Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Caine Excerpts

Consideration of Commons amendments
Tuesday 5th September 2023 Lords Chamber

Moved by

[Lord Caine]

That this House do not insist on its Amendment 20 and do agree with the Commons in their Amendments 20A and 20B in lieu.

20A: Clause 13, page 11, line 9, at end insert—
“(3A) The Commissioner for Investigations must ensure that each review, whether or not a criminal investigation forms part of the review,”

20B: Clause 13, page 13, line 14, at end insert—
“(2B) If particular questions were included in the request for a review (see section 11(1)), the final report must include—
(a) the ICRIR’s response to those questions, if and to the extent that it has been practicable to respond to them in carrying out the review in accordance with section 13;
(b) for each question to which it has not been practicable to respond, a statement of that outcome.”

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

My Lords, I beg to move Motion A and will speak also to Motions B and C.

We have debated these issues at great length since this Bill was introduced in your Lordships’ House in July 2022. I will therefore speak briefly to the remaining issues today. I have always been the first to acknowledge the challenging nature of this legislation and how it requires some very difficult and finely balanced political and moral choices. The Government have, however, continued to listen and sought to strengthen the legislation. Since July last year, I alone have had more than 80 meetings on legacy issues, mostly in Northern Ireland, but also in Ireland, the US and of course in your Lordships’ House. My right honourable friend the Secretary of State has also had a large number of meetings on these issues.

Motion A1, regarding the conduct of reviews by the commission, raised a number of important issues, and I am extremely grateful to the noble Lord, Lord Hain, a distinguished former Secretary of State, for the manner in which he has engaged on these matters. This engagement has resulted in a number of key amendments to strengthen this aspect of the Bill. This includes amendments expressly to confirm that the Commissioner for Investigations, when exercising operational control over the conduct of reviews and other functions, must comply with obligations imposed by the Human Rights Act 1998 and to make clear that the independent Commissioner for Investigations will determine whether a criminal investigation should form part of any review. The noble Lord has, therefore, already significantly influenced this Bill during its passage, and I genuinely thank him for that.

Respectfully, however, I would suggest that the content of the noble Lord’s amendments has been extensively addressed by the package of amendments tabled both on Report and subsequently at Commons consideration by the Government. Indeed, my right honourable friend the Secretary of State tabled two amendments in lieu in the other place to address further the concerns raised by the noble Lord, Lord Hain, through these amendments.

The first of these amendments, Amendment 20A, clarifies that the duty to look into all the circumstances of a death or harmful conduct when carrying out a review applies no less rigorously in a case where the Commissioner for Investigations has decided that a criminal investigation should not take place. Amendment 20B emphasises the importance of the involvement of victims’ families in the review process. It does so by placing the commission under an express obligation to include in its final report answers to any questions posed by family members as part of a request for a review, where it has been practicable to obtain the requested information as part of that review. I should remind the House that both these amendments in lieu were accepted in the other place without the need for a vote.

Turning to Amendment 20D in the name of the noble Lord, Lord Hain, the Government are also unable to accept the addition of a power that would allow the Secretary of State to prescribe standards under subsection (6A) as an alternative to attempting to provide for those standards on the face of the Bill.

The Government consider it vital to safeguard the independence of the commission. This is something that we have worked very hard to do, and to strengthen, during the Bill’s passage, in direct response to a number of points made in your Lordships’ House. In our view, any such power as set out in the noble Lord’s amendment would run directly counter to this objective.

[Lord Hain (Lab)]

I am grateful to the Minister for accepting this intervention and I thank him for his generous remarks earlier. The point that he has not so far made, and which I hope he will acknowledge, is that the amendment says that it would be by affirmative resolution. In other words, it will require proper consideration by both Houses. My concern in the amendment, as I will explain, is that this Bill can be further improved over time in the light of experience and the views of victims’ groups.

[Lord Caine (Con)]

I thank the noble Lord, although I think my point stands. Throughout the passage of the Bill—in response to criticisms, when it was brought from the other place, that the Secretary of State had too many powers vested in him—we have sought to divest powers and to strengthen the independence of the commission. Whichever procedure is used in this House, this amendment seems to me to be running in the opposite direction. I also remind the House that the Bill already contains a provision in Clause 35 requiring the Secretary of State to review the performance of the new commission by the end of its third year of operation.

I turn next to the issue of conditional immunity, which I readily accept is the most difficult and challenging element of this legislation, but which, in the view of this Government, is essential if the new processes which the legislation establishes are to have a chance of working. I am grateful as always to the noble Lord, Lord Murphy of Torfaen, for his alternative proposal, instead of insisting on the wholesale removal of conditional immunity. Having been passed in your Lordships House by 12 votes, this was decisively overturned in the elected House by 92 votes—far more that the Government’s actual majority in the other place. As I have said, conditional immunity is, in this Government’s view, an important mechanism to help the independent commission to fulfil its functions.

