Northern Ireland Troubles (Legacy and Reconciliation) Bill

Baroness O'Loan Excerpts

Committee stage
Tuesday 31st January 2023 Lords Chamber

Moved by

[Baroness O'Loan]

37: Clause 5, page 4, line 37, leave out “reasonably”
Member’s explanatory statement
This amendment and the new Clause after Clause 5 in the name of Baroness O’Loan give the ICRIR the right to require information, documents and other material from all the organisations listed in the definition of “relevant authority”, other than the Security Service, the Secret Intelligence Service and GCHQ, without justification of the reasonableness of any request.

[Baroness O'Loan (CB)]

My Lords, the amendments in this group deal with the requirements in Clause 5 to provide full disclosure of information to the ICRIR. They are intended to assist the ICRIR in its work and are quite simple, but slightly technical.

In normal circumstances, the Police Ombudsman and many other public policing authorities with criminal investigation powers are entitled to require information to be supplied by relevant authorities such as those in Clause 54, where a whole list of police organisations is given. The ones from which there is no power to require information are the Security Service, the Secret Intelligence Service and GCHQ. Clause 5 as drafted imposes a requirement that any request for information must be reasonable. That is an unnecessary restriction, as the purposes for which the information will be required are the statutory functions of investigation. If the essential amendments providing for investigation, review and immunity are accepted, this information, which will be sought by the ICRIR, will be that required for the purposes of investigation, review and immunity.

The effect of my amendments is to take that composite group in Clause 54 of relevant authorities and divide it into two: relevant authorities and special relevant authorities. Relevant authorities will have to supply information. There will be one category of relevant authority, which will be under the obligation to provide information as provided for in Clause 5, as amended by Amendments 37 and 39. That will include all the authorities listed in Clause 54 except the Secret Intelligence Service, the Security Service and GCHQ. I suggest that the House remove them from the list by accepting Amendment 191. Through Amendment 197, a new category of “Special relevant authority” would be created into which the Security Service, the Secret Intelligence Service and GCHQ would be inserted.

Imposing a requirement of reasonableness on the process of making requests for information, which can be very complicated, imposes an unnecessary hurdle. When I was Police Ombudsman, I had complete power to require information, and it was delivered. There were a few early hiccups in the process, but everyone settled into it. When I was doing the non-statutory review of the Daniel Morgan inquiry for the Home Secretary, I had no power to require information and we had endless arguments about which information should and should not be required. Those arguments cost a lot of money and took a lot of time.

If the Bill is passed as drafted, there would need to be a process for determining reasonableness and a determination as to who other than a court might determine what is reasonable. This would lead to disputes and the matter ultimately would end up in court, particularly if a relevant authority is reluctant to disclose information about, for example, the handling of an informant or the way in which physical evidence was managed. To impose the restriction of a requirement of reasonableness, which will be assessed, on the ICRIR, would impact on the perception and reality of its independence and powers. For this reason, Amendment 37 simply excludes “reasonably” from Clause 5(1). That would make it consistent with current law as it applies, for example, to the Police Ombudsman and the police. It would apply to all the authorities listed as relevant authorities, as I said, except the Security Service, the Secret Intelligence Service and GCHQ.

Amendment 39 adds to the list of those required to provide reasonable assistance to facilitate the effective use of information, documents and other material. When one gets information from policing organisations, the way in which it has previously been handled can often be very helpful, particularly if it is on a digitised account such as the HOLMES investigation accounts. If there is a requirement, as there is in Clause 5, to provide reasonable assistance, the policing organisation supplying the material would also have to provide assistance to access those databases, et cetera.

The reason I suggest that other organisations should be included under Amendment 39 is that some of the criminal offences the ICRIR will investigate or review relate to events such as the bombings in Hyde Park, Manchester, London, et cetera, which were not investigated by the PSNI but by other police forces. The clause as it stands requires only the PSNI and the Police Ombudsman to provide assistance, but I suggest to your Lordships that all the other policing organisations should be under a similar obligation. Without this amendment, those providing information as relevant authorities would not be under the same obligation as, say, the PSNI to assist in the effective use of the information. Amendment 39 is therefore designed to assist the ICRIR in conducting its investigations.

Because we have to deal with GCHQ, the Security Service and the Secret Intelligence Service, Amendment 197 suggests a new category of “special relevant authority” in which those three organisations would sit. They would be required to supply information if the request by the ICRIR was reasonable. I would prefer that they had to provide it without a reasonableness requirement, but I understand that noble Lords might be reluctant to impose an obligation on the security services to provide information. This would enable those agencies to protect national security, which is their function. To give effect to that new special category of three organisations for which there would be a reasonableness requirement, a new clause, Clause 5A, would be required. That is provided by Amendment 40.

Amendment 185 is very simple: it would include the director-general of the NCA in the list of chief officers of police for the purposes of the Bill, to enable them to assist the ICRIR. It may be that the National Crime Agency will not have material relevant to the ICRIR, but it is distinctly possible that it will. It is important that it be empowered to provide information.

Finally, I support the amendment in the name of the noble Baroness, Lady Smith, which relates to the power of the Secretary of State to make regulations under Clause 31 about biometric materials and raises the level of procedure required for such regulations to the affirmative procedure. I beg to move.

[Baroness Smith of Newnham (LD)]

My Lords, I will speak to Amendment 145 in my name, and I also support the amendments in the name of the noble Baroness, Lady O’Loan. Amendment 145 is quite different from most of the other amendments put forward to the Bill. I am aware that it might sound a bit geeky, but much legislation brought forward by His Majesty’s Government seems to include sweeping powers for Secretaries of State in whichever department. This Bill does not have quite as many egregious cases of Henry VIII clauses but with Clause 31, about retention of biometric material, there is some concern that the Secretary of State can make regulations for which there would be very little scrutiny and by which, potentially, individuals’ rights are interfered with.

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

My Lords, I am grateful to those noble Lords who have put forward these amendments. In responding, I am conscious of the experience in these matters of the noble Baroness, Lady O’Loan, both in her role as police ombudsman and in the subsequent investigations and reviews that she has carried out.

The noble Baroness’s Amendments 37, 40, 191 and 197 aim to redefine the disclosure requirements of certain relevant authorities by, as she pointed out, creating a new tier of “special relevant authority”. This would mean that any authorities left in the “relevant authority” category, such as the ombudsman or the chief constable of the PSNI, would be required to disclose all material to the ICRIR regardless of whether or not it is reasonably required, while certain other agencies, such as MI5 and MI6—the Secret Intelligence Service—would be able to rely on the provisions as drafted, being required to provide information only where reasonably required.

The Government’s view is that the amendments are unnecessary, as we are clear that the disclosure provisions in the Bill already go further than ever before in statute in terms of putting relevant authorities under a duty to disclose information if it is reasonably required by the commission for its investigations.

[Baroness O’Loan (CB)]

I thank the Minister for giving way; I know that it is late. I just want to let him know that, as police ombudsman, I had a power to require information. There was no requirement of reasonableness in the requests; clearly, the requests were reasonable, but there was no requirement for them to be so. This is a new requirement.

[Lord Caine (Con)]

I totally accept what the noble Baroness says about her experience as police ombudsman; I think that it has been less straightforward in the case of information from other bodies over the years. That is why the Government have placed this obligation on bodies to disclose information, which goes further than ever before. Indeed, the provisions directly mirror those included in the draft legislation to give effect to the 2014 Stormont House agreement, so they have been around for some time, certainly in draft form.

The noble Baroness will be aware that “reasonableness” is not a term created or policed by the Government. It is widely used and understood; it is included in other legislation, such as the Finance Act 2008; and it has a specific purpose in terms of creating obligations on others to provide information. The law requires all public bodies to exercise their powers reasonably and proportionately. It is open to authorities to challenge an assessment of reasonableness, of course, but our expectation is that the ICRIR would request the information only if it were reasonably required for the purposes of discharging its functions, so any challenge would be likely to fail if the commission followed this practice. Ultimately, it will be for the courts to decide whether the commission has acted reasonably in any case.

On Amendments 39 and 185, which would add to the list of individuals who may be required to assist the commission in handling information that they have disclosed under Clause 5, the Government are confident that all relevant individuals are already listed in the legislation. However, I am happy to take that away and look at the clause again.

As the noble Baroness, Lady Smith of Newnham, pointed out, Amendment 145 in her name—I welcome her to our debates—would require regulations regarding the retention of biometric material under Clause 31 to be made by the affirmative rather than the negative procedure. I assure her that the Government take their international obligations in this area—and in other areas, I hasten to add—very seriously. We are confident that our approach to the retention of legacy biometrics, if I can use that term, is compliant with the relevant European Court of Human Rights rulings in this area.

To remain compliant at all times, the commission will need to carry out regular, periodic reviews of the data that it retains for the purposes of its investigations, as set out in Clause 31(2)(a). This will of necessity involve the commission making decisions regarding the deletion or retention of certain data based on strict proportionality criteria that we will outline in secondary legislation. We feel that the negative procedure will provide an appropriate level of scrutiny for a power such as this, that is very limited in scope in the sense that it exists solely to ensure ECHR compliance in this area through the appropriate management of biometric material retained by the commission. The regulation-making power ensures that the commission retains only a limited category of biometric material in prescribed circumstances, for a limited purpose and a limited amount of time, after which it will fall for deletion.

The power allows only relevant biometrics to be retained and used by the commission to ensure there can be effective Article 2 investigations, while also ensuring compatibility with the provisions of Article 8 relating to the right to a private life. It also allows for biometric data no longer needed by the commission to be deleted, again to ensure ECHR compliance. So, in our view the power is proportionate and does not, for example, enable the commission to take new biometric data from individuals, but if the noble Baroness still has concerns about this, again, I am very happy to sit down with her. On that basis, I urge her to withdraw the amendment.

[Baroness O’Loan (CB)]

I beg leave to withdraw the amendment.

Amendment 37 withdrawn.

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I contend that these amendments significantly strengthen the Bill. They provide clear incentives to co-operate with the commission and clear sanctions for those who do not co-operate and might subsequently be convicted. I beg to move.

[Baroness O'Loan (CB)]

My Lords, with respect, I am not sure why these measures are described as incentives. Certainly, the victims and survivors whom I met yesterday did not regard them in any way as incentives, and it does not seem to me or them that those who hold information that may be of use to the ICRIR and do not provide it in accordance with the notice under Clause 14 are likely to be incentivised by an increase in the possible fine from £1,000 to £5,000. I will simply say that I do not see this as providing any incentive to someone to provide information if they are reluctant to do so. Bearing in mind that the information may reveal that the person or organisation they represent may have done something that relates to, or constitutes part of, a Troubles-related offence, that reputational issue, with all its potential consequential damage, could be a compelling reason not to disclose information. I think the changes made by Amendments 168 to 170 are not of great significance because they seem to apply to a very limited subset of people.

[Lord Bruce of Bennachie (LD)]

I want briefly to ask the Minister how he feels people should be incentivised and whether this is the case in the Bill. The reality, as we have heard in previous debates, is that in many cases the consequences of not co-operating are nothing. If you do not co-operate, nothing happens. If the risk of co-operating is increased from £1,000 to £5,000, it is neither here nor there. Would the Minister explain why making that change would significantly affect the number of people who co-operate? Does he accept that victims are somewhat concerned that there is a desire to incentivise certain people to come forward and not others? It will do nothing to ensure that they get the information, knowledge or understanding that they need.

I know that the Minister is trying to reassure people that he is balancing the needs of victims with the concerns of veterans. The danger is that he ends up satisfying neither and alienating both. To what extent does he feel that this contributes constructively to the effective working of the commission?

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[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I am very pleased to have been a signatory to these amendments and to assist the noble Baroness, Lady Suttie, in dealing with the needs of victims. The need for these amendments became very apparent last night, when we were talking to the victims associated with SEFF. As we have already explained, many of them experienced undue suffering and terrible hardship as a result of the summary execution of their loved ones, whether they were members of the security forces or ordinary members of the community.

The victims’ commissioner and his commission are absolutely correct in their assertion, based on feedback from members of the Victims and Survivors Forum and victims themselves: it is important that they can tell their story and the impact of that immediate and summary loss on them, their families and their wider community. That is vitally important and should be permitted. I make a plea to the Minister to give due consideration to these amendments. Maybe the Government would consider coming back on Report and inserting them in the Bill.

[Baroness O'Loan (CB)]

My Lords, I support the amendments tabled by the noble Baronesses, Lady Suttie and Lady Ritchie, and the noble Lord, Lord Murphy, which provide for the inclusion of victim impact assessments, which are now part of normal criminal justice processes, in the consideration of a final report on a review or an investigation.

I cannot help noticing that the word “victims” appears but twice in the Bill. One is in Clause 49, which states that the designated persons are to be appointed by the Secretary of State under Clause 50 if he

“is satisfied that the person would make a significant contribution to the performance of the functions which are imposed by sections 43, 44 and 46”,

in Part 4, “Memorialising the Troubles”. Clause 50 states:

“When deciding whether to designate a person, the Secretary of State must have regard to whether the person is supported by different communities in Northern Ireland and will act independently of the influence of any other persons.”


Questions must arise here. Do they have to be supported by different communities? What are different communities? Are we back to sectarian headcounts? The legislation provides that:

“The designated persons must use their best endeavours to establish an advisory forum consisting of other persons”—


simply “use their best endeavours”, not just establish it—including

“persons who represent the views of victims and survivors of events and conduct forming part of the Troubles”.

The only other reference to victims appears in paragraph 5 of Schedule 11, which relates to the situation in which a person asks the Secretary of State for information about any application which may have been made for release under the sentences Act by a person who is serving a sentence of imprisonment for at least five years or for life. Two fairly insignificant changes are made to the information to be provided to the victim about the convicted person. In a Bill that the Government have presented as being designed to bring reconciliation to Northern Ireland, these minor but very important amendments would do something to promote the interests of victims.

[Lord Eames (CB)]

My Lords, I too want to give some support to this amendment because it touches on what we were crying out for in earlier debates, which is a small but significant voice for victims. As I tried to say this afternoon, these are real people who would perceive in some ways the legislation as it stands as being tilted against the victimhood that they had suffered. I want to see some more thought given to what that means, but I support the pith and substance of what is involved.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Baroness O'Loan Excerpts

Committee stage
Tuesday 31st January 2023 Lords Chamber

[Baroness O'Loan (CB)]

My Lords, this group of amendments refers to the independence of the commission to be created. Throughout the Bill, there are restrictions on that independence in the form of not only the Secretary of State’s control over the number of commissioners, and in this instance the appointment of commissioners, and the budget, but many of the other requirements made of the commission and the various powers given to the Secretary of State.

I find some of these powers astonishing. They include the power to give guidance to the ICRIR about how to exercise its functions so as not to prejudice national security, put a life at risk or act in any way which might prejudice actual or prospective criminal proceedings. This exercises the minds of senior investigating officers, chief officers, prosecutors and judges on a very regular basis—decisions have to be and are made. Why do the Government think that the ICRIR will not be capable of making such decisions?

There is also a power to identify sensitive information to be given to the commission, the chief constable of the PSNI, chief officers of police forces in Northern Ireland, the Police Ombudsman, the director-general of the Independent Office for Police Conduct, Northern Ireland departments and Scottish Ministers. Managing and identifying sensitive information is done routinely by people such as chief constables. It is difficult to understand why the Secretary of State should be required to make regulations and give guidance in these situations. To those looking in from the outside, from whom I have heard quite extensively, it appears that this may enable the Secretary of State to control the work of the ICRIR.

