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—

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[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.

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[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.

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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.

Northern Ireland (Executive Formation etc) Bill

Lord Caine Excerpts

2nd reading
Monday 5th December 2022 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, I was honoured and humbled to attend a service in Ballykelly yesterday to mark the 40th anniversary tomorrow of the heinous and depraved Droppin Well bomb, which killed 11 soldiers and six civilians in 1982. In working as a Government to build a stronger, shared future for Northern Ireland, we should never forget that all terrorism, then as now, was totally unjustified and unjustifiable. There was always an alternative to murder.

I reiterate this Government’s unyielding support for the historic 1998 Belfast agreement, to the constitutional principles it enshrines, to the institutions that it establishes and to the rights that it guarantees for all in Northern Ireland. I reiterate what I have said on previous occasions: the agreement is the bedrock of all the progress that has been achieved in Northern Ireland in recent decades and protecting the agreement will remain at the heart of everything that we do. This Government will not take risks with the hard-gained relative peace and stability that the people of Northern Ireland enjoy today.

Central to that agreement is, of course, a fully functioning Executive and Assembly, from which the other institutions in strands 2 and 3 of the agreement flow—an Assembly and Executive where locally elected representatives can address issues that matter most to those who elect them. This has not, however, been the case since February this year and in the period following the Assembly election that took place on 5 May. As I set out in my Statement in this House three weeks ago, it is a matter of profound regret that the Northern Ireland Executive had not been restored by 28 October, the deadline after which the Secretary of State would come under a legal obligation to set a date for a further election.

I think it is clear to most, however, that a further election in the immediate term would be unlikely to produce a significantly different result or resolve the situation that we currently face. The time has therefore come for the Government, and indeed noble Lords in this House, to take action in response to what can best be described as the governance gap that has emerged in Northern Ireland. That is what the Government’s Bill seeks to do.

Separately, I set out in a Written Statement on 24 November how the Government intend to respond to the extremely difficult budgetary issues that have arisen in Northern Ireland. The Government will bring forward a separate budget Bill where more detail will be provided on this; no doubt noble Lords will want to consider that carefully. This Bill, though, is about creating the conditions whereby some key decisions in Northern Ireland can continue to be taken, including on the implementation of that forthcoming budget.

I am sure noble Lords will be relieved to hear that I do not intend to speak at great length in this Second Reading; I know that many noble Lords will want to come in during the limited time available to us today. Before I briefly summarise the overall intention of this legislation, I offer my thanks to the House for considering this Bill at the pace required. I am very grateful to the noble Baroness, Lady Drake, for the very constructive approach of the Constitution Committee to this legislation. I assure her and other noble Lords that the Government do not take these steps lightly, and I am glad that there seems to be broad consensus on the need to consider this quickly.

I also welcome a very old friend of mine, the noble Lord, Lord Weir of Ballyholme, to his place in this House today. The part of Northern Ireland that forms part of his title I know extremely well, not least because I have close friends who live about five doors from the Esplanade bar in his former constituency, which he will know very well. He will be making his maiden speech today and, if he takes his cue from his noble friends in the DUP, as I am sure he will, he will no doubt bring to proceedings unparalleled expertise, as a former Northern Ireland Executive Minister, and a formidable eye for detail. I wish him well. The noble Lord will, I am sure, help to strengthen further the reputation of this House as the Chamber of Parliament that diligently scrutinises legislation and holds the Government of the day to account, while at the same time bringing together Peers who represent all the regions and nations of our United Kingdom.

Broadly, the Bill seeks to do three main things. First, it retrospectively extends the period for Executive formation for a further six weeks until 8 December, with a power to extend by a further six weeks after that until 19 January. That means, subject to the agreement of this House, that if an Executive is not formed within those timeframes, the duty placed on the Secretary of State to call an election will commence this week, on 9 December, or, if the second six-week extension is activated, on 20 January 2023.

Secondly, the Bill clarifies the decisions that civil servants in Northern Ireland government departments can take in the absence of Northern Ireland Ministers, meaning that decisions in crucial areas can continue to be taken.

Thirdly, the Bill provides for powers that allow the Government to take action to amend the pay of Members of the Northern Ireland Assembly when they are unable to conduct the full range of the functions expected of them.

The Bill also provides for a number of other measures; namely, making provision for certain public appointments to be made in the absence of an Executive and conferring on the Secretary of State a power to set regional rates in Northern Ireland for the financial year ending 31 March 2024.

No doubt we will speak to each of these provisions in greater depth as proceedings continue but, taken together, these measures will help to plug the governance gap that has emerged. However, I cannot stress enough that the Bill is not intended to be a long-term solution to the issues that Northern Ireland is facing.

I will briefly go through the Bill’s clauses. Clause 1 makes provision for an extension of the period for filling ministerial offices, as set out in the Northern Ireland Act 1998 and amended by the Northern Ireland (Ministers, Elections and Petitions of Concern) Act 2022. It retrospectively introduces a further six-week period during which an Executive can be formed, to 8 December. Clause 2 provides for a further power to extend the Executive formation period by a further six weeks.

On decision-making, Clauses 3 to 5 clarify decisions that Northern Ireland civil servants can take in the continued absence of an Executive. The Government have broadly mirrored the approach that the previous but one Administration took in 2018 with regard to these powers, largely replicating the relevant provisions in the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018.

Northern Ireland civil servants will therefore be provided with the necessary certainty to take a limited set of decisions where it is in the public interest to do so. To assist them, the Secretary of State published draft guidance on 29 November on taking decisions in the public interest and the principles to be taken into account in deciding whether or not to do so—again, mirroring the previous approach. I think I am right in saying that guidance has gone to Members of the Legislative Assembly, who have until 8 December to make representations. However, as I have said previously, we recognise that this is not a long-term solution and civil servants cannot be left to take decisions indefinitely. That is why these provisions will last for six months or until an Executive is formed, whichever is sooner.

