Northern Ireland Troubles (Legacy and Reconciliation) Bill

Debate between Lord Browne of Ladyton and Lord Faulks

Committee stage
Thursday 11th May 2023 Lords Chamber

[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.

Economic Crime and Corporate Transparency Bill

Debate between Lord Browne of Ladyton and Lord Faulks

Committee stage
Tuesday 18th April 2023 Grand Committee

[Lord Browne of Ladyton (Lab)]

My Lords, I had not intended to speak on this group of amendments, but I rise just to say that I agree with everything that noble Lords have said thus far. My enthusiasm peaked when the noble Lord, Lord Agnew, spoke. What we have done in this debate is create the environment in which we are making these really important changes.

I have just one complicated question, with subcategories, for the Minister. I approach this question on the basis that if an ACSP is unwilling to have its name associated with its professional work and assessment, it seems to me that that should be a disqualification from it being appointed an ACSP. I ask the Minister: were ACSPs consulted at the consultation stage, before this legislation was drafted? Did the ACSP cohort ask for this level of anonymity which the Government are gifting it? I just cannot believe that, if they think they are doing a good job, they will not want their name associated with it—all the more for those abroad. If the City of London, our Companies Act and our registration are to be all the things that the Government wish for, it will be a sterling mark for those abroad that they are able to facilitate access to that environment because they are accredited by the Government of the United Kingdom, and the Secretary of State specifically, to do this work.

Why are we in this situation, where this really important part of the gateway into the system of limited liability is in the hands of individuals and businesses which the Government seem to think want nobody to know they are doing the work? It is incredible. I repeat: if an ACSP or somebody who wishes it, says, “I will do this only if you do not associate my name with the work publicly”, you should say to them, “Well, goodbye. You’re not doing it at all”.

[Lord Faulks (Non-Afl)]

The noble Lord has anticipated the point that I wanted to make, but I will make it very briefly. I am puzzled why we are so keen to protect anonymity. What is the respectable argument in favour of anonymity? Can the Minister help us with that? A solicitor, for example, will append their name to a document, identifying litigation or other contexts, and many other professionals have similar obligations. Why are we affording these particular people some special allowance? It simply does not make sense.

As the noble and learned Lord, Lord Garnier, said, for some time, those of us involved in the register of overseas entities were anxious that there should be improved verification. I gather that there has been some movement in that direction. I ask the Minister to consider having regard to the weight of opinion that there should be a similar movement in this area.

Defamation Bill

Debate between Lord Browne of Ladyton and Lord Faulks

Monday 17th December 2012 Grand Committee

[Lord Faulks]

My Lords, not out of loyalty to my late uncle, I think there was a considerable amount in the majority view of his committee. The amendment here restricts a remedy to circumstances in which the defamatory statement,

“is so gross as to cause serious harm to individuals or a breach of the peace”,

which is a very significant hurdle indeed.

There is something, I suggest, that is rather crude about the fact that a defamatory statement or statements can be published and the potential claimant can read about them, can begin action in respect of them, but the moment he or she dies that is the end of the matter although the harm remains unremedied and the anxiety and loss may well have ramifications for his or her family. That is a crude cut-off point.

I know that the Minister he has already given anxious thought to this matter, but I ask him to consider, if there may not be a claim for damages, that there might at least be a remedy by way of an injunction or apology, so that those in the position of the Watsons, referred to by my noble friend Lord Hunt of Wirral, would at least have the satisfaction of knowing that their daughter’s honour had been thoroughly vindicated and could rest a little more easy in the wake of such an appalling tragedy.

[Lord Browne of Ladyton]

My Lords, in the House of Commons, Helen Goodman sought to amend this Bill to allow certain categories of close relatives to bring defamation actions in respect of statements made about a deceased person up to a year after that person’s death. That amendment is in the same area—in principle if not in effect—as that of the amendment moved by the noble Lord, Lord Hunt, today. She drew substantially on the Watson case and gave a compelling argument that this set of circumstances was crying out for redress. I do not intend to add to what the noble Lord, Lord Hunt, has said today, but the Watson case was one of three examples she used, and it is a particularly shocking case.

The family suffered greatly, losing two children as the result of a series of incidents, and then on the day of the funeral of their son, who undoubtedly killed himself because of the way in which his sister’s reputation was trashed, the allegations were repeated in an attempt to try to justify them. We sought to divide the Committee in the House of Commons on this issue—not, as my honourable friend Rob Flello explained, because we thought that the Government’s position in resisting the amendment could be criticised, but because of these shocking circumstances and other cases like it. Unfortunately there are far too many cases that are crying out for resolution and some remedy in the form of a response by government and politicians which recognises that there is a need at least to try to protect the reputation of a family and their daughter in these dreadful circumstances.

--- Later in debate ---

[Lord Browne of Ladyton]

I shall also speak to Amendment 7, which stands in my name and in the name of my noble friend. The underlying purpose of this amendment is similar to that of the amendment which has just been spoken to by the noble Lord, Lord Mawhinney. He seeks to do much the same thing as the amendment that stands in my name, but by a requirement for action before a court action can proceed. I seek to do it by what could be called—in the context of the discussion that we have just had—a multiple fracture of the prohibition against putting case management in the Bill.