The Secretary of State has a further extraordinary range of powers throughout the Bill, which we will come to later. Combined, they introduce a unique group of powers regarding the operations of the ICRIR. All the powers conferred on the Secretary of State to enable him to regulate, manage, control or otherwise dictate the proceedings of the ICRIR rest on the appointment of the commissioners. Amendments 12, 13 and 16, to which I have put my name, and Amendments 24 to 30, all in the name of the noble Lord, Lord Browne, seek to address a profoundly important control given to the Secretary of State in Schedule 1 by giving the appointment-making function for the commissioners to the Judicial Appointments Commission rather than to the Secretary of State.

The Judicial Appointments Commission comprises nine people, five of whom are judges and four of whom are not members of the legal profession at present. The requirement in the schedule on the Secretary of State to consult the relevant senior judge and such other persons as he or she considers appropriate will be indicative to many of those in Northern Ireland who want to see a truly independent commission of a total lack of independence. Noble Lords will know that perception is as important as reality in cases such as this. If the commission is to gain any credibility, it must above all be seen to be independent.

It seems to me that, were the House to agree the noble Lord’s amendments—which he has just said he will withdraw but which I may well retable on Report because they are so important—the Minister’s Amendments 14 and 15 would be unnecessary. In any event, they would not meet the requirement for an independent appointment. The appointment of a person who has gained experience outside the UK, as provided for in Amendment 14, may be an asset, but it could occur in any case, and it seems to me superfluous.

The one thing that emerges from a study of this Bill is that the ICRIR will not be enabled to be independent by its provisions. Rather, it is clear that so much power is reserved to the Secretary of State that it cannot be independent. There is no legislative consent Motion in support of this Bill and no support for it. We are talking about the past and future of the people of Northern Ireland. Independence is critical for this commission.

[Baroness Ritchie of Downpatrick (Lab)]

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

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

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

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

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

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


and that the ICRIR

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

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

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

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When I drew attention to this in our earlier debate, I was told that newspaper headlines are often misleading, but the Times law report is not the Daily Star. I went back and checked it and, to be blunt, that is an accurate account of what the Supreme Court ruled. That is a major change in the environment since the—

[Baroness O'Loan (CB)]

I thank my noble friend for giving way. I think the Supreme Court decided that the particular applicants in that case were not entitled to get their cases reinvestigated—or investigated. They did not say that there was no obligation on the state to provide investigation.

[Lord Bew (CB)]

I thank my noble friend for that intervention. I think the implications of the Supreme Court ruling are somewhat broader. I was going to say that, at some point or other, the Government will have to refer to this major change, possibly with the Attorney-General, because there is controversy about what it really means. We cannot finish the Bill as though something of that importance has not happened, because it clearly bears on the issues at stake in the Bill and on the international obligations or otherwise of the United Kingdom Government.

Like my previous amendments, my Amendment 36 is designed, essentially, to get the best possible practice in play for the commission. It calls for the ICRIR to publish

“guidelines containing best practice on the rights of those likely to be named in any reports”.

I think the Minister will have a reasonable reply. We already know that there is a process of Maxwellisation. During the long period of the Iraq report, many will have felt frustrated about the amount of time devoted to Maxwellisation but, none the less, people who are challenged in their conduct have every right to take time to give a decent reply.

I am sure that that will be the Minister’s reply—that we already have rights in law. But things have moved on since then. It seems to me that the best practice now is something that we might call Maxwellisation-plus. I again draw attention to the way in which the Green Paper to the Commons Treasury Committee sets out proceedings and an approach to the rights of those involved under questioning in the ICRIR, which the Government should adopt. They should follow that Green Paper.

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[Lord Cormack (Con)]

The noble Lord says that we cannot reject a Bill, but of course we can. It should be done very rarely. The Parliament Acts of 1911 and 1949 make provision for it. There have been Bills rejected during my time in Parliament—only three in the 53 years that I have been here. The War Crimes Bill was rejected by the House of Lords. Mrs Thatcher pursued it, and it went on to the statute book, but I think I am right in saying that it has never been used in this country. Similar Bills have hardly been used elsewhere; they have little application. However, we have the opportunity to say, “Sorry, up with this we will not put”. To say that is entirely consistent with our constitutional position. It is not something that I would ever likely advocate, but it is something I would contemplate—and I think we have to contemplate it in this case. I do not like saying that, because I like to think I am a good constitutionalist. My belief is that this House has a duty to ask the other place to think again; it has an opportunity, if something is irremediable, to say, “Sorry, we won’t have this”.

Of course, if the Bill is then presented in an exactly similar form a year later in the next Session of Parliament, it will go through. However, I remind your Lordships that we are more than half way through this Parliament, and it probably would not apply in this case. That makes our responsibility all the greater before we do such a thing. Clearly, the obvious answer is to pause the Bill after Committee and to not have a Report stage—that is the tidiest and most constitutional way forward. I say to my noble friend—while, again, reiterating my admiration for his determination, sincerity, knowledge and commitment; all those words apply to him—that the Bill really should not pass.

[Baroness O'Loan (CB)]

I will add to the words of the noble Lord, Lord Cormack, about the options open to the House at present. One of those would be to support an amendment such as the one I tabled at the beginning of Committee, and to decide that the Bill should not proceed until such time as a legislative consent Motion has been obtained from the Northern Ireland Assembly.

With the noble Lord, Lord Murphy, and the noble Baronesses, Lady Ritchie and Lady Suttie, I have indicated that Clause 18 on immunity should not stand part of the Bill. I agree that we have seen limited measures for immunity in Northern Ireland. We saw, for example, the legislative provisions which allowed the information to be supplied for the recovery of the remains of the disappeared, in which situation the information provided could not be used for a prosecution. We also saw the decommissioning of arms, the information gathered as a consequence of which could not be used for a prosecution. But we have not seen the like of this Bill before, and I do not know of any other democracy which has agreed to the like of this Bill before.

We are faced with a situation in which the obligations of the United Kingdom to provide processes for criminal investigation and prosecution, for civil action and for inquests are being removed, and in which immunity is being provided for perpetrators for their previous criminal offences. That is not compliant with our domestic and international legal obligations, which require the provision of processes to enable the investigation and prosecution of offences. For example, we have very clear obligations as high-contracting parties to the European Convention on Human Rights. Under Section 1, we are committed to securing that everyone in the jurisdiction has all the rights and freedoms provided for in the convention. Those rights were incorporated into UK law by the Human Rights Act 1998, although their application, as domestic rights, has been limited somewhat by the jurisprudence of the courts.

In addition, under the Good Friday agreement of 1998, the participants of the multiparty agreement dedicated themselves

“to the achievement of reconciliation, tolerance, and mutual trust, and to the protection and vindication of the human rights of all.”

They stated:

“The tragedies of the past have left a deep and profoundly regrettable legacy of suffering. We must never forget those who have died or been injured, and their families. But we can best honour them through a fresh start, in which we firmly dedicate ourselves to the achievement of reconciliation, tolerance, and mutual trust, and to the protection and vindication of the human rights of all.”


They agreed that

“neither the Assembly nor public bodies can infringe”

the European Convention on Human Rights, and that there should be

“a coherent and cooperative criminal justice system, which conforms with human rights norms.”

However, the Bill does not provide that.

In England and Wales, people seem to be under the illusion that paramilitaries no longer have areas of Northern Ireland under their control—that is not the case. Paramilitaries, both loyalist and republican, are still at work, and they still exercise, on occasion, brutal control in their areas. Since 1998, when the Good Friday agreement was signed, 155 people have been killed, and there have been 1,660 bombing incidents and 2,700 shooting incidents. Over 1,500 people have been arrested under the Terrorism Act, and 235 people have been charged with terrorist offences in the last 10 years alone. Terrorism is alive and well, although not to the scale of previous atrocities.

The mere existence of those paramilitaries means that people who may have information to give which might lead to the arrest and conviction of people for Troubles-related events will, very often, fear to do so, lest they themselves be attacked. The consequence is that it seems that many of Northern Ireland’s terrorists have, by their very existence, created for themselves de facto immunity from prosecution. Now the Government are preparing to enable immunity for those few who may come to fear that prosecution might become a reality.

It is said that the Bill owes its genesis to the statement in the Conservative Party manifesto:

“We will continue to seek better ways of dealing with legacy issues that provide better outcomes for victims and survivors and do more to give veterans the protections they deserve.”


Victims across the UK have stated that the Bill is not victim-centred and that it does not provide better outcomes for victims; rather, it deconstructs the existing legal framework, creating a web of protections for perpetrators. There can be no doubt that the Bill is intended to give veterans protection, but most veterans who served in Northern Ireland did not commit criminal offences—and certainly not the most serious Troubles-related offences created by the Bill.

I have mentioned before that it is said that the state kept records while the terrorists did not. However, the state forces did not keep records of instructions not to investigate, not to transmit information or intelligence to investigators, not to arrest or to interview suspects, to lose evidence, or to contaminate physical evidence so that it would be inadmissible. Those things emerge only through painstaking investigation, usually because there are gaps in the chain of evidence, and sometimes people come forward to explain that they tried to do something but were stopped. Those processes enabled murderers to continue their nefarious business, sometimes as agents of the state, despite the best-intentioned processes, such as the passing of legislation by Parliament designed to regulate and to help in this area.

For the record, it is not the case that state actors, such as soldiers and agents, are more likely to be prosecuted than terrorists—and, of course, some state agents were terrorists. According to a House of Commons Library research briefing paper of May 2022, four soldiers have been convicted and sentenced following the Troubles, and one case is currently before the courts. Some 300,000 soldiers served under Operation Banner, which continued until 2007. Since 2011, 26 prosecutions have been brought by the Public Prosecution Service, 21 of which involved republicans and loyalists.

The provisions of the Bill suggest that the commission, and on very limited occasions, to some extent, the criminal law, is supposed to fill the vacuum left by the removal of criminal investigation processes, civil actions to recover damages for harms caused and inquests. Until now, we have had processes which are compliant with all our legal and moral obligations. If this Bill is passed, we will no longer have such processes.

The Government have stated that their aim is to get to those people who need it information which might help them and to achieve reconciliation. The Bill, unfortunately, has only one provision for reconciliation, and it relates to memorialisation. The response of the political parties, the victims’ groups, the NIHRC, the Equality Commission and all the international organisations, including the UN High Commissioner for Human Rights, do not indicate any confidence that the immunity provisions will actually achieve what the Government are aiming for. The general response that I have encountered in Northern Ireland, and among those British victims to whom I have spoken, is: “Why would they tell what they know? They don’t need to. They just need to sit it out”.

There is a view that immunity clauses and the provisions about early release et cetera create a perpetrator-focused regime, under which perpetrators will be able, should they wish to do so, to provide information which really will not be capable of challenge, and through which, should they avail of it, they will be free from all fear of prosecution. Clause 18 will enable an offender to provide a statement to secure immunity for prosecution for murder and other serious crimes which comprises limited information; information which has already been supplied in other circumstances, and even information which is already in the public domain. The information must be true, but there is nothing which says that it must be complete. Will the Minister tell the House whether there is a requirement that P should tell the whole truth?

The provisions in Clause 18(11) state that the commission can grant immunity for not only all identified offences but

“all serious or connected Troubles-related offences which are within a description determined”

by the commission. Will the Minister tell us what this means? I have read it several times and am trying to work out what those offences might be.

[Lord Caine (Con)]

Sorry, I missed that.

[Baroness O'Loan (CB)]

It is complicated. Clause 18 provides that the commission can grant immunity for not only all identified offences but

“all serious or connected Troubles-related offences which are within a description determined”

by the ICRIR. Will the Minister tell us what that means and what types of offences are envisaged by these provisions?

Clause 18 does not provide that the commission must investigate whether there is information available which may undermine or assist the verification of P’s account. The commission will have to make the decision on the basis of the information supplied by P, the information already in its possession and P’s statement that to the best of his knowledge and belief it is true.

Clause 18 is fundamentally flawed. It is in contravention of our legal and moral obligations. It is actually offensive to those who are expected to believe that the perpetrator has fulfilled his obligation to provide complete information. My experience as Police Ombudsman for Northern Ireland, and even as chair of the Daniel Morgan Independent Panel during my service on the independent steering group for Kenova, has shown that perpetrators very often do not tell the whole truth even when they are swearing that that is what they are doing. Their information is frequently disproved by other available information when the necessary investigation occurs.

One of the most questionable things about the Bill is that, under Clause 18 and government Amendment 85, and the new schedule to follow Schedule 4, a perpetrator of Troubles-related sexual offences, which includes attempted sexual offences, cannot be granted immunity but immunity will be available for murder, and for things such as dropping concrete blocks on people’s limbs, shooting them in the knee so that they will live their lives with constant pain and disability, or other forms of torture. Paramilitaries were known for torturing people to confess to that which they had not done so as to justify their subsequent murder, with bodies left mutilated and naked on country roads as a warning to others, or even concealed for ever so that they became disappeared. These are the kind of offences for which the Government intend to grant immunity from prosecution in return for information. The big question is whether the commission would ever really be in a position to know that the whole truth, or even a semblance of the truth, had been provided, even if the proposed amendments are accepted. For this reason, Clause 18 should not form part of the Bill.

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[Lord Caine (Con)]

I appreciate what the noble Lord has said. I pay tribute to the work of Jon Boutcher, and I hope to see him to discuss it very shortly, but we have yet to see whether prosecutions can take place. There are cases before the DPP which have been sitting there for some time, so we have yet to see any outcome; and we await his first interim report, so we should perhaps exert a bit of caution.

Turning to the noble Lord’s Amendment 112, as I have said, conditional immunity will be granted to individuals who provide an account true to the best of their knowledge and belief. In determining whether that is the case, the immunity request panel, which is chaired by the chief commissioner, who will be a senior judge, retired or serving, will of course exercise professional judgment in that respect. In our view, the noble Lord’s amendment would give the immunity request panel too broad a discretion to refuse to grant immunity, even where the statutory conditions are met, and we do not consider that appropriate. The existence of such discretion would lead to uncertainty over the terms of the process for those who might come forward with information, potentially discouraging their co-operation. Additionally, the application of such a broad discretion may undermine the perception of fairness which is critical to wider public trust.

However, the Government are tabling amendments that will enhance the robustness of the immunity process. My Amendment 139 will create a new offence for people who knowingly or recklessly make a false statement to the commission, including as part of an application for immunity. People convicted of this offence could go to prison for up to two years and face an unlimited fine. I hope noble Lords will agree that that is a significant strengthening of this legislation. Amendment 43 makes an important consequential change to Clause 7, ensuring that a false statement provided to the commission can be used in evidence against the person who provided it if prosecuted for the new offence. Government Amendment 140 proposes that a person convicted of this offence in relation to a request for immunity will automatically lose that immunity and therefore, under provisions in part 2 of the new schedule to be inserted by Amendment 85, will not be able to apply for immunity for those offences again. I hope noble Lords will agree that someone who has been proven to have deliberately or recklessly provided a false account to the commission, potentially frustrating the objective of families to know the truth about what happened to their loved ones, should not retain any immunity granted in relation to that false account.

