Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Browne of Ladyton Excerpts

Report stage
Wednesday 21st June 2023 Lords Chamber

“must have regard to the need to ensure that— (a) there is support from different communities in Northern Ireland for the way in which that programme is carried out, and (b) a variety of views of the Troubles is taken into account in carrying out that programme”.

[Lord Browne of Ladyton (Lab)]

My Lords, I will speak to Amendments 71, 72, 73 and 74 in my name, which are amendments to Amendment 70, tabled by the Minister, who has continued diligently to engage with all shades of opinion in your Lordships’ House. Like other noble Lords, I thank him for that.

For the reasons given, I support the amendments in the name of my noble friends Lord Hain and Lord Murphy of Torfaen. At this stage, I feel no need to go over those reasons again. In proposing these amendments, I am conscious that, when juxtaposed with the larger issue of immunity itself, they are confessedly procedural and administrative in their scope. But they do seek to do something in the province of responsible legislation: they anticipate that which can be anticipated, minimise the effect of contingency and, in this particular case, ensure that, if the chief commissioner is unable to consider requests for immunity—whether for reasons of misadventure or owing to a potential or perceived conflict of interest, or for any number of reasons—there is a person empowered to do so. To some extent, this has been anticipated by Amendment 70 in the name of the Minister.

While the government amendment is welcome, the amendments I have tabled seek to do three specific things. Amendments 71, 72 and 73 mandate the appointment of a deputy for the chief commissioner. This deputy would be appointed by the Chief Commissioner immediately upon their own appointment and would be empowered to exercise some or all of the immunity functions if the chief commissioner were absent or otherwise unable to do so. I believe that the mandatory appointment of such a deputy would better ensure a consistency of approach, strengthen institutional memory in respect of such decisions and place a further brick in the wall dividing the Secretary of State—mindful as I am of new subsection (7B) in Amendment 70—from the fraught question of immunity.

Where Amendment 70 seeks to engage that eventuality by recourse first to a rapid nomination by the chief commissioner and, if that is not possible, through an ad hoc appointment by the Secretary of State, my amendments would see such a person already in place. This person would be fully briefed on these issues and placed in their position by the chief commissioner at the start of their term.

Given that new subsection (7C) in Amendment 70 quite rightly mandates that a stand-in for the chief commissioner must have held high judicial office, it is evident that one of the qualities such a person must possess is impartiality. Surely, being appointed by the Commissioner rather than by an active politician in the shape of the Secretary of State would strengthen claims to judicial objectivity rather than the reverse. Moreover, having a named deputy in place from the beginning of the chief commissioner’s term will provide confidence that, where decisions must be made in his absence, they will conform with the standards set by the chief commissioner and follow the tramlines of decision-making in a manner that is consistent across all cases. I beg to move.

[Viscount Brookeborough (CB)]

My Lords, I have listened to everything. I have not bothered to intervene because I basically agree that this is not a great Bill and that all we can hope to do is make it less damaging to what is happening in Northern Ireland.

The one thing that strikes me is that reconciliation is on the face of the Bill. I have been struggling with that and with the definition of “reconciliation”. I decided to look it up on my phone. It is on the face of the Bill: therefore, it is the number one objective of the Bill. If we had reconciliation, we would not be worried about the other things. “Reconciliation” is defined as

“the restoration of friendly relations”

and

“the action of making one view or belief compatible with another”.

The definition goes on to say

“an act of reconciling, as when former enemies agree to an amicable truce”.

The problem is that we know that there is not an amicable truce. We know from the glorification of terrorism and lots of other parts of what we have been discussing that that is not there. Yet it is on the face of the Bill as being the number one objective.

What troubles so many of us in Northern Ireland, whether our families have directly suffered a death, or for all the people we k now who have suffered and their families—one family has been mentioned; three of my soldiers were killed, one after the other, and a sister was mown down on a checkpoint for serving in the security forces—is that the people in Northern Ireland see the Bill coming and would love to have reconciliation but the Government are not giving one little inch to assuaging their lives and their fears. I know that there have been amendments, and everybody is very grateful for that, but, if people are to accept this and if it is to work, there has to be something significant, so they actually feel that it was made for them.

All I plead is this: we really hope that the Government accept some of these amendments, which will enable people to say “Yes, but they have done this and they have worked towards us, and we want to make it work”. We know that at the moment virtually nobody in Northern Ireland is saying that.

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So, I have tabled Amendment 110, which is supported by the noble Baronesses, Lady Ritchie and Lady Suttie, and the noble Lord, Lord Murphy. I ask your Lordships to support this amendment, which I intend to press on Monday, and to allow the outstanding inquests to continue.

[Lord Browne of Ladyton (Lab)]

My Lords, I stand to speak to Amendments 100, 103, 104 and 148 in my name, which are in this group. I find difficulty in explaining this: there are other amendments in my name in this group. Respectfully, they are Amendments 101, 149 and 150, and the fact that they are in this group concerns me because they are consequential to Amendment 123, which is in the eighth group. I will take advantage of raising this: Amendment 123 simply seeks to remove the phrase,

“the actual date of the First Reading”,

from the Bill and to substitute the actual date of the First Reading, which was 17 May 2022. That will probably save me a few seconds when we come back on Monday. That is the position.

Before I turn to Amendments 100, 103, 104 and 148, I will say two things. I fully support Amendment 110 in the name of the noble Baroness, Lady O’Loan, and will vote for it if she divides the House. I thank the noble Lord, Lord Caine, for addressing an issue that I raised in Committee about respect for devolution and the recognition that Scotland has had a separate jurisdiction from England since 1707 in the context of the UK and the role of the Lord Advocate. He has tabled an amendment to ensure that, in circumstances where, following a review, the commissioner for investigations considers that there is evidence that an offence has been committed, a referral must be made to the Lord Advocate where the suspected offence is an offence under the law of Scotland.

Insofar as it goes, this respects devolution. New subsection (2C) in the amendment reads as follows:

“The Lord Advocate may direct the Commissioner for Investigations to exercise the power of referral and notification in accordance with subsection (2B); and the Commissioner must comply with any direction that is given unless the person concerned has been granted immunity from prosecution under section 18 for the offence concerned”.


So, the commission still has the power to impact or to make a decision which will have extrajudicial impact in Scotland. That of itself, I suspect, will be considered disrespectful of devolution by the Scottish Parliament. That is perhaps a debate for another day, but I imagine that that debate will have to be had.

I return to Amendments 100 and those following. In tabling and speaking to these amendments, I am seeking to ensure that civil actions relating to the Troubles are not discontinued precipitately; that we reduce the risk of non-compliance with our obligations under Articles 2 and 6 of the ECHR; and that we preserve for a period of time a path to justice—albeit narrowing—for those families whose concerns, after all, ought to be paramount as we seek to improve this legislation.

Amendment 100 removes the blanket proscription on Troubles-related civil actions continuing on or after the day this Bill comes into force and instead allows such civil actions to be brought up to three years after that date when necessary. Given that, as we know, the ICRIR does not provide a legal remedy for victims and their families, surely accompanying the Bill’s other provisions with a complete ban on civil actions adds an element of insult to injury. Perhaps more seriously, this precipitate closure of an avenue towards civil redress, as I explained in detail in Committee and will not repeat, directly engages the UK’s obligations to offer access to a court under Article 6 of the ECHR.

As this Bill has journeyed through its various stages in your Lordships’ House, we frequently heard concerns about the degree to which the scope and powers of the ICRIR may already compromise access to justice, echoing the view of the former Northern Ireland Director of Public Prosecutions, who suggested that the Bill is incompatible with the ECHR as it abolishes due process. Surely, precluding the possibility of any further remedy through civil actions only imperils compliance with our ECHR obligations still further.

In considering the amendments I have put forward in this group, I returned to the official record of the Committee debates and re-examined the Minister’s response, which was characteristically thorough and generous of spirit. In his response on civil claims, he outlined three principal reasons that underlie his desire to discontinue all civil claims as outlined in Clause 39. He expressed concern, first, that they may impose an additional burden on the already backlogged Northern Irish civil courts; secondly, that they might reduce the status of the ICRIR as the primary institution dealing with Troubles-related offences; and, thirdly, that a three-year deadline might concentrate minds and lead to an enormous number of filings before this avenue of recourse is removed.

