Northern Ireland Troubles (Legacy and Reconciliation) Bill

Debate between Baroness Smith of Basildon and Lord Dodds of Duncairn

Committee stage
Tuesday 24th January 2023 Lords Chamber

[Lord Dodds of Duncairn (DUP)]

My Lords, I want to briefly comment on Amendment 52, which the noble Baroness raised, in relation to the five-year limit. When the Minister replies to this group of amendments, I hope he will respond to this point.

The Minister said in the previous debate that, if someone did not co-operate with an ICRIR investigation or review, a criminal route remains open—I think I am quoting him directly. But this amendment points to the fact that the Bill provides for a five-year limit: unless a case is brought to the commission within five years it cannot be brought, and the commission is the only body that can investigate Troubles-related crimes. Therefore, if somebody does not co-operate, after five years the body will continue to exist but it will not be able to take on or open any new investigations. How is it that a criminal route remains open, as there is no other body and the police will be prohibited from investigating? There is no other body that can do any investigations, so after five years, there is no criminal route open; it ends at that point. I would like an explanation as to what the Minister meant by his statement that a criminal route remains open if you do not co-operate. Under the Bill, after five years no further new investigations can be launched, nobody can make a complaint and there is nobody else who can do any investigations.

[Baroness Smith of Basildon (Lab)]

My Lords, this has been a deeply respectful debate. A number of issues have come to light, and it would be helpful if the Minister could respond to them. Some of the issues are quite complex. I am grateful particularly to the noble Baroness, Lady O’Loan, for the experience that she brings to this.

I turn first to Amendment 1, in the name of the noble Baroness, Lady Suttie. This definition is something that the victims’ commissioner has raised with a number of Members of your Lordships’ House. The phrase “serious physical or mental harm” is really key here. Many of us have met victims who have suffered harm that is not always immediately evident. We have to look at this again, because there is no power for the definitions to be amended. Given the Government’s fondness for Sis—not that I am recommending this route—there possibly needs to be some discretion for the commission. We discussed this briefly with the Minister, and he is rightly wary of having a list, which can never be exhaustive, but this has to be revisited and looked at again. Some discretion might possibly be the way forward.

On the amendment of my noble friend Lord Hain, I do not know whether the Minister is considering opening this up. Operation Denton is due to report in spring next year—I know that is an elastic term in government announcements. We will come to our amendment on this later in proceedings, but to have this investigation running for so long and for it then to be ended by the Bill would clearly be the wrong thing to do. It seems a sensible process, and one that started in 2020, and the point made by my noble friend Lord Hain is well made. I would like to hear the Minister’s response to that so I can understand the timing.

There is no commencement time in this Bill. It would be helpful to know when, if the Bill were to conclude all its stages and become law, the Minister envisages that it would start. That is important in this context.

My noble friend Lord Browne talked about transparency. That is clear-cut: if we are to have confidence in a process, it needs to have transparency. I think it might be a mistake in the Government’s drafting that someone could be compelled to attend but not compelled to give evidence. That seems to be a bit of a loophole, and I hope that the Minister can come back with something positive on that. did

I turn to the amendment of the noble Baroness, Lady Hoey. I can see the point that she is trying to address, which was repeated by the noble Lord, Lord Weir—that in repeated inquiries it is the people who shout the loudest who have more access to the various mechanisms in place—but it seems to me to be a very absolute point. If compelling new evidence was brought forward, in any circumstances and by anybody, surely there should be the option for the commission to consider that compelling new evidence.

Northern Ireland (Ministers, Elections and Petitions of Concern) Bill

Debate between Baroness Smith of Basildon and Lord Dodds of Duncairn

Committee stage
Monday 13th December 2021 Grand Committee

[Baroness Smith of Basildon (Lab)]

My Lords, I welcome the Minister to what is probably his first Committee on a Bill in his new position. I am sure he will enjoy the experience in the Moses Room.

