Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Anderson of Ipswich Excerpts

2nd reading
Wednesday 23rd November 2022 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, two or three times a year I attend, for reasons unconnected with this Bill, human rights meetings of the Committee of Ministers of the Council of Europe in Strasbourg. The committee’s function is to supervise the execution of judgments of the European Court of Human Rights. Its members are neither lefty lawyers drunk on the elixir of judicial power nor campaigners for human rights—far from it. They are the ambassadors of the member states, representatives of the Governments who routinely have to respond to human rights claims brought against them, either in their domestic courts or in Strasbourg. As potential defendants themselves, each has a strong interest in ensuring that any measures required for compliance are practical—there but for the grace of God go they.

The committee’s workload, brought from 46 countries, is immense, but it has chosen to make this Bill, in the context of the McKerr judgment, one of its very small handful of top priorities. It has been debated anxiously and at length in successive quarterly meetings. This September, the committee urged the Government to amend the Bill, including by—I quote its decision—ensuring that

“the ICRIR is independent and seen to be independent; ensuring that the disclosure provisions unambiguously require full disclosure to be given to the ICRIR; ensuring that the Bill adequately provides for the participation of victims and families, transparency and public scrutiny”.

The committee also urged the Government to reconsider the scheme for immunity and expressed “serious concern” about the arbitrary way in which ongoing inquests are dealt with. It will debate the Bill again next month.

The committee’s decision represents a consensus that Articles 2 and 3 as interpreted by the court require the Bill to be substantially amended in precisely the respects that have been identified by a wide spectrum of opinion, and not only legal opinion, here at home: consultation, independence, disclosure, participation, transparency and immunity.

Those concerns are close to those of the Commission for Victims and Survivors and reflect the principles that have been deployed to such good effect by Operation Kenova. Jon Boutcher’s remarkable work, and its legacy to date of more than 30 cases awaiting the decision of prosecutors, is proof that effective independent investigation can take place in a fully human rights compliant manner.

I invite the attention of noble Lords to the independent review of human rights compliance conducted last year for Kenova by Alyson Kilpatrick, who was my special adviser in Northern Ireland when I served as Independent Reviewer of Terrorism Legislation and is now the chief commissioner of the Northern Ireland Human Rights Commission. Ms Kilpatrick concludes of Kenova:

“without any hesitation, that in so far as Article 2 ECHR compliance is concerned, it is the exemplar of what such an investigation should, and can, be”.

So human rights compliance is attainable, even to the satisfaction of somebody the noble Lord, Lord Hain, rightly described as an exacting judge.

From these Benches, I can only guess at the political pressures the Minister is facing. He was an invaluable guide to me when I first started to visit Northern Ireland, he is engaged with us and he has given an impressive and heartfelt speech today. But this is not a happy time for the protection of human rights in this country. We somehow seem to be sleepwalking into a depressing world in which legal obligations are there not to be simply followed but rather to be taken into account, and in which Downing Street sources can be quoted as saying that the proposed Bill of Rights

“would allow UK courts to ignore European case law more often”—

as if departure from the international norms that we have done so much to create and to export across Europe is some sort of badge of honour.

In Northern Ireland, of course, the European convention is central to the political settlement and is understood by all communities in a way that is not always the case in England. If an excessively relaxed attitude to legal requirements cannot be eradicated from our political culture, let us at least ensure that it is excluded from the Bill.

We owe a great debt to the Joint Committee on Human Rights for its constructive work on these issues since the Bill left the Commons. The Constitution Committee has referred approvingly to its concerns. It was good to hear that the Government have sympathy with some of those concerns, though not, on the basis of what we have heard so far, those relating to the most fundamental issues in Part 3 of the Bill. In that connection, I hope the Minister will agree to reconsider the arbitrary distinction drawn between inquests in which a substantive hearing has or has not begun.

The elephant in the room is the issue of immunities for criminal investigation and prosecution for unlawful killings and torture. The McQuillan case is of course relevant to that issue, but not conclusive of it. I believe it is perfectly realistic to suppose that decisions to charge for Troubles-related crimes may be possible in England as well as in Northern Ireland and perhaps elsewhere.

I recall that even the overseas operations Act 2021, which caused your Lordships a good deal of unease and was substantially amended in this House, provided only for a presumption against prosecution, not for immunity. That Act affects the prosecution only of British forces. This Bill, as we have heard, will predominantly affect the holding to account of terrorists for their crimes. There seems to be something not quite right there. The Minister has indicated flexibility, and it sounds as though he may need it.

Let us turn over the stones that the noble and right reverend Lord, Lord Eames, mentioned in his moving speech. The current situation is far from ideal, and the Bill too will not be ideal—but I hope we will end up with something we can live with.