subject, as he so articulately said, to the affirmative procedure.

The conditional immunity scheme, despite the Government’s amendments and others tabled by noble Lords, remains in breach of the Government’s obligations under the Good Friday agreement to provide people with access to the courts and remedies for breaches of the convention. That fact is profoundly important.

Victims’ groups such as the Truth and Justice Movement regard this Bill as destroying their democratic and human right to truth and justice. Nobody, not even the Government, thinks that this Bill will provide truth and justice, let alone reconciliation. The Secretary of State has repeatedly acknowledged the problems with the Bill, most recently stating:

“This Government believes that the conditional immunity provisions will be key in helping to generate the greatest volume of information, in the quickest possible time”.


There is no evidence to demonstrate that immunity will have this effect and it is well known that former paramilitaries involved in murder really have no incentive to tell all. All they have to do is sit out the five years within which cases may be brought for review. Even when information is provided, it is rarely the whole truth. On some occasions, information that has been provided has been demonstrated to be untrue.

The conditional immunity scheme which the Minister is again promoting, and which we are debating, would result in impunity for serious human rights violations and the unilateral shutting down of avenues to justice for victims and would give rise to questions about the ability of the independent commission for information recovery to deliver outcomes that would meet human rights standards.

The noble Lord, Lord Murphy, seeks by his amendment to provide the victims of the Troubles and the close family members of those who died with the right to be asked for their consent to a grant of immunity. It states that the chief commissioner must be satisfied

“the close family member has given consent for the granting of immunity and no objections have been raised by any other close family member within three months of the consent being given”.

Alternatively,

“if no consent has been given by that close family member within three months or an objection has been raised by any other close family member”

within three months, the chief commissioner can decide that

“it is nevertheless in the public interest to proceed with the granting of immunity”,

regardless of the views of the family. This modest amendment by the noble Lord, Lord Murphy, seeks to put victims at the centre of the process of granting immunity. It is qualified by an overriding right of the ICRIR chief commissioner to determine that, even when victims do not want immunity granted to a perpetrator, the views of the victims can be overridden in the public interest.

One of the problems of the current system is that judicial review has repeatedly been necessary to challenge decisions made by public authorities involved in dealing with legacy. Judicial reviews cost a lot of money. They take a long time to be resolved in our underresourced legal system, and they cause immense further distress to victims. If approved, the Secretary of State’s amendment will simply lead to more judicial reviews. Rather than solve the problem, it will add to it.

Your Lordships were right to remove Clause 18 from the Bill. The other place has—as it is entitled to do—overridden your Lordships. This amendment, in the name of the noble Lord, Lord Murphy, will at least qualify the operation of Clause 18 by inserting some recognition of the fact that any process which ignores the views of victims simply has the capacity to cause them even more suffering, rather than to promote reconciliation.

As the noble Lords, Lord Murphy and Lord Hain, said, the Bill is fatally flawed. It deprives people across the United Kingdom who suffered so grievously during the Troubles of their fundamental rights under the Good Friday agreement, the European Convention of Human Rights and the Human Rights Act. If and when it is passed, it will lead to lengthy and complex litigation—something welcomed by the former Lord Chief Justice, Declan Morgan. This is not the way to promote reconciliation in a divided society. In the event of a Division, I will support the noble Lords, Lord Hain and Lord Murphy.

[Lord Eames (CB)]

My Lords, I once more find myself speaking as earnestly as I can in support of the sentiments of two former Secretaries of State for Northern Ireland—two men who undertook those tasks at times of division, suffering and what I can only term injustice for so many people in Northern Ireland. Given the fact that two men who had that experience have voiced sentiments in your Lordships’ House this afternoon and spoken in terms of their experience, I cannot understand why His Majesty’s Government do not understand that there are those outside this Chamber and this Mother of Parliaments who cannot understand why their voices are being ignored.

Yes, there have been attempts to bring the concept of victimhood into the legislation that is proposed, and yes, the Government can claim that they have made efforts, but, in God’s name, I ask your Lordships to consider the overall impetus of what changes have been made to try to recognise the needs of victims and their families, and of those who, in years to come, when they read what has been said, attempted and failed to be produced, will find it incredulous to understand that the Mother of Parliaments has ignored their crying.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Baroness O'Loan Excerpts

3rd reading
Tuesday 4th July 2023 Lords Chamber

[Lord Dodds of Duncairn (DUP)]

My Lords, I welcome the Minister’s amendments and I will confine my remarks to them. First, I observe that this shows how quickly the Government can move when they decide to legislate in respect of Northern Ireland to remedy an obvious injustice. Therefore, I hope that, on future occasions when we raise issues of concern that have support in Northern Ireland, the Government will be loath to use the argument that parliamentary time does not permit.

Secondly, people from right across all communities and all parties in Northern Ireland—except Sinn Féin, of course—will breathe a sigh of relief at the prospect that the godfather of terrorism over many decades, Gerry Adams, will not, on a technicality, be able to benefit from the largesse of the British taxpayer, when so many widows and the thousands of families that he and his organisation caused such suffering to, have struggled with very little compensation or recompense for many years. That injustice will be put right in this House and this Parliament. That will be warmly welcomed by those who really believe in true justice.

[Baroness O’Loan (CB)]

My Lords, Clause 42, to which this amendment applies, deprives those who suffered loss or damage as a consequence of the Troubles of the ability to bring or continue any civil action after 17 May 2022—some 14 months ago. A relatively small group of UK citizens from every part of these islands is to be deprived of their rights not only to bring a civil action but to inquests and to full human rights-compliant criminal investigations by virtue of the restrictions still placed on the investigative powers of the ICRIR by this Bill.

The long title of the Bill is amended by one of the amendments. It describes the purposes of the Bill as being to

“promote reconciliation by establishing an Independent Commission for Reconciliation and Information Recovery, limiting criminal investigations, legal proceedings, inquests and police complaints”.

The purpose of the Bill is clearly stated, but at no stage has the Minister explained how it is expected that limiting criminal investigations, legal proceedings, inquests and the investigation of police complaints will promote reconciliation. I am unaware of anyone who thinks it will.

The real purpose of the Bill is to protect the Government from having to pay damages for those occasions on which investigation reveals that the state acted in breach of its duties to protect life. At its simplest, if somebody was murdered, and the state had prior knowledge and did not intervene or prevented proper investigation—and we know that these things happened right across our communities—a cause of action is disclosed. Now, in addition to the provisions of these amendments, there will be no right of action for bereaved and grieving families. That is the first purpose: to stop civil actions. The second purpose is to control access to information so that some people will never be able to prove what happened in cases involving state actors. The third purpose is to protect those veterans—they are few—both police and military, who may have committed the greatest crime, that of murder, from being subjected to due process. This Bill, as everyone has said, has been roundly and consistently condemned in the UK, by the Council of Europe, by the European High Commissioner for Human Rights, by the UN and by many others. It is a terrible breach of our international legal obligations.

Internment without trial was introduced on 9 August 1971 and continued until 5 December 1975. About 340 people were detained initially, often just scooped up by the Army because of their age and where they lived. About 100 were released within 48 hours; 17 people died in the rioting which followed and an estimated 7,000 Catholics had to flee their homes when they were attacked by loyalists. Initially, internment was carried out under regulations made under the special powers Act. All those detained were from the Catholic community. The interpretation of the Detention of Terrorists (Northern Ireland) Order 1972—introduced that November—by the Supreme Court is the subject of today’s government amendment. Overall, 1,981 people were detained without trial, 1,874 from the Catholic/nationalist/republican community and 107 from the Protestant/unionist/loyalist community. That began in 1973. It is generally accepted that internment without trial was a major recruiting agent for the IRA, and the Government said decades ago that they would never introduce it again.

It is also generally accepted in Northern Ireland and elsewhere that Gerry Adams was in the IRA and that he served on the IRA army council. As one who, as a young woman, lost my baby when I was caught in an IRA bomb explosion, I fully understand the revulsion at the idea that he and others who were involved in violence might now be able to recover even more money as a consequence of the Supreme Court decision in this case. A briefing on the Supreme Court judgment by Richard Ekins KC and Sir Stephen Laws is helpful in defining the justification for and the parameters of the amendment. Ekins and Laws describe how the process worked. Detention began with the making of an interim custody order, which was an exercise of a power conferred by the 1972 order on the Secretary of State. The order specified that only the Secretary of State, a Minister of State or an Under-Secretary of State could sign an interim custody order.

They went on to say that

“detention under the 1972 Order only began with the making of an interim custody order. Detention was only able to continue for more than 28 days when the Chief Constable had referred the matter to the Commissioner (a former judge or senior lawyer) who would consider the matter afresh. If the Commissioner was satisfied that the person in question was involved in terrorism, the Commissioner would make a detention order. When Mr Adams escaped from custody, his continuing detention, beyond the period of the interim custody order, had been authorised by a Commissioner who had made a fresh decision”.

This amendment seeks only to address the consequences of the Supreme Court’s decision. It is not about the merits of detention without trial. It is about whether the Carltona principles should have applied to prevent the Secretary of State having to consider each application personally. It is also about stopping the significant number of civil actions lodged after the Supreme Court judgment.

Internment without trial should never have happened, but this amendment is not about that. For that reason, while I will not oppose these amendments, I look forward to the Minister giving the assurance sought by the noble Lord, Lord Faulks, as to the extent of the exercise of powers anticipated to make secondary legislation under the powers conferred by the Bill.

[Baroness Suttie (LD)]

My Lords, I broadly welcome these government amendments. This is a complex matter, as the interventions this afternoon have illustrated, but I am glad that the Minister has managed to find a solution that is, broadly speaking, acceptable to all, subject to the comments made for the record by the noble Lord, Lord Pannick.

I have only one question for the Minister regarding these Third Reading amendments. I assume that the Northern Ireland Department of Justice was also consulted and that it is happy with these proposals. Could the Minister perhaps confirm that that is the case?

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Baroness O'Loan Excerpts

Report stage
Monday 26th June 2023 Lords Chamber

Moved by

[Baroness O'Loan]

110: Clause 40, leave out Clause 40
Member’s explanatory statement
This amendment would delete the Clause that prohibits all existing and future inquests, investigations and inquiries into the deaths resulting directly from The Troubles.

[Baroness O'Loan (CB)]

My Lords, this amendment would delete the prohibition on inquests, which are an ancient part of our legal history. I wish to test the opinion of the House.

--- Later in debate ---

With deep respect and sympathy for colleagues from Northern Ireland, I would say that we ought not to equate terrorism with one set of values, very commonly the nationalist set of values. We should seek a democratic political solution, as we have in Wales and, with certain difficulties that we are all aware of, in Scotland. In my view, it would be truer to the aspirations of the one-time leader of Sinn Féin, Arthur Griffith, if one conducted affairs in that peaceful, tolerant and open-minded way.

[Baroness O'Loan (CB)]

My Lords, this part of the Bill, providing for history and memorialisation, is about creating as true and honest an account as is possible of what happened during our tortured, troubled past, an account which must have integrity.

It is right that no memorialisation activities glorify the commission or preparation-of Troubles-related offences. Yet every day as I drive around Northern Ireland at this time of year, I see the flags erected—the flags which tell me that, as a Catholic, I am not welcome. In today’s Irish News we have an article about one of the Shankill butchers, a gang which went around killing Catholics simply because they were Catholics. This man served life. He is pictured erecting UVF flags commemorating the activities of the organisation to which he belonged.

