Protocol on Ireland/Northern Ireland: Supreme Court Judgment

Lord Caine Excerpts

Thursday 9th February 2023 Lords Chamber

[Lord Morrow]

To ask His Majesty’s Government (1) what assessment they have made of the Supreme Court’s ruling on the status of the Northern Ireland Protocol and its effects on the Acts of Union 1800 and the Northern Ireland Act 1998, and (2) what urgent proposals they plan to implement to prevent any deterioration in relations between Northern Ireland and the rest of the UK.

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

My Lords, yesterday the Supreme Court considered the appeal brought to it last year and found in the Government’s favour. Regardless of this outcome, significant problems with the protocol remain. These will require political, not legal, remedies. The Government remain determined to find a solution that protects Northern Ireland’s place within the United Kingdom’s internal market and respects all three strands of the Belfast agreement. Intensive talks with the EU continue to that end.

[Lord Morrow (DUP)]

I thank the Minister for his reply. The Supreme Court judgment handed down yesterday states that the protection regarding constitutional change in the Northern Ireland Act 1998 pertains only to a situation where it is proposed that Northern Ireland fully leaves the United Kingdom to become fully part of the Irish Republic. This means that the critical prohibition in the Good Friday agreement on

“change in the status of Northern Ireland save with the consent of a majority of its people”

is not upheld in law. Given that, without this protection, the Good Friday agreement cannot stand, will the Government now introduce emergency legislation to give effect to the consent protections in the Good Friday agreement?

[Lord Caine (Con)]

I am very grateful to the noble Lord for his question. I gently point out that in the Supreme Court the Government won on all counts brought by the applicants. On his specific points, the Supreme Court was very clear that Northern Ireland remains an integral part of the United Kingdom. The position set out in the Belfast agreement is very clear: Northern Ireland is either fully part of the United Kingdom or it is fully part of a united Ireland, which will only ever be determined by the consent of the people in Northern Ireland. That remains unchanged.

[Baroness Smith of Basildon (Lab)]

My Lords, the Supreme Court judgment is welcome in that it provides legal certainty where there was uncertainty. The protocol negotiated by this Government—I see that the noble Lord, Lord Frost, who was responsible for it, is in his place—is by no means perfect. There are problems with it, which is why it is being renegotiated. I distinctly recall Ministers in your Lordships’ House saying that the protocol was essential to protect the Good Friday agreement, but now the Government tell us they have to change it to protect the Good Friday agreement. Only one of those statements can be true.

Businesses in Northern Ireland have been forced to adapt to their circumstances. They have put a lot of effort into adjusting to this. To unilaterally remove it would be the worst thing for businesses in Northern Ireland. There are reports that some limited progress is being made in negotiations. How confident is the Minister that the outstanding issues can be resolved quickly and in a manner that can draw broad, if not unanimous, support from across Northern Ireland?

[Lord Caine (Con)]

I am very grateful to the noble Baroness. As I have said on many occasions, she is a very distinguished former Northern Ireland Office Minister. We debated these issues at some length on Tuesday evening during the passage of the Northern Ireland Budget Bill. I was very clear that evening that for many businesses and sectors there are elements of the protocol that are working well. I referred to a recent meeting I had with the Dairy Council and Lakeland Dairies in Newtownards. For those businesses, EU single market access, as provided for in the protocol, is not just desirable but essential. We are committed to preserving that. I also said that there are many problems with the protocol for other sectors. It has led to diversions of trade and increased burdens on business. It has disadvantaged consumers and led to political instability—witness that there are no institutions at the moment.

On the noble Baroness’s question, I will not comment on what may have been written in newspapers. The Government’s preference is to resolve these matters through a negotiated agreement with the European Union. As I said in my initial Answer, we are working tirelessly towards that end.

[Baroness Suttie (LD)]

My Lords, further to that answer, does the Minister agree that this ruling increases the urgency to make real progress on the negotiations as soon as possible? The sooner there is a return to Stormont and the Executive, the better this will be for the people of Northern Ireland, given the cost of living crisis they currently face.

[Lord Caine (Con)]

The noble Baroness will be aware that I have been a consistent supporter of the Belfast agreement since it was reached on 10 April 1998. We are about to mark its 25th anniversary. I agree with her earlier comments. A protocol that was designed to prevent a hard border on the island of Ireland and to protect the 1998 agreement in all its parts is now having the unintended consequence of undermining and placing strain on that agreement. I agree with the noble Baroness entirely that we need to resolve these issues as quickly as possible and get Stormont back to work.

[Lord Cormack (Con)]

My Lords, I thank my noble friend for all that he continues to do in the interests of good sense and Northern Ireland. Is he confident that, given sufficient time—we do not need to rush this or try to accomplish it as soon as we can—negotiation is the only sensible way to resolve this issue? The dairy industry, which has been to see me and others, will then feel that its protection is complete and will be very happy that others should have similar benefits.

[Lord Caine (Con)]

I agree with my noble friend and thank him for his kind words. We are seeking to achieve, as I indicated in my opening Answer, a situation that respects the integrity of the EU single market and the UK’s internal market, and Northern Ireland’s constitutional position as an integral part of our United Kingdom—a position, I hasten to add, that I wish never to see change.

[Lord Dodds of Duncairn (DUP)]

My Lords, the Minister referred to having won in the court, but the Government have won on the basis of the argument that the Acts of Union have been suspended. Are the Government proud of arguing in the Supreme Court of the United Kingdom that the Acts of Union have been suspended? What action will the Minister take to restore the union?

[Lord Caine (Con)]

I will resist the attempt to turn the House of Lords into another branch of the Supreme Court and relitigate the case on which judgment was reached yesterday. All I will say to my noble friend is that we are well aware of the defects in the protocol, which have become apparent. Some might say that they were apparent at the time, but they are very apparent today. We are determined to remedy what does not work, while preserving what does.

[Baroness Foster of Aghadrumsee (Non-Afl)]

My Lords, as one of the applicants to the Supreme Court yesterday, I welcome the clarity the Supreme Court has given to the legal position. I also welcome the Minister’s comment that there needs to now be a political solution to this problem for Northern Ireland, which has been ongoing since 2021. Paragraph 67 of the Supreme Court judgment yesterday, as my noble friend Lord Dodds has just referred to, says:

“The Acts of Union and article VI remain on the statute book but are modified to the extent and for the period during which the Protocol applies.”


At the time of the withdrawal agreement, we were told that the Acts of Union had not been changed and that the union was safe. The Supreme Court has ruled that the Acts of Union have been modified as long as the protocol is in existence. What plans do His Majesty’s Government have to reinstate Article VI of the Act of Union?

[Lord Caine (Con)]

I am grateful to the former First Minister of Northern Ireland for her comments. We will of course continue to study the judgment very carefully, because, as I indicated to my noble friend Lord Dodds, I do not plan to get into a legal rehearsal of all the arguments that we were played out in the Supreme Court. As her former right honourable friend, the current leader of the Democratic Unionist Party, made clear yesterday, this issue was never going to be solved in the courts; it requires a political solution, and that is what the Government are striving to achieve.

There have been modifications to the Acts of Union in the past; if there had not been, 100 Irish representative Peers would still be sitting in your Lordships’ House and the Church of Ireland would not have been disestablished.

[Baroness Foster of Aghadrumsee (Non-Afl)]

Shame!

[Lord Caine (Con)]

I note that the former First Minister is a proud Anglican. While there have been modifications, I take on board the noble Baroness’s comments. As I said in answer to an earlier question, the Government’s intention is to ensure that Northern Ireland’s position within the UK internal market is fully respected, along with its constitutional position as part of the United Kingdom.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, a group of 18 year-olds from Northern Ireland visited Parliament yesterday. They told me that they were jealous of me because, for years, I had the opportunity to stand for election and to debate and make all the laws to which I was subject—an opportunity they will now be denied under the protocol, with laws being forced upon them over which they have no say. They told me that they felt like second-class citizens in the United Kingdom because of that. What does the Minister say to them?

[Lord Caine (Con)]

Clearly, we do not want anybody in any part of the United Kingdom to feel like a second-class citizen. As I set out in my comments on the Northern Ireland Budget Bill on Tuesday, dealing with issues around governance and the democratic deficit, to which the noble Lord referred, are extremely important, and they will have to form part of a final negotiated agreement with the EU.

[Lord Weir of Ballyholme (DUP)]

My Lords, we used to have a situation where there was a common citizenship across the United Kingdom and that every citizen of the United Kingdom was able to vote for representatives at either regional or national level who could set their laws. It is clear that the Supreme Court ruling yesterday has confirmed that that is no longer the case. As we rightly, as a nation, seek to propagate the values of democracy internationally, can the Minister tell us what message it sends to the outside world that we are tolerating a major democratic deficit in our own backyard?

[Lord Caine (Con)]

As I just pointed out in response to his noble friend, the noble Lord, Lord McCrea, this is an issue we are seeking to resolve in the negotiations. I cannot really go into any detail at the Dispatch Box.

[Lord Hannan of Kingsclere (Con)]

My Lords, the Acts of Union were our country’s foundational charter. If the United Kingdom had a national day analogous to the independence days of other countries, it would commemorate 1 January 1801, when the Acts of Union took effect. How can any British Government, least of all a Conservative and Unionist British Government, tolerate legislation that is now held in the courts to be at odds with that foundational document?

[Lord Caine (Con)]

I can assure my noble friend that, as a staunch unionist, I would have no issue whatever in commemorating or marking 1 January 1801 every year. I have already answered his question: issues around governance and the democratic deficit have to be resolved in our ongoing and intensive dialogue and negotiations with the EU.

[Lord Hay of Ballyore (DUP)]

My Lords, can the Minister comment on the issue whereby people elected to the Northern Ireland Assembly are then subject to laws in some 300 areas made by a legislature of which they are not a part and to which they have no representation?

[Lord Caine (Con)]

I am grateful to the noble Lord, Lord Hay, for his question, which I think I have covered in my previous answers.

[Lord Lilley (Con)]

My Lords, up to half of all goods and produce exported across the border from Northern Ireland to the Republic are produced in Northern Ireland, and therefore cannot be validated as to whether they meet EU conditions at the border between GB and Northern Ireland. Should we not remove the border between GB and Northern Ireland and rely on export controls and the SPIRE system, which I used to exercise as the Secretary of State for Trade and Industry, to ensure that goods exported to the European Union meet European standards? That would solve the problem.

[Lord Caine (Con)]

My noble friend, as a former Secretary of State for Trade and Industry, makes a valuable point. He will of course be aware that the Government have proposed, and are currently discussing, a system of green channels and red channels at points of entry, whereby goods that will never leave the United Kingdom will not be subject to the controls that will be placed upon those goods that will enter the single market.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, would the Minister care to speculate as to why the guilty men who got us into this mess in the first place remain silent?

[Lord Caine (Con)]

I have great admiration for the noble Lord, but I am never one to speculate, especially at the Dispatch Box. As I have said on many occasions, I prefer to dwell less on how we got into this place and more on how we get out of it.

Omagh Bombing

Lord Caine Excerpts

Thursday 9th February 2023 Lords Chamber

[Baroness O'Loan (CB)]

My Lords—

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

I am sure the noble Baroness will have her opportunity shortly. I am grateful to the noble Baronesses, Lady Smith of Basildon and Lady Suttie, for their broad support and welcome for my right honourable friend the Secretary of State for Northern Ireland’s announcement.

Before I respond in detail, I would like to place on the record my own heartfelt sympathy for the victims of the terrible bombing that took place on 15 August 1998. As the noble Baroness reminded us, it was only a few short months after all the hope and optimism that was generated by the signing of the Belfast/Good Friday agreement. Like many noble Lords across the House, I can vividly remember where I was and what I was doing on that terrible Saturday when I heard the news.

I add my own tribute to the Omagh families’ Omagh Support and Self Help Group, and to other groups, such as Families Moving On, for the work that they have done over the years. In particular, I join those who have paid tribute to Michael Gallagher for his campaigning over the years, not just for a public inquiry, but in respect of the civil case which took place over a number of years and identified four culprits behind this dreadful atrocity.

I concur very much with what the noble Baroness, Lady Smith of Basildon, said about never forgetting who actually carried out this atrocity. I can do no better in this respect than to quote the judge, Mr Justice Horner, in his ruling on this in the Gallagher court case. He said:

“It is important not to forget that the responsibility for this terrible atrocity, the worst in the last 60 years of Northern Ireland’s history, lies with those malevolent and evil dissident republicans who, with complete disregard for human life, planned, planted and detonated a huge bomb among shoppers in Omagh’s town centre on a Saturday afternoon in August.”


I concur with every one of those words.

I am grateful again to the noble Baroness for her kind words about the Secretary of State. He met the families last week in person, before the Statement, in order to tell them of his decision. As we noted, the families obviously very much welcomed what the Government have announced.

Both noble Baronesses talked about the legacy Bill and the difference in approach. The House will be aware that the legacy Bill itself will deal with Troubles-related cases between 1 January 1966 and 10 April 1998, when the Belfast agreement was reached, so this case is by definition outside the scope of the legislation. Were it to be put in scope, it would have a consequence, which I do not think would be particularly welcomed across the House, of enabling people who were involved in this and subsequent dissident republican activities—people who rejected the Belfast agreement and the peace process—to apply for conditional immunity in certain cases. As I say, I do not think the House would welcome that.

However, I do not entirely accept that there is some kind of total contrast between what we are doing here and what we are doing on legacy. Of course, not every case can have a public inquiry, but the legacy Bill seeks to establish structures, which will enable families to access greater information about what happened to their loved ones in the Troubles, in much the same way that a public inquiry will try to establish the facts of what happened in this particular case. So I do not necessarily accept the premise of the noble Baronesses’ comments.

On their other questions about the chair and terms of reference, we will of course work as quickly as we can to identify the person to chair the inquiry and finalise the terms of reference. I should point out to noble Lords who are not necessarily familiar with the process that the inquiry will be targeted in scope and will investigate the four grounds which the court held could give rise to plausible arguments that there was a real prospect of preventing the Omagh bomb. These relate to the handling and sharing of intelligence; the use of cell phone analysis; whether there was advance knowledge or reasonable means of knowledge of the bomb; and whether disruption operations could or should have been mounted, which may have helped to prevent the tragedy. Those will be the areas on which the inquiry will focus. As I say, we will set this up as quickly as possible. I cannot give a definitive timetable, but I will undertake to keep Parliament informed in the usual ways.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, for 14 and a half years in the other House, I represented the people of Omagh, and I visited the scene of carnage on the day that the bomb took place. Coming from a family with loved ones brutally murdered, I know the deep anguish and pain that these families have suffered over the years. Sadly, that pain will not go away. Can the Minister assure me that while the inquiry learns the lessons of any failures that may have taken place by security personnel, no focus will be taken from those who planted this bomb and carried out this despicable, murderous act, and therefore that every effort will continue to be made to bring those responsible to justice?

[Lord Caine (Con)]

I fully acknowledge the comments of the noble Lord, Lord McCrea, and I am well aware that he has, sadly, during his political and ministerial career—ministerial in a religious sense—had to officiate at funerals and bury many loved ones over the years. On his specific question, as I indicated earlier, the people who are responsible for this vile atrocity are of course the terrorists who carried it out and nothing should detract whatever from that. I concur entirely with his comments in that regard.

[Baroness O’Loan (CB)]

My Lords, I declare an interest: I carried out an investigation into matters relating to the Omagh bomb and published a report in December 2001. I very much welcome the announcement of this inquiry and pay tribute to Michael Gallagher and all those who have fought for knowledge of what happened on that terrible day. When I published my report—I remind the House that I had only the powers to investigate the police—I said:

“The persons responsible for the Omagh bombing are the terrorists who planned and executed the atrocity. Nothing contained in this report should detract from that clear and unequivocal fact.”


I repeat that today. I express my sympathy to all those affected by the bomb, because, as noble Lords have said, this is going to be a very traumatic and difficult experience for them, because it will raise again the things that they have suffered for so long.

I shall just ask the Minister a couple of questions. Can he assure the House, because of the questions that have been asked in the media, that this will be an inquiry under the Inquiries Act 2005? Can he assure the House that the terms of reference will be sufficiently wide and, in particular, that they will encompass all intelligence and information received prior to the Omagh bomb which related to Omagh, and that it will not refer only to—I quote from the Statement—“knowledge of the bomb”? I ask this in light of the fact that detailed information was received on 4 August 1998 by the police that there would be an attack on police in Omagh on 15 August, the day on which the bomb exploded. It is vital that all intelligence is capable of being considered by this inquiry.

Finally, I join noble colleagues in asking the Minister whether—in light of this recognition of the Government’s legal obligations and the fact that those legal obligations did not terminate as a consequence of the Good Friday agreement, nor was it ever the intention of those who entered into the Good Friday agreement that it would effectively act as a statute of limitations in any way—he can confirm that His Majesty’s Government will now withdraw the Northern Ireland Troubles Bill. It is not compliant with those legal obligations.

[Lord Caine (Con)]

It is with some trepidation that I rise to answer the questions of the noble Baroness, given her previous role as a distinguished Police Ombudsman for Northern Ireland: she probably knows as much about this case as any other living person. In answer to her questions, of course I can confirm that the inquiry will take place under the Inquiries Act 2005. The inquiry will have full powers of compulsion and access to all the relevant material. Naturally, we expect as much of the inquiry as possible to be conducted in public, but as she will understand, some of the material will be of such a national security-sensitive status that it will not be possible in all circumstances.

On the terms of reference, I refer to the targeted nature of the inquiry in respect of those areas where the judge has held that we have not fully discharged our obligations. The final terms of reference are, of course, a matter to be decided between His Majesty’s Government and the individual who chairs the inquiry, but I very much take on board the noble Baroness’s comments about the Northern Ireland legacy Bill, which has been debated extensively in your Lordships’ House.

[Lord Cormack (Con)]

My Lords, the Northern Ireland Affairs Committee in the other place produced a report on Omagh under my chairmanship, and I take this opportunity of saluting the courageous persistence of Mr Gallagher and others, which has led to today. I also take up the point just made by the noble Baroness, Lady O’Loan. If one had to categorise the Statement, I would say that its hallmark was sensitivity. The problem with the Bill is that its hallmark is insensitivity, and frankly I believe that it is incompatible with beginning this inquiry to continue with the Bill. My noble friend has handled this with extreme care, but will he have a special conversation with the Secretary of State, who made this Statement last week, and say to him, “Really, as far as the legacy Bill is concerned, enough is enough. Let’s start again”?