I briefly remind the House that the aim of the Bill is simple and straightforward: to provide more information to more people in a shorter timeframe than is possible under current mechanisms, to establish the facts of what happened to the families who wish for that, and to help society both to remember the past and to look forward to a more genuinely shared future.

I understand that the aim of Amendment 44E in the name of the noble Lord, Lord Murphy of Torfaen, is to give family members a role in whether immunity should be granted. In the Government’s considered view, that would critically undermine the effectiveness of these provisions in their principal aim: the recovery of information for families. For example, the “public interest” consideration element in condition D would lead to uncertainty as to the circumstances in which immunity will be granted, undermining the clear and transparent approach that we have sought to develop.

To ensure that the commission can obtain as much information for families as possible, we need to ensure that the right incentives are in place for individuals to come forward and provide that information. The possibility that eligible individuals who co-operate fully with the commission could be prevented from obtaining immunity is highly likely to act as a significant disincentive for individuals to disclose information.

As the House is well aware from our numerous debates over many months, the commission will grant immunity from prosecution only if individuals provide an account that is true to the best of their knowledge and belief. We have developed a more robust test for immunity in which that account must be tested against any information that the commission holds or can access. The commission must, as a result of amendments in your Lordship’s House, take reasonable steps to secure additional information needed to test the truthfulness of an account.

If an individual does not provide a truthful account of their actions that could be passed to families or does not participate in the immunity process at all, immunity will not be granted and that individual will remain liable for prosecution, should the evidence exist. Where prosecution takes place, should a conviction be secured, an individual will not be eligible for the early release scheme under the Northern Ireland (Sentences) Act 1998—again, as a result of amendments in this House.

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[Lord Cormack (Con)]

My Lords, I rise briefly on a very sad day. There is no Minister in His Majesty’s Government who has a better command and understanding of his brief than my noble friend Lord Caine. He is rightly respected and admired in Northern Ireland and, I think, in all parts of your Lordships’ House. He was clearly extremely unhappy about the Bill in its original form. He has clearly tried very hard indeed to improve it, and to some small degree it has been improved. But the speech that really should dominate this debate when it comes to be talked about in the future is the extremely powerful and moving speech of the noble and right reverend Lord, Lord Eames.

In my time as the chairman of the Northern Ireland Affairs Committee in the other place, I got to know and love Northern Ireland, and I came to respect a number of people, including the noble Baroness, Lady O’Loan, but none more than the noble and right reverend Lord, Lord Eames, who was rightly held in fond affection throughout Northern Ireland, was looked up to, and did so much, particularly with the commission that he and Denis Bradley chaired. What he said today was an eloquent endorsement of the point made from the Opposition Front Bench by a much-respected former Secretary of State, the noble Lord, Lord Murphy. He effectively said that this Bill is unimprovable.

I missed some of the debates on the Bill for domestic reasons, which many Members of your Lordships’ House are aware of, but I did speak at the beginning on a number of occasions. Although it has been before your Lordships’ House for over a year, it is still, frankly, an unacceptable Bill, because it does not command any support outside the Government, and quite a number of us on the Conservative Benches in both Houses are very unhappy about it.

There was a degree of impeccable logic in the speech of my noble friend Lord Hailsham. There is a case for a statute of limitations; it is a clear, unambiguous answer. It is equally clear—the noble Viscount, Lord Hailsham, recognised this in his speech—that that would not command support either at the moment.

It is incumbent upon the Government, in view of the widespread concern, anxiety and deep unhappiness, to pause this Bill. We have a new Session of Parliament opening on 7 November, just a little over two months ahead. We have a fairly frenetic week this week and next week, and a few days after, and then we break for the so-called Conference Recess. We come back for about 10 days. There will be no further opportunity for detailed examination of this Bill, and we cannot play indefinite ping-pong. I am one of those who is frequently on record as saying that of course the will of the other place, as the elected House, must prevail in the end.

It would be doing a service, to the people of Northern Ireland in particular, to pause on this. However, one service deserves another, and I revert to a point I made during Questions earlier this afternoon. It is incumbent upon political leaders in Northern Ireland to come together and have an Assembly and an Executive, because the ultimate verdict on the Bill should be given in Northern Ireland itself after a close re-examination of all the alternatives, including a statute of limitations. This is not a Bill that should go on to the statute book in the fag end of this Session. With every possible tribute to the noble Lord, Lord Caine, and I genuinely mean what I said, I beg him to have urgent conversations with the Secretary of State and to press the pause button.

[Lord Caine (Con)]

My Lords, I am, as ever, extremely grateful to all noble Lords who have participated in the debate on these amendments. I will attempt to be very brief. I had not planned to make a long wind-up speech. I will reply to just one or two points, if I may.

