Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Caine Excerpts

Report stage
Wednesday 21st June 2023 Lords Chamber

Moved by

[Lord Caine]

1: Clause 2, page 3, line 11, leave out “one, two or three” and insert “between one and five”
Member’s explanatory statement
This provides that the ICRIR will have between one and five other Commissioners (in addition to the Chief Commissioner and the Commissioner for Investigations), with the actual number to be decided (as currently) by the Secretary of State under paragraph 6 of Schedule 1.

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

My Lords, before I begin, I will take a moment to mark, on the longest day of the year, the annual day of reflection to remember the losses experienced by so many during the Troubles. It is also an opportunity to remind ourselves of how far Northern Ireland has come since the most difficult days of the Troubles; to remember the steps that have been taken since 1998 to build a more peaceful, prosperous and stable Northern Ireland; and to ensure that the experiences and horrors of the Troubles are never repeated.

I remind the House that this is Report, and the Bill has been debated extensively in Committee. I have held countless meetings with noble Lords over recent weeks and months. In accordance with the Standing Orders of the House, I will seek to be brief, and I hope that other noble Lords will attempt to follow suit.

I have always maintained that central to the effective delivery of this legislation is the need for an independent body to carry out reviews and, where an individual co-operates properly with the body, to grant immunity from prosecution. The Government fully recognise the need for the commission to have credibility, expertise and legitimacy so that effective investigations can be carried out and information provided to families as soon as possible.

As I mentioned, we debated the independence of the commission extensively in Committee, and I have sought to address as many concerns as possible. On the final day of Committee, I announced the intended appointment of the former Lord Chief Justice of Northern Ireland, Sir Declan Morgan KC, as the chief commissioner, having obtained input from the Lord Chief Justices of Northern Ireland and England and Wales, and the Lord President of the Court of Session in Scotland.

To allay further concerns around the integrity and independence of the immunity process, I tabled Amendments 79 to 83, placing a duty on the commission to produce guidance related to determining a request for immunity. This will replace the power that, in the Bill as currently drafted, sits with the Secretary of State for Northern Ireland. It was the subject of some debate, as noble Lords will recall.

Alongside this, I retabled Amendments 132, 133 and 137 to 140, seeking to ensure that there is international expertise among the commissioners and requiring consultation with the relevant senior judge where the appointee no longer holds high judicial office. This is complemented by Amendments 1 and 131, increasing the number of possible commissioners from five to seven, which helps to ensure that there is an appropriate range of skills, experience and independent scrutiny across the commission.

Amendments 141 and 142 ensure that terms of appointment of the commissioners do not exceed a period of five years. In our view, that will facilitate the periodic refreshment of commissioners to provide new perspective, impetus, views and specialist expertise, while ensuring that there is also continuity. These amendments will strengthen the independence of the commission. I beg to move.

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[Baroness Suttie (LD)]

I echo a lot of the comments that the noble Lord, Lord Murphy, has just made, and the Minister’s comments about remembering. It is very important that we never forget all those impacted and killed by the Troubles.

I too start by thanking the Minister for the constructive way in which he has engaged on the Bill, given the constraints that he faces at the other end of the building. He has always shown himself willing to meet and discuss, and I know that he has dedicated a considerable amount of time to the Bill, including during the summer holiday last year, perhaps. For that we thank him.

Again, like the noble Lord, Lord Murphy, most of us feel that, although the amendments are to a very large degree to be welcomed, they are not game-changing; they have not really changed the Bill to the extent to which many of us would have liked to see. I am sure that we will return to that issue at later stages, but this group is a positive example of amendments that these Benches are happy to welcome.

[Lord Caine (Con)]

I am very grateful to the noble Lord and noble Baroness for their support and kind words, and I hope that this year I might actually get some time off during the summer. That might be the triumph of hope over experience, but you never know. I take great heart from the comments of the noble Lord, Lord Murphy of Torfaen, when he describes the Government as having made a “clever move”. I welcome that, and I am very grateful. The amendments that I have proposed will strengthen the independence of the commission.

Amendment 1 agreed.

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Moved by

[Lord Caine]

2: Clause 2, page 3, line 11, at end insert—
“(3A) The principal objective of the ICRIR in exercising its functions is to promote reconciliation.”Member’s explanatory statement
This would impose the principal objective of promoting reconciliation on the exercise of the ICRIR’s functions.

[Lord Caine (Con)]

My Lords, at Second Reading I committed to carrying out extensive engagement, which has just been recognised by the noble Lord and the noble Baroness—and I hope it is recognised more widely across the House that this is exactly what I have done. The amendments that I am bringing forward in this group seek to take on board and respond to a number of concerns raised in the House and elsewhere, as far as possible.

The Government remain committed to delivering better outcomes for those most affected by the Troubles by providing more information in a more timely manner to more people than is possible under current mechanisms. This is a hugely difficult task, and the legislation—as I have admitted both in this House and in the media—requires some finely balanced political and moral choices that are challenging for many, myself included. We must be realistic about what we can deliver. I have reflected on how we can strengthen the Bill and I am thankful for the many conversations that I have had on this, including with the Commissioner for Victims and Survivors in Northern Ireland, Ian Jeffers. While we have our differences, I am grateful for the way in which he has always conducted our meetings. It is widely recognised that the current mechanisms for addressing legacy issues provide satisfactory outcomes to very few of those affected, leaving far too many victims and families—including many of those who died while serving the state—empty-handed.

Amendments 2, 3 and 7 to Clause 2 in my name place the commission, when exercising its functions, under a duty to have regard to the general interests of persons affected by Troubles-related deaths and serious injuries. These amendments also provide that, in exercising its functions, the commission’s principal objective is to promote reconciliation. It is our view that putting more information in the public domain via an effective information recovery process, subject to the exceptions set out in Clause 4, will help to do that. These amendments seek to strengthen our commitment to victims, provide greater direction to the commissioner and respond to the debate in Committee, where your Lordships raised concerns over the extent to which the commission would take a victim-centred approach to its work.

Amendment 85 will place the commissioner under a new duty to offer victims and their families the opportunity to submit personal impact statements setting out how they have been affected by a Troubles-related death or serious injury. Amendment 86 creates a corresponding duty to publish those statements, subject to limited exceptions. This will give families a voice in the process. As the noble Baroness, Lady Smith of Basildon, put it in Committee:

“Without that, this will be one of the biggest failures of the Bill”.—[Official Report, 31/1/23; col. 646.]


That is something that we are attempting to rectify. The new duty corresponds to recommendations made by the Commissioner for Victims and Survivors, Ian Jeffers, and is complemented by a separate duty to publish the statement if the individual so wishes. I am also grateful to the noble Baroness, Lady Suttie, for raising this amendment in Committee.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I thank the Minister for his explanation of the amendments in this group about making the Bill more victim-centred. Undoubtedly, the most important people in all this are the victims. Many of them have passed on and their families—some of whom have passed on, through the passage of time—have not seen justice and truth: the very things they were looking for. I acknowledge what both the Minister and my noble friend Lord Murphy said, on the summer solstice, the longest day of the year, which is the day that victims of the Troubles in Northern Ireland are remembered.

In relation to Amendment 2, can the Minister, in his wind-up, explain the practical application of the amendment on the operation of the ICRIR. How will the amendment really promote reconciliation in the exercise of those functions, given that the Bill has been opposed by legal representatives, such as the European Council of Ministers, political representatives from the Irish Government and all the political parties in Northern Ireland, and the victims and survivors—a wide spectrum?

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[Lord Murphy of Torfaen (Lab)]

My Lords, I agree with every word spoken by every Member of this House who has taken part in this very brief debate. First, I thank the Minister for certainly improving what was there before—there is no question about that—but it does not, of course, go to the heart of the issue of why it is that victims, victims groups and the victims’ commissioner are probably the people most opposed to the Bill as a whole. Putting the word “reconciliation” in it does not mean to say it makes it any better, because, as my noble friend Lady Ritchie and the noble Lord, Lord Weir, said, there is a vagueness about the definition, so it does not actually mean very much at the end of the day.

What is purposeful, I think, is the fact that there are going to be victim statements. I think that is a distinct improvement, but ultimately the reason that victims and their families and their advocates in Northern Ireland are opposed to the Bill is because of the proposals on immunity, which we will reach a little later this evening. However, the Opposition will not oppose the amendments.

[Lord Caine (Con)]

My Lords, again, I am very grateful to those who have participated in the admirably short debate on this group of amendments.

Returning briefly to the issue of personal impact statements, as I set out, these are designed to give victims and families a voice in the process, and an opportunity to set out how they have been personally affected by the Troubles. The noble Lord, Lord Weir of Ballyholme, referred to the way in which the amendment is drafted and the fact that the victim’s impact statement will not be part of the immunity process. The Government’s clear view is that determinations for applications for immunity must be solely a matter for the chief commissioner of the new ICRIR to determine within the framework of the legislation. The commission will decide, of course, to what extent families should be involved in the immunity process more generally.

The noble Baronesses, Lady Ritchie and Lady O’Loan, touched on the issue of the potential conflict between the duty on reconciliation and investigations. As the amendments set out, the primary objective of reconciliation does not contradict the functions of the ICRIR—I shall say “the commission” for short—which are focused on the provision of information to families and the powers of the ICRIR will facilitate that. There is no question of the duty getting in the way of investigations. Certainly, when it comes to family reports, the only thing that will not form part of the final family report will be those that are referred to in Clause 4 regarding national security and the duty to keep people safe and secure and not to put people’s lives at risk.

In response generally to the noble Baroness and the noble Lord, Lord Morrow, I touched on the issue of reconciliation way back at Second Reading in November, when I said that no Government can legislate to reconcile people or to impose reconciliation on people. However, we can try to put in place as many measures as possible to promote reconciliation. In my view, reconciliation in Northern Ireland means a place where society is peaceful and prosperous and which most people who live there would be proud to call home. I hope that deals with some of those points.

On the point made by the noble Lords, Lord McCrea and Lord Weir, the Government have never accepted any kind of moral equivalence between those who injured themselves at their own hands and the victims of terrorism in Northern Ireland. We made it quite clear when we passed the victims’ payment scheme in this House a few years ago that we did not accept any equivalence and there is certainly no intention to do so here.

On that note, I hope that I have managed to respond to a number of points and beg to move.

Amendment 2 agreed.

Moved by

[Lord Caine]

3: Clause 2, page 3, line 26, at end insert—
“(4A) In exercising its functions, the ICRIR must have regard to the general interests of persons affected by Troubles-related deaths and serious injuries.”Member’s explanatory statement
This would require the ICRIR to have regard to the interests of various categories of person when carrying out its functions.

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Moved by

[Lord Caine]

4: Clause 2, page 3, line 26, at end insert—
“(4A) At least three months before the start of each financial year the ICRIR must—(a) produce and publish a work plan for that year, and (b) give a copy of the plan to the Secretary of State.But this duty does not apply in relation to any financial year which starts before 1 April 2025.(4B) A work plan must deal with the following matters—(a) the caseload which the ICRIR is expecting;(b) the plans which the ICRIR has for dealing with its caseload;(c) the plans which the ICRIR has for engaging with persons entitled to request reviews of deaths and other harmful conduct;(d) policies which the ICRIR is planning to introduce, review or change;(e) such other matters as the ICRIR considers appropriate.”Member’s explanatory statement
This would require the ICRIR to produce a work plan for each financial year before the start of the year.

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[Lord Caine (Con)]

My Lords, I will again try to be mercifully brief given that, with one technical exception, I have retabled these amendments from Committee, where they were debated extensively. They are designed to amend operational matters in the legislation. I hope noble Lords will bear with me as they are very technical.

Amendments 4, 5, 6 and 8 to Clause 2 and Amendment 125 to Clause 54 ensure that the commission produces and publishes a work plan for each financial year. This will ensure that the commission has properly considered and planned for its expected caseload in each financial year. The work plan will set out the commission’s engagement strategy and any plans to make policy changes. This will ensure that it has properly considered and planned for its expected caseload.

Amendment 127 is entirely technical in nature. It seeks to change the definition of “reserved provision” in regard to this legislation, reflecting the fact that Section 8(b) of the Northern Ireland Act 1998 requires consent to a Bill for an Act, rather than to the Act itself. This will simply tidy up the drafting.

Amendment 130 to Schedule 1 will require the commission to keep accounts, prepare an annual statement of accounts and provide that statement to the Secretary of State and the National Audit Office, which will be under a duty to audit the commission with audits laid in Parliament. Amendment 134 to Schedule 1 deletes a reference to a commissioner having been removed from office on grounds of ill health, as ill health is not a ground for removal from office, as is standard for such posts.

Amendment 135 to Schedule 1 provides a definition for being insolvent in regard to this legislation. Amendments 136 and 143 update the provisions about the application to the commissioners and ICRIR officers of the law relating to the rehabilitation of offenders, which ensures that the Bill reflects the current approach taken in law.

Amendment 144 to Schedule 1 ensures that the commissioner for investigations, who is also an ICRIR officer, falls only within paragraph 14 of Schedule 1, as a commissioner, and not also within paragraph 20 of that schedule as an ICRIR officer. Paragraphs 14 and 20 make equivalent provision to ensure that the prohibitions on trade union activity which govern the police do not apply to the ICRIR, which I am sure noble Lords opposite will welcome.

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[Lord Bew (CB)]

I am grateful to the noble Baroness for the intervention. I did not express it quite correctly; I was thinking of the likely number of prosecutions, which is a substantially lower number. She is right to make the correction.

[Lord Caine (Con)]

I am grateful to noble Lords for their contributions. I turn first to Amendment 10 to Clause 4, in the name of the noble Lord, Lord Bew. The legislation is clear in relation to the powers provided to the ICRIR to assist in the performance of its functions. That includes Clause 5, in relation to disclosure, and Clause 6, which provides for ICRIR officers to have the powers and privileges of a constable. Clause 14 provides the ICRIR with the power to compel individuals to provide information, a power which is not provided to police officers but, in the Government’s view, is necessary to ensure that the commission can deliver effective legacy mechanisms while complying with our international obligations. Although I am sympathetic to the intent behind the amendment, I suggest that it is not necessary.

In respect of the noble Lord’s comments about the employment of former Royal Ulster Constabulary officers—former members of the Historical Enquiries Team—there is absolutely no prohibition, as I made clear in earlier comments in Committee. I think he is aware of my steadfast support and gratitude for the service and sacrifice of the Royal Ulster Constabulary over many years.