[Lord Caine (Con)]

I am grateful, as always, to my noble friend for his kind words. He makes his case with customary force and eloquence. Of course, we have yet to complete Committee on the legacy Bill in your Lordships’ House, there is still a further amending stage to come after that, and I remain committed to fulfilling the pledge that I have made on a number of occasions, from this Dispatch Box and elsewhere, to do whatever I can to improve the legislation and to send it back to the House of Commons in a much better state than when the House of Commons sent it to us. I will, of course, continue to have discussions with my right honourable friend the Secretary of State towards that end.

[Baroness Foster of Aghadrumsee (Non-Afl)]

My Lords, first, I send my best wishes and support to all the families impacted by the Omagh bomb, many of whom I know very well. They will never forget who it was that planned, prepared and executed the bomb in Omagh on that fateful day. Indeed, the Real IRA planned and prepared for the bomb in the Republic of Ireland and then executed its dastardly actions in Omagh.

In the Statement, mention was made of the fact that Mr Justice Horner hoped that the Irish Government would also undertake an Article 2 investigation into what happened in the run-up to the execution of the Omagh bomb. I am afraid to say that the Irish Government’s record on dealing with legacy in Northern Ireland is at best patchy and at worst non-existent. I have had the great honour and privilege to attend, with many victims’ groups, meetings in the Dáil and in Dublin Castle with various Governments of various different hues. We did receive tea and sympathy; I have to say that we received little else. Will His Majesty’s Government now put pressure on the Irish Government to hold a similar inquiry in the Republic of Ireland? The bomb was planned and prepared in a different jurisdiction, and if we are to get totality of answers for the people of Omagh, then that needs to happen as well.

[Lord Caine (Con)]

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

[Lord Browne of Ladyton (Lab)]

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

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

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

[Lord Caine (Con)]

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

[Lord Dodds of Duncairn (DUP)]

My Lords, I too join in tributes to the families of the victims of the Omagh atrocity, and to Michael Gallagher in particular, whom many of us have met, for his courage and bravery. I also plead that, in all of this, we remember that terrorists were responsible for this atrocity.

I add to the calls for the Irish Republic to be put under pressure to do more in relation to this, and to other areas where the IRA carried out terrorist activity in Northern Ireland and found a safe haven in the Irish Republic for many, many years. I refer to the recent case where the sole survivor of the Kingsmill massacre, which again has been found to be a totally sectarian murder of Protestant workmen by the IRA, has been forbidden from revealing secret Garda evidence about the attack, following special legislation passed in the Dáil to prevent that becoming transparent and open to the public. Many of us are really concerned about the lack of input from the Irish Republic in getting justice for victims. I urge the Minister to continue to press the Irish Republic on this matter.

[Lord Caine (Con)]

I am of course aware of the case to which he refers. I do not think it would be appropriate for me, at the Dispatch Box, to comment directly on a case which is still live and ongoing. However, I do hear the comments of my noble friend very loud and clear and, as I said in response to the noble Baroness, Lady Foster, I will raise these issues when I next meet Ministers from the Irish Government.

[Lord Weir of Ballyholme (DUP)]

My Lords, I join with voices from all sides of this House in welcoming this inquiry and pass my sympathy and thoughts to the families of this horrendous and heinous crime.

In response to a number of questions, the Minister has rightly indicated that the focus should remain: we must not be deflected from focusing on the perpetrators of this evil act. Will he agree also that, whatever direction the inquiry takes, it should not be exploited by some others to try to deflect that focus, either by turning the security forces into scapegoats or by trying to besmirch the bravery of their actions down the years in Northern Ireland?

[Lord Caine (Con)]

I am grateful to my noble friend, who makes a very important point. Of course, the inquiry will be established and set about its work, which it will do thoroughly, and in due course a report will be published. My noble friend makes a hugely important point about the security forces. We all acknowledge that mistakes were made in the course of Operation Banner; I speak as somebody who helped to write David Cameron’s Statement in response to the Saville inquiry in June 2010. However, as I have always maintained, over the course of 30 years, over 250,000 people served in the security forces and the overwhelming majority did so with great bravery, distinction and restraint. I put on record again that, without the service and sacrifice of the Royal Ulster Constabulary George Cross and our Armed Forces, there would have been no peace process in Northern Ireland, and we owe them a huge debt of gratitude.

[Lord Lexden (Con)]

My Lords, I remember that terrible day, in particular because I received a telephone call from the office of the then Prince of Wales to check a small historical point with me. It was borne in upon me, as I spoke to one of his Private Secretaries, how deeply the then heir to the Throne was affected by the news of this awful atrocity. I place this before the House today so that Members are aware of how deeply our now monarch felt about that quite dreadful atrocity.

[Lord Caine (Con)]

I am very grateful to my noble friend for bringing that point to the House, and it certainly concurs with the experiences of myself and the Secretaries of State for whom I have worked, who will all attest to His Majesty the King’s huge personal interest in, and affection for, Northern Ireland.

Northern Ireland Budget Bill

Lord Caine Excerpts

2nd reading & Committee negatived & 3rd reading
Tuesday 7th February 2023 Lords Chamber

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

My Lords, before I reply to the debate, I associate myself with all the comments that have been made about my noble friend Lord Empey—and he is very much my noble friend. I have known him since the 1980s, and he was one of my two supporters when I took my seat in your Lordships’ House. I think we all wish him and his family all the very best.

I thank all those who have taken part in this evening’s debate. If I can begin on a note of consensus, I think it is clear across the House that there is agreement that most noble Lords would prefer that these decisions were being taken in Stormont, not here in Westminster. I think there is also a consensus that we want to see the institutions in Northern Ireland restored as quickly as possible, although there might be disagreements about how we get there and what might need to be done. I am pleased that most noble Lords recognise that it is the right and responsible thing for His Majesty’s Government to intervene in these matters and take legislative action on a budget for Northern Ireland in order to maintain the delivery of public services.

I went over at some length the background and context for the setting of the budget and said something about the process for the setting of the budget in my opening comments and, at the risk of not rising to the challenge of my noble friend Lord Weir of Ballyholme to keep us here until half past midnight at the earliest, I will resist going over all those points again.

I shall speak first to the two amendments to the Motion that have been tabled. The first one is in the name of the noble Lord, Lord Hain, the former Secretary of State for Northern Ireland. I understand the frustrations with the current situation that have led him to table his amendment. He will not be surprised to hear that His Majesty’s Government cannot accept it. What he is putting forward would involve significant changes to the process of Executive formation in Northern Ireland at a time when the priority of the Government is to get those institutions back up and running, and his amendment could be perceived, as I think it was by a number of noble Lords behind me, as tilting the playing field significantly against one party, which might have the effect of frustrating our objectives.

As the noble Lord will be fully aware, it is essential that any changes to institutional arrangements in Northern Ireland require “sufficient consensus” right across the community—that is the phrase used. This approach has underpinned political negotiations and discussions in Northern Ireland since the spring of 1996 and, of course, these were the rules under which the noble Lord would have operated at St Andrews in 2006.

One of the consequences of the noble Lord’s amendment would be to make it more difficult for any political parties in Northern Ireland that might wish to go into opposition. Arrangements for opposition were included in the Stormont House agreement, the Fresh Start agreement and New Decade, New Approach. I am sure it is not his intention, but the wording of his amendment would make it difficult for any party to take up that option—which I think the SDLP has already signalled that it would do if the Assembly came back.

On MLA pay, I recognise that the noble Lord, when he was Secretary of State in 2006, proposed at one point to withdraw all the salaries from Members of the Assembly. The current Secretary of State has cut MLA pay by 27.5%. The cut came into effect on 1 January and applies to all Members of the Assembly equally. The Government are mindful that MLAs do perform certain functions. However, we keep the situation under review, and in that spirit I trust that the noble Lord will be prepared to withdraw his amendment.

I fully understand the sentiments behind the amendment in the name of my noble friend Lord Dodds of Duncairn, as well as the arguments put forward in support of it by the majority of noble Lords who have spoken in the debate. I am sure he is fully aware of my views on this subject, both as a Back-Bencher in 2019 and as a member of the European sub-committee on the protocol, on which I served with him before I was appointed to this role.

As the noble Baroness, Lady Ritchie of Downpatrick, said, there are of course sectors for which the protocol is working well. She referred to my recent visit to Lakeland Dairies and my meeting with the Dairy Council; I am very glad she keeps tabs on my meetings and progress across Northern Ireland. In their conversations with me, they were very clear that the EU single market access provided for in the protocol by the current arrangements are not just desirable but essential for their businesses. As I said during the debates on the protocol Bill, we are committed to preserving those elements and advantages.

At the same time, however, the Government are well aware of the damaging impacts that implementation of the protocol has had, both in Northern Ireland and in Great Britain. If I can summarise the effects in this way, it has led to a diversion of trade, it has disadvantaged consumers, it has led to increased burdens on business—as we heard from a number of noble Lords—and of course it has created political instability, as evidenced by the fact that we are having this debate here because we have had no functioning Northern Ireland Executive or Assembly for much of the past year.

In short, as my noble friends Lord Dodds of Duncairn and, if I can refer to her as such, my noble friend Lady Foster—I think this is the first time we have debated together in the Chamber since she joined the House; I am very pleased she is here—made clear, and I agree with them, a protocol designed to avoid a hard border on the island of Ireland and protect the 1998 agreement in all its parts is now placing that agreement under severe strain at a time when we are about to mark its 25th anniversary. For those of us in your Lordships’ House who have been consistent in our support for that agreement since 10 April 1998, that is not a very comfortable position to be in.

It is therefore imperative that, while preserving aspects of the protocol that work, we are able to remedy or fix those that do not. Noble Lords are well aware—some of these issues were raised this evening—from our extensive debates on the protocol Bill, that the Government have put forward a number of detailed proposals, including the so-called green and red channels, to which noble Lords referred earlier, so that those goods entering Northern Ireland from Great Britain and which will never leave the United Kingdom will not be subject to the checks on goods that will enter the European Union single market. Again, in direct response to a number of comments that have been made, we are also clear that any resolution to the protocol must deal with issues around governance and with the democratic deficit that it has created.

As has been said many times, the Government’s clear preference is for a negotiated settlement with the EU on these matters. I am sorry to disappoint the noble Baroness, Lady Ritchie of Downpatrick, and indeed the noble Lord, Lord Murphy of Torfaen, but I cannot give more detail or comment on what is currently being discussed with the European Union or indeed any of the speculation that has appeared in recent weeks in certain newspapers—other than to say that we very much hope that agreement can be reached; that is our focus. If that is not the case, we are clear that we will take forward the legislation to ensure that we have the powers to take whatever action is necessary to resolve these matters. Let me be very clear: we need a solution that respects the integrity of the EU single market, the integrity of the UK internal market and, of course, Northern Ireland’s position as an integral part of our United Kingdom. I do not think I can be any clearer than that.

On the debate itself, I have set out the context and background for the budget. In his concluding remarks, the noble Lord, Lord Murphy of Torfaen, referred to a lack of money and 10 years of so-called austerity. I generally like to agree with the noble Lord on most things, but on this I remind him, as I said at the outset, that spending per head in Northern Ireland is already the highest in any UK region. In 2021, the spending review settlement gave Northern Ireland record levels of funding. Indeed, the Fiscal Council to which he referred said at the time that the settlement would have enabled the Executive to set three-year budgets giving far greater certainty than we have had in recent years.

I will quickly read out some of the things that we have done in addition in the last number of years. In 2013, just before we brought the G8 to Northern Ireland, we made available £300 million in additional borrowing power through the building a prosperous and united community package. We invested almost £2 billion in additional spending power for Northern Ireland as a result of the Stormont House agreement of 2014. We invested a further £500 million through fresh start, £2.5 million of financial support and flexibility through the confidence and supply agreement in 2017 and, more recently, over £3.5 billion through the new deal, city and growth deals, PEACE PLUS and the New Decade, New Approach financial package, which the noble Lord referred to earlier. The noble Lord mentioned the large number of commitments in that document. Every six months, I publish an update on progress—actually in response to a request from his noble friend, the noble Lord, Lord Coaker, when we were going through previous legislation. He can track the progress of the implementation of those commitments through that.

In response to my noble friend Lord Rogan, we are investing over £250 million through the Levelling Up Fund, the UK Shared Prosperity Fund and the Community Ownership Fund. On levelling up specifically, ultimately those are decisions for the Department for Levelling Up, Housing and Communities, but I will make sure that my noble friend Lady Scott is aware of my noble friend’s comments.

I am conscious of time. The debate ranged over a number of issues, particularly health, education, policing and the current governance arrangements for Northern Ireland. I reiterate the top line: health has received an extra £768 million and education an extra £300 million, and the Department of Justice has received an uplift of around 3.1% in this Budget. In addition to the money through the block grant that is spent by the Department of Finance, noble Lords will be aware of the Government’s ongoing commitment to additional security funding, which is around £32 million this year and helps the Police Service of Northern Ireland to combat the ongoing threat of terrorism.

I therefore dispute some of the assertions made about this Budget, but it was of course drawn up through discussion with the Northern Ireland Civil Service, and a number of the priorities to which noble Lords have referred will be matters for the departments to determine, not the Northern Ireland Office. I am conscious that a number of detailed points were put to me during the debate about individual allocations. With the indulgence of the House, rather than detain us until a very late hour, if noble Lords will permit I will write in detail on each of the issues raised today.

On governance and Civil Service decisions, I made it clear during the passage of the executive formation Act before Christmas that this is not a long-term solution or fix. Of course noble Lords would expect me to say this, but the priority is Executive formation and getting institutions back up and running. In direct response to the noble Lord, Lord Murphy of Torfaen, of course we need a plan. My noble friend has had a number of round tables with the Northern Ireland political parties in recent weeks, and I fully expect those to continue shortly. So we are engaging and doing everything possible to try, alongside negotiations with the EU, to talk to political parties in Northern Ireland with a view to ensuring that, should we be successful in our discussions with the EU, we can bring about the restoration of the institutions that most of us in this House want to see. On that note, I draw my remarks to a close.

--- Later in debate ---

Moved by

[Lord Caine]

That the Bill be now read a third time.

[Lord Caine (Con)]

My Lords, I thank once again all noble Lords who have participated this evening. I place on record my sincere gratitude and thanks to the Northern Ireland Civil Service for the way in which it has co-operated with His Majesty’s Government, and to my own officials in the Northern Ireland Office for their incredible hard work in putting together a budget for Northern Ireland in these very difficult circumstances. I am sure I speak for the whole House in hoping that we will not have to be in this position ever again.

Northern Ireland Budget Bill

Lord Caine Excerpts

2nd reading & Committee negatived & 3rd reading
Tuesday 7th February 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 begin my comments on the Bill itself, I once again place on record my gratitude to your Lordships for considering this important Bill on a heavily truncated timetable. I recognise that we should be doing so only in exceptional circumstances. As I go through my remarks this evening, I hope noble Lords will agree that this Bill meets, and indeed goes beyond, that high threshold.

In moving this Second Reading, I once again speak with a strong sense of disappointment. At the Second Reading of the Northern Ireland (Executive Formation etc) Bill 2022, I said:

“No Government would want to be in the position in which we find ourselves today. It is clearly not a satisfactory state of affairs.”—[Official Report, 5/12/22; col. 22.]


That sentiment still applies as I stand before your Lordships this evening. It is also a sentiment shared, I would venture, by the noble Lord, Lord Hain, and my noble friend Lord Dodds of Duncairn, who have tabled regret amendments to the Second Reading Motion. With their permission, I will not seek to pre-empt what they might say when they come to speak to their amendments. Instead, I will endeavour to listen carefully to what they say and respond in my wind-up speech later on.

The Government are bringing forward this legislation because Northern Ireland has been without a fully functioning Executive since February 2022 and without a fully functioning Assembly since after the May Assembly elections in the same year; as a result, it has not been possible to set a budget. His Majesty’s Government stepped in shortly after 28 October last year, when Northern Ireland Ministers formally left their posts, and we subsequently worked with the Northern Ireland Civil Service to set a budget for 2022-23. I place on record my gratitude to those in it for all their hard work.

My right honourable friend the Secretary of State for Northern Ireland and I set out the budget allocations for each Northern Ireland department in a Written Statement which I placed before your Lordships’ House on 24 November 2022. The purpose of this Bill is to put those allocations on a legal footing. Setting this budget was not an easy task. Northern Ireland departments and Ministers who were, up until 28 October, in post had not been operating within confirmed spending limits and had not implemented plans to deal with looming overspends. As a result, we found ourselves facing an unenviable £660 million black hole in the finances—subsequently reduced, through discussions and agreement, to £330 million.

In facing this situation, we have, in what I would describe as the best traditions of a one-nation Conservative Government, prioritised spending on health and education, with an overarching objective of protecting the most vulnerable. This budget therefore increases education spending by just under £300 million and delivers a £786 million increase on non-Covid-related health spending. I suggest that these are not insignificant sums. We are acutely aware of the difficult decisions that now have to be taken in relation to health and education, and right across the spectrum in Northern Ireland, to live within this budget but the Government believe that, in the very challenging and difficult circumstances in which we find ourselves, it is a fair outcome.

Clearly, consideration will now need to be given to a sustainable and strategic budget outlook for the financial year 2023-24. If the Executive have been restored in time to set a budget for 2023-24, the UK Government will continue to work constructively with executive Ministers, including on a sustainable budget that delivers for the people of Northern Ireland and supports economic growth. However, if the Executive have not been restored, we are working closely with the Northern Ireland Civil Service to prepare for next year’s budget. I assure the House that the Government’s priority for that Budget will be to deliver a fair outcome for all taxpayers and citizens in Northern Ireland.

The pressures on Northern Ireland’s finances did not arise overnight. Many noble Lords will recall that both the Stormont House and fresh start talks in 2014 and 2015 were, in large part, driven by the need to deal with the Northern Ireland Executive’s finances. The Northern Ireland (Stormont Agreement and Implementation Plan) Act 2016 included provisions to introduce further transparency around the budgetary process, including requiring the Finance Minister to set out how any draft budget would not exceed the money allocated to the Executive from the UK Government. Despite this, the Government still inherited a budget halfway through the year with, as I said earlier, a projected overspend of some £660 million, reduced to some £332 million following work between my officials and the Northern Ireland departments. Notwithstanding that, the situation is still, however, unacceptable and the unsustainability of Northern Ireland’s finances cannot continue.