In his remarks, the noble Lord, Lord Murphy of Torfaen, referred to the long history of attempts to deal with legacy issues. In 1998, it was, of course, put into the “too difficult” drawer. There have been subsequent attempts, none of which have come to a successful resolution. I refer to the valiant efforts of the noble and right reverend Lord, Lord Eames, and his work with Denis Bradley. As noble Lords know, I was involved in the 2014 Stormont House agreement which, despite all of our best efforts, never managed to make it on to the statute book, and the level of consensus that we thought we had achieved at the time very quickly evaporated. There have been many attempts and many failures around legacy over the years.

This legislation, as I made clear in my opening remarks, sets out a different approach. The overall objective is very straightforward. It is to try to get for victims and survivors of the Troubles more information about what happened to loved ones in a far shorter time than is possible under existing mechanisms in a context in which, unfortunately for many, the prospect of prosecutions and convictions is going to be vanishingly rare.

I acknowledged as far back as Second Reading that I totally understand and acknowledge the feelings of many victims and survivors. I have met so many over the years, especially over the course of the past year, and for many the emotion, grief and anguish are as raw today as they were whenever the particular incident that caused their loved ones to be lost actually occurred. I referred in my Second Reading speech last November to my friend Ian Gow. Only last week, I dug out the letter that Ian sent to me on 4 June 1990, looking forward to lunch in the Strangers’ Dining Room on 11 June, just a matter of weeks before he was brutally murdered by the Provisional IRA—so I am acutely aware of the victims of terrorism.

However, I say to noble Lords that, if we are to pause this Bill or to refer it to the Assembly, all we are really doing is setting ourselves up for a further significant delay in providing answers to victims and survivors of the Troubles. The noble Lord, Lord Murphy, and my noble friend Lord Cormack—I am very grateful for and touched by my noble friend’s generous words towards me—talked about referring this back to the Assembly. I think I said in the past that it was always the assumption, going back to the Haass/O’Sullivan talks in 2013, that these matters would be dealt with in the Assembly after the Stormont House agreement, which largely covered devolved issues. Martin McGuinness and Peter Robinson, then Deputy First Minister and First Minister respectively, came to the then Secretary of State and said, “Secretary of State, these issues are all far too difficult for us to deal with in the Assembly. Please could you take all the legislation through Westminster?” That is when we ended up unsuccessfully trying to convert the Stormont House agreement into legislation through this House. So I do not necessarily agree with the noble Lord that the answer is to refer this back to the Assembly.

I dealt in my opening remarks with the Government’s objections to the two amendments; I do not intend to add to those remarks. The subsequent debate has to some extent taken on the nature of another Second Reading debate, in that a number of issues have been raised that have been debated extensively throughout the past year. So, once again, with the greatest respect to the House, I do not intend to go over all those points again; we have debated them exhaustively.

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[Baroness Ritchie of Downpatrick (Lab)]

I thank the Minister for taking my intervention. In that same article in the Irish News there was a subheading which indicated that the staff to assist Sir Declan would come from the Northern Ireland Office. Can the Minister confirm that this is correct and, if so, how will it address the issue of independence of the commission?

[Lord Caine (Con)]

There are officials from the Northern Ireland Office assisting with the establishment of the body, but the staffing of the body will be entirely for the commission itself; it is not a matter for the Northern Ireland Office. The legislation is not yet passed, so the commission will not formally come into being until next year. All that is happening is that officials from my department are helping with the establishment during that transition phase.

As I said, this has taken on something of a Second Reading debate. We have heard many points rehearsed extensively. Therefore, I conclude by asking noble Lords not to insist on Motions A1 and B1 but instead to agree with the Commons amendments in lieu under Motions A, B and C, and pass this Bill; that is the clear will of the elected House of Commons. I beg to move.

[Lord Hain (Lab)]

My Lords, I want to thank especially the noble Baroness, Lady O’Loan, the noble and right reverend Lord, Lord Eames, and my noble friend Lady Ritchie, for their fulsome support for my amendment. In the circumstances, I reluctantly beg leave to withdraw Motion A1.

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Moved by

[Lord Caine]

That this House do not insist on its Amendment 44 and do agree with the Commons in their Amendments 44A, 44B and 44C to the words restored to the Bill by the Commons disagreement to Lords Amendment 44.

44A: Clause 18, page 16, line 35, at end insert “, and
(b) any other law that might or would prevent a prosecution of P for an offence from being begun or continued (for example abuse of process—but see paragraph 3 of Schedule (No immunity in certain circumstances)).”

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Moved by

[Lord Caine]

That this House do agree with the Commons in their Amendment 119A.

119A: Clause 52, page 41, line 7, leave out paragraph (d)