I turn to Amendments 21 and 26 in the name of the noble Baroness, Lady O’Loan. We had an extensive discussion about this issue yesterday afternoon so she will be unsurprised by my response. In our view, the Bill’s definition of a “close family member” is already extensive and covers spouses, civil partners, cohabitees, children, parents and siblings, as well as stepchildren, step-parents and half-step-siblings, and the ICRIR must accept a request for a review from any of these individuals. Therefore, this is a provision which is unlikely to be required in the majority of cases, given the comprehensive scope of the definition of close family member. However, where no close family member exists, it is right that the ICRIR has discretion—I repeat, discretion—to consider whether that request is appropriate. This could, for example, be considering the nature of the relationship to the deceased by the person requesting the review, both in terms of how they are related or the reality of that relationship. Factors such as whether they were estranged or were closely involved in the individual’s life could be relevant.

In respect of the comments made by the noble Baroness about data, we discussed this extensively. I am afraid I do not know the details of the circumstances in which Kenova has made the request to which she referred, but I think the Government’s position on this is solid.

Amendment 4 agreed.

Moved by

[Lord Caine]

5: Clause 2, page 3, leave out line 27 and insert—
“(5) No later than six months after the end of each financial year, the ICRIR must— (a) produce and publish an annual report in relation to that year, and(b) give a copy of the annual report to the Secretary of State.(5A) An annual report must deal with the following matters—”Member’s explanatory statement
This amends the existing provision about annual reports so that it takes the same form as the new provision in the amendment in Lord Caine’s name about work plans (including by imposing a time limit for producing the reports and requiring the reports to relate to financial years).

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[Lord Murphy of Torfaen (Lab)]

This was bound to be a powerful and very emotional debate about an issue which goes, as many noble Lords have said, to the very heart of the legislation. It also goes to the heart of the opposition to the legislation. We heard some excellent speeches from the noble and right reverend Lord, Lord Eames, onwards on various amendments which have been tabled, which are very welcome and sensible.

As the noble Baroness, Lady Suttie, said, she and I and others have tabled Amendment 66, which removes the clause dealing with immunity. One of my later successors as Northern Ireland Secretary, the right honourable Karen Bradley, said some years ago that proposals for legacy must follow the rule of law. She went on:

“Conservatives in government have consistently said that we will not introduce amnesties or immunities from prosecution”.


It is as clear and simple as that.

Why then should we be so drastic as to propose the deletion of that vital clause? First, we need to send a message as clearly and strongly as we can to the Members of the House of Commons when they consider the amendments that go back from this place. The Government have a majority of 80. Inevitably, with that large majority they can do what they want, but they should think again because of the nature of this Bill. Every single Northern Ireland Member of Parliament from all parties in Northern Ireland voted against it. To send a signal to the House of Commons that this House recognises the significance of the opposition to the Bill in Northern Ireland would be very powerful.

People say that the release of prisoners under the Good Friday agreement was similar—not the same because prisoners had to have served at least two years in prison before they could be released. The big difference between this and that is that the people of Northern Ireland, in a referendum on the Good Friday agreement, however distasteful they thought it was, voted in favour. No one in Northern Ireland is voting in favour of this. In fact, this entire Bill, with the possible exception of some national security elements, should have been passed by the Assembly in Belfast, and I suspect that the reality is that not one single Member of the Belfast Assembly would have voted for this Bill. Perhaps a handful might have done so, but I very much doubt that.

That is why it is so important that the Government should think again about this. They should think in terms of who is against it. Every church in Northern Ireland is against it. Every single political party is against it. All the victims’ groups and the victims’ commissioner are against it. The Northern Ireland Human Rights Commission and every single human rights group are against it. Internationally, only a day or so ago the Tánaiste—the Deputy Prime Minister and Foreign Minister of Ireland—said how much the Irish Government are against it because their legacy provisions in the Republic are affected by it. The Council of Europe is against it. The United Nations is against it. The list goes on and on but, most significantly, it is because there is no consensus in its favour.

The Minister has been involved in Northern Ireland for a very long time, and he knows that you cannot simply impose things on Northern Ireland. You cannot impose resolution on Northern Ireland. People in Northern Ireland should decide for themselves on this, which is the most crucial and delicate issue that they can possibly make a decision on. Imposition is entirely improper. That is the message I hope we will be able to send to the House of Commons when we vote on these issues on Monday.

The Minister will say this wrecks the Bill. It does not. It takes out the part of the Bill which is most severely disliked. The Government will still have their commission and their reviews, but they will have to put something else in place of this proposal on amnesties and immunity, and that something else has to be based upon the co-operation and consent of the people of Northern Ireland. I went to Belfast in April when we were dealing with the anniversary of the Good Friday agreement, and not one single person came up to me and said they agreed with this legislation—indeed, the opposite. All the people, right across the political spectrum, I talked to about the Bill were against it because this immunity issue is the one that they particularly disagree with for all the reasons that noble Lords have spoken about in this short debate. Why on earth are the Government persisting in something that should not be imposed upon the people of Northern Ireland against their will?

[Lord Caine (Con)]

My Lords, this has been a very thorough debate, as indeed it was in Committee. At the outset, I am very grateful to the noble Lord, Lord Murphy of Torfaen, for quoting some words which I think I probably drafted for Karen Bradley when she was Secretary of State a few years ago. I gently remind the noble Lord, Lord Murphy, of a letter to which he put his name, as did the noble Lord, Lord Hain, to Karen Bradley in 2018. They wrote that

“the priority is surely now … not investigations that have little or no likelihood of either prosecution or alternative closure satisfactory to victims”.

I would be interested to hear at some stage what the alternative proposal of His Majesty’s Opposition might be.

[Lord Murphy of Torfaen (Lab)]

I rarely do this in the House of Lords, but I think that is worth an answer. It would have been based on consensus. Whatever was done would have been done with the agreement of the people of Northern Ireland through their elected representatives and through the people in their other organisations. That is the difference.

[Lord Caine (Con)]

The noble Lord will be aware from his own experience that the search for any consensus around this subject has eluded successive Governments of—I was going to say “both parties”, but it is actually three parties if you include the coalition.

The noble Baroness mentioned devolution. I well remember the history of why we are in this position in the first place: after the Stormont House agreement, the First and Deputy First Ministers came to what was then Her Majesty’s Government and said, “This is all far too difficult for us to do in Stormont. Please do it at Westminster”. The assumption always was that these issues would be dealt with in Stormont, with some parallel legislation in this House. Anyway, enough of the history.

I genuinely accept that this is the most controversial and challenging aspect of the Bill. As I acknowledged at Second Reading, I have found this very difficult. I reminded the House at the time that one of my first jobs in politics was to work alongside the late Ian Gow MP, a wonderful man, when he was chair of the Conservative Northern Ireland Back-Bench committee, so I understand. I have had many meetings with victims’ and survivors’ groups over many years, and intensively ever since I took on responsibility for this Bill in your Lordships’ House. Indeed, I responded to a request from the noble Baroness last year. I have done this very willingly and have heard many harrowing stories that I will never forget. One of the most difficult parts of the job of being a Northern Ireland Minister, as the noble Lord, Lord Murphy, will acknowledge, is that one has to listen to some of the most appalling stories of suffering and grief; I completely acknowledge that.

As I said earlier, the Government are determined, through the legislation, to attempt to deliver better outcomes for those most affected by the Troubles. I do not underestimate that this is a hugely difficult task and that the legislation contains, as I have said, finely balanced political and moral choices that are challenging for many.

On the comments that have been made about our international obligations, we debated that extensively in Committee and I have had lots of discussions in private. We are not going to agree. The Government’s advice is clear that the provisions of the legislation are compatible with the Human Rights Act and the ECHR.

[Baroness O'Loan (CB)]

Could the Minister explain to us how they are compatible?

[Lord Caine (Con)]

I explained that at length in Committee. They allow for investigations to an Article 2-compliant criminal standard, they allow for prosecutions in cases where people do not co-operate with the commission, and they allow for revocation.

[Baroness O'Loan (CB)]

Possibly my question was not properly phrased. Could the Minister explain how an immunity provision such as this is compliant with our obligations?

[Lord Caine (Con)]

There are circumstances where setting aside the prospect of a prosecution, if it is for the greater good of providing more information to victims and survivors that will help society to move on, can be justified.

On the noble Baroness’s other point, I think she referred—I hope she will forgive me if I did not hear her quite right—to recourse to human rights remedies. The Bill does not remove the right of individuals to bring challenges under the Human Rights Act 1998, and that could include judicial review of decisions taken by the ICRIR in relation to the conduct of reviews. As a public authority, the ICRIR is under a duty to act compatibly with human rights obligations, something that we will probably talk about more in the next group of amendments.

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[Viscount Brookeborough (CB)]

I have just a quick point. When we talk about the individual giving all the relevant and truthful knowledge, to what extent will he be asked about the other people involved in the incident, whenever it was? If he fails to give information on them, does that mean that he has fallen short of what is required by the commission, because there is virtually no incident that did not involve a number—or in fact quite a lot—of people? If he gives information but the other people he has named do not come forward when asked to, will they then be open to prosecution using some of what that original person either said or failed to say as evidence?

[Lord Caine (Con)]

I am grateful to the noble Viscount, Lord Brookeborough, for his intervention. Much of what he says will of course be dependent upon the way in which the criminal investigation, if there is one as part of a review, is carried out. But there is a duty to take reasonable steps to establish the truthfulness of an individual’s account by looking at all the relevant information that is available. If an individual’s account is deemed to be not truthful to the best of their ability, they will not qualify for immunity.

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[Baroness O'Loan (CB)]

My Lords, I would like to query what the Minister said about Amendments 94 and 97 and about me. I have never suggested that the officers of the ICRIR would not have the powers of a constable.

[Lord Caine (Con)]

Forgive me, I am having difficulty hearing the noble Baroness.

[Baroness O'Loan (CB)]

My Lords, I said that the Minister made some allusion to me in the context of Amendments 94 and 97 as he was concluding his remarks. I have never suggested that the officers of the ICRIR would not have the powers of a constable. I just want to place that on record.

[Lord Caine (Con)]

I am grateful to the noble Baroness. I do not think I was in any way ascribing those opinions to her. If she thinks I was, then I apologise.

[Lord Eames (CB)]

My Lords, I appreciate once more the manner in which the Minister has dealt with my amendments. I want to do everything I can to encourage him to take forward a little further the area I addressed. In light of what he has said, which does not surprise me, I beg leave to withdraw my amendment.

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[Lord Bew (CB)]

My Lords, I rise to address the subject of the fairness of the working of the commission in future. This amendment is alongside Amendments 37 and 47, which essentially have the same effect.

[Lord Caine (Con)]

Just to clarify: does the noble Lord wish to speak to Amendment 12, which we have not yet reached?

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Moved by

[Lord Caine]

11: Clause 4, page 4, line 29, at end insert—
“(2A) Subsection (1)(c) does not apply to grants of immunity from prosecution by the ICRIR under section 18 (but see paragraph 3 of Schedule (No immunity in certain circumstances).”Member’s explanatory statement
This amendment is consequential on paragraph 3 of new Schedule (No immunity in certain circumstances) in Lord Caine’s name.

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[Lord Caine (Con)]

My Lords, I am grateful to all those who have spoken. We have debated compatibility with the European convention at length, as recently as the last group. I do not propose to revisit all those arguments in response to this group.

I have, however, brought back Amendment 32 to make it clear in the Bill that the independent commissioner for investigations will determine whether a criminal investigation should form part of a review. I have also tabled Amendments 30 and 33 expressly to confirm that the commissioner, when exercising operational control over the conduct of reviews and other functions, must comply with obligations imposed by the Human Rights Act. In addition, I will place a duty on the commission to publish a statement outlining how each review was conducted as part of its final report, thus enhancing the transparency of its work through Amendments 34, 49, 50 and 55.

The legislation rightly ensures that the independent commission, via the commissioner for investigations, has the flexibility to determine whether and when it is appropriate to use police powers during its review. An approach requiring a criminal investigation in all cases, as would be required under Amendment 31 in the name of the noble Lord, Lord Hain, would remove such flexibility and significantly increase the likely time to complete reviews, further delaying the provision of information to many families. I do not intend to go over the contents of my letter to the noble Lord again; it is there for everybody to see.

As I have said in the House on numerous occasions, I recognise the work carried out by Operation Kenova and the way in which Jon Boutcher, to whom I pay tribute, has developed strong relationships with the families of victims. There are many features of Operation Kenova’s work that the Government consider capable of being built on, should the commission choose to do so. However, as I have put on record numerous times, the Government view it as vital that the commission is free to determine its own approach to these complicated matters. That would be constrained if we were to adopt the amendment of the noble Lord, Lord Hain.

In response to amendments tabled by the noble Baroness, Lady O’Loan, in Committee, I have brought forward Amendments 14 and 15 to Clause 5. These would extend the list of authorities which may be required by the commissioner for investigations to provide the commission with assistance for the purposes of, or in connection with, the effective use of information, documents and other material provided by those authorities under Clause 5.

On the issue of Maxwellisation, I have introduced a series of amendments to Clauses 15 and 17, in response to discussions with the noble Baroness, Lady O’Loan, requiring the chief commissioner to share only relevant sections of a report criticising a person rather than the full draft report and allow them to make representations about that material.

I am sympathetic to what Amendments 39 and 41 in name of the noble Baroness, Lady O’Loan, attempt to do. We explored this in Committee and the noble Baroness and I discussed these matters yesterday, so I do not intend to go over all the arguments again. Suffice it to say that, in our view, the current drafting ensures that the chief commissioner can modify material as well as exclude it, so in our view the amendments are unnecessary.

In response to Amendments 12, 37 and 47 tabled by my noble friend Lord Bew, the ICRIR is already under a clearly defined obligation, in Clause 4(1)(b), not to do anything that would risk putting, or would put, the life and safety of any person at risk. It is the Government’s view that this safeguard is wide enough to offer sufficient protection of the rights of anyone likely to be named in reports, and therefore my noble friend’s amendment is unnecessary.

In respect of Amendment 13 to Clause 5, again in the name of the noble Baroness, Lady O’Loan, it is not unusual for legislation giving a power to require the provision of information to be subject to the requirement of reasonableness. Reasonableness is a widely used and understood term, which is included in other legislation. She referred to one example which I provided, in the Finance Act. I could add the paragraph 19ZA of Schedule 3 to the Police Reform Act 2002, which uses the same reasonableness requirement formulation in the equivalent power of the director-general of the Independent Office for Police Conduct. The Inquiries Act 2005 gives the chairman of an inquiry the ability to require a person to provide evidence and documents to the inquiry panel within such a period that appears reasonable to the inquiry panel. Section 17(2) of the Criminal Appeal Act 1995, which gives equivalent powers to the Criminal Cases Review Commission, is also drafted in those terms, so there are a number of other examples.

In practice, the commissioner for investigations will decide, based on the facts of the particular review, what information can reasonably be required of a relevant authority. If there is a dispute, and the relevant authority considers the commissioner has acted unreasonably in imposing the requirement, the matter will ultimately have to be resolved by the courts. I believe the noble Baroness, as we discussed recently, is reading too many restrictions into the Bill, where do they not exist and there is no intention for them to exist, and where our purpose is to get as much information into the public domain as possible.