I am instinctively sympathetic to Amendment 124 from the noble Lord, Lord Hain, which would attach certain licence conditions to somebody granted immunity. I am also sympathetic to the intent behind Amendment 149, in the name of my noble friend Lord Dodds of Duncairn, which would widen the circumstances in which immunity could be revoked. I am very happy to commit to considering these further and sitting down with the noble Lords to discuss them between Committee and Report. I am very sympathetic to the intent behind both those amendments.

Regrettably, I am not able to say the same to the noble Baroness, Lady O’Loan, in respect of Amendment 131, which seeks to remove subsections (7) and (8) of Clause 21, which will allow the Secretary of State to publish general guidance relating to decisions on immunity. Without going over some of the same ground that we discussed in considering the previous group, the Government are very confident that the commission will retain full operational independence in making decisions, including decisions on immunity, and the Secretary of State will have absolutely no say whatever in any specific individual immunity application. The intention of the general guidance the Secretary of State may issue, and to which the commission must have regard, is to help the commission apply the statutory criteria in a consistent and transparent manner when taking decisions. It will be important that we engage with a number of experts, including prosecutors, when developing this guidance so that it is effective and workable. On the previous group, I referred to the fact that there are examples of this in other legislation, including the Police (Northern Ireland) Act 1998, which set up the Police Ombudsman for Northern Ireland.

Turning to the question of whether Clause 18 should stand part of the Bill, I would gently take issue here. The noble Lord, Lord Murphy of Torfaen, said that without this clause there would not be an argument. Unfortunately, one of the reasons we are here is that there was no equivalent Clause 18 in the report compiled by the noble and right reverend Lord, Lord Eames, and Denis Bradley in 2009. There was no such clause in the Stormont House agreement, but there was no consensus around any of those attempts to deal with the legacy of the past. Yes, I agree that this clause is extremely challenging, and I have said on the record that it is extremely challenging for me, but to say that without it, everything would be perfect is probably mistaken.

[Baroness O’Loan (CB)]

I thank the Minister for giving way. I would just like to ask him: does he think that Clause 18 is compliant with all our international legal obligations?

[Lord Caine (Con)]

I dealt with this to some extent last week, but I will go on to deal with it later in the course of my remarks; I hope the noble Baroness will bear with me. I was reiterating that I completely accept that this is the most challenging part of the legislation—I have been completely up front and honest; it is challenging for me, too. However, as I said a few moments ago, the difficult reality is that the prospect of successful prosecutions is vanishingly small, and a single-minded focus on them offers the prospect of achieving very little for families and for wider society.

Again, in response to some of the comments about pausing, pulling or repealing the Bill—which is, I believe, the official position of the Opposition—the difficulty is that, if we go back to square one, it will take at least another five years to come up with something. The reality is that no Government of either colour will go anywhere near this anytime soon, if at all. Maybe I am wrong and the Opposition have a fully fleshed-out and workable model—but the noble Baroness is shaking her head, which indicates that they do not. If they are starting from scratch, I can tell her that the process is extremely laborious and will take a long time.

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[Lord Caine (Con)]

It is fairly straightforward. The commission will ask whatever questions it believes to be appropriate. On the basis of the answers it is given, it will have to make its decisions regarding immunity. If a person is untruthful or unwilling to give information, that will of course be taken into account.

I am delighted to say that I am sympathetic to the proposed Amendment 130 from the Baroness, Lady O’Loan, to Clause 21(4), which is designed to ensure that the commission has to take steps to seek information beyond that which it holds already for the purposes of testing an account. I am very much open to exploring further with her how this issue might be appropriately addressed, when we move to the next stage of the legislation,

I wish to focus very quickly on some other amendments that I have tabled. Under Clause 23, the commissioner for investigations currently has the power to refer for possible prosecution conduct causing death or serious injury which is the subject of the review under consideration. My Amendment 137 clarifies that the commissioner is also able to refer conduct that constitutes “connected offences” within the meaning of the Bill. These are offences which do not themselves meet the Bill’s definition of “serious offence” but are nevertheless factually connected to such offences, for example because they form part of the same incident. This would allow, for example, the commission to refer to prosecutors evidence of sexual offences connected to a death or serious injury, if it came to light during the investigation.

Noble Lords will have noticed my intention to oppose the proposition that Clause 19 should stand part of the Bill. To reassure, this is simply because I propose to move provisions made by Clause 19 to the new schedule introduced by Amendment 85, titled “No immunity in certain circumstances”. This will bring together these provisions and those relating to the revocation of immunity mentioned before. Moving Clause 19—

[Baroness O’Loan (CB)]

I thank the Minister for giving way. Very briefly, his Amendment 137 refers to “other harmful conduct” that is not Troubles-related conduct serious enough to justify being dealt with under the Bill. But the Bill says that no prosecutions can be brought except in respect of Troubles-related conduct, does it not?

[Lord Caine (Con)]

I will need to read the clause through again and come back to the noble Baroness on that, if I may. As I was just saying, moving Clause 19 into the schedule is simply intended to make this legislation easier to follow.

The ability of commission officers to use their powers of arrest and detention as part of its investigations is important. That includes cases where a suspect, having not obtained immunity, needs to be detained for the purposes of questioning. That would happen as part of the case-building process in a criminal investigation before a file was referred to prosecutors. I have tabled Amendment 151 to remove any doubt as to the circumstances in which criminal enforcement action can be taken where immunity has not been granted, and where a referral to a prosecutor has not yet been made. In addition to allowing for the exercise of powers of arrest and detention, the amendment also ensures that the commission would be able to charge a person with an offence before a referral to a prosecutor had been made. The amendment also clarifies that those with existing powers of detention—for example, the police—may continue to use those powers where they are being exercised in connection with the commission’s functions.

Amendments 150 and 153 are related minor and technical amendments. We touched on the importance of the chief commissioner’s actions over the course of a review leading up to a report, as per Amendment 36. Under Clause 15, the chief commissioner is required to share the draft report with the person who requested the review, with victims, where applicable, and with any relevant family members as defined in the Bill. These persons will have the right to make representations, which must be considered before a report is finalised. Separately, the chief commissioner must share the draft report with any living individual subject to significant criticism in the draft report, who also has the right to make representations that must be considered before a report is finalised.

We have discussed today the referral of conduct to prosecutors. Amendments 114 and 135 specifically would expect the commissioner for investigations to refer conduct to prosecutors in cases where the threshold is met, unless there is a good reason not to do so. If the commission were under an obligation to refer all relevant conduct to prosecutors that it considered an offence, there is a risk this would place an unreasonable operational burden on it—a concern that was also relevant to the Stormont House agreement. I will try to get through this as quickly as I can.

I turn to post-Troubles sentencing, and specifically Amendment 149 in the name of my noble friend Lord Dodds of Duncairn. All offences, including terrorist-type offences, committed after 10 April 1998 will remain the investigative responsibility of the relevant police force. I recognise the intent behind this amendment but we have already tabled an amendment which could mean that people lose immunity if they are convicted of knowingly or wilfully misleading the commission. I am content to keep engaging with noble Lords and others on possible instances where we can strengthen the incentives to engage with the body and ensure adequate and proportionate penalties for those who do not.

The noble Baroness, Lady Suttie, and my noble friend Lord Weir of Ballyholme have probed the meaning of “general immunity from prosecution” in Clause 18. To be clear, as I have said immunity will be granted only in respect of conduct disclosed by an individual as part of their application. “General immunity from prosecution” does not mean immunity for all Troubles-related conduct in which individuals may have been involved but which has not been disclosed. Clause 18(9) makes it clear that, where immunity from prosecution is framed as a grant of general immunity, it must be framed by reference to the particular conduct that the person has disclosed. In other words, it will not confer immunity in relation to other conduct. The noble Baroness is looking at me slightly quizzically; I am happy to go through this again with her.

The noble Lord, Lord Browne of Ladyton, proposed an amendment to add an additional condition that must be met before immunity is granted: that the commission is satisfied that the grant of immunity would be compatible with convention rights, comply with the constitutional principle of the rule of law and satisfy the interests of justice. In response, the Government remain confident that the legislation is legally robust and complies with our obligations, so it is not necessary to make specific reference in the Bill to the compatibility of convention rights in respect of the commission discharging specific functions. It is the Government’s view that this is already covered.

The noble Lord referred in one of his questions to cases being initiated by the state or being initiated by families. While the commission will carry out reviews where requested to do so by a family or where a person has requested immunity, I assure the noble Lord that the Secretary of State and other public officials, such as the Attorney-General in Northern Ireland, will be able to request a review where this is necessary to ensure an effective and efficient investigation for the purposes of discharging the UK’s international obligations. Those powers are there.

As I have explained before, the commission, as a public authority, will be under a duty under the Human Rights Act to act compatibly with convention rights when exercising its functions and making any of its decisions. Working together with public prosecutors and making use of its full police powers, it will also be able to institute criminal proceedings against suspected offenders in cases where conditional immunity has not been granted.

In response to the noble Baroness, who I know disagrees with me on this, I set out at length last week that the Government’s view is that 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 through the recovery of information for the benefit of families and wider communities, in part by means of the conditional immunity process, that the new body will be enabled to contribute to moving society forward in Northern Ireland. It is therefore consistent with the Government’s stated objective to provide more information to victims and survivors in a timely and efficient manner, which would not happen if we engaged in a single-minded focus simply on criminal justice outcomes.

I have gone way over time. I have tried to answer as many points as possible, but if there are any that I have missed then I am happy to sit down with noble Lords following Committee. On that basis, I urge noble Lords not to press their amendments, as I will not press mine.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Baroness O'Loan Excerpts

Committee stage
Tuesday 24th January 2023 Lords Chamber

Moved by

[Baroness O'Loan]

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

[Baroness O'Loan (CB)]

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

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

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

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

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[Lord Caine (Con)]

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

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

[Baroness O'Loan (CB)]

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

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

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

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

Amendment to the Motion withdrawn.

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[Lord Hogan-Howe (CB)]

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

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

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

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

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

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

[Baroness O’Loan (CB)]

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

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

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

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

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

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

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

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

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

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

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

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

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[Baroness O’Loan (CB)]

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

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

[Baroness Smith of Basildon (Lab)]

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

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

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

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

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Moved by

[Baroness O'Loan]

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

[Baroness O'Loan (CB)]

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

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

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

[Baroness O'Loan (CB)]

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

[Lord Hain (Lab)]

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

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

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

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

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

[Baroness O’Loan (CB)]

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

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

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

Amendment 2 withdrawn.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Baroness O'Loan Excerpts

Committee stage
Tuesday 24th January 2023 Lords Chamber

Moved by

[Baroness O’Loan]

5: Clause 2, page 3, line 18, at end insert “unless an investigation is one to which subsections (2) and (3) of section 17 apply”
Member’s explanatory statement
This amendment removes the duty to produce a report on the finding of any investigation until the matter under investigation has been dealt with by the Prosecutor.

[Baroness O’Loan (CB)]

My Lords, these amendments relate to the reporting functions of the commission that will be established by the Bill. Noble Lords will know that the process of reporting and producing a report for public consumption is enormously important because it complies with the requirements to be open and transparent about the work that has been done.

At the same time, those who report must rightly engage in a complex but necessary fairness process—a process in which one has to consider all one’s obligations to all the various actors mentioned in the report. I did so most recently in June 2021, when I reported on my work for the Home Secretary in relation to the Metropolitan Police Service’s handling of the case of Daniel Morgan. The fairness process at the end of that report lasted months and months, because it was so important to ensure that letters went to everyone who might be mentioned and even very faintly criticised in the report, to receive their responses and then to produce a report that reflected precisely what we wanted to say. I am very much aware, as I am sure noble Lords are, of the difficulties attached to this reporting process.

These amendments apply to the reporting process following review or investigation because of the other amendments I have tabled. Amendment 5 in my name removes the requirement to produce a final report on an investigation if that investigation has been subject to a referral to the prosecutor under Clause 23 and the prosecutor has yet to make a prosecutorial decision or a prosecution has not occurred. This is an amendment to Clause 2, so it is the first time the Bill is introducing the functions of the commission, and one of those functions is to report. The amendment says simply that you do not have to do so if there has been a referral to the prosecutor and it is not resolved. I want to put that in the Bill to prevent any expectation that there is an obligation to report in these circumstances. I think that expectation would exist but for this amendment.

Similarly, Amendment 89 to Clause 15 would mean that the Chief Commissioner is under no obligation to produce a final report or to provide the specified information where a matter has been reported to the prosecutor. Obviously, where an investigation has occurred it is not possible to provide the information referred to in Clause 15 until all prosecutorial possibilities have been exhausted. This is to protect the integrity of any investigation that has occurred.

Amendment 98 refers to the requirement in the Bill to provide a copy of a whole report to somebody who is criticised in it. I may have misread or misunderstood the impact of this clause, but I think the Bill requires the commission to send the report to anybody who has been criticised in it. I am suggesting an amendment that would introduce a process similar to that of the Salmon or Maxwellisation principles and would require only information that relates to the criticism of the individual in question to be shared with that individual, not the whole report. Were the whole report to be provided, it would give the individual who has been criticised access to information about other criticisms and other information that it may not be appropriate to include before the final editing of the report. For example, the commissioner might find that his criticisms were not justified when he gets a response from those to whom the material has been provided. Clause 15(11) may be attempting to deal with this problem, but it is not clear what is meant by that subsection. I do not know whether the Minister will be able to enlighten us as to the extent of that subsection and how it applies. I hope that the amendment as suggested would limit the obligation on the commissioner while still satisfying the requirements of fairness for those who are criticised and still enabling him or her ultimately to produce the necessary report.

Clause 15 provides that if there is a criticism of the criticism, the commissioner will exclude the material. In Amendment 100 I suggest that it is very helpful, when one is producing the material, if one can modify the material that one has sent out, rather than exclude it in its entirety. There may well be issues that still need to be raised for the purposes of completeness and accountability in reporting. I think it would give the commissioner much more flexibility and allow the production of a fair but more complete report.

Clause 24(4) provides that the commission may not request information from a victim or survivor of the Troubles or their family member. Clause 24(5) modifies that slightly by providing that information can be sought if they hold a public office or something like that. To enhance the confidence of victims in the proposed process, my Amendment 141 provides a right for such a person to provide information. I think that is important in caring for victims.

Amendment 142 is a probing amendment, simply to consider the circumstances in which confidential information should be available to the ICRIR for the purposes of historical reports. For example, I have seen multiple situations in which information held by organisations such as the PSNI, the RUC or the Metropolitan Police has been marked confidential despite the fact that, even by government marking standards, it does not warrant such classification. When you are confronted with information marked confidential, you can challenge the classification and get it downgraded so that it does not attract the protections that confidential information attracts, but I think it is important for the Minister to consider whether it is possible to arrange for situations in which information that may have been marked confidential might be made available for historical purposes.

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[Lord Caine (Con)]

A lot of it is determined by the Barnett formula, but, in large part, it is not just security but the additional needs that Northern Ireland has. I have no issue with the additional spending: it is right that, as part of the United Kingdom, Northern Ireland benefits from the same levels of service as every other part, and that should continue. But the additional spending is not just down to security, by any means.

[Baroness O'Loan (CB)]

Is the Minister sure that Northern Ireland benefits from the same level of services as the rest of the United Kingdom? Our waiting lists are very much longer than any in the health service here—far more people are waiting for appointments there than here—and we have major difficulties in our education system because of funding matters. So the service is not the same.