My answer to the first of these reasons is quite simple. Where families feel that a civil action is more likely to bring them the justice they seek, surely, administrative sclerosis is not an adequate reason for denying them that recourse. There are plenty of examples of this. Although I understand that the pandemic exacerbated the already considerable difficulties in this area, I struggle to countenance the idea that the solution to a struggling justice system is to deny justice to specific groups, rather than for the Government just to get to grips with the problem and make access to justice easier.

On the Minister’s second concern, I understand his need for the ICRIR to establish itself as the primary actor in Troubles-related offences, but while that imperative is important, it is surely trumped by the interests of the families it will be established to serve. Where they feel that civil action is their preferred recourse, the institutional interests of the ICRIR are, to say the least, secondary.

On the third point, about the possibility of a flurry of actions being filed to meet the three-year deadline, what is wrong with that? Some 25 years ago, I regularly appeared before courts and quite often asked judges to do things. On occasion, the judges would say to me, “But Mr Brown, that will open the floodgates”, or the people on the other side of the argument would say that it will open the floodgates. I developed quite a neat line, which was to say, “My Lord, this is a court of justice. If you are considering granting justice to one person today, it’s hardly a reason not to do so because somebody will come and ask you to do the same thing tomorrow”. That is what courts of justice are there for. Again, I appreciate the level of the backlog being worked through by the Northern Irish courts, but ultimately it is their job to dispense justice.

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[Lord Caine (Con)]

It is assessed in the normal way, which the noble Baroness will know, in Northern Ireland. Inquests are covered by legal aid. The noble Baroness will know from looking at the Bill that cost proceedings where civil cases have begun can be continued. Anyway, I just wanted to try to be helpful to the noble Baroness in clarifying that.

[Lord Browne of Ladyton (Lab)]

I apologise for intervening on the Minister, but he did provoke me. My amendments relate to civil proceedings in these islands. There are sophistications about this, but broadly, costs go with success. In civil litigation, the people who win get costs against the people who made them go through the process in the court, at all that expense, but lost.

If the Government prevent anybody from winning or losing, who is going to bear the costs? I would find no difficulty in persuading a court that my party to a civil action had not lost at all. Therefore, we are both left with our own costs. However, the Government are responsible, through this legislation, for that cost for both of us. Neither of us had the opportunity to win, so we would come to the Government looking for costs. Either the Government will anticipate that in this legislation, or they will have to legislate for the number of people who have had civil claims stopped.

[Lord Caine (Con)]

Well, maybe I was very mistaken in trying to answer some of the questions put to me. I was merely setting out what is stated in the legislation, as the noble Lord will appreciate. I thank him. I do not intend to go over all the same arguments we have had extensively on all these matters, particularly at this late hour.

Moving on to the amendments in the name of the noble Lord, Lord Browne of Ladyton, on civil claims, as has been set out many times, our clear policy intent regarding Troubles-related civil claims is to reduce the burden on the Northern Ireland civil courts, which are ill-equipped to process such numbers, while allowing the ICRIR the ability to establish itself as the sole investigative body looking at Troubles-related deaths and serious injuries.

The amendments in the name of the noble Lord, Lord Browne, include Amendment 159. This would provide a three-year grace period for civil claims to be filed and would direct potential casework away from the new commission while placing further strain on an already creaking system in Northern Ireland. Under current estimates, it will take decades to work through its current backlog of over 700 cases. This is much less likely to provide answers for families in an efficient manner, which, again, sits in opposition to the stated aims I have set out.

In relation to Amendment 104, I remind the House that all civil claims filed before the date of introduction—over 700 cases—will be able to continue to conclusion. Claims that were filed following the Bill’s introduction, and with the knowledge that this prohibition would come into force when the Bill became an Act, will not.

In response to Amendment 98A in the name of the noble Lord, Lord Dodds, I sympathise with the sentiment behind the amendment, which is to provide additional scope for prosecutions to proceed. The amendment tabled in my name provides additional time, until 1 May 2024, for prosecution decisions to be made by prosecutors. It is the Government’s hope that, with this additional time, resources can focus on concluding a number of decisions in legacy cases before the cut-off point of 1 May 2024, when the commission will become operational.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Browne of Ladyton Excerpts

Committee stage
Thursday 11th May 2023 Lords Chamber

Moved by

[Lord Browne of Ladyton]

146: Clause 34, page 28, line 10, leave out “continued or”
Member’s explanatory statement
This probing amendment deletes “continued or” from Clause 34(1).

[Lord Browne of Ladyton (Lab)]

My Lords, I will also speak to Amendments 155 and 156, and to consequential amendments 152 and 157 to 161. These are supported variously by the noble Baroness, Lady O’Loan, and my noble friends Lord Murphy of Torfaen and Lady Ritchie of Downpatrick. My preference would be to see the removal of Clauses 39 and 40 from the Bill, as proposed by the noble Baroness, Lady O’Loan, and my noble friends Lord Murphy, Lady Ritchie and Lord Hain. However, I will restrict myself to the amendments in my name.

I take this opportunity to thank the Minister for his continued engagement on the Bill with me and others. I am sure we will have an opportunity in future to discuss some of the significant lengths he has gone to since the Committee last met to deal with some of the issues we have raised. In my view, some of these amendments make parts of the Bill—which I do not fundamentally support, but that is another matter—slightly more palatable. The Minister is very open and has done prodigious work in this regard, as have his officials, who are doing a very good job. They are admired by all noble Lords who have been engaged in this process.

Truth and justice are not merely two sides of the same coin; they exist in active relation to one another. They both are—and must be—indispensable elements of an alloy that can carry and sustain a lasting peace in Northern Ireland. Amendment 146 and its consequential amendments delete the time-limiting element of Clause 34, thus preventing criminal investigations being discontinued precipitately. I do not wish to stray into broader territory that is more customarily the stuff of Second Reading debates, but I wish to adduce an example that shows why this is important. In August 1974, John Pat Cunningham was shot and killed by a British serviceman. The soldier in question was finally put on trial in Belfast in 2021, 47 years later.

There are other families from all communities in Northern Ireland in that position—seeking justice for the deaths of loved ones. In earlier debates on this subject we heard of the case of Malvern Moffitt, murdered by IRA terrorists around 40 years ago. That is not an uncomfortable footnote in history but a tragedy whose concentric circles continue to lap at his family. His widow has expressed her profound upset at the prospect of the Bill in its current form receiving Royal Assent. His children gave a powerful and moving television interview in response to the Committee stage in the other place last year—something that should give us pause today.

Noble Lords will be familiar with the rule 9 submission by the Council of Europe Commissioner for Human Rights, dated 16 August 2022, which specifically focuses on this Bill. The submission is informed by a year’s close monitoring of the Government’s legacy proposals, engagement with the different stakeholders and, during a week-long visit, engagement with the Minister and his officials in the NIO.

I direct your Lordships’ attention to paragraph 15 of that well-written and comprehensive submission, which reads:

“In her September 2021 letter, the Commissioner already highlighted the importance of the interaction of different mechanisms in ensuring justice, truth and reconciliation. With regard to justice, it was noted throughout the visit that other mechanisms than prosecutions, such as inquests, Police Ombudsman investigations and civil proceedings have often been instrumental in uncovering information that could subsequently be used to ensure accountability. Furthermore, the various mechanisms have been able, to some extent, to cater for the different needs of victims, since these will not be the same for all. At the end of her visit, the Commissioner noted in this respect that ‘unilaterally shutting down options that many victims and families value greatly as part of their way of dealing with the past ignores their needs and wishes, and is causing many of them deep distress’”.


This is a question not merely of fairness but of compliance under our Article 2 ECHR obligations. In raising the question of these obligations, I realise that I am failing to conform with recent innovations whereby breaching these obligations is advertised as a bold innovation rather than a prohibition. In the case of Armani Da Silva v the UK, the court ruled that:

“Having regard to its fundamental character, Article 2 of the Convention contains a procedural obligation … to carry out an effective investigation into alleged breaches of its substantive limb”.