This is a probing amendment in my name and that of my noble friend Lord Coaker about an issue that I raised at Second Reading. Clause 2 advises that Ministers will no longer cease to hold office after the election of a new Assembly, and provides for a maximum of 24 weeks after an election, or 48 weeks since there has been an Executive in place, whichever is the shorter, in which Ministers may continue to hold office. We support the clause, but it would be helpful to have some guidance and clarity from the Minister on this issue.

I appreciate that some of this was first mentioned by Karen Bradley when she was Secretary of State back in 2018, when the Northern Ireland Civil Service was taken to court because it was felt that civil servants had exceeded their powers in taking decisions without ministerial direction. There has to be a way through that. When I lost my seat in 2010, I remained a Minister, but only for five days. You could say that under direct rule the situation was self-limiting for those of us who were Ministers, as we were not elected by anyone in Northern Ireland in terms of what we were able to do. The key question raised at Second Reading was what powers these caretaker Ministers will have and if there is any limit on those powers. In a number of areas there is a lack of clarity.

I was surprised by the comment made in the House of Commons by the Minister, who said that the courts will be able to deal with this. He said:

“given that legal safeguards are already in place”,

there is no need for additional statutory clarity, and:

“We also know that the courts are ready to step in, should Ministers act unlawfully.”—[Official Report, Commons, Northern Ireland (Ministers, Elections and Petitions of Concern) Bill Committee, 6/7/21; col. 70.]


I am not clear what a Minister “acting unlawfully” would be or where the limits would be. If the decisions taken are going to be controversial, some decisions can be delayed, but depending on where they are in the cycle of that decision-making process or when the Executive are likely to be up and running again, there may be quite a time lag.

It is better to know at this stage where the balance is and what the Government’s thinking is. Clearly, to have ministerial accountability is significantly better than leaving civil servants in the position where they are trying to make decisions without any ministerial direction, but I am really not sure where the Government think the clarity is. What is the point at which Ministers could not take a decision? It could be that a Minister had lost their seat or decided not to stand again, but remained a Minister. Where are the limitations on ministerial power if they are a caretaker Minister? I beg to move.

[Lord Dodds of Duncairn (DUP)]

My Lords, following on from the noble Baroness, Lady Smith, on this issue, it is an important area that deserves greater clarification.

We all remember the period when Northern Ireland was deliberately left ungoverned and civil servants had the most difficult task of all: having to keep their departments ticking over with no real precedent for any guidance as to the extent of their decision-making powers. Some Permanent Secretaries went a little further than others. I remember speaking to one particular Permanent Secretary who indicated that there was a live debate continued among the Permanent Secretaries as to the extent of their powers, and at one stage whether they should be doing some of the things that they were doing in the absence of political guidance. There was certainly a difference in emphasis.

We need to understand, and perhaps the Minister could clarify, what in essence the difference will be between the sorts of decisions that civil servants were taking during the period that we all know about, the three-year interregnum where there were no Ministers, and the decisions that Ministers in these circumstances will be able to take. Could he, for instance, give me a concrete example of a decision that a Minister could take as a caretaker under this that a civil servant could not have taken? I would imagine that they are pretty limited.

There has been reference to carrying on with the decisions that have been made by the Executive in the run-up to caretaker Ministers being in place and that such Ministers should follow the trajectory of the Executive in decision-making going forward. Thinking of the current circumstances regarding the Budget, which appears not to have found agreement in Northern Ireland—there is apparently some limited agreement on the priorities within it, but not all departmental allocations—yet it is out for consultation. What would an interim Finance Minister be able to do in such circumstances? A certain amount of guidance would have been given to him in this situation, but not any kind of final decisions on allocations. So, again, it is not an entirely academic hypothesis that a Finance Minister could find himself in such a position as a caretaker with the Budget in this kind of condition.

I know these are difficult circumstances, and we are trying to find a balance between having no governance and leaving the Province in some kind of sensible situation when it comes to governance in the absence of a full Executive, but I would be grateful if the Minister could try to address those particular issues.