On public appointments, Clauses 6 to 9 make provision for certain public appointments that would normally have to be made by Executive Ministers or require their approval to be made. Again, this mirrors previous legislation and is another sensible step to take to ensure that key appointments that are necessary to maintain governance and public confidence in the institutions in Northern Ireland can still be made.

Clause 10 will allow the Secretary of State to take action when it comes to the pay of Members of the Assembly. These clauses will therefore allow the Secretary of State to amend MLAs’ pay in this and any future period of inactivity, drawing on Sections 47 and 48 of the Northern Ireland Act 1998. We anticipate that any determination made once these provisions come into force will take into account the independent analysis produced in the previous political impasse between 2017 and 2020.

The Secretary of State will retain the power to set MLAs’ pay in future instances where the Assembly is unable to elect a speaker and deputies following an election. The power would then go back to the current arrangement when these roles are filled and the Assembly is able to conduct business.

Clause 11 confers on the Secretary of State a power to set the regional domestic and non-domestic rate in Northern Ireland for the financial year ending 31 March 2024 by regulations. These rates must be set for every financial year. Clauses 12 to 15 are minor and consequential.

No Government would want to be in the position in which we find ourselves today. It is clearly not a satisfactory state of affairs. In response, although this Bill will provide some short-term cover, so to speak, it is clearly not a long-term solution. Such a solution remains primarily for a newly reconstituted Northern Ireland Executive and Assembly, working in partnership with the United Kingdom Government, to tackle. I assure noble Lords in this House that we will continue to work tirelessly during the timeframe set out in the Bill to create the conditions that will enable those institutions to be re-established at the earliest possible opportunity.

During my Statement to the House on 14 November, I reflected upon the upcoming 25th anniversary of the Belfast agreement and made the point that we should be marking the progress that Northern Ireland has made since that historic agreement. I sincerely hope that this will be the case. Meanwhile, we have little option but to pass this necessary but regrettable legislation. On that note, I beg to move.

--- Later in debate ---

[Lord Caine (Con)]

My Lords, I thank the House for the quality and spirit of the debate that has taken place over the last few hours. To some of us in your Lordships’ House, it emphasises and underlines the important role that this House retains in our constitutional arrangements. The contributions this afternoon have shown a great degree of interest in and constructive consideration of the contents of the Bill, and indeed a real passion to move Northern Ireland forward. In that spirit, I thank the noble Lord, Lord Murphy of Torfaen, as always, for his very sensible, wise and constructive comments; I also thank the Liberal Democrats and the noble Lord, Lord Bruce of Bennachie, in the same spirit.

I add to those who have congratulated the noble Lord, Lord Weir of Ballyholme, on his outstanding maiden speech. I thank him in particular for his kind words, along with those from the noble Lord, Lord Murphy of Torfaen, about our late noble friend Lord Trimble, who was rightly described by the noble Lord as a giant of Northern Ireland politics. I think that I have in the past described him as probably being up there in the unionist pantheon with Carson and Craig as one of the great leaders of unionism in Northern Ireland. I thank both noble Lords for their comments. I apologise for highlighting that I might have a better knowledge of some of the public houses of Ballyholme than the noble Lord who is from there, but I assure him that I will keep supporting the local economy with friends in that respect.

I repeat what I said at the outset, and what many noble Lords have said in the course of the debate: no Government would want to be in the position in which we find ourselves today. It is highly unsatisfactory that the Northern Ireland Assembly and Executive are not functioning properly and doing the job that we would all expect them to do. For the avoidance of doubt, and as somebody who worked for previous Secretaries of State, I can tell noble Lords that we made exactly the same criticisms in the period between 2017 and 2020, when it was Sinn Féin holding up the Executive; there is no inconsistency in our approach to those matters. Like noble Lords across the House, we want to see the institutions restored at the very earliest opportunity and we are working diligently to try to ensure that this happens. As I say, it is clear from noble Lords’ contributions that they share that desire.

I will address one point raised by the noble Lord, Lord Dodds of Duncairn, in response to a point made by the noble Baroness, Lady Ritchie of Downpatrick, around reforming the institutions. I have been involved in this for quite a long time now, and I stand by the ground rules for political talks that were established back in 1996. They make it clear that changes to the governance arrangements and institutions in Northern Ireland do indeed have to proceed on the basis of sufficient consensus; that requires the support of parties representing the majority of unionists and the majority of nationalists. Any future recommendations for changes, such as the noble Baroness, Lady Ritchie, put forward about joint First Ministers, would always have to be judged in that context and against that background.

I am pleased that the House recognises largely that the Bill is a necessary if regrettable step—as the noble Lord, Lord Kerr of Kinlochard, described it—that we need to take so that the UK Government can ensure the continuance of governance arrangements in Northern Ireland. A number of noble Lords, in particular the noble Lord, Lord Murphy of Torfaen, and the noble Baroness, Lady Ritchie of Downpatrick, referred to the necessity of all-party talks at the current time. Like the noble Lord and noble Baroness, I have been through many talks processes in Northern Ireland over the years—some successful and others, regrettably, less so. The Government are committed to continuing very close dialogue with each of the parties. We will judge, when the time is right, whether that needs to move forward on the basis of bilateral discussions or whether it needs to be in a multilateral format; we will judge what is the right format at the appropriate time. But I take on board what the noble Lord said about the need for a plan in this respect.

I will respond to some of the other points raised during the debate. Unsurprisingly, in a debate about the Executive formation Bill, the Northern Ireland protocol loomed large because, as many noble Lords, particularly those on the DUP Benches, made abundantly clear, the principal reason why no Executive is up and running is the Northern Ireland protocol. I was very grateful to the noble Lord, Lord Bew—I should call him my noble friend—for a number of the suggestions he put forward as to how things could move forward. I want to take away his suggestions and discuss them with colleagues back in the department.