The question of effectiveness is crucial. I will quote further from that decision, as it speaks directly to what constitutes an effective investigation. If an investigation is to meet the preconditions of effectiveness, it must have the possibility of leading to punishment. The relevant passage runs:

“In order to be ‘effective’ as this expression is to be understood in the context of Article 2 of the Convention, an investigation must firstly be adequate … This means that it must be capable of leading to the establishment of the facts, a determination of whether the force used was or was not justified in the circumstances and of identifying and—if appropriate—punishing those responsible … This is not an obligation of result, but of means”.


This seems both compelling and clear. It would be useful to know with what elements of that judgment the Government wish to disagree and upon what authority such a disagreement might rest. In this context, it may be worth recalling the words of the Minister for Veterans Affairs, who, in giving evidence to the Joint Committee on Human Rights in 2020, conceded that there had been

“a serious generational problem with the standards of investigations”

carried out into the conduct of British servicemen and that

“a lot of the investigations have not withstood rigour as regards ECHR compliance”.

He concluded those remarks by stating boldly that that

“has been a major problem”.

I regret to say that as it stands, this Bill will deepen and not mitigate that problem.

This same question of Article 2 compliance also underlies Amendments 155 and 156, together with their consequential amendments. Probing Amendment 155 would delete Clause 39(1) from the Bill. That subsection states:

“A relevant Troubles-related civil action that was brought on or after the day of the First Reading in the House of Commons of the Bill for this Act may not be continued on and after the day on which this section comes into force”.


Again, this seems to breach not only the demands of natural justice but our Article 2 obligations. Amendment 156 in my name and that of the noble Baroness, Lady O’Loan, and my noble friend Lord Murphy seeks to defang this particular risk by deleting the words “on or after” from Clause 39(2) and substituting “three years after”. The amendment would ensure that a Troubles-related civil action can be brought up to three years after the coming into force of Clause 38.

Amendments 155A, 161A, 161B and 178A are easy to explain. Clause 52(8)(c) refers to the

“actual date of the First Reading”.

The actual date was 17 May 2022, so the formula proposed in Clause 52(8)(c) is unnecessary if the Bill is otherwise amended to refer to 17 May 2022, which is exactly what this group of amendments does.

Lastly, I turn to the role of the Secretary of State in curtailing criminal investigations. Under these provisions, as it stands, it threatens incompatibility with Section 48(5) of the Scotland Act 1998. Two committees of the Scottish Parliament examined the Bill, and the consequent legislative consent memorandum points out that the Bill makes “novel and unwelcome changes” to the functions of the Lord Advocate as the head of the systems of criminal prosecution in Scotland. In particular, the power of the ICRIR to refuse to refer appropriate cases to the Lord Advocate compromises their independence, a supposedly inviolable principle under-pinning the whole architecture of the Scottish legal system. I would be grateful if the Minister made it clear why, and in what way, he believes that the role of the Lord Advocate is not compromised as I have outlined. Passing legislation aimed at bringing harmony to one constituent part of the United Kingdom by creating constitutional problems in another seems at the very least a somewhat quixotic way to proceed.

I would be grateful if the Minster could answer these questions of compatibility. If he is not disposed to accept these amendments, could he further explain how the Government will ensure that these provisions do not breach our obligations, both in the context of my earlier points on Article 2 of the ECHR and this Bill’s compliance with the Scotland Act 1998? I beg to move.

[Lord Faulks (Non-Afl)]

My Lords, I shall speak to Amendment 154A. I apologise for my late arrival to the debate on this important Bill, and for the lateness of this amendment, in my name and that of the noble Lord, Lord Godson.

At first sight, noble Lords may be a little bewildered as to where the amendment is directed. It arises out of a decision of the Supreme Court in a case concerning Gerry Adams. The decision was given on 13 May 2020.The only judgment of the court was given by Lord Kerr, who described the regime in Northern Ireland, commonly known as internment. As many noble lords will be aware, the way in which interment operated was initially by an interim custody order, or ICO, which was made when the Secretary of State considered that an individual was involved in terrorism. That person was taken into custody and had to be detained there, to be released within 28 days unless the chief constable referred the matter to a commissioner. Detention continued while the commissioner considered the matter. If satisfied that the person was involved in terrorism, the commissioner would make a detention order. If not so satisfied, the release of the person detained would be ordered.

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[Lord Caine (Con)]

As the noble Baroness is aware, claims that were filed before the introduction of the Bill last year will be allowed to continue, but there will be a cut-off thereafter. As she is also aware, other avenues are available for compensation which Parliament has introduced in recent years, such as payments for those who were injured and so on in the Troubles.

[Lord Browne of Ladyton (Lab)]

My Lords, I will be brief. I thank the Minister for his characteristic way of responding to debates such as this. Subject to a few interventions on parts of the argument that noble Lords thought he had not dealt with, he covered the debate, as he always does, very comprehensively. He is probably the most open Minister I have ever been involved with in debates in your Lordships’ House. He did it at speed, though, so this issue probably bears some consideration between now and Report. In any event, he is inviting us to do that and will be doing it himself.

I thank all noble Lords who have contributed to the debate. My amendments were probing in nature, but once grouped with the amendments from the noble Baroness, Lady O’Loan, and the noble Lord, Lord Dodds of Duncairn, this became a comprehensive debate on issues that the noble and right reverend Lord, Lord Eames, correctly described as, in the view of many, the greatest failure of this legislation. This debate is about the scale of that failure. I admire the Minister’s ability always to defend the Government’s policy intent, but we have an argument with that intent. The fundamental challenge of this debate is that others, almost universally, think that the policy intent is wrong and that the sacrifices having to be made in other areas, such as the needs of survivors and victims, should not be made. In any event, I do not propose to say anything further on this.

Before I sit down, however, I must make some reference to Amendment 154A, and I do this in a personal context. Between 2001 and 2003, I was a Parliamentary Under-Secretary of State in the Northern Ireland Office. I signed a number of warrants—thankfully, none authorising an interim custody order—some of which were on behalf of my noble friend Lord Murphy of Torfaen when he was Secretary of State. So, if the implications of the current state of the law are sufficiently far-reaching, they may reach me as well. I am not sure that they are: I got notice of this amendment very late and have had insufficient time to look at it and its implications.

The noble Lord, Lord Faulks, will appreciate that, while, on the face of it, I was persuaded of the importance of this amendment—or at least part of it—by his introduction and the other contributions, I will keep my powder dry until Report, when I am sure it will come back. In the meantime, I beg leave to withdraw the amendment.

Amendment 146 withdrawn.

Omagh Bombing

Lord Browne of Ladyton Excerpts

Thursday 9th February 2023 Lords Chamber

[Lord Caine (Con)]

I am most grateful to my noble friend for her comments and question. She will be aware that, in the course of meeting many victims’ groups in Northern Ireland, I have had similar points put to me, not least by the South East Fermanagh Foundation in the constituency the noble Baroness used to represent in the Northern Ireland Assembly. Others have made the similar points over the years also. My noble friend is right to point out that Justice Horner did express a desire that a simultaneous Article 2-compliant investigation should occur in Ireland. He recognised it was not within the court’s power to order a cross-border investigation, and nor is it in the power of His Majesty’s Government to compel the Irish Government to do so. However, it is an issue which I take seriously, as do many others, and I will raise this again, including when I next see Irish Ministers to discuss legacy matters in Dublin or elsewhere, which I hope to do very soon.

[Lord Browne of Ladyton (Lab)]

My Lords, I support this decision while noting, as other noble Lords have done, including the Minister himself, that we cannot fully scrutinise it until we know who the chair will be and the finalised terms of reference for the inquiry. I wish to associate myself with the words of sympathy, support and admiration for the Omagh families, and Michael Gallagher in particular, who tragically lost his son, Aiden, in this dreadful atrocity. They have shown amazing resilience.

I commend this Statement in particular because I think it very fully sets out the history of investigations and inquiry thus far and shares with us the factors which were taken into consideration by the Secretary of State, the department and, I suspect, the Minister who is answering these questions, in coming to this decision.

Following on from the question the noble Baroness, Lady O’Loan, asked the Minister, does the Minister appreciate that the process of thought in this Statement, which inexorably leads to the conclusion that a judicial inquiry is necessary to meet the Government’s Article 2 procedural obligations under the European Convention on Human Rights, provides a template for any future legal challenge that will undoubtedly follow the passing and implementation of the provisions of the Northern Ireland Troubles (Legacy and Reconciliation) Bill, if it passes this House in its present form?

