Northern Ireland Troubles (Legacy and Reconciliation) Bill

Debate between Baroness O'Loan and Lord Hogan-Howe

Committee stage
Tuesday 24th January 2023 Lords Chamber

[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?