The noble Lord referred to the importance of strands 3 and 2 of the agreement. That is extremely important. It is common for people to look at the Belfast agreement through the strand they prefer or to which they are most attached. That has been characteristic of some in the European Commission in the past, regrettably. It is clear that the Belfast agreement is a three-stranded agreement in which all the strands are interlocking, and all need to function alongside each other properly. I am very grateful to the noble Lord for making that point clear.

The noble Lord also talked about what he described as “skulduggery” across the border, which has always been with us. He made some suggestions in that respect. I remind him that the 2015 fresh start agreement, in which I was involved, did indeed establish a cross-border joint agency task force to deal with some of the issues to which he referred. I believe that is functioning quite satisfactorily at the moment.

Unfortunately, I will have to disappoint a number of noble Lords when it comes to the protocol. We have debated the protocol Bill extensively in your Lordships’ House in recent weeks. As a member of the Bill team, I sat through all four days in Committee. Where I would agree with the noble Lord, Lord Murphy, as I have said in the past, is in his very valid point that we suffered from the lack of a Northern Ireland Executive in the period after 2016. I well remember the joint letter in the summer of 2016 that Martin McGuinness, as Deputy First Minister, and Arlene Foster—the noble Baroness, Lady Foster, as she now is—as First Minister signed, setting out an agreed Executive position. Northern Ireland suffered quite considerably from the lack of an Executive in the period between 2017 and 2020.

Sadly, I will disappoint a number of noble Lords by not being able to go into a great deal more detail at the Dispatch Box as to the status of the negotiations and discussions that are taking place, other than to reiterate that, as noble Lords know and as was set out extensively in Committee on the protocol Bill, it has always been our preference to resolve the issues, which we accept do need resolving—there is no question about that—through talks with the European Union. The Foreign Secretary and Vice-President Šefčovič are speaking regularly and UK government officials continue to have talks with their counterparts in the EU.

When I talk about solutions to the protocol, I reassure noble Lords who raised the commitments in New Decade, New Approach that one of the objectives of the UK Government is, of course, to ensure that Northern Ireland’s position within the UK internal market is fully respected and upheld. There should be no doubt about that. No doubt we will return to these matters in much greater detail at a date to be determined at some point after Christmas.

The noble Baroness, Lady Hoey, referred to the court case in the Supreme Court that she has been sitting through. We await its judgment in the new year with some interest.

My noble friend Lord Lexden referred to the need for a stronger union, in a speech that I think was in the best traditions not only of him but of somebody he and I would describe as a mentor on Northern Ireland matters, the late TE Utley, the great and wise Tory seer. If I can give my noble friend one piece of reassurance, he kindly referred to the Conservative manifesto from 2019, which I confess to have playing a small part in. The first sentence of the Northern Ireland section states that, as Conservatives and Unionists, the preservation of a secure and prosperous United Kingdom is our overriding goal.

My noble friend raised possible joint authority between London and Dublin, which has been raised by some in recent weeks. Again, to reassure him, our position is very clear: the Belfast agreement allows for two constitutional options for Northern Ireland. One is as part of the United Kingdom, the other is as part of a united Ireland on the basis of consent. It does not provide for a third way or in any way create a hybrid state in Northern Ireland; it is either wholly in the UK or wholly in a united Ireland. Therefore, joint authority would be totally incompatible with the provisions of the Belfast agreement. This Government will not countenance any constitutional provisions that are incompatible with the agreement, such as joint authority. That should be an end to the matter.

A number of noble Lords referred to the timetable set out in the Bill. I appreciate their concerns around that. Clearly, we hope that the time period afforded by the legislation will create the space required for talks on the protocol to make some progress but, in response to the noble Lord, Lord Bruce of Bennachie, and my noble friend Lord Godson, it is not and never has been our intention to create an indefinite or undefined extension to the Executive formation period. Obviously, I cannot predict what might happen over the next few weeks or months, but it would not be appropriate to have an open-ended delay to that deadline in the legislation.

The noble Lord, Lord McCrea of Magherafelt and Cookstown, referred to a number of issues. In particular, I will mention energy support. I think he said that the Government were preventing support. That is very much not the case. There are differences between the energy markets in Northern Ireland and Great Britain. There are also differences in the capacity of supply companies that operate in Northern Ireland compared with some of those operating in Great Britain. We are absolutely determined to get that money and support to people in Northern Ireland at the earliest opportunity. I think my honourable friend the Minister for BEIS said in the other place last week that he was very hopeful that we could get this money to people by January, but there is absolutely no intention on our part to delay, or anything of that nature. We are absolutely committed to helping people in Northern Ireland and ensuring that they are not disadvantaged vis-à-vis the rest of the United Kingdom. I hope that goes some way to reassuring the noble Lord on that point.

The noble Baroness, Lady Hoey, talked about the dates of the local elections. She will be aware that, under Section 84 of the Northern Ireland Act 1998, the Secretary of State has the power to change the date of the elections. We will consider the timing of local elections in Northern Ireland in respect of the date of the Coronation in due course. We have a short period in which we can come to a decision on that—but I do understand her points.

If I have missed anything of major significance, as always, I will commit to writing to noble Lords, but in conclusion, I have said many times that none of us wishes to be in this position. We all wish to see the institutions established by the Belfast/Good Friday agreement; that has the support of the overwhelming majority of Members of this House and, I believe, the other place. We want to see all those institutions up and running and functioning, and Northern Ireland largely governing its local affairs in a local Assembly through its local, democratically elected politicians. In our view, that is the surest way for a strong, stable, prosperous and increasingly shared Northern Ireland within, I hope, the United Kingdom. That is our objective. In the meantime, the Bill is a regrettable necessity.