[Lord Caine (Con)]

I am grateful to the noble Lord, who is another distinguished former Northern Ireland Office Minister. He referred to Article 2 obligations, and of course His Majesty’s Government do take those obligations very seriously and considered them carefully when coming to the decision in this case. I am grateful to him for his support for the decision that has been taken. He will be aware, notwithstanding, that it would simply be impossible to have a public inquiry into every unsolved killing in the Troubles. What we are trying to do in the legacy Bill, as I have explained on a number of occasions, is provide more information about what happened to loved ones, victims and survivors of terrorism. We are confident that the bodies that will be established under that legislation, should it pass your Lordships’ House, would be Article 2-compliant and the noble Lord will be aware that I brought forward amendments in Committee to make it very clear on the face of the Bill that Article 2 obligations would be met. I will continue to look at that issue as it progresses further through your Lordships’ House.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Browne of Ladyton Excerpts

Committee stage
Tuesday 31st January 2023 Lords Chamber

Moved by

[Lord Browne of Ladyton]

12: Schedule 1, page 50, line 34, leave out “Secretary of State” and insert “Northern Ireland Judicial Appointments Commission”
Member’s explanatory statement
This and subsequent probing amendments in the name of Lord Browne remove the Secretary of State from various roles in connection with the appointment and holding office of Commissioners.

[Lord Browne of Ladyton (Lab)]

My Lords, I will speak to Amendments 12 and 13 in my name and those of the noble Baroness, Lady O’Loan, and my noble friend Lord Murphy of Torfaen; Amendment 16 in my name and that of the noble Baroness, Lady O’Loan; Amendments 24 to 30 inclusive, which are all consequential; and, finally, Amendment 178, which will not detain us for very long.

Amendments 12 and 16 and their consequential amendments are probing amendments. Their effect is to remove the Secretary of State from the various roles in connection with the appointment and holding office of commissioners of the ICRIR, which, with the leave of the House, I will hereafter refer to as “the commission”. The amendments would replace the Secretary of State with the Northern Ireland Judicial Appointments Commission —NIJAC.

As it stands, the Bill confers sweeping powers on the Secretary of State, including the power of appointment to the newly established commission and powers over the process of the commission itself. These powers include but are not limited to: control over the commission’s funding; the power to request reviews; the appointment of commissioners; the devising of procedures for dealing with requests around immunity; the power to withhold permission for the disclosure of sensitive information; the power to terminate a review on national security grounds; and, most importantly, the power to wind up the commission itself.

The Government have noted the concerns relating to the commission’s lack of independence and have proposed an amendment to strengthen the commission’s independence by making it clear that the Secretary of State should consult individuals before appointing the chief commissioner. It is clear that independence is a precondition for investigations to satisfy our obligations under Article 2 of the ECHR. The purpose of the probing amendments in my name, and the consequential amendments, is to discern to what extent the extraordinarily wide-ranging powers conferred on the Secretary of State, even after the Government’s amendment, compromise that independence and risk a breach of our ECHR obligations.

One of the functions of independence is securing public confidence in the operation of investigations; to do that, it is necessary for the investigations to be independent—and to be seen to be independent. The role of the Secretary of State in relation to the commission, as currently envisaged, has attracted criticism from all communities in Northern Ireland. The Government have assured us that the commission will have full operational independence; we are assured that that includes the establishment of terms of reference, the appointment of staff and the making of all decisions related to the conduct of investigations. Of course, the commission may appoint its own staff, but that will be done by the commissioners appointed by the Secretary of State. The commission may make decisions related to the conduct of investigations, but with the hand of the Secretary of State ever present and able either to block disclosure or to shut the body down altogether. The commission may make decisions related to immunity applications, but only if the salient question is whether the applicant is telling the truth to the best of their knowledge and belief, and they must take account of any guidance given by the Secretary of State about when that condition is met. It is difficult to consider that a genuine and objective decision at all.

Defending the system, the Government have cited the Northern Ireland Human Rights Commission and various independent public inquiries as precedents, suggesting that it is common practice for the Secretary of State to appoint commissioners or chairs to organisations which enjoy absolute operational independence. The problem is that that is not comparing like with like; there is no way that an individual inquiry or human rights body with limited powers is comparable with the amount of responsibility being placed on the commission by the Bill. That responsibility is to provide the sole route to justice for anyone who lost a loved one during the Troubles.

Noble Lords will have noticed that my amendment does not seek to address all the powers of the Secretary of State. Because of its probing nature, it concentrates, in this form, on only some of those powers, particularly as there is a genuinely independent alternative to the Secretary of State: the Northern Ireland Judicial Appointments Commission. Additionally, the commission’s functions include:

“To select and appoint and recommend for appointment, in respect of all listed judicial offices up to and including High Court Judge … To recommend applicants solely on the basis of merit … To engage in a Programme of Action to secure … that appointments to listed judicial offices are … reflective of the community in Northern Ireland.”


Again, that provides independence, but, crucially, it does so in a way which is transparent and will disarm those who may suggest that the commission is simply an arm of the UK Government in Northern Ireland. Why not forestall those criticisms and remove the Secretary of State from the area of appointments altogether? The NIJAC is accustomed to appointing those who fulfil statutory requirements and who are of good character and have integrity. Furthermore, the link between the commission and the judiciary is embedded in the Bill, as the chief commissioner must be a person who holds, or has held, high judicial office, and almost all those candidates have been appointed to their judicial role by NIJAC.

In addition to the issues with the composition of the commission, many noble Lords will be aware of an uneasiness about how this body will work, from where it will derive its legitimacy, what mechanisms exist for scrutiny, and, where necessary, how we can ensure that it is responsive to concerns in a way that is not simply subject to the fiat of whichever Secretary of State happens to be in post. Those issues speak to a wider systemic problem with the Bill.

The delegated powers memorandum contains a remarkable paragraph which encapsulates my concerns and those of other noble Lords:

“Legacy matters are highly controversial, politically charged and divisive in Northern Ireland. A vast number of issues remain unresolved as a result of political and societal impasse and there is no single accepted or agreed way to address them … There is a very real prospect that providing the Northern Ireland Assembly with the power of veto in relation to delegated powers could frustrate the purpose and application of the provisions in the Bill, which in the Government’s view is necessary to achieve progress and reconciliation in Northern Ireland.”


That is an explicit acknowledgment that the Government have decided to exclude the elected representatives of the people of Northern Ireland from important decisions for fear that they will not agree with the direction of travel determined from London. If we were to mould the Bill into a shape which will satisfy everyone in Northern Ireland and be seen as an attempt, in good faith, to further the course of reconciliation, the composition of the commission will need to be seen as independently determined.

Further, it will need to be seen as an avowedly apolitical body aimed at achieving a true incremental reconciliation woven from the skeins of public opinion in Northern Ireland, not a reconciliation based on our perceptions in London. I do not propose to put my amendments to a vote but urge the Government to engage with their provisions critically and take appropriate steps before Report.

I intend to dispose of Amendment 178 at the earliest possible opportunity. Consequently, with the leave of the Committee, I shall say no more about it. I beg to move.

--- Later in debate ---

On that note, I invite noble Lords not to press their amendments, as I of course shall not press mine.

[Lord Browne of Ladyton (Lab)]

I thank the Minister for his characteristically engaging response. He addressed a significant number of the issues that I and other noble Lords raised, reflecting the co-operation that we have all had from him, his Bill team and his private office. I have previously expressed my thanks for that but I am perfectly pleased to associate myself with the words of other noble Lords on that issue.

The one thing that is certain about the Bill, if it becomes an Act of Parliament, is that the independence of the ICRIR will be tested in legal proceedings that will define independence for us. It will not be, as a number of noble Lords have suggested, a question of independence meaning different things to different people; in that context, it will mean some very specific things.

When I introduced this group of amendments, I sought to give some indication of what I think that body will look for in independence if it is to conclude that the process is complying with the European Convention on Human Rights and with our history and the rule of law in these islands. In my view, it is highly improbable—in fact, impossible—that it will conclude, with this level of political interference in the commission’s work and the way in which it has been set up, that this not only is independent but can be seen to be independent. That will be a significant flaw in the whole process. I think all noble Lords realise that. They may not agree with me that that will be the conclusion, but there is an overwhelming body of opinion and expertise out there that believes that is the case, and we have all been briefed on that.