[Baroness O'Loan (CB)]

I thank the Minister for giving way. Does he accept that, in the examples he gave of the time within which information might reasonably be provided, and the powers of the chair of a tribunal who is reasonably requesting information, there is a distinction between a reasonable request for information and a request for information to be provided within a reasonable time? We have seen, in the current judicial review, the difficulties faced by the Government in relation to the information held in respect of the Prime Minister which is required by the Covid inquiry.

[Lord Caine (Con)]

If I am honest, I am not entirely sure I follow the point the noble Baroness is making, but I stand by the point I have just made, that our intention is not to impose unnecessary restrictions through this legislation but to allow the commission to access information and be in a position to put more information about what happened into the public domain than has been the case.

Turning to Amendment 28 in the name of the noble Baroness, Lady Hoey, I understand the intention behind this amendment, but Clause 11(7) already requires the commissioner for investigations to ensure that the commission does not do anything that duplicates any aspects of a previous review, unless duplication is deemed absolutely necessary. We believe this is a proportionate approach that ensures the resources of the commission are not wasted through unnecessary duplication, while providing limited discretion for the commission where that might be required. In our view, the effects of the amendment tabled by the noble Baroness would be to hamper the ability of the commission to conduct reviews which might lead to the effective provision of information to many families, which would run counter to a key objective of the legislation. I therefore urge noble Lords not to press their amendments.

[Lord Bew (CB)]

I beg leave to withdraw Amendment 12.

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Moved by

[Lord Caine]

14: Clause 5, page 5, line 21, leave out from “require” to “to” in line 22 and insert “any of the following persons”
Member’s explanatory statement
This amendment is consequential on the other amendment of this Clause in Lord Caine’s name

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Moved by

[Lord Caine]

16: Clause 7, page 6, line 15, at end insert—
“(3A) Subsection (2) does not apply in relation to proceedings against D for an offence under paragraph 8(1)(a) of Schedule (distortion of evidence); and subsections (2) and (3) do not apply in relation to proceedings against D for an offence under section (False statements: offence) (false statements).”Member’s explanatory statement
This amendment allows for certain evidence given to the ICRIR to be used (against the person who gave the evidence) in criminal proceedings relating to false statements and distortion of evidence.

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Moved by

[Lord Caine]

19: Clause 8, page 7, line 37, after “section” insert “—
“civil proceedings” does not include— (a) family proceedings within the meaning of Article 12 of the Family Law (Northern Ireland) Order 1993 (S.I. 1993/1576 (N.I. 6));(b) family proceedings within the meaning of section 75(3) of the Courts Act 2003;(c) family proceedings within the meaning of section 135 of the Courts Reform (Scotland) Act 2014 (asp 18) or proceedings under the Children (Scotland) Act 1995 or the Children’s Hearings (Scotland) Act 2011 (asp 1);”Member’s explanatory statement
This excludes family proceedings from the scope of Clause 8.

[Lord Caine (Con)]

My Lords, as has been said many times, the Government’s primary focus has been to establish one effective legacy body focused on providing better outcomes for families. We want to ensure that organisations such as the PSNI, the Police Ombudsman and the judiciary are able to focus their capabilities and resources on the present, not the past.

It remains our view that the commission, when established, should be the sole body responsible for Troubles-related cases. However, we are mindful of concerns about the ending of some existing ongoing processes. This is particularly the case given the current legislative timetable and the expected timeframe for the independent commission to become fully operational. Amendments 106, 129, 151, 155 and 156 in my name therefore ensure that ongoing criminal investigations, ombudsman investigations, the consideration of prosecution decisions, coronial inquests and the publication of reports will continue until 1 May 2024, when the commission will become fully operational.

Amendment 91 removes the provision which allows reports or statements about criminal investigations to be produced for a limited period after Clause 34 comes into force. That is now redundant, given my amendments to extend this time to 1 May 2024.

I hope that the additional time provided will be welcomed by noble Lords who have expressed concern regarding specific work, including Operation Kenova and Operation Denton. We hope that the additional time provided will allow such cases to conclude their work while ensuring a smooth transition between the ending of the current mechanisms and the commission taking on all responsibility for outstanding cases.

Our amendment provides until 1 May 2024 for inquests to conclude. Since the Bill’s introduction, expeditious case management in order to reach an “advanced stage” has resulted in the overloading of a system that was already struggling under incredible pressure, causing delay and frustration. This amendment will ensure that resources will now be focused on completing those inquests that have a realistic prospect of conclusion in the next year.

Troubles-related cases that do not conclude by 1 May 2024 will be transferred to the fully operational new commission led by Sir Declan Morgan as chief commissioner—the man who was responsible, as noble Lords will know, for reforming the inquest system a number of years ago. It is the Government’s expectation that this amendment provides sufficient time for coroners and Sir Declan as chief commissioner to develop a considered plan that will allow for the seamless handover of outstanding cases to the new commission.

Going back to our previous debate, I remind noble Lords that the independent commission will be supported by a legislative requirement of full disclosure by state bodies, and it will have access to all necessary policing powers and the power to compel witnesses to comply with its reviews. At the conclusion of any review, the commission will be able to make findings, made public via a family report, in a manner similar to an inquest.

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[Lord Murphy of Torfaen (Lab)]

My Lords, after immunity, this part of the Bill is the most disliked, criticised and disapproved of in Northern Ireland. I understand why: because we will have inquests abolished, civil action banned and investigations not allowed to go on. That means the rule of law in Northern Ireland is being denied to the people, because of the decision of the Government to impose this Bill upon them.

I am not saying that there might not be occasions when all those things should happen. The problem is that, as in the case of immunity, effectively the Government have no Northern Ireland mandate for what they are doing. You can abolish the rule of law in some forms in a country only if the people are behind it. If the people’s representatives from all the political parties in Northern Ireland, and through all the churches and the organisations representing human rights there, and the victims’ commissioner for Northern Ireland, are opposed to this serious deflection from the rule of law then the only way that it can happen is if there is consensus.

The Good Friday agreement and the St Andrews agreement were based on consensus. The Stormont House agreement was based on consensus; the clue is in the name. The Minister shakes his head at that, but he knows that it would be a good basis for action if the Stormont House agreement were put forward. He had a very good Secretary of State at the time, but Johnson sacked him—maybe because he was too good. The issue, at the end of the day, is that you cannot impose these draconian changes in how the judicial and legal system works unless they have a legitimacy among the people who will have to live with them. That applies to the whole Bill but particularly to this provision. The reason why I support Amendment 110 is, again, because it gives the House of Commons the opportunity, if it is passed here, to have another look at it—a deep look at why this aspect of the Bill is so unpopular.

I cannot get my mind or head around why the Government are so stubborn on this. They can do what they like in Britain because they have a mandate, for another year, in the House of Commons. But, more than anybody else in the Government, the Minister knows that it is different in Northern Ireland and that these enormous changes cannot be made effective unless there is some sort of consensus. I do not for one second believe that the Government are wrong in seeking and trying to find a solution. The problem is that, in this case, they simply have not.

[Lord Caine (Con)]

My Lords, I am tempted to write at some point the definitive account of the Stormont House agreement, and to reveal just how exaggerated the levels of consensus in that agreement were. It almost started to unravel right from the start, and it was not entirely about legacy. In fact, legacy was never the motivation behind the talks that led to the agreement; it was about the Executive’s finances and welfare reform, principally. Anyway, that is for another day.

I discussed the clauses relating to investigations and inquests when opening this group, and these issues have been discussed at length both at Second Reading and in Committee. I will therefore not repeat well-rehearsed arguments here, other than to note the intervention by noble Lords today and to reassert that the primary purpose of the new commission—the ICRIR—is to provide more information through reviews that can include investigations. Those are not necessarily light-touch, as the noble Baroness, Lady Ritchie of Downpatrick, suggested; they can include full criminal investigations. It is to get more information to more families in a timelier manner than happens under the current processes.

I will respond to one point the noble Baroness, Lady O’Loan, and the noble Lord, Lord Browne of Ladyton, made on the recovery of costs. I have just looked at the Bill, which provides for costs. Clause 39(8)(a) stipulates that, while the prohibition will bring the substantive claim to an end, it will

“not stop costs proceedings from being continued or begun”.

The noble Baroness will know that inquests are covered by legal aid. So, I do not think it is entirely right to say that costs cannot be recovered. I willingly give way to the noble Baroness.

[Baroness O’Loan (CB)]

The noble Lord is very generous. I want to ask him if legal aid is available to everyone for inquests, or is it assessed according to income?

[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.

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[Baroness O'Loan (CB)]

Can the Minister enlighten us as to what remedy the Bill will provide to those who seek, in the civil court, not information but damages for torts they have suffered and that will be removed from them by Clause 39? Judicial review is not a remedy for tort. The remedy for tort is damages, if you establish it.

[Lord Caine (Con)]

As I said and as the noble Baroness will be aware, 700 cases are currently stuck in the Northern Ireland courts, and they will still be allowed to proceed after the prohibition comes into effect. That will probably take many decades to bring to a conclusion but, thereafter, she is right: any cases that were filed after the First Reading of the legislation will not proceed and will therefore go into the new body for examination, should that be the wish of the families.

Amendment 19 agreed.

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Moved by

[Lord Caine]

22: Clause 9, page 8, line 17, leave out sub-paragraph (i)
Member’s explanatory statement
This is consequential on the amendments in Lord Caine’s name relating to Clause 40.

--- Later in debate ---

Moved by

[Lord Caine]

30: Clause 13, page 11, line 1, at end insert—
“(A1) The Commissioner for Investigations must comply with the obligations imposed by the Human Rights Act 1998 when exercising functions under this section.”Member’s explanatory statement
This amendment expressly confirms that the Commissioner for Investigations (when exercising operational control over the conduct of reviews) must comply with obligations imposed by the Human Rights Act 1998.

Justice and Security (Northern Ireland) Act 2007 (Extension of Duration of Non-jury Trial Provisions) Order 2023

Lord Caine Excerpts

Thursday 8th June 2023 Lords Chamber

Moved by

[Lord Caine]

That the draft Order laid before the House on 24 April be approved.

Relevant document: 38th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 5 June.

Motion agreed.

Justice and Security (Northern Ireland) Act 2007 (Extension of Duration of Non-jury Trial Provisions) Order 2023

Lord Caine Excerpts

Monday 5th June 2023 Grand Committee

Moved by

[Lord Caine]

That the Grand Committee do consider the Justice and Security (Northern Ireland) Act 2007 (Extension of Duration of Non-jury Trial Provisions) Order 2023

Relevant document: 38th Report from the Secondary Legislation Scrutiny Committee

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

My Lords, under this draft order, which was laid before this House on 24 April, trials without a jury can take place in Northern Ireland where the statutory conditions are met for a further two years, until 31 July 2025. The current provisions will expire on 31 July this year. Following a public consultation, and after consideration of the wider security situation in Northern Ireland, my right honourable friend the Secretary of State considers it necessary to seek an extension to these provisions to ensure the continued safe administration of justice in specific cases.

I am keenly aware that this is the eighth extension of these powers since they came into operation in 2007. I hope that noble Lords will be assured of the continued necessity of these provisions for a further two years. This decision was made carefully and informed by a detailed public consultation process, as well as by the work of the non-jury trial working group. This group was established following recommendations by the former Independent Reviewer of the Justice and Security Act, Mr David Seymour CB, and is composed of representatives from the Public Prosecution Service for Northern Ireland, the Police Service of Northern Ireland, the Court Service, the Bar, the Law Society and other independent organisations.

The group has worked to produce detailed reports for the independent reviewer and to develop a set of indicators to assist the Secretary of State in determining whether these non-jury trial provisions remain necessary. The indicators include assessments of the current levels of paramilitary activity and intimidation in Northern Ireland. In conjunction with the consultation responses, the Secretary of State considered these and reached the determination that they further demonstrate that it would not be appropriate to remove the non-jury trial provisions at this time.

I am of course keenly aware of the disappointment that many noble Lords across the House will feel that the security situation today necessitates a further extension of these provisions. We should not, however, lose sight of the real progress that has been made since the dark days of the so-called Troubles. Today, there is a strong presumption of jury trial in Northern Ireland, and in 2021 only 0.6% of all Crown Court cases were conducted without a jury; that is, eight out of 1,358. By contrast, at the peak of the Diplock court system in the mid-1980s, there were more than 300 such cases per year.

Under the provisions of the 2007 Act, non-jury trials are reserved for use only in exceptional cases where the Director of Public Prosecutions for Northern Ireland deems it to be necessary. As correctly stated on 23 May in the other place by the spokesperson for the Official Opposition:

“The provision for non-jury trials is a little-used but vital tool in ensuring the administration of justice”.—[Official Report, Commons, Delegated Legislation Committee, 23/5/23; col. 6.]


I agree with that statement.

As I know noble Lords will appreciate, these proportionate measures remain necessary to safeguard against risks such as juror intimidation and juror bias in an extremely small number of cases. A non-jury trial may be permitted if the defendant is associated with a proscribed organisation or if the offence being tried is in connection with religious or political hostility. Such cases are high profile and continue to provoke strong public opinion on both sides of the community.

Like their predecessors, this Government remain committed to bringing an end to these provisions when it is safe and compatible with the interests of justice to do so. We firmly believe, however, that now is not the time to take this step.

As demonstrated by the recent increase in the threat level to “severe” and the abhorrent attack on DCI John Caldwell in February, a small number of people in Northern Ireland continue to try to destabilise the political situation through acts of terrorist violence. Their activity causes harm to individuals and communities across Northern Ireland.

Despite courageous work by the Police Service of Northern Ireland and others across the community in Northern Ireland, terrorist and paramilitary groups continue to exert influence and control in communities where they operate. In the year 2021-22 there were 163 recorded offences of intimidation or threats to harm witnesses, and 170 households were accepted as homeless due to intimidation in 2022. These are facts that we cannot ignore.

It would be counterintuitive to believe that the same issues faced by witnesses would not be replicated should they be asked to sit as a juror in these cases. Furthermore, the most recent results from the Northern Ireland Life and Times survey in 2022 found that 17% of respondents believed that paramilitary groups create fear and intimidation in their area.

I trust noble Lords will agree that the safety of the people in Northern Ireland and the administration of justice are paramount. The Government remain committed to working strategically with security partners to tackle the threat from Northern Ireland-related terrorism and to support the Northern Ireland Executive’s programme to tackle paramilitary activity. However, we are not prepared to put the safety of individuals or the administration of justice at risk and believe that there has not been sufficient change in the security situation over the last two years to demonstrate that the non-jury trial provisions are no longer required.