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

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Caine Excerpts

2nd reading
Wednesday 23rd November 2022 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, as I rise to speak in this Second Reading, before I move to the Bill itself, I would like to put on record my thanks and gratitude to the Police Service of Northern Ireland and partners who, at this time and around the clock, are working to keep Northern Ireland safe and secure. I am sure the whole House will join me in condemning the recent attacks in Northern Ireland on the rule of law, and condemn terror in all its ugly guises.

The period of what are sometimes euphemistically referred to as the Troubles in Northern Ireland has left a terrible legacy and an indelible mark on society. More than 3,500 people were killed during the Troubles, with an estimated 40,000 more maimed or injured. Families were shattered, businesses destroyed along with livelihoods, and society was torn apart by atrocities that for many of those who suffered are as vivid, raw and painful today as they were at the time they occurred. Widespread disruption, either as a result of terrorist activity or the security presence needed to counter it, was a daily fact of life. In this Government’s view, the main responsibility for this appalling legacy rests firmly with the terrorist organisations, both republican and loyalist, which between them caused some 90% of those deaths—or, more specifically, the 60% that were down to republicans and the 30% down to loyalists.

Of those groups, the Provisional IRA was the terrorist organisation responsible for more deaths than any other: approximately 1,700 people, including some 300 Catholics. That is more than the police and the Army combined—something, I suggest, that those who today think it cool to chant “Up the Ra” might wish to reflect on.

This Government are equally clear that none of the terrorist campaigns that took place in the Troubles could in any way be warranted. Terrorism was always wholly wrong. No injustice in Northern Ireland, either perceived or real, justified the taking of a single life and the violence of paramilitary groups. There was always an alternative to terrorism in the past, just as there is today. The terrorist campaigns caused untold misery and suffering, and this Government will never agree with a version of history that seeks to legitimise them, just as we will always reject any suggestion of moral equivalence between the security forces and those who carried out acts of terrorism.

Ultimately, of course, terrorism in Northern Ireland did not succeed. In our view, there are three main reasons for that: first, the sheer resilience of the overwhelming majority of people in Northern Ireland who rejected violence and would never bend the knee to terrorism; secondly, the determination of successive UK Governments of all parties that the future of Northern Ireland would only ever be determined by democracy and consent, which is enshrined in the 1993 Downing Street declaration and is such a key pillar of the 1998 Belfast agreement; and, thirdly, the extraordinary dedication of the men and women of the Royal Ulster Constabulary and our Armed Forces.

More than 1,000 members of the security forces lost their lives during Operation Banner, the longest continuous deployment in British military history, while over 7,000 awards for bravery were made. Of course, I fully acknowledge that, at times, some might have wrongly acted outside the law and that mistakes were made, sometimes with deeply tragic consequences. We should always be prepared to admit that—I speak as one of the authors of David Cameron’s statement in June 2010 in response to the report of the Saville inquiry into the events of Bloody Sunday—yet of the more than 250,000 who served, the overwhelming majority did so with exemplary professionalism, bravery and restraint, and without their efforts there would have been no peace process. So, this Government will always salute their service and their sacrifice, and we will always remember the debt of gratitude we owe them. As I said in this House in July, we will always resist a pernicious counternarrative of the Troubles that seeks to put the state at the heart of every atrocity, denigrate the record of the security forces and, as I said earlier, legitimise terrorism.

Terrorism did not succeed but the legacy of the Troubles, as I indicated at the outset, continues to cast a dark and long shadow over Northern Ireland. As we have seen all so vividly in recent years, legacy issues retain the capacity to poison and paralyse politics, divide society and, in certain circumstances, create the potential for public disorder. For all the progress we have seen over the past quarter of a century, education and public housing remain highly segregated in many areas, while so-called peace walls still loom large in a number of areas. Far too many still live with the physical suffering and mental scars of what happened, and the costs of division continue to place additional burdens on an already highly overstretched public purse.

Against this background, therefore, the Government have a responsibility to do what they can to attempt to tackle the legacy of the past. While I am the first to acknowledge that we will never agree a common narrative as to what happened, the question is whether we can find structures that will enable society as a whole in Northern Ireland to move forward.

Of course, there have been a number of attempts to do this since 1998. The last Labour Government established the commission chaired by Denis Bradley and the noble and right reverend Lord, Lord Eames—who is in his place, I am pleased to say—which reported in 2009. In 2013, the Northern Ireland Executive invited the former US special envoy to Northern Ireland, Ambassador Richard Haass, and Meghan O’Sullivan to examine the issues of flags, parading and the past. In 2014 the Government reached the Stormont House agreement which, although motivated primarily by the need to address problems at the time around the Executive’s finances, contained far-reaching proposals to tackle legacy issues based on earlier initiatives.

Yet despite the best and very genuine efforts of many, over a number of years, none of these initiatives has succeeded in delivering for those directly affected by the legacy of the Troubles. I speak as someone who from 2010 to 2019 served four Secretaries of State and was intimately involved in trying to find ways forward on these issues. I participated in all 11 weeks of the talks leading to the Stormont House agreement, and then spent the subsequent four-and-a-half years in extensive and painstaking efforts to implement it—without success.

I know that some, including members of your Lordships’ House, still regard the Stormont House agreement as the best way forward. Yet as somebody who was there, it is clear to me that any broad consensus once held no longer exists, and it is easy with the benefit of hindsight to overplay the extent to which it ever did. Even in December 2014 it was not supported by all the parties, and in the months and years that followed what high-level support that had existed began to diminish as the Government and political parties sought to convert the paragraphs of that agreement into legislation.

Indeed, I recall in early 2015 Peter Robinson and Martin McGuinness asking the then Secretary of State to take all the Stormont House agreement through Westminster, due to the difficulties of doing any of it via the Northern Ireland Assembly, even though most of it was technically devolved. I remember clearly in November 2015 Martin McGuinness vetoing any reference to the Stormont House legacy proposals in the fresh start agreement, such were the difficulties Sinn Féin had with them at the time.