[Lord Caine (Con)]

I completely appreciate the point made by the noble Baroness. To some extent, the problems there are exacerbated by the lack of a devolved Administration between 2017 and 2020: we are still living with the consequences of there being no decision-making during that period, when Sinn Féin pulled down the institutions. Of course, we are also suffering from the lack of a functioning Executive at the moment. I suspect that we might return to some of these issues when we debate the Northern Ireland Budget Bill in your Lordships’ House in two or three weeks’ time. However, I accept that the situation, particularly regarding health and waiting lists, is considerably worse in Northern Ireland, but we stand by the principle that Northern Ireland, and all parts of the United Kingdom, should benefit from the same levels of service.

I turn to the noble Baroness’s amendments on the historical record. If families do not request an investigation into the death or serious injury of their loved one, or their cases are not referred to the commission by the Secretary of State in circumstances where he has deemed it appropriate to meet international obligations, the researchers responsible for compiling the record will use only publicly available information and will not contact families. This is of the utmost importance because we know that, for perfectly understandable reasons, a number of families in Northern Ireland would rather not resurrect the past, and we entirely respect that. Nothing in the current drafting prevents individuals voluntarily providing information to the commission, but, again, I am happy to continue to talk to noble Lords on this matter. On that basis, I urge the noble Baroness to withdraw her amendment.

[Baroness O'Loan (CB)]

My Lords, once again, I thank noble Lords for their contributions on these issues. Amendment 136, on the need for funding for prosecutions, covers a very complex and sensitive issue. The reality is that a case takes an average of three years—probably longer now in Northern Ireland—to come to prosecution once it is presented to the prosecutors. With the various stages of the trial process, it lasts a number of years. If the commission has a lifespan of five years for the receipt of information, with a consequential period for investigation, which may well exceed a year for each one, there will be difficult problems in trying to process cases. Quite simply, we are trying to do too much in a limited amount of time with limited resources. That is why I am afraid I have to challenge the Minister again on his assertion that the money must come from the current Northern Ireland budget—it quite simply is not there. I hope that the Minister will recognise the need to resource both investigations and prosecution.

If we set up a commission to deal with the past and it is capable of doing what Jon Boutcher has done in Kenova, which I am serving on, and the cases go into a black hole called the prosecution service and nothing comes out the other end, conclusions will be drawn about what Parliament’s intentions were in setting up this legacy process—and they will not be positive conclusions. I just reiterate that issue.

The noble Baroness, Lady Smith of Newnham, made very valuable and thoughtful contributions. In relation to the question of whether it is possible to give a criticised individual a partial report, rather than a whole one, report writers have to take into account the privacy rights of the individuals who appear in the report, whether they are named or might be recognised by the role that they hold. There is that need to try to balance the need to ensure accountability and transparency with the proper protection of the privacy rights of others. My amendments seek to make the process of preparing those reports more compliant with all the requirements of fairness.

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[Lord Caine (Con)]

Absolutely not—nothing here is intended to dilute the investigatory powers of the commission at all.

[Baroness O’Loan (CB)]

My Lords, I acknowledge the need for many of these government amendments, which clarify technical and procedural points. They do not go to the heart of the objections to the Bill that have been articulated tonight.

Some amendments, such as Amendments 6 and 7, are very minor. They provide for the provision of annual work plans, six-monthly reporting and things like that. It seems slightly heavy that you have to produce those as a matter of good governance—the auditors will require that. There is a requirement to provide annual reports and things like that, but, as regards putting that in statute, I do not object to it, but it is kind of heavy-handed. It goes again to the suspicion that the Secretary of State wants to be very involved in the work plans, how they are doing it and how they intend to distribute the resources that are available to them within the commission. I simply draw that to the Minister’s attention.

I am not sure about the meaning of Amendment 35. I know it is not the Minister’s amendment, but can he say whether it is possible that it may have the effect of limiting the application of some of the provisions of the Bill and some of the amendments that we have discussed and will discuss? There are powers other than those commonly known as police powers which may apply. I do not expect the Minister to answer that tonight, but will just leave the thought with him.

It seems that Amendment 41 may limit the ability of the commissioner to be flexible in the use of his staff. Obviously, the commissioner will be making decisions about which staff are required to have police powers and which are not. Those who have police powers will be able to do things such as arresting, searching and seizing, et cetera, while those who do not will not, but they can accompany and assist. I am not sure—perhaps the Minister can clarify this at a later time—whether an officer can have a limited subset of police powers, as provided for in the legislation, and I am not sure what that would add. So Amendment 41 may in fact not be particularly helpful in ensuring the most economic and effective use of the resources available to the commissioner.

The Minister referred to my reservations about Amendment 183. That refers to the removal of the provision making the ICRIR a relevant authority under the Investigatory Powers Act 2016—which goes to the question that the noble Lord, Lord Hain, has just asked. As I understand it, as drafted, the Bill gave the commission the right to require the delivery of data. Information may or may not have been requested by a previous investigation. If it was requested, it should be available in the files of that previous investigation. However, we know that, in many cases, data which may have been available was not requested by previous investigations for a variety of reasons, and therefore it will not be available to the commission unless the commission has the power to ask for it. The suggestion has been made—I thank the Minister for the discussions we had about this—that the holder of the data could voluntarily surrender it. That may or may not be correct, but my question is: this is actually a tool in the toolkit of a standard investigation, so why take it away?

[Baroness Smith of Basildon (Lab)]

I was expecting the noble Lord, Lord Bew, to speak on this group of amendments.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Baroness O'Loan Excerpts

2nd reading
Wednesday 23rd November 2022 Lords Chamber

[Baroness O’Loan (CB)]

My Lords, I acknowledge and applaud the integrity with which the Minister introduced the Bill, and the way he articulated the problems that exist. Given the range of amendments apparently to be introduced by the Government, though, it is difficult to understand why we are actually debating this difficult and challenging Bill.

In starting my words, I pay tribute to all those with whom I have worked over the years. For 25 years, in one way or another, I have been in this business of investigating and overlooking the Troubles. I pay tribute to the people who came to me, particularly when I was Police Ombudsman for Northern Ireland, because that took a lot of courage. I remember one mother who came to me and was terrified; she knew the name of the person who had murdered her young son but was too afraid to tell me his name. As she sat at my table, I ran through the names of IRA men whom I had identified as working in the area until she nodded. That seemed to open some sort of gate, which enabled her to talk to me.

I think of the victims, including the police victims: people such as Constable Colleen McMurray, Detective Sergeant Joseph Campbell and Lance Bombardier Stephen Restorick, the last soldier to die in Northern Ireland. I think of all the victims of all the shootings and bombings. The first I dealt with in some detail was Omagh, where 29 people and two unborn children died, which was really traumatic and went to the heart of what the Bill is about. One of the problems we have is that although most people who were in the security services and the forces in Northern Ireland served with great distinction and integrity, not all did. We have a significant problem in relation to many agents of the state. I think of people such as Stakeknife on the one side and those in the UVF on the other, who were engaged in terrible crimes.

Noble Lords have referred to the extent to which the Bill has been rejected by people, organisations, statutory organisations, former police officers and soldiers, including veterans who served honourably and have stated that criminals who served alongside them should be prosecuted. It has also been rejected by numerous independent and distinguished human rights lawyers and other experts, the UN committees, the European Commissioner for Human Rights and so on.

However, at the heart of this, as we have heard tonight, the legacy of the Troubles lives on in the hearts of all of us who have been affected by them. I include all those affected by the deaths which occurred here in Westminster; I think of Airey Neave and of all the bombs that there were here in England. They live in my heart for my lost baby, who died before he was born in a bomb explosion; they live in the dreadful and murderous sectarian attack on my son when I was police ombudsman, which left him with terrible injuries. There was an investigation but we always knew that it would go nowhere, because people were so afraid of the loyalist paramilitaries that nobody would come forward to give evidence.

That is the legacy and reality of life in Northern Ireland, and it lives on still. On Saturday night, I will go to a place called Oristown in County Meath, where they are trying to recover the bodies of the remaining disappeared. There were three of them: Columba McVeigh, who was 17, Joe Lynskey and Captain Robert Nairac. It lives on in all our hearts and all our souls.

I did a search to find out how these new provisions will promote reconciliation. The word “reconciliation” is used in the Bill on 168 occasions, some 167 of which are in the titles of the Bill and the Independent Commission for Reconciliation and Information Recovery. There is one other reference to “reconciliation”: Clause 44(4) provides for a study of memorialisations and requires that there must be consideration of

“how … memorialisation activities currently, or will in the future, promote reconciliation in Northern Ireland”.

That is the sole provision aimed at reconciliation. Can the Minister explain whether the Government intend to amend the Bill to provide mechanisms by which they might promote reconciliation?

The Bill does four very important things, which are being articulated here. It terminates existing criminal investigations into Troubles deaths, including the Kenova investigations, with which I am involved. It provides for review in limited circumstances, which may lead to prosecution but is very unlikely to. It terminates civil actions from 17 May this year, and there will be no Troubles inquests after May 2023. I hope that the Government will not come back and tell us that they will allow it to be May 2024, which would be an insult to people in Northern Ireland. All inquests currently under way but that have not reached the stage of substantive hearing must be terminated by the coroner. The Bill also provides for conditional immunity for those involved in the Troubles, as we heard.

Earlier proposals included roles for the Northern Ireland Department of Justice and the Northern Ireland Policing Board, but the Bill makes no provision for any involvement of any of the devolved part of Northern Ireland. The Secretary of State is even responsible for making decisions about memorialisation projects. Does the Minister not agree that, like so much in the Bill, this should be a matter for the devolved Government rather than the Secretary of State?

The Bill makes the commission the only body that can examine legacy cases throughout the UK. As noble Lords have said, the structures will lack operational independence. I was pleased to hear the Minister say that there will be changes in how the Chief Commissioner will be appointed. However, the Bill provides for extensive involvement by the Secretary of State in operational matters, including giving guidance to a whole range of bodies, including the commission, about the exercise of its function; proposing cases of death or harmful conduct for review; determining resources—we all know that the way to render a new institution impotent is to limit its funding and powers, and there is scope for both here; determining applications for immunity; monitoring the work of the commission; and guarding access to information.

The Secretary of State can rule that information is

“protected international information … which … if disclosed generally might, in the opinion of the Secretary of State, damage international relations.”

The Constitution Committee observes that Clause 4(1) prohibits the commission doing anything that might “prejudice … national security”. There is no provision for the review of any national security claims made by the Secretary of State.

Clause 2 provides for the work of the commission. The language of Bills is normally very carefully chosen. As has been said, the need for proper investigations of Troubles-related deaths was previously acknowledged, and the language has changed in the Bill. The functions of the commission include the review of deaths and harmful conduct and the production of reports on the review of each death. Reviews are not investigations; they are conducted to help a senior investigating officer who is investigating a crime, or is proposing to investigate an unsolved crime, to detect that crime by identifying lines of inquiry. There is national best practice for how to do a review so that it is thorough, is conducted with integrity and objectivity, looks at all investigative opportunities and makes recommendations for further investigation. Reviews are there to assist investigation, not to substitute for it. They should result in further investigation, not just final reports. I do not believe that it is an accident that the word “review” has suddenly appeared in the Bill.

One of the requirements under Article 2 for investigating the crimes of the Troubles, especially those crimes in which a state agent or actor has been involved— although many served with honour, there were hundreds of these crimes—is that the investigation be independent. Taken together, the structures created by the Bill restrict and inhibit the operational independence of the commission. The right to independent investigation is guaranteed, not only through the convention on human rights but through the Good Friday agreement and, most recently, Article 2 of the protocol, which provides for no diminution of our human rights. Your Lordships have been debating with great interest the effect of Article 2 in the protocol debate.

International bodies and eminent experts do not accept that the structures created in this Bill will satisfy the UK’s international and legal obligations. The powers available to the commission do not even appear to include unfettered use of police powers—the powers of the Secretary of State seem to extend even to the use of those powers. This Bill does not provide the existing right of access to information held by state bodies. There is an obligation on state bodies only to provide information and documents that are “reasonably required”. As Police Ombudsman, I had a right to all information held by the PSNI. In other cases, I had to seek information from state agencies such as the MoD, MI5 and GCHQ. Sometimes they were helpful; on other occasions they were not. More recently, as a member of the international steering group for Operation Kenova—I have been there for nearly seven years—investigating the activities of the republican state agent known as “Stakeknife”, I have seen the difficulties experienced by this investigation, which was commissioned by the Police Service of Northern Ireland. It is not a new problem. The language of this Bill will make the work of information retrieval from the state much more difficult.

Under the Bill, in addition to his other powers, the Secretary of State gives guidance as to the identification of sensitive information. Sensitive information includes anything held by GCHQ, MI5, the MoD, the Army, the PSNI and any British police force. The Secretary of State can issue regulations on the holding and handling of that information. Those regulations may create criminal offences. The Constitution Committee has said that this provision is constitutionally unacceptable because criminal offences should be created in the Bill itself, not by negative resolution, where there is no provision for amendment. In addition, the holding and handling of such information can be regulated by the Secretary of State, and they can even provide for biometric information to be destroyed.

The decision as to reasonableness—the Bill refers to information that is “reasonably required”—will be made by the state agencies, not by the commission. In many cases, I am sure that the MoD, MI5 and GCHQ will decline to provide access to much of the information they have. They will say this is necessary because the material is secret, or its disclosure may put lives or methodologies at risk. I have seen material classified as secret which should not have been. I saw that most recently when I was investigating the Metropolitan Police. The European Court of Human Rights has found that determinations of national security threats must not be arbitrary and must contain sufficient safeguards to give the individual adequate protection against arbitrary interference. I have seen methodologies protected that are no longer relevant. It is most unlikely that the commissioner will get access to what they need for review, or even for investigation.

We must add to these difficulties and restrictions the fact that the commission must grant immunity to a person who has requested it, and who has given an account of their own conduct that formed part of the Troubles that was true to the best of their knowledge and belief. Immunity is not possible for Troubles-related sexual offences. Both the Delegated Powers Committee and the Constitution Committee have said that the power given to the Secretary of State to define sexual offences should be removed from the Bill. But what sort of regime prohibits immunity for sexual offences but grants immunity to murderers?

The Secretary of State can issue guidance on making a request for immunity or determining whether an immunity applicant’s conduct falls within the legislation and is criminal conduct, et cetera. The Delegated Powers Committee says that the statutory guidance should be subject to parliamentary procedure. The Constitution Committee suggests that your Lordships may wish to consider whether the guidance should be incorporated in the Bill. There is no requirement to inform victims or family members of a request for immunity or the outcome of that request. Victims, family members or interested persons cannot provide information to inform the commission’s immunity decisions. In many cases, the families of murder victims have gathered vast amounts of information about the murder of their loved one which they could provide to the commission, as they have in the past provided it to me, and which might demonstrate that the applicant has not told the whole truth about his or her own criminality.

The Government, in response to the Council of Europe’s Committee of Ministers, said that they would expect the commission to inform families and that

“information about the granting of immunity should also be included in the published family reports”.

The whole immunity process will be vested in secrecy. There will be no transparency and no accessible accountability for the decisions made.