In conclusion, I am sure that I can count on the support of noble Lords across the Committee for the Government’s work to safeguard the administration of justice and to normalise all security arrangements as soon as it is safe to do so. On that basis, I beg to move.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I thank the Minister for his presentation of the SI. I declare an interest as a member of your Lordships’ Secondary Legislation Scrutiny Committee.

Some 29 years after the ceasefires and 25 years since the Good Friday agreement, it is worrying that there is still a need for an extension of such a power. Although I am not personally opposed to this legislation, I feel that non-jury trials should be an exception rather than the rule. I think the Minister characterised it in that light in his presentation, but I want to know how many such trials took place last year. We have the figure for 2021 in the Explanatory Memorandum but not for 2022.

The Minister gave us the indicators. We probably could have guesstimated those anyway.

We know that the threat level was increased on 28 March this year to “severe”, due to the increased level of dissident republican activity. As the Minister referred to, we had the threatened murder of DCI Caldwell. I am glad to see that he is making a recovery, having been released from hospital and having had some time at home. In fact, he was able to attend the garden party last week at Hillsborough, which showed an improvement in his physical health. I hope he makes enormous strides in that respect.

Only a few days ago, we witnessed on our TV screens and social media an alleged taxi driver taking a gun to a client. He was sacked from his job, although I understand he was not necessarily acting for that firm at the time. Notwithstanding that, he was apparently acting as a drug enforcer for one of the paramilitary organisations in Northern Ireland.

Some 29 years since the ceasefires, the public in Northern Ireland want an end to such paramilitary and criminal activity; they have had enough of it. They do not want to be brought to heel by such paramilitary organisations and criminal gangs; they want to see an end to it. If this debate does anything, it will tell those people, “Get off the backs of the people of Northern Ireland”. We are sick, sore and tired of it, and we want to live in peace and harmony. We want to see the restoration of our political institutions, which, I hope, will be able to help foster economic opportunity for us all.

Related to this is the legacy Bill, which the Minister is also involved in. I know that on the Bill’s last day in Committee he referred to game-changing government amendments. When will they be published? I hope that he is not as surprised as the expression on his face suggests. I want to know when they will be available and what they will cover. Will they enable access to inquests and inquiries? Will they be compatible with the ECHR?

In conclusion, although I do not have a strong aversion to this SI and I generally support it, I hope that it will be the exception to the rule. There could very well be a further extension, depending on terrorist and paramilitary activity in 2025, but I hope that we are looking to bright, fresher new days where terrorism will definitely be a thing of the past and we will not need this type of legislation.

--- Later in debate ---

[Lord Murphy of Torfaen (Lab)]

My Lords, I agree with everything that has been said, but it is still a grave and terrible thing to take away the right of a citizen of the United Kingdom to have a trial by jury, which goes back many centuries. Of course, I understand why this occurred. Anyone who, like me, has been watching that wonderful series about the recent Troubles, “Once Upon a Time in Northern Ireland” on BBC Northern Ireland, will understand why you could not avoid jurors being intimated by paramilitaries from both sides if they took part in their legal duty.

But times have changed. Over the last 25 years, roughly 160 people have been killed because of terrorist activity, compared with 3,500 before 1998. That is an enormous change. Many people forget that the Good Friday agreement also dealt with the criminal justice system in Northern Ireland and changed it to such an extent that it became acceptable to all communities in Northern Ireland. That is why, in 2007 there was a major change to ensure that only the smallest number of cases are to be dealt with simply by judges and not by juries. No one wants that to continue in our democratic society—of course we do not.

The only thing that needs to be reflected on—it comes out in the consultation document that the Government produced—is that there are still difficulties. When I looked at the figures it struck me that hundreds of families are still made homeless because of sectarianism in Northern Ireland. Hundreds of people are still attacked and injured because of paramilitary activity in Northern Ireland. Tragically, there are still people killed because of that. While those circumstances continue, it is necessary for this legislation to be continued for a further two years.

I hope the Minister will go back and reflect on what the Committee has said about reviewing the situation with non-jury trials over the next two years. I know there is a working party. I hope it actually operates and that the next time, if we are spared, we come to renew this legislation, we might not have to do so, but at the moment, we do.

I conclude on one other factor. Political instability is the cousin of political violence—a distant cousin, but it is there. The more the Government concentrate their effort on trying to ensure that we get political stability in Northern Ireland by constantly talking to the political parties there and to others concerned, the better, so that when we return after the recess, perhaps—who knows?—the institutions will be restored.

[Lord Caine (Con)]

My Lords, I am very grateful to noble Lords who participated in this short debate this afternoon, and I thank them for the support— reluctant, in some cases—that they have given to the order before the Committee. I share the frustration of noble Lords in having to bring this order back for an eighth time since 2007, when the Justice and Security (Northern Ireland) Act was passed by the Government of which the noble Lord, Lord Murphy of Torfaen, was a distinguished member. We all share the aspiration that this will be the last time that we have to do it, but the reality of the situation in Northern Ireland as we find it today is that there remains a significant risk of intimidation of jurors and witnesses, and therefore I am afraid there is no alternative at present.

The noble Baroness, Lady Ritchie of Downpatrick, referred to the grip of paramilitaries in communities across Northern Ireland, and I share her anger that, nearly 29 years after the first ceasefires in 1994, paramilitaries continue to operate within the community in this way. There was never any justification for them in the first place, and there is no justification for them today. As she knows, I was involved in the fresh start agreement in 2015, when we looked at this issue very closely and, out of that, there is the Tackling Paramilitarism task force within the Northern Ireland Executive, to which we as a Government are currently contributing £8 million a year in match funding, so we take these matters extremely seriously.

The noble Baroness asked me about the figures for 2022 for the number of cases that were tried in non-jury courts. The latest figures I have are those I read out in my opening speech, for 2021. Of course, as soon as the latest figures are available, I undertake to draw them to her attention.

Slightly at a tangent from the order, the noble Baroness asked me about the legacy Bill and when the amendments to that Bill on Report will be available. I can say only that I hope to be in a position to publish them very shortly, and in advance of the usual timeframe for tabling government amendments on Report. If she can contain her excitement for now, I am sure she will not have very long to wait. We go to Report on the Bill on 21 and 26 June.

A number of noble Lords referred to the security situation, and particularly the case of DCI John Caldwell. I join them in thanking God that he survived that vicious, murderous attack and was able to attend the garden party at Hillsborough a week last Wednesday, when he was presented to His Majesty the King. We all pray for his continued recovery and good health.

The noble Lord, Lord Browne of Belmont, made some interesting comments about the criminal justice system in Northern Ireland. I hardly need to remind him that the operation of the criminal justice system and any potential reform of it is a matter for the Department of Justice in Northern Ireland and the devolved Executive, if one were currently in existence. On the issue of funding, in the recent Budget, difficult as it has been, we allocated £1.2 billion to the Department of Justice, and it is for the department to allocate its resources accordingly.

Northern Ireland (Interim Arrangements) Bill

Lord Caine Excerpts

3rd reading & Committee stage
Tuesday 23rd May 2023 Lords Chamber

[Lord Murphy of Torfaen (Lab)]

My Lords, here we are. I have been either asking or answering questions on the Barnett formula for something like 32 years. It started off as a formula, and then you add a floor, and now you have a Barnett squeeze. Some of your Lordships may remember that Lord Joel Barnett, himself, who invented this, towards the end of his life completely denounced it and said that it was not suitable any more. Indeed, it probably is not. We lived with it for the last 20 or 30 years because there was no real alternative, but the world has changed since then, certainly in terms of Wales, Scotland and Northern Ireland.

The noble Lord, Lord Morrow, put a convincing case for a very serious look at the situation at the moment. I can tell him and Members of your Lordships’ House that, when I was the Secretary of State for Wales, I did not persuade my colleagues in the Treasury that there was a need for a change. I tried, but when you are a territorial Secretary of State, you are always battling with the Treasury, the Chancellor of the Exchequer and the Chief Secretary to the Treasury. You are in the same team. Sometimes you win, and sometimes you lose. But the key to the success of what happened in Wales, with the Holtham commission, was that it was in fact conceived by the Assembly, set up by the Government of Wales, and had cross-party support when the commission reported. That meant that there was a seriousness about that report which impressed the Treasury. It was convinced, after all this discussion and all these commissions, that things had to change, but I could not do it on my own. It had to be done with the Assembly, the Welsh Government and Holtham and his commission, which spread over a couple of years. That is how it was achieved.

The same thing is going to happen in Northern Ireland. There has to be a concerted effort by all political parties in Northern Ireland to be able to persuade the Government that there is a serious case for equating Wales and Northern Ireland—I leave Scotland out at the moment, as that is an even more complicated case. But that is only reasonably sure of success if it is not simply left to the Secretary of State for Northern Ireland. There has to be this pressure internally, from those who have been elected and thus are there in that Assembly, elected by the people of Northern Ireland to take issues like this up.

I know there is a meeting in the next week or two with the head of the Northern Ireland Civil Service. She has quite rightly asked political parties for some guidance as to what to do. A budget is not simply adding up and taking away figures; a budget is about priorities of government. What do you put first? What do you put last? Where do you put this money and that money? You do that on the basis of proper consultation, not only with Members of the Assembly but with all the political parties. That can best be done only in the context of a democratic Assembly and government.

There is no question that there is some merit in discussing these issues in your Lordships’ House, but we are not here to run Northern Ireland; we have not been elected to do that—we have not been elected to do anything but certainly not to do that. When that meeting is held in the next week or two, I hope that the parties in Northern Ireland will impress upon the head of the Northern Ireland Civil Service the importance of trying to work out what those priorities would be and how to do it. Rather her than me—it is a terribly difficult thing to do if you are not an elected politician. The decisions are so tough and so harsh, and in some ways so impossible, that they can be made only by people who are answerable in a democracy to the electorate. That is not the case at the moment.

Yes, there is a very strong case for looking at change, and a strong case for asking officials to do what they did in Wales, but that can best be achieved only if the Assembly and the Executive are both restored.

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

My Lords, before replying to the debate that we have just had, I would like to make a very brief statement on legislative consent. Clearly, the reason we are here is that there is neither a functioning Executive nor a functioning Assembly in Northern Ireland. It has therefore not been possible to seek a legislative consent Motion.

I thank the Committee for the constructive debate that we have had this afternoon. I am very grateful to all noble Lords who have spoken to the amendment. I thank the noble Lords, Lord Morrow and Lord McCrea, for their time this morning, coming in to discuss this issue with me in the Northern Ireland Office.

Amendment 1, tabled in the names of the noble Lords, Lord Morrow and Lord Dodds, provides an example of the advice or information that the Secretary of State could request from the Northern Ireland Civil Service under Clause 2 of the Bill. Specifically, the amendment references the Northern Ireland Fiscal Council’s 2023 report—referred to by a number of noble Lords this afternoon—entitled Updated Estimate of the Relative Need for Public Spending in Northern Ireland. I join noble Lords in thanking the Northern Ireland Fiscal Council for its work, and have noted its report on the updated estimate of the relative need for public spending in Northern Ireland. The noble Baroness, the former First Minister of Northern Ireland, was right to refer to His Majesty’s Government’s role in the establishment of the Northern Ireland Fiscal Council, following both the fresh start agreement in 2015 and New Decade, New Approach in 2020. The Secretary of State, my right honourable friend Chris Heaton-Harris, met the chair of the council, Robert Chote, two weeks ago to go through the report’s findings. I assure the Committee that we will have further such meetings with him.

As noble Lords will be aware, there are clearly many different ways to assess need, as the Northern Ireland Fiscal Council itself acknowledges in its report. However, the report indicates that funding is currently broadly in line with relative need, through a combination of the Barnett-based block grant, locally generated revenue and additional UK Government funding packages. In that context, I refer noble Lords to the penultimate bullet point on page 3 of the report and the penultimate paragraph on page 21 of the report.

I should add that the report also makes clear that locally accountable leadership—to echo the comments of a number of noble Lords this afternoon—is urgently required to ensure that Northern Ireland has a stable and flourishing economy.

For many years, the Government have recognised the unique challenges that Northern Ireland faces. The argument that it has been systematically underfunded by the Government simply does not hold water, in my view. In the 2021 spending review, the Government announced that the block grant for Northern Ireland would be £15 billion per year, on average, over the next three years, representing the largest settlement since the restoration of devolution in 1998-99. We have provided around £7 billion in additional funding to Northern Ireland since 2014, on top of the Barnett-based block grant. As a number of noble Lords pointed out, the Northern Ireland budget per person is around 20% higher than the equivalent UK government spending in other parts of the United Kingdom, and it is set to rise to around 25% by 2024-25.

In 2013, shortly before we brought the G8 summit to Northern Ireland, we made available £300 million in additional borrowing power and funding top-ups through the building a prosperous and united community package. We made available almost £2 billion in additional spending power for Northern Ireland as a result of the Stormont House agreement in 2014, a further £500 million through the fresh start agreement in 2015, and £2.5 billion of financial support and flexibility through the confidence and supply agreement in 2017.

In more recent years, we have invested over £3.5 billion in Northern Ireland through the £400 million new deal for Northern Ireland, £617 million for four city and growth deals covering all of Northern Ireland, £730 million through PEACE PLUS, and £2 billion in funding and a Barnett investment guarantee in the New Decade, New Approach financial package, following the restoration of the Executive in January 2020. Noble Lords will recall that the priorities committed to by the Northern Ireland Executive within New Decade, New Approach specifically included £245 million earmarked for the transformation of the health service and wider public sector. The UK Government are also investing over £250 million in Northern Ireland through the levelling up fund, the UK shared prosperity fund and the community ownership fund.

Despite these significant levels of investment from the UK Government, over and above the Barnett-based block grant, the Northern Ireland Executive have consistently been unable to allocate this funding to deliver the much-needed transformation of public services. In that context, I acknowledge the comments made by the noble Baroness, the former First Minister, regarding the period from 2017 to 2020. Consequently, the £200 million health transformation funding provided through the confidence and supply agreement, and the £245 million of funding for public service transformation allocated through New Decade, New Approach, have primarily been used for short-term funding pressures, not to deliver genuine reform.

I gently echo the point made by the noble Lord, Lord Murphy of Torfaen, at Second Reading—and to some extent repeated this afternoon—when making comparisons with Wales on this issue. It is important to underline that that arrangement was negotiated between the Welsh Government, the Welsh Assembly and the Treasury. As the noble Lord, Lord Murphy, reminded us, the Holtham commission was established in 2008 and negotiations took place over the next seven years. That seven-year period is crucial to today’s debate because it underlines that this is not an issue that could be solved overnight, even with the best will in the world.