I thank all noble Lords who have contributed to this interesting debate, particularly those who supported my amendments. Those amendments were intended not to be definitive on this whole issue of independence but to be a way into the debate, and I am glad to say that they succeeded in being that. I am particularly grateful to the noble Baroness, Lady O’Loan, for bringing in her contributions experience that showed that, beyond the points that I identified, there are other issues in the Bill that undermine independence.

I am grateful to the noble Lord, Lord Dodds of Duncairn. I share his view about the Bill, that this whole exercise is irredeemably flawed. The major issue that he raised, which is clearly foremost in his mind, is that of immunity, which we shall come to later today. I am focusing on independence at the moment, and in this group we are looking at independence. I cannot see how that can be consistent with what we have heard today from people with experience interpreting the words of the Bill and relaying to us, from their experience with victims, that there is concern here about the issue of independence.

I say to the noble Baroness, Lady Hoey, that the independence that I am talking about is not restricted to any part of the geography of these islands. It is independence from political control at a level that does not allow the informed examiner of how this will work to conclude that it is independence that is necessary for a process of this nature to satisfy the text. Now, that is going to be tested. I invite the Minister to look at this issue beyond the point that I highlighted in order to get into this debate, which is the appointment of the commissioners. I see the criticism that he makes of that, but the criticism goes much beyond just the appointment of the commissioners.

I ask the Minister to consider some of these points and take seriously some of the well-informed criticism from outside about where this is all going to end up. There are alternatives if he wishes to proceed on this basis—although I am not certain that they can be applied—to give the Government the results that they want. I ask the Minister to go away and think about this and perhaps come back with a response. I will look carefully at the words he has said. I have indicated that I intend to withdraw the amendment in my name, but if the Minister does not come back in anticipation of Report with some response to this issue which is convincing on independence, there will be a race between me and the noble Baroness, Lady O’Loan, to put down an amendment of this nature to be debated and perhaps voted upon on Report. I beg leave to withdraw my amendment.

Amendment 12 withdrawn.

--- Later in debate ---

Our subsequent Amendment 131 removes the Secretary of State’s power under Clause 21 to give guidance to the ICRIR about how to operate the immunity system. It would leave the immunity requests panel, which comprises the chief commissioner—a person who holds or has held high judicial office—and two ICRIR officers, who must be senior lawyers, as provided for in Clause 22, to make its decisions with complete and unfettered independence. If this immunity system is to operate at all—and I do not believe that it should—it will be vital that there can be no suggestion that the independence of the immunity requests panel is in any way compromised by political interference.

[Lord Browne of Ladyton (Lab)]

My Lords, I have amendments in this group. I say emphatically at the outset to the noble Lord, Lord Cormack, and other noble Lords that I am not in the business of silk purse manufacturing. But I do have amendments in this group and I will explain the purpose of them. My noble friend Lord Hain’s decades—in fact, lifetime— of commitment to human rights issues, peace and reconciliation, and latterly, for decades, to the people of Northern Ireland, is to be commended. I do not believe that he is in that business either; he explained himself the purpose of these amendments. I say in support of him that, if his Kenova amendments were accepted, we would not be dealing with this Bill. It would fundamentally change the legislation we have before us and, in my view, open up lots of other opportunities. In terms of the support for reconciliation, it may be potentially more valuable than what we have here.

Amendments 113, 115 and 119 are in my name and supported by the noble Baroness, Lady O’Loan, for whose support I am once again extremely grateful. They are probing amendments with the effect of ensuring that the ICRIR—the commission—must consider whether granting immunity from prosecution would be compatible with convention rights and, as important, compliant with the constitutional principle of the rule of law, as well as satisfying the interests of justice. Amendment 115 is the active amendment, Amendment 113 is a paving amendment and Amendment 119 is consequential.

The other purpose of Amendment 115 is to create an opportunity for your Lordships’ House to explore the compatibility or otherwise of the immunity provisions of the Bill with our obligations under Article 2 of the European Convention on Human Rights and the constitutional principle of the rule of law. Also inherent in this question is the scope of the commission to deal with the question of immunities without the guiding hand of the Secretary of State, in a way that is truly and avowedly independent—a point I made in the earlier debate.

To deal briefly with that second question first—and to repeat myself in a sense, if I may—the Bill does empower the commission to make decisions relating to immunity applications. But if the only salient question precedent to the exercise of this power is whether the applicant is telling the truth “to the best of” their “knowledge and belief”, and at the same time it

“must take account of any guidance given by the Secretary of State”

about when this condition is met, it is very difficult to consider this as any genuinely independent decision at all. I ask the Minister to consider the language of the Bill here. “Take account of” could imply various widely divergent systems in practice. Does it imply oversight, indifference or interference? Given the importance of independence and the appearance of independence in the conduct of reviews and investigations, I would welcome guidance from the Minister here in clarifying what this would look like in practice.

Turning to the wider question of compatibility, I read the Government’s ECHR memorandum issued by the Northern Ireland Office with great interest. It acknowledges candidly that the Bill will

“restrict or prohibit the investigation and prosecution of offences arising out of Troubles-era deaths”

and will

“therefore engage the UK’s obligations under Article 2 of the Convention.”

But there are certain minimum requirements that investigations must meet for the state to be conforming with its duties to protect the right to life as defined by its obligations. Investigations must be independent—as we debated earlier—effective, prompt and open to public scrutiny and must involve the next of kin.

Noble Lords have considered and are considering the questions of independence and transparency elsewhere, and we may come back to them on Report. But, speaking to the questions on the involvement of the next of kin and effectiveness, I would observe that, while the involvement of the next of kin is mandated, the European court previously has ruled that the state cannot rely solely on the next of kin, but rather that

“authorities must act of their own motion, once the matter has come to their attention.”

However, the Explanatory Notes to the Bill suggest that reviews primarily will be instigated by the next of kin rather than by the state. I hope the Minister will help me to square that circle in his response.

Most of all, it is unclear just how “effective” a commission review can be said to be, considering the weakness of the body’s powers and the immunity provisions in the Bill, to which I now turn. In their ECHR memorandum, the Government argue that the conditional immunity scheme can be justified as

“a proportionate means of achieving and facilitating truth recovery and reconciliation in Northern Ireland”.

In interrogating this assertion, we must ask two questions. First, will the immunity scheme prove an effective and proportionate means of achieving reconciliation? Secondly, may amnesties be accepted at all under the European convention?

Under the Bill’s provisions, to receive immunity, a person must just offer an account of their behaviour that is

“true to the best of”

their “knowledge and belief”, even if this account is already entirely in the public domain. This contrasts with the South African Truth and Reconciliation Commission, which demanded

“full disclosure of all the relevant facts”

as a precondition of amnesty. What fresh truths could one expect to uncover given this somewhat anaemic provision? It is hard to see how the cause of reconciliation is furthered by the spectacle of killers being granted immunity in return for partial and self-serving recollections.

Even if it were effective, it is far from clear that amnesties might be accepted at all under the ECHR. The Government acknowledge that previous amnesty schemes launched without reconciliation processes have been found to undermine Article 2, citing the case of Ould Dah v France and the court’s finding that

“an amnesty is generally incompatible with the duty incumbent on the States to investigate such acts.”

Yet the Government suggest that it is unclear in case law whether amnesties will be incompatible in all cases. The ECHR memorandum reads—this is crucial, because this is the basis of the Government’s immunity and amnesty—that the European Court of Human Rights

“has countenanced the possibility of an amnesty being compatible with Article 2 in some particular circumstances, including where a reconciliation process is in existence”.

The Government specifically cite the case of Marguš v Croatia. They go on:

“It is therefore an open question as to whether the Court would find an amnesty to be compatible with the Article 2 procedural obligation where there are alternative procedures that allow for investigation, information recovery and reconciliation.”