I have no delusions that this will find support in Committee because it is such a multiple fracture, but it is quite deliberately so for a purpose. It is our attempt to implement the recommendations of the Joint Committee, but it goes further and does so for very specific reasons. Those reasons are that on this side of the House we have to be convinced that the holistic approach that we favour can address the fundamental issues of the problem that is before us and has its manifestation in all the many examples that we have heard this afternoon and which are recorded faithfully in the deliberations on this Bill since it was first introduced in its draft form.

I muse here—listening to the noble Lord, Lord Mawhinney, speaking to us in his distinctive Northern Irish accent and as I rise to speak in my Scottish accent—that there is more than one jurisdiction in these islands. I consider also, and I have considered this in other circumstances often, that until very recently—over hundreds of years certainly as regards Scotland—this Parliament in a statutory sense legislated for more than one jurisdiction on these islands. Only one of these jurisdictions has turned into the defamation capital of the world.

The answer may be as simple as the answer given to my intervention on the noble Lord, Lord Lester of Herne Hill, that this is a function rather of a niche ability that has developed in the Bar in London, which cannot be contained by case management appropriately with the tools that we give to the judiciary. There may be other reasons for it, but it seems that the answer probably to what we need to do to the defamation laws of England and Wales lies somewhere in these islands.

I am not entirely sure what it is because I have no particular expertise in this area of the law, but it is curious that lawyers, judges, courts and laws that are very similar to each other have operated in these islands in distinct jurisdictions but only one of them has got into this difficulty. Trying to identify the reason for that, and to address it, is what should be exercising our minds. We may, as I suggested in my intervention, be addressing it in the right way by changing the test and by doing all the other things that are in this small but comparatively complex piece of legislation or it may be much more important that we make changes in the way in which cases are managed and in which the costs of them are racked up.

This amendment seeks to insert a clause for early resolution procedure against the background that the Government originally announced that they would do this in the draft Bill and in the Commons explained why they were not willing to do that. We have now the advantage of the letter of the noble Lord, Lord McNally. I am pleased that the document that he read out earlier in relation to cost protection is the final annexe to his letter. This document does not need to be put into the public domain; effectively, it is in the public domain in any event. With my imperfect understanding of civil procedure in England, it seems to me that this protects a party from the liability to pay the other side’s costs if a case fails—if I understand what cost protection is. This seems to me to be half the problem.

If I had to face the prospect of having to litigate in an action for defamation with a substantially wealthy opponent, no matter which side of the argument that opponent was on, I suspect that in this jurisdiction it would cost me a significant amount of money just to engage in that litigation. I would be terrified at the prospect of losing and having to pay the other side’s costs, and I am pleased to note that parties in defamation cases may be protected from that. However, the prospect of having to pay the costs of my own side would still be terrifying.

The letter goes further and provides what I hope are many of the answers to the points being raised in this debate. The documents attached to it seem to be a set of guidelines on how the Government would like the existing case management rules to be amended or applied in order to try to achieve earlier resolution. It looks at how the existing strike-out procedures should be applied. Indeed, on reading the Minister’s letter in a holistic way, it is clear that, while not using exactly the same words, many of the issues are reflected in the amendment we have tabled. However, it is important to note that in this amendment we have gone further and provided that one of the key issues to be determined, under subsection (3) of the proposed new clause, is costs management.

To save other noble Lords and noble and learned Lords from pointing out why this is an inappropriate thing to do in a Bill, perhaps I may say that I readily accept that that is right. However, I think that the Government need to be given the opportunity to spell out the steps they intend to take to address the issues that lie at the heart of the problem we are facing. If we can make a contribution towards shaping a holistic approach, despite the fact that this goes beyond what the Bill should say in the strictest sense, that will assist in increasing the confidence of Parliament in this revision of the law. What is much more important is that it will increase Parliament’s confidence that a holistic approach, as referred to by the noble Lord, Lord Lester of Herne Hill, will not quickly put us back into the situation we are in already, but that there is some hope of addressing it.

I am offering the noble Lord this amendment to provide him with an opportunity to explain in accessible terms the steps that the Government are taking which are complementary to the legislation, and to offer the Committee some assurance that not only will they be completed by the time the legislation is ready to be put into force, but that they will be effective in terms of addressing the issues that are at the heart of this problem. Before I sit down I would suggest to him that if it has not already been done, perhaps a study of how at least one of the other jurisdictions in these islands deals with defamation issues might be instructive. I will say again for the benefit of the noble Lord, Lord Lester, that of the several jurisdictions in these islands, only one of them has become the libel capital of the world.

[Lord Faulks]

My Lords, I understand what is behind these amendments and of course I share the desire of other noble Lords that matters should be settled or litigation avoided if that is at all possible. My noble friend Lord Mawhinney said that his committee on the whole eschewed recommendations for case management. However, by this amendment he seeks to go into that area.

A word of caution might be appropriate. There is always a danger if you set up a series of procedures to be undertaken because you will frontload costs and increase the overall bill of litigation. Although I accept what my noble friend Lord Lester said about the libel Bar and its propensity to make rather arcane rules on pleading, for example, there are specialist libel judges who are well aware of all the issues, and defendants and claimants regularly bring matters to a judge at an early stage for determination in order to serve their clients well.

I do not think that we should proceed on the basis that this is an entirely unco-ordinated, inelegant process. No doubt, improvements can be made, as the Minister will tell us. I await with interest to hear what is suggested. But I respectfully suggest that these are rather cumbersome amendments which will not, I fear, achieve what they intend to do.