As was pointed out by a number of noble Lords, particularly the noble Baroness, Lady Suttie, and the noble Lord, Lord Murphy of Torfaen, it would be far more powerful if the case made by noble Lords on the Benches behind me were made from a functioning Stormont. It will not surprise anyone in this Committee to hear me say that this is an issue best addressed in the context of a restored Executive and Assembly in Northern Ireland, in discussions with the Treasury. I agree entirely with the noble Baroness and the noble Lord on those points.

More broadly, in the absence of an Executive the UK Government will be able to commission advice from the Northern Ireland Civil Service—I mentioned this at the outset—on how current funding can be used more efficiently to the benefit of the people of Northern Ireland. However, it would not be right for me to commit the Secretary of State to exploring certain defined options—that would be the effect of this amendment—in advance of commissioning Northern Ireland departments for advice on options for budget sustainability.

The noble Baroness, Lady Suttie, asked about parliamentary oversight. She and other noble Lords will be aware that, in the continuing absence of an Executive, we will need to bring forward a budget Bill, which will be debated in your Lordships’ House.

I am of course willing to continue to engage with noble Lords, particularly those who brought this amendment —as I referred to earlier, I did so this morning—on these important issues. In that spirit, I invite the noble Lord to withdraw the amendment.

Northern Ireland (Interim Arrangements) Bill

Lord Caine Excerpts

2nd reading
Thursday 18th May 2023 Lords Chamber

Moved by

[Lord Caine]

That the Bill be now read a second time.

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

My Lords, before I turn to the Bill, I pay tribute to Peter Brooke, Lord Brooke of Sutton Mandeville, Secretary of State for Northern Ireland from 1989 to 1992, who sadly passed away this week. I had the immense privilege of being Peter’s special adviser in the months before the 1992 general election and supported him before that as the Northern Ireland desk officer in the Conservative Research Department. He was, as has been pointed out, a man of profound personal integrity, learned, witty and unfailingly polite and courteous. Peter served as Secretary of State while the Troubles were still raging and—we should never forget—around 100 people a year were losing their lives as a result of the security situation. He cared deeply about Northern Ireland and, with infinite patience and determination, sought a better, more peaceful and stable future for all its people. His huge role in the origins of what became the peace process should never be underestimated. I am sure that I speak for everyone in the House in sending our sincere condolences to his widow Lindsay and the Brooke family at this difficult time.

I turn now to the Bill itself. It is, of course, with profound regret that I return once again to this Dispatch Box to bring forward legislation in the absence of a Northern Ireland Executive. I am certain that noble Lords across the House will agree that this is not a position in which any of us would wish to find ourselves. In line with our steadfast commitment to the 1998 Belfast agreement, His Majesty’s Government remain committed to supporting the restoration of the Executive in Northern Ireland as soon as possible. In our view, a strong devolved Government, with elected representatives from across the community working together, is the surest foundation for the governance of Northern Ireland within our United Kingdom and the best outcome for all its people.

Last month, many of us came together, including Members of your Lordships’ House—including the noble Lord, Lord Murphy of Torfaen, on the Bench opposite—to reflect on the 25th anniversary of the Belfast agreement. We marked the progress that Northern Ireland has made over the past quarter of a century and the relative peace and prosperity that the agreement has brought. This anniversary remains an opportunity for all of us to recommit to building an even brighter future for Northern Ireland. Now is the time to decide how we want to move forward together, to create a better future for and deliver on the priorities of the people of Northern Ireland. That includes a more prosperous economy and better, more sustainable public finances and services.

On that note, and before I provide an overview of the Bill, I will say a few words on Northern Ireland’s public finances. As the provisions of the Bill will indicate, we are acutely concerned about the long-term stability of public finances in Northern Ireland. It was with considerable disappointment that, in the absence of devolved government, my right honourable friend the Secretary of State for Northern Ireland found it necessary, once again, to intervene and set a budget for 2023-24. I set out that budget in a Written Statement to your Lordships’ House on 27 April. As he has made clear on multiple occasions, the extent of the budget pressures facing Northern Ireland departments is, to put it mildly, extremely challenging. Departments are facing difficult decisions in the current circumstances. The Government recognise that, and it is one of the overriding reasons why we need an Executive in place to take some of these decisions and make choices on budget priorities.

As the UK Government, we stand ready to work with a restored Executive on these issues but, in the meantime, we have a responsibility to ensure that public services and management of public funds can continue. We will, in due course, introduce legislation that will put that budget on to a legal footing, if the Executive are not restored to do so. Members of your Lordships’ House will have the opportunity to debate in more detail those allocations if and when we have to introduce that legislation.

Today, though, I will focus on the Bill and its provisions. The Bill is of course a short one and I will seek to be brief in recognition of that. I once again express my sincere thanks to the Benches opposite for their continued co-operation as the Government seek to bring the Bill forward at the requisite pace. I am particularly grateful to the noble Lord, Lord Murphy of Torfaen, and the noble Baroness, Lady Suttie, for the constructive manner in which they and others intend to approach this legislation.

The Bill does three important things. First, it continues the provisions relating to decision-making for Northern Ireland civil servants which Parliament passed last December through the Northern Ireland (Executive Formation etc) Act 2022. These provisions, which clarified the decisions that civil servants in Northern Ireland departments can take in the absence of Northern Ireland Ministers and an Executive, are due to expire on 5 June. Through the Bill, these powers will continue until the Executive are reformed. That will avoid a governance gap arising if an Executive are not in place by 5 June. As before, senior officers will be required to have regard to guidance issued by the Secretary of State; the Government published an updated draft of that guidance on 10 May. We would, of course, welcome any representations that noble Lords or others may have on that guidance before we finalise it.

The second main provision of the Bill—and the more novel provision in this legislation compared with previous Bills—is to provide for new powers for the Secretary of State to explore, with Northern Ireland departments, options for budget sustainability including further revenue raising in Northern Ireland. Alongside commissioning advice, the Bill will allow the Secretary of State to direct consultations to be held by Northern Ireland departments on those matters. These powers are, again, time limited and will apply only until an Executive are formed. These measures are deliberately focused on official advice and consultations on budget sustainability. Final decisions on any implementation are best taken by locally elected representatives; the Bill does not give the Secretary of State any power to direct implementation of any such measures.

Finally, the third thing that the Bill does is to ensure greater political oversight of the management of public money in the absence of the Northern Ireland Assembly. The Bill does that by providing for Northern Ireland department accounts and associated documents to be laid in the House of Commons, in the absence of the Assembly. In previous absences of the Northern Ireland Assembly, the law has provided for that scrutiny to fall to Parliament, and the provision in the Bill will do that again. This provision will be active only for this and any future periods where there is no functioning Assembly, on the basis that public bodies must always be scrutinised for their good management of public money.

In conclusion, the measures in the Bill will ensure a continuation of the current governance arrangements in Northern Ireland, should there be no Executive when they expire next month. However, these measures are not, and cannot be, a substitute for devolved government in Northern Ireland. We acknowledge that the current arrangements are by no means desirable—to put it mildly—particularly in the context of Northern Ireland’s difficult financial position. I also recognise that the Bill is not a long-term solution to the wider issues with which Northern Ireland is grappling: they are matters for a newly reconstituted Executive and Assembly to address. The marking of the 25th anniversary of the Belfast agreement has reminded us all of the importance of making the institutions in Northern Ireland work, and work for the entire community. His Majesty’s Government believes that having an effective and functioning devolved Government is crucial to showing that the union itself works for the whole community in Northern Ireland. That is why the restoration of the Executive remains our top government priority in Northern Ireland. We will continue to do everything that we can to make that happen in as short a timeframe as possible and, as we do that, we will keep these arrangements under review. For now, I commend the Bill to the House.

--- Later in debate ---

[Lord Caine (Con)]

My Lords, I am very grateful to all noble Lords who participated in this debate, which was relatively short by our recent standards. I thank noble Lords for their kind words about my late colleague, Lord Brooke of Sutton Mandeville, and for their general support for this Bill. The noble Lord, Lord Murphy, referred to the title of the Bill including “Interim Arrangements”. When we were discussing this, I was very keen to avoid calling it “temporary arrangements”, given that everything in Northern Ireland that has had “temporary” attached it over many years has assumed an air of permanence.

I am also grateful to the noble Lord Murphy of Torfaen for reminding the House of Section 1 of the Northern Ireland Act 1998, which makes clear that Northern Ireland is a part of the United Kingdom and will never cease to be so without the consent of most of its people. Speaking for this Government, I would not want the current constitutional position to change. Regarding his point about the restoration of the institutions, and echoing other noble Lords across the House, including the noble Baroness, Lady Suttie, I assure all noble Lords that, irrespective of the calendar, our focus will remain very firmly on restoring those institutions which, as I said at the outset, are in the best interests of the union and of the people of Northern Ireland.

I politely disagree with the noble Baroness, Lady Hoey, who argued for the strengthening of local government and effectively the abolition of Stormont, which would be a fundamental change to the Belfast/Good Friday agreement. That is not a position that the Government can support. We remain firmly committed to the agreement and to the institutions across all three strands that the agreement establishes. Our priority is to make the agreement and the institutions work for the good of the people of Northern Ireland.

Unsurprisingly, a number of noble Lords focused on the current budget situation in Northern Ireland. As I said in my opening speech, if there is no restored Executive, it will be our intention to bring forward a Bill at the appropriate time to put the current budget allocations on to a legal footing. We will have a further opportunity to discuss the budget at that stage. However, picking up on one or two points, we recognise that the current situation is unsustainable and that Northern Ireland departments, in the absence of Northern Ireland Ministers, will have to face very difficult decisions to live within their budget, but these are unavoidable.

I heard my noble friend Lord Rogan and the noble Baroness, Lady Hoey, refer to the “punishment budget”, as some people have described it—but it is not a description that I accept for one second. The budget reflects the reality of the fiscal situation in which Northern Ireland currently finds itself.

It is for that reason that, over many years, the Government have recognised the unique challenges that Northern Ireland faces. I recall that the spending review in 2021 was the most generous since the restoration of the devolved Government in 1998-99. It gave Northern Ireland the possibility of multiyear budgets, as opposed to the single-year budgets that have bedevilled us over a number of recent years. Sadly that proved not to be possible.

In addition, we have seen billions of pounds of extra spending through the Stormont House agreement, the fresh start agreement, the confidence and supply agreement, and New Decade, New Approach. It is difficult to sustain the argument that Northern Ireland has been systematically underfunded by the Government. As the noble Lord, Lord Morrow, reminded us, public spending per head in Northern Ireland is still running at about 20% higher than the United Kingdom average.

However, I recognise that there is a discussion about the funding formula, which the noble Lord, Lord Morrow, raised in some detail. To echo the words of the noble Lord, Lord Murphy of Torfaen, that discussion would be far better taking place between the United Kingdom Government and a restored Northern Ireland Executive. In the spirit of openness, I am of course more than happy to have a conversation with the noble Lord about these matters. Likewise, I am happy to respond positively to the invitation from my noble friend Lord Rogan to meet the pharmacists in Northern Ireland.

A number of noble Lords again raised issues with the Windsor Framework. I know that the noble Baroness, Lady Hoey, and the noble Lord, Lord Morrow, feel very strongly about this. I gently remind noble Lords that the House of Commons approved the Windsor Framework by 513 votes to 29, and your Lordships by 227 votes to 14. It clearly represents the settled will of Parliament that the framework be carried forward and implemented. In our view, it delivers stability for the people of Northern Ireland, protects Northern Ireland’s place in the union and restores the balance of the Belfast agreement.

I agree with my friend, the noble Lord, Lord Bew, who made a powerful case in saying that the framework increases Northern Ireland’s agency. He referred to the role of the Stormont brake; it gives the Assembly a very powerful role in determining future EU legislation and regulations. For that brake to be effective and to be operated, we need a functioning Northern Ireland Executive and Assembly. I referred also to the institutional reforms raised by the noble Baroness, Lady Hoey.

The issues raised by the noble Baroness, Lady Suttie, reflected a number of amendments that were put forward in the other place in the name of her sister party, the Alliance Party of Northern Ireland. She raises important points, such as the costs of division in Northern Ireland, which are substantial and need to be addressed, and the transformation funds. I will write to the noble Baroness in more detail, but my initial reaction is that it is wrong to commit the Secretary of State to exploring any particular options at this stage. The Bill gives my right honourable friend a degree of discretion around this and it would probably not be right, as the Alliance Party was trying to do in the House of Commons, to put some of these things into legislation. But I am very happy to discuss these issues further and to write to the noble Baroness.

The noble Baroness, Lady Suttie, also referred to the position of civil servants under the legislation, as did the noble Lord, Lord Murphy of Torfaen. I agree that it puts them in a very difficult situation, and these concerns have been voiced within Northern Ireland itself. We are asking a lot of civil servants under this legislation. In our view, this approach is unfortunately necessary. It strikes the right balance between ensuring that governance can continue while giving parties in Northern Ireland the time and space to form an Executive. I entirely agree that this is not a long-term fix; it cannot be a long-term fix or a substitute for the proper re-establishment of a functioning devolved Government in Northern Ireland, in line with the Belfast agreement. On that note, I beg to move.

Bill read a second time and committed to a Committee of the Whole House.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Caine Excerpts

Committee stage
Thursday 11th May 2023 Lords Chamber

[Lord Murphy of Torfaen (Lab)]

My Lords, I support the various amendments brought forward by my noble friend Lord Browne, which aim to give room for ongoing criminal investigations to conclude and to allow space for civil action to be brought for an additional three years. I very much understand the concerns that the noble Baroness, Lady O’Loan, put forward regarding the closing off of other routes to justice under Clauses 39 and 40.

I often agree with the noble Lord, Lord Dodds. I sometimes disagree with him, but today I agreed with absolutely every word he said, particularly when he opened his remarks by making reference and paying tribute to those in the security services who lost their lives, and indeed the tens of thousands of other people who lost their lives over 30 years in Northern Ireland. I also agreed with his tribute and that of the noble and right reverend Lord, Lord Eames, to Lord Carswell, who I knew very well too. Our interest was not simply legal or political; we were both great lovers of classical music. He was a great expert—much more than I was—and I think that we in this House will all miss his wise words.

My noble friend Lord Browne referred to the fact that the First Reading of the Bill took place in the other place one year ago, and we are nowhere near finished. This is the fourth day in Committee—it seems a bit longer to me—over the last number of months in which we have been dealing with this, and there seems no end to it. I honestly think—and this is where the noble Lord, Lord Dodds, and I think most Members in the Committee would agree—that it is time to dump the Bill. There is no support for it. All my experience in Northern Ireland has been based on the fact that if there is not support across the community for something, it is doomed. I think it premature to advertise for the office of commissioner. I believe it is wrong that something as controversial as this can go ahead unless there is community support, political support and legal support, both here and, in particular, in Northern Ireland. There is still time. The noble Lord, Lord Dodds, referred to the fact that a number of Bills have been dumped. The Schools Bill was the other one that he did not mention, I think, but there are others. Now is the time to do that.