An “open question” where a “possibility” has been “countenanced”. This is hardly an endorsement of the Government’s legal position.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Browne of Ladyton Excerpts

Committee stage
Tuesday 24th January 2023 Lords Chamber

[Lord Weir of Ballyholme (DUP)]

My Lords, I will deal first with Amendment 1. I support this probing amendment. That is not necessarily to make a judgment that what is in place at present is insufficient, but it is probing to establish whether what is placed in the legislation is comprehensive enough and whether it covers all the situations. There can be nothing worse than finding that there are inadvertent consequences and that, through a degree of misunderstanding or because we have not been exacting enough, some people are excluded wrongly, or perhaps even that the net is drawn too widely on other occasions. As I said, I draw no conclusions as to whether that is the case at present but I will listen with care to the answers given by the Minister on that.

To take the last point on Amendment 147, I have some sympathy for the case that the noble Lord put forward. However, I have some level of reservation. It is undoubtedly an investigation into one of the most horrendous series of murders that have taken place; they were horrific, and it is correct that they should be condemned. Where I have a little reservation in perhaps suggesting that the whole Bill is flawed is that if we start looking at individual operations, however well advanced, and singling them out for some level of exemption, that can create a concern that other areas of investigation into horrendous murders which are needed are not also covered. That is my concern about Amendment 147.

On Amendment 52, again, I look forward to what the Minister will say on that. I have some reservations about it. At the moment, there is a five-year period in which there is an opportunity for a request to be made. It is hard to see in genuine cases why a family would not make that within the five-year period, so I am not clear why this is necessary. Indeed, are we shifting the goalposts by making this entirely open-ended in terms of making the request? Therefore, at this stage I am certainly sceptical about that but I look forward to what will be said in connection with it.

I support the proposals put forward by the noble Baroness, Lady Hoey, in Amendment 63. The noble Lord, Lord Hain, made the point that there is a concern about the inadequacy of some investigations. I take that very much on board. However, what the noble Baroness says is proportionate, fair and practical. I say that because Amendment 63 would take into account what previous investigations had taken place. Surely the aim of the investigations in review is to bring everything up to the same level. If work has already been done, that should be built on where necessary. We should not look to duplicate work; that is from a practical point of view because there is a danger of the level of funding becoming open-ended to the extent that it is simply unaffordable.

We also need equality of treatment. There would be a concern that if we simply disregarded an investigation —indeed, if we have investigation after investigation in some cases—then some high-profile cases in which people are able to shout the loudest may go to the front of the queue and get an additional level of investigation, rather than there being equality of treatment for victims.

Amendment 63 has been carefully worded. It does not say that a previous investigation would preclude a review or an investigation. It would place the onus on the Chief Commissioner to take account of what has happened before. In many cases, particularly in the early days of the Troubles, that investigation might well have been inadequate. What information is available should be a key factor in determining the level of work that must go into an individual case. What is there is balanced.

The proposed opposition to Clause 7 standing part of the Bill is also in this group. I again have considerable sympathy for what has been put forward. Undoubtedly, we must ensure that the net for what evidence is inadmissible to the courts is not thrown too wide. There is a concern that what is presently within Clause 7 is not fit for purpose and, at the very least, creates elements where clarity is needed. For example, it is not clear in what circumstances an applicant for immunity would provide information that is not connected with the application process. Perhaps the Minister can expand on this. Separately, Clause 7(3)(b) has the effect of making material that is later obtained “as a result” of material provided by the applicant inadmissible. That seems quite tenuous. We must ensure that the inadmissibility net is not any wider than it needs to be.

There are considerable concerns over Clause 7. I know that the Government are proposing some changes to it but again, there is a lack of clarity. For example, there is an interaction between admissibility of material, as mentioned in Clause 7, and Clause 23, on the provision of information to prosecutors. That needs to be clarified. If Clause 7 was to remain within the legislation, the Minister must clarify what impact Clause 23 has on Clause 7. Without such clarification, there would be a strong case at least for re-examination of what is in Clause 7, and perhaps for exclusion altogether.

[Lord Browne of Ladyton (Lab)]

My Lords, I will speak to Amendments 71 and 83, which are in my name and that of my noble friend Lady Ritchie of Downpatrick. Amendment 83 is also in the name of the noble Baroness, Lady O’Loan, and my noble friend Lord Murphy of Torfaen. I am grateful to them for their support. I too have benefited from engagement on my amendments with not only the Minister but the Bill team and his private office, and I put on record my thanks and appreciation.

Amendment 71 requires that, as far as possible, ICRIR reviews be conducted in public, providing for transparency in the conduct of reviews by that body. Transparency is not only desirable in reconciliation but a necessary precondition for it to occur. Many of the reviews that the ICRIR will be charged with conducting will have decades of mutual suspicion to contend with. My amendment to Clause 13 attempts to bring greater transparency to those reviews where possible. It is not merely a question of procedural efficiency; it will make clear to those for whom we are seeking the truth that they can be as confident as possible that there is no thumb on the scales, that the review process can be trusted, and that those tasked with handling these hugely sensitive investigations are doing so without the pressure to conform to some predetermined narrative.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Browne of Ladyton Excerpts

2nd reading
Wednesday 23rd November 2022 Lords Chamber

[Lord Browne of Ladyton (Lab)]

My Lords, it is a privilege—and a coincidence, which I will explain—that I should rise to speak after the noble Lord, Lord McInnes of Kilwinning. I am very pleased that his opening remarks made the case for those of us who are not Northern Irish, or indeed Irish, although I have extended family in Northern Ireland, to contribute to these debates.

I shall explain why that is particularly the case for both him and me. For those who do not know the geography of Ayrshire, Kilwinning is a really important railway hub. It is the point at which the train from Glasgow to Ayrshire splits and goes north and south all the way down to Stranraer, where it is a gateway to Northern Ireland. As it goes north, it comes to a town called Stevenston. I was born and grew up in Stevenston and was educated in Kilwinning.

Interesting as all that is, the important point here is that the demography of that part of Ayrshire is the mirror image of Northern Ireland. It is not the only part of Scotland that is the mirror image of Northern Ireland in that sense, but it is a part of Scotland that, through all of my young life and, I am sure, much of the noble Lord’s life, there was persistent cross-fertilisation between that part of Scotland and Northern Ireland—not all of it positive and enhancing, I have to say; quite a lot of it criminal; and at times, I have no doubt, some of it terrorist.

So, far from saying that we are entitled to participate in this debate, I think we both have a duty and a responsibility to participate in it, and we should declare an interest. If the legacy issue for Northern Ireland can be dealt with and reconciliation achieved, that will be reflected in our communities, which will be massively enhanced by that having been achieved. There are victims of the Troubles in the communities that we grew up in who are not counted in any of the arithmetic we have been discussing today. I do not intend to speak for victims; there are people in this debate much better qualified to do that than I am.

I respect and admire the Minister for a number of reasons. His honesty and the way that he introduced the Bill are only a part of it. I admire him for his persistent contribution to finding a way to deal with these and other issues for Northern Ireland. He merits our support, and nothing that I say—and I will be significantly critical on one theme of the Bill—is in any sense a criticism of him.

I was a Minister in the Northern Ireland Office for a period and had responsibility for victims and criminal justice matters, so I do not underestimate the difficulty or complexity of what the Government are faced with, but I do not think the Bill is the answer. I wholly adopt an element of my noble friend Lord Hain’s speech and that of the noble and right reverend Lord, Lord Eames: this needs to be substantially reworked. Others have made the same point. The willingness of the Government to rework it may or may not produce a workable piece of legislation; the jury is out in respect of that.

I pay tribute to those planning to table and support amendments that seek to palliate some of the problematic provisions of this legislation; indeed, I may do so myself. I am minded to table amendments that will deal with one part of it, though not nearly the most challenging part. Those amendments that have been proposed by the Law Society of Scotland, whose consistent advice about legislation in this House has been of the highest quality over the time that I have been here. They will deal with the Bill’s provisions to the extent that they limit the Lord Advocate’s constitutional position as the head of the system of criminal prosecution and investigation of deaths in Scotland, as set out in the Scotland Act 1998. The system of criminal prosecution and civil liabilities are matters devolved to the Scottish Parliament. In my view, the Bill’s provisions engage the legislative consent convention, the Sewel convention, and therefore require the consent of the Scottish Parliament.