I should point out that there are some who would have us believe that the main problem is that the UK Government have somehow starved Northern Ireland of cash. I would of course strongly refute that argument. Spending per head in Northern Ireland is already the highest of any region in the United Kingdom. In the spending review of 2021, which set the block grant for three years, Northern Ireland received record levels of financial support—the highest since the restoration of devolved government in 1998-99. Funding per head in Northern Ireland is some 21% higher than the United Kingdom average.

It would therefore be simplistic in the extreme to say that the issues facing Northern Ireland as we stand here today are simply down to a perceived lack of money. Rather, the difficulties in which Northern Ireland departments now find themselves are the result of difficult decisions not being taken—not just this year, but in successive years before it. I would add that that situation was of course not helped by the lack of a functioning Executive and Assembly between 2017 and 2020. The Bill before the House will place the budget that I outlined on 24 November last year on to a legal footing. It will allow departments and other listed public bodies to continue to deliver public services into the first half of the 2023-24 financial year, through a vote on account.

I turn briefly to the individual clauses. Clauses 1 and 2 will authorise Northern Ireland departments and other specified public bodies to use resources amounting to £26,656,975,000 in the year ending 31 March 2023. This includes cash items such as payment of salaries, the purchase of goods and services, and investment in the construction of new capital assets, as well as non-cash items such as the depreciation of existing assets and making provision for future liabilities. Of that total sum, £24,242,000,000 is authorised for current purposes and around £2.5 billion is authorised for capital purposes.

Clauses 3 and 4 will authorise the Northern Ireland Department of Finance to issue nearly £21.5 billion out of the Northern Ireland Consolidated Fund for this financial year. This is a lower figure than the resources authorised in Clauses 1 and 2 because departments do not require cash for depreciation costs, provisions and other non-cash items.

Clause 5 will authorise temporary borrowing by the Northern Ireland Department of Finance, up to approximately half of the sum issued out of the Northern Ireland Consolidated Fund under Clause 3. This is a normal safeguard against the possibility of a temporary deficiency, and any borrowing authorised under this clause is to be repaid by 31 March this year.

Clause 6 will authorise Northern Ireland departments and other listed bodies to use the income they receive from the specified sources listed in part 3 of their Schedule 1 estimate. The authorisations in Clauses 1 to 6 supersede previous authorisations in the Budget Act (Northern Ireland) 2022 and other legislation. In order to give effect to that, Clause 7 allows the authorisations in the Bill to be treated as having effect from the beginning of 1 April 2022.

Clauses 8 and 9 authorise the use of resources by Northern Ireland departments and other listed bodies amounting to some £17.5 billion over the course of the financial year ending on 31 March 2024. Of that total, nearly £16 billion is authorised for current purposes and around £1.5 billion is for capital purposes. The authorisation for this is a vote on account at 65%, to allow public services to continue to be delivered into the first half of the next financial year. This is greater than usual: 65% instead of 45%. The vote on account does not imply the setting of a budget for 2023-24; its purpose is to allow the use of resources to ensure that services can continue to be delivered, pending the consideration of a budget Bill for the full financial year.

Clauses 10 and 11 authorise the Northern Ireland Department of Finance to issue just over £14 billion out of the Northern Ireland Consolidated Fund during that period. Clause 12 authorises temporary borrowing by the Northern Ireland Department of Finance. Just as borrowing during the current financial year must be repaid before the end of the current year, any borrowing during the next financial year under this clause must be repaid in full before 31 March.

Clause 13 provides for the Bill, if passed, to have the same effect as if it were a budget Act of the Northern Ireland Assembly. Clauses 15 and 16 are minor and consequential.

I will make a short statement on legislative consent. Clearly, we have been unable to secure a legislative consent Motion from the Northern Ireland Assembly given that it is currently not sitting—indeed, if it were, I would hope we would not have needed the Bill at all. But the continued absence of the Assembly and the Executive means that we have been left with no other option but to take action here.

I express my thanks again for the ongoing hard work of the Northern Ireland Civil Service, which now has a responsibility to ensure that Northern Ireland departments live within the budget limits set out in the Bill. I recognise that this is not easy and will require difficult decisions. People in Northern Ireland rightly expect to see those decisions taken at Stormont, and I agree with them. I state again my continued disappointment that, as a Government, we are having to step into Northern Ireland affairs and intervene in this way. I look forward, as I think do noble Lords across the House, to the restoration of the Northern Ireland Executive and Assembly at the earliest opportunity. However, until a functioning Executive return, the Bill will allow public services to continue functioning and help to protect public finances in Northern Ireland. I therefore commend it to the House.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Caine Excerpts

Committee stage
Tuesday 31st January 2023 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I thank the noble Baroness, Lady O’Loan, for bringing forward these amendments, which I think are very helpful. However, she said earlier—the noble Lord, Lord Dodds, referenced it as well—that while many in your Lordships’ House, perhaps everyone, think that this Bill is not fit for purpose and should not be brought, there is an obligation on us to do what we can to improve legislation. That is our role, and I think her amendments today and the way in which she has spoken to them illustrate that sharply.

They are a very helpful amendments because surely at the heart of any investigation is access to information. I was struck by the noble Baroness’s comment about there not being clarity if there is a test or qualification about getting that information, as it can take longer, be more expensive and does not do the job that this clause is probably intended to do.

As we know from other Troubles-related investigations, relevant information can be held by different authorities and different agencies. One of the things that the commission—I say that to save having to go through the initials and stumble over them—will have to do is access that information quickly if it is to gain as complete a picture as possible. I will be interested to hear what the noble Lord has to say and hope that he will view the amendments sympathetically when he comes to respond.

I understand the reasons the noble Baroness, Lady Smith, has put forward the amendments about the affirmative resolution. I think there is a general issue about government regulations; they seem to be heavily weighted. If we were to look at a chart of how many decisions are made or how much legislation can be done by secondary legislation, I think we would see quite a sharp incline in recent years. It is not a big leap from a negative to an affirmative procedure; it just guarantees that it will come before both Houses. But these are quite big issues. If something cannot be in the Bill, and if there are reasons why it has to be done by regulation, then it seems perfectly reasonable to have the affirmative procedure. Will that be enough, given that, as we all know, statutory instruments are an adequate of way of legislating when everything is set out first in the primary legislation? As I understand it, this is about looking at individual cases. I hope the Minister can give some reassurances on that. The noble Baroness, Lady O’Loan, has done the Committee a service by bringing forward these amendments today.

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

My Lords, I am grateful to those noble Lords who have put forward these amendments. In responding, I am conscious of the experience in these matters of the noble Baroness, Lady O’Loan, both in her role as police ombudsman and in the subsequent investigations and reviews that she has carried out.

The noble Baroness’s Amendments 37, 40, 191 and 197 aim to redefine the disclosure requirements of certain relevant authorities by, as she pointed out, creating a new tier of “special relevant authority”. This would mean that any authorities left in the “relevant authority” category, such as the ombudsman or the chief constable of the PSNI, would be required to disclose all material to the ICRIR regardless of whether or not it is reasonably required, while certain other agencies, such as MI5 and MI6—the Secret Intelligence Service—would be able to rely on the provisions as drafted, being required to provide information only where reasonably required.

The Government’s view is that the amendments are unnecessary, as we are clear that the disclosure provisions in the Bill already go further than ever before in statute in terms of putting relevant authorities under a duty to disclose information if it is reasonably required by the commission for its investigations.

[Baroness O’Loan (CB)]

I thank the Minister for giving way; I know that it is late. I just want to let him know that, as police ombudsman, I had a power to require information. There was no requirement of reasonableness in the requests; clearly, the requests were reasonable, but there was no requirement for them to be so. This is a new requirement.

[Lord Caine (Con)]

I totally accept what the noble Baroness says about her experience as police ombudsman; I think that it has been less straightforward in the case of information from other bodies over the years. That is why the Government have placed this obligation on bodies to disclose information, which goes further than ever before. Indeed, the provisions directly mirror those included in the draft legislation to give effect to the 2014 Stormont House agreement, so they have been around for some time, certainly in draft form.

The noble Baroness will be aware that “reasonableness” is not a term created or policed by the Government. It is widely used and understood; it is included in other legislation, such as the Finance Act 2008; and it has a specific purpose in terms of creating obligations on others to provide information. The law requires all public bodies to exercise their powers reasonably and proportionately. It is open to authorities to challenge an assessment of reasonableness, of course, but our expectation is that the ICRIR would request the information only if it were reasonably required for the purposes of discharging its functions, so any challenge would be likely to fail if the commission followed this practice. Ultimately, it will be for the courts to decide whether the commission has acted reasonably in any case.

On Amendments 39 and 185, which would add to the list of individuals who may be required to assist the commission in handling information that they have disclosed under Clause 5, the Government are confident that all relevant individuals are already listed in the legislation. However, I am happy to take that away and look at the clause again.

As the noble Baroness, Lady Smith of Newnham, pointed out, Amendment 145 in her name—I welcome her to our debates—would require regulations regarding the retention of biometric material under Clause 31 to be made by the affirmative rather than the negative procedure. I assure her that the Government take their international obligations in this area—and in other areas, I hasten to add—very seriously. We are confident that our approach to the retention of legacy biometrics, if I can use that term, is compliant with the relevant European Court of Human Rights rulings in this area.

To remain compliant at all times, the commission will need to carry out regular, periodic reviews of the data that it retains for the purposes of its investigations, as set out in Clause 31(2)(a). This will of necessity involve the commission making decisions regarding the deletion or retention of certain data based on strict proportionality criteria that we will outline in secondary legislation. We feel that the negative procedure will provide an appropriate level of scrutiny for a power such as this, that is very limited in scope in the sense that it exists solely to ensure ECHR compliance in this area through the appropriate management of biometric material retained by the commission. The regulation-making power ensures that the commission retains only a limited category of biometric material in prescribed circumstances, for a limited purpose and a limited amount of time, after which it will fall for deletion.

The power allows only relevant biometrics to be retained and used by the commission to ensure there can be effective Article 2 investigations, while also ensuring compatibility with the provisions of Article 8 relating to the right to a private life. It also allows for biometric data no longer needed by the commission to be deleted, again to ensure ECHR compliance. So, in our view the power is proportionate and does not, for example, enable the commission to take new biometric data from individuals, but if the noble Baroness still has concerns about this, again, I am very happy to sit down with her. On that basis, I urge her to withdraw the amendment.

[Baroness O’Loan (CB)]

I beg leave to withdraw the amendment.

--- Later in debate ---

Moved by

[Lord Caine]

84: Schedule 4, page 64, line 39, leave out “£1,000” and insert “£5,000”
Member’s explanatory statement
This increases the maximum penalty for failure to comply with an information notice under section 14 from £1,000 to £5,000.

[Lord Caine (Con)]

My Lords, I plan to be brief. At the introduction, the Bill made provision for amendments to the early release scheme under the Northern Ireland (Sentences) Act 1998, with the effect that a person convicted of a Troubles-related offence could, in future, apply for immediate release from prison, regardless of the amount of time served, thus removing even the current two-year minimum requirement. This reflected a focus on reconciliation. But a number of Members in the other place, as the Bill was going through, questioned the rationale behind this approach, arguing that it would not encourage people who may have information to come forward and provide it in seeking immunity. This is a very fair and reasonable challenge, and one which was also raised by a number of interested groups and parties during the engagement that I have been extensively carrying out since the summer. I have therefore carefully reflected on this, and I am pleased to bring forward an amendment that will address this issue and, in the Government’s view, strengthen the Bill. Under these amendments, only certain categories of people will be eligible for the early release scheme in future. These are people who were convicted before the establishment of the Bill’s conditional immunity scheme as well as people who were convicted after it but following a prosecution that began before.

--- Later in debate ---

[Lord Murphy of Torfaen (Lab)]

These are reasonably sensible amendments, but they go only so far. The points made by the noble Baroness, Lady O’Loan, and the noble Lord, Lord Bruce, are valid and we look forward to the Minister’s reply. If these amendments came to a vote, it is highly unlikely that we would oppose them. It was quite good that the Minister had, for example on Amendment 84, listened to the victims’ commissioner. We look forward to his reply.

[Lord Caine (Con)]

I am grateful to those who took part in this short debate. By way of a brief response, I disagree on the point about incentives. I have spoken to a number of victims’ groups and political parties that, while they might not like other parts of the Bill, have no issue with this and think it a sensible strengthening of the incentives to co-operate and the disincentives not to.

Having reflected on the earlier versions of the Bill, the Government think it right and proportionate that somebody who chooses not to co-operate with the commission on an investigation, if they are subsequently prosecuted and convicted in the normal way, should face and be liable to a full sentence. In many of the circumstances covered by this legislation, such as the Troubles-related offences, that could mean a sentence of life imprisonment. As a matter of common sense, that would be a stronger incentive to co-operate than an individual perhaps serving two years or no sentence at all. This is a sensible and proportionate change to the Bill which should genuinely encourage people to co-operate. If they do not co-operate, they do so in the knowledge that, if someone comes knocking on their door and they are convicted, they are liable for a lengthy prison term. I withdraw the amendment for now.

Amendment 84 withdrawn.

--- Later in debate ---

[Baroness Smith of Basildon (Lab)]

My Lords, having had a long debate, we are now moving at pace. These are interesting amendments. Just as the immunity debate went to the heart of the Bill, in many ways this one does as well. Although we have not seen victims mentioned much in the Bill, it is entitled the Northern Ireland Troubles (Legacy and Reconciliation) Bill, and if victims are not at the heart of what we do here, it is hard to see how reconciliation follows. That is what prompted the amendments before us today.

I have said before in this place that one of the most profound experiences I had was as victims and survivors Minister for Northern Ireland, which I did for about two and a half years. There is not a homogenous design whereby you can say, “Victims want this.” Different people have had different experiences, and different things have happened to them in different ways. There is not one experience whereby everyone can say, “Yes, that is how I feel; this is what I want.” They are looking for different things, and that is what makes this so complex and these amendments so important.

As has been noted, some will be saying, “We want justice. We know who is responsible. There should be action.” Others say, “I just need to know the truth. I want to know what happened”, because the agony of not knowing is so great. In some cases, knowing what happened creates additional agony. I remember a discussion where the truth for one individual was going to be awful. They wanted it and needed it, but it was not a pleasant experience for them in any way at all. Others just want acknowledgement that this is what they and their families went through. When we are talking about victims and survivors, one thing that was brought home to us all by those we met during the process of this Bill is that the trauma of what happened can survive several generations. It is not just the individual who has been through the experience of the Troubles; the family can be affected, whether financially, emotionally or physically.

This group of amendments is really helpful and goes to the heart of what the Bill should be about. Possibly the biggest failure of the Government is not recognising that. There have been a lot of warm words for the Minister, and they are well deserved, but he is there to support the Government in defending this Bill and he may be disappointed that only one member of his party is behind him to offer support. We have all been there; it can be a lonely experience on the Front Bench in those circumstances—although I am not sure I have ever been in quite the same circumstances. That is why, if he cannot say tonight that he will accept these amendments, it would do the Government well if he can say what he will bring forward to address the issues that have been raised.

My noble friends Lord Murphy and Lady Ritchie have signed these amendments, which allow family members to provide a victim impact statement as part of the review process. Without that, this will be one of the biggest failures of the Bill—and we have mentioned many tonight.

The Bill allows family members to refer cases and make general representations, but it is not clear what the family member gains from that process. If, as the noble Baroness, Lady Suttie, has proposed, the Bill explicitly allows statements and for the proper resourcing of that process, that would go some way towards some resolution of that issue. It would not go the whole way; I think the Bill is so badly drafted and ill-conceived that it cannot address all the issues. The noble Lord made the point that has been made many times today in every part of the Bill: we would not start from here, but as Members of this House we have a duty to do what we can and fulfil our role—though I have been struck by how many of the individuals and organisations that I have spoken to have said they almost feel they are compromising their own integrity by bringing forward and suggesting amendments and changes to us.

I commend my noble friend Lord Hain on the different approach that he has taken. It is not one that I had considered before and I would be interested to hear the Minister’s comments on it. My noble friend is suggesting that we amend the code for prosecutors, and he talks about how that could be done: it would take account of

“the likelihood of the accused re-offending … the time elapsed since the offence … the volume and seriousness of the crime, and … the character and behaviour of the accused since offending.”

The code would have to

“ensure that the views, interests and well-being of victims, and of the families of deceased victims, are considered when determining whether criminal proceedings should be instituted for a Troubles-related offence.”

I will be interested to hear what the Minister has to say on that tonight. If he cannot give any satisfaction then I hope he will agree to have further meetings so that we can progress it. It seems to me that this is one of the biggest failings of the Bill, and it is what has caused so much upset and unhappiness among those who will be affected by this legislation.

[Lord Caine (Con)]

I am grateful to noble Lords. When the noble Baroness, Lady Smith of Basildon, and my noble friend Lord Morrow were referring to the lack of members of my own party sitting behind me tonight, I could not help but reflect on the famous poster, with which noble Lords behind me at least will be very familiar, from the period of the third home rule Bill, with the caption:

“Deserted! Well—I can stand alone.”

[Lord Weir of Ballyholme (DUP)]

Good choice.

[Lord Caine (Con)]

Maybe, like Ulster in 1912, I have no choice.

I appreciate the sentiments behind these amendments. The noble Baroness, Lady Smith, referred to the fact that victims groups are not a homogenous group of people. People are looking for different things. She referred to her time as victims Minister. As I have said before, I have probably met more groups over many decades than any person, certainly any politician, who does not live in Northern Ireland.