To refer particularly to the new amendment that has been introduced, Amendment 154A, I am glad that I am not the Minister answering this. I am sure that the Minister will have an answer, at least a temporary one, to this very interesting amendment. I do not want to comment on an individual case, obviously, but I do want to comment on the implications of what happened as a result of that case. I had never heard of the Carltona principle before, so I have learned something today, but I obviously operated under it when I was Secretary of State for Northern Ireland and, more significantly, when I was Minister of State for Northern Ireland, because as Minister of State I undoubtedly signed warrants on behalf of the Secretary of State at the time, understanding that everything I did was perfectly legal and right. Obviously, that has now been brought into doubt.

Very often, a Secretary of State’s name is used in tens of thousands of communications and letters for technical reasons, but this is not a technicality in Northern Ireland. This is about actually locking people up, tapping their phones or whatever it might be, so it really has to be got right—not least the issue of compensation, which could be absolutely horrendous. The Minister is not going to give us a complete answer to this today, but I hope that he will be able to assure us that by the time we get to Report, which I guess is not that long away, the Government will be taking action on this important measure.

I hope that the Minister, who has been extremely patient over the last seven or eight months with the Bill and with us, will look not just at that amendment but at the other amendments. They go to the heart of the criticism of the Bill: that the Government are wiping out any legal routes to ensure that there is some redress for the terrible things that have happened to people in Northern Ireland over the last 40 years.

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

The noble Lord, Lord Murphy of Torfaen, referred to the past seven or eight months—I assure him that, from this side of the Committee, it seems much longer. He, my noble friend Lord Dodds of Duncairn and the noble and right reverend Lord, Lord Eames, somewhat pre-empted my opening comments on this group of amendments by referring to the sad passing of Lord Carswell. As this is my first opportunity to address your Lordships since his death, I join those who pass on their condolences to his friends and family. Lord Carswell spent many years as a very dedicated public servant, including as Lord Chief Justice of Northern Ireland, as a Law Lord and as a distinguished Member of this House. We will miss his very wise and profound contributions.

I am also grateful to my noble friend Lord Dodds of Duncairn, the noble Baroness, Lady Hoey, and the noble Lord, Lord Murphy, for their references to the security forces. I intend to touch on that at slightly greater length in replying to the next group of amendments, but I concur with every word that was said.

As has become customary on the Bill, this has been a thorough debate. Before I respond directly, I would like to take a couple of moments to make an announcement in the Chamber. Last month, on 20 April, I laid in the Library of the House a paper setting out the selection process for the chief commissioner of the ICRIR. I am pleased to announce today that, following recommendations from the three Chief Justices across the United Kingdom, the Secretary of State has identified the right honourable Sir Declan Morgan KC to be appointed to the role of chief commissioner of the commission upon Royal Assent. The Secretary of State is today laying a Written Ministerial Statement providing more detail.

It is important that a chief commissioner be identified now in order to help victims, survivors and their families receive the answers they need with minimal delay, should this legislation receive Royal Assent. Sir Declan brings a wealth of experience from his previous role as former Lord Chief Justice of Northern Ireland from 2009 to 2021. A hallmark of his distinguished career has been his commitment to addressing the legacy of Northern Ireland’s past. I am confident that he will bring the highest level of experience, expertise and integrity to this post, and that this will help build public confidence in the work of the commission.

Sir Declan will begin work early next month to identify other commissioners and design how the new commission will carry out its role. Formal appointment as chief commissioner will take place only following Royal Assent and the establishment of the commission, taking account of any further considerations and final requirements of the Act. In particular, the chief commissioner will lead the process to recruit the commissioner for investigations and provide a recommendation to the Secretary of State. The role is currently advertised and subject to a fair and open competition, with appointment on merit. I trust that noble Lords across the House will warmly welcome this appointment.

[Baroness O'Loan (CB)]

Does it not seem slightly precipitate to be engaging the services of the chief commissioner and other commissioners when the powers and duties of the commission have yet to be decided by your Lordships’ House? It seems to me that, notwithstanding the amount of time needed to establish the new offices, the Bill is not yet in a state in which the chief commissioner can approach commissioners and say to them, “This is what we’re going to do, and this is how we’re going to do it”, because the House has not decided those issues.

[Lord Caine (Con)]

As I just made clear in my remarks, the appointment is as chief commissioner-designate, and the formal appointment will not take place until after Royal Assent. That will take into account any further considerations that the House will have upon this legislation. It is important to enable the work of the commissioner to start now in order that, once Royal Assent is—I hope—received, the commission’s work can begin without delay.

[Baroness Ritchie of Downpatrick (Lab)]

Further to the question from the noble Baroness, Lady O’Loan, could the Minister indicate in more detail the functions that Sir Declan Morgan will undertake in this interim period before Royal Assent is given?

[Lord Caine (Con)]

As I just said, the Secretary of State is laying a Written Ministerial Statement today which should be available very shortly, and I refer the noble Baroness to it for further detail on that.

--- Later in debate ---

[Lord Caine (Con)]

The salary is based on judicial pay scales, as set out by the Ministry of Justice. I cannot off the top of my head tell the noble Baroness precisely what day his remuneration will begin, but I will get back to her on that. However, it is consistent with the MoJ’s judicial pay scales.

I turn to the amendments on criminal investigations, and first to Amendments 146 and 152 in the name of the noble Lord, Lord Browne of Ladyton. Under the Bill, the only existing criminal investigations that will be allowed to continue will be those where a decision to prosecute has been reached by the time of the Act’s commencement, currently two months after Royal Assent.

As the noble Lord knows, it has long been the Government’s view that to allow too many existing processes to continue alongside the ICRIR’s establishment would dilute the commission’s credibility as the sole investigator of Troubles-related deaths and serious injuries, and the wider objectives of the legislation to encourage information recovery and—an issue on which many noble Lords have touched today—the truth of what happened. In the Government’s view, the legislation as drafted strikes the right balance between allowing existing criminal cases that have made significant progress in the prosecutorial process to continue while giving the ICRIR the space it needs to become established as the sole responsible body for these types of investigations.

The legislation does not prevent the new commission, once it is operational and subject to a request being made, resuming criminal standard investigations into deaths or serious injury which the police have been prevented from pursuing under Clause 34(1). As we have discussed many times in the past, the commissioner for investigations will have the full powers of a police constable.

[Baroness O’Loan (CB)]

It has to be said that the powers of investigation conferred on the commissioner for investigations in the statute are not the same powers as the powers—for example, to access information, and other powers—which are held by an ordinary chief constable and his officers. The powers of investigation in the Bill are circumscribed by the role of the Secretary of State and the interventions which he can make.

[Lord Caine (Con)]

I disagree with the noble Baroness. The commissioner for investigations will have the powers of a police constable and will have access to far greater information and records than is currently the case. We have been over this many times before. It is written into legislation that the commission will have access to far more archive and intelligence material than has ever been made available before.

The noble Lord, Lord Browne of Ladyton, quoted the decision of Armani Da Silva v the UK in regard to what constitutes an effective investigation. Again, we have debated this at length on previous days in Committee. To reiterate a point I made during those debates, the commission, working together with public prosecutors and making full use of the police powers to which I have just referred, will be able to institute criminal proceedings against suspected offenders in cases where conditional immunity has not been granted.

In the Government’s view, the absence of a prosecution or punishment outcome in individual cases where immunity is granted can be justified on the basis that the conferral of such immunity in a limited and conditional way is necessary to ensure the recovery of information about Troubles-related deaths and serious incidents that is extremely unlikely to come to light in any other circumstances. It is therefore consistent with the Government’s stated objective to provide more information to victims and survivors of the Troubles in a timely and efficient manner.

In response to his question about the compatibility of the Bill with the Scotland Act 1998, it has always been our expectation that the power of referral will be exercised in consultation with the relevant prosecuting authorities, including the Lord Advocate, and I commit to consider this matter further in advance of Report.

In response to Amendment 154 in the name of my noble friend Lord Dodds of Duncairn, where a decision to prosecute has already been made, the case will be allowed to continue to trial and the individual involved will not be able to apply for immunity until its conclusion. If they are convicted of an offence, they will not of course be able to apply for immunity from that offence, as we have discussed previously.

Clause 6 designates the commissioner for investigations as a person having the powers and privileges of a constable, as I referred to a few moments ago, and they have access to the functions they need to carry out robust investigations.

On the very important Amendment 154A, in the name of my noble friends Lord Faulks and Lord Godson, I am very aware of the issues being raised following the Supreme Court ruling in 2019—indeed, I was a special adviser in the Northern Ireland Office at the time that that ruling was made by Lord Kerr. It has been brought back into focus following a court judgment in the past few days and I am aware of its importance. I hope my noble friend will understand, as he alluded to in his comments, that, given the lateness with which the amendment appeared and important legal considerations on which it touches, I am not in a position to give him or other noble Lords a full response today. But I do take on board the very powerful points made by a number of noble Lords: the noble Lords, Lord Butler of Brockwell, Lord Macdonald and Lord Murphy of Torfaen, my noble friend, Lord Howell, who reminded the House that he was indeed a Minister in the Northern Ireland Office in 1972 with some responsibility for these matters, and my noble friend Lord Sandhurst. All upheld the importance of the Carltona principle. As I say, I cannot give a definitive response today, but I do commit to discussing it further before Report and possibly returning to this when the Bill comes back on Report.

I turn to the group of amendments put forward by the noble Lord, Lord Browne of Ladyton, supported by the noble Baroness, Lady O’Loan, and other noble Lords, to address some of the concerns raised over the inclusion of a number of clauses. I begin by reminding the House that, as regards civil cases, over 700 writs were issued against the state in legacy civil claims before the First Reading of the Bill a year ago on 17 May 2022.

As has been stated many times, the Government’s policy intent regarding civil claims is to reduce the burden on the Northern Ireland civil courts—which currently have a huge case load backlog to work through—while enabling the commission to establish itself as the sole investigative body looking at Troubles-related deaths and serious injuries. It is the Government’s intent that families should no longer have to go through the strained civil court system in order to receive the answers they seek.

In the Government’s view, there is a danger that these amendments in the name of the noble Lord and others would significantly dilute both of those aims, taking potential casework away from the ICRIR and putting it back into an already clogged system that on current estimates will take decades to work through. In our view, this is much less likely to provide answers for families in an efficient manner, which again sits in opposition to our stated aims.

On Amendment 156 specifically, filing claims can be done relatively quickly. This means that if a three-year grace period were to be given, it is possible that a huge number of claims would be filed, as a clear deadline would be in sight, and would remain in existence for a number of years. That would mean that the system would be hugely clogged up and have to deal with an even higher case burden than is currently the case.

Our current position will allow existing claims that were filed before the Bill’s introduction to continue to conclusion while bringing to an end new processes, to ensure that not too many concurrent cases are running once the ICRIR is established. Clause 39(7) simply allows any civil cases where a final judgment has been reached before commencement to continue to conclusion, where they would otherwise be caught by the prohibition in Clause 39(1). We believe that this is a reasonable approach to ensuring that the prohibition on civil claims does not interfere with cases where the court has handed down a final judgment when the prohibition would otherwise apply.

I appreciate that coronial inquests are a matter of huge concern to a number of noble Lords. I gave a commitment that this Government would not rush the legacy Bill through this House, and that we would prioritise steady passage and provide ample time for continued engagement. That is what we have done, in good faith. As noble Lords will be aware, the original working assumption was that the ICRIR would be fully operational by 1 May 2023 at the latest, on the assumption that Royal Assent would have been received some time before then. At that point, the intention was that those inquests which had reached an advanced stage would continue, while those which had not would move into the new commission. It will not have escaped the attention of noble Lords that 1 May 2023 has come and gone without Royal Assent, and that the establishment of the new commission has not yet happened, largely due to the extra time that we have given for thorough consideration of this legislation. However, this raises important issues that we must address. I will discuss this further with noble Lords between now and Report.

As the Bill has not yet become law, all current criminal justice processes may, for now, continue as normal. In that context, the noble Baroness, Lady O’Loan, asked me how many PSNI investigations have been initiated since the introduction of the Bill. That information rests with the PSNI, which, as the noble Baroness knows, is operationally independent from the Government, but I will seek an answer.

As Lord Chief Justice of Northern Ireland, Sir Declan Morgan demonstrated his leadership and his determination to provide answers for families of victims, through the work of coroners’ courts in legacy inquests. Sir Declan’s commitment to providing effective, efficient and independent coronial investigations won the respect and trust of countless families and the wider community in Northern Ireland. I am confident that he will take forward the work of the ICRIR with the same determination and commitment. The Government believe that once the commission is established there should be one process for investigating the past that is available equally to all those—I repeat, all those—who have lost loved ones, providing parity to all families, victims and survivors, while allowing other organisations to focus on contemporary issues.

While the coronial process has proved more effective than other mechanisms in providing information, accountability and acknowledgement to some families, including in some very high-profile cases, it is undeniably a resource-intensive process that can tackle only a small number of Troubles-related cases when compared with the many families who still wait for similar outcomes. The commission seeks to provide this, and it is worth reminding noble Lords that the commission will have easier access. The noble Baroness and I disagree here, but it will have easier access to more information than coronial inquests, through the obligation of full disclosure from relevant authorities, as outlined in Clause 5. This is particularly relevant to information that is national security sensitive. The commission will also have comparable powers to compel witnesses, and only on the basis of evidence will be able to make findings public via a final report, in a manner similar to an inquest.

The Government are confident that the legislation provides the chief commissioner with all the requisite tools to fulfil the commission’s functions fully and effectively. Indeed, it is fair to say that any chief commissioner, given their senior status within the judiciary, will be very cognisant of the legal obligations on all public authorities, including the commission, to meet the requirements of the ECHR.

--- Later in debate ---

[Baroness O'Loan (CB)]

Before the Minister sits down, will there be any process by which complainant compensation or damages can be awarded after Clause 39 comes into effect, or will anybody who was injured or whose loved one was killed have no right of action at all and no route to compensation? Is this the end of the road for any right to compensation in Northern Ireland?

[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.

--- Later in debate ---

Of course, the investigation itself takes some time. A file has to be prepared. We have heard already that there are many files with the DPP, and surely what has to happen is that those files are considered and eventually all the investigations are completed. I realise that this is difficult for the Government because it would mean shifting the line by which they will allow the commission to start its work, but in the case of Kenova it is vital that these cases are considered and allowed to continue into the future.

[Lord Caine (Con)]

My Lords, I am grateful to the noble Lord, Lord Hogan-Howe, for his intervention on this amendment. We have debated these issues at length so I do not propose to detain the House for long at this stage, but I commit to speaking further with him and the noble Lord, Lord Hain, in whose name the amendment stands.