Stormont House was eight years ago next month, and, in the absence of an agreed way forward, those affected by the Troubles continue to be left with processes that have largely evolved piecemeal and which for the vast majority will never deliver justice, information, accountability or any form of acknowledgement. That is why the Government have introduced the Bill before your Lordships’ House today.

Taking into account previous attempts to tackle legacy, the Bill seeks to deliver an approach that focuses on what can practically be achieved when dealing with events that in some cases occurred half a century ago. It provides victims and survivors with information in a way that can provide some acknowledgement and some accountability. It has the potential to provide better outcomes both for those who suffered and those who served, and is able to help society look forward together to a more shared future, which I hope is the objective of all of us in your Lordships’ House.

The Bill seeks to do these things in the following ways. Part 1 of the Bill sets out for the purposes of this legislation the meaning of “the Troubles” and establishes its period as beginning on 1 January 1966 and finishing on 10 April 1998, the date on which the Belfast agreement was reached. Part 2 of the Bill provides for the establishment of a new independent commission for reconciliation and information recovery—the ICRIR. I think the first prize in Committee will be for anybody who can come up with a snappier name. This will carry out reviews, mainly at the request of families and surviving victims, into deaths and incidents resulting in serious injuries that occurred during the Troubles.

More than two thirds of Troubles-related cases are now over 40 years old, and it is commonly accepted that the likelihood of prosecutions, regardless of resources, is extremely remote. The Government have therefore taken the view that better outcomes for families are more likely to be achieved by a process of information recovery, acknowledgement and accountability, and that is what the ICRIR will seek to provide.

The commission will be chaired by a former or serving senior judge and will be equipped with the same investigative powers as the police to carry out criminal investigations, as well as, like coroners in inquests, the power to compel witness testimony and documentary evidence from individuals. It will be able to use these powers in relation to any case to fulfil outstanding procedural obligations under the European Convention on Human Rights. Although the term “review” in the Bill is deliberately broad, the commission will be under a duty to look into all the circumstances of a death or incident, including criminal activity.

The commission will be fully operationally independent, while, for its part, the state will be under a legal requirement to disclose all relevant information to it. Written reports of the commission’s findings to the families and surviving victims who request a review will be publicly available. To encourage those who might have relevant information to share it, the commission will be able to grant immunity from prosecution, on a case-by-case basis, to an individual who acknowledges their role in a Troubles-related incident by providing an account that is true to the best of their knowledge and belief. These accounts will be tested against information that is already in the public domain and information that is not—for example, from previous investigations and intelligence. Where an individual chooses not to engage with the commission, they will remain liable to prosecution in the normal way should the evidential test be met.

Part 3 of the Bill deals with ongoing and future proceedings within the current criminal, civil, inquest and police complaints systems. As the Bill is drafted, once it comes into force, no other body in the UK other than the commission will be able to take forward an investigation into a Troubles-related incident. Where a decision has already been taken to prosecute an existing case, this will continue. Any civil claims filed before the Bill was introduced will continue but no new cases will be allowed. Inquests that have reached an advanced stage by the time the commission becomes operational will continue; however, new inquests and those that have not reached an advanced stage will not continue but may be referred to the commission.

Part 4 of the Bill will build on proposals in the Stormont House agreement and provide for the establishment of an expert panel to devise a memorialisation strategy designed to promote reconciliation and greater understanding, as well as a major new oral history initiative.

I am the first to acknowledge that some of the proposals outlined in the Bill have met with far from universal acclamation in Northern Ireland itself. I fully appreciate that, for many, this legislation, despite some significant changes since the publication of the Command Paper in July 2021, remains deeply challenging. In being completely candid with your Lordships, I count myself among that number. I personally have found this legislation extremely challenging.

I have been involved in the affairs of Northern Ireland for some 35 years, and worked in the Northern Ireland Office while the Troubles were still raging in the 1990s. Only weeks before he was murdered by the Provisional IRA in July 1990, I had lunch with the very great man, Ian Gow, in the Strangers’ Dining Room in the other place, where, with typical generosity, he offered to sponsor me for the Conservative Party candidates’ list. Indeed, one of my first jobs in politics was to take the minutes of the Conservative Back-Bench Northern Ireland Committee, of which Ian was chairman. I have probably spent more hours with victims and survivors than just about anybody outside of Northern Ireland, and have heard countless harrowing and heart-wrenching stories of suffering. So I am hardly immune to the feelings of those affected by the Troubles who find this Bill difficult and challenging.

At the same time, I am as conscious as anyone, based on experience, that we will never solve the past or bring, to use that horrible word, closure in every case. Equally, I am clear that no Government can legislate to reconcile people, though we can strive to promote it. However, we can attempt to provide better and realistic outcomes. It is because of this, and in fulfilment of a commitment I made to the noble Baroness, Lady Suttie, in this House on 14 July, that, since late July, I have carried out some 25 legacy-related engagements and meetings, all but a couple in Northern Ireland itself. I have done so on the basis of being open to sensible and constructive proposals to improve the Bill—commitments I have also made individually and collectively to Members of your Lordships’ House.

As a result of my discussions, and of those between my right honourable friend the Secretary of State and a number of groups within Northern Ireland, I intend to bring forward a series of proactive government amendments in Committee to address a number of concerns that have been raised. These will include amendments to underpin the Bill’s compliance with the ECHR, by making it clear that the commission will be able to carry out Article 2 and 3-compliant criminal investigations in cases where it judges them to be appropriate. We will strengthen the commission’s independence by making clear that the Secretary of State should consult named individuals before appointing the chief commissioner.