Yesterday was the 51st anniversary of the events of Bloody Sunday. I vividly recall that, a few weeks after David Cameron responded to the Saville inquiry in June 2010, I went with the then Secretary of State to the City Hotel in Derry, where we met members of the Bloody Sunday families. It will not be any surprise that they did not all speak with one voice. Some of them thought that what had happened with Saville and David Cameron’s response was fantastic: “We can now move on and get on with the rest of our lives”. Others said to us, “It was fantastic, we really appreciate it, but now we want to see the next phase of this, which is prosecutions”. I have referred to the later time when it came to taking a decision on that. Another group—by far the smallest—said to us, “Well, the Saville inquiry did not finger Edward Heath, Brian Faulkner or the military top brass and so on, therefore it’s a whitewash and, 12 years and £200 million later, we need another inquiry”. So I was struck that, even on an issue such as that, where most people suggest that the Government got it right in June 2010, not everybody was satisfied and people wanted different outcomes.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Caine Excerpts

Committee stage
Tuesday 31st January 2023 Lords Chamber

[Lord Murphy of Torfaen (Lab)]

My Lords, this is an interesting and timely debate. I join many of your Lordships in thanking the Minister for his engagement on this Bill. It does not always happen, but it does in his case, and we thank him for that.

I also thank my noble friend Lord Browne, who introduced his amendment extremely ably, as I would expect, but also forensically. He pointed to the issue of independence, but in reality this is also about confidence. Independence means confidence, and a lack of independence means a lack of confidence. The system for appointing different people has been fraught with difficulty over the years, because those appointments have lacked the confidence of one side of the community or the other. Your Lordships referred to international comparisons, and the reason why people of international repute have been involved in Northern Ireland over the years is to try to ensure that all the people of Northern Ireland had confidence in them. When I was Secretary of State, we appointed Judge Cory to look at various inquiries. It was important that a Canadian judge—in his case—was involved.

If more people in Northern Ireland are to accept this Bill—I am sure it is not accepted at the moment—one possibility is to look at how the commissioner is appointed and who it should be. The Secretary of State has far too many powers in the Bill generally, and on the appointment of the commissioner specifically. When I was the Secretary of State, I tried to shed responsibilities so that they rested with the people of Northern Ireland themselves. I hope that, in the next couple of months—perhaps in a couple of years—we see the restoration of institutions in Northern Ireland. But responsibility for these matters should be taken by the people who were elected in Northern Ireland, not a Secretary of State who represents a constituency in Great Britain. We should be thinking about how there can be confidence in such an appointment.

There may be different ways in which we could ensure independence. The Judicial Appointments Commission in Northern Ireland could do it. Committees of this House and the other House could be involved in the scrutiny; there is merit in what the noble Lord, Lord McCrea, said about that. But it should be transparent and open, and it should certainly not take place through a British Secretary of State, who I hope will eventually have to pass powers to legislators and others in Northern Ireland.

There is another reason too: all the international criticism of this Bill—whether from the Council of Europe, the United States, the United Nations, bodies such as Liberty and all the rest—is about the inadequacy of the Bill’s compliance with human rights. It strikes me that the lack of independence in the way the commissioner is appointed is seriously linked with those concerns. In other words, if there were a more independent system of appointment, perhaps it would be more human rights compliant.

Even though the report is lengthy, I am not terribly convinced by the Government’s reasoning on the Bill’s compliance with the ECHR. Your Lordships will of course remember, as we have said consistently, that in a few months’ time it is the anniversary of the Good Friday agreement, which is based on compliance with the European Convention on Human Rights. This is therefore a timely and important debate, and we very much look forward to the Minister’s reply.

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

My Lords, I am very grateful to the noble Lord, Lord Murphy of Torfaen, for his kind words, and to other noble Lords for their engagement on this Bill. I think we are meeting again very shortly, almost immediately after Committee stage concludes, and I will continue to engage closely with all interested parties, bodies and noble Lords across the House on this legislation.

With one thing the noble Lord said, I could not agree more: to be honest, I would be more than happy for the people and the Assembly of Northern Ireland to deal with most of the matters in the Bill. However, I set out to the House at Second Reading and, to some extent, last week in Committee, why and how it went from being primarily a Northern Ireland Executive and Assembly responsibility to a UK Government one. Martin McGuinness and Peter Robinson came to see the then Secretary of State after Stormont House and said, “This is all far too difficult for us to do at Stormont. Please will you do it all at Westminster?” We agreed.

I also agree with those noble Lords who have argued that central to the effective delivery of this legislation is the need for an independent body to carry out reviews, including investigations, and to grant, where the tests are met, immunity from prosecution. The Government fully recognise the need for commissioners to have credibility, expertise and legitimacy, so that effective reviews and investigations can be carried out and information provided to families as soon as possible. The UK-wide nature of the legislation provides for the appointment of a person who holds or has held high judicial office across the United Kingdom. It would therefore not be appropriate, in our view, for the appointment function to sit with the Northern Ireland Judicial Appointments Commission, which, by definition, is concerned solely with judicial appointments within Northern Ireland.

I respectfully disagree with the noble Lord, Lord Browne of Ladyton, and others who have spoken about the independence of the commissioner if he or she is appointed by the Northern Ireland Secretary. The Northern Ireland Act 1998, as the noble Lord alluded, provides the Secretary of State with the power to appoint the commissioners of the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland. The Inquiries Act 2005, passed by the Government of which the noble Lords, Lord Murphy and Lord Browne, and the noble Baroness, Lady Smith of Basildon, were members, provides for the appointment of an inquiry panel by a Minister.

My experience of the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland is that they are fiercely independent of government. I think nobody would dare suggest that the fact that they are appointed by the Secretary of State for Northern Ireland makes them in any way in hock to government. They carry out their duties with total independence and they are not slow, as we have seen in respect of this legislation and other legislation which has recently been before your Lordships’ House, to voice their criticisms and their opinions vociferously. Therefore I simply do not accept that appointment by the Secretary of State somehow limits or inhibits the independence of the commissioners.

Another example to which I could refer is that I was involved as a special adviser in the setting up the independent review into the on-the-runs administrative scheme back in 2014 which was conducted by the noble and learned Baroness, Lady Hallett, then Lady Justice Hallett. She was appointed in 2014 by the Northern Ireland Secretary in consultation with the Lord Chief Justice at the time. The appointment process did not in any way impact on the independence of the review.

To give a further example, in the absence of a sitting Executive in 2019, it was the then Secretary of State for Northern Ireland, Karen Bradley, who appointed the current Police Ombudsman for Northern Ireland. I do not think anyone would remotely suggest that Marie Anderson is influenced by His Majesty’s Government because she was appointed by the Northern Ireland Secretary, any more so than any of her distinguished predecessors—I am looking towards the noble Baroness, Lady O’Loan, as I make those comments.

The noble Lord, Lord Browne of Ladyton, and the noble Baroness, Lady O’Loan, referred to some of the overarching powers of the Secretary of State for Northern Ireland. The noble Lord, Lord Browne, raised specific concern over the winding-up power under Clause 33. I remind noble Lords that the Secretary of State has a similar wind-up power contained in the Inquiries Act 2005, which was passed by the previous Labour Government. In respect of this legislation, the Secretary of State for Northern Ireland may wind up the commission via an affirmative procedure that would have to be debated by both Houses of Parliament. The Government believe that it is for Parliament to have the final say in the potential winding-up and abolition of what Parliament has created. However, the winding-up order will be laid only when the Secretary of State is satisfied that it is has delivered on its functions.

The noble Baroness, Lady O’Loan, referred to some of the Secretary of State’s powers in relation to national security. I hardly need to remind her, given her various roles over the years in Northern Ireland, that the Northern Ireland Secretary ultimately has responsibility for national security in Northern Ireland. The powers contained in the Bill are very reflective of what was proposed in the Stormont House agreement and the draft legislation that accompanied it. The power is not in any way extraordinary. I hesitate to remind her that Section 65 of the Police (Northern Ireland) Act 1998 also requires the police ombudsman to have regard to guidance given by the Secretary of State on matters relating to disclosure and national security.

The noble Lord, Lord Hogan-Howe, raised an important point, and I will try to deal with it. Clause 30(2) stipulates that the Secretary of State may by regulations make provision about the holding and handling of information by the commission. This is about ensuring that information is held securely and destroyed when no longer needed. It is not intended to be a power to place restrictions on the use to which the information can be put nor is it a power to restrict the use of information as evidence in a prosecution. I hope that goes some way to answering the noble Lord’s query.

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[Lord Hain (Lab)]

My Lords, I too pay tribute to the Minister for his open door and willingness to engage. I hope to knock on that door in the next few days to persuade him to support the Operation Kenova amendments.

[Lord Caine (Con)]

The noble Lord is always welcome.

[Lord Hain (Lab)]

I thank the Minister. However—this is no criticism of him—I think that he is doing his very best to defend the indefensible and that if he were the architect of the Bill, it would not look like this. I am not expecting him to agree with me, although it would be interesting if he did. I see that he has zipped his mouth, which perhaps says it all.

I will speak to Amendments 112 and 124 in my name and those of the noble Lord, Lord Cormack, the noble Baroness, Lady Suttie, and my noble friend Lady Ritchie. Once again, I am grateful to them for their support.

The Bill grants immunity, in effect giving an amnesty, to people who may have committed horrific crimes. Victims and survivors find that most difficult to take. The Bill is opposed by every political party and every victims’ group in Northern Ireland—an unprecedented unity between people who almost never agree with one another, even on the definition of a victim.

Before turning to the substance of the amendments, I will briefly refer back to our debate last Tuesday on Amendment 72 in my name, which for convenience I will call the Operation Kenova amendment. In his response, the Minister made a number of assertions in relation to the upscaling of Operation Kenova to deal with the outstanding legacy cases which I am afraid cannot go unchallenged and need correcting.

I have had access to independent advice which supports the view that Kenova can be upscaled and expedite investigations and would represent real value for money in such a role. If the alternative is some kind of cheapskate, back-of-an-envelope process, of course that will be cheaper. But I hope your Lordships’ House is seeking and will express unity on a proper process that investigates the past and includes within it a crucial truth recovery priority for victims. As we have seen in the past, in a very small minority of cases the evidence uncovered would qualify for consideration of prosecution.

Inevitably, that will be more expensive than a back-of-the-envelope operation, but Kenova represents real value for money. I will write to the Minister before Report explaining all this and copy it to any interested Members of your Lordships’ House. It is very important to do so because the Minister’s arguments against modelling the Bill on the hugely successful and popular Operation Kenova are at best specious and, I am afraid, misleading to many. Granting immunity—an amnesty—to perpetrators of terrible crimes drives a stake through the rule of law. I am afraid it is at the core—the rotten core—of this odious legislation.

At Second Reading, I raised the case of 18 year-old John Molloy, who was stabbed to death in a random sectarian attack near his north Belfast home in August 1996. I asked the Minister to explain to John’s parents, Linda and Pat, why he and his Government see a difference between John’s sectarian murder in Belfast and a racially motivated murder in London or in his own home city of Leeds—both horrific crimes. Linda and Pat are still waiting for an answer.

I can do no better than to quote from a powerful article in the Belfast Telegraph on 24 January. In it, Linda, John’s mother, gets to the heart of the matter:

“‘It feels like John has been archived and forgotten about. You’re talking about a child’s life here and the repercussions of what we’ve gone through. How dare they treat my son as a number? Because that’s how we feel; he’s just another number, and they haven’t even tried. John’s murderers are walking the streets while he’s lying in the cemetery.’”


Quoting Dr Sandra Peake, the article goes on:

“‘Why does John’s life mean so little that the taking of it will no longer be of any interest to a state whose first duty should be to protect its citizens? If this legislation is passed … the person who stood over John as he bled to death on a cold, hard pavement will have the protection of the state. And to earn it, all they have to do is to tell the story of that night to “the best of their knowledge and belief”. Once they do that, the lifelong protection of the state is extended to them as if nothing happened on the night of 10th of August 1996. It will be as if John Molloy never existed.’”


We hear much in the legacy debate about the rewriting of history. What is giving legal absolution to those who murdered John Molloy and so many others like him if not rewriting history? The Government seem perplexed when victims and survivors call this perpetrator- friendly legislation.

I have heard it argued that, over the course of the peace process, decisions have been made that have radically changed fundamental aspects of the criminal justice system. That is true. Sentencing legislation which meant that those convicted of Troubles-related offences would serve only two years in prison before being eligible for early release is cited as the prime example. Those who point to it claim that the immunity granted in this Bill is simply another manifestation of Northern Ireland being a place apart, but I would contend that this is of a radically different order.

Almost 25 years ago, the people of Northern Ireland, including many thousands of victims and survivors, were given a choice: they could vote for the Good Friday/Belfast agreement, in the knowledge that the early release of prisoners was a consequence, or they could vote against it. For many victims and survivors, that was a cruel choice, and every Member of this House who lives in Northern Ireland or who has had the privilege of serving there as a Minister or in another capacity will have met and will know people who had to make it. I have sat with men and women who had to make that agonising choice, who lost loved ones or live with catastrophic injuries, and I have spoken with and listened to them. Many—possibly most—victims and survivors voted “Yes”. There were those who could not bring themselves to vote for a settlement that contained that provision—I am sure that some are sitting in this House—but the key point is that they had a choice; in this legislation, victims and survivors are denied a choice.

However, they are making their voices heard loud and clear through their political representatives in every party in Northern Ireland, through their churches, their victims’ commissioner, their victims’ groups and their representations to the Irish Government, to the US Administration and directly to this Government. I believe that they want us in your Lordships’ House to speak for them. Recently, the Secretary of State for Defence—

--- Later in debate ---

[Baroness O'Loan (CB)]

I will add to the words of the noble Lord, Lord Cormack, about the options open to the House at present. One of those would be to support an amendment such as the one I tabled at the beginning of Committee, and to decide that the Bill should not proceed until such time as a legislative consent Motion has been obtained from the Northern Ireland Assembly.

With the noble Lord, Lord Murphy, and the noble Baronesses, Lady Ritchie and Lady Suttie, I have indicated that Clause 18 on immunity should not stand part of the Bill. I agree that we have seen limited measures for immunity in Northern Ireland. We saw, for example, the legislative provisions which allowed the information to be supplied for the recovery of the remains of the disappeared, in which situation the information provided could not be used for a prosecution. We also saw the decommissioning of arms, the information gathered as a consequence of which could not be used for a prosecution. But we have not seen the like of this Bill before, and I do not know of any other democracy which has agreed to the like of this Bill before.

We are faced with a situation in which the obligations of the United Kingdom to provide processes for criminal investigation and prosecution, for civil action and for inquests are being removed, and in which immunity is being provided for perpetrators for their previous criminal offences. That is not compliant with our domestic and international legal obligations, which require the provision of processes to enable the investigation and prosecution of offences. For example, we have very clear obligations as high-contracting parties to the European Convention on Human Rights. Under Section 1, we are committed to securing that everyone in the jurisdiction has all the rights and freedoms provided for in the convention. Those rights were incorporated into UK law by the Human Rights Act 1998, although their application, as domestic rights, has been limited somewhat by the jurisprudence of the courts.

In addition, under the Good Friday agreement of 1998, the participants of the multiparty agreement dedicated themselves

“to the achievement of reconciliation, tolerance, and mutual trust, and to the protection and vindication of the human rights of all.”

They stated:

“The tragedies of the past have left a deep and profoundly regrettable legacy of suffering. We must never forget those who have died or been injured, and their families. But we can best honour them through a fresh start, in which we firmly dedicate ourselves to the achievement of reconciliation, tolerance, and mutual trust, and to the protection and vindication of the human rights of all.”


They agreed that

“neither the Assembly nor public bodies can infringe”

the European Convention on Human Rights, and that there should be

“a coherent and cooperative criminal justice system, which conforms with human rights norms.”

However, the Bill does not provide that.

In England and Wales, people seem to be under the illusion that paramilitaries no longer have areas of Northern Ireland under their control—that is not the case. Paramilitaries, both loyalist and republican, are still at work, and they still exercise, on occasion, brutal control in their areas. Since 1998, when the Good Friday agreement was signed, 155 people have been killed, and there have been 1,660 bombing incidents and 2,700 shooting incidents. Over 1,500 people have been arrested under the Terrorism Act, and 235 people have been charged with terrorist offences in the last 10 years alone. Terrorism is alive and well, although not to the scale of previous atrocities.

The mere existence of those paramilitaries means that people who may have information to give which might lead to the arrest and conviction of people for Troubles-related events will, very often, fear to do so, lest they themselves be attacked. The consequence is that it seems that many of Northern Ireland’s terrorists have, by their very existence, created for themselves de facto immunity from prosecution. Now the Government are preparing to enable immunity for those few who may come to fear that prosecution might become a reality.

It is said that the Bill owes its genesis to the statement in the Conservative Party manifesto:

“We will continue to seek better ways of dealing with legacy issues that provide better outcomes for victims and survivors and do more to give veterans the protections they deserve.”


Victims across the UK have stated that the Bill is not victim-centred and that it does not provide better outcomes for victims; rather, it deconstructs the existing legal framework, creating a web of protections for perpetrators. There can be no doubt that the Bill is intended to give veterans protection, but most veterans who served in Northern Ireland did not commit criminal offences—and certainly not the most serious Troubles-related offences created by the Bill.

I have mentioned before that it is said that the state kept records while the terrorists did not. However, the state forces did not keep records of instructions not to investigate, not to transmit information or intelligence to investigators, not to arrest or to interview suspects, to lose evidence, or to contaminate physical evidence so that it would be inadmissible. Those things emerge only through painstaking investigation, usually because there are gaps in the chain of evidence, and sometimes people come forward to explain that they tried to do something but were stopped. Those processes enabled murderers to continue their nefarious business, sometimes as agents of the state, despite the best-intentioned processes, such as the passing of legislation by Parliament designed to regulate and to help in this area.

For the record, it is not the case that state actors, such as soldiers and agents, are more likely to be prosecuted than terrorists—and, of course, some state agents were terrorists. According to a House of Commons Library research briefing paper of May 2022, four soldiers have been convicted and sentenced following the Troubles, and one case is currently before the courts. Some 300,000 soldiers served under Operation Banner, which continued until 2007. Since 2011, 26 prosecutions have been brought by the Public Prosecution Service, 21 of which involved republicans and loyalists.

The provisions of the Bill suggest that the commission, and on very limited occasions, to some extent, the criminal law, is supposed to fill the vacuum left by the removal of criminal investigation processes, civil actions to recover damages for harms caused and inquests. Until now, we have had processes which are compliant with all our legal and moral obligations. If this Bill is passed, we will no longer have such processes.

The Government have stated that their aim is to get to those people who need it information which might help them and to achieve reconciliation. The Bill, unfortunately, has only one provision for reconciliation, and it relates to memorialisation. The response of the political parties, the victims’ groups, the NIHRC, the Equality Commission and all the international organisations, including the UN High Commissioner for Human Rights, do not indicate any confidence that the immunity provisions will actually achieve what the Government are aiming for. The general response that I have encountered in Northern Ireland, and among those British victims to whom I have spoken, is: “Why would they tell what they know? They don’t need to. They just need to sit it out”.