We also know that accounts given to members of families by those who were involved in the murders of their loved ones are very often inaccurate and sometimes wrong. The harm caused to families by inaccurate information cannot be overstated. There is no penalty for an offender not telling what they really know, although this may change. Where there cannot be a prosecution of an individual because they have immunity, that will impact on the ability to prosecute others for that offence, just as there have been difficulties in prosecuting pursuant to the operation of the current arrangements for assisting offenders under the Serious Organised Crime and Police Act.

Even if the commissioner were to get access to information, to attempt to deal with the complications involving a request for immunity and to proceed to a review using police powers with a view to making a submission, there are very restrictive provisions as to the disclosure which may be made by the commission. In particular, paragraph 3 of Schedule 5 permits disclosure to a range of persons—the Director of Public Prosecutions, the Lord Advocate, a member of the police force, coroners, judges—but the Secretary of State must be notified. What is the purpose of notifying the Secretary of State? What is the Secretary of State going to do with the information? Why should case-sensitive information be disclosed in this way, rather than, for example, being dealt with under the normal rules for disclosure in prosecutions?

Paragraph 4 of Schedule 5 requires that proposed disclosure be notified to the Secretary of State, and he can then give consent for disclosure or withhold it if it would prejudice national security. Again, there is no clarity as to how this might impact on disclosure to the defence or, indeed, the prosecution in any criminal trial. What will be the impact of this provision? Can the Minister reassure the House that this will not have the potential to result in prohibition of the disclosure of material relevant to a prosecution? More importantly, what will the perception be of the victims?

These are not normal provisions. They build in delay. The Secretary of State has up to 60 days to make his first decision and 60 days to make his second decision, and that is for one piece of information. I can tell noble Lords that there are multiple pieces of sensitive information involved in any case. The power of the commissioner to submit a case for prosecution will be severely compromised by these provisions.

I have a few final points. The commission is charged to produce a historical record of the remaining deaths—those which it did not investigate. How will this record be created when there is no investigation? We already have that wonderful book, Lost Lives, which so many of us have used, which tells the story of every death of the Troubles. Will this process add anything to that work? Given that the commission’s work can be concluded or shut down

“if the Secretary of State is satisfied that the need … has ceased”,

the question must be, can the Minister confirm that the commission will be funded until its work is completed and that the work of the commission itself will not be terminated after five years? Cases will run on after the five years.

Our history is very complex. Somehow, a situation evolved in which the police, the Army and MI5, having successfully infiltrated terrorist organisations, lost their way. There grew a time when many of the agents of the state currently under investigation were allowed to carry on their involvement in terrorism to preserve them as agents. People died because of this, and it should not have happened. Even when they admitted their crimes to their handlers, they were just sent back on the street. As this emerged, as people began to realise that their loved ones had been murdered by people such as informants—agents of the state who had not been dealt with—there grew an ongoing sense of betrayal in both communities.

There were of course also cases in which members of the police and Army were involved in crime. I emphasise that I know that most officers served honourably. I dealt with so many of them in my time; I lectured them. I remember giving evidence to a Diplock court against an IRA man who had been gathering information against judges and police officers, with a view to a spectacular shooting. That was a difficult thing to do, but it had to be done.

All I want to do in my work on this Bill is to try and help noble Lords to ensure that it will provide justice and enable hope for the people who, like so many of our noble colleagues, have suffered so much through the Troubles.

--- Later in debate ---

[Lord Bew (CB)]

My Lords, I want to say some words in favour of this Bill. One might assume that we had a situation at present that was viable. I very much sympathise with the noble Baroness, Lady O’Loan, and others who have looked at the word “reconciliation” and said that it is tossed around in the Bill in a way that is not entirely convincing, to put it politely. I absolutely understand that, but the truth is that we have an entirely rancid situation in Northern Ireland. The continuation of lawfare is just a contributory to what is perfectly obvious to anybody who pays the most casual attention to public opinion in Northern Ireland: there is an increasing mutual contempt between the two communities. There is a reason why the Government are trying to introduce this Bill. I fully accept the point from the noble Lord, Lord McInnes, that in part it is to do with a manifesto commitment and the issue of veterans, but it is also to do with the fact that the status quo is simply not tolerable, and in our discussions I think we should acknowledge that.

I was very impressed by the introduction to the Bill from the noble Lord, Lord Caine, not just because of the careful and calibrated way in which he spoke and acknowledged the difficulty, even the anguished way he spoke, but also the precise way that he spoke. But he did not really have much effect on the broader tone of the debate. As the debate went on, we learnt that the Bill was obscene and again and again it was said that it was depriving people of hope.

The noble Lord, Lord Hain, talked about Pinochet’s Chile. Perhaps it is because I was at Cambridge with people who suffered under Pinochet, I thought that was a slight stretch. I accept that the noble Lord was a remarkably effective Secretary of State. He has made it clear tonight that he is on a journey and that he has now modified some of the positions he previously held on this matter in the light of his hopes for what might come from the Boutcher inquiry. I must say, as someone who knows Jon Boutcher, that that is a big wager; it is a Pascal’s wager of a big sort that that inquiry will somehow challenge the terms of this debate, for all the brilliance of his police work. Everybody who knows about his career in London knows that he was—indeed, still is—a very fine policeman.

This language is striking and so different from the tone that the noble Lord, Lord Caine, adopted in an attempt to be precise and face up to difficulties. Again and again tonight, reference has been made to the fact that there were sexual crimes. In fact, the Government have tried to move on this; it is there, but you would not know it from anything that been said in the past two or three hours.

The crucial thing, above all, is that I find myself thinking again and again about the friend of the noble and right reverend Lord, Lord Eames, at the time of the initial report, which he has talked about so eloquently tonight. Everybody knows that his friend, Denis Bradley, is no particular friend to British Governments. When this Bill was published and it was clear that the Government were going to act in this way, did Denis Bradley talk about “obscene”? Did he talk about depriving people of hope? No. He went into a television studio and, to the annoyance of people who expected him to use that sort of language, he said, “There is no realistic hope. Politicians are merely playing a game if they try to defend the idea that there is hope somehow. They are making a public display. They are actually misleading people.”

It is important to remember the tone with which he spoke at that time. He said, “We cannot deliver more justice now, but we may be able to deliver more truth”; again, that is part of the thinking behind the Bill. That is what Denis Bradley said in the immediate aftermath of this Bill’s publication—quite different from the tone of so much of what has been said tonight, but at least it respected what the Government are trying to do. I am absolutely certain that, if he were here tonight, he would say, “There are loads of things in this Bill that I really don’t like,” but that is a different point. The noble Lord, Lord Caine, has already acknowledged that there are problems in the Bill and creative work will have to be done to sort it out. However, given the tone of what we have heard, it is worth remembering Denis Bradley’s initial response.

Again, the reason why I am sympathetic to the sceptical talk about reconciliation is that I was a historical adviser to the Bloody Sunday tribunal. As historical advisers, we all thought, “This is it. The Government’s great failing is that they won’t fess up to the things they or the state did wrong. We will put a line under it.” When the report came in, David Cameron made a fine speech, partly drafted by the noble Lord, Lord Caine, fessing up to what the British state had got wrong. The hope was, “Well, that’s it. That’s a dividing line. People will accept that we’re not afraid to criticise ourselves or our state’s performance.” The hope was that things would move on and the mood in Northern Ireland would change, but the mood did not change at all. It is as simple as that. I accept that it was a fine industry for the lawyers who worked in it, but the mood of the people did not change at all and the impact that David Cameron was aiming for in his speech ultimately amounted to zero. I am prepared to accept that it would have been worse had he not given that speech. But that is why I accept the talk that it is going to be difficult to achieve reconciliation and why I respond so sympathetically to what the noble Baroness, Lady O’Loan, said.

However, it is important to understand that the status quo is radically unacceptable, defective, and helping to create an increasingly rancid and divisive public mood in Northern Ireland. At this point, the Bill has unified both communities, but it is a false unity. They each simply want the terrorists of the other community to be brought to law. The unity disclaimed against the Bill is not a real unity.

What has surprised me most this evening is how the Supreme Court ruling in the McQuillan case in December 2021 has not been discussed in any serious way. It has a very significant impact. The headline in the Times law report on 10 January stated that the Supreme Court had said that Northern Ireland police are not required to reinvestigate incidents from the Troubles. That is not being said by the Minister or the British Government, and nor is it a clause in this Bill. It is a very firm statement of Supreme Court policy.

I am sure that there is debate about this, and that many do not like or accept it, but it is a Supreme Court—

[Baroness O'Loan (CB)]

Does the noble Lord accept that the Times headline writer might not have been quite accurate, and that the judgment in the McQuillan case might have been slightly more complicated than that?

[Lord Bew (CB)]

It is no more inaccurate than any other headline that I have seen. I accept that it is a complex ruling. However, the Northern Ireland police force issued a statement after the judgment:

“The Police Service welcome the clear legal ruling that there are no legal obligations arising from Article 2 ECHR to investigate these cases. We will now carefully consider the judgments and their impact on the legacy caseload.”


The Government have been attacked for depriving people of hope but, at the minimum, fairness requires us to say that the Supreme Court is depriving people of hope. Only this week we have had an attempt to assassinate two policemen, and serious business with loyalist paramilitaries. Anyone who thinks that the Northern Ireland police force does not look at that ruling and think it significant—and significant enough to be mentioned in this debate—is living in cloud-cuckoo-land. Yet apparently, no one thinks that because it is better to say that this Bill is obscene, is depriving people of hope, et cetera.

I am insistent because we have a problem. The public debate in Northern Ireland now—the way that lawfare operates and the way that these cases are now exhumed on a regular basis, which the Government are responding to—does not relate to what happened in the Troubles. To give a very simple example, the RUC, as was, suffered 309 deaths. It killed 53 people, including 10 of its own in error, carrying heavy weapons in police cars and so on. RUC officers were killed at five or six times the rate of their killing. This is very crude but factual. The killings committed by the republican movement were something like five times the rate of their own deaths, but no one would know that if they looked at the cases running through the courts in Northern Ireland, and at how lawfare was operating. No one would consider that to be the balance of killing and of suffering. Nobody would know that.

That is the problem that we are trying to address with this Bill and why I am willing to give it a degree of support. It is not in doubt that there are problems with the Bill. The Minister has made it clear that the problems are significant. The House can do a lot of work to improve it. Yet everyone must remember that the Bill does not exist on its own but alongside a Supreme Court ruling that unquestionably moves the dice—moves the balance. There is no question that it does that. It may not move it 100%. There may be requirements for other developments, but it certainly moves the discussion in a way that we have not acknowledged in several hours of debate tonight.

--- Later in debate ---

[Lord Caine (Con)]

The noble and learned Lord touches on some of the issues that have also troubled me in dealing with this over the past months. I can see an argument to do with the chances of a prosecution being so slim in a very large number of cases. I talked to the retired police officers about this, who were very clear that in most cases, if the evidence had existed at the time, there would have been convictions, but it is simply not there and the chances are incredibly slim. Therefore—

[Baroness O'Loan (CB)]

I want to interject the fact that in the 1970s, a process was adopted which prevented prosecutions—there were to be no prosecutions for murder of any military personnel—and there was a process through which the Royal Military Police produced statements which have now been declared to be totally unacceptable, so there were processes which made it impossible. I ask the Minister again: will he make the money available for the prosecution of the 33 files which Operation Kenova has submitted to the Director of Public Prosecutions? If you have the money, you can prosecute.

[Lord Caine (Con)]

The noble Baroness has asked me this question a number of times before. The Public Prosecution Service is not funded by the Northern Ireland Office; it is funded by the Executive, and it is a devolved responsibility. It would have to find the money from within its own resources, if resourcing is the only issue here. I have heard from a number of respected figures within Northern Ireland, within the legal system, who would argue that it is not just about resources at all.

I was trying to set out what I think the Government’s position was, because the chances of prosecution in so many cases were so remote, even where people have held out for prosecutions. I have given the example before of Bloody Sunday and the Saville inquiry, which reported in June 2010. The PSNI then very methodically went through the report and investigated the cases again to see whether there were any grounds for the prosecution of soldiers. It took nine years for the current DPP to come to a decision around prosecutions, concluding that prosecution would be justified in one case. As we know, that case subsequently collapsed. I think it has now been re-referred, but it did collapse. One noble Lord mentioned the fact that people are getting older and dying, and this example points to the fact that these processes can take a very long time.

Therefore, the purpose of what the Government are putting forward here is to try to bring forward information and get people to the truths in a much more timely way. The noble Baroness, Lady O’Loan, shakes her head and disagrees, but that is the genuine intention: to try to get more information out there while it is still available. As noble Lords know, the problem with a prosecution if it collapses is that no information is provided to families, and they are literally back at square one. We can have these discussions, but I just wanted to say that that was one of the justifications for this. In order to encourage people to come forward and co-operate, as noble Lords know, the Government originally put forward in the Command Paper a blanket statute of limitations of the kind referred to by my noble friend Lord Cormack, but they then refined the position on the basis that if people were going to be given immunity from prosecution, there should at least be some incentive to earn it. That was the way in which the Government approached this back in 2020.

I have taken on board the very strong feelings expressed this evening. If noble Lords will forgive me, I think I have been fired hundreds of very detailed questions from across the House, which I could not possibly answer, particularly at nearly 10.05 pm. But what I am prepared to do is to sit down with noble Lords, both individually and collectively, before Committee, which I hope will not be rushed. That is certainly not my intention. I think somebody used the phrase “pell-mell” the legislation through the House, but that is not my approach or my intention. I would want to take sufficient time to look at the Bill in detail and give it the scrutiny that it absolutely deserves.

In my speech I tried to respond to some of the concerns that have been expressed already and which were brought out in the debate. I apologise to the noble Baroness, Lady Smith of Basildon, that I was not in a position to flag, if you like, at an earlier stage what these amendments might be. I think the noble Baroness is familiar with government write-round processes, which do not always proceed at pace and are the subject of discussion. I do apologise. In all genuineness, I hope that these amendments, when they are drafted and I bring them forward, will go some way to allaying concerns on the issues that have been raised outside the House and inside the House this evening around ECHR compatibility, independence of the new commission, greater incentives for co-operating with the body, and penalties for misleading, lying and not telling the truth, including revocation of immunity where that has already been granted, and full sentences for those who do not co-operate with the body but are subsequently investigated and convicted.

I also assure the noble Baroness, Lady Smith, that I do not expect those amendments to be the end of the story. There are other amending stages in your Lordships’ House beyond Committee, and, again, I hope we will not rush from Committee to Report and can have a reasoned and genuine discussion and debate between those two stages of the Bill.

While I will look at what further amendments the Government might be able to bring forward, I will genuinely look constructively at those which are put forward by other noble Lords across the House. As I have always said in my engagements within Northern Ireland itself with victims groups and others, I am the least precious person when it comes to amendments and where they come from. If they are sensible and constructive, I will always look at them and give them a fair wind.

As I say, I am very happy to sit down individually and collectively and engage with noble Lords before Committee. I will seek to go through the speeches made in your Lordships’ House this evening and, where detailed questions have been put to me, I will respond in writing, if noble Lords will allow me, rather than detain the House for a great deal longer this evening.

As I said at the outset, it is challenging and difficult, but there is no perfect way of dealing with this. I want to try and genuinely use this House in its proper constitutional way to revise and improve legislation.