Terrorism occurred right across our community. It occurred and was perpetrated by members of illegal organisations such as the UVF, the UDA, the IRA et cetera. However, there were also members of the security forces—both the police and the Army—who engaged with those groups. We cannot deny this; it has been proved. Most police officers served with honour. Most acted to protect us, as they acted to protect my family one night, when we were under attack, but that was not always the case. There were those who did such terribly wrong things. I think about the Glenanne gang, who for years terrorised south Armagh, killing some 127 Catholics. This is the subject of the present Operation Denton review.

Just a mile down the road from where I live was a young Catholic man who ran a little shop. One night, at two o’clock in the morning, two men came to the door, knocked, and said, “We have a sick child: we need medicine”. The shopkeeper, William Strathearn, got up. His wife and children were sleeping upstairs. He went down, opened the door, and was murdered. The two people who were convicted of his murder were serving members of the Royal Ulster Constabulary.

So it ran from the earliest days of the Troubles, and ran right through after the Good Friday agreement. I think of my own work investigating the UVF in north Belfast. The UVF murdered Catholics until 1994 and then, once the IRA declared a ceasefire, went on to murder indiscriminately both Catholics and Protestants.

Regrettably, we still see, at regular intervals, events from different sections of the community which glorify individuals who contributed to atrocities and occasions which cause immense pain to so many of us, but particularly to those whose loved ones died or were permanently maimed in the attack being celebrated. Those events cause great pain. They reignite the terrors and agonies of the post-traumatic stress disorder suffered by so many as a consequence of these events. There is no justification whatever for the glorification of terrorism.

The fact remains that, apart from all those who died and were maimed in the Troubles, so many families lived in terror and fear. I remember watching my husband driving out every day with our five sons in the car, and every day I prayed that there would not be a bomb under our car. He was a serving member of the Social Democratic and Labour Party—the party of the noble Baroness, Lady Ritchie—and for years we lived with terror because of that, and because of my role as police ombudsman. I have no difficulty in supporting any measure which can prevent the glorification of terrorism.

I find myself unable to support Amendment 118A, in the name of the noble Lord, Lord Godson. It requires that within three and a half years, a definitive public history of the Troubles, commissioned by the Secretary of State for Northern Ireland, should be completed. I have a number of difficulties with this proposal. Until the work of the ICRIR is completed, it will be a work in progress in establishing, as far as possible, what happened during the Troubles. Therefore, to attempt to write any history of the Troubles would be premature. To attempt to write an official history of the Troubles while the representatives and organs of government are conducting reviews would definitely be premature. In addition to this, and as Sir Joe Pilling’s April 2009 report on the official history programme indicates, there would be minimum government requirements relating to access to papers and clearance of the draft report.

Our history has been the cause of so much division. For the state to commission a history of the Troubles would immediately arouse suspicion in some parts of the community. People have watched over the years as those with control over materials relating to the Troubles have done all they can to ensure that, in respect of so many critical incidents, the truth has not emerged because of the refusal to disclose the relevant documents, until case after case has been the subject of judicial review and judges’ and coroners’ orders. This has happened from the Bloody Sunday Widgery report in 1971 right through to, most recently, the findings of the inquest in relation to the Ballymurphy shootings. No matter how noble and well-intentioned any historian designated to do this work might be, in Northern Ireland there would be suspicions and assumptions that such a history would not be free from bias. It would be most unlikely to secure public confidence.

One of the things I learned when I investigated police collusion with the UVF was that the loyalist and Protestant community felt very betrayed by the activities of those members of the security forces who colluded with loyalist paramilitary organisations. To impose a duty on the Secretary of State to commission such a history would be to introduce further cause for concern, suspicion and dissension in the communities in Northern Ireland. It would be better that history, in so far as it can be established, should be established by derivation from the findings of inquests, civil actions and criminal prosecutions.

As Maya Angelou said:

“History, despite its wrenching pain, cannot be unlived, but if faced with courage, need not be lived again”.


That is why this Bill is so misconceived: normal processes under the rule of law are to be abandoned, despite the objections of all the political parties, victims and the people of Northern Ireland. The Secretary of State’s power is woven throughout the new procedures in a way which means that, notwithstanding the integrity of any individual involved, all that will happen if there is an attempt to commission such a history is that it will divide, rather than create reconciliation. We cannot afford further community tensions, such as would emerge in attempts to write an official history of the Troubles.

[Lord Eames (CB)]

My Lords, I have frequently felt moved to speak in this House about the suffering that has been endured across Northern Ireland and which is obviously the centre of the approach of this legislation. However, we have also had occasions to be reminded that so little of our society finds, in this proposed legislation, anything that they can have confidence in.

On one occasion in Committee, I centred on the use of the word “reconciliation” in the title of the Bill. The speeches we have heard tonight come from the heart of people who have intimate knowledge of what they are talking about—people who have carried, and through their families have carried, scars over the years. For myself, there are numerous occasions upon which I have tried to bring comfort and reconciliation, in ordinary terms, to people. In the rawness of what we have heard tonight, this is really taking us now to the centre. We are not dealing with the niceties of this legislation. We are being reminded that the rawness of the suffering of ordinary people has brought us to this point.

I have no hesitation in saying that I have total dismay when I look at this legislation. So much could have been achieved. So much was expected, when we were told it was coming, and so little has been achieved, in what we have listened to and discussed. Now we are talking about how future generations will be told about our Troubles. We are told of the need to have an official history. My heavens, do we understand the first fact of what we are talking about when we refer to an “official history” of the Troubles? I venture to suggest it is an impossibility. The history of the Troubles is the photograph on the mantelpiece; the insertion on an anniversary; the plaque on a wall of the church, or a memorial window. The history of the Troubles is when a mother says, “Please, let me know the truth, before I die, of what happened”. And we turn around and produce ways of limiting inquiries, investigations, and questioning—not in the purely legal sense, but in the sense in which normal suffering people are crying out for answers. We have fallen so far short in this legislation of doing that.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Baroness O'Loan Excerpts

Report stage
Wednesday 21st June 2023 Lords Chamber

[Baroness O’Loan (CB)]

My Lords, today, the Day of Reflection, was proposed many years ago by Healing Through Remembering. It is a very symbolic day, as noble Lords have noted, for families of victims, and we tonight, as they remember the dead and support the injured, are debating a Bill which takes away the rights they have under the law. They do not want the Bill; it is important to say that.

I thank the Minister for the amendments he has tabled that reflect my earlier comments during the passage of the Bill. On behalf of the noble Lord, Lord Hogan-Howe, who cannot be here today, I thank him for the meetings he held with the noble Lord and with me.

It may seem desirable—admirable, indeed—that the Minister has introduced a requirement in government Amendment 2 that the principal objective of the ICRIR in exercising its functions is to promote reconciliation. However, it seems to me that there may be a contradiction between the promotion of reconciliation and the conduct of an investigation. How does one conduct an independent, impartial investigation with the principal objective of promoting reconciliation? Does that objective detract from the duty to investigate fearlessly, regardless of what the outcome of an investigation may be, so that people can be assured that the Government act in accordance with their obligations under the rule of law?

Investigation can lead to the exposure of matters that were hitherto unknown or unconfirmed but which may demonstrate, for example, that a named individual or individuals were responsible for a particular atrocity, and that can cause massive concern, particularly in circumstances in which terrorist perpetrators regard their activities as justified by circumstances, or where state actors did not take action to prevent a planned murder of which they were aware. It may certainly lead to hostility and distrust, rather than promoting reconciliation. I do not know what the answer to this is, but I think there is a conflict there, or a dissonance.

I welcome the two government Amendments 85 and 86, which provide for victim statements and the publication of those statements. The Government have yet to provide, as the NIHRC has stated, that victims or family members are informed when an individual has applied for immunity. Victims or family members are not currently expressly required to be informed of the outcome of the immunity request. There is no express requirement for the independent commission to provide reasons why it is or is not granting immunity, and there is no proposed option for an individual requesting immunity, or an interested person, to appeal a decision on immunity made by the ICRIR. In short, the Bill still does not comply, in this context, with the requirements of the victims’ rights directive in its provision for victims.

[Lord Morrow (DUP)]

My Lords, the Minister was at pains to point out that Amendment 2 is all about reconciliation, yet no matter how much you search through the Bill, there is no definition of reconciliation in it. I am having difficulty, as are my colleagues, in being reconciled to the Bill and to have reconciliation with it, but I hope the Minister will—and I am sure he will—when he is winding up on Clause 2, give his definition of reconciliation. It seems to me that reconciliation means different things to different people. I am sure he will have observed that all the victims groups that have spoken about the Bill have not spoken in favour of it; therefore, I think he has a job to do. However, as my noble friend Lord Weir has said, we will not be dividing the House on this, but I earnestly ask the Minister why there is no definition of reconciliation in the Bill.

--- Later in debate ---

I do not wish to speak for other Members of the House and will respond to amendments tabled by noble Lords in this group when I close.

[Baroness O'Loan (CB)]

My Lords, most of the amendments in this group are unexceptional. I have tabled Amendments 21 and 26 to Clause 9, which provides that close family members will have to apply to have their cases reviewed. There is a definition of “close family members” which effectively excludes those who are not parents, spouses, partners, children, brothers, sisters, half-brothers or half-sisters. For example, it does not include cousins, aunts and grandparents. This does not reflect modern families, who are much smaller than previously, where the deceased may be an only child with no issue or where the only surviving relatives are more distant but may be close.

In such cases, while a family member can make a request, the decision over whether it is appropriate will be made by the investigation commissioner. My Amendments 21 and 26 to Clause 9 remove from them that power to decide whether it is appropriate for a family member to make a request and leave it where it should belong—with the family member in question. This would be a victim-informed approach and go some way to meeting the requirements of the victims’ directive.

I hope the Minister will see that these two amendments are simply designed to give effect to the rights of victims, taking a victim-centred view of those who might not fit within the definition of a close family member but might well have been very close to the deceased person—even if they have felt forced by circumstances such as a threat by paramilitaries to leave Northern Ireland and therefore have not been able to return or have found it too traumatic to do so.

To respond to the Minister’s comments on the removal of access to communications data and the removal of the RIPA scheduling which was originally provided for in this Bill, this is not such a remote matter as he appears to think. Those powers were used most recently in Operation Kenova, which is investigating matters that occurred during the period covered by this Act. Those powers were used and should remain in the Bill.

--- Later in debate ---

[Lord Bew (CB)]

My Lords, I wish to return to something I focused on in Committee: the role of the ICRIR and its officers. Tomorrow, I have the honour of addressing former Chief Constable Boutcher’s staff who are working on the Kenova inquiry. There are some 80 staff and a budget, so far, of over £40 million. We must have in our mind’s eye the criteria for people who work for the ICRIR. The concerns I had in the past have been greatly mollified by the fact that Sir Declan Morgan will now play such a key role in this new body. It is important to recall that there is no obstacle to employment in the ICRIR for those officers with, for example, HET experience, who did a good job, and former officers of the PSNI, and I am simply asking for reaffirmation of this from the Minister. We have to think about the complexity of issues, such as expense. Kenova is running to a cost of £40 million now, dealing with only a tiny percentage of the case load that the ICRIR might have, and therefore we do need experienced officers who know the ground working in this area. The Minister has been helpful in the past, but I am looking for a degree of reassurance.

[Baroness O’Loan (CB)]

Before the noble Lord sits down, I have a question. He talks about the tiny proportion of the cases which are dealt with by Operation Kenova. The reality is that Operation Kenova has dealt with over 200 cases of the 1,000 which currently remain to be dealt with. My understanding is that the budget of the ICRIR is to be £50 million a year, which will come to £250 million, so the approximate cost will be very much the same.