There is a view that immunity clauses and the provisions about early release et cetera create a perpetrator-focused regime, under which perpetrators will be able, should they wish to do so, to provide information which really will not be capable of challenge, and through which, should they avail of it, they will be free from all fear of prosecution. Clause 18 will enable an offender to provide a statement to secure immunity for prosecution for murder and other serious crimes which comprises limited information; information which has already been supplied in other circumstances, and even information which is already in the public domain. The information must be true, but there is nothing which says that it must be complete. Will the Minister tell the House whether there is a requirement that P should tell the whole truth?

The provisions in Clause 18(11) state that the commission can grant immunity for not only all identified offences but

“all serious or connected Troubles-related offences which are within a description determined”

by the commission. Will the Minister tell us what this means? I have read it several times and am trying to work out what those offences might be.

[Lord Caine (Con)]

Sorry, I missed that.

[Baroness O'Loan (CB)]

It is complicated. Clause 18 provides that the commission can grant immunity for not only all identified offences but

“all serious or connected Troubles-related offences which are within a description determined”

by the ICRIR. Will the Minister tell us what that means and what types of offences are envisaged by these provisions?

Clause 18 does not provide that the commission must investigate whether there is information available which may undermine or assist the verification of P’s account. The commission will have to make the decision on the basis of the information supplied by P, the information already in its possession and P’s statement that to the best of his knowledge and belief it is true.

Clause 18 is fundamentally flawed. It is in contravention of our legal and moral obligations. It is actually offensive to those who are expected to believe that the perpetrator has fulfilled his obligation to provide complete information. My experience as Police Ombudsman for Northern Ireland, and even as chair of the Daniel Morgan Independent Panel during my service on the independent steering group for Kenova, has shown that perpetrators very often do not tell the whole truth even when they are swearing that that is what they are doing. Their information is frequently disproved by other available information when the necessary investigation occurs.

One of the most questionable things about the Bill is that, under Clause 18 and government Amendment 85, and the new schedule to follow Schedule 4, a perpetrator of Troubles-related sexual offences, which includes attempted sexual offences, cannot be granted immunity but immunity will be available for murder, and for things such as dropping concrete blocks on people’s limbs, shooting them in the knee so that they will live their lives with constant pain and disability, or other forms of torture. Paramilitaries were known for torturing people to confess to that which they had not done so as to justify their subsequent murder, with bodies left mutilated and naked on country roads as a warning to others, or even concealed for ever so that they became disappeared. These are the kind of offences for which the Government intend to grant immunity from prosecution in return for information. The big question is whether the commission would ever really be in a position to know that the whole truth, or even a semblance of the truth, had been provided, even if the proposed amendments are accepted. For this reason, Clause 18 should not form part of the Bill.

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[Lord Murphy of Torfaen (Lab)]

My Lords, this has been a very impressive, rather stunning debate. I have tabled Clause 18 stand part, which would effectively omit immunity from the Bill. The noble and right reverend Lord, Lord Eames, quite rightly mentioned that this debate, and this and subsequent clauses, are at the heart of the legislation. Without them, there would be no Bill and no argument. If anybody reads in Hansard, or watches on television, the last two hours of debate in your Lordships’ House—and I hope they do—they will see how strong the feeling is across these Benches. This is not just because people do not like it but because noble Lords have spoken from deep experience over decades in Northern Ireland, from living there, being Ministers there, or whatever it might be, unanimous in the belief that this immunity, this amnesty—they are the same thing—should be dropped.

The other unanimous view in the debate was that the legislation completely ignores the victims: it is not about them, whereas it should be. Looking back over the last 25 years—particularly, I suppose, at the agreement—as I was saying to someone today, there were a number of things that we could have done and did not. We did many things when we introduced the agreement, but we could have improved on how we dealt with victims. In the years that followed, there were brave attempts: the Eames-Bradley review and others all tried to put right that which was not right a quarter of a century ago. What is certain is that this legislation does not. To the contrary, it makes things worse. Over 25 years, I have never experienced such unanimity on a difficult issue like this in Northern Ireland—I have experienced much disunity—so it cannot be right that we go ahead.

The noble Lord, Lord Cormack, made the interesting point about whether we should go ahead with the Bill, as it is so bad. Then the noble Lord, Lord Hain, the noble Baroness, Lady O’Loan, and others put their amendments forward, all first class with excellent speeches. They give an opportunity to improve it. Revocation of immunity, conditional immunity and licensing around immunity would all certainly improve it. The whole issue of trying to improve it was discussed last week in our first day of debates on Kenova. That is a dilemma for us in this House. We could have done nothing, let the Bill go through on the nod, and said that it was so bad that we would have to wait for a change of Government to repeal it, which the leader of my party has said that he will do. But there is a duty on us to try to ensure that it is not as bad as it is at the moment when it leaves this Chamber and goes back to the other place.

This part of the Bill in particular goes fundamentally against the rule of law. If I thought for one second that we could salvage some of this, that would be all well and good. But my feeling is that the Government simply want to go ahead, come what may. The amendments that they have put forward are all right, but they do not go far enough. My plea, and, I am sure, that of everybody in this Chamber, is to drop it.

[Lord Caine (Con)]

My Lords, I would like to say that I will try to be brief, but I fear that that might be impossible in response to a debate that has lasted for one hour and 58 minutes. I think the only debate that has lasted longer since I joined your Lordships’ House in October 2016 was on one of the amendments to the European Union (Withdrawal) Bill from my noble friend Lord Patten of Barnes, which lasted longer than two hours.

This has obviously been an extensive debate. I say sincerely that I am grateful to all those who have taken part. Noble Lords are absolutely right that these clauses and amendments go to the heart of the legislation before the Committee. I hope that noble Lords will forgive me if I take longer than normal in trying to respond to as many points as possible, in the knowledge that I will not be able to deal with everything but will try my best.

I start by expressing my gratitude to my noble friend Lord Bew for his kind words at the outset of this group some time ago. He and others who have spoken were absolutely right to draw attention to occasions in the past when quite extraordinary changes have been made to the criminal justice system in Northern Ireland: the noble Baroness referred to the decommissioning Act of 1997, the location of victims’ remains Act of 1999, and the early release scheme in the 1998 agreement and the subsequent Northern Ireland (Sentences) Act—the latter have caused so much difficulty, not least for my noble friends on the Democratic Unionist Benches. Those remind us that it is far from unknown for changes to be made to the normal process of the criminal justice system in Northern Ireland.

My noble friend Lord Bew referred to the importance of the commission following best practice in carrying out reviews and so on. I assure him that it is already under a clearly defined obligation in Clause 4(1)(b) not to do anything which

“would risk putting, or would put, the life or safety of any person at risk”.

It is the Government’s view that this safeguard is wide enough to offer protections of the kind to which he was referring.

A large number of amendments in this group, the vast bulk of them, consider the immunity process. It is worth reflecting at the outset that the Written Ministerial Statement of March 2020 and Command Paper of July 2021, both published by my right honourable friend Brandon Lewis when Secretary of State, envisaged a form of unconditional closure of cases which would apply to all Troubles-related offences, including offences carried out by members of terrorist organisations and the security forces. I am on record as saying that I do not support, and have never supported, a blanket statute of limitations. My position has not changed, so, as I said in the House last week, if the Government were still pursuing the position from the Command Paper of 2021, I would not be standing here taking the Bill through.

The point is that the legislation before us today is very different. Rather than a statute of limitations, it provides for a conditional immunity model whereby immunity from prosecution will be granted only on a case-by-case basis, and will depend on individuals providing an account that is assessed by the commission, using all the evidence available to it, to be true to the best of their knowledge and belief. I will go into some of the points raised in connection to that later. If individuals do not do so, they remain liable to prosecution should sufficient evidence exist or come to light.  I want to be absolutely clear that prosecutions in circumstances where individuals do not engage and co-operate fully with the commission will still be possible.

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[Lord Hain (Lab)]

I of course acknowledge that letter, since I helped get it together, and I have said in debate that criminal prosecutions will be extremely rare. In fact, I think I quoted the HET example of 2,000 cases and three convictions. That is not an issue between us. What we did not have then was proof that the Kenova operation works. Notwithstanding what the Minister said—I look forward to engaging with him—we now have a ready-made model to drop into this Bill and make it palatable.

[Lord Caine (Con)]

I appreciate what the noble Lord has said. I pay tribute to the work of Jon Boutcher, and I hope to see him to discuss it very shortly, but we have yet to see whether prosecutions can take place. There are cases before the DPP which have been sitting there for some time, so we have yet to see any outcome; and we await his first interim report, so we should perhaps exert a bit of caution.

Turning to the noble Lord’s Amendment 112, as I have said, conditional immunity will be granted to individuals who provide an account true to the best of their knowledge and belief. In determining whether that is the case, the immunity request panel, which is chaired by the chief commissioner, who will be a senior judge, retired or serving, will of course exercise professional judgment in that respect. In our view, the noble Lord’s amendment would give the immunity request panel too broad a discretion to refuse to grant immunity, even where the statutory conditions are met, and we do not consider that appropriate. The existence of such discretion would lead to uncertainty over the terms of the process for those who might come forward with information, potentially discouraging their co-operation. Additionally, the application of such a broad discretion may undermine the perception of fairness which is critical to wider public trust.

However, the Government are tabling amendments that will enhance the robustness of the immunity process. My Amendment 139 will create a new offence for people who knowingly or recklessly make a false statement to the commission, including as part of an application for immunity. People convicted of this offence could go to prison for up to two years and face an unlimited fine. I hope noble Lords will agree that that is a significant strengthening of this legislation. Amendment 43 makes an important consequential change to Clause 7, ensuring that a false statement provided to the commission can be used in evidence against the person who provided it if prosecuted for the new offence. Government Amendment 140 proposes that a person convicted of this offence in relation to a request for immunity will automatically lose that immunity and therefore, under provisions in part 2 of the new schedule to be inserted by Amendment 85, will not be able to apply for immunity for those offences again. I hope noble Lords will agree that someone who has been proven to have deliberately or recklessly provided a false account to the commission, potentially frustrating the objective of families to know the truth about what happened to their loved ones, should not retain any immunity granted in relation to that false account.

I am instinctively sympathetic to Amendment 124 from the noble Lord, Lord Hain, which would attach certain licence conditions to somebody granted immunity. I am also sympathetic to the intent behind Amendment 149, in the name of my noble friend Lord Dodds of Duncairn, which would widen the circumstances in which immunity could be revoked. I am very happy to commit to considering these further and sitting down with the noble Lords to discuss them between Committee and Report. I am very sympathetic to the intent behind both those amendments.

Regrettably, I am not able to say the same to the noble Baroness, Lady O’Loan, in respect of Amendment 131, which seeks to remove subsections (7) and (8) of Clause 21, which will allow the Secretary of State to publish general guidance relating to decisions on immunity. Without going over some of the same ground that we discussed in considering the previous group, the Government are very confident that the commission will retain full operational independence in making decisions, including decisions on immunity, and the Secretary of State will have absolutely no say whatever in any specific individual immunity application. The intention of the general guidance the Secretary of State may issue, and to which the commission must have regard, is to help the commission apply the statutory criteria in a consistent and transparent manner when taking decisions. It will be important that we engage with a number of experts, including prosecutors, when developing this guidance so that it is effective and workable. On the previous group, I referred to the fact that there are examples of this in other legislation, including the Police (Northern Ireland) Act 1998, which set up the Police Ombudsman for Northern Ireland.

Turning to the question of whether Clause 18 should stand part of the Bill, I would gently take issue here. The noble Lord, Lord Murphy of Torfaen, said that without this clause there would not be an argument. Unfortunately, one of the reasons we are here is that there was no equivalent Clause 18 in the report compiled by the noble and right reverend Lord, Lord Eames, and Denis Bradley in 2009. There was no such clause in the Stormont House agreement, but there was no consensus around any of those attempts to deal with the legacy of the past. Yes, I agree that this clause is extremely challenging, and I have said on the record that it is extremely challenging for me, but to say that without it, everything would be perfect is probably mistaken.

[Baroness O’Loan (CB)]

I thank the Minister for giving way. I would just like to ask him: does he think that Clause 18 is compliant with all our international legal obligations?

[Lord Caine (Con)]

I dealt with this to some extent last week, but I will go on to deal with it later in the course of my remarks; I hope the noble Baroness will bear with me. I was reiterating that I completely accept that this is the most challenging part of the legislation—I have been completely up front and honest; it is challenging for me, too. However, as I said a few moments ago, the difficult reality is that the prospect of successful prosecutions is vanishingly small, and a single-minded focus on them offers the prospect of achieving very little for families and for wider society.

Again, in response to some of the comments about pausing, pulling or repealing the Bill—which is, I believe, the official position of the Opposition—the difficulty is that, if we go back to square one, it will take at least another five years to come up with something. The reality is that no Government of either colour will go anywhere near this anytime soon, if at all. Maybe I am wrong and the Opposition have a fully fleshed-out and workable model—but the noble Baroness is shaking her head, which indicates that they do not. If they are starting from scratch, I can tell her that the process is extremely laborious and will take a long time.

[Baroness Smith of Basildon (Lab)]

There is a big difference between starting from scratch and having something fully worked out. The Minister has heard the views from around this House. There is work to be done and we would like to do it.

[Lord Caine (Con)]

The words “I’ll believe it when I see it” spring to mind, given the experience of successive Governments over the past 25 years who have sought to grapple with this issue.

[Lord Cormack (Con)]

I do not want to delay things unduly but, if my noble friend were to have a round table with those who have taken part tonight, who have a fairly common view of the inadequacy of this legislation but a desire to make progress, I do not think we would be talking about five years—five months, maybe.

[Lord Caine (Con)]

It might well be that a round table of noble Lords who have taken part in this debate could produce some proposals within five months, but we have all seen the difficulty of getting agreement from all the political parties in Northern Ireland for legacy proposals, and the huge difficulty of getting consensus and agreement from the victims’ groups in Northern Ireland. That is a very laborious process. After the Stormont House agreement, I went through four or five years of trying to get that agreement into legislation and before your Lordships’ House; that was despite it being a manifesto commitment in 2015 and 2017 and a Queen’s Speech commitment in 2015.

It is a very long and difficult process to get consensus. With the criticism there is of this legislation—I accept that it is criticism and that it does not have widespread consensus—the onus would be on those coming forward with other proposals, alternative suggestions, to build consensus. That would take a long time, and then to turn that consensus into legislation, to legislate and to establish new bodies is not something that could be done very quickly.

Turning back to the debate itself, it is the Government’s view that the immunity test is robust. It requires individuals to apply for immunity and, in so doing, acknowledge their role in Troubles-related incidents. Immunity will be granted only in relation to conduct that individuals disclose, and only where the panel is satisfied that the conduct exposes the individual to criminal liability.

Crucially, it requires the individual to provide an account that is true to the best of their knowledge and belief. In determining whether that is the case, there is a legal obligation on the commission to consider all the information that it holds that is relevant to that decision. If an individual provides an account that contains truthful information about numerous offences, but that same account includes untruthful information about just one offence, they will not be granted immunity at all. This will help prevent people from trying to minimise their role in incidents.

--- Later in debate ---

[Viscount Brookeborough (CB)]

Does he mean that the commission will ask them who their accomplices were and that they must not refuse to name them?

[Lord Caine (Con)]

It is fairly straightforward. The commission will ask whatever questions it believes to be appropriate. On the basis of the answers it is given, it will have to make its decisions regarding immunity. If a person is untruthful or unwilling to give information, that will of course be taken into account.

I am delighted to say that I am sympathetic to the proposed Amendment 130 from the Baroness, Lady O’Loan, to Clause 21(4), which is designed to ensure that the commission has to take steps to seek information beyond that which it holds already for the purposes of testing an account. I am very much open to exploring further with her how this issue might be appropriately addressed, when we move to the next stage of the legislation,

I wish to focus very quickly on some other amendments that I have tabled. Under Clause 23, the commissioner for investigations currently has the power to refer for possible prosecution conduct causing death or serious injury which is the subject of the review under consideration. My Amendment 137 clarifies that the commissioner is also able to refer conduct that constitutes “connected offences” within the meaning of the Bill. These are offences which do not themselves meet the Bill’s definition of “serious offence” but are nevertheless factually connected to such offences, for example because they form part of the same incident. This would allow, for example, the commission to refer to prosecutors evidence of sexual offences connected to a death or serious injury, if it came to light during the investigation.

Noble Lords will have noticed my intention to oppose the proposition that Clause 19 should stand part of the Bill. To reassure, this is simply because I propose to move provisions made by Clause 19 to the new schedule introduced by Amendment 85, titled “No immunity in certain circumstances”. This will bring together these provisions and those relating to the revocation of immunity mentioned before. Moving Clause 19—

[Baroness O’Loan (CB)]

I thank the Minister for giving way. Very briefly, his Amendment 137 refers to “other harmful conduct” that is not Troubles-related conduct serious enough to justify being dealt with under the Bill. But the Bill says that no prosecutions can be brought except in respect of Troubles-related conduct, does it not?

[Lord Caine (Con)]

I will need to read the clause through again and come back to the noble Baroness on that, if I may. As I was just saying, moving Clause 19 into the schedule is simply intended to make this legislation easier to follow.

The ability of commission officers to use their powers of arrest and detention as part of its investigations is important. That includes cases where a suspect, having not obtained immunity, needs to be detained for the purposes of questioning. That would happen as part of the case-building process in a criminal investigation before a file was referred to prosecutors. I have tabled Amendment 151 to remove any doubt as to the circumstances in which criminal enforcement action can be taken where immunity has not been granted, and where a referral to a prosecutor has not yet been made. In addition to allowing for the exercise of powers of arrest and detention, the amendment also ensures that the commission would be able to charge a person with an offence before a referral to a prosecutor had been made. The amendment also clarifies that those with existing powers of detention—for example, the police—may continue to use those powers where they are being exercised in connection with the commission’s functions.