Northern Ireland: Operation Kenova

Baroness O'Loan Excerpts

Thursday 14th July 2022 Lords Chamber

[Lord Caine (Con)]

I appreciate the spirit in which the noble Lord, another distinguished former Secretary of State, makes his point. As he will know from his time in office, finding consensus around legacy and the past is incredibly difficult and has eluded successive Governments. I was intimately involved in the Stormont House negotiations in 2014, when we thought we had reached some kind of agreement. That subsequently unravelled in the following years. These are very difficult matters but, as I said in response to a previous question, I am very happy to meet victims’ groups, political parties, the Irish Government and Members of your Lordships’ House to see if there are ways in which the Bill can be improved.

[Baroness O’Loan (CB)]

My Lords, I declare an interest as a member of the international steering group for Operation Kenova, on which I have served for six years. Is the Minister aware that Operation Kenova has been investigating some 200 murders over a span of 25 years, including the murders of three police officers in 1982 at the Kinnego embankment, and that Kenova has submitted some 33 investigations to the DPP since 2019, but that no prosecutorial decision has issued in respect of the murders and abductions, apparently because of a lack of resources? How does the Minister view the Northern Ireland Troubles (Legacy and Reconciliation) Bill, now before your Lordships’ House, which will prevent anybody whose loved one died as a result of the Troubles terrorism, whether in England, Scotland, Wales or Northern Ireland, being able to have an inquest or bring any civil action for damages, and even from having a proper investigation which will lead to a prosecution? Can the Minister explain how this is consistent with the operation of the rule of law, of which we are so proud in the United Kingdom?

[Lord Caine (Con)]

I thank the noble Baroness for her question and acknowledge her work on Kenova, and as a former Police Ombudsman for Northern Ireland. She makes a large number of points, which are probably worthy of a debate rather than Question Time. She highlighted the point that over 30 case files are currently with the Director of Public Prosecutions for Northern Ireland. Funding for the DPP and the Public Prosecution Service for Northern Ireland is a devolved matter for the Assembly, not for Her Majesty’s Government. It highlights the fact that the cases where criminal justice outcomes have been sought take a huge amount of time. The Government are trying to focus on moving towards a more information recovery-based approach to legacy cases, which will, we hope, allow victims to access more information more quickly than would be the case with long, drawn-out prosecutions.

Abortion (Northern Ireland) Regulations 2022

Baroness O'Loan Excerpts

Tuesday 21st June 2022 Lords Chamber

Moved by

[Baroness O’Loan]

At end insert “but that this House regrets that the Regulations (1) disregard the statutory role of the Northern Ireland Assembly and ignore the devolution settlement, and (2) make substantial constitutional changes via secondary legislation”.

[Baroness O’Loan (CB)]

My Lords, as the Minister said, there has been and continues to be very significant opposition to the imposition of the extreme abortion regime in Northern Ireland by this Government. It was done in July 2019, in circumstances that beggared belief. It left Northern Ireland with abortion law that goes further than that which applies elsewhere in the UK and that has been, and continues to be, rejected by the vast majority of people in Northern Ireland. Notwithstanding that opposition, the Northern Ireland Government have been acting in compliance with the 2019 Act and the 2020 regulations—I will deal with this in a minute.

The process by which we in Northern Ireland are governed is provided for in the Northern Ireland Act 1998. In its third report, the Secondary Legislation Scrutiny Committee of your Lordships’ House stated that these regulations

“allow the Northern Ireland Assembly Executive Committee to be bypassed”.

The Executive Committee is provided for in Section 20 of the Northern Ireland Act 1998. Section 20(3) and (4) provide:

“The Committee shall … have the function of discussing and agreeing upon … significant or controversial matters”


and those that cut across the responsibility of more than one Northern Ireland Minister. Accordingly, the Ministerial Code requires Northern Ireland Ministers to bring such matters to the attention of the Executive Committee. Abortion is a significant, controversial matter.

On each occasion when draft regulations have been presented to Parliament following the passing of the executive formation Act, they have extended abortion provision in Northern Ireland; it happened in 2020, in 2021 and now, in 2022. Despite the fact that a duly elected and appointed Northern Ireland Minister of Health is in office and working, we see an attempt to bypass him and give the Secretary of State for Northern Ireland powers that are not available to Northern Ireland Ministers or their government departments. All of this is inconsistent with the existing statutory provisions for government in Northern Ireland and with the international obligations of the British Government under the 1998 Good Friday/Belfast agreement.

Ignoring the expressed views of the people prior to the passing of the Abortion (Northern Ireland) Regulations 2020, Northern Ireland now has an abortion law that goes far beyond what was legally required by the formation Act 2019. Regulations provide that abortions can be carried out up to 12 weeks, permitting abortion of any baby, for any reason, including on the grounds of its sex. This provision is not consistent with the UN CEDAW report, on which the 2019 legislation was based. CEDAW has said that sex-selective abortion should not happen because it perpetuates negative stereotypes and prejudices towards women. I believe that it is not permitted in the rest of the UK.

Abortion can be carried out up to 24 weeks if one nurse or doctor certifies that

“the continuance of the pregnancy would involve risk of injury to the physical or mental health of the … woman which is greater than if the pregnancy were terminated”,

taking into account her “actual or … foreseeable circumstances”, such as poverty. Again, this is much wider than in the rest of the UK.

Abortion can be carried out in Northern Ireland up to birth, if it is

“immediately necessary … to prevent grave permanent injury to the physical or mental health, of the pregnant woman”,

if two doctors or two nurses certify that the termination is necessary to prevent such injury and if there is a

“substantial risk that … the child … would suffer from such physical or mental impairment as to be seriously disabled.”

This would include babies with Down syndrome or cleft palates. Again, this is much wider than in the rest of the UK.

As the noble Lord, Lord Shinkwin, said in 2020, speaking of babies with disabilities, this

“promotes and perpetuates disability discrimination.”—[Official Report, 15/6/20; col. 1981.]

So in Northern Ireland we have babies’ lives being terminated because of their sex or their disabilities, among other reasons.

In 2021, the Abortion (Northern Ireland) Regulations gave expansive powers to the Secretary of State, allowing him, for the purposes of implementing the recommendations in paragraphs 85 and 86 of the CEDAW report, to direct that action must be taken by Northern Ireland Ministers, departments, the Regional Health and Social Care Board and the Regional Agency for Public Health and Social Well-being. However, it is a discretion, not a duty. It says he “may” act. He does not have to act, and if he does not act, there will be no successful challenge.

Now we have the 2022 regulations. First, they disregard the statutory role of the Northern Ireland Assembly and ignore the devolution settlement. Secondly, they make substantial constitutional changes by way of secondary legislation. It is not the case that the Northern Ireland Assembly is in breach of its legal obligations to implement CEDAW. It is work in progress. Many changes have occurred. Abortion has been decriminalised in most situations, as required. Abortion is now available in Northern Ireland. The Minister has access to figures, which I could not find when I checked again this morning, and he has told us that there were 2,794 abortions in Northern Ireland in the last year and that in the previous year there were 1,345. These figures represent a 60% increase on the number of those who went to England and Wales for abortions in 2019.

The exclusion zones mentioned in the CEDAW report have now been provided for in law, in a Bill that was passed by the Northern Ireland Assembly and is currently, I believe, subject to legal challenge. As I have said previously, the Secretary of State is not in breach of his obligation. He has a discretion, not a duty, and this is work in progress.

I now address the first issue: that the regulations disregard the statutory role of the Northern Ireland Assembly and ignore the devolution settlement. The democratically elected Northern Ireland Assembly, acting in accordance with its constitutional processes, did not choose to legislate further or to commission directly abortion services that are otherwise provided. Abortion is available; 2,794 abortions in our small area is evidence of that. The Northern Ireland Assembly could have done so but it chose not to.

Your Lordships know that the history of Northern Ireland is tragic. After decades of war, the Good Friday/Belfast agreement of 1998 provided for the process of government within Northern Ireland. The arrangements that we have protect the rights of citizens by providing for the Assembly and the Executive, comprised of the First Minister and the Deputy First Minister, who are joint chairs, and eight other Ministers. Their job, as the Government’s website says, is to exercise executive authority on behalf of the Northern Ireland Assembly and to take decisions on significant matters and issues. Health is, as I have said, one of the matters that have been devolved to Northern Ireland. The Government’s website says:

“This means that local politicians, instead of MPs in Westminster, make key decisions on how Northern Ireland is governed.”


It is most regrettable that after our last election in May, there is as yet no sitting Assembly and no Executive. However, in the absence of the Assembly, Ministers in office before the election continue to hold office and have decision-making powers. There is a working Minister of Health, Mr Robin Swann MLA of the Ulster Unionist Party. He has massive responsibilities. Our health service has been described as “broken” by the director of the Royal College of Nursing and as “extremely broken” by a leading ED consultant and many others. We are short of some 7,000 medical and nursing staff.

There were 2,794 abortions last year. In April 2021, more than 300,000 people, almost 20% of our population, were waiting for a first consultant appointment. On 31 March 2022, 156,270 patients were waiting, having seen a consultant, for a diagnostic test and 50.7% of patients were waiting more than nine weeks for a diagnostic test to find out whether they have conditions which may be very serious or even life threatening. Some 29.6% of patients have been waiting more than 26 weeks for a diagnostic test. Only 43% of all cancer patients start treatment within 16 days of an urgent GP referral for suspected cancer.

We have amazing cataract waiting times. I declare an interest because I have cataracts and am awaiting surgery, but the waiting time is four to five years. However, you are not allowed to go on the waiting list until your eyesight is so bad that you cannot drive. You wait, with deteriorating sight, until you cannot drive, and then you wait another five years.

Just yesterday, Minister Swann published an action plan setting out a programme of reform for the delivery of stroke and orthopaedic services. Northern Ireland has 25,526 people waiting for orthopaedic treatment. I declare an interest as I am on the list. They can expect to wait four or five years for surgery that will give them mobility, without which their physical and mental health will in all probability decline further.

Abortion has been made available within the law. As Minister Swann has stated:

“My Department does not dispute that women in Northern Ireland are legally entitled to abortion services. The legal advice that was received by my Department states that the Abortion (Northern Ireland) Regulations 2020 do not require my Department to commission the relevant services. Registered medical professionals can now terminate pregnancies lawfully.”


There is, as the Minister said, nothing in the legislation thus far that requires the independent commissioning of abortion services. Rather, they are made available through normal procedures.

Abortion is a costly business and profitable for those who provide the services. UK health reports that it costs £500 for the abortion pills you can take up to nine weeks of gestation, rising to about £800 for an abortion up to 18 weeks and about £2,000 after that. The Minister and his department are working hard to try to resolve the massive problems faced by our health system across the board.

If passed, these regulations would fundamentally alter the principles of the Good Friday/Belfast agreement, which created a sophisticated process for decision-making. As I state in this amendment, they

“make substantial constitutional changes via secondary legislation”.

They would allow the Secretary of State to bypass the Northern Ireland Assembly and the Executive Committee entirely. They are not in any way limited. However, the Northern Ireland Ministerial Code makes clear that the Northern Ireland Act ensures that significant and controversial issues are for the Executive to decide.

The regulations give broad, sweeping powers to the Secretary of State effectively to act as a Northern Ireland Minister without having been appointed as a Minister in accordance with the provisions of the Good Friday agreement and the Northern Ireland Act 1998 and without any accountability to the people of Northern Ireland. Effectively, they would allow the Secretary of State to take command away from the duly elected and appointed Minister of Health in the areas of abortion services and all the other areas mentioned in paragraphs 85 and 86 of the CEDAW report, from the Minister for Justice and, in education, the Minister of Education. The regulations would give the Secretary of State all the powers of those Ministers to allocate resources and do anything a Minister or department could do, and to provide financial assistance for the purposes of ensuring that the CEDAW recommendations, which we brought into domestic law, are implemented.

If these regulations were passed, the Secretary of State would be able to take these decisions in isolation, having no regard to the impact of his decisions on the allocation of resources for neurology patients, cancer patients, orthopaedic patients, patients with cataracts and other eye problems, and patients in all other areas of medicine. The Minister of Health is in office and working to try to manage the impact of Covid on our broken health service. Undoubtedly, brave decisions need to be made to secure greater efficiencies and allow more people to be treated more quickly; however, there is no need for the drastic, unaccountable powers over elements of government that would be given to the Secretary of State were these regulations to be approved.

--- Later in debate ---

[Lord Caine (Con)]

Of course—I am very happy to give my noble friend that assurance.

In conclusion, I urge noble Lords to reject the amendment in the name of the noble Baroness, Lady O’Loan, should she seek to test the opinion of the House, and I urge your Lordships to support these regulations.

[Baroness O’Loan (CB)]

My Lords, I thank all those who have spoken in the debate today, particularly those who have spoken with me on my amendment to the Motion. Like the noble Baroness, Lady Barker, I should like to provide a clear exposition of some of the facts raised today. I cannot answer all the points made without keeping your Lordships for too long.

The regulations are loosely and badly drafted. They give rise to a large number of questions, which the Minister has not answered. The devolved Government have acted in accordance with the Northern Ireland (Executive Formation) Act and the 2020 regulations. People do not have to buy unsafe abortion pills; they get them from their doctor now. Abortion is now available. The noble Lord, Lord Dodds, said that there have been over 3,500 abortions. If there had been no specific commissioning of health services, these women could not have obtained abortions in Northern Ireland without paying for them. However, the fact that they were able to obtain their abortions under the health service means that they have been commissioned by the health services. Northern Ireland abortion services are provided and paid for by Northern Ireland.

The Future of the Northern Ireland Assembly

Baroness O'Loan Excerpts

Wednesday 30th March 2022 Lords Chamber

[Lord Caine (Con)]

I thank the noble Lord, Lord Coaker, for his question and for the constructive and bipartisan manner in which he approaches this issue, and many others, when it comes to Northern Ireland. I agree with him completely. The amendment put forward by his honourable friend in the other place was in 2019, and since then this Parliament has passed regulations setting out a framework for the delivery of abortion services. It has passed a directive from the Secretary of State on the Executive to have services in place by tomorrow—that is the deadline. We are still waiting for those services to be delivered, so our view is that the Executive have had ample time to resolve this issue. So far as a timetable is concerned, I cannot give the noble Lord precise dates, but we expect the Department of Health in Northern Ireland to move quickly on this. Should that not be forthcoming, the Secretary of State will intervene after the elections in the way in which he set out in his Written Statement.

[Baroness O'Loan (CB)]

My Lords, is it not the case that abortion was imposed on the people of Northern Ireland by this Parliament in 2019 against their will, and in the event that the power-sharing Executive is not reformed after the election and there is no Assembly, what plans do the Government have to address the consequential democratic deficit, and to make arrangements to ensure that the voice of the people of Northern Ireland is heard?

[Lord Caine (Con)]

I completely understand the strength of feeling of the noble Baroness, Lady O’Loan, on this issue, and her very long-standing interest in it. I cannot pre-empt the outcome of the election and what will happen immediately thereafter. As I have said, we would like to see an Executive up and running as quickly as possible after the election. But the devolution settlement itself does not absolve the Secretary of State from the responsibilities placed upon him by this sovereign Parliament of the United Kingdom.

Northern Ireland (Executive Formation etc) Act 2019: Section 3(5)

Baroness O'Loan Excerpts

Tuesday 7th January 2020 Lords Chamber

[Baroness O'Loan (CB)]

My Lords, I want to address the abortion consultation conducted by the Northern Ireland Office and reported on in this report. Because of the way that the legislation was enacted, against the wishes of the people of Northern Ireland and propelled by Members of the other place from England, Scotland and Wales—none from Northern Ireland—this was a profoundly important consultation. The regulations will be presented to Parliament and be incapable of being changed, by virtue of their format. They can only be rejected in their totality, not amended; therefore, their content will be of the utmost significance to the people and, more importantly perhaps, the unborn babies of Northern Ireland.