[Lord Bew (CB)]

I am grateful to the noble Baroness for the intervention. I did not express it quite correctly; I was thinking of the likely number of prosecutions, which is a substantially lower number. She is right to make the correction.

--- Later in debate ---

[Baroness O’Loan (CB)]

My Lords, I must apologise to the House. I omitted to declare my interest as a member of the Operation Kenova steering group when I spoke on it previously.

The amendments in this group cover a massive range of issues affecting the proposed immunity provisions, which are contrary to the UK’s obligations under the Human Rights Act 1998 and the European Convention on Human Rights and are not consistent with the Government’s obligations under the Good Friday agreement. They will provide immunity from prosecution for murder, torture and other terrible crimes that have left people dead or with life-changing, life-limiting injuries. The only crimes for which immunity will not be possible are sexual ones.

Northern Ireland has not previously had immunity from prosecution. What we had were prosecutions that, on conviction, resulted in a maximum two-year sentence. We also had law that said that certain evidence was not admissible in a case. So, where information led to the recovery of one of those whom the IRA disappeared, that information could not be used for the purpose of prosecution. Similarly, when guns were brought in for decommissioning, they and any information attached to them could not be used as evidence. However, that did not confer immunity on an individual; it was still possible for them to be prosecuted for the crimes they had committed.

Those laws on the disappeared and decommissioning, and even the sentences Act, resulted from the Good Friday agreement and were not in breach of our convention obligations. However, these immunity provisions are different. The extent of the problem was made clear yesterday by the Northern Ireland Human Rights Commission, which is made up of advisers to the Northern Ireland Government. It said that,

“even with the UK Government’s additional amendments … fundamentally, the Northern Ireland Troubles (Legacy and Reconciliation) Bill is not compliant with the European Convention on Human Rights … the Belfast (Good Friday) Agreement 1998 requires the UK Government to incorporate the ECHR into Northern Ireland law and to do so to provide people with ‘direct access to the courts, and remedies for breach of the Convention’ … Therefore, our previous advice stands that closing off any pursuit of justice outside of the ICRIR is incompatible with human rights and the Belfast (Good Friday) Agreement”.

I would like to the Minister to explain to me, if he can, how people will have direct access to the courts and remedies for breaches of the convention under this Bill.

Even with the Government’s amendments—more than 120 of them—this legacy Bill will not provide something that is compliant. It will prevent direct access to the courts and to remedies. The Government’s 25 amendments to their immunity scheme do not, even in their totality, make the scheme compliant with convention rights. Such things as the revocation of immunity in particular circumstances do not change those facts. Amendment 63 in the names of the noble Lord, Lord Hain, and others would require that, to get immunity, a person would have to comply with the ICRIR’s requirements to provide fingerprints and “non-intimate samples”. It would also mean that a grant of immunity could be revoked in the event that a person commits a Terrorism Act offence, is a danger to the public or, to echo the comments of the noble Lord, Lord Dodds, attempts to make a profit from their criminality.

As the noble Baroness, Lady Ritchie, said, the Council of Europe’s Commissioner for Human Rights issued the following statement yesterday:

“I have repeatedly warned that the Northern Ireland Troubles (Legacy and Reconciliation) Bill would undermine the human rights of victims, as well as truth seeking, reconciliation and justice efforts. Serious concerns have also been expressed by the Council of Europe’s Committee of Ministers, the Parliamentary Assembly of the Council of Europe, the UN High Commissioner for Human Rights, UN Special Rapporteurs, national human rights institutions, parliamentary committees”—


of this Parliament, indeed—

“and civil society organisations, including victims’ groups. Despite this, the UK government has decided to go ahead with the Bill in a way that does not recognise Northern Ireland’s violent past or honours the suffering of victims. While the government has recently published amendments, these leave the fundamental problems with the Bill intact, such as the conditional immunity scheme that would result in impunity for serious human rights violations, the unilateral shutting down of avenues to justice for victims, and questions about the ability of the Independent Commission for Information Recovery to deliver outcomes that would meet human rights standards”.

It is clear that, even with the Government’s amendments, this Bill is not compliant with our international obligations. As has been said, it continues to be the case that nobody in Northern Ireland or elsewhere—apart from the Government, it seems—thinks that the Government’s amendments will fix the Bill.

As the Northern Ireland Human Rights Commission has said, the fundamental issue is that the ICRIR’s conditional immunity scheme is not, at its core, compliant with human rights. The noble Lord, Lord Dodds, has proposed Amendment 98A in this group. He said that it would be welcomed by those who have seen investigations completed and files just sitting there, waiting to be dealt with by the prosecutor of the Public Prosecution Service for Northern Ireland. The Kenova files have been waiting for up to four years. They include the Stakeknife files and the file that dealt with the terrible murders of three young constables on the Kinnego Embankment in Lurgan. All that will be lost. It will simply cease to operate unless the amendment in the name of the noble Lord, Lord Dodds, is accepted. I urge colleagues to think very seriously about the terrible injustice that would be done if we did not get that amendment through.

Despite all the amendments, the conditional immunity scheme remains in breach of our obligations. As we look at conditional immunity for murder, it must be more questionable—indeed, offensive—that immunity from prosecution will not be available for sexual offences but will be for the most heinous murders and tortures carried out by people like those who abducted and murdered Jean McConville, a mother of 10, in 1972; like those who planted the Enniskillen bomb; and like those who murdered people watching a football match in Loughinisland, as well as for all the other atrocities. Why? To know that your loved one was savagely murdered—even to witness it, as some did—is surely as egregious and terrible as any sexual offence.

Nobody in Northern Ireland wants these provisions. I urge noble Lords to support the amendments that seek to remove them, in particular Amendment 66 in the name of the noble Lord, Lord Murphy, to which I and the noble Baronesses, Lady Suttie and Lady Ritchie, have added our names.

[Lord Blair of Boughton (CB)]

My Lords, I will not detain the House much on this issue and Amendment 63, to which my name is attached, because I am really here to talk about Amendment 31, the Kenova amendment, which we will come to later on. I just want to remind noble Lords of the shocking effects of letters of comfort. We are about to repeat that same mistake if we continue with this process and do not do something to get Amendment 63 through the House on Monday.

--- Later in debate ---

[Lord Caine (Con)]

The noble Lord will be aware from his own experience that the search for any consensus around this subject has eluded successive Governments of—I was going to say “both parties”, but it is actually three parties if you include the coalition.

The noble Baroness mentioned devolution. I well remember the history of why we are in this position in the first place: after the Stormont House agreement, the First and Deputy First Ministers came to what was then Her Majesty’s Government and said, “This is all far too difficult for us to do in Stormont. Please do it at Westminster”. The assumption always was that these issues would be dealt with in Stormont, with some parallel legislation in this House. Anyway, enough of the history.

I genuinely accept that this is the most controversial and challenging aspect of the Bill. As I acknowledged at Second Reading, I have found this very difficult. I reminded the House at the time that one of my first jobs in politics was to work alongside the late Ian Gow MP, a wonderful man, when he was chair of the Conservative Northern Ireland Back-Bench committee, so I understand. I have had many meetings with victims’ and survivors’ groups over many years, and intensively ever since I took on responsibility for this Bill in your Lordships’ House. Indeed, I responded to a request from the noble Baroness last year. I have done this very willingly and have heard many harrowing stories that I will never forget. One of the most difficult parts of the job of being a Northern Ireland Minister, as the noble Lord, Lord Murphy, will acknowledge, is that one has to listen to some of the most appalling stories of suffering and grief; I completely acknowledge that.

As I said earlier, the Government are determined, through the legislation, to attempt to deliver better outcomes for those most affected by the Troubles. I do not underestimate that this is a hugely difficult task and that the legislation contains, as I have said, finely balanced political and moral choices that are challenging for many.

On the comments that have been made about our international obligations, we debated that extensively in Committee and I have had lots of discussions in private. We are not going to agree. The Government’s advice is clear that the provisions of the legislation are compatible with the Human Rights Act and the ECHR.

[Baroness O'Loan (CB)]

Could the Minister explain to us how they are compatible?

[Lord Caine (Con)]

I explained that at length in Committee. They allow for investigations to an Article 2-compliant criminal standard, they allow for prosecutions in cases where people do not co-operate with the commission, and they allow for revocation.

[Baroness O'Loan (CB)]

Possibly my question was not properly phrased. Could the Minister explain how an immunity provision such as this is compliant with our obligations?

[Lord Caine (Con)]

There are circumstances where setting aside the prospect of a prosecution, if it is for the greater good of providing more information to victims and survivors that will help society to move on, can be justified.

On the noble Baroness’s other point, I think she referred—I hope she will forgive me if I did not hear her quite right—to recourse to human rights remedies. The Bill does not remove the right of individuals to bring challenges under the Human Rights Act 1998, and that could include judicial review of decisions taken by the ICRIR in relation to the conduct of reviews. As a public authority, the ICRIR is under a duty to act compatibly with human rights obligations, something that we will probably talk about more in the next group of amendments.

--- Later in debate ---

I apologise to the House for speaking at such length on this group of amendments, but there are many and I think it only right that we do justice to the importance of this challenging debate. I hope that I have answered as many questions as possible and I ask the noble and right reverend Lord to withdraw his amendment.

[Baroness O'Loan (CB)]

My Lords, I would like to query what the Minister said about Amendments 94 and 97 and about me. I have never suggested that the officers of the ICRIR would not have the powers of a constable.

[Lord Caine (Con)]

Forgive me, I am having difficulty hearing the noble Baroness.

[Baroness O'Loan (CB)]

My Lords, I said that the Minister made some allusion to me in the context of Amendments 94 and 97 as he was concluding his remarks. I have never suggested that the officers of the ICRIR would not have the powers of a constable. I just want to place that on record.

[Lord Caine (Con)]

I am grateful to the noble Baroness. I do not think I was in any way ascribing those opinions to her. If she thinks I was, then I apologise.

--- Later in debate ---

In short, in Operation Kenova, there is a working model that is compliant with Article 2 of the ECHR, unlike the Bill. It is a working model that gives value for money and is scalable, as referenced in the NPCC review above. It is also a working model that has the confidence of families whose cases it has dealt with, and of Northern Ireland political parties. From his long service in Northern Ireland, the Minister will know that achieving a model backed by pretty well every victims’ group and every political party in Northern Ireland is unique. It is also a working model that is delivering on legacy, which the Bill so badly fails to do. If the Government continue to resist this amendment, which has wide cross-party and Cross-Bench support, I will put it to a vote on Monday. In that respect, I commend Amendment 31 to the House.

[Baroness O'Loan (CB)]

My Lords, I will speak to my Amendment 13, which is also in the name of the noble Baroness, Lady Ritchie, and which simply requires the removal of the word “reasonably” from Clause 5. The noble Lord, Lord Hogan-Howe, is unable to be with us today, but he associates himself with my remarks.

The Government told us that one of the purposes of the Bill is to provide families with information that was not previously available to them, and another is to gather all investigative and review functions within the ICRIR. This was always the proposal under the Stormont House agreement, and I have no difficulty with it, except for the way in which it is done and the immunity clause. But the powers accorded under the Bill do not provide to the ICRIR the access to information that will be necessary to obtain the information that families need, without lengthy judicial reviews and threats of judicial reviews, which have bedevilled inquiries such as the Saville inquiry and, indeed, the Kenova investigation.