Amendments 150 and 153 are related minor and technical amendments. We touched on the importance of the chief commissioner’s actions over the course of a review leading up to a report, as per Amendment 36. Under Clause 15, the chief commissioner is required to share the draft report with the person who requested the review, with victims, where applicable, and with any relevant family members as defined in the Bill. These persons will have the right to make representations, which must be considered before a report is finalised. Separately, the chief commissioner must share the draft report with any living individual subject to significant criticism in the draft report, who also has the right to make representations that must be considered before a report is finalised.

We have discussed today the referral of conduct to prosecutors. Amendments 114 and 135 specifically would expect the commissioner for investigations to refer conduct to prosecutors in cases where the threshold is met, unless there is a good reason not to do so. If the commission were under an obligation to refer all relevant conduct to prosecutors that it considered an offence, there is a risk this would place an unreasonable operational burden on it—a concern that was also relevant to the Stormont House agreement. I will try to get through this as quickly as I can.

I turn to post-Troubles sentencing, and specifically Amendment 149 in the name of my noble friend Lord Dodds of Duncairn. All offences, including terrorist-type offences, committed after 10 April 1998 will remain the investigative responsibility of the relevant police force. I recognise the intent behind this amendment but we have already tabled an amendment which could mean that people lose immunity if they are convicted of knowingly or wilfully misleading the commission. I am content to keep engaging with noble Lords and others on possible instances where we can strengthen the incentives to engage with the body and ensure adequate and proportionate penalties for those who do not.

The noble Baroness, Lady Suttie, and my noble friend Lord Weir of Ballyholme have probed the meaning of “general immunity from prosecution” in Clause 18. To be clear, as I have said immunity will be granted only in respect of conduct disclosed by an individual as part of their application. “General immunity from prosecution” does not mean immunity for all Troubles-related conduct in which individuals may have been involved but which has not been disclosed. Clause 18(9) makes it clear that, where immunity from prosecution is framed as a grant of general immunity, it must be framed by reference to the particular conduct that the person has disclosed. In other words, it will not confer immunity in relation to other conduct. The noble Baroness is looking at me slightly quizzically; I am happy to go through this again with her.

The noble Lord, Lord Browne of Ladyton, proposed an amendment to add an additional condition that must be met before immunity is granted: that the commission is satisfied that the grant of immunity would be compatible with convention rights, comply with the constitutional principle of the rule of law and satisfy the interests of justice. In response, the Government remain confident that the legislation is legally robust and complies with our obligations, so it is not necessary to make specific reference in the Bill to the compatibility of convention rights in respect of the commission discharging specific functions. It is the Government’s view that this is already covered.

The noble Lord referred in one of his questions to cases being initiated by the state or being initiated by families. While the commission will carry out reviews where requested to do so by a family or where a person has requested immunity, I assure the noble Lord that the Secretary of State and other public officials, such as the Attorney-General in Northern Ireland, will be able to request a review where this is necessary to ensure an effective and efficient investigation for the purposes of discharging the UK’s international obligations. Those powers are there.

As I have explained before, the commission, as a public authority, will be under a duty under the Human Rights Act to act compatibly with convention rights when exercising its functions and making any of its decisions. Working together with public prosecutors and making use of its full police powers, it will also be able to institute criminal proceedings against suspected offenders in cases where conditional immunity has not been granted.

In response to the noble Baroness, who I know disagrees with me on this, I set out at length last week that the Government’s view is that 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 through the recovery of information for the benefit of families and wider communities, in part by means of the conditional immunity process, that the new body will be enabled to contribute to moving society forward in Northern Ireland. It is therefore consistent with the Government’s stated objective to provide more information to victims and survivors in a timely and efficient manner, which would not happen if we engaged in a single-minded focus simply on criminal justice outcomes.

I have gone way over time. I have tried to answer as many points as possible, but if there are any that I have missed then I am happy to sit down with noble Lords following Committee. On that basis, I urge noble Lords not to press their amendments, as I will not press mine.

[Lord Bew (CB)]

I beg leave to withdraw the amendment.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Caine Excerpts

Committee stage
Tuesday 24th January 2023 Lords Chamber

[Lord Murphy of Torfaen (Lab)]

I think the amendments are very sensible, they come from sensible people and the Minister should take them very seriously. They improve a Bill which we do not like, as we are again in this dilemma. Nevertheless, the amendments of the noble Baroness, Lady O’Loan, and the noble Lord, Lord Bew, really are worth investigating and we would support them.

My noble friend Lord Hain again has made an extremely sensible suggestion that we need to look at the resourcing. In the case of his amendment, that is with regard to prosecution, but the noble Baroness, Lady Smith, has made the very valid point that the whole apparatus that is to be set up by the Bill needs to be resourced. We are not in good financial times, so I am assuming that the Government have costed what all this will take and that it will be put into a Budget. We will have the Budget in a week or two’s time, so it is probably too early yet for the establishment of these institutions. Nevertheless, these are hugely important issues, not the least of which is linked to time. People should not have to wait a long time to have their case heard because there are no resources for it. We look forward to the Minister’s reply.

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

I am grateful to the noble Lord, Lord Murphy of Torfaen, and will, as ever, seek to deliver a sensible reply. My friend the noble Lord, Lord Bew, referred to this having already been a hard day’s work. I trust that it will not turn into a hard day’s night—but enough song references for this evening.

I turn to the amendments introduced by the noble Baroness, Lady O’Loan. Clause 15 places a duty on the chief commissioner to produce a final report on the findings of each review that the commission has carried out, as soon as is practicable once the review has concluded. This, as noble Lords will recognise, is designed to support information recovery.

However, where the commissioner for investigations has referred a case to prosecutors for possible prosecution, Clause 17(2) and (3) already require the chief commissioner to postpone publication of the final report pending a decision by the prosecutor, or the outcome of any criminal proceedings which might flow from that decision. In the Government’s view, therefore, Amendments 5 and 89 are not needed as the Bill already achieves their purpose.

I note the noble Baroness’s comments on sharing reports, which I take seriously. The commissioner will of course be subject to the safeguards set out in Clause 4, but I am happy to sit down with her and the noble Baroness, Lady Smith of Newnham, whom I welcome to our debates, to discuss the matter further. Where the legislation makes reference to “material” criticising an individual under Clause 15, it means

“material which, in the Chief Commissioner’s view, constitutes significant criticism of a living individual who was involved in the conduct forming part of the Troubles, or other harmful conduct … to which a review relates”.

I am advised that language in that space is aligned with the Inquiries Act, but, as I have said, I am very happy, between now and the next stage, to sit down with the two noble Baronesses to discuss those matters further.

My friend, the noble Lord, Lord Bew, rightly considered the importance of ensuring that the commission should follow best practice in carrying out reviews within the exercise of its power. The commission is already under a clearly defined obligation in Clause 4, to which I have just referred, not to do anything that

“would risk putting, or would put, the life or safety of any person at risk”.

It is the Government’s view that this safeguard is wide enough to offer sufficient protection to the rights of anyone likely to be named in reports. Therefore, in our view, the amendment is unnecessary. Additionally, we would expect the commission, as a public body, to maintain high standards and follow best practice when discharging all its functions, including those which relate to naming individuals in reports—but, as ever, I am very happy to discuss that further.

The noble Lord, Lord Hain, the former Secretary of State, referred to prosecutions and acknowledged, as he has done throughout, that the prospect of prosecutions is very rare. It is worth remembering, when looking at this legislation, that the most recent case that will be examined by the commission is now over a quarter of a century old, and the oldest case is just slightly older than me. I will be 57 in April, for those who are unaware.

[Lord Hain (Lab)]

He is a young man.

[Lord Cormack (Con)]

He is a very young man.

[Lord Caine (Con)]

I am a child in your Lordships’ House.

We are looking at cases which go back very many years and where, as the noble Lord rightly says, the chance of prosecutions is rare. In response to his amendment requiring the Secretary of State to make payments where conduct has been referred, I do not think he will be remotely surprised to hear me repeat what I have said in the Chamber on a number of previous occasions in response to him and the noble Baronesses, Lady O’Loan and Lady Ritchie of Downpatrick, the latter of whom is not in her place, unfortunately: that funding for the Public Prosecution Service for Northern Ireland is a devolved matter, and one for the Executive to consider.

I will say, almost in parenthesis, that I understand the comments about resource, but I have spoken to senior members of the legal profession in Belfast. While they would of course always welcome more resources, they are also adamant that the speed with which some of the cases proceed is not entirely down to resourcing; there are other issues involved. Having said that, I remind the Committee that the 2021 spending review set out historical levels of funding for the devolved Administrations, including the Northern Ireland Executive. Spending per head in Northern Ireland is already the highest of any region of the UK: Northern Ireland receives 21% more funding per head than the UK average. Also, a sizeable amount of money— £250 million, to be exact—will be made available by the Government to fund the institutions established by the Bill, including the investigative function of the commission.

I turn now to the noble Baroness, Lady O’Loan, and her amendments—

[Lord Hain (Lab)]

I apologise; I do not want to detain the Committee, but what proportion of that extra spending or allocation that the Minister said Northern Ireland gets compared with other parts of the UK is down to the unique security needs of Northern Ireland that are not present elsewhere in the UK?

[Lord Caine (Con)]

A lot of it is determined by the Barnett formula, but, in large part, it is not just security but the additional needs that Northern Ireland has. I have no issue with the additional spending: it is right that, as part of the United Kingdom, Northern Ireland benefits from the same levels of service as every other part, and that should continue. But the additional spending is not just down to security, by any means.

[Baroness O'Loan (CB)]

Is the Minister sure that Northern Ireland benefits from the same level of services as the rest of the United Kingdom? Our waiting lists are very much longer than any in the health service here—far more people are waiting for appointments there than here—and we have major difficulties in our education system because of funding matters. So the service is not the same.

[Lord Caine (Con)]

I completely appreciate the point made by the noble Baroness. To some extent, the problems there are exacerbated by the lack of a devolved Administration between 2017 and 2020: we are still living with the consequences of there being no decision-making during that period, when Sinn Féin pulled down the institutions. Of course, we are also suffering from the lack of a functioning Executive at the moment. I suspect that we might return to some of these issues when we debate the Northern Ireland Budget Bill in your Lordships’ House in two or three weeks’ time. However, I accept that the situation, particularly regarding health and waiting lists, is considerably worse in Northern Ireland, but we stand by the principle that Northern Ireland, and all parts of the United Kingdom, should benefit from the same levels of service.

I turn to the noble Baroness’s amendments on the historical record. If families do not request an investigation into the death or serious injury of their loved one, or their cases are not referred to the commission by the Secretary of State in circumstances where he has deemed it appropriate to meet international obligations, the researchers responsible for compiling the record will use only publicly available information and will not contact families. This is of the utmost importance because we know that, for perfectly understandable reasons, a number of families in Northern Ireland would rather not resurrect the past, and we entirely respect that. Nothing in the current drafting prevents individuals voluntarily providing information to the commission, but, again, I am happy to continue to talk to noble Lords on this matter. On that basis, I urge the noble Baroness to withdraw her amendment.

[Baroness O'Loan (CB)]

My Lords, once again, I thank noble Lords for their contributions on these issues. Amendment 136, on the need for funding for prosecutions, covers a very complex and sensitive issue. The reality is that a case takes an average of three years—probably longer now in Northern Ireland—to come to prosecution once it is presented to the prosecutors. With the various stages of the trial process, it lasts a number of years. If the commission has a lifespan of five years for the receipt of information, with a consequential period for investigation, which may well exceed a year for each one, there will be difficult problems in trying to process cases. Quite simply, we are trying to do too much in a limited amount of time with limited resources. That is why I am afraid I have to challenge the Minister again on his assertion that the money must come from the current Northern Ireland budget—it quite simply is not there. I hope that the Minister will recognise the need to resource both investigations and prosecution.

If we set up a commission to deal with the past and it is capable of doing what Jon Boutcher has done in Kenova, which I am serving on, and the cases go into a black hole called the prosecution service and nothing comes out the other end, conclusions will be drawn about what Parliament’s intentions were in setting up this legacy process—and they will not be positive conclusions. I just reiterate that issue.

The noble Baroness, Lady Smith of Newnham, made very valuable and thoughtful contributions. In relation to the question of whether it is possible to give a criticised individual a partial report, rather than a whole one, report writers have to take into account the privacy rights of the individuals who appear in the report, whether they are named or might be recognised by the role that they hold. There is that need to try to balance the need to ensure accountability and transparency with the proper protection of the privacy rights of others. My amendments seek to make the process of preparing those reports more compliant with all the requirements of fairness.

--- Later in debate ---

Moved by

[Lord Caine]

6: 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 2024.(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.

[Lord Caine (Con)]

My Lords, I beg to move the amendment in my name. Most of the amendments in this group are technical in nature, and as such I shall try at this late hour not to dwell on them too long.

Amendments 6 and 189 are designed to ensure that the commission produces and publishes a work plan for each financial year. Amendment 7, 10 and 11 make changes to the existing provisions on annual reporting, bringing them in line with the process for producing a work plan. This will ensure that the commission has properly considered, and planned for, its expected caseload in each financial year. This is similar in rationale to comparative provisions in other legislation, including the Domestic Abuse Act 2021, which requires the Domestic Abuse Commissioner to publish strategic plans and annual reports.

I have also tabled a series of technical amendments that are clarificatory in nature. Amendment 17 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. Amendment 18 ensures that the definition of “insolvent” which applies for the purposes of the provision on the removal of commissioners also applies for the purposes of the provision on the appointment of commissioners. Amendments 19 and 31 update the provisions about the application to the commissioners and commission officers of the law relating to the rehabilitation of offenders. They ensure that the Bill reflects the current approach taken in law.

Amendment 32 ensures that the commissioner for investigations, who is also a commission officer, falls only within paragraph 14 of Schedule 1 as a commissioner and not also within paragraph 20 as an ICRIR officer. Paragraphs 14 and 20 make equivalent provision to ensure that the prohibitions on trade union activity that govern the police do not apply to the commission.

Amendment 42 avoids overlap with provisions of the Assaults on Emergency Workers (Offences) Act 2018, which will apply to designated commission officers operating in England and Wales. Amendment 194 changes the definition of “reserved provision” with regard to this legislation, reflecting the fact that Section 8(b) of the Northern Ireland Act 1998 requires consent to a Bill rather than to the Act itself. The commissioner for investigations will have the powers and privileges of a constable and be able to designate other commission officers with police powers as required.

Amendments 179 and 181 will enable the commission to enter into bespoke agreements with relevant oversight bodies—namely, the Police Ombudsman for Northern Ireland, the Independent Office for Police Conduct in England and Wales, and the Police Investigations and Review Commissioner in Scotland—regarding arrangements for external oversight of the commission’s use of police powers. This will ensure that powers are used proportionately.

The Bill as drafted includes consequential amendments giving the commission the power to request communications data directly from UK companies. Schedule 12 currently gives the commissioner for investigations the power to grant authorisations to obtain communications data for the purpose of preventing or detecting crime or preventing disorder under the Investigatory Powers Act 2016. However, following further consideration, it is the Government’s view that providing the commission with such powers would be disproportionate, particularly given the complex statutory regime associated with such powers and the scope of the commission in relation to the review of historic cases, the most recent of which, as I said in my response to the last group, are more than a quarter of a century old.

It is important to note that telecommunications operators are required to comply with the Data Protection Act, meaning that they would need a business justification for retaining communications data from 1998 and before. Therefore, the likelihood of providers holding relevant data for the purposes of the commission’s functions is very remote indeed. Removal of this clause will have no impact on the commission’s ability to obtain communications data previously obtained and still held by the relevant authorities using investigatory powers as part of previous investigations. Nor does it affect powers which flow purely from commission officers having the powers and privileges of constables. On reflection, the Government do not consider it necessary or proportionate to give the commission access to this power, given the nature of legacy investigations. I have therefore tabled Amendments 180, 182 and 183 to address the Investigatory Powers Act. The noble Baroness, Lady O’Loan, and I discussed this issue last week and I acknowledge that she has some concerns, which, again, I am very happy to discuss with her further. I beg to move.

[Lord Rogan (UUP)]

My Lords, my remarks will focus on Amendment 33 in the name of my noble friend Lord Empey, who has asked me to apologise to your Lordships for his absence tonight. His wife is currently still in hospital after several days. I have no doubt that noble Lords will wish to join me in wishing Lady Empey—our friend Stella—a full and swift recovery.

The noble Lord, Lord Hogan-Howe, who is not in his place tonight, mentioned that we were near the end of the amendment of the noble Baroness, Lady O’Loan, before the RUC was mentioned. Like the noble Lord, Lord Caine, I thank him for his kind remarks about that force, which suffered so much during the Troubles. My noble friend Lord Empey’s amendment seeks to insert a legal guarantee that former members of the Royal Ulster Constabulary George Cross, the Historical Enquiries Team or the Police Service of Northern Ireland will not be precluded from employment by the ICRIR. Of course, there is no reason that they should be; however, recent history tells us that some will, none the less, seek to find a reason.

Noble Lords will be aware of Operation Kenova, mentioned many times tonight, set up in 2016 to investigate a series of terrible crimes, including kidnapping, torture and murder, involving an individual codenamed Stakeknife. The Operation Kenova team is led by Jon Boutcher, who, at the time of his appointment, was Chief Constable of Bedfordshire Police. He retired as chief constable in 2019, coinciding with a decision to expand Operation Kenova’s remit to four separate investigations, and he continues to lead that team. For the record, last year he found time to launch an unsuccessful bid to become Commissioner of the Met. One of Mr Boutcher’s first decisions when appointed to lead Operation Kenova was to prohibit former RUC GC and PSNI officers from involvement in the investigations. This ban has remained in place as his remit has widened. There is no logic to this, and neither is there any merit in blocking their route to employment by the ICRIR.

There are various interpretations of what this legislation is or is not intended to do. However, conducting thorough investigations into the multitude of unsolved murders and other horrific incidents throughout the long years of the Troubles should clearly be at the top of the list.

Clause 3(3)(a) provides that the ICRIR officers should

“have experience of conducting criminal investigations in Northern Ireland”.

So, if proper investigations are to be carried out by individuals with first-hand experience of this work in Northern Ireland, surely former RUC GC and PSNI officers, as well as serving PSNI officers on secondment, should be at the head of queue to be engaged with the ICRIR.