Like many others, I have deep concerns about how the consultation was conducted, with a six-week period granted, during which the general election was taking place. I note the Government say that there was a high level of consultation; it would be helpful if the Minister could tell us how many respondents there actually were. No special effort was made to make the consultation accessible, despite the way in which the law was passed. The consultation document was available online to those who use the internet. If you did not use the internet the instruction was to email the NIO—do you hear that, my Lords?—asking for a copy of the document. You could not phone and ask for one. If you could not access a computer or suffer from a disability which restricts mobility or eyesight, or causes literacy difficulties, there was no obvious special provision. There was no publicity after the initial announcement. One could be forgiven for thinking that the Government were not overeager to receive responses.

The Government are of course required to introduce new regulations to legalise abortion only in limited circumstances. Those circumstances are described in the CEDAW report and in the Act. They refer to cases of threats to the woman’s health where the threat does not need to be permanent or long term, to pregnancy resulting from rape and incest, and to pregnancy involving severe foetal impairment, including fatal foetal abnormality—whatever this means. The Government are also required to ensure appropriate and ongoing support, social and financial, for women who decide to carry such pregnancies to term. There was no invitation in the consultation to consider how such support might be delivered.

What deeply shocked me is that despite their stated commitment to devolution, the Government now propose, through the consultation, to needlessly undermine devolution to a far greater extent than Parliament requires. There is no requirement in Section 9 to introduce abortion on request for any reason up to 12 to 14 weeks’ gestation. That is not required by the CEDAW report but appears to be what is proposed. There was no opportunity in the consultation to answer the basic question: “Should abortion be available on demand?” and simply say no. That question did not exist.

The Government also asked whether abortion should be available to 21 weeks and six days or 23 weeks and six days if

“the continuance of the pregnancy would cause risk of injury to the physical or mental health of the pregnant woman or girl, or any existing children or her family, greater than the risk of terminating the pregnancy”.

The document did not define or qualify that risk, even where the pregnancy might be a threat to the health of family members. It did not even define “family members” —grandmothers, aunts, husbands, someone living with their extended family? This is effectively planning for abortion on request. I have seen no evidence in England and Wales of an application for an abortion on ground C ever being turned down, certainly in the past 10 years.

Most shockingly, question 4 asked whether abortion should be available up to birth

“where there is a substantial risk that the fetus would die … in the womb … or shortly after birth”

or

“would suffer a severe impairment, including a mental or physical disability which is likely to significantly limit either the length or quality of the child’s life?”

Yet under the Criminal Justice Act (Northern Ireland) 1945, it is an offence to terminate the life of a child capable of being born alive despite a disability.

There was no definition about what constitutes severe impairment, yet people were asked to respond on that basis. In England and Wales, 90% of babies with Down’s are aborted at birth. Many conditions might significantly affect the length or quality of a child’s life. It does not mean that the life is not worth living. In effect, this legalises all abortion, including sex-selective abortion and disability-selective abortion. Why is there no attempt to provide protection for unborn babies against discrimination on grounds of gender and disability, and why is there no recognition of the need to protect pregnant women from being coerced into abortion?

Why do the Government suggest that the law on conscientious objection should reflect that in England and Wales, which is inadequate? For those who recognise and acknowledge the harm inherent in the deliberate killing of a child in the womb, there should be a right not to be involved at any stage.

The suggestions in the consultation were invariably lacking in definition. We have heard the reference to registered health professionals, not doctors. Going beyond what is strictly necessary under Section 9 contradicts any assertion that the Government want to uphold devolution in Northern Ireland. The way in which this consultation was drafted reflects a political decision made by the NIO. Yet we are at another critical point in Northern Ireland’s political life. Our nurses are on strike again.

Many people in Northern Ireland have protested and argued in many ways since July. The consultation was flawed; it was not accessible. To build law on a vague, flawed consultation lacking in specificity of almost any kind without the necessary impact assessments would be most dangerous. I ask the Minister, the NIO, the UK Government, your Lordships and the other place to have regard for constitutional due process and in drafting regulations, which will of course be incapable of change, to ensure that what is provided does not go beyond what is strictly required by law.

--- Later in debate ---

[Lord Duncan of Springbank]

My Lords, thank you for what I hope will be the final instalment of these debates. Again, it has been wide-ranging and thought-provoking. I will seek to answer each of the points raised, but let me quickly state that my right honourable friend the Secretary of State will work through the weekend. I think he will be working through the night to try to bring together those parties for the final step that has to be taken.

The noble Lord, Lord Murphy, is correct to identify the issues that remain divisive, but other noble Lords this evening have pointed out the issues that need to be addressed. Perhaps they should outweigh the reality of what is faced with those other issues that need to be brought together. I will be very clear: the approaching deadline of 13 January is a meaningful deadline. If there is no agreement to form an Executive by the end of that day, there will have to be an election in Northern Ireland. That will bring with it the reality of purdah and various other elements but it will be the necessary step in moving this matter forward.

We have sought to extend the Executive formation period on a number of occasions, which we have discussed over the past few months. This is now the last step of the last stage, and the deadline has to be meaningful. It should crystallise thinking and ensure that for those who are casting an eye over their shoulder at the result of the last election, as they consider what will come next, it may be an issue which I hope they will use to sharpen their thinking in the last few days.

I will try to address each of the issues that were raised this evening as best I can. I will start with the noble Lord, Lord Adonis, and the question of higher education provision in Derry/Londonderry. The issue at the heart of this is a decision taken by the Executive to cap the number of students. By doing so, they created a problem for provision in Northern Ireland, which is one of the principal reasons why so many students from Northern Ireland end up being educated in the rest of the United Kingdom. That decision needs to be addressed. I have looked with some care at Ulster University’s proposal for the Magee campus for the graduate school of medicine. To coin a phrase, I believe that it is oven-ready, and I believe that it could be moved forward in short order. However, it needs an Executive, or other powers, to move it forward. Again, I believe in endorsing the view that that is the only way to ensure the indigenous retention of medical practitioners; indeed, I will look at other academic disciplines as well.

The noble Lord, Lord Hain, brings great experience to this issue. He is right to observe that the amendments proposed in the other place are cross-party and should be given due consideration either there or here when the Bill arrives. We need to be careful in looking at them and recognise where they have come from. It is important to do that very thing going forward.

On the wider issues of health and health provision, education and education provision, and social provision, as I have said before and as noble Lords have echoed this evening, the statistics in Northern Ireland are ghastly. They are dreadful. Nobody else would tolerate that; I am shocked that Northern Ireland does. It is only because of the absence of an Executive and an Assembly, where these things can be debated with the anger they richly deserve, that they have gone unaddressed for so long. That cannot go on. After the point when we have an election, whatever follows thereafter, this will need to be a priority for any incoming Executive or any responsible Government taking action in this area. That will require funding. It will require sensible administration. It will require action and it will require urgency. All those things will need to be delivered, I believe, in the first half of this year.

As to the more vexatious issues, let me start with the question of same-sex marriage. There will be two consultations, one concerned with the religious notions of the ceremony itself. Those consultations are beginning. The noble Lord, Lord McCrea, asked whether the Secretary of State will meet with the Moderator of the Free Presbyterian Church. The answer is yes, of course he will. He will meet with other religious leaders on that point because it is important that we ensure that the structures in place are cognisant of the uniqueness of Northern Ireland; Northern Ireland therefore needs to consider that. I hope that when this consultation opens, which I believe will be imminent—I am torn over using the word; you may interpret that as you wish—or very soon, such consultation will happen.

The noble Lord, Lord McCrea, also asked how children will be taught about this matter in school. That remains a devolved matter but we are in touch with the relevant department in Northern Ireland—the Department of Education—to ensure that guidance for schools is appropriate, adequate and measured. Again, that aspect is important. As I have said on this matter on a number of occasions in the past, there will be no compulsion on any individual to breach what they consider to be matters of their own conscience. That will be reflected in any guidance issued in schools and elsewhere, and is part of the ongoing dialogue.

It is important to recognise that these issues have now been broadly brought to rest. On the question of whether that should have been done in the manner that it was, I do not think that that was the ideal way of doing it either. However, as we have said about health and education and all the other issues, I am afraid that this situation is what happens when there is no functioning Executive in Northern Ireland. It is one of the consequences of that and we are living through it now.

The noble Baroness, Lady Lister, made an important point. At the moment, I cannot make any commitment in advance of the talks concluding on 13 January. I hope that they conclude positively and I hope that out of them will come the urgency of the mitigation measures mentioned by the noble Baroness. I have spoken of these matters personally with her and in this Chamber. I do not believe that they can be left unattended in the new period; progress will need to be made on them. I am afraid that I can give no further commitment on this matter but I commit to returning to the House in due course to provide a full update on it as events progress to the point where I can do so. I am also happy to meet in person on this matter in the interim period, should that prove useful.

On abortion, a number of specific issues were raised. I believe that when we have discussed these in the past, I have sought to answer them. I will try briefly to touch on some of them. The noble Lord, Lord Morrow, asked what law would be cited to protect a woman who was the recipient of a noxious substance administered by an individual to try and bring about the termination of a pregnancy. Sections 23 and 24 of the Offences against the Person Act 1861 apply not just in Northern Ireland but across the rest of the United Kingdom. There should be no instance in which this crime is left unpunished and again I stress that this would be a crime and would be punished.

On the availability and purchase of online abortion tablets and pills, it is an offence to sell these products but of course it is not an offence to buy them. I stress that these items can be bought at present. Under the previous regime, the greatest danger was that these pills would be taken by individuals who then could not seek recourse through the medical profession because they would themselves be guilty of a breach of the law. They were placed in the invidious position of taking substances which are unregulated over the internet, and would not then have recourse to medical practitioners to ensure that the consequences were dealt with in a safe environment. That is different now.

I turn to what has happened during this limbo period. It is important to stress again that there has been a slight uptake in the number of individuals who have come to England to undertake these activities. There has been no registered growth in illegal or back-street abortions in Northern Ireland, and attention has been paid to establish whether that is indeed the case. I believe that the rules I set out on the last occasion covered those matters. There is no free for all or Wild West situation in Northern Ireland. There are rules of law which govern both the practice and the administration of medical attention and so forth. I set those out in my previous statement and I will not repeat them at this moment.

I was very clear that the consultation is not about the issue of abortion in itself, but about the framework for the safe delivery of abortion as was agreed in law here. The consultation itself rightly asks specific questions regarding the nature of that framework and does not pose the fundamental questions which have been raised in the debate. It did not seek to do so and those who wish to augment their answers to the consultation were—

[Baroness O'Loan]

I think that the Minister may have misunderstood me. I asked if the consultation—I am sorry but I am too tired. Can he please remind me of where he was?

[Lord Duncan of Springbank]

I was saying that the consultation itself is specific regarding the framework for the delivery of the services themselves. However, if an individual wishes to make a wider point in the discussion, it allows that to happen, although it is not within the scope of the consideration that will result as a consequence.

[Baroness O'Loan]

My Lords, the point I wanted to make was that I was not saying that I totally rejected abortion; rather I said that it was untrammelled and unfettered abortion on demand to 12 or 14 weeks. This is not what is required by Section 9 of the Act. I apologise to noble Lords, but that was the point: it is not required.

[Lord Duncan of Springbank]

Again, the point I was making about the framework is that it is not unfettered abortion. It is seeking to apply an established process to ensure the safety of individuals and the administration of the service itself. However, the reality remains that in this limbo period, far from being a Wild West of free practice, because of the absence of the detailed framework, there has actually been a regression in that regard. Individual practitioners have not been offering that service and I believe that they will probably not do so until the guidance is clearly embedded. It is not until the point when the regulations become active that we will see a functioning regime. That is why I said that during the interim period there has been an increase in the number of individuals who are now aware of the service that is available here in England, along with the support available from the United Kingdom Government to provide both free travel and free accommodation for those who wish to undertake the procedure.

I hope that the issue of the consultation, which I believe is a straightforward one regarding the framework itself, will be considered by the relevant authorities to ensure that what is put in place is fit for Northern Ireland and its unique circumstances and that each of the elements we have touched on in the past regarding fatal foetal abnormalities or issues of rape, incest and so on are considered alongside those of the wider question of the CEDAW recommendations within the wider report. Each of these elements is still broadly part of what we seek to deliver, as we made clear when this was enacted in the latter stages of last year.

I believe that those are the principal issues have been touched on today. If there are issues that I have not touched on, I am happy to write or to meet personally to try to address any of these, but on that basis I would like to close what I hope will be the final report in this sequence. We then await progress—I hope positive progress—and I would like to be standing here very soon saying that there has been a breakthrough. If there has not been a breakthrough, Northern Ireland has been very badly let down, so I hope I am back on a positive note.

Northern Ireland (Executive Formation etc) Act 2019: Section 3(5)

Baroness O'Loan Excerpts

Thursday 17th October 2019 Lords Chamber

[Baroness O'Loan (CB)]

My Lords, I will talk about abortion and the return of the Assembly. It is really important that we remember why we are debating this provision; it is because of the recommendations of the report produced by the CEDAW committee, which were deemed to be so imperative because of concern for women’s rights in Northern Ireland. When moving the provision that became Section 9, the honourable Member for Walthamstow in another place said that she wanted women in Northern Ireland to have the same rights as women in England and Wales.

We need to keep this in mind as we consider the Secretary of State’s report and what it says about the period between 22 October 2019 and 31 March 2020 if regulations are not laid before then. The report acknowledges that during this period the law will not be quite all that it should be and seeks to deal with that problem by saying that,

“there are no plans for additional services to be routinely available before 31 March”.

That is a curious statement. It seems to be predicated on the thoughts that if additional abortion services were made available they would be provided by the government -controlled National Health Service, and that the Government can prevent abortions being provided in the new legal void by simply instructing the NHS not to provide them.

There is a huge problem with that approach, which the noble Lord, Lord Morrow, and the noble and learned Lord, Lord Mackay, have referred to: that the NHS will not be the only body which will be able to provide abortions lawfully during this period. Unless the Assembly is restored, Sections 58 and 59 of the Offences against the Person Act will be repealed and only two laws engaging with abortion in Northern Ireland will remain. Under the Criminal Justice Act (Northern Ireland) 1945, as noble Lords have heard, abortions cannot take place lawfully from the time at which a child is capable of being born alive. The presumption in the Criminal Justice Act is that that is 28 weeks, but we know that babies now routinely survive at 22 weeks. It means that there will be a legislative void regarding abortions until that point.

Abortion procedures are dangerous, so responsible governance provides legislation regulating how they should be provided. In England, for example, every private abortion clinic must have a licence. The licence is not a generic clinic licence but a specific abortion clinic licence, and clinics have to perform to required operating standard procedures. Under Regulation 20 of the Care Quality Commission (Registration) Regulations 2009 there are requirements relating to the termination of pregnancies, including an obligation to ensure that two medical opinions are provided before an abortion is carried out, a restriction on who can carry out abortions after twenty weeks, because of the risks, and a requirement for detailed records to be kept.

