Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Caine Excerpts

2nd reading
Wednesday 23rd November 2022 Lords Chamber

[The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)]

My Lords, I said in my opening remarks some hours ago that I have found this legislation challenging and difficult, and the subsequent few hours have done nothing to reduce that one bit. I have listened to a very powerful debate. First, I thank a number of noble Lords for their kind words in response to my earlier remarks, which I genuinely and deeply appreciate. I also thank one or two noble Lords—the noble Lords, Lord Browne of Ladyton and Lord Bruce of Bennachie—who were kind enough to remind me of certain words I had written for previous Secretaries of State on this subject and into previous Conservative manifestos.

There have been a number of very powerful and moving speeches. As ever, I refer to the noble Baroness, Lady Ritchie of Downpatrick. She reminded us of the Loughinisland massacre. I remember it very well because I was with a friend from the Republic of Ireland, watching the same football match that evening, when the news came through. I was an adviser, as the noble Baroness knows, to the then Secretary of State for Northern Ireland, the late Lord Mayhew of Twysden, so I deeply sympathise with the case to which she referred. My noble friend Lord Rogan, who is in his place, the noble Viscount, Lord Brookeborough, my noble friend Lord Dodds of Duncairn and many others referred to incidents during the Troubles which deeply affected them, people right across Northern Ireland and people across the whole United Kingdom.

I concur with the noble and right reverend Lord, Lord Sentamu, that, of all the speeches, the noble and right reverend Lord, Lord Eames, made an outstanding contribution, which I think moved the whole House. I thank him very much for that, and I am aware of the tremendous work he has done over many decades in Northern Ireland, and his great record of service to the community there.

In my opening comments I said that there have already been a number of attempts to resolve these issues over many years. Going back to 1998 and the Belfast/Good Friday agreement, legacy was the untouched issue, if you like, and at the time it was one of those matters that was—probably for good reason at the time—put into the “too difficult” drawer. There have been a number of attempts since and they have all foundered for one reason or another.

A number of noble Lords, including the noble Lords, Lord Alton of Liverpool and Lord Bruce of Bennachie, talked about the need for the Assembly to be more closely involved in this. I remember, and referred in my speech to, the attempt by the Executive to deal with this issue back in 2013, with the Haass-O’Sullivan talks, which unfortunately did not lead to an agreement.

I referred also to the Stormont House agreement, when most of the institutions contained in that agreement, such as the Historical Investigations Unit and the ICIR, were very firmly in the devolved sphere. It was always our assumption at the time that it would be the Assembly that would take them forward. There would have had to be legislation in parallel here to deal with certain national security issues and issues around disclosure of the sort that the noble Baroness, Lady O’Loan, referred to. It was at that point that the then First and Deputy First Ministers came to see the then Secretary of State to say, “This is all far too difficult for us—could you do it all at Westminster?” I completely appreciate the sentiment of working with the local politicians and the local political parties in Northern Ireland, but there are difficulties in just handing it back to them. I do take on board the points about the need for a collaborative effort.

I think that is one reason why people refer to the shift in approach in 2020 by the then Secretary of State. If I am being fair to him, I think he genuinely looked at the previous attempts made to resolve this and at the possibility of prosecutions. We have heard a great deal about that this evening, and I have enormous respect for the noble and learned Lord, Lord Judge, with whom I agree far more than I ever disagree on a range of subjects. When he talked about people literally getting away with murder, unfortunately, in Northern Ireland they have for many decades because of the lack of evidence to convict. When I talked earlier about the vast majority of cases now being over 40 years old, the reality is that the likelihood of any meaningful prosecutorial process leading to a conviction is very slim indeed.

[Lord Judge (CB)]

That is not a justification for embodying it in statute.

[Lord Caine (Con)]

The noble and learned Lord touches on some of the issues that have also troubled me in dealing with this over the past months. I can see an argument to do with the chances of a prosecution being so slim in a very large number of cases. I talked to the retired police officers about this, who were very clear that in most cases, if the evidence had existed at the time, there would have been convictions, but it is simply not there and the chances are incredibly slim. Therefore—

[Baroness O'Loan (CB)]

I want to interject the fact that in the 1970s, a process was adopted which prevented prosecutions—there were to be no prosecutions for murder of any military personnel—and there was a process through which the Royal Military Police produced statements which have now been declared to be totally unacceptable, so there were processes which made it impossible. I ask the Minister again: will he make the money available for the prosecution of the 33 files which Operation Kenova has submitted to the Director of Public Prosecutions? If you have the money, you can prosecute.