To the extent that I have the capacity to do so, it is my intention to participate where I can and where I think I can make a contribution to the debates on other amendments, both in Committee and on Report. However, in these remarks I shall focus on those faults of the Bill that are intrinsic to it and which cannot be removed without making it a wholly different, and not guaranteed to be better, piece of legislation. I therefore support the amendment moved by my noble friend Lady Smith of Basildon, because it encapsulates many of those.

I regret that I have to say this but it would be difficult even for the most Panglossian optimist to contest the view that the UK’s reputation for adherence to international law has been degraded by the actions of successive Governments since the Brexit referendum. The Secretary of State has declared his belief that the Bill is compatible with our obligations under the ECHR, but others have raised significant doubts as to whether that is the case. For example, the European Commissioner for Human Rights and two UN special rapporteurs in relevant areas have raised concerns that the legislation threatens a de facto breach of our obligations. Nearer home, the JCHR and the Select Committee on the Constitution—the latter in a commendably short and accessible five-page report—persuasively explain why the Bill, as drafted,

“is unlikely to comply with the Convention”.

The aggregate of this convincing cacophony of concern is that the measures set out either are incompatible with the UK’s obligations under the ECHR or create a risk of incompatibility. Either way, the effect of the Bill will ultimately be more litigation before our courts or, if the present Government deploy their overwhelming majority in the other place to secure the Bill of Rights, before the European Court of Human Rights in Strasbourg, because applicants who will then not be able to enforce their rights domestically will be more likely to take their cases to the ECHR. That will be directly contrary to the UK Government’s ambition to bring an end to litigation; in my view, it will significantly increase the possibility of it.

Of particular concern is the fact that the new ICRIR will be given wide discretion in deciding whether actions should be referred for prosecution and in setting time limits for future criminal and civil actions. In addition, by creating a limited immunity scheme, potentially barring certain civil claims and affecting existing and potential future inquests, the Bill potentially undermines the rights of victims in significant ways.

I think we all received the same email yesterday from the Northern Ireland Victims Commissioner. In it, he urged me—as I read it—

“to keep the victims, survivors, and their families at the front of your mind.”

Earlier in the letter, he explained:

“Since the Bill started its passage through Parliament on 17 May I have met with many victims and survivors including the Commission’s own Forum, to fully understand how or indeed if, the Bill could work for them. The cold reality is that no-one I have met believes that the Bill is going to help heal or reconcile.”


That environment is not likely to bring us to one of the fundamental objectives that the Government have set themselves here—of bringing an end to this litigation —and which other noble Lords have spoken in great detail about the necessity of achieving.

Article 2 of the ECHR requires that:

“Everyone’s right to life shall be protected by law.”


In that light, it is incumbent on the Government to explain how the proposals for the ICRIR, which is created to recover information about a death or serious injury but does not provide any legal remedy, are compatible with their ECHR obligations under Article 2.

This is a point that I do not think anyone else has made, but it is an important and serious one that we should make in the current conditions: while the risk of the UK breaching its obligations under international law is serious in and of itself, it is perhaps exceeded in seriousness by the fact that it compromises our ability beyond these shores to challenge other nations when far more serious and fundamental breaches occur.

Those hostile to human rights in authoritarian states are watching. So too are human rights defenders in other states who substantially depend on us. How will we be able to insist that, for instance, Russian commanders are held accountable for atrocities in Ukraine? We are presently and properly investing millions of pounds in collecting the evidence of those very possibilities. The retort is dismally predictable. How can we insist upon accountability under the rule of law when we have exempted potential offenders of our own from just that mechanism?

If accountability is to mean anything, this basic principle must be maintained: that crimes, when proven, are punished and that victims receive justice. While I sympathise with the desire to draw a line under the Troubles and focus on reconciliation, it is an uncomfortable and regrettable truth that justice cannot conform to a politically expedient timetable. More than 1,000 killings remain unsolved. Although I accept that the chances of prosecution diminish with every passing year, the granting of immunity in exchange for information will be seen by many—nay, all—victims as an attempt to achieve present harmony at the price of their past and enduring distress.

Greater unity in Northern Ireland is desirable, although I suspect that unifying the leaders of the DUP and Sinn Féin in disapproval of this measure is not quite the spur to unity that the Government had in mind. How can imposing a set of measures that have attracted disapproval from all communities and shades of political opinion possibly heal the fractures that remain in Northern Ireland?

I applaud those who are seeking to amend this legislation and to improve it, but I have fundamental concerns about the direction of travel represented by the Bill. In her foreword to the 2018 consultation document, Addressing the Legacy of Northern Ireland’s Past, the then Secretary of State, Karen Bradley, wrote:

“We … continue to believe that any approach to the past must be fully consistent with the rule of law. Conservatives in government have consistently said that we will not introduce amnesties or immunities from prosecution.”


What has changed in the four years since to cause this Conservative Government to jettison what was apparently an immutable principle in favour of this new approach? The answer is clear: either it is not a fixed principle practised by Conservatives in government, or this legislation does not do what it appears to do. I look forward to the Minister clarifying which of these two interpretations is correct.

Climate Change

Lord Browne of Ladyton Excerpts

Thursday 6th February 2020 Lords Chamber

Moved by

[Lord Browne of Ladyton]

That this House takes note, further to the report by UK FIRES, Absolute Zero, published in November 2019, of technological and lifestyle efforts (1) to address climate change, and (2) to meet the 2050 net zero carbon emissions target.

[Lord Browne of Ladyton (Lab)]

My Lords, in opening this debate, I am conscious that I am neither a scientist nor an engineer nor an economist. I claim no expertise in any of the many diverse issues that climate change raises and which will raise their head in this debate. My aim is to spark a broad debate that includes those with such expertise but embraces all stakeholders and, at the same time, to encourage the Government and indeed ourselves, the political classes, to provide honest and brave leadership to that process. The message of Absolute Zero is strongly that, without honesty and bravery, we will see the manifestation of a genuine existential risk, and our children and grandchildren—if they survive it—will never forgive us.

The authors of Absolute Zero—a recent report by UK FIRES, a consortium of UK academic experts—have done us all a great service by authoritatively and painstakingly exposing the degree to which we are being misled by a techno-optimistic approach to the climate change challenge. This may explain why the report, despite being funded by government money, has not really surfaced since its publication. The report poses some deeply uncomfortable questions for the Government about their strategy and about tactics. The noble Lord the Minister knows that I admire and respect him greatly; he is, in my view, the ideal Minister to face the challenge that this report presents. The House has faith in him because we have confidence that he will give straightforward answers to the many questions that the report poses. I intend to ask only the major ones in my opening remarks, but I am sure that other noble Lords will draw attention to others that also deserve a government response—I know that from conversations I have had already.

I am exceedingly grateful that so many noble Lords want to speak in this debate and I look forward eagerly to their contributions. But, in a sense, I feel the need to apologise in advance because, although it has been increased, the time available is insufficient for them to raise everything that they might want to say on what I think is the most important issue of our time.

I thank all the organisations that have circulated briefing papers to speakers and more broadly. They are all of value and, like the excellent House of Lords Library briefing, have increased my knowledge and have added to our debate even before a word has been spoken in this Chamber. On that point, let me take just a few seconds to repeat a suggestion that I made in a debate on knife crime in your Lordships’ House in June last year. As I cannot do justice to any of the briefings I have received, which are all full of great stuff, and as we are searching constantly as a House of Parliament for ways to make our deliberations more relevant to a wider audience and to embrace others, can we not open a web-based portal for every debate? I understand that it would have to be moderated, but it would both allow people who wish to engage with us to post their briefings in real time, having them preserved with the debate, and expand the debate out into society. Along with the Library briefings and other relevant papers, it would create a much more inclusive context for our work and allow us a significant amount of outreach.

Despite climate change being a pressing existential threat, leaders have so far preferred a series of long-term grand targets and few, if any, of the grand policies needed to achieve them. On Tuesday, Boris Johnson revealed why. The Prime Minister, like many other leaders, believes that technological advances will do the job for him. He is, in his own words, a self-confessed techno-optimist. It is clear from his speech on Tuesday that Mr Johnson, who may not “get” climate change, certainly knows the scale and nature of the challenge and can accurately catalogue our failures to date. He also set out a policy for achieving the goal set in bringing forward by five years the ban on the sale of petrol, diesel and hybrid vehicles. So far, so good.