The noble Lord has referred to Kenova. I am on record as saying that we are deeply appreciative of the work of Jon Boutcher and the way that he has gone about his business over the past number of years. As I say, I do not intend to detain the House, but I will engage with both noble Lords between now and Report.

[Lord Hogan-Howe (CB)]

I thank the Minister for his assurance and beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Murphy of Torfaen (Lab)]

My Lords, this has been a very interesting and thoughtful debate. For 17 years before I entered the House of Commons I taught history, and I thought that it had prepared me for the various jobs that I eventually had to do. When I became Minister of State in Northern Ireland, helping to negotiate the Good Friday agreement, I realised that it had not prepared me at all for what was up against me. Month after month, virtually every day, was occupied by a history lesson, which I was not teaching but which came from the different participants in the talks—of course, there were very different versions of what had happened over the last 30 or 40 years before then.

Teaching history had also not prepared me for the extent to which—as has been touched on a number of times in this debate—almost every single family in Northern Ireland was affected by violence in some form or another, either by people or their relatives being killed or by physical or mental injury. It struck me when I went back to Belfast a couple of weeks ago for the commemoration proceedings that, within 24 hours of getting there, I talked to two middle-aged men about their own history. In both cases, coincidentally, their fathers had been murdered. One had been murdered by the IRA, and the other had been murdered by loyalist paramilitaries. That was a coincidence; I did not seek it out. It just happened. It is the background of that communal history among people from all communities in Northern Ireland which makes this task immensely difficult. I am not saying that it should not be attempted, because I think it should be, but it will not be an easy task. It should be done by ensuring that there is as much impartiality and diversity as possible, which is a difficult combination to get together, so that it is written. The sensitivity behind this is enormous.

I make a very brief reference to the noble Baroness, Lady Hoey, and what I thought was a very good speech in terms of her reference to the gay community in Northern Ireland and how it suffered in a different way. There is particular resonance in my own constituency’s history because my immediate predecessor as Member of Parliament for Pontypool was Leo Abse, who in 1967 was responsible for the legislation which decriminalised homosexuality in Great Britain. Many people never realised that it was not replicated in Northern Ireland; it took many years before that was to happen. So, I think that this should be part of the history project as well.

When the Minister winds up, I am sure he will give us some good thoughts on what we should do about an official history. He might suggest the odd historian or two—there are one or two in here who might be very good at it—but at the same time he must understand that these matters, important as they are, have to be dealt with using the utmost sensitivity.

[Lord Caine (Con)]

Once again, my Lords, I am very grateful to all who have contributed to the debate on these amendments. We have heard a number of very moving contributions over the last 53 minutes or so. I was going to say that a number of noble Lords were, in my case, preaching to the converted—I do not need to be converted at all, and I agree with many of the sentiments that have been expressed throughout the past number of minutes.

Part 4 of the Bill builds in large part on the commitments made in the Stormont House agreement of 2014, such as the oral history initiative and new academic research, to help promote reconciliation and a better understanding of the past. A number of noble Lords will be aware that I was involved in all 11 weeks of negotiating that agreement in 2014. It underlines the importance of this work being carried out free of political influence, which has been one of our guiding principles—in fact, it has been our overriding guiding principle throughout.

To reiterate, in approaching these issues over many years, both this Government and I have been very clear from the outset that we will never accept any attempt to rewrite history in ways that seek to denigrate the contribution of the Royal Ulster Constabulary and our Armed Forces—the overwhelming majority of whom served with distinction and honour, and to whose dedication and courage we owe an enormous debt of gratitude. As I have said many times in this House and outside it, without their service and sacrifice there would have been no peace process, as was acknowledged by my right honourable friend the Prime Minister during his recent speech at the Whitla Hall in Belfast to mark the 25th anniversary of the 1998 agreement.

Politically motivated violence in Northern Ireland, whether it was carried out by republicans or loyalists, was never justified, and as the noble Lord, Lord West, and my noble friends Lady Foster and Lord Weir made clear, there was always an alternative to violence in Northern Ireland. We will never accept any suggestion of moral equivalence between the terrorists who sought to destroy democracy and those who in many cases paid the ultimate sacrifice to ensure that the future of Northern Ireland would only ever be determined by democracy and consent.

Flags (Northern Ireland) (Amendment) Regulations 2023

Lord Caine Excerpts

Tuesday 2nd May 2023 Lords Chamber

Moved by

[Lord Caine]

That the draft Regulations laid before the House on 29 March be approved. Considered in Grand Committee on 26 April

Motion agreed.

Flags (Northern Ireland) (Amendment) Regulations 2023

Lord Caine Excerpts

Wednesday 26th April 2023 Grand Committee

Moved by

[Lord Caine]

That the Grand Committee do consider the Flags (Northern Ireland) (Amendment) Regulations 2023.

Instrument not yet reported by the Joint Committee on Statutory Instruments

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

My Lords, the regulations before your Lordships today seek to align flag-flying days in Northern Ireland with the rest of our United Kingdom. A number of changes have recently been made to designated flag-flying days across the UK, following the sad passing of Her late Majesty the Queen in September last year.

The updated list of designated flag-flying days for 2023 was published by DCMS on 9 February. It states that all dates related to Her late Majesty the Queen are removed and several new entries relating to His Majesty the King are added, including the Coronation Day on 6 May, a week on Saturday. There will be a new flag-flying day for the birthday of the Queen and the date of the Prince of Wales’s birthday will be amended.

The Flags Regulations (Northern Ireland) 2000 provided that on certain designated days the union flag and, in certain circumstances, other flags must be flown on government buildings. For the purposes of these regulations, a Northern Ireland government building is one that is occupied wholly or mainly by members of the Northern Ireland Civil Service. The 2000 regulations also set out a number of so-called specified buildings at which the union flag must be flown on the designated days in question. Those buildings were chosen as they are the headquarters of Northern Ireland government departments. In 2002, the provisions were extended to court buildings in Northern Ireland. A number of noble Lords will recall that the New Decade, New Approach document of January 2020 contained a UK Government commitment to align flag-flying days across the whole United Kingdom.

The regulations before your Lordships today will align flag-flying in Northern Ireland with this updated DCMS guidance and the policy followed across the rest of the UK. Prior to publishing the list of designated days, DCMS consulted a range of interested parties and individuals; I can confirm that the updated designation days reflect the wishes of the Palace. Last year, some noble Lords voiced their disappointment that the number of designated flying days was being reduced. These new dates will increase the number of flag-flying days in Northern Ireland by two, bringing the total to 10.

Our approach to flag flying in Northern Ireland through the flags regulations has consistently sought, as I have set out on a number of occasions, to reflect Northern Ireland’s clear and unambiguous constitutional status as an integral part of our United Kingdom, as well as the reality of the different political aspirations that exist across society. The Secretary of State referred the draft regulations to the Assembly on 17 February, as he is required to do, but as the Assembly is not currently sitting, Members have been unable to report back in the usual manner. Taking this into consideration, the Secretary of State has committed to laying the Assembly’s report in Parliament should it be drafted at a later point. In addition, the Secretary of State wrote to all Northern Ireland political leaders to allow a further opportunity for elected representatives to express their views on this issue. I am pleased to report that no concerns were raised.

The flags order of 2000 also requires that consideration be given by the Secretary of State for Northern Ireland to the Belfast agreement when making or amending the regulations. My right honourable friend the Secretary of State is satisfied that these regulations have regard to the Belfast agreement and treat flags and emblems in a manner that is respectful of Northern Ireland’s particular circumstances. The Government will continue to ensure that our approach to flag flying reflects the sovereignty of the United Kingdom in Northern Ireland, and our overall commitments under the Belfast agreement. I look forward to hearing contributions from noble Lords today, I commend this instrument to the Committee and beg to move.

[Lord Murphy of Torfaen (Lab)]

My Lords, I have to say that of course flags are always a real difficulty in Northern Ireland. I am delighted that the Minister referred to the Good Friday agreement and the fact that this order should not in any way contravene the principles behind it of parity of esteem. I am also delighted to hear that, on consultation, no political parties in Northern Ireland offered any objection to this. Nor should there be. We on this side of the Committee will support the statutory instrument and do so willingly. It means that we can reflect, of course, on what the late Queen and the present King thought about Northern Ireland issues and how much they were involved in them.

--- Later in debate ---

[Baroness Suttie (LD)]

My Lords, it has been an interesting short debate. I too shall be brief because, clearly, the Liberal Democrats also support the regulations that we are debating today.

As other noble Lords have said, the debate is perhaps an opportunity to remember the late Queen Elizabeth II and all that she did to strengthen the United Kingdom and our relations with Ireland during that extremely historic visit.

I hope the Minister may recall that when we last debated designated flag days last September, I asked him whether further consideration had been given to adding to the number of days through commemorating the Battle of the Somme. Several noble Lords, including the noble Lord, Lord Hannan, gave their support to the idea. Have the Government reached a view on adding that battle to the designated flag days?

While I support the regulations, I think it vital that we repeat the importance of respecting how people feel about the flag and its symbolism. I also support what the noble Lord, Lord Murphy, said about hoping that the Northern Ireland Assembly returns as soon as possible.

I sincerely hope that the Coronation goes smoothly and enjoyably, and that the festivities go well in Northern Ireland as well as elsewhere in the United Kingdom and the wider world.

[Lord Caine (Con)]

My Lords, I am grateful to those who have contributed to this short but well-informed and important debate on the regulations before us. As seems customary on these occasions, I thank the noble Lord, Lord Murphy of Torfaen, with whom I concur on virtually everything he said. He and other speakers, including the noble Baroness, my noble friend Lord Rogan and the noble Lord, Lord Browne of Belmont, rightly paid tribute to the legacy of Her late Majesty Queen Elizabeth. Like other noble Lords, I was privileged to be present at some of those historic occasions; for example, the handshake in the Lyric Theatre in 2012 during the Diamond Jubilee tour of Northern Ireland. Like my noble friend Lord Rogan, I was also present at Bushmills on that day in 2016 when Her late Majesty unveiled the statue of Robert Quigg. It was a poignant and moving ceremony.

I agree also with what has been said about His Majesty the King and his deep commitment to Northern Ireland. Without in any way going into private conversations, I think we can all be confident that His Majesty will do everything to maintain the marvellous legacy of his late mother, whose ability to bring people together from across the community divide in Northern Ireland was a remarkable achievement. I am sure that will continue under His Majesty.

I also agree, of course, with the comments from the noble Lord, Lord Murphy, and the noble Baroness, Lady Suttie, about the need to get the Assembly back up and running and this being an absolute priority. My noble friend Lord Rogan referred to the events of 25 years ago, with which he was intimately associated—as was the noble Lord who chaired strand 1 of the talks. He referred to the fact that we were together at Queen’s last week for some events to mark the 25th anniversary. It reminded us how important it is to get these institutions back up and running as quickly as possible so that we can start to build a Northern Ireland that works in the interests of the whole community there; that is the surest foundation for Northern Ireland’s position in the United Kingdom.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Caine Excerpts

Committee stage
Wednesday 29th March 2023 Lords Chamber

[Lord Murphy of Torfaen (Lab)]

My Lords, obviously I have a lot of sympathy with the amendments. I have never really agreed with the phrase that one man’s terrorist is another man’s freedom fighter. There is never any sort of justification for killing innocent people, particularly women and children and people going about their business. The only killing I suppose you can justify—and even that is doubtful—is in wars, if you have to do it in self-defence or whatever. There is no justification for the wickedness that accompanies such terrorism—none whatsoever. It offends both my human and my Christian principles; you cannot glorify these things.

However, I accept that there is a generational problem, as the noble Baroness, Lady Foster, said, for example. Just after the Good Friday agreement, there was a different feeling about the place, and as the generations go on and they forget what everybody has talked about today, things change and people’s attitudes change. Perhaps they ought to look at some pictures of the mayhem, murder and destruction caused by terrorism. I have said it before in the Chamber that one of the worst times in my political life, if not the worst, was when I had to go to Omagh two days after the bombing and talk to the relatives of the children who had been killed there. How on earth can we justify that sort of activity? There is no justification.

My own amendments refer specifically to people making money out of glorifying terrorism and that they should not be allowed so to do. The issue that the Minister faces is that, although everybody agrees that this is the wrong thing to do, how we then incorporate that into law and at the same time ensure that we all take into account what the noble and right reverend Lord, Lord Eames, said to us today: this is all about reconciliation.

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

My Lords, I am grateful to noble Lords who have spoken to this group of amendments, and I am in great sympathy with just about every word that has been said. I can remember a number of years ago being in the Northern Ireland Office when a Republican parade was organised in Castlederg to commemorate two IRA bombers who had blown themselves up when taking a bomb into the town in the early 1970s. I remember meeting the Derg Valley victims’ group on that occasion and the total distress and anger that the parade was causing. At the time, we condemned it in pretty unequivocal terms. Noble Lords have referred to more recent examples such as young children chanting slogans such as “Up the Ra”. I recall last year that an Irish language rap group called Kneecap, which noble Lords will understand has a specific meaning in Northern Ireland, performed at a festival where they even unveiled a mural depicting a burning police car. It is horrendous.

The noble Baroness, Lady Hoey, referred to sanitisation and my noble friend Lord Weir to the casualisation of terrorism. Other friends of mine have referred to the Disneyfication of terrorism, and it has become quite a problem. For the sake of absolute clarity, in condemning any glorification of terrorism I apply that equally to any attempts to glorify the activities of loyalist paramilitaries over the years. It remains my view, and the Government’s view, that no taking of human life was ever justified in the Troubles. To paraphrase John Hume, I think it was, no injustice, whether perceived or real, ever justified the taking of a single life in Northern Ireland.

In response to the specific amendments tabled by my noble friend Lord Dodds, noble Lords will know that the Terrorism Act 2006 already makes illegal the encouragement of terrorism, and nothing in this Bill would prevent the prosecution of individuals who were deemed to have committed an offence under that legislation. However, we understand and sympathise with the principles and intent behind the amendments. It is clear that the society will never grow stronger and more united while individuals and organisations are involved in activities that risk progress on reconciliation and building a genuinely shared future for everybody. As ever, I take on the wise words of the noble and right reverend Lord, Lord Eames.

Any conduct that has the potential to retraumatise victims is clearly not something the Government will ever support. However, it is important to consider properly any amendment on these matters, including potential legal implications. I affirm that the Government remain open to constructive dialogue with noble Lords and all interested parties about how this issue of glorification might be appropriately addressed.