In normal criminal investigations, there is a proviso that an investigator will not do anything which would prejudice national security or put someone’s life at risk. There is law that deals with this. The law also provides mechanisms which include a power to recover information, such as the search process when a warrant has been obtained. For example, police will seize all the computers in a house to determine whether the contents of any of them may be relevant to the matter under investigation. Those are general statutory investigation powers. Those charged with criminal investigation also have powers to require the provision of information from agencies and individuals. For example, under Section 17 of the Police Reform Act 2002 there is a simple duty on every chief constable and local policing body to provide information to the IOPC. Similarly, Section 66 of the Police (Northern Ireland) Act 2000 says:

“The Chief Constable and the Board shall supply the Ombudsman with such information and documents as the Ombudsman may require for the purposes of, or in connection with, the exercise of any of his functions”.


There is no qualification, simply a duty to provide information. However, this Bill as drafted states that a relevant authority

“must make available to the ICRIR such … information … documents, and … other material as the Commissioner for Investigations may reasonably require”.

This provision applies only to information which the ICRIR reasonably requests. Of course, an investigator must always act reasonably and in compliance with the law. However, there is no process for which a chief constable may, for example, say, “No, it’s not reasonable for you to make that request for information”. I had those conversations in the early days of my tenure as Police Ombudsman. I was told, for example, that it was not reasonable for me to ask for sensitive information, such as information held by Special Branch—now the Intelligence Branch. I was able to point to the law, which said that the chief constable

“shall supply the Ombudsman with such information … as the Ombudsman may require”.

That is how it is in criminal investigations. It is not required that the investigator demonstrates the reasonableness of any request for information.

The Minister has said that a requirement that information shall be reasonably required is to be found in other statutes. He cited one, the Finance Act 2008, so I looked it up. Section 113 of and Schedule 36 to the Finance Act 2008 provides that an officer of His Majesty’s Revenue and Customs can require a taxpayer to provide information reasonably requested by the officer for the purposes of collecting a tax debt owed by a taxpayer. There is a big difference in the powers required to collect an unpaid tax debt and those required to investigate a murder, as is evidenced by the current state of the law, which provides necessary protections for privacy in appropriate circumstances under the GDPR and the Data Protection Act, for example, but also empowers criminal investigators to access information. This is the proper working out of UK compliance with its obligations under the Good Friday agreement and the European convention.

If an agency could respond to a request for information by the ICRIR by challenging the reasonableness of that request, there would be inevitable and very lengthy disputes, possibly—indeed probably—involving judicial review, about why what the ICRIR was asking for was reasonable. The reality is that the investigator—the ICRIR in this case—may be in possession of material justifying the reasonableness of the request for information, but that material cannot be disclosed at this particular point in time without compromising the integrity of the investigation. The result is that an agency may be unaware of the material which the investigator holds, but it may be very aware that information which is held by that agency is highly compromising of the agency and may indicate how it came about that, despite an agency, for example, being aware of a proposal to murder someone, it did not intervene to stop that murder. It has happened.

The necessary unqualified powers to compel the production of documentation, especially documentation held by the other agencies, security intelligence services and police intelligence units, will not be available to the ICRIR because of how the Bill is drafted and the definition of sensitive information. The proposed powers to identify and gather information will also be subject to veto by the Secretary of State under the extensive provisions of Clauses 29 and 30. Access to information could be severely curtailed through the exercise of powers conferred on the Secretary of State in this Bill, because it gives the Secretary of State powers to give guidance about how the ICRIR is to identify sensitive information such as that held by police intelligence units and how that information is held and handled, et cetera, and even to create new criminal offences in relation to such matters.

Last year, the European Committee of Ministers exposed serious concerns about the Bill, and the Commissioner for Human Rights has now said that the amendments proposed by the Government do not sufficiently allay those concerns. This emphasised again that it is crucial that the legislation, if progressed and ultimately adopted, is in full compliance with our convention obligations and will enable effective investigation into outstanding cases.

The Committee of Ministers has called on the Government, first, to ensure that the Secretary of State for Northern Ireland’s role in the establishment and oversight of the ICRIR is more clearly circumscribed in law, in a manner that ensures that the ICRIR is independent and seen to be independent. Secondly, it has called on them to ensure that the disclosure provisions unambiguously require full disclosure to be given to the ICRIR. Thirdly, it has asked that they ensure that the Bill adequately provides for the participations of victims and their families for transparency and public scrutiny, which is fundamental to Article 2. It has again stressed the importance for the success of any investigative body of gaining the confidence of victims, families of victims and potential witnesses.

I also put my name to Amendment 31 in the name of the noble Lord, Lord Hain, supported also by the noble Baroness, Lady Ritchie, who has spoken at length about it, as well as the noble Lords, Lord Blair and Lord Murphy. The noble Lord, Lord Hain, is unable to be with us today. I shall support that amendment if a Division is called. I do not think that I need to describe the reasons for it, but I shall say that the National Police Chiefs’ Council has said that the Kenova model could effectively be scaled up for the purposes of the ICRIR.

I regret that I cannot support Amendment 28 in the names of the noble Baroness, Lady Hoey, and the noble Lords, Lord Bew and Lord Godson, because it requires that, when a family is seeking a review or investigation, they will have to be able to show that, if there is to be a review, and there has previously been an investigation or an inquest, for example, the ICRIR should not decide to grant a review unless there is compelling new evidence. To require a family to provide compelling new evidence would be to deprive them of their Article 2 rights to investigation, in particular in older cases where investigations and inquests were not as thorough or impartial as they are now. It is not the role of a traumatised and bereaved family to gather compelling new evidence. They have neither the powers nor the access to do so. That is the job of the investigator—in this case, the ICRIR.

[Baroness Hoey (Non-Afl)]

My Lords, with regard to Amendment 28 in the name of myself, the noble Lords, Lord Bew and Lord Godson, I tabled similar in Committee and have changed it to take note of what the Minister then said, deleting the parts that he found objectionable, which related to family requests for reinvestigations. I hope that what remains the Minister will find acceptable, given that the purpose of my amendment to Clause 11 is to ensure that there will not be duplication by the ICRIR in relation to previous investigations, despite what the noble Baroness, Lady O’Loan, has said, without compelling new evidence. This is the concept that was used in the overseas operation Act, and I cannot understand why it cannot be used in this legislation.

If the previous investigations listed in the amendment, such as those by a public inquiry, HET, or the police services Legacy Investigation Branch are not added to the Bill, thus narrowing the ICRIR’s potential range, I repeat what I said at Committee: namely, that the ICRIR could end up reinvestigating every one of the nearly 4,000 deaths, the cost will be £1 billion at least, not the budgeted £250 million, and the process will last for many years.

--- Later in debate ---

[Lord Caine (Con)]

My Lords, I am grateful to all those who have spoken. We have debated compatibility with the European convention at length, as recently as the last group. I do not propose to revisit all those arguments in response to this group.

I have, however, brought back Amendment 32 to make it clear in the Bill that the independent commissioner for investigations will determine whether a criminal investigation should form part of a review. I have also tabled Amendments 30 and 33 expressly to confirm that the commissioner, when exercising operational control over the conduct of reviews and other functions, must comply with obligations imposed by the Human Rights Act. In addition, I will place a duty on the commission to publish a statement outlining how each review was conducted as part of its final report, thus enhancing the transparency of its work through Amendments 34, 49, 50 and 55.

The legislation rightly ensures that the independent commission, via the commissioner for investigations, has the flexibility to determine whether and when it is appropriate to use police powers during its review. An approach requiring a criminal investigation in all cases, as would be required under Amendment 31 in the name of the noble Lord, Lord Hain, would remove such flexibility and significantly increase the likely time to complete reviews, further delaying the provision of information to many families. I do not intend to go over the contents of my letter to the noble Lord again; it is there for everybody to see.

As I have said in the House on numerous occasions, I recognise the work carried out by Operation Kenova and the way in which Jon Boutcher, to whom I pay tribute, has developed strong relationships with the families of victims. There are many features of Operation Kenova’s work that the Government consider capable of being built on, should the commission choose to do so. However, as I have put on record numerous times, the Government view it as vital that the commission is free to determine its own approach to these complicated matters. That would be constrained if we were to adopt the amendment of the noble Lord, Lord Hain.

In response to amendments tabled by the noble Baroness, Lady O’Loan, in Committee, I have brought forward Amendments 14 and 15 to Clause 5. These would extend the list of authorities which may be required by the commissioner for investigations to provide the commission with assistance for the purposes of, or in connection with, the effective use of information, documents and other material provided by those authorities under Clause 5.

On the issue of Maxwellisation, I have introduced a series of amendments to Clauses 15 and 17, in response to discussions with the noble Baroness, Lady O’Loan, requiring the chief commissioner to share only relevant sections of a report criticising a person rather than the full draft report and allow them to make representations about that material.

I am sympathetic to what Amendments 39 and 41 in name of the noble Baroness, Lady O’Loan, attempt to do. We explored this in Committee and the noble Baroness and I discussed these matters yesterday, so I do not intend to go over all the arguments again. Suffice it to say that, in our view, the current drafting ensures that the chief commissioner can modify material as well as exclude it, so in our view the amendments are unnecessary.

In response to Amendments 12, 37 and 47 tabled by my noble friend Lord Bew, the ICRIR is already under a clearly defined obligation, in Clause 4(1)(b), not to do anything that would risk putting, or would put, the life and safety of any person at risk. It is the Government’s view that this safeguard is wide enough to offer sufficient protection of the rights of anyone likely to be named in reports, and therefore my noble friend’s amendment is unnecessary.

In respect of Amendment 13 to Clause 5, again in the name of the noble Baroness, Lady O’Loan, it is not unusual for legislation giving a power to require the provision of information to be subject to the requirement of reasonableness. Reasonableness is a widely used and understood term, which is included in other legislation. She referred to one example which I provided, in the Finance Act. I could add the paragraph 19ZA of Schedule 3 to the Police Reform Act 2002, which uses the same reasonableness requirement formulation in the equivalent power of the director-general of the Independent Office for Police Conduct. The Inquiries Act 2005 gives the chairman of an inquiry the ability to require a person to provide evidence and documents to the inquiry panel within such a period that appears reasonable to the inquiry panel. Section 17(2) of the Criminal Appeal Act 1995, which gives equivalent powers to the Criminal Cases Review Commission, is also drafted in those terms, so there are a number of other examples.

In practice, the commissioner for investigations will decide, based on the facts of the particular review, what information can reasonably be required of a relevant authority. If there is a dispute, and the relevant authority considers the commissioner has acted unreasonably in imposing the requirement, the matter will ultimately have to be resolved by the courts. I believe the noble Baroness, as we discussed recently, is reading too many restrictions into the Bill, where do they not exist and there is no intention for them to exist, and where our purpose is to get as much information into the public domain as possible.

[Baroness O'Loan (CB)]

I thank the Minister for giving way. Does he accept that, in the examples he gave of the time within which information might reasonably be provided, and the powers of the chair of a tribunal who is reasonably requesting information, there is a distinction between a reasonable request for information and a request for information to be provided within a reasonable time? We have seen, in the current judicial review, the difficulties faced by the Government in relation to the information held in respect of the Prime Minister which is required by the Covid inquiry.

[Lord Caine (Con)]

If I am honest, I am not entirely sure I follow the point the noble Baroness is making, but I stand by the point I have just made, that our intention is not to impose unnecessary restrictions through this legislation but to allow the commission to access information and be in a position to put more information about what happened into the public domain than has been the case.

Turning to Amendment 28 in the name of the noble Baroness, Lady Hoey, I understand the intention behind this amendment, but Clause 11(7) already requires the commissioner for investigations to ensure that the commission does not do anything that duplicates any aspects of a previous review, unless duplication is deemed absolutely necessary. We believe this is a proportionate approach that ensures the resources of the commission are not wasted through unnecessary duplication, while providing limited discretion for the commission where that might be required. In our view, the effects of the amendment tabled by the noble Baroness would be to hamper the ability of the commission to conduct reviews which might lead to the effective provision of information to many families, which would run counter to a key objective of the legislation. I therefore urge noble Lords not to press their amendments.

