Northern Ireland Troubles (Legacy and Reconciliation) Bill

Debate between Baroness Smith of Newnham and Lord Hain

Committee stage
Tuesday 24th January 2023 Lords Chamber

[Lord Hain (Lab)]

My Lords, in speaking—briefly, the Committee may be pleased to hear—to Amendment 136, I again thank the noble Lords, Lord Hogan-Howe and Lord Blair, and the noble Baroness, Lady O’Loan, for adding their considerable names. I am indebted to the noble Baroness for her forensic analysis and for bringing her long experience into the debate through her amendments.

We all understand that, due to the age and complexity of legacy cases, prosecutions will be rare—very rare—but it is important that the Public Prosecution Service for Northern Ireland is sufficiently resourced, with appropriately skilled and experienced lawyers, to promptly review cases referred to it by the commissioner of investigations of the ICRIR, and that is not happening at the moment in respect of the Kenova model. Families have been waiting many years to understand what happened to their loved ones. Delays in prosecution decisions must not be allowed to prolong the wait still further.

Currently, legacy cases are glacially slow, to be decided upon by the PPS Northern Ireland, and, when a decision to prosecute does result, those cases can be expected to take five or more years to come to a conclusion. These cases involve recurring legacy issues and present specific legal challenges, such as the admissibility of evidence, hearsay and the continuity of exhibits. They need to be dealt with by lawyers with experience and expertise in these matters. As an example, Operation Kenova now has 33 files with the PPS Northern Ireland for consideration. The first tranche of files was submitted in October 2019, over two years ago. For most of these cases, families have been waiting for more than 25 years, and in some cases almost 50 years.

The PPS Northern Ireland prioritisation criteria mean that legacy files are effectively put in a queue for examination, as resourcing and demand allow. Understandably, perhaps, given the resources available, priority is given to cases relating to current offences, so the review of legacy cases slips further and further backwards, to the frustration and unnecessary additional traumatisation of the families concerned. The Bill claims to be victim-focused, but it is time that legacy legislation actually demonstrated such an intention because, as currently drafted, it does not do so.

The way that the Public Prosecution Service for Northern Ireland reviews cases differs considerably from the way that terrorism cases are dealt with by the Crown Prosecution Service in England and Wales. The CPS has a specialist counterterrorism division that engages with the investigation team as soon as a file is submitted. Early joint case conferences with senior counsel and the investigation team are held to assist in understanding the evidential strengths and weaknesses of the file, enabling further evidential recovery and facilitating prompt decision-making. This collaborative approach allows a more informed understanding of the cases and speedy and effective decision-making. The PPS Northern Ireland simply does not have the resources to dedicate lawyers to legacy files in this way.

As part of this Bill, it is important that sufficient funding is allocated to the Director of Public Prosecutions for Northern Ireland to review files and make timely and good decisions on them. It is essential that the creation of the ICRIR is supported by robust operating practices within the Public Prosecution Service for Northern Ireland that must be adequately resourced to deal promptly with legacy files referred by the ICRIR Commissioner of Investigations.

In conclusion, the Minister cited resources as one of the reasons why he questioned the validity of the Kenova model being inserted into this Bill, as I am proposing to do on Report. The alternative to adequately resourcing this—and Jon Boutcher has already disputed that it will involve massive resources, at least compared to what has been devoted to these legacy cases in the past—is leaving victims betrayed. What is the point of this legislation unless it is to give some relief, closure and sense of justice, as well as, crucially, truth recovery, which is the predominant objective victims are seeking? If this Bill does not deliver that, and if the model adopted does not have the resources to deliver that, then it will fail in its objective, and we might as well say so. If the Government are going for a resource-thinned, slimmed-down operation, as I am afraid this Bill seems to propose—and the Minister’s response to the previous debate seemed to indicate that resources are one of his top concerns about the Kenova model—then they will leave victims completely dissatisfied. I do not think that is where your Lordships’ House wants to be, and I do not think that is where legislation seeking to bring to a head this whole legacy trauma should be either.

[Baroness Smith of Newnham (LD)]

My Lords, I speak for the first time on this legislation. During Second Reading, I was in the south Atlantic on the 40th anniversary of the liberation of the Falklands. Having expected to be fully part of the legislation, I have not been so far. I speak with a fair degree of trepidation because there are clearly so many experts and former Secretaries of State. When I speak on my normal portfolio, I feel as if I am probably just about pitching things right, and I hope this evening I manage to get the tone right.

First, I join the noble Lord, Lord Hain, in pointing out that we are indebted to the noble Baroness, Lady O’Loan. So many of the amendments on this Bill have been framed by the noble Baroness, who has reviewed the Bill forensically as far as anybody can tell. She has certainly caused these Benches to look at and think about some of the issues that have been raised.

In reporting, there is always a balance between needing to have appropriate reporting and putting too many requirements on to Ministers, officials and others. It is a tendency for opposition parliamentarians when amending legislation to say, “We’d like the Government to report on something.” Amendment 5 makes a lot of sense; we should not have excessive reporting expectations.

I have a few questions about the extent of the pressure we are putting on officials. Would we be able to deliver some of the amendments being proposed? Also, one of the issues that has come up across this group seems to be about resources. One of the issues for your Lordships’ House is that, if something is deemed to be a finance Bill—if we say there needs to be resources—at some point the other place might say “That is not your remit.”

One of the things I want to ask the Minister is the extent to which he envisages it being possible for the Government to look at the appropriate resource to enable the aims and ambitions of the Bill to be fulfilled. As the noble Lord, Lord Hain, pointed out, there is not a great deal of point in pushing through legislation, which in itself is disputed and contested by so many, if, in the end, victims feel that their cases are not being looked at adequately. Can the Minister either tell the House or undertake to go away and consider whether it is realistic to be thinking about resources to ensure that His Majesty’s Government will provide additional funding to investigate legacy cases, so that those do not fall on the budget of the current Government of Northern Ireland? That seems to be something which we ought to look into.