[Lord Caine (Con)]

The noble Baroness has asked me this question a number of times before. The Public Prosecution Service is not funded by the Northern Ireland Office; it is funded by the Executive, and it is a devolved responsibility. It would have to find the money from within its own resources, if resourcing is the only issue here. I have heard from a number of respected figures within Northern Ireland, within the legal system, who would argue that it is not just about resources at all.

I was trying to set out what I think the Government’s position was, because the chances of prosecution in so many cases were so remote, even where people have held out for prosecutions. I have given the example before of Bloody Sunday and the Saville inquiry, which reported in June 2010. The PSNI then very methodically went through the report and investigated the cases again to see whether there were any grounds for the prosecution of soldiers. It took nine years for the current DPP to come to a decision around prosecutions, concluding that prosecution would be justified in one case. As we know, that case subsequently collapsed. I think it has now been re-referred, but it did collapse. One noble Lord mentioned the fact that people are getting older and dying, and this example points to the fact that these processes can take a very long time.

Therefore, the purpose of what the Government are putting forward here is to try to bring forward information and get people to the truths in a much more timely way. The noble Baroness, Lady O’Loan, shakes her head and disagrees, but that is the genuine intention: to try to get more information out there while it is still available. As noble Lords know, the problem with a prosecution if it collapses is that no information is provided to families, and they are literally back at square one. We can have these discussions, but I just wanted to say that that was one of the justifications for this. In order to encourage people to come forward and co-operate, as noble Lords know, the Government originally put forward in the Command Paper a blanket statute of limitations of the kind referred to by my noble friend Lord Cormack, but they then refined the position on the basis that if people were going to be given immunity from prosecution, there should at least be some incentive to earn it. That was the way in which the Government approached this back in 2020.

I have taken on board the very strong feelings expressed this evening. If noble Lords will forgive me, I think I have been fired hundreds of very detailed questions from across the House, which I could not possibly answer, particularly at nearly 10.05 pm. But what I am prepared to do is to sit down with noble Lords, both individually and collectively, before Committee, which I hope will not be rushed. That is certainly not my intention. I think somebody used the phrase “pell-mell” the legislation through the House, but that is not my approach or my intention. I would want to take sufficient time to look at the Bill in detail and give it the scrutiny that it absolutely deserves.

In my speech I tried to respond to some of the concerns that have been expressed already and which were brought out in the debate. I apologise to the noble Baroness, Lady Smith of Basildon, that I was not in a position to flag, if you like, at an earlier stage what these amendments might be. I think the noble Baroness is familiar with government write-round processes, which do not always proceed at pace and are the subject of discussion. I do apologise. In all genuineness, I hope that these amendments, when they are drafted and I bring them forward, will go some way to allaying concerns on the issues that have been raised outside the House and inside the House this evening around ECHR compatibility, independence of the new commission, greater incentives for co-operating with the body, and penalties for misleading, lying and not telling the truth, including revocation of immunity where that has already been granted, and full sentences for those who do not co-operate with the body but are subsequently investigated and convicted.

I also assure the noble Baroness, Lady Smith, that I do not expect those amendments to be the end of the story. There are other amending stages in your Lordships’ House beyond Committee, and, again, I hope we will not rush from Committee to Report and can have a reasoned and genuine discussion and debate between those two stages of the Bill.

While I will look at what further amendments the Government might be able to bring forward, I will genuinely look constructively at those which are put forward by other noble Lords across the House. As I have always said in my engagements within Northern Ireland itself with victims groups and others, I am the least precious person when it comes to amendments and where they come from. If they are sensible and constructive, I will always look at them and give them a fair wind.

As I say, I am very happy to sit down individually and collectively and engage with noble Lords before Committee. I will seek to go through the speeches made in your Lordships’ House this evening and, where detailed questions have been put to me, I will respond in writing, if noble Lords will allow me, rather than detain the House for a great deal longer this evening.

As I said at the outset, it is challenging and difficult, but there is no perfect way of dealing with this. I want to try and genuinely use this House in its proper constitutional way to revise and improve legislation.

--- Later in debate ---

Moved by

[Lord Caine]

That the Bill be committed to a Committee of the Whole House, and that it be an instruction to the Committee of the Whole House that they consider the Bill in the following order: Clauses 1 and 2, Schedule 1, Clauses 3 to 6, Schedule 2, Clauses 7 to 9, Schedule 3, Clauses 10 to 14, Schedule 4, Clauses 15 to 26, Schedules 5 and 6, Clauses 27 and 28, Schedule 7, Clauses 29 to 39, Schedules 8 and 9, Clause 40, Schedule 10, Clauses 41 and 42, Schedule 11, Clauses 43 to 52, Schedule 12, Clauses 53 to 58, Title.

Bill committed to a Committee of the Whole House.