--- Later in debate ---

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I believe that the Bill and the government amendments to this clause to do with inquests and judicial outcomes clearly undermine the fundamental tenet of basic human rights: the right to access to inquests and investigations for those seeking truth and justice following the heinous murder of their loved ones. Clause 40 deals with investigations, inquiries and inquests, but the Government seek to eradicate such provisions.

In my former role as MP for South Down, as an MLA for that constituency and as a district councillor, on many occasions I met families who had lost their parents, their siblings or their sons and daughters through summary execution by paramilitaries or as a result of state violence. On all occasions, those people wanted truth, justice and, above all, to know what had happened to their loved ones, why it had happened, what were the circumstances, and most of all, whether it could have been avoided.

I suppose that I have the most direct experience with Loughinisland, where six men were gunned down on 18 June 1994. That was subject to an inquiry by the former Police Ombudsman for Northern Ireland, the noble Baroness, Lady O’Loan, which was then progressed by her successors until eventually a Police Ombudsman report was published in 2016 which found elements of collusive behaviour between security forces and members of loyalist paramilitary organisations. I knew many of those people who were killed, and I have to say that the people I knew had absolutely no participation in terrorism. They abhorred violence, and perhaps their only political act was to vote. In fact, two of those people who were killed on that night were indirectly related to me, one of them the eldest man to be killed in the Troubles; his brother was married to my aunt. Those things you do not easily forget.

Clause 40 deals with investigations and the Government seek to eradicate those provisions. I am a signatory to Amendment 110 in the name of the noble Baroness, O’Loan, which seeks to remove this clause from the Bill and try to ensure a redress system. This view is supported by the Commission for Victims and Survivors, Amnesty and the CAJ, and latterly by the Tánaiste, Micheál Martin. He wrote an opinion piece this week for the Financial Times in which he states:

“Existing mechanisms for dealing with the legacy of the past, while imperfect, deliver important outcomes for those families, such as the vindication of a murdered loved one’s innocence. In its Legacy bill, the UK government intends to permanently close off access to these mechanisms—inquests, police ombudsman investigations, civil cases and police investigations—which are working for families and, importantly, demonstrating a vindication of the state’s obligations under the European Convention on Human Rights to investigate killings effectively”.


With the government amendments in this group, all investigations into harmful conduct forming part of the Troubles will be brought to an end by the Bill and by the amendment of the deadline to 1 May 2024. That applies to inquests, investigations, inquiries and investigations by the Police Ombudsman. After that date, the only remaining available investigation will be a toothless light-touch review by the ICRIR. This is a much inferior mechanism to those that currently exist.

For example, in the case of the late Sean Brown from Bellaghy, whose inquest hearings were last week—he was murdered by loyalist paramilitaries about 30 years ago—if information from the MoD and the police does not reach the inquest hearing, which has been delayed, the family fear that what they believe to be deliberate delaying tactics, which have proved successful for the state agencies, will continue until 1 May 2024 and there will therefore be no redress. The late Sean Brown’s widow and family simply want truth and justice via the inquest system. It is important that this right is not denied to them through this arbitrary deadline of 1 May 2024. I am also aware of police widows who seek similar redress, which they are entitled to.

The Commission for Victims and Survivors wants the inquest system to remain as it is because of a number of families who are concerned about this change of approach. These are the people who carry the weight of loss in circumstances that have never been properly explained. The 1 May 2024 deadline has added to that weight and their sorrow.

The Human Rights Commission’s view is that the existing system should be developed, not regressed. There have been significant steps forward for several families in uncovering the truth and seeking justice that would not have been possible without the existing systems—I have already referred to Loughinisland and the Police Ombudsman’s investigation. That point is emphasised by the CAJ, which states that the Bill will shut down existing legacy mechanisms when such mechanisms are increasingly delivering for families. The government amendments are designed to copper-fasten and extend this process.

I therefore support the amendment in the name of the noble Baroness, Lady O’Loan, which seeks to remove Clause 40 and ensure that the existing work, which is being done very efficiently and is helpful to families, can continue. Can the Minister confirm whether he received support for or opposition to these amendments and for the Government’s intended purpose in this legacy Bill in all the meetings he had over the last number of months? I urge him to withdraw the 1 May 2024 deadline and go back to the drawing board of the Stormont House agreement as a basis for dealing with legacy, because it has the involvement of the parties and of the Irish Government. Will he and government colleagues meet the Irish Government to discuss this issue as a matter of priority? If the noble Baroness moves her amendment on Monday, I will be very happy to support it.

[Baroness O’Loan (CB)]

My Lords, group 6 refers to criminal justice outcomes. These really are the critical clauses. They remove from those affected by deaths and serious injuries between 1966 and 1998 the ability to pursue civil actions for the loss or damage that they have suffered; the ability to have investigations, as required by the ECHR; and, in cases where people have suffered a violent death, the ability to have inquests in respect of those deaths.

The noble Lord, Lord Hogan-Howe, who cannot be with us this evening, and I asked the Government to provide definitions of “review” and “criminal investigation” in order to inform your Lordships’ understanding of the difference between the two, which is a vital issue in this Bill. The Minister expressed the view that it was not necessary to provide such definitions. However, in its report of January 2021 on the work of Operation Kenova and the Glenanne review—Operation Denton—the National Police Chiefs’ Council explained:

“Operation Denton differs from Kenova in that it is being conducted as a review, and not as a criminal investigation at this time. This makes the approach by the operational team fundamentally different to that of Kenova”,


which is an investigation,

“from an evidential perspective”.

That fundamental difference of approach is why His Majesty’s Government were so strongly criticised for making the function of the ICRIR to conduct reviews of deaths. That confusion continues to permeate the legislation. Even by Third Reading, perhaps the Minister might seek the assistance of the National Police Chiefs’ Council and provide us with an amendment to define “review” and “investigation”, which would help the House in making its decisions.

In future, despite the Minister’s Amendment 32 to Clause 23, it is for the commissioner to decide whether investigations should form part of a review. Once the Act comes into force, there will be no criminal investigations as we know them today by the police or other agencies in relation to Troubles-related offences. Existing investigations will cease unless a decision to prosecute has been made and the ongoing investigation is for the purpose of that prosecution. A few minutes ago, the Minister expressed the hope that Operations Kenova and Denton would be complete by 1 May 2024. However, I have to point out to him that that is not to be determined by Kenova and Denton, which have finished their work and are simply waiting for decisions from the Director of Public Prosecutions, security reviews, Maxwellisation and that sort of thing. There is very little that Kenova or Denton can do; it is for others to do this. We have been told, however, that others cannot do it because there are no resources; we are also told that that is the fault of the Northern Ireland Assembly, which does not sit. This does not seem to be a particularly constructive approach to the problem.

Unless a family member, the Secretary of State for Northern Ireland, the Attorney-General for Northern Ireland or the Advocate-General for Northern Ireland asks for a review and the ICRIR decides both that there should be a review and that the review should take the form of a criminal investigation, other investigations will simply cease without any provision for victims. Earlier, I referred in particular to the case of those three young police officers who were killed in the Kinnego Embankment explosion and whose file has been referred to the DPP. It would be wrong for these cases simply to die with the passing of this Bill.

In more limited circumstances where a review involves a death that was caused directly by conduct during the Troubles, coroners, sheriffs and procurators fiscal in Scotland can ask for a review. In all other cases, the investigation will cease and there will be no investigation and no provision for victims.

As a consequence of the Government’s amendments to this Bill, even those that say that there must be compliance with the obligations imposed by the Human Rights Act, such compliance is de facto not possible because, among other reasons, there is provision for immunity from prosecution for murderers and the ICRIR does not have unqualified access to information held by relevant agencies under Clause 5. Despite the Minister’s comments on the previous group, I, as Police Ombudsman for Northern Ireland, had the right to require the delivery of information. The ICRIR has the right only to reasonably request information. It is different.

--- Later in debate ---

[Baroness O’Loan (CB)]

The noble Lord is very generous. I want to ask him if legal aid is available to everyone for inquests, or is it assessed according to income?

[Lord Caine (Con)]

It is assessed in the normal way, which the noble Baroness will know, in Northern Ireland. Inquests are covered by legal aid. The noble Baroness will know from looking at the Bill that cost proceedings where civil cases have begun can be continued. Anyway, I just wanted to try to be helpful to the noble Baroness in clarifying that.

--- Later in debate ---

Finally, on the role of the Lord Advocate, raised by the noble Lord, Lord Browne of Ladyton, as I said in my opening comments, I discussed these matters with the Solicitor-General for Scotland, Ruth Charteris, a few days ago in order to find an agreed way forward that respects the devolution settlement.

[Baroness O'Loan (CB)]

Can the Minister enlighten us as to what remedy the Bill will provide to those who seek, in the civil court, not information but damages for torts they have suffered and that will be removed from them by Clause 39? Judicial review is not a remedy for tort. The remedy for tort is damages, if you establish it.

[Lord Caine (Con)]

As I said and as the noble Baroness will be aware, 700 cases are currently stuck in the Northern Ireland courts, and they will still be allowed to proceed after the prohibition comes into effect. That will probably take many decades to bring to a conclusion but, thereafter, she is right: any cases that were filed after the First Reading of the legislation will not proceed and will therefore go into the new body for examination, should that be the wish of the families.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Baroness O'Loan Excerpts

Committee stage
Thursday 11th May 2023 Lords Chamber

[Lord Howell of Guildford (Con)]

My Lords, I strenuously support this amendment spoken to by my noble friend Lord Faulks, supported by my noble friend Lord Godson, and for two specific and extremely important reasons.

The first is simply this. If your Lordships go back to the 1972 detention of terrorists order passed through the House of Commons and this House, they will find specific provision in the text of that order for 28-day and night ICOs to be signed by Ministers of State, junior Ministers or other officials. We were doing that—I had the privilege of being involved in taking it through the House of Commons at the time—not just to reinforce the eminently sensible Carltona principle but for the most practical, hard-headed considerations of the circumstances in which these matters would have to be handled.

What we were dealing with seems to have fallen out of the memory of many people. Although we said that it was not a war, the Provisional IRA said it was, and indeed there was talk from Dublin of the same thing. We were having to deal with war conditions, whether or not we accepted that a war was being waged against the United Kingdom. The practicality of that was that the Secretary of State—Mr William Whitelaw at the time, under whom I served—was having to move very quickly between Belfast and the Cabinet, handling the situation in the Houses of Parliament and a variety of other commitments as well. It was perfectly obvious that, for the smooth working of the procedures and the empowerment of the detention of terrorists order and many other pieces of legislation, he would need support of all kinds in handling these matters—in particular, in accordance with the detention of terrorists order and Carltona.

Much of the discussion since has been detached from the context and intense pressures in which we were working after the fall of Stormont and the arrival of the Whitelaw mission in Northern Ireland. Incidentally, this had the support of the whole House. The House of Commons supported it unanimously; there were maybe one or two queries but no amendments at all.