To make the information recovery process and the provisions around immunity more robust, we will create an offence for those who choose willingly to mislead the commission and give the commission the power to revoke immunity where individuals have been found subsequently to do so. We will disapply the Northern Ireland (Sentences) Act 1998 for individuals who choose not to tell the commission what they know and are subsequently convicted of an offence, so that they face a full rather than a reduced sentence, as well as increasing the fine for non-compliance with the commission.

I wish to work with noble Lords across this House to enable us to fulfil our important constitutional role as a revising Chamber and make further improvements to the Bill where possible as it proceeds. That is my commitment, and that of a Government who are prepared to listen. On that basis, I beg to move.

Amendment to the Motion

Moved by

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Caine Excerpts

2nd reading
Wednesday 23rd November 2022 Lords Chamber

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

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

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

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

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

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

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

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

[Lord Judge (CB)]

That is not a justification for embodying it in statute.

[Lord Caine (Con)]

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

[Baroness O'Loan (CB)]

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

[Lord Caine (Con)]

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

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

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

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

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

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

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

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

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

--- Later in debate ---

Moved by

[Lord Caine]

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

Bill committed to a Committee of the Whole House.

Northern Ireland Elections

Lord Caine Excerpts

Monday 14th November 2022 Lords Chamber

[Baroness Suttie (LD)]

My Lords, I too am grateful for the opportunity to discuss last week’s Statement. An election at this time, as the noble Lord, Lord Murphy, said, would have been an expensive distraction and would almost certainly not have resulted in any kind of breakthrough in the impasse. It is always a great pleasure to follow the noble Lord, Lord Murphy. Not only does he speak with such great authority and common sense but, for many of us, me included, he symbolises a more optimistic time in Northern Ireland politics.

Nearly 25 years on since the Belfast/Good Friday agreement, it is very important to recall that it was not always like this. There have been times of great hope and optimism. The peace process has previously been held up as a positive example to many other troubled parts of the world. But, as the Minister knows all too well, with all his years of experience, those more optimistic times did not happen without hard work, dedication, dialogue and commitment at the highest level. Mutual respect and trust were absolutely key to this.

Like the noble Lord, Lord Murphy, I appeal to the Prime Minister to take an active role in finding a solution and a way forward out of this impasse, for it is in the interests of the whole United Kingdom for him to do so. Continued stalemate in Belfast is damaging to our reputation and is not in our national interest. So can the Minister confirm when and whether the Prime Minister plans to visit Northern Ireland next?

I am a Scot who believes strongly in the United Kingdom. I am not from Northern Ireland but, in the six years of closely following Northern Ireland matters in your Lordships’ House, I have come to understand the intensity and strength of feelings—and indeed anger—that have come to pervade Northern Ireland politics since 2016. An already complex history has become so very much more complex and complicated since Brexit. Cross-community consensus is the only way forward but, to quote my honourable friend Stephen Farry MP,

“power sharing is about power sharing happening; it is not about blocking it from happening.”—[Official Report, Commons, 20/7/22; col. 1026.]

The Minister will be aware that the leader of the Alliance Party, Naomi Long, wrote to the Prime Minister on 25 October setting out some suggestions for reform. If the choice becomes between deadlock and direct rule, is this not the time for the Good Friday/Belfast agreement to evolve and develop to meet the current circumstances? As the noble Lord, Lord Murphy, said in a debate last week, any reforms to the Belfast agreement have to be “by agreement”; it cannot be

“changed unilaterally by one side or the other.”—[Official Report, 7/11/22; col. 535.]

Can the Minister indicate when he anticipates that Naomi Long will receive a response to her letter?

As a true believer in devolution, I say that it is hard not to reflect what a fully functioning Northern Ireland Executive would be in a position to achieve right now. A functioning Executive could have been working to resolve the crisis in the healthcare system and to deal with those issues surrounding legacy and moving on from the past—for example, through promoting a truly integrated education system. Perhaps most importantly, a functioning Executive could have been promoting Northern Ireland as a positive place to do business and to attract inward investment, with its unique access to both the United Kingdom and EU markets.

I am not in any way underplaying the scale of the problems facing Northern Ireland politics at this time, but surely the Government, as well as all the political parties in Northern Ireland, owe it to the people of Northern Ireland to try again, to change the tone and to start again with a fresh approach to negotiations, both in Brussels and in Belfast. Not to do so would, I believe, be unforgivable as we approach the 25th anniversary of the Belfast/Good Friday agreement.

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

My Lords, before I reply to the comments of the noble Lord, Lord Murphy of Torfaen, and the noble Baroness, Lady Suttie, I want to place on record my sadness at the news today of the death of the very eminent Northern Ireland historian Dr Éamon Phoenix, an outstanding public figure who will be greatly missed. We send our deepest sympathies to his family. Also, I am also very conscious that today marks the 41st anniversary of the brutal murder by the IRA of the former Member of Parliament for Belfast South, the Reverend Robert Bradford, and the caretaker at the Finaghy Community Centre, Kenneth Campbell. If I can pick up on some comments that have been made recently in Northern Ireland, there was always an alternative to terrorism.

I am incredibly grateful to the noble Lord who, as always, speaks with great wisdom on Northern Ireland affairs, as a very distinguished former Secretary of State; as, indeed, does the noble Baroness, Lady Suttie. I welcome their comments on the Belfast/Good Friday agreement and the approaching 25th anniversary. The noble Lord played a key role in securing that agreement back in 1998 as the chair of strand 1, I believe. The House should be in no doubt that this Government are absolutely determined to restore as quickly as possible a fully functioning devolved Administration, which will then allow the other institutions in strands 2 and 3 to function effectively.