However, he thinks that on the macro-target we are making good progress; in his words

“since 1990—cutting CO2 by 42 per cent … through sheer determination and technological optimism”.

It is 42% only if you ignore emissions from aviation and shipping and those associated with imports and exports—and do we import. If these numbers are included, the true figure is more like 15%. The most significant contributors to this success are a cleaner energy mix based on gas and renewables instead of coal and the falling demand for energy across homes, industry and business. It is difficult to see how techno-optimism has played any significant role at all, unless Mrs Thatcher’s policies on coal were driven by techno-optimism—but that may lead me down a path where I do not want to go.

While our leaders talk about future technology—none of which has yet been delivered at any scale able to make a significant difference, never mind a sufficient one—cars are now heavier, internal temperatures in our houses and where we work are rising and we are purchasing more stuff and flying more than ever. In each case, we must encourage the opposite behaviour.

Clearly, not every Minister agrees. The comments made by Health Secretary Matt Hancock in response to questions about the government proposal to bail out Flybe pushed back directly on the need for us to fly less. Asked whether he should be giving a different message, he simply replied “No”, going on to say that we should continue to do so but

“use technology to reduce carbon emissions”

as

“electric planes are a potential in the not too distant future.”

The Prime Minister made the same claim on Tuesday. Apparently, he has been assured that we are

“within a couple of years of having viable electric passenger aircraft.”

Technically, he may be proved right. At the Paris Air Show last year, a manufacturer unveiled an electric-powered plane that he promised would be flying in a couple of years’ time. We will see, but, even if it performs to the manufacturer’s optimum promise, it will carry nine people for a maximum range of 650 miles. Welcome as this is, there is no sign that this can be scaled up into a deployable technology that meets the scale of the aviation emissions challenge. Some 80% of such emissions are from long-haul passenger flights—flights of over 900 miles—a distance no electric aircraft presently in development could ever achieve, and none will unless there is a fundamental paradigm shift in electricity energy storage, which is not even on the visible horizon.

The techno-optimists have placed their faith in massive large-scale engineering solutions, but there is no convincing evidence that we can rely on their development in time—and time is running out. However, the contrary evidence is convincing. Absolute Zero quotes research from Imperial College showing that no significant energy technology has ever reached 20% of its eventual scale within 30 years of its first deployment. We simply cannot wait that long.

Apart from the fact that Absolute Zero is the most accessible reading on this subject that I have come across, this report is important in three respects. First, net zero is a misleading concept. The true target is absolute or real zero. There are no significant technologies to create negative emissions. No matter how you choose to do it, it takes more energy to take the carbon out of the atmosphere than we gained when we put it there in the first place. This—as I have learned recently—is the second law of thermodynamics: the energy required to create structure is always greater than the energy released in the destruction of structure. You simply cannot take carbon out of the atmosphere without giving it structure. If energy created by a non-emitting source is available, using it to do this would be a waste of that energy while we still use fossil fuels. Increasing the number of trees on the planet reduces the amount of carbon in the atmosphere only once. For example, if we doubled the area of forest in the United Kingdom, that would negate two years’ worth of emissions only—and only if we protected that forest for ever.

Secondly, no matter what incentives are offered, there are limits to the rate at which technologies can become significant. It is worth repeating that the report quotes research from Imperial College showing that no significant energy technology has reached 20% of its eventual scale within 30 years of its first significant deployment—we have only 30 years. This is because these new technologies are highly regulated and deploying them would require new standards, regulations, land rights, public consultations and discussions over finance and local communities. We are beyond the 11th hour on this issue and academics are screaming for the Government to show more leadership in this regard. So what confidence can we have that the Government are up to the pace of dealing with the barriers to deployment any better than they are judged to be dealing with the barriers to research investment?

Thirdly, and finally, there is the question of opportunity. The report reveals that once you embrace absolute zero, you can see a wealth of business innovation opportunity. I will give four simple examples, although there are many in the report: electrification of all existing energy services—I accept that it is simple to say and difficult to do, but it is simple and we have the technology to do it now; improvement and expansion of video-conferencing to stop people flying all over the world unnecessarily; turning down our central heating and stopping heating empty rooms would make a significant difference to our use of energy; recycling powered by renewables offers great opportunity for growth, exploiting the fact that global supply of steel scrap will treble in the next 30 years as an alternative to what we do at present. In the UK, we collect 10 million tonnes of steel scrap per year and export 80% of it, while in the meantime operating blast furnaces with imported coal and iron ore.

The report is a serious wake-up call. As Professor Richard Templer said this morning on the “Today” programme—he is not an author; I suspect that he was brought on to the programme to contradict the report but found he could not—the Government need to get very serious about this and pay attention to everything in this report.

Now that we are awake and being honest with ourselves and the people we purport to lead, it is not all doom and gloom. The report makes it clear too that, by changing our behaviours in a positive way and with incremental change exploiting today’s technologies, especially those that can be scaled up and already prove their worth, we can engage with this challenge now in a significant way and enjoy the breakthrough technologies when they emerge later. However, they will not emerge in time to solve the problem.

Constraints of time do not allow me to go into much more detail on the report, but there is not much point in doing so as your Lordships can read it for themselves. In preparation for this debate, it has been a pleasure to introduce many noble friends to this way of looking at the challenge, though not always successfully. A proportion of them responded by saying, “This report requires us to give up flying. That is unrealistic and will not be possible.” It does not do any such thing. It just tells us what we do not want to hear, which is that on the current trajectory, there will come a time when we are so far short of the target we have voluntarily and legally imposed on ourselves that the only way to achieve it will be, among other things, to give up flying and shipping. The authors of the report are not responsible for that—we are. We should not shoot the messenger for returning the message to its sender. We passed the law and we are responsible.

I have many questions for the Minister, but I shall restrict myself to three. Given that all of the negative emission options require us to expend more non-emitting energy than using energy to replace fossil fuels, do the Government accept that the use of net zero is misleading and that the target we have created is absolute or real zero? Secondly, the Prime Minister’s reference to the imminence of electrically powered passenger flight was calculated to make us all think that this was just the beginning of a journey that would significantly reduce aviation emissions by 2050. Will the Government publish the evidence that supports that rate of deployment of electric flight? Thirdly, assuming that Her Majesty’s Government are not solely dependent on technology to meet the 2050 target, can the Minister confirm that their intention is to do just as this report recommends; namely, to encourage changes of lifestyle and the incremental development of existing technologies to address this issue with what we know works? If so, will they publish a list of the initiatives that will advance that agenda?

--- Later in debate ---

[Lord Browne of Ladyton]

My Lords, I knew when I secured this debate that it would be a good one. It is a privilege to be a Member of this House, where so many noble Lords know so much and are so willing to share that knowledge. It has been a pleasure to listen to so many interesting and informative speeches and I have learned from them. In thanking all noble Lords who have contributed, including the Minister, whom I will come back to in a moment, I hope they will forgive me if I do not engage with individual points; I intend to reflect on the debate.

At the outset, I said that I hoped to generate a debate. I will be true to that. I have the benefit in UK FIRES of some of the best minds in the country to reflect on what was said and to advise me. To some degree, because of reactions that I would not have had otherwise to the debate, they can fact-check some of the things that have been said. I will respond in detail and encourage UK FIRES to publish that on its website. It has an open-portal website that invites conversations. If I cannot persuade Parliament to open such portals, I will continue this debate in that way, if noble Lords will permit me, and they can engage further.

I thank the Minister, who did not let me down. He made a spirited defence of techno-optimism. He gave us comprehensive lists, which he will be held to, of the Government’s aspirations—the things they will do and the challenges that, if not met, will have bad consequences that will have to be engaged with. I will do my best to keep him to them and he will thank me for it.

I will try to encourage the scientists to have a wee bit more political sensitivity. It is important that they have a bit of political sensitivity, but I shall say, “Everything that I want you to do, I want you to do against the standard that the right reverend Prelate the Bishop of Oxford has challenged his diocesan parishioners with.” I will ask them not to worry about us and not to worry about the difficulties that other people will have in living up to what they need to do. I will ask them just to place care for the earth at the top of their agenda.

Motion agreed.