The second reason for my support for this amendment is that, while I do not wish to criticise the courts in anyway—I would not dare do so—I am absolutely baffled that legal and court procedures in a complex matter of this kind, going back in history, did not involve calling any witness of any kind to corroborate what actually happened and what went on in Stormont and in the procedures we are discussing. Ministers should have been called in those proceedings. It happens that I am the only Minister left from the Whitelaw team who is still alive, and I should have expected to be asked exactly how these things went on. What happened when one was asked on a Sunday night to sign an ICO? Who was consulted? To what extent did one talk to the Secretary of State beforehand, or to other Ministers of State or important witnesses from the police and other authorities? This was extensive but none of it was ever discussed.

It is utterly bizarre that somehow the court procedures should ignore what was specifically provided for in the original order. This seems to be almost incomprehensible. I therefore ask strongly that the Government reconsider what my noble friend Lord Faulks has put so eloquently and the point that the noble Lord, Lord Butler, has rightly argued about the procedure. Was there really a procedural glitch? No one knows; it was never discussed, and yet here we are with the prospect of millions of pounds being claimed on the basis of a judgment that appears to be based on sand—on nothing.

This is a very serious matter; it is a dangerous and costly matter. It may encourage many more difficult feelings at a time when—heaven knows—the whole balance and fragility of Northern Ireland is once again in question. It would be a great mistake not to accept the validity behind this clause, even if it needs amending in certain ways, and to pass it by or cast it aside on the grounds of matters settled. This is not settled; it is unsettled and most unsatisfactory. It needs very serious determination and consideration now.

[Baroness O'Loan (CB)]

My Lords, the discussion on Amendment 154A shows the importance of getting legislation right in the first instance. I speak in support of Amendment 146 to Clause 34, to which I have put my name. This amendment and Amendment 152 will remove the provision that all existing investigations must transfer from the existing investigation body to the ICRIR. Chief officers of police have to notify the Secretary of State of all criminal investigations of Troubles-related matters. The only exception to this under the Bill arises when a prosecution is under way and the investigation is pursuant to the prosecution.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)]

The noble Lord, Lord Murphy of Torfaen, referred to the past seven or eight months—I assure him that, from this side of the Committee, it seems much longer. He, my noble friend Lord Dodds of Duncairn and the noble and right reverend Lord, Lord Eames, somewhat pre-empted my opening comments on this group of amendments by referring to the sad passing of Lord Carswell. As this is my first opportunity to address your Lordships since his death, I join those who pass on their condolences to his friends and family. Lord Carswell spent many years as a very dedicated public servant, including as Lord Chief Justice of Northern Ireland, as a Law Lord and as a distinguished Member of this House. We will miss his very wise and profound contributions.

I am also grateful to my noble friend Lord Dodds of Duncairn, the noble Baroness, Lady Hoey, and the noble Lord, Lord Murphy, for their references to the security forces. I intend to touch on that at slightly greater length in replying to the next group of amendments, but I concur with every word that was said.

As has become customary on the Bill, this has been a thorough debate. Before I respond directly, I would like to take a couple of moments to make an announcement in the Chamber. Last month, on 20 April, I laid in the Library of the House a paper setting out the selection process for the chief commissioner of the ICRIR. I am pleased to announce today that, following recommendations from the three Chief Justices across the United Kingdom, the Secretary of State has identified the right honourable Sir Declan Morgan KC to be appointed to the role of chief commissioner of the commission upon Royal Assent. The Secretary of State is today laying a Written Ministerial Statement providing more detail.

It is important that a chief commissioner be identified now in order to help victims, survivors and their families receive the answers they need with minimal delay, should this legislation receive Royal Assent. Sir Declan brings a wealth of experience from his previous role as former Lord Chief Justice of Northern Ireland from 2009 to 2021. A hallmark of his distinguished career has been his commitment to addressing the legacy of Northern Ireland’s past. I am confident that he will bring the highest level of experience, expertise and integrity to this post, and that this will help build public confidence in the work of the commission.

Sir Declan will begin work early next month to identify other commissioners and design how the new commission will carry out its role. Formal appointment as chief commissioner will take place only following Royal Assent and the establishment of the commission, taking account of any further considerations and final requirements of the Act. In particular, the chief commissioner will lead the process to recruit the commissioner for investigations and provide a recommendation to the Secretary of State. The role is currently advertised and subject to a fair and open competition, with appointment on merit. I trust that noble Lords across the House will warmly welcome this appointment.

[Baroness O'Loan (CB)]

Does it not seem slightly precipitate to be engaging the services of the chief commissioner and other commissioners when the powers and duties of the commission have yet to be decided by your Lordships’ House? It seems to me that, notwithstanding the amount of time needed to establish the new offices, the Bill is not yet in a state in which the chief commissioner can approach commissioners and say to them, “This is what we’re going to do, and this is how we’re going to do it”, because the House has not decided those issues.

[Lord Caine (Con)]

As I just made clear in my remarks, the appointment is as chief commissioner-designate, and the formal appointment will not take place until after Royal Assent. That will take into account any further considerations that the House will have upon this legislation. It is important to enable the work of the commissioner to start now in order that, once Royal Assent is—I hope—received, the commission’s work can begin without delay.

--- Later in debate ---

[Lord Caine (Con)]

The salary is based on judicial pay scales, as set out by the Ministry of Justice. I cannot off the top of my head tell the noble Baroness precisely what day his remuneration will begin, but I will get back to her on that. However, it is consistent with the MoJ’s judicial pay scales.

I turn to the amendments on criminal investigations, and first to Amendments 146 and 152 in the name of the noble Lord, Lord Browne of Ladyton. Under the Bill, the only existing criminal investigations that will be allowed to continue will be those where a decision to prosecute has been reached by the time of the Act’s commencement, currently two months after Royal Assent.

As the noble Lord knows, it has long been the Government’s view that to allow too many existing processes to continue alongside the ICRIR’s establishment would dilute the commission’s credibility as the sole investigator of Troubles-related deaths and serious injuries, and the wider objectives of the legislation to encourage information recovery and—an issue on which many noble Lords have touched today—the truth of what happened. In the Government’s view, the legislation as drafted strikes the right balance between allowing existing criminal cases that have made significant progress in the prosecutorial process to continue while giving the ICRIR the space it needs to become established as the sole responsible body for these types of investigations.

The legislation does not prevent the new commission, once it is operational and subject to a request being made, resuming criminal standard investigations into deaths or serious injury which the police have been prevented from pursuing under Clause 34(1). As we have discussed many times in the past, the commissioner for investigations will have the full powers of a police constable.

[Baroness O’Loan (CB)]

It has to be said that the powers of investigation conferred on the commissioner for investigations in the statute are not the same powers as the powers—for example, to access information, and other powers—which are held by an ordinary chief constable and his officers. The powers of investigation in the Bill are circumscribed by the role of the Secretary of State and the interventions which he can make.

[Lord Caine (Con)]

I disagree with the noble Baroness. The commissioner for investigations will have the powers of a police constable and will have access to far greater information and records than is currently the case. We have been over this many times before. It is written into legislation that the commission will have access to far more archive and intelligence material than has ever been made available before.

The noble Lord, Lord Browne of Ladyton, quoted the decision of Armani Da Silva v the UK in regard to what constitutes an effective investigation. Again, we have debated this at length on previous days in Committee. To reiterate a point I made during those debates, the commission, working together with public prosecutors and making full use of the police powers to which I have just referred, will be able to institute criminal proceedings against suspected offenders in cases where conditional immunity has not been granted.

In the Government’s view, the absence of a prosecution or punishment outcome in individual cases where immunity is granted can be justified on the basis that the conferral of such immunity in a limited and conditional way is necessary to ensure the recovery of information about Troubles-related deaths and serious incidents that is extremely unlikely to come to light in any other circumstances. It is therefore consistent with the Government’s stated objective to provide more information to victims and survivors of the Troubles in a timely and efficient manner.

In response to his question about the compatibility of the Bill with the Scotland Act 1998, it has always been our expectation that the power of referral will be exercised in consultation with the relevant prosecuting authorities, including the Lord Advocate, and I commit to consider this matter further in advance of Report.

In response to Amendment 154 in the name of my noble friend Lord Dodds of Duncairn, where a decision to prosecute has already been made, the case will be allowed to continue to trial and the individual involved will not be able to apply for immunity until its conclusion. If they are convicted of an offence, they will not of course be able to apply for immunity from that offence, as we have discussed previously.

Clause 6 designates the commissioner for investigations as a person having the powers and privileges of a constable, as I referred to a few moments ago, and they have access to the functions they need to carry out robust investigations.

On the very important Amendment 154A, in the name of my noble friends Lord Faulks and Lord Godson, I am very aware of the issues being raised following the Supreme Court ruling in 2019—indeed, I was a special adviser in the Northern Ireland Office at the time that that ruling was made by Lord Kerr. It has been brought back into focus following a court judgment in the past few days and I am aware of its importance. I hope my noble friend will understand, as he alluded to in his comments, that, given the lateness with which the amendment appeared and important legal considerations on which it touches, I am not in a position to give him or other noble Lords a full response today. But I do take on board the very powerful points made by a number of noble Lords: the noble Lords, Lord Butler of Brockwell, Lord Macdonald and Lord Murphy of Torfaen, my noble friend, Lord Howell, who reminded the House that he was indeed a Minister in the Northern Ireland Office in 1972 with some responsibility for these matters, and my noble friend Lord Sandhurst. All upheld the importance of the Carltona principle. As I say, I cannot give a definitive response today, but I do commit to discussing it further before Report and possibly returning to this when the Bill comes back on Report.

I turn to the group of amendments put forward by the noble Lord, Lord Browne of Ladyton, supported by the noble Baroness, Lady O’Loan, and other noble Lords, to address some of the concerns raised over the inclusion of a number of clauses. I begin by reminding the House that, as regards civil cases, over 700 writs were issued against the state in legacy civil claims before the First Reading of the Bill a year ago on 17 May 2022.

As has been stated many times, the Government’s policy intent regarding civil claims is to reduce the burden on the Northern Ireland civil courts—which currently have a huge case load backlog to work through—while enabling the commission to establish itself as the sole investigative body looking at Troubles-related deaths and serious injuries. It is the Government’s intent that families should no longer have to go through the strained civil court system in order to receive the answers they seek.

In the Government’s view, there is a danger that these amendments in the name of the noble Lord and others would significantly dilute both of those aims, taking potential casework away from the ICRIR and putting it back into an already clogged system that on current estimates will take decades to work through. In our view, this is much less likely to provide answers for families in an efficient manner, which again sits in opposition to our stated aims.

On Amendment 156 specifically, filing claims can be done relatively quickly. This means that if a three-year grace period were to be given, it is possible that a huge number of claims would be filed, as a clear deadline would be in sight, and would remain in existence for a number of years. That would mean that the system would be hugely clogged up and have to deal with an even higher case burden than is currently the case.

Our current position will allow existing claims that were filed before the Bill’s introduction to continue to conclusion while bringing to an end new processes, to ensure that not too many concurrent cases are running once the ICRIR is established. Clause 39(7) simply allows any civil cases where a final judgment has been reached before commencement to continue to conclusion, where they would otherwise be caught by the prohibition in Clause 39(1). We believe that this is a reasonable approach to ensuring that the prohibition on civil claims does not interfere with cases where the court has handed down a final judgment when the prohibition would otherwise apply.

I appreciate that coronial inquests are a matter of huge concern to a number of noble Lords. I gave a commitment that this Government would not rush the legacy Bill through this House, and that we would prioritise steady passage and provide ample time for continued engagement. That is what we have done, in good faith. As noble Lords will be aware, the original working assumption was that the ICRIR would be fully operational by 1 May 2023 at the latest, on the assumption that Royal Assent would have been received some time before then. At that point, the intention was that those inquests which had reached an advanced stage would continue, while those which had not would move into the new commission. It will not have escaped the attention of noble Lords that 1 May 2023 has come and gone without Royal Assent, and that the establishment of the new commission has not yet happened, largely due to the extra time that we have given for thorough consideration of this legislation. However, this raises important issues that we must address. I will discuss this further with noble Lords between now and Report.