The noble Lord and the noble Baroness highlighted some of the problems that Northern Ireland currently faces and that we should be looking to a restored Executive to address as a matter of urgency. Only recently, the outgoing Northern Ireland Finance Minister pointed to a £660 million black hole in the Executive’s finances and this, of course, is having a very damaging impact on key public services, not least the National Health Service and education in Northern Ireland. So, I absolutely agree with noble Lords who are very keen and very desperate to get the institutions back up and running. I can assure noble Lords that that is the Government’s very clear commitment.

The noble Lord, Lord Murphy, referred to the need for a plan and a structure. I very much take on board what he says about that, given his experience. I too have been involved in a number of talks processes in Northern Ireland—some successful, some less so. It is always a difficult decision, how exactly we move these things forward, but I very much take his comments on board. One of the reasons, obviously, for delaying the election and postponing the election duty under which the Secretary of State is currently, is to give extra time and space, first for our discussions with the European Union over the protocol but also in the hope that the Northern Ireland parties can come together in some form, ready to restore an Executive.

Both the noble Lord and the noble Baroness referred to prime ministerial involvement. I hope both will welcome the fact that the Prime Minister attended the British-Irish Council meeting in Blackpool last week—the first that a Prime Minister has attended, I believe, since 2007. I understand that at that meeting there was very constructive engagement between the Prime Minister and the outgoing Taoiseach, Micheál Martin. I look forward to those discussions and that engagement continuing. I cannot give the noble Baroness a precise time and date as to when the Prime Minister will next step foot in Northern Ireland itself, but I assure her that resolving these issues is very much a top priority.

I will add one word of caution—or a caveat, if you like—based on all our experiences. Yes, of course prime ministerial involvement is important, but it is not always the silver bullet. The noble Lord, Lord Murphy, will recall Leeds Castle in 2004 and the Hillsborough declaration in 2003. I was involved in the Stormont House negotiations, when there was limited involvement from the then Prime Minister yet we had a successful agreement. Prime ministerial involvement is not always a guarantee of success, but I very much take on board the comments made.

I absolutely share the sentiments of the noble Lord, Lord Murphy, about not wanting to drift into direct rule. Both he and I have both been in the Northern Ireland Office during periods of direct rule, and it is a very unsatisfactory state of affairs. I agree entirely that Northern Ireland is best governed when it governs itself under the devolved Administration.

The noble Baroness referred to the letter sent by Naomi Long to the Prime Minister. I will go back to officials and try to establish where we are with the draft response to that.

We had long debates about reform of the institutions on the then Northern Ireland (Ministers, Elections and Petitions of Concern) Bill. As I set out at the time, the Government are not opposed to the reform and evolution of the institutions, but the noble Baroness will be aware that since the mid-1990s we have proceeded on the basis of what is known as the sufficient consensus rule. This means that changes to arrangements in Northern Ireland should have the support of parties that represent the majorities of unionism and nationalism. We are always open to ideas about how the institutions will evolve, so long as any reform or evolution is consistent with the underlying principles of the Belfast agreement which, to our minds, should be sacrosanct.

I am very grateful to both the noble Lord and the noble Baroness. I will take on board a number of their comments in discussions that I will have with the Secretary of State as we chart the way forward over the next few weeks and months with the sincere hope that the Belfast/Good Friday agreement is upheld, maintained and protected, and the institutions restored as soon as that is possible.

[Lord Hain (Lab)]

Like my noble friend Lord Murphy and the noble Baroness, Lady Suttie, whose responses I commend, I welcome this Statement. However, I stress that there is only one way in which we will get the devolved Government up and running: to succeed with the negotiations over the protocol. I hope that the Government and these early signs of the Secretary of State’s stance over recent weeks—as well as the Prime Minister’s meeting with the Taoiseach—are good signs. Trust between London and Dublin has basically been at a level of zero for quite a while, and it is not much better with Brussels.

To be perfectly honest—I hope the Minister will not take this amiss—we negotiated the Good Friday agreement and the St Andrews agreement even though they were “It will never happen” agreements; my noble friend Lord Murphy was directly involved in the former, and myself in the latter. By comparison, the negotiations with the European Union are relatively straightforward. There need to be much more flexibility and creativity on the part of London and less dogmatism over such matters as the European Court of Justice—the noble Lord, Lord Thomas of Gresford, suggested a solution to that which I commend to the Government—as well as over the question of the democratic deficit, and the Northern Ireland parties need to have consultative rights with Brussels over issues affecting them due to the protocol. Norway has those although it is outside the European Union; like Northern Ireland, it is in the single market. Northern Ireland should have those consultative rights. I therefore urge the Minister and the Secretary of State to impress upon the Prime Minister that there needs to be more flexibility on the part of the British Government, then we can sort the protocol, get Stormont up and running again and the devolved Government of Northern Ireland doing their job.

[Lord Caine (Con)]

I am grateful to the noble Lord, another distinguished former Secretary of State, for his comments. Of course, I absolutely agree that the single biggest obstacle to the restoration of devolved government is the current operation of the Northern Ireland protocol, which is why the Government are absolutely determined to keep what is working within the protocol but to remedy the clear defects that are apparent. We have had very lengthy debates about this in Committee on the Northern Ireland Protocol Bill over the past few weeks. The Government’s clear preference is that we have a proper negotiated outcome and an agreement with the EU but, of course, if that is not possible, we will have to take action as set out in the Bill itself.

The noble Lord referred to the need for the Government to show a greater degree of flexibility. I wish he had added something about the need for the European Union also to adopt a less theological and less dogmatic approach to certain matters. However, I agree with his aspiration that we manage to come to an agreement with the EU to resolve these issues so that Stormont can be back and up and running again as quickly as possible.

[Lord Browne of Belmont (DUP)]

My Lords, I too wish to be associated with the remarks the Minister made regarding the untimely death of Dr Phoenix. If the current negotiations taking place with the European Union on the Northern Ireland protocol fail to deliver any major changes, I think it is unlikely that the Assembly will resume. Can the Minister therefore confirm what he has just said: that the Government will therefore act on the protocol Bill which has been agreed by the other place?