I have always been a strong advocate of law and order. Throughout Northern Ireland’s darkest days, it fell to the brave men and women of the RUC, alongside the Armed Forces, to maintain law and order. Some 312 RUC officers lost their lives at the hands of terrorists, with 302 of those tragic deaths occurring in the Troubles. Over 10,000 more officers were injured in attacks, with over 300 left with life-changing injuries. While I remain a strong supporter of the Belfast agreement, the loss of the RUC GC’s name and cap badge were bitter pills to swallow. However, I cannot, and will not, allow the remarkable achievements and bravery of that force to be airbrushed from history, as many would like, especially IRA Sinn Féin, which is carrying out an intense and continuing campaign to rewrite the history of the Troubles and—as the noble Baroness, Lady Hoey, has alluded to—to show IRA Sinn Féin in a better light than its former bestial acts would merit. That includes barring former RUC officers from serving once again. Similarly, serving, and former officers of the successor force, the PSNI, must be afforded the same access to skilled employment that the ICRIR will offer.

I ask the Minister for an assurance that the intention behind my noble friend Lord Empey’s amendment will be respected and adhered to by His Majesty’s Government when the Bill receives Royal Assent.

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[Lord Caine (Con)]

My understanding is that it reflects the fact that, while the commissioner for investigations will have the powers of a police constable, technically he is not a member of the police service.

[Lord Hain (Lab)]

So there is no dilution of the rights of staff in the ICRIR?

[Lord Caine (Con)]

No.

[Lord Hain (Lab)]

Okay. Secondly, on Amendment 183, does that in any way dilute the investigatory powers of the ICRIR? This is one of the concerns about the whole thrust of the Bill.

[Lord Caine (Con)]

I beg the noble Lord’s pardon—I missed the amendment number.

[Lord Hain (Lab)]

Amendment 183.

[Lord Caine (Con)]

Absolutely not—nothing here is intended to dilute the investigatory powers of the commission at all.

[Baroness O’Loan (CB)]

My Lords, I acknowledge the need for many of these government amendments, which clarify technical and procedural points. They do not go to the heart of the objections to the Bill that have been articulated tonight.

Some amendments, such as Amendments 6 and 7, are very minor. They provide for the provision of annual work plans, six-monthly reporting and things like that. It seems slightly heavy that you have to produce those as a matter of good governance—the auditors will require that. There is a requirement to provide annual reports and things like that, but, as regards putting that in statute, I do not object to it, but it is kind of heavy-handed. It goes again to the suspicion that the Secretary of State wants to be very involved in the work plans, how they are doing it and how they intend to distribute the resources that are available to them within the commission. I simply draw that to the Minister’s attention.

I am not sure about the meaning of Amendment 35. I know it is not the Minister’s amendment, but can he say whether it is possible that it may have the effect of limiting the application of some of the provisions of the Bill and some of the amendments that we have discussed and will discuss? There are powers other than those commonly known as police powers which may apply. I do not expect the Minister to answer that tonight, but will just leave the thought with him.

It seems that Amendment 41 may limit the ability of the commissioner to be flexible in the use of his staff. Obviously, the commissioner will be making decisions about which staff are required to have police powers and which are not. Those who have police powers will be able to do things such as arresting, searching and seizing, et cetera, while those who do not will not, but they can accompany and assist. I am not sure—perhaps the Minister can clarify this at a later time—whether an officer can have a limited subset of police powers, as provided for in the legislation, and I am not sure what that would add. So Amendment 41 may in fact not be particularly helpful in ensuring the most economic and effective use of the resources available to the commissioner.

The Minister referred to my reservations about Amendment 183. That refers to the removal of the provision making the ICRIR a relevant authority under the Investigatory Powers Act 2016—which goes to the question that the noble Lord, Lord Hain, has just asked. As I understand it, as drafted, the Bill gave the commission the right to require the delivery of data. Information may or may not have been requested by a previous investigation. If it was requested, it should be available in the files of that previous investigation. However, we know that, in many cases, data which may have been available was not requested by previous investigations for a variety of reasons, and therefore it will not be available to the commission unless the commission has the power to ask for it. The suggestion has been made—I thank the Minister for the discussions we had about this—that the holder of the data could voluntarily surrender it. That may or may not be correct, but my question is: this is actually a tool in the toolkit of a standard investigation, so why take it away?

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[Lord Caine (Con)]

My Lords, as ever, I am very grateful to all noble Lords who have participated in this debate.

Responding directly to the comments of the noble Lord, Lord Rogan, and other noble Lords from Northern Ireland, regarding Amendment 33, the Government are very clear that we must set up the commission properly and with the best people to give it the best chance for success. As the Bill is currently drafted, there is no prohibition whatever on the employment of former members of the Royal Ulster Constabulary—which was awarded the George Cross—no prohibition on the employment of former members of the Historical Enquiries Team and no prohibition on former members or current members of the Police Service of Northern Ireland applying to become commission officers. There is no prohibition within the current legislation.

I have made it clear in response to earlier debates that I share the admiration of noble Lords from Northern Ireland for the service and sacrifice of the Royal Ulster Constabulary throughout the Troubles. The figure I have is that 302 officers were murdered in the course of their duties. I have always been struck by the montage that was produced a number of years ago of all those officers, under the banner “Our Murdered Colleagues”, a copy of which I have at home.

Slightly linking to Part 4 of the Bill, where we talk about oral histories, I agree with and share the concern of those noble Lords who believe that the record of the RUC is under sustained attack, mainly from republicans within Northern Ireland. I have said in this House before that what I have described as a pernicious counter-narrative of the Troubles has developed in recent years, which has put the state at the heart of every atrocity and seeks to traduce the record of the Armed Forces and the police. We ought to discuss this.

On that, I can do no better than to commend three volumes of outstanding oral history put together by a very good friend of mine, Colin Breen, beginning with A Force Like No Other: The Real Stories of the RUC Men and Women who Policed the Troubles. Colin is a former serving RUC officer. One of the reasons why those he interviewed were able to open up to him so candidly and vividly was because he is one of their own. Anybody reading those volumes will be struck by stories that range from the comic to the absolutely heartbreaking. I commend that particular oral history to Members of your Lordships’ House.

[Baroness Hoey (Non-Afl)]

I thank the Minister. Given what he has just said, is he saying quite clearly that he will not suggest putting it into the Bill? Given that we saw what happened to Kenova, does he share my concern that people feel slightly worried that what is said in this House and what Ministers think sometimes gets changed later if it is not in legislation?

[Lord Caine (Con)]

At this stage, I am not inclined to write a list of people who are disqualified from membership of the commission into the legislation. From reading the Bill, it is fairly clear that there is no disqualification, as I have set out. I would therefore probably argue that, while I agree entirely with its intentions, the amendment is not necessary as a matter of law. That would be my instinctive response.

On Amendments 35 and 41, the commissioner for investigations will have to be a person of significant standing and experience and will be responsible for the appropriate delegation of responsibilities to ensure that the commission can carry out effective investigations. The Bill is already clear that a person can be given the powers and privileges of a constable only if they are deemed capable of effectively exercising those powers and have received adequate training. In addition, Clause 3 makes it clear that the commission must ensure that, as far as is practicable, its officers include persons who have experience of conducting criminal investigations. Paragraph 4 of Schedule 2 also allows a designation under Clause 6 to be made, subject to any limitations specified in the designation. Paragraph 5 allows a designation to be time-limited.

Regarding the amendments and comments around timetabling, the commission’s processes will of course be complex. This is a significant undertaking, and it is our view that the commission’s delivery should be timely and not rushed. We have already taken a number of steps by establishing an implementation programme team within the Northern Ireland Office, whose job is, I stress, not to pre-empt the operations of the commission but to lay the foundations, looking at the estate, IT, procurement, and so on, should Parliament agree to establish the commission, so that it can begin its work as quickly as possible.

I hear what the noble Baroness, Lady Smith of Basildon, said about commencement. I might be in a position to say a bit more about that at the next stage of the Bill. I will talk to her about it before we return to the Floor of the House, if that is acceptable to her.

On which note, I urge noble Lords to withdraw their amendments and—suffering from a hard day’s work turning into a hard day’s night—I also beg leave to withdraw my own.

Amendment 6 withdrawn.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Caine Excerpts

Committee stage
Tuesday 24th January 2023 Lords Chamber

Moved by

[Lord Caine]

That the House do now resolve itself into Committee.

Amendment to the Motion

Moved by

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So I am grateful to the noble Baroness, Lady O’Loan, for the opportunity for this debate. There is always a tendency to feel that we might rehearse Second Reading arguments, but it is important that we restate at the beginning of the Bill how very sad we are that we are debating the Bill at this stage today. It needs more work and there is a willingness across the House to engage to find something better, and I hope that, as we proceed with the Bill, the Minister will understand that. If there are not significant amendments, there will be disappointment, and the issue will continue to be a difficulty that, until there is not necessarily a resolution but some way forward that commands confidence across Northern Ireland, will not work.

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

Well, my Lords, I said at Second Reading that I was well aware that this legislation had been met with far from universal acclamation, and, if I may say so, the last hour and seven minutes has reminded me of that in spades.

A number of noble Lords were kind enough to reference my role in this legislation. I am particularly grateful to my noble friend Lord Cormack and a former Secretary of State, the noble Lord, Lord Hain. I think one suggested that had it been my Bill it might have been slightly different. That may or may not be the case, but I tried to assure the House at Second Reading that I was committed to working with noble Lords on all sides and to continue engaging with groups outside Northern Ireland to see what could be done to improve the legislation in line with the proper constitutional functions of your Lordships’ House that the noble Baroness, Lady Smith of Basildon, reminded us of. That is what I have sought to do.

The noble Baroness, Lady O’Loan, in moving her amendment—I hope it was inadvertent—cast some doubt on the level of engagement, and the noble and right reverend Lord, Lord Eames, referred to it. I can only say that, since the end of July, I have done over 30 meetings—frankly, I have lost count—on legacy with political parties in Northern Ireland, Members of your Lordships’ House, victims’ groups and others. Those meetings have always been frank and candid, and I have sought to listen and take on board as many points as I can. I will continue that engagement and, indeed, I will be doing more such meetings in Northern Ireland next week. That has been a genuine attempt to fulfil the promises I made at Second Reading. Again in response to the noble and right reverend Lord, whom I hold in the highest regard—he is a man of great principle and has made a huge contribution in Northern Ireland over many decades—I say that I believe that the amendments I have brought forward are a reflection of the promises I gave at Second Reading. I am very happy to sit down, at any time, with the noble and right reverend Lord to go through those amendments, but we will be debating them anyway, I hope, at a later stage.

I understand the motive behind the noble Baroness’s amendment. I have long had sympathy with the notion that the Northern Ireland Assembly should have greater involvement in these matters. It was always the position, for many years, that addressing the legacy of the past should be owned and tackled primarily by Northern Ireland’s elected representatives. Some of us remember—it was not that long ago—10 years ago, when the Northern Ireland Executive invited Richard Haass, along with Meghan O’Sullivan, in the aftermath of the flags protest and difficulties over disputed parades, to address the issue of flags, parading and the past. That initiative was driven by the Northern Ireland Executive, supported by the parties in the Assembly. Unfortunately, as with other attempts to deal with these very difficult issues, that process did not find a consensus, and 12 months later, we found ourselves at Stormont House trying to deal with the same issues.

The noble Baronesses, Lady Ritchie of Downpatrick and Lady O’Loan, referred to the Stormont House agreement. At the risk of repeating what I said at Second Reading, I was in the room, as it were, for all but a few hours—time off for good behaviour—for about 11 weeks of that entire process. The level of consensus reached there has always been exaggerated. I can well remember the spokesman for the noble Baroness’s former party, the SDLP, opposing just about every line on legacy—she is smiling because she knows to whom I refer—in that agreement as “a dilution” of Haass-O’Sullivan, which was itself a dilution of Eames-Bradley. So the SDLP was not exactly oversold on it. I do not see the noble Lord, Lord Empey, in his place, but the noble Lord, Lord Rogan, is there, and he will attest to the fact that the Ulster Unionist Party did not support the provisions in the Stormont House agreement. So, that is two out of five that opposed it, pretty well right from the outset. Over the years, the level of consensus fell away even further.

[Baroness Ritchie of Downpatrick (Lab)]

I point out to the Minister that, from my very deep recollection, the SDLP supported the Stormont House agreement.

[Lord Caine (Con)]

As one who was in the room on 23 December 2014 when the final document was handed out, I think the approach of the former Member for Belfast South, Alasdair McDonnell, who was the leader of the party at the time—he might want to correct me if my recollection is faulty—was to say that they would look at it and give it a fair wind, but he made no commitments beyond that. As I say, the party’s spokesman was in a rather different position, but that might not be the first or last time that has been the case.

I also recall vividly that, after the Stormont House agreement was reached in late 2014, in early 2015 the then First Minister and Deputy First Minister in the Northern Ireland Executive came to the then Secretary of State and asked her whether the UK Government would take the legislation through this Parliament in Westminster to implement it, citing the enormous difficulties that would be encountered by trying to get it through the Assembly. That in part is why we are here; it went from something that it was envisaged would be dealt with in the Assembly to something that it was then requested we do here. It has, if I can put it like this, been a Westminster responsibility ever since. That is in part why the Government are bringing the Bill forward and why I stand here today.

Given that context, as the noble Lord, Lord Hain, and others reminded us, we have been grappling with this—it was never dealt with in the 1998 agreement because it was too difficult then. Successive Governments have sought to deal with it; they have failed to achieve consensus and resolution has proved elusive, frankly, to Governments of both parties. But we are, in a sense, running out of time in that people are getting older—some are passing away—and the chance of getting information to victims and survivors becomes more difficult the longer time passes.

Perhaps I may briefly try to pick up one or two further comments from the debate. My noble friend Lord Hailsham referred to a statute of limitations, as did the noble Lord, Lord Dannatt. This provides me with an opportunity to remind the House that the Bill has changed considerably from the original Command Paper proposals. People have referred to the vote in the Northern Ireland Assembly in 2021—I think the noble Lord, Lord Weir of Ballyholme raised it—but that was on the proposals in the Command Paper rather than the Bill that we are dealing with. It has changed, and I am on record in this House as opposing a statute of limitations on this issue. My noble friend and I have discussed it before; he and I have different views, as I am opposed to it. If there were a statute of limitations in the Bill, I would not be here doing it. The Bill has changed so that the immunity provisions within it are conditional and must at least be earned. Where there is no co-operation with the new commission, the prosecution route remains open.

My friend, as I think I can call him, the noble Viscount, Lord Brookeborough, referred to veterans being opposed. The exchange that he had with the noble Lord, Lord Dannatt, probably drew out one of the points that I was going to make: that veterans are not a homogeneous group. I met the Northern Ireland Veterans Movement last week and it is very supportive of the Bill. Where I definitely agree with the noble Viscount and the noble Lord is that we should be proud of the record and service of members of the Royal Ulster Constabulary and our Armed Forces. As I have said in this House on many occasions, my view is that without their contribution, sacrifice and service there would have been no peace process in Northern Ireland. We owe them a huge debt of gratitude and we should never forget that.

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[Baroness Smith of Basildon (Lab)]

Forgive me, my Lords, but I wanted to clarify that our position has always been that this Bill should never have been brought forward in this form until it had commanded some support. That has not changed, so it is not a pause or delay if nothing has changed. If there is a fundamental problem with the Bill, we would rather it be pulled back. My noble friend Lord Murphy and I met the Secretary of State and the Minister himself to say, “Don’t proceed with this Bill; we will work with you to find a better way.”

[Lord Caine (Con)]

I appreciate the noble Baroness’s tone and comments. The only point I was trying to make is that pausing or stopping the Bill, as some have suggested—or if it gets to the statute book and it were to be repealed by a Government of a different colour in 18 months’ time or so; although I do not predict that for one second—we risk, in those circumstances, prolonging this for at least another five years while there is consultation, attempts to reach consensus, which will probably never happen, and the need to draw up legislation, et cetera. During that period, as I have referenced before, more people will have passed away and more people’s memories will be defective, so the chances of getting information to people will be even more remote and the chances of prosecutions more so.

[Lord Hain (Lab)]

I am grateful to the Minister for giving way. I actually agree with the last point he made. I think that we would all like to take this opportunity to resolve the issue, but it cannot be resolved in a way which antagonises everybody—that is the problem. I urge him again, as I have done in private, to look again at the Operation Kenova amendments; they provide a working model to deliver the Bill and they have universal support. I am open to technical tweaks and any discussions with the Minister to make those amendments more acceptable technically, but the substance is there to get a consensus on this for the first time in generations, if not ever.

[Lord Caine (Con)]

I am grateful to the noble Lord. Without prolonging this, I hope that we might get to those amendments this evening and have a proper discussion and debate on them. But I am grateful for the spirit of what he said.

In conclusion, the Government clearly cannot support the amendment of the noble Baroness, Lady O’Loan. I understand completely the motivations behind it, but, in the Government’s view, the Bill provides an opportunity to give more information to victims and survivors in a timely manner, and it is the Government’s view that it should proceed.

[Baroness O'Loan (CB)]

My Lords, I express my deep gratitude to everyone who spoke on the Bill today: noble Lords spoke with such eloquence and gravitas on these most sensitive issues. I thank the Minister for his response, and I hope he will understand that, despite all the nice things he said, I cannot accept much of what he said, particularly his comments on the Stormont House agreement. Things have moved on in the eight years since then, and we are now in a different place. All of us who were in Northern Ireland at the time of the Good Friday agreement had grave difficulty with things such as the release of prisoners. It was a difficult time, and people are trying to find ways that will enable everyone to engage in one process for dealing with the past.

The Government’s actions in bringing the Bill and continuing to push it are doing very serious damage to our reputation as a country. They are also doing huge damage and causing a lot of pain, grief and loss of trust in the United Kingdom Government among the people affected by the Bill. That is profoundly important, as noble Lords said.

I will say a word of reassurance on veterans to the noble Viscount, Lord Hailsham, and the noble Lord, Lord Dannatt. As I have said previously in this House, members of my family served in Northern Ireland during the Troubles, so I know exactly that I do not intend, and that it is not the intention of any of us, to cause grief to veterans. Those who served honourably really have nothing to fear, and the statistics show that, but I will not delay your Lordships on that.

Finally, the people of Northern Ireland are united against the Bill. Your Lordships will have seen the extent of unity among those of us from Northern Ireland about the Bill. I do not intend to press my amendment to a Division today, but I ask the Government again to pause and even to dispense with the Bill and start again. There is no necessity or urgency to deal with this situation; there is a need to get it right. I beg leave to withdraw my amendment.