As the Bill has not yet become law, all current criminal justice processes may, for now, continue as normal. In that context, the noble Baroness, Lady O’Loan, asked me how many PSNI investigations have been initiated since the introduction of the Bill. That information rests with the PSNI, which, as the noble Baroness knows, is operationally independent from the Government, but I will seek an answer.

As Lord Chief Justice of Northern Ireland, Sir Declan Morgan demonstrated his leadership and his determination to provide answers for families of victims, through the work of coroners’ courts in legacy inquests. Sir Declan’s commitment to providing effective, efficient and independent coronial investigations won the respect and trust of countless families and the wider community in Northern Ireland. I am confident that he will take forward the work of the ICRIR with the same determination and commitment. The Government believe that once the commission is established there should be one process for investigating the past that is available equally to all those—I repeat, all those—who have lost loved ones, providing parity to all families, victims and survivors, while allowing other organisations to focus on contemporary issues.

While the coronial process has proved more effective than other mechanisms in providing information, accountability and acknowledgement to some families, including in some very high-profile cases, it is undeniably a resource-intensive process that can tackle only a small number of Troubles-related cases when compared with the many families who still wait for similar outcomes. The commission seeks to provide this, and it is worth reminding noble Lords that the commission will have easier access. The noble Baroness and I disagree here, but it will have easier access to more information than coronial inquests, through the obligation of full disclosure from relevant authorities, as outlined in Clause 5. This is particularly relevant to information that is national security sensitive. The commission will also have comparable powers to compel witnesses, and only on the basis of evidence will be able to make findings public via a final report, in a manner similar to an inquest.

The Government are confident that the legislation provides the chief commissioner with all the requisite tools to fulfil the commission’s functions fully and effectively. Indeed, it is fair to say that any chief commissioner, given their senior status within the judiciary, will be very cognisant of the legal obligations on all public authorities, including the commission, to meet the requirements of the ECHR.

--- Later in debate ---

As the noble and right reverend Lord, Lord Eames, knows, I made clear at Second Reading that this is challenging legislation—it has been challenging for me from the outset—but my commitment has always been to try to bring forward amendments that will improve it, putting it in a better state to go back to the House of Commons. That commitment will continue through to Report. On that note, I request that the noble Lord, Lord Browne, withdraw his amendment.

[Baroness O'Loan (CB)]

Before the Minister sits down, will there be any process by which complainant compensation or damages can be awarded after Clause 39 comes into effect, or will anybody who was injured or whose loved one was killed have no right of action at all and no route to compensation? Is this the end of the road for any right to compensation in Northern Ireland?

[Lord Caine (Con)]

As the noble Baroness is aware, claims that were filed before the introduction of the Bill last year will be allowed to continue, but there will be a cut-off thereafter. As she is also aware, other avenues are available for compensation which Parliament has introduced in recent years, such as payments for those who were injured and so on in the Troubles.

--- Later in debate ---

Academic research can provide not just a record of those events but a valuable analysis of how life amidst death occurred in the gay community. I sincerely hope that the Minister will see the justice in this amendment and make it one of the NIO’s promised additions on Report.

[Baroness O’Loan (CB)]

My Lords, this part of the Bill provides for history and memorialisation. It is about creating as true and honest an account as possible—one which has integrity—of what happened during our tortured, troubled past.

This is hugely sensitive. I hear what the noble Baroness, Lady Hoey, has said. All I will add is that, given the fact that the eyes of the whole community will be on those who are attempting to deal with these matters, it is vital that there is equity and fairness for all.

I fully support Amendment 172 from the noble Lord, Lord Dodds, in particular. It is right that no memorialisation activities glorify the commission or preparation of Troubles-related offences. We see at regular intervals events from different sections of the community, not just the republican community, which glorify individuals who contributed to atrocities and occasions that caused immense pain to so many of us, but particularly to those whose loved ones died or were permanently maimed in the attack being celebrated. Such events cause great pain; they can reignite the terrors and agony of the post-traumatic stress disorder suffered by so many as a consequence of these events. There is no justification whatever for the glorification of terrorism.

[Lord Weir of Ballyholme (DUP)]

I rise to support the amendments tabled in my name and the names of the noble Lord, Lord Dodds, and others, but also to give a broad welcome to this group in its entirety—notwithstanding some of the major concerns that have been expressed by ourselves and others from across the Chamber about the overall contents of the Bill. From that point of view, no amendments can make the Bill itself acceptable. Nevertheless, actions that we can take to deal with the issue of memorialisation have a level of importance.

Memorialisation can be a force potentially for good, but we also need to be aware that it can also be a major force for further problems and further evil. If done correctly, memorialisation can be beneficial in helping to remember innocent victims and, one hopes, helping towards a level of reconciliation. If we get the conditions right, that can be something of benefit to society and, potentially, to some families. But there is a real danger that memorialisation can be got wrong, which is the thrust of the amendments that we have proposed. It is about trying to provide a level of consistency.

As in previous groups of amendments, we are talking about the real danger of a glorification of terrorism, which must be prevented—certainly from anybody who seeks to benefit from this legislation. It is also the case that, if memorialisation is used as a back door to glorify or justify terrorism, it would be deeply damaging to society. It is not simply a question of rubbing salt in the wounds of the innocent victims and their families—although, if there were no other consideration, that would be a reason why Amendment 172 needed to be proposed and supported completely. But, as the noble Lord, Lord Dodds, indicated, it goes beyond simply dealing with the legacy of the past; it is about the implications for the future and the present day.

We have a generation growing up who did not experience the Troubles but who are clearly susceptible to the message that there was no alternative to violence in the past and that terrorism could be justified today and into the future. That is not simply an academic concern or one that might be moot. We have seen dissident organisations sucking in those young people to be directly involved in terrorism. That is the real danger for the future. Let us send out by this legislation, or at least through these amendments that we are putting forward, a very clear and unambiguous statement: there was always an alternative to violence. That is why, throughout the entire history of the Troubles, there was never a majority in either community for violence; it was opposed by the ordinary people throughout, and it was a minority on both the loyalist and republican sides who engaged in that terrorism and the wickedness and pain that it caused. It is critical that we send out the clear message that there was no justification for terrorism and that there was always a democratic alternative.

Allied to that, we cannot be ambiguous about those who went out to perpetrate the evil of terrorism, from whatever side they came, and those who were the innocent victims. Therefore, it is right that we draw this distinction, which is in line with some changes that the Government have made in other spheres. That is why Amendment 173 is also critical.

It is also the case—and why I welcome the amendments of the noble Lords, Lord Godson and Lord Bew, and the noble Baroness, Lady Hoey—that, overall, it is critical that memorialisation is approached with academic rigour and diversity, and a balanced approach that provides a fair and accurate summary of what happened. Again, if this is a one-sided process or one that in some way gives some level of light to those who would argue for violence in the past, it will do irreparable harm. Therefore, the academic approach that needs to be taken is critical.

I have a good deal of sympathy for the amendment of the noble Lord, Lord Godson, on an overall tone in regard to the Troubles. One thing that has struck me as a former Education Minister is that, unfortunately, at times, we see the ignorance of history. We see young people who simply do not know what happened. It is therefore important that we educate people in a neutral and fair way. There is no doubt that there are contested opinions and views as regards Northern Ireland but there cannot be contested facts. That is why we need to approach this with a level of academic rigour, and that is why I welcome the amendments.

Finally, there is an iterative process to be done, particularly with victims’ families, regarding memorialisation. It may well be that, as part of that process, there is the gathering of an oral history of the stories of the Troubles. It is important that people are able to do that through organisations with a good track record of fairness and balance, and organisations which we can trust. I declare an interest as a member of the Linen Hall Library, which for many years has taken a wide range of views and worked with all parties on reflecting the troubles in a fair and historic manner. It is a role that the library and others can play. We need to make sure that that is not one-sided or biased in any way, and in particular that we draw a clear-cut distinction between, on the one side, the vast majority of people in Northern Ireland who simply wanted to get on with their lives and the victims, and, on the other side, the perpetrators.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Baroness O'Loan Excerpts

Committee stage
Wednesday 29th March 2023 Lords Chamber

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, anyone who lived through the years of Northern Ireland’s violent past will understand that we want to save the present generation and generations to come from such an awful fate. Practically every week I meet a family that still feels the hurt and endures the scars of the past, whether it be the widow who still grieves or the little boy or girl who has had to be raised without a father because their father was brutally murdered.

In light of the serious, severe threat for the future that has now been announced by the Secretary of State, we need to be very careful. If folks are glorifying acts of terrorism, young people can easily get sucked into this and think that it is just a bit of a thrill. The lives of those who get involved will be scarred. I am speaking about those who are actually involved in acts of terrorism, because their lives, their conscience, will never be the same again. Quite a number of them cannot live with their conscience and quite a number have done themselves to death.

The glorification of murder cannot be accepted. It is very sad when the leader of Sinn Féin in Northern Ireland excuses the years of murder and mayhem that the Province experienced, stating that there was no alternative. Ministers in the past have rightly said that there always was an alternative, and that was the pathway of democracy. But the reason Michelle O’Neill says this is that they are rewriting history. They want to excuse and cover up the bloodthirsty past that many of them have.

I am fearful that this is the mindset that, even today, political leaders in Sinn Féin engender in the hearts of their young people. From their earliest days, they have ingrained in their minds a deep hatred of Britishness and those who desire to remain British. When I was growing up in Northern Ireland, people could live together. They could have completely different political outlooks but nevertheless lived within one community. They lived and let live.

History reminds us that there is a small step from holding that hatred in your heart to its expression in acts of murder and brutality. It is disgusting that over recent months we have seen an increasing number of incidents where young nationalists and republicans chant “Up the Ra!”, whether it be at Gaelic matches, in bars or at west Belfast community events, glorifying some of the vilest past atrocities that many of us lived through.

Skulking behind a hedge in the darkness and gunning down a member of the security forces during the Troubles was not an act of bravery. Neither was it courageous to set up your workmate, who fed you from his lunchbox, only to plant a bomb under his van at work, as happened in West Tyrone to a young man I knew very well. In Nan Rices Bar in Newry, social media displays crowds of young people singing this republican propaganda. Can anyone imagine what the innocent victims of terrorism feel when they hear this laughter and singing commemorating some of the vilest atrocities in our Province? It opens up deep wounds that only those who have experienced it will understand.

There is nothing to be proud of in acts of terror of any community. We must therefore do everything within our power to ensure that terrorists are taken off the backs of the people of the Province and that the Government never again permit through appeasement, as they have in the past, terrorists to get a grip of the community. I wholeheartedly support the amendments in my noble friend’s name.

[Baroness O'Loan (CB)]

My Lords, these amendments relate to Clause 18 and immunity from prosecution. Those provisions are profoundly flawed, as was stated just two weeks ago by the Committee of Ministers of the Council of Europe, which condemned the immunity provisions.

This group of amendments is described as relating to glorification. They seek to ensure that a person seeking to avail themselves of the immunity provisions that we have discussed, as the noble Lord, Lord Dodds, said, is not engaged in activity which precludes reconciliation. For that reason, I support all the amendments from the noble Lord. We have seen a whole range of activity which undermines attempts at reconciliation on both sides of the community and activity referring to past atrocities and glorifying those involved. The noble Lord gave a very graphic example in South Down.