The English legislation very properly recognises that the procedure of abortion requires abortion-specific regulation of both the premises and the procedure. In addition, under the Health and Social Care Act 2008 and associated regulations, any person who offers or undertakes abortion carries out a “regulated activity” and has to be registered with the CQC. Subject to limited exceptions, it is a criminal offence to carry out a regulated activity unless you are registered for the provision of that activity. So in England the practitioner, the location and the process are all subject to regulation. None of this regulation, designed to protect women and their unborn children, will apply to private abortion clinics in Northern Ireland which, unless the Assembly is restored, will be free to operate until regulations are laid.

From Tuesday, any provider of medical abortion services by a doctor at an independent clinic has to be registered under the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003. If it is registered, the clinic will be inspected and its services will be quality assured, but only as generic clinic services. No specific reference is made to standards for abortion. Moreover, this is the real danger: if the regulations say that if one medical professional who works for the National Health Service works in the clinic, it does not have to be regulated or assessed by the RQIA, so there is lots of scope for private abortion clinics employing one registered medical practitioner working for the NHS not to be subject to any regulation at all. Even worse, there will be no prohibition on anyone without medical qualifications providing abortion services in any context, and no prohibition on women accessing abortion as long as they give consent. I have to remind noble Lords that if there is a challenge as to whether a woman has given consent, it can be determined only after the event.

As the noble Lord, Lord Morrow, and the noble and learned Lord, Lord Mackay, referred to, we have seen legal opinions on the law in this area. David Lock, an eminent lawyer in the field of NHS and medical legislation and a former Labour MP, has written this:

“A person who was not a doctor (whether a nurse, other clinical professional or with no qualifications) who provides abortion services outside any form of clinic, agency or establishment does appear to not need to be registered under the 2003 Order. Further, there does not appear to be any other regulatory regime that will apply to such a person or any law which means that such a person will necessarily be acting unlawfully”.


He concedes that other criminal offences may be committed depending on the precise facts. He also says:

“In general, under the common law it is lawful to do anything unless there is a specific legal prohibition against doing that thing. Thus an individual is entitled to carry out any form of activity unless the activity is regulated by law and the regulatory framework imposes restrictions on the way in which the activity can be undertaken”.


There will be no such regulation and no framework for Northern Ireland until we see what the regulations say, possibly as late as 31 March 2020. David Lock goes on to say:

“It follows that an unintended consequence of section 9 of the 2019 Act may be the possible return of unregulated ‘backstreet abortion’”.


I know that this was discussed yesterday in the other place and I heard the Minister, but I think that the other place was labouring under a misunderstanding about the actual state of the law in Northern Ireland after 22 October if the Assembly and Executive are not formed. That is why I have set out the law as clearly as I can. This point was also raised last month by the Northern Ireland Human Rights Commission when it referred to the fact that the,

“likelihood of individuals resorting to potentially unsafe practices remains while prosecutions under the criminal law have been removed and the healthcare process has not been established”.

If even one mother or one baby suffers as a consequence of this legislative void, this Parliament will be responsible, as will be those who do not return to the Assembly. That is a very sombre thought.

In addition, the new guidelines issued by the Secretary of State state that,

“there is no expectation that general practitioners (GPs) will prescribe medication for early medical abortion”.

Such medication should be taken only up to nine weeks and six days of pregnancy. In England and Wales, this medication is available from private services because GPs do not provide abortion services. David Lock QC has also advised that,

“there is no legal bar on a GP issuing a prescription for medication for an abortion (either privately or as part of NHS funded care). These are ‘prescription only medicines’ which a GP would be fully entitled to prescribe for his or her patient if the GP considered that it was clinically appropriate to do so”.

So there will be no legal bar on women asking GPs for medication. The Government’s expectation therefore seems irrelevant.

What then of the rights of conscientious objection, which are required to give effect to the protection of human rights of medical practitioners? A couple of weeks ago, over 800 healthcare professionals wrote to the Secretary of State to oppose the imposition of this new regime, saying,

“our consciences demand that we not be silent”.

The medics say that they,

“wish to make known our opposition to the imminent introduction of abortion in Northern Ireland”,

and that their,

“concern throughout is for pregnant mothers and their unborn children”.

The only reference to conscience in the recent report by the Secretary of State is that current UK law permits conscientious objection only in “hands-on situations”. This is entirely inadequate—there is no legal definition of hands-on situations. However, it is also inadequate to suggest, as the report does, that medical practitioners should consult the GMC and other professional bodies. The reality is that that does not provide any guidance to medical practitioners during the lacuna period from 22 October. Of course, it is not possible to provide such guidance in the absence of regulation. The UK professional guidance is predicated upon compliance with existing law. That law does not apply here.

As the noble Lord, Lord Morrow, said, the situation is entirely unnecessary; government could have behaved entirely differently. When Back-Benchers come up with proposals that have dangerous unintended consequences —I am absolutely sure that neither the Minister here, the Secretary of State nor anybody else intended that this situation would prevail—it is the job of departments and Ministers to point out those dangerous unintended consequences. It is also their job to point out that the dangers can be avoided with a proper understanding of the imperative—or lack of it, as I would argue—attached to the findings of the UN committees. Government should have insisted that our existing legislation should not be repealed until such a time as there was new legislation to take its place.

With that in mind, I introduced my Northern Ireland (Executive Formation etc) Act 2019 (Amendment) Bill the day after the Act received Royal Assent to change the date of the repeal of Sections 58 and 59 to the time when the new regulations are introduced, thereby doing away with this dangerous five-month period, and seeking the consent of a majority of MLAs to any new proposed regulations tabled under the Act. In this sorry, sad, dangerous situation, the Secretary of State must do everything he can between now and Monday to get the Assembly Executive up and running by Monday. The political parties in Northern Ireland are under an even greater obligation to do so.

As we speak, some 26,100 people have signed my petition to the Secretary of State and to MLAs calling for the recall of the Northern Ireland Assembly and for it to become operational. A petition by unionist MLAs has been laid for the recall of the Assembly on Monday, as the noble Lord, Lord Morrow, informed the House. The Assembly will now be recalled on Monday and for the first time in over 1,000 days, at this time of extreme urgency—not just because of the abortion provisions but because of Brexit and all the other things that affect Northern Ireland so terribly—the Assembly will gather. There are people who say this is a political stunt, but the people of Northern Ireland have been calling for the Assembly to reconvene for years. This is no political stunt. As I said in my letter to the Secretary of State on Monday:

“We need our own legislature to deal with matters relating to Brexit, to all the numerous and urgent problems which exist in Northern Ireland, and most of all to deal with the difficulty of the situation with regard to abortion if the assembly and executive are not reformed”.


I appeal to all those who do not share my views on this matter to study the David Lock and Ian Wise opinions to which the noble Lord, Lord Morrow, referred, and to recognise the hazards to the safety of women and their unborn children, of which I have spoken tonight, and so to restore the Executive. An opinion poll just released by LucidTalk shows that 60% of people in Northern Ireland are concerned about the prospect of unregulated abortion for one day, let alone five months.

I cannot express too strongly the fact that the 26,000-plus people who signed the petition come from all parts, all parties and all communities in Northern Ireland and represent so many nationalities. I have watched the signatures rolling in. I can see the different nations of the world represented among the signatories. I can see people I know and do not know, but because of the way we work in Northern Ireland, I know that they come from all parts of the community.

I say to Northern Ireland’s elected politicians: respond to this opportunity; respond to the call to appoint an Executive and get back into government. I know that only our politicians can do this. We, the people, have waited long enough.

--- Later in debate ---

[Lord Alderdice (LD)]

My Lords, I am grateful for the opportunity to speak briefly in the gap. I declare my interest as a medical graduate from Northern Ireland and formerly a medical practitioner in Northern Ireland.

Lest the House be in any way misled, we should be clear that there is no prospect of the resumption of an Executive at the beginning of next week. The recall of the Assembly has been at the request of unionist Members only and an Executive cannot be formed on that basis. Let us be clear: it is not going to happen.

I refer to the issue of the Ulster University graduate medical school in Derry/Londonderry. I have three brief points. First, let us not forget that the decision to locate the University of Ulster’s main campus at Coleraine is still a sore point for many people in Derry/Londonderry. It was one of the great aggravations of the 1960s and it has not gone away. Whether the Ulster University graduate medical school is established is not a neutral question. It is still a painful question that refers back to the 1960s decision, which was a bad decision.

Secondly, it is not purely an education and health decision, as implied by the report. It is also an economic decision, because one value in having graduate entry for medical students is that it attracts people from other parts of the world who are prepared to come and pay substantial fees. For example, many of the young psychiatrists I see now from the United States of America as part of their training have graduated from Caribbean medical schools and completed their training in the United States. Many Caribbean islands with good medical training facilities, from the University of the West Indies, for example, are able to do very well, so this is an economic question as well.

Thirdly, it is not possible simply to turn on a tap for a medical school. Graduate entry occurs at only one time of the year. If an opportunity for graduates to come in next year or the year after is lost, it will be at least another year or more before there is another opportunity. Since this has been waiting for some time, the kind of academics who were prepared to set up a school will move on if it keeps being delayed. I appeal to the Minister: sadly, in the likelihood that we will not have a devolved Executive, can this issue not be looked at again and pushed for? It is not a matter of dispute in Northern Ireland. People right across the community, even at Queen’s University, want to see this development. Can it not be looked at and implemented soon?

[Baroness O’Loan]

Is the noble Lord aware that nationalists have indicated that they will attend Stormont on Monday. I do not know whether there will be an Executive, but I do know that nationalist politicians will be there and I encourage every politician to be there.

[Lord Alderdice]

I am aware that many may attend. That is not the point. The issues being referred to cannot be decided by the Assembly in the absence of an Executive. Anybody who knows about the politics of Northern Ireland—and the noble Baroness does—knows perfectly well that this is not yet the time for some people to participate in the Executive. That is political reality and it is ill advised for the Chamber to feel that another possibility for next Tuesday is a real one.

--- Later in debate ---

[Lord Duncan of Springbank]

My Lords, I begin where I think we need to begin. Everyone in this House are of the same view that we need to restore an Executive in Northern Ireland. There is no doubt about the importance of that, not just going forward, but for what could have been achieved, which we will never know. However, my right honourable friend the Secretary of State for Northern Ireland has been working tirelessly, and I am pleased that the noble Lord, Lord Murphy, has recognised that. He has been straining every sinew to try to bring the two principal parties and all the other parties together. In response to the question asked by the noble Baroness, Lady Humphreys, we have made and will make every effort to bring the five parties together to move that forward.

The challenge, however, is that the obligations of the Northern Ireland (Executive Formation etc) Act fall on the shoulders of the United Kingdom Government early next week. While the Assembly may seek to convene—I do not doubt it will do so—and while I do not doubt that there may be a broader base of attendance than might have been expected, it is unlikely to be able to deliver on those issues that some noble Lords have wished it to do this evening for the reasons raised by my noble friend Lord Caine and the noble Lord, Lord Alderdice.

I say that with some regret because we all recognise the value of that. As has been pointed out by the noble Lord, Lord Murphy, this is a time when we would have valued that information. But I do not believe that, unless we make some serious progress on Monday, we will face anything other than the reality that the United Kingdom Government will take forward their obligations. That is how the Northern Ireland (Executive Formation etc) Act was formed. We did so recognising that, once we had taken on the obligation, we would see it through to its fulfilment. Whether that is deemed right or wrong, it is the law of the land and is exactly what we will do.

I shall take some of the points in reverse, as that may be easier. In response to the question from the noble Baroness, Lady Humphreys, about donations, the issue is that none of the parties has expressed any change in its view about backdating. The sister party of the Liberal Democrats here, the Alliance Party, has pushed strongest and most consistently for backdating, but other parties, notably the DUP and UUP, were keen for this to be a point going forward. Some of the other parties did not express a view on this, but none has changed its view. I am happy to write again to the noble Baroness with more details, but in the recognition that we need to bring this area to rest. I will write on that point.

My noble friend Lord Bates kindly brought the issue back to where we need to focus, for we are here today doing something that should be done elsewhere. As a number of noble Lords have observed, we have seen a deterioration of the situation in Northern Ireland, which is much to be regretted. The political vacuum that exists now will continue to be a problem. What we are doing here today is trying to address certain issues, in but a small moment in time. In truth, until an Executive is formed and the devolution situation works, we will not have adequate governance in Northern Ireland.

I hope that the deal spoken of by the noble Lord, Lord Murphy, delivers for Northern Ireland. I hope that that happening will take away one of the principal obstacles to the parties coming back together. We should be under no illusion that Brexit has been a factor in the parties’ approach to the situation. It would be remiss of me not to point that out. I therefore hope that a deal will remove one of the stumbling blocks—not the only one—and allow those parties to return to government, but, at present, we look forward to that, rather than being certain that it will happen.

I now turn to the conspicuous and very serious issue that has been raised by a number of noble Lords. That is abortion. I state at the outset that I believe this matter should have been taken forward by a devolved Executive. I am happy to put that on record once again. It will not be so; it will be taken forward by us. We have debated this more than once, and I want to correct some of the statements that I believe have been made in error.

The five-month period we talked about is the most challenging aspect of this. At the outset, we need to recognise that abortions in Northern Ireland can take place only in a registered clinic. Some have said that this can simply be circumvented if there is but one NHS employee. That is not true. The clinic still has to be registered and the NHS employee taking part needs the permission of the NHS commissioners. That has to be done formally. Therefore, this is not carte blanche for people to create an opportunity in secret, whether in a front street, a middle street or a back street. It was not designed to be that and it will not be that.

[Baroness O'Loan]

Perhaps when the Minister gets away from the House he could look again at Regulation 5.

[Lord Duncan of Springbank]

I am very happy to state categorically that in any clinic, even if it has one NHS employee, that employee must have the permission of the NHS commissioners. I will write on this point and lodge the letter in the Library to make it very clear that we eliminate this as an issue that might percolate back to Northern Ireland in a nefarious and bad fashion. Equally, it is important to stress that, should there be an attempt by any private clinic to seek registration, it will not be a simple or quick procedure. Certain obligations must be met, and they will be met very carefully during this period. It is important to stress that anyone who seeks to open a clinic that is not registered or that operates without due diligence will be subject to the criminal law, and that law will be broken if they do that. It is important to appreciate that in Northern Ireland.

Further, any independent practitioner who might wish to set up a practice must register with the Care Quality Commission. Therefore, again, it is not simply a question of wish fulfilment; they must undertake legal obligatory steps. The premises would need to be established and investigated, and it would be necessary to ensure that they met those criteria. I note that the period that we are talking of is five months. I also note that almost anything involving bureaucracy does not get resolved in five months.

It is also important to set out very clearly that guidance has already been issued by the GMC and the royal colleges to the practitioners in Northern Ireland so that they are aware that, should we be unable to form an Executive, those are the conditions under which they will operate. Any noble Lord who wishes to see those conditions can consult the Library or go to GOV.UK. We have been very clear and transparent, ensuring that they are clear.

[Baroness O'Loan]

I am very sorry and I do not intend to interrupt the Minister repeatedly but I would like to ask whether he accepts that the GMC guidance is predicated upon the Abortion Act 1967 and the obligations of doctors under that Act. In fact, the GMC is not a regulatory body or a law enforcement body, and practitioners in Northern Ireland cannot be asked to be bound by legislation that does not apply or guidance relating to legislation that does not apply.