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[Lord Caine (Con)]

That was in response to you.

[Baroness Suttie (LD)]

Indeed, it was in response to my request. So I think we in this Chamber all recognise that the Minister not only has engaged very actively but has a tremendous amount of personal experience on this. Because of this, he has a tremendous amount of doubt about some of the elements currently in the Bill.

It is very welcome that the Minister has made a commitment to use Committee to continue to listen and engage on these concerns, and to listen to the very strongly held views of the House, which reflect the wider concerns in Northern Ireland and beyond. It is in that spirit that I hope that he will listen to the debate today.

Amendment 1 seeks to probe whether the definition in the list of eight narrowly defined characteristics on page 2 of the Bill is sufficiently broad to ensure that all those who wish to use the ICRIR are in a position to be able to do so. The trouble always with producing such lists is that they often accidentally result in some people being excluded and could therefore risk seeing some victims being denied justice. While acknowledging that the list is actually broader than was contained in the Stormont House agreement, it should be noted that the Stormont House agreement allowed for alternative legal routes, such as civil cases and inquests. It is worth exploring in Committee whether a longer list, or a more flexible approach to a list, could be adopted. We would be very happy to discuss the possible wording with the Minister between now and Report.

The Minister will know that the Commission for Victims and Survivors has expressed particular concern about the need to demonstrate severe psychiatric damage. At the time when many of the atrocities took place, people did not always have access to mental health medical services, so the link between the incident and mental health may not be clear.

The Minister will be aware that the Joint Committee on Human Rights has also expressed concern about the current list of eight characteristics producing arbitrary outcomes. As paragraph 73 of its report on the Bill states:

“For example, consider that there are two similar cases concerning torture but resulting in differing harms. The first case results in severe brain injury—this type of harm falls under the definition of a ‘serious offence’. Where immunity is not granted, the case may be prosecuted. The second case of torture results in severe damage to one or more organs—this type of harm does not fall under the definition of a ‘serious’ offence—there is, therefore, no possibility of a prosecution. It is not clear why these cases ought to be treated differently.”


To give another specific example, I would query the use of the terms under subsection (6)(e) and (f), which list the characteristics of “total blindness” or “total deafness”. Surely, partial blindness or partial deafness would still have a potentially very traumatic impact on a person’s life. I urge the Minister to examine this section of the Bill again to see whether it could be redrafted in a more flexible manner so that people are not accidentally excluded from access to the ICRIR. I am sure—or at least I hope—that this was not the original intention behind the drafting of this clause. I beg to move.

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[Lord Eames (CB)]

My Lords, in his response to the previous debate on the amendment in the name of the noble Baroness, Lady O’Loan, I fear that the Minister may have misunderstood some of the phrases I used in my own remarks. I do not in the slightest attach any personal criticism to him for the failure of the amendments we asked for from the Government on a previous occasion. I hold him in the highest possible regard personally for all he has done for Northern Ireland, and I hope that that respect is, despite the remarks, mutual.

[Lord Caine (Con)]

My Lords, I would not normally intervene, but I thank the noble and right reverend Lord for his very kind words. If I did misunderstand him, that is my failing. I assure him that the admiration is indeed very mutual.

[Lord Eames (CB)]

My Lords, turning to the amendment the noble Baroness, Lady Suttie, has brought to the attention of the House, may I refer to just one aspect of what I believe is the almost impossible task that the commission will face? It is the question of contact, discussion and analysis of those who are involved in cases brought before it. It is not just a question of medical phraseology and limiting the field in which people could claim to have consequential difficulties because of the Troubles. From my experience over the years, I have seen that it is almost impossible to define and limit the consequences of the experience of people—families, relatives and neighbours—because mental scars are very hard to define, but they are vivid in their consequences for people’s lives.

Secondly, I support what the noble Baroness said in moving her amendment in terms of the difficulty of the construction we will eventually give to this commission. I know from experience—as do many Members of your Lordships’ House—how difficult it is when distinct definitions are not spelled out and people have their own approach to what they think was defined or underlined. If this part of the Bill is to proceed, I suggest to the Minister that a closer examination is needed of the definition of the commission’s role—how it is to be described, how it will relate to jurisprudence and how it will relate to the way in which individual cases are presented. There is, I believe, real opportunity for this concept of the new commission to proceed, and proceed in a positive way, but I still think that a great deal of preliminary thought is necessary at this stage.

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[Baroness Smith of Basildon (Lab)]

That is helpful; I am grateful. It is “the close family member” as well.

A number of issues arise from the amendments from the noble Baroness, Lady O’Loan, and the question of Clause 7 standing part. Amendment 52 seeks to delete the five-year deadline from the start of the ICRIR’s operation—it is a nifty little acronym—for seeking reviews of Troubles-related deaths and offences. I can understand where the Government are coming from in saying that the process cannot be open-ended, but could the Minister say why they settled on five years? What consultation or views expressed led to five years? What assessment was made of the risk of people refusing to engage because they think that they can be timed out given the five-year cut-off? Did he receive any representations on that? Was it discussed? Was there a consultation, or was it plucked out of thin air? That is what I seek some clarity on.

I would be grateful for any guidance from the noble Baroness, Lady O’Loan, but it seems to me that Clause 7 creates restrictions on the use of material against a person in criminal proceedings where that material is obtained by or provided to the ICRIR by that person, but it does not affect the use of material in proceedings brought against any other person. That seems to be a contradiction that needs to be addressed, and perhaps the Minister can clarify that. I have read the clause several times—that is why I was slightly delayed in getting up. It seems strange in the context of what the Government are trying to achieve.

The debate on this has again shown the respect that the Committee and this House have for victims, survivors and all those affected by the Bill. It also shows some of the tweaks and changes that will need to be made to address the particular concerns that have been raised today.

[Lord Caine (Con)]

I am very grateful to noble Lords for their contributions on this group of amendments. I will start with Clause 7. As the Committee knows, the Government’s overriding objective is to put in place mechanisms that have the potential to deliver better outcomes for those most affected by the Troubles, particularly victims and survivors, while seeking to help society look forward. The Bill is designed to help achieve those objectives.

The primary focus of this legislation is effective information recovery. The commissioner will conduct investigations for the purposes of providing answers to those who seek them. Central to that is Clause 7, which creates restrictions on the use of material against a person in criminal proceedings where that material was obtained by or provided to the ICRIR—that acronym of which the noble Baroness, Lady Smith of Basildon, is so fond—by that person. This is very much in line with the approach for information recovery included in the Stormont House agreement in 2014 and is extremely important in avoiding the creation of a disincentive for people to come forward and provide information to the ICRIR. In the Stormont House agreement there were similar provisions on evidence given to the ICIR, as was. It is very much in line with previous approaches to this issue.

The clause does not affect the use of material in proceedings brought against any other person, so it would be possible for a witness to provide information about an individual who was involved in a death or serious injury and for that information to be used in any subsequent prosecution against that individual. Equally, the clause does not affect the use of material obtained by a designated ICRIR—I am just going to say “the commission”—officer, for example when exercising police powers. This would ensure that the content of an interview given by a suspect while under caution, as part of a criminal investigation, could be used in criminal proceedings in the normal way.

I hope that goes some way to addressing the concerns of my noble friend Lord Weir of Ballyholme in respect of Clauses 7 and 23. If not, I am more than happy to sit down with him with my officials and go through it in greater detail, well in advance of the next stage of the Bill.

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[Lord Cormack (Con)]

You are on!

[Lord Caine (Con)]

As if I need reminding. I am grateful to all who have contributed to this extensive and far-reaching debate. The noble Lord, Lord Hain, referred to my all-Peers letter in which I described this legislation as “challenging”. I assure him that that word was not chosen by the Civil Service—it was inserted by me. I think that the intention could best be described as ironic understatement.

I am also grateful for the words of the noble Lord, Lord Murphy of Torfaen, about the role of this House and the attempts to improve the Bill. I genuinely hope that, whether one agrees with my amendments or not—and I suspect from what I have heard across the Chamber that a large number of your Lordships would fall into the latter category—it is recognised that I am trying sincerely to improve the Bill as best as I can, and will continue in those endeavours.

On the various amendments before the Committee, as noble Lords are aware, the legislation establishes the commission to carry out reviews of Troubles-related deaths and incidents involving serious injury. I have tabled Amendment 76 to make it clear, I hope, beyond any doubt that the commissioner for investigations is to decide whether a criminal investigation should form part of a review in any case that is considered by the commission. I reiterate the point that, under the legislation currently before the Committee, “review” is intended to be an umbrella term that can include a criminal investigation. We have tried to take on board some of the concerns and criticisms over the use of that word.

In the Government’s view, the amendment that I have tabled would confirm very clearly that the Government can meet and deliver on their international obligations in respect of investigations. The Bill does this by ensuring that the commissioner for investigations, as a person with the powers of a police constable, has access to the complete range of investigative measures, including as part of a criminal investigation, while giving them the discretion and flexibility to determine how they can best fulfil the needs of victims and survivors.

I completely understand that the noble Baroness, Lady O’Loan, who proposed a series of amendments, does not agree, and does not believe that the amendment goes far enough. In all honesty with your Lordships, I tread warily on this issue of the ECHR. I am not a lawyer, unlike the noble Baroness. The Government’s position on this is that obviously it follows that, when immunity is granted by the commission, the commission will not be capable of following that with a process leading to a prosecution or the punishment of an individual concerned. Nevertheless, the Government consider that result to be compatible with their international obligations, for the following reason. The absence of a prosecution or punishment outcome in individual cases where immunity is granted can, in the Government’s view, be justified on the basis that the conferral of such immunity in those circumstances, in a limited and specific way, is necessary to ensure the recovery of information about Troubles-related deaths or serious incidents that would not otherwise come to light. Such recovery is an important part of trying to help society in Northern Ireland move forward. I think we will touch on that issue further in a later group of amendments.

I turn to the amendments in the names of the noble Lord, Lord Hain, and others. The Government do not believe that it would be appropriate or effective to stipulate that all reviews must entail criminal investigations, which would be the effect of Amendment 72, or that in some cases a criminal investigation, and only a criminal investigation, must be carried out. There are circumstances where families might wish simply to gain a further degree of information about something that happened on the day, about some specific aspect of what happened, and we would envisage that the commission in those circumstances might determine that a short review is all that is required to answer a small number of specific questions—and that information might be readily available in the archive of material available to the commission without having to go down the criminal investigation route.

We believe that stipulating that all reviews entail criminal investigation would—I do not think the noble Lord will be surprised to hear me say this—add a significant amount of time and resource to how long it would take the body to work through its caseload and prevent it being able to prioritise appropriately. We are clear that, in all cases, the commission will be able to conduct full, effective investigations capable of discharging our obligations. The commission will have all the necessary powers to conduct investigations, including the powers and privileges of a police constable, the power to compel evidence from witnesses and full access to state records.

As I said in response to an earlier group, it is of course vital that the commission is informed by best practice from elsewhere, including Operation Kenova, which I agree with many noble Lords across the Committee has achieved very positive outcomes in building strong relationships with victims and helping them to better understand the circumstances around what happened to their loved ones. Like many noble Lords across the Committee, I have met Jon Boutcher on a number of occasions and continue to engage with him, and I pay tribute to him for the work he has carried out—specifically for the way he has conducted relations with families.

[Lord Hain (Lab)]

I understand the Minister’s point about some cases. The fear of victims is that “review” will be just a desktop job, that they will not be looked at—to underline the point that the noble Lord, Lord Hogan-Howe, made—to get at the truth in a way that Boutcher has been able to do. Yes, it does take time and resource, but if you do not know what the information is, because it is in files you have never had access to in the way that Jon Boutcher has, how can you possibly say that you can close off a case with a short review, even though it will cost less money?

[Lord Caine (Con)]

I am grateful. What I had in mind with short review is that if there are specific facts to which a family does not have ready access, they can go to the commission and ask: “We just want to know a bit more about what happened” on a particular day, and those facts can be very easily turned up by the commission, just by looking at its records, the archive, et cetera. That would be an appropriate way of responding to such a request.

To reiterate, the commissioner for investigations will have all the powers of a police constable, will have access to all the relevant information and, crucially in the legislation, will be somebody who has to have experience of investigations in Northern Ireland or elsewhere. So, it really will be for the director of investigations to exercise his or her judgment and discretion, but of course my amendment—I should say that we believe the legislation as drafted would allow for this anyway—makes it very clear that a full criminal investigation will be available to the commission should that be the decision of the director of investigations.

[Lord Hain (Lab)]

Not the Secretary of State?

[Lord Caine (Con)]

Not the Secretary of State but the director of investigations, because the commission will be operationally independent from government.

In paying tribute to Jon Boutcher for the work he has done, a number of noble Lords, including the noble Lord, Lord Hain, spoke about scaling up Kenova. I do not have the transcript in front of me, but the noble Lord referred to Mr Boutcher’s evidence to the Northern Ireland Affairs Select Committee in the other place. He acknowledged that, while some aspects of his work could be built on and scaled up, not all of it could, so there are difficulties.

To give an example of the scale of this, the noble Lord’s amendment would require a criminal investigation in every case, and given that the Police Service of Northern Ireland currently has a caseload of around 1,000, the danger is that we would spend significant resource, but also, more importantly, significant time, dealing with this backlog, which would mean that we would spend almost as long investigating the legacy of the Troubles as the Troubles themselves lasted, which I think is not something anybody wants.

Northern Ireland (Executive Formation etc) Bill

Lord Caine Excerpts

3rd reading
Monday 5th December 2022 Lords Chamber

Moved by

[Lord Caine]

That the Bill be now read a third time.

[Baroness Williams of Trafford (Con)]

My Lords, I have it in command from His Majesty the King to acquaint the House that His Majesty, having been informed of the purport of the Northern Ireland (Executive Formation etc) Bill, has consented to place his prerogative, so far as it is affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

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

My Lords, I will make a very brief statement on legislative consent. Clearly, the reason we are here is because there is neither a functioning Executive nor a functioning Assembly in Northern Ireland, so it has not therefore been possible to seek a legislative consent Motion. I beg to move that the Bill be now read a third time.

Motion agreed.

--- Later in debate ---

Moved by

[Lord Caine]

That the Bill do now pass.

[Lord Caine (Con)]

My Lords, as we conclude proceedings on the Bill, I place on record my thanks to all those involved in its passage through the House. I thank particularly the noble Lords, Lord Murphy of Torfaen and Lord Bruce of Bennachie, for their collaborative and constructive engagement with this legislation and for recognising the importance of putting it on to the statute book in very quick time.

I hope that the House will forgive me if I dispense with the usual Third Reading Oscars ceremony that has crept into our proceedings, but I thank all the officials who have worked on this Bill. The Bill is highly regrettable, as a number of noble Lords pointed out, but it is a necessary stopgap to enable the key public services to continue to be delivered for the people of Northern Ireland. I beg to move.

Northern Ireland (Executive Formation etc) Bill

Lord Caine Excerpts

Committee stage
Monday 5th December 2022 Lords Chamber

As I have said in the House many times, my view is that, in sovereign nation terms, the NIO and the Irish Government know more about Northern Ireland than any single country in the European Union, and it is important that that sort of detail is brought through during the course of negotiations. So I would be grateful if the Minister could let us know the state of negotiations, how his department liaises with the Foreign Office on these matters and some indication about timescale.

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

My Lords, I am grateful to the noble Lord, Lord Bruce of Bennachie. I echo what he said about his colleague, the noble Baroness, Lady Suttie. She texted me this morning; she is apparently on the mend and we hope to see her back in her place very soon.

The amendment in the name of the noble Lord, which was also discussed in the other place, would, of course, remove the end of the second six-week extension to the Executive formation period. As the noble Lord set out, this would essentially amount to an indefinite extension. As my honourable friend the Minister of State at the Northern Ireland Office said in the other place, and as I said at Second Reading in the wind-up, it is not and never has been the intention of this legislation to create an indefinite or undefined extension period for Executive formation. In our view, that would be neither democratic nor fair.

The House will recall that, earlier this year, Parliament passed the Northern Ireland (Ministers, Elections and Petitions of Concern) Act 2022, which I took through this House. That legislation amended the period for forming an Executive after an Assembly election as applied by the Northern Ireland Act 1998. Given the Government’s desire to allow space for progress in talks with the European Union on the protocol, this Bill creates a short, straightforward and defined extension to that Executive formation period, which builds on the defined six-week period set out in the Act to which I have just referred. In our view, we cannot simply dispense with that legislation at the earliest possible opportunity; it is legislation that, I remind the House, was contained in commitments made in the New Decade, New Approach document of January 2020.

I am deeply aware that the previous political impasse in Northern Ireland dragged on for three years. I have previously in your Lordships’ House described that period as a particularly frustrating time in my life—something that is shared by a number of colleagues who are sitting behind me on the Democratic Unionist Party Benches and, indeed, by the noble Baroness, Lady Ritchie of Downpatrick. We are determined that that period, which dragged on for three years, cannot happen again. Indeed, it is what the provisions of the Northern Ireland (Ministers, Elections and Petitions of Concern) Act and New Decade, New Approach sought to prevent. We are clear that, given the present challenges, Northern Ireland needs locally elected and accountable Ministers as soon as possible. As we have heard throughout proceedings today, the measures in this Bill are a temporary stopgap, and we cannot allow a situation where that remains indefinitely the case.

Regarding the noble Lord’s other points, I will reflect on what he said. Some of the issues to which he and the noble Lord, Lord Murphy of Torfaen, referred are not directly matters for me. I can assure the noble Lord, Lord Murphy, that, of course, the Northern Ireland Office liaises with the Foreign Office. As we promised to do in Committee on the protocol Bill, I will take away the comments of both noble Lords to see if there is a way that we can give more information to your Lordships’ House as the discussions proceed. On that basis, I would urge the noble Lord, Lord Bruce, to withdraw his amendment.

[Lord Bruce of Bennachie (LD)]

I thank the Minister for that response. I understand it, and I genuinely wish him well: that is a very tight timescale and I hope he can be successful. I repeat that I will be surprised if we are not back here before the end of January, but I appreciate his response, particularly about trying to keep us informed. I know he said that in good faith, and we look forward to hearing how he might be able to do that. With that, I beg leave to withdraw the amendment.