I think also of the murals, in particular one in north Belfast that I regard almost with terror; it depicts two hooded gunmen who say, “Prepared for peace, ready for war”. It is a declaration of war and has stayed there regardless of all the attempts at promoting reconciliation. Many of these murals have been painted over, but some very deliberately have not. The problem is that there is nothing to be glorified in shootings, bombings, torture or exile. We all know that what results from those is pain, trauma and terror that sometimes lasts a lifetime.

I have worked with people who were at some of those incidents, where gunmen arrived to shoot somebody in a workman’s hut, or something like that, and 20 or 30 years on they still live in terror of those who came, because they did not get shot dead and others did. So I do support those amendments.

I have put my name to Amendment 167 in the name of the noble Lord, Lord Murphy, because that seeks to prevent individuals who have been granted immunity from profiting from their conduct, in relation to the offence for which they might be granted immunity, through empowering the Secretary of State to make regulations to prohibit such activity.

I have put my name also to Amendment 177, in the name of the noble Lord, Lord Dodds, which creates a new offence of glorifying terrorism. I think it could be quite difficult to prosecute and it may need a little fine-tuning. Perhaps the noble and right reverend Lord, Lord Eames, has indicated how we should approach this, namely by accepting the purpose of the amendment and agreeing on that.

For the moment, the immunity provisions themselves have been roundly condemned, nationally and internationally; there is no merit in them. I hope that, ultimately, your Lordships will reject not only immunity provisions but the Bill also.

[Lord Weir of Ballyholme (DUP)]

My Lords, in terms of this group of amendments, I think most of us would be of the view that we do not regard the Bill itself as being acceptable, so this is not an attempt to turn something that is unacceptable into being acceptable, but there is, at least, a duty on us to try to make what improvements we can.

We do not agree with concept of immunity, but it is undoubtedly the case that, if there is some provision for immunity, it has to be on the strictest conditions. Therefore, provisions that are contained within these amendments, which rule it out in circumstances where somebody is preventing reconciliation or glorifying terrorism, is a step in the right direction. There is deep hurt caused to victims of terrorism and their families whenever they see those who have been engaged with terrorism glorifying it. I think this is not the intention of the Bill, but there is a danger that, if the Bill were to go through unamended, it could inadvertently facilitate these “terror tours” or “terror talks”, and unfortunately almost act as encouragement, because those who have previously been involved in those activities will feel they have a level of carte blanche to do that. It is important we do not see a rewriting of history.

It is also the case that the glorification of terrorism per se is wrong. It does not matter whether it is a glorification of republican or loyalist terrorism, or terrorism from another part of the world; it is deeply wrong. As others have said, this is not simply about the past; it is about the future also, and it is deeply concerning that at times we are seeing the casualisation of the celebration of terrorism, and the embracing of it, particularly by a generation who never experienced it.

I will give two recent examples which are not hearsay; one of them is on social media. Shortly after the Omagh shooting, police moved in to make arrests and they arrested a young man who was not even born at the time of the Good Friday agreement. Somebody videoed that occasion, when some of the neighbours were coming out and applauding the person as they were being arrested. That is deeply worrying. On another occasion very recently, a friend of mine sent me a screenshot of a product that is available not on some niche website or from a paramilitary-linked group, but from a mainstream, UK-wide online shopping facility. It was a card you could buy for £3.50. It had a picture of someone in paramilitary uniform, wearing a balaclava and a beret, and had the phrase “Tiocfaidh Ár Lá” on it. Underneath it said, “Happy Mother’s Day”, which is quite chilling. And that is the problem. We are, unfortunately, reaching a point where there is a normalisation of the glorification of terrorism, so I believe that these are important steps to take and I hope that the Committee can unite around these amendments.

--- Later in debate ---

[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.

Omagh Bombing

Baroness O'Loan Excerpts

Thursday 9th February 2023 Lords Chamber

[Baroness Suttie (LD)]

My Lords, I too am grateful for the opportunity to discuss the Northern Ireland Secretary’s Statement from last week and I very much echo and agree with the points made by the noble Baroness, Lady Smith of Basildon.

The decision to hold the inquiry is welcome. It is the right decision, and the Secretary of State for Northern Ireland should be commended for it. He listened, and he changed his mind. He has given the families and community in Omagh the hope that they will now learn the truth. As Michael Gallagher, whose son Aiden was murdered on that day, said:

“This is not a case of deflecting the blame from those who are responsible—that was the criminal terrorists who planned, prepared and delivered this bomb into Omagh. What we’re looking at is the failings of the people that are there to protect us.”


The murder of 29 people, including two unborn children—twins—happening as it did just months after the signing of the Good Friday/Belfast agreement in 1998 was a truly appalling and barbaric act of an unprecedented scale throughout the Troubles. The devastation to the community and the impact that it has had on the victims and their families, as well as the 220 people who were injured, is almost unimaginable. It is a credit to the peace process that the terrorists did not succeed and it was not derailed.

The Secretary of State said in his Statement,

“the inquiry will allow us to meet our article 2 procedural obligations under the European convention on human rights”.

That is also to be welcomed.

Will the Minister say what he expects to be the timetable now for the announcement of the chair of the inquiry and the publication of the terms of reference? How will he undertake to keep Parliament informed? Like the noble Baroness, Lady Smith, I am slightly surprised by the different type of approach to this inquiry from that of the legacy Bill. Will the Minister say a little more about how he imagines this very different process will fit in with the proposals in the current legacy Bill?

The families of the victims and the injured have already waited nearly 25 years. It will, at times, be a difficult and painful process, but as Michael Gallagher has said,

“If we don’t have this process, for the rest of our lives we’re going to be wondering ‘what if’.”

[Baroness O'Loan (CB)]

My Lords—

[The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)]

I am sure the noble Baroness will have her opportunity shortly. I am grateful to the noble Baronesses, Lady Smith of Basildon and Lady Suttie, for their broad support and welcome for my right honourable friend the Secretary of State for Northern Ireland’s announcement.

Before I respond in detail, I would like to place on the record my own heartfelt sympathy for the victims of the terrible bombing that took place on 15 August 1998. As the noble Baroness reminded us, it was only a few short months after all the hope and optimism that was generated by the signing of the Belfast/Good Friday agreement. Like many noble Lords across the House, I can vividly remember where I was and what I was doing on that terrible Saturday when I heard the news.

I add my own tribute to the Omagh families’ Omagh Support and Self Help Group, and to other groups, such as Families Moving On, for the work that they have done over the years. In particular, I join those who have paid tribute to Michael Gallagher for his campaigning over the years, not just for a public inquiry, but in respect of the civil case which took place over a number of years and identified four culprits behind this dreadful atrocity.

I concur very much with what the noble Baroness, Lady Smith of Basildon, said about never forgetting who actually carried out this atrocity. I can do no better in this respect than to quote the judge, Mr Justice Horner, in his ruling on this in the Gallagher court case. He said:

“It is important not to forget that the responsibility for this terrible atrocity, the worst in the last 60 years of Northern Ireland’s history, lies with those malevolent and evil dissident republicans who, with complete disregard for human life, planned, planted and detonated a huge bomb among shoppers in Omagh’s town centre on a Saturday afternoon in August.”


I concur with every one of those words.

I am grateful again to the noble Baroness for her kind words about the Secretary of State. He met the families last week in person, before the Statement, in order to tell them of his decision. As we noted, the families obviously very much welcomed what the Government have announced.

Both noble Baronesses talked about the legacy Bill and the difference in approach. The House will be aware that the legacy Bill itself will deal with Troubles-related cases between 1 January 1966 and 10 April 1998, when the Belfast agreement was reached, so this case is by definition outside the scope of the legislation. Were it to be put in scope, it would have a consequence, which I do not think would be particularly welcomed across the House, of enabling people who were involved in this and subsequent dissident republican activities—people who rejected the Belfast agreement and the peace process—to apply for conditional immunity in certain cases. As I say, I do not think the House would welcome that.

However, I do not entirely accept that there is some kind of total contrast between what we are doing here and what we are doing on legacy. Of course, not every case can have a public inquiry, but the legacy Bill seeks to establish structures, which will enable families to access greater information about what happened to their loved ones in the Troubles, in much the same way that a public inquiry will try to establish the facts of what happened in this particular case. So I do not necessarily accept the premise of the noble Baronesses’ comments.

On their other questions about the chair and terms of reference, we will of course work as quickly as we can to identify the person to chair the inquiry and finalise the terms of reference. I should point out to noble Lords who are not necessarily familiar with the process that the inquiry will be targeted in scope and will investigate the four grounds which the court held could give rise to plausible arguments that there was a real prospect of preventing the Omagh bomb. These relate to the handling and sharing of intelligence; the use of cell phone analysis; whether there was advance knowledge or reasonable means of knowledge of the bomb; and whether disruption operations could or should have been mounted, which may have helped to prevent the tragedy. Those will be the areas on which the inquiry will focus. As I say, we will set this up as quickly as possible. I cannot give a definitive timetable, but I will undertake to keep Parliament informed in the usual ways.

--- Later in debate ---

[Baroness O’Loan (CB)]

My Lords, I declare an interest: I carried out an investigation into matters relating to the Omagh bomb and published a report in December 2001. I very much welcome the announcement of this inquiry and pay tribute to Michael Gallagher and all those who have fought for knowledge of what happened on that terrible day. When I published my report—I remind the House that I had only the powers to investigate the police—I said:

“The persons responsible for the Omagh bombing are the terrorists who planned and executed the atrocity. Nothing contained in this report should detract from that clear and unequivocal fact.”


I repeat that today. I express my sympathy to all those affected by the bomb, because, as noble Lords have said, this is going to be a very traumatic and difficult experience for them, because it will raise again the things that they have suffered for so long.

I shall just ask the Minister a couple of questions. Can he assure the House, because of the questions that have been asked in the media, that this will be an inquiry under the Inquiries Act 2005? Can he assure the House that the terms of reference will be sufficiently wide and, in particular, that they will encompass all intelligence and information received prior to the Omagh bomb which related to Omagh, and that it will not refer only to—I quote from the Statement—“knowledge of the bomb”? I ask this in light of the fact that detailed information was received on 4 August 1998 by the police that there would be an attack on police in Omagh on 15 August, the day on which the bomb exploded. It is vital that all intelligence is capable of being considered by this inquiry.

Finally, I join noble colleagues in asking the Minister whether—in light of this recognition of the Government’s legal obligations and the fact that those legal obligations did not terminate as a consequence of the Good Friday agreement, nor was it ever the intention of those who entered into the Good Friday agreement that it would effectively act as a statute of limitations in any way—he can confirm that His Majesty’s Government will now withdraw the Northern Ireland Troubles Bill. It is not compliant with those legal obligations.

[Lord Caine (Con)]

It is with some trepidation that I rise to answer the questions of the noble Baroness, given her previous role as a distinguished Police Ombudsman for Northern Ireland: she probably knows as much about this case as any other living person. In answer to her questions, of course I can confirm that the inquiry will take place under the Inquiries Act 2005. The inquiry will have full powers of compulsion and access to all the relevant material. Naturally, we expect as much of the inquiry as possible to be conducted in public, but as she will understand, some of the material will be of such a national security-sensitive status that it will not be possible in all circumstances.

On the terms of reference, I refer to the targeted nature of the inquiry in respect of those areas where the judge has held that we have not fully discharged our obligations. The final terms of reference are, of course, a matter to be decided between His Majesty’s Government and the individual who chairs the inquiry, but I very much take on board the noble Baroness’s comments about the Northern Ireland legacy Bill, which has been debated extensively in your Lordships’ House.