I turn to the issue of moving abroad to evade prosecution and Amendment 118 in the name of my noble friend Lord Dodds of Duncairn. If prior to entry into force of the Bill a decision has already been taken to prosecute an individual, that individual will not be able to apply for immunity. That would include somebody who has fled the jurisdiction in order to evade justice. Geographical location will have no impact on an individual’s liability for prosecution, or on the requirements which must be met to obtain immunity from prosecution. Individuals who reside abroad but who are not subject to an ongoing prosecution will, to be granted immunity by the commission, have to participate fully in this process on the same terms as everyone else. By applying for immunity, they will have to acknowledge their role in a Troubles-related incident—something they may be doing for the first time. They will then have to provide an account to the commission that the judge-led panel assesses as true to the best of their knowledge and belief. If the commission is not satisfied that the account provided is true to the best of an individual’s knowledge and belief, and should evidence exist, they remain liable for prosecution.

I turn to Amendments 148 and 167 in the name of the noble Lord, Lord Murphy. The Government understand and sympathise with their principle, which is to ensure that individuals who are granted immunity cannot subsequently participate in actions that financially reward them for the very same conduct for which they have received immunity.

The hour is late; we have been here a long time today. I will finish on this note. I remain open to constructive dialogue with noble Lords between now and Report about how these issues might be appropriately addressed. On that basis, I invite noble Lords not to press their amendments.

[Lord Dodds of Duncairn (DUP)]

My Lords, I am grateful to everyone who took part in this short but important debate. It is good to have the opportunity to put on record the unanimous view of everyone who has spoken, from all sides, the horror of violence and terrorism, and the unacceptability of the eulogising of the same today. I think we are all united in our desire to try to tackle this and, as in the wise words of the noble and right reverend Lord, Lord Eames, to get to the root of the problem and really tackle it, especially for young people, going forward.

Windsor Framework (Democratic Scrutiny) Regulations 2023

Lord Caine Excerpts

Wednesday 29th March 2023 Lords Chamber

Moved by

[Lord Caine]

That the draft Regulations laid before the House on 20 March be approved.

Relevant document: 34th Report of the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

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

My Lords, the Stormont brake is at the heart of the Windsor Framework. In the view of His Majesty’s Government, it addresses the democratic deficit, restores the balance of the Belfast agreement and ends the prospect of dynamic alignment. It restores practical sovereignty to the United Kingdom as a whole and to the people of Northern Ireland in particular.

In a democracy, people should have a say over any change to the laws under which they live but, under the old protocol, that was not the case, as noble Lords from Northern Ireland have frequently pointed out in this House. Changes to laws were automatically imposed on Northern Ireland whether it wanted them or not, and I, like many in this House, found that an unacceptable state of affairs.

The Stormont brake not only ends that situation but ensures that changes to rules and regulations have the consent of both main community designations in the Northern Ireland Assembly, asserting a fundamental principle of the Belfast agreement. The process works as follows: once an amendment to existing EU law within the scope of the Windsor Framework has been adopted, this will be notified by the United Kingdom Government to the Northern Ireland Assembly. The brake is triggered if, within two months of notification, 30 MLAs from two or more parties object to an amending rule or regulation. These MLAs can be from the same community designation so, in theory and in practice, they can come from two or more unionist parties or two nationalist parties. The exercise of the brake will require no other process and no vote in the Assembly. Once the brake has been pulled, the law will automatically be disapplied in Northern Ireland after two weeks. The EU could challenge the use of the brake only through international arbitration after the law had been suspended, where the bar to overturn it would be exceptionally high.

In our view, the Stormont brake is one of the most significant changes that my right honourable friend the Prime Minister has secured. It is a robust change that gives the United Kingdom a veto over dynamic alignment with EU rules. Just as importantly, the regulations put the democratically elected representatives of the people of Northern Ireland in charge of whether and when that veto will be used.

The old protocol had some measures aimed at giving it democratic legitimacy; for example, the Government had—and still retain—a veto over any new laws that the EU wanted to add to the protocol. However, that veto did not extend to amendments to laws that are already here. Crucially, there was no role for the Northern Ireland Assembly in deciding whether and when to use the veto. Of course, the old protocol also contained a democratic consent mechanism as a means of giving the Assembly the right to end the application of its Articles 5 to 10. Those measures are maintained in the Windsor Framework but they were not in themselves enough to address the democratic deficit, as my noble friend Lord Dodds of Duncairn and others have pointed out to your Lordships’ House many times.

To address that, the regulations will add a new democratic scrutiny schedule to the Northern Ireland Act 1998 to codify the brake in domestic law. There will be a binding statutory obligation in domestic law on Ministers to pull the brake when a valid notification is provided by 30 or more MLAs. The UK Government must notify the EU when a valid notification of the brake has been provided by MLAs. This is an important new function for Members of the Assembly. It is vital that they can exercise this new function with the right information and expertise, which is why these regulations also provide for a Standing Committee of the Assembly to scrutinise the relevant rules properly.

Some have described these arrangements as tantamount to a consultative role for MLAs. The Government do not agree. In our view, this is a robust power for MLAs to stop the application of amended rules—a power that neither the UK Government nor the EU can override provided that the conditions in the framework are met. Some have also claimed that the EU must have some means of blocking the brake. These regulations are clear that the process is an entirely internal one for the United Kingdom; the process is firmly and unambiguously within strand 1 of the Belfast agreement, relating to the internal affairs of Northern Ireland. There is no role for any institutions outside the United Kingdom, whether the EU or anyone else, to determine whether the brake is pulled. It will be a choice for the United Kingdom and its sovereign Government alone, alongside elected MLAs, whether the brake is pulled.

Some also claimed that the Government might simply ignore the brake. These regulations make clear that the Government have no discretion and MLAs cannot be ignored. Valid notifications of the brake must be made to the EU, with the subsequent disapplication of any new law automatically after two weeks.

The Government’s actions will be subject to all the normal public law principles that attach to decision-making and cannot be abused for reasons of political expediency. For the avoidance of doubt, the regulations are clear that the prospect of remedial measures by the EU cannot be a relevant factor in the Government’s determination.

It is not enough simply to allow MLAs temporarily to halt the application of a rule but to allow the UK Government simply to override them when the joint committee decides whether the rule should be permanently disapplied. These regulations go much further and provide a clear, robust, directive role to determine whether the Government should use our veto or not.

The regulations are very clear: unless there is cross-community support in the Assembly, Ministers will be legally prohibited from accepting an amended or new EU law which creates a regulatory border between Northern Ireland and the rest of the United Kingdom, except in varying exceptional circumstances. To be clear, “exceptional circumstances” means just that; the threshold is very high and any Minister invoking exceptional circumstances must be able to defend that decision robustly and in line with normal public law principles. Moreover, a Minister must account to Parliament where they have concluded that exceptional circumstances apply or where they consider that a measure would not create a regulatory border.

In the view of His Majesty’s Government, this represents one of the strongest statutory constraints on the exercise of ministerial functions under any treaty codified in domestic law. These regulations could scarcely make it clearer: the overwhelming presumption is that, unless the Northern Ireland Assembly says yes, the United Kingdom Government must say no.

Finally, as with any international agreement, if the EU considers that the UK has pulled the brake improperly, it may choose to initiate a dispute. We need to be clear that any dispute could arise only after the rules have been disapplied in Northern Ireland and that the resolution of that dispute would be for an international arbitration panel. The European Court of Justice would have no role in resolving that dispute.

These regulations also make the case for functioning devolved institutions in Northern Ireland even more compelling. These measures will become operable only once the institutions are restored. The regulations give domestic legal effect to this democratic safeguard and restore the UK’s sovereignty. Without this measure, Northern Ireland would continue to have full and automatic dynamic alignment with EU goods rules, with no say for the Northern Ireland Assembly and no veto on amending or replacing measures. That is not a situation that I can support. Should we vote on this measure, I would urge all Members of this House to back an end to that full and automatic dynamic alignment. I therefore commend the regulations to the House and beg to move.

Amendment to the Motion

Moved by

--- Later in debate ---

[Lord Murphy of Torfaen (Lab)]

My Lords, it has been a long debate and I will not detain your Lordships for much longer, but I want to deal with a couple of issues which have been the theme of today’s debate. The Labour Party will support the Government, as it did in the House of Commons, and it will urge Members to vote against the DUP’s amendment to the Motion.

Much has been said about the hype which the Prime Minister is supposed to have used when he was selling this measure. Well, that is what Prime Ministers do, in my experience; they do an awful lot of hyping. In this case, I think he was right to hype it, compared to what his two predecessors had done over the last few years, when they simply did not address the issue of their own making. The irony is that those two former Prime Ministers, who wanted to see change, then promptly voted against the current Prime Minister’s own proposal. It is a bit daft, really.

The point made by the noble Lord, Lord Swire, was extremely valid: this all goes back to the whole issue of Brexit. I am not saying whether we should be for or against it, but the fact that Brexit occurred had a disproportionate impact on Northern Ireland, more than any other part of the United Kingdom. I was there when that agreement was made 25 years ago, and it was made much easier because both Ireland and the United Kingdom were members of the European Union. It meant we were in the same club, and that officials and Ministers dealt with each other all the time, in Brussels and elsewhere. And it meant, of course, that the border between Ireland and Northern Ireland was very different from any other border that could be envisaged, outside Brexit. As soon as Brexit happened, there was inevitably an effect upon Northern Ireland. The noble Lord, Lord Swire, is right that far too much inattention was given to the problem of Northern Ireland during the referendum debate. People in Northern Ireland discussed it, but elsewhere in the United Kingdom it did not figure at the top of the lists, but every year since, it has dominated because we knew that we had not dealt with the situation in the way that it should have been.

You cannot be in a single market without rules; it is as simple as that. If you do not want any rules, you get out of the single market. I think this framework means that those rules are simplified; they are fewer and less cumbersome; they allow things to happen between Great Britain and Northern Ireland which could not happen before.

The Stormont brake is complicated and convoluted, but it is an answer to the difficulties that we are in. The only way the brake can be applied is if there is an Assembly up and running. The biggest democratic deficit is not EU laws affecting Northern Ireland, as difficult as that is for many people; it is the fact that there is no Assembly, no Government, no Executive, no north-south bodies, no Good Friday agreement in parts operating in Northern Ireland—that is the deficit.

The irony is that the Stormont brake can operate within the structures of a restored Assembly and Executive. More than that, where is the best forum to discuss all the issues that people, including the DUP and others, are concerned about? Not here, but in Belfast. This issue should be decided in Belfast, not in London or in Brussels, and the only way that can happen is if you have an Assembly and Executive up and running again. I say to the DUP, “Go into the Assembly and argue your case. Ensure that the Assembly and all its Members listen to the points that the DUP has made during the last three hours”.

Excepting my noble friends Lord Hain and Lady Ritchie, very little has been said about the fact that it is not just unionists who are in the Assembly; the majority are not unionists. That is not for one second to say that the unionist view should be ignored; of course it should not, because consent between the communities is the basis of the Good Friday agreement. Little has been said about what nationalists think about the Windsor Framework, the protocol, the Stormont brake and how it could affect them, because they would inevitably see it as a means by which unionists have to be assuaged, whether that is right or wrong.

The other thing that has been ignored is that there is a shift in Northern Ireland politics. The last number of elections have shown us that there are large swathes of people who no longer identify either as nationalists or unionists. That has been seen in the election results for the Alliance Party, which now has 17 seats in the Assembly, only eight fewer than the Democratic Unionist Party. Its views ought to be taken into account as well, but none of that can happen if there is no Assembly or Executive.

Much has been made tonight, particularly by the DUP Members of your Lordships’ House, of the importance of the union and of sustaining it. But as we approach the 25th anniversary of the Good Friday agreement in two weeks’ time, central to that—the core of it, really—is the issue of consent. That is not just the consent of unionists and nationalists but the consent of the people of Northern Ireland to make a change in their constitutional status. The union is absolutely safe so long as the principle of consent is agreed to, and it will be. If the people of Northern Ireland democratically wish to leave the United Kingdom, they will leave. But they have not said that, and there is no indication that they will.

When I took the Northern Ireland Act 1998, as it became, through the House of Commons 25 years ago, it enshrined in our constitution and in our law that people in Northern Ireland will have the final say. However difficult it is to accept that EU law is law above British law in Northern Ireland, the union is safe so long as the principle of consent is there. We will celebrate the 25th anniversary of the Good Friday agreement in two weeks’ time. Most Members of this House, including myself, can take our minds back to 30 years ago and think about what Northern Ireland was like then, and what it has been like since 1998. We must not jeopardise that.

[Lord Caine (Con)]

Forgive me, my Lords, if I just try to get my circulation going.

I am extremely grateful to all noble Lords who have participated in this debate, which noble Lords will recall was time-limited in the House of Commons to 90 minutes. We have now spent three hours and 23 minutes on it, which at least gives some indication of the diligence and seriousness with which noble Lords take the scrutiny functions of this House. I am grateful at the outset to all those who have spoken. I fear that, if I tried to address every question and every point that has been raised, the Chief Whip might have to cancel the Easter Recess, which I do not think would make us very popular. I hope noble Lords will forgive me if I cannot cover every speech and every point.

As ever, I am very grateful to the noble Lord, Lord Murphy of Torfaen, for his wise counsel and support, and to the noble Baroness, Lady Suttie, from the Liberal Democrats. The noble Lord referred to the importance of getting the institutions back up and running. As we mark the 25th anniversary of the Belfast agreement in a couple of weeks’ time—I think he and I will be at some of the same events—that is an urgent priority for His Majesty’s Government. I give the assurance that we will continue to work strenuously towards that objective.

I am also grateful to a number of my noble friends behind me. My noble friend Lord Lexden made a customarily powerful intervention, and I share his assessment of the Windsor Framework. My noble friend Lord Swire said some kind words about my thighs on the Bench. His dilemma, if you like, and the issues he confronted back in 2016, entirely echoed my own when it came to the referendum. I think we found ourselves voting in the same way in the end. My noble friends Lord Robathan and Lord Taylor of Holbeach also expressed support, for which I am grateful.

We are being asked to consider the amendment in the name of the noble Lord, Lord Morrow, so I believe it would be helpful if I tried to address at least some of the points that he and all his DUP colleagues who spoke in the debate raised this afternoon and this evening. I acknowledge the concern expressed by a number of noble Lords, including DUP Peers but also my noble friend Lord Robathan, that the mechanism in these regulations does not apply to EU law already in place and that it applies only to future new or replacement EU law. To this I simply say that the amount of EU law that applies in Northern Ireland is less than 3% of the whole. Of course, as has been pointed out during the debate, democratically elected representatives in Northern Ireland retain the right to reject that 3% through next year’s consent vote. I know noble Lords have views on the democratic consent mechanism, but I do not think it would be fruitful to reopen that debate at this moment. It is the case that through the Windsor Framework we have removed 1,700 pages of EU law. In response to a recent Question from my noble friend Lord Dodds of Duncairn, I highlighted that in annexe 1 of the EU regulations concerning SPS rules to accommodate Northern Ireland, 67 EU rules are disapplied. All the disapplied law is, I think, contained in the legal text published on 27 February.