[Lord Caine (Con)]

I am grateful to the noble Lord speaking for the DUP. As he is well aware, the Government are committed to making changes to the protocol through discussions with the European Union that are currently taking place. We all hope that they will be successful, but in the event that that is not the case or is not possible, we remain committed to the provisions of the Bill.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I would like to be associated with the Minister’s comments about Dr Éamon Phoenix, a lecturer in Irish history at Stranmillis, one of the colleges of Queen’s University Belfast, who had a particular emphasis on Ireland and Northern Ireland. Dr Phoenix was a very eminent historian, giving talks on a regular basis and writing documents about historical analysis, with particular reference to the current situation with the Good Friday agreement, particularly over the last 25 years.

The Government were correct to pause the elections. As my noble friend Lord Murphy said, it would simply have increased the level of polarisation in Northern Ireland. Rather gently, I say to the DUP that no political ideology, no matter how dearly held, should prevent the restoration of the political institutions. Over the last weekend, we have seen a health service in crisis. The Royal Victoria Hospital in Belfast and the Antrim Area Hospital have been unable to deal with accidents and emergencies that have arrived at their front doors.

As a follow-on from the Statement, and from the Elections Act 2022, what negotiations will take place with the political parties regarding the statutory designation of the First Ministers as joint First Ministers to reflect their equality of power and equality of say in terms of partnership and co-operation, and will such a provision be made in the forthcoming legislation on foot of this Statement?

[Lord Caine (Con)]

I am grateful to the noble Baroness and echo the comments about Dr Phoenix. I was present at a talk on the road to partition that he gave to the British-Irish Parliamentary Assembly when I was briefly a member last year. It was an outstanding lecture and, of course, he played a great role in some of the work around the decade of centenaries in Northern Ireland from 2012 onwards.

The noble Baroness referred to opposition to the protocol. The Government have been very clear throughout that we do not regard opposition to the protocol as a justification for not being part of an Executive, just as, I hasten to add, we did not regard the Sinn Féin position between 2017 and 2020 as remotely justified. We have been pretty consistent on that.

The noble Baroness rightly referred to the problems in the NHS. I spoke of the £660 million black hole in the Executive’s finances and the impact it is having. It is why we will have to bring forward budget allocations and a budget Bill in Westminster. It is very regrettable. These are matters that should be dealt with in the Northern Ireland Assembly. However, we must provide some certainty and the ability to protect key public services at this time.

On the noble Baroness’s point about First Ministers and Deputy First Ministers, of course there will be ongoing engagement between Ministers and Northern Ireland political parties. At the moment, our first priority is to get the institutions back up and running. However, as I said in responding to the noble Baroness, Lady Suttie, we are not against reforms and evolution of the institutions, so long as we proceed on the basis of agreement and sufficient consensus.

[Viscount Stansgate (Lab)]

My Lords, I welcome the Statement and the news that action will be taken to extend the legislative formation of the Assembly, and to enable time and space for the talks to be taken forward. Probably everyone in this House hopes that those talks succeed.

I hope the House will not mind if I make two observations. I have been to Northern Ireland and seen the Assembly in action on many occasions over years when it was in operation. I organised the annual “Science & Stormont” event, on which all the major parties in Northern Ireland co-operated to co-sponsor. I have seen the capacity of the Northern Ireland Assembly to work together for the good of the people of Northern Ireland.

I very much hope, as referred to later in the Statement, that progress can be made despite all the difficulties. I am mindful of the fact that it was possible for the Northern Ireland Assembly to meet when Her late Majesty the Queen died. There was a Speaker and tributes were paid from all sides of the Assembly. I would have thought—I hope the Minister agrees—that if it is possible to do that on the death of the Monarch, it is possible to restore the Assembly to the working order we all hope for in the future.

[Lord Caine (Con)]

I am grateful to the noble Viscount for his comments and his long-standing involvement and commitment. He makes some pertinent points about the Assembly and the need to get it back up and running. As I say, the Government’s clear position is that the current situation is not justified and it would be far better for all if the Assembly was functioning in the way intended. He refers to people coming together; in the context of approaching the 25th anniversary of the Belfast/Good Friday agreement, this serves as a useful reminder of Northern Ireland’s huge potential, notwithstanding the current challenges we all face, to thrive and prosper when people work together on all sides.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, it is well known that the Secretary of State, beating his chest and saying, at one minute past midnight, that an election would be called, was endeavouring to blackmail the DUP into the Executive. It did not work. Make no mistake: the DUP is not afraid to go back to the electorate after honouring what was pledged in the previous election. It is interesting that the noble Baroness, Lady Suttie, and the Alliance Party are suggesting a reform of the institutions because of the present stalemate. The Alliance Party did not say the same when Sinn Féin put the Assembly down for three years. Let us therefore have a little balance.

Can the Minister confirm whether, when the Secretary of State was discussing the internal affairs of Northern Ireland—the date of an election to the Assembly in Northern Ireland—he consulted the Foreign Minister of the Irish Republic? This would be in contravention of strand 1 of the Belfast agreement.

[Lord Caine (Con)]

I am grateful to the noble Lord. He will not be surprised to hear that I would not characterise my right honourable friend the Secretary of State’s approach to this as attempting to blackmail any party in Northern Ireland. He was rightly setting out the legal position in which he found himself, at one minute past midnight on 28 October. As the noble Lord is aware, having consulted political opinion widely in Northern Ireland, the Secretary of State took the view that an election would not be the right course at this time—hence the extension and the legislation.

As far as the noble Lord’s other point is concerned, of course the Secretary of State has numerous discussions, but the important point is that strand 1 issues are—and remain—for the United Kingdom Government and the Northern Ireland parties. That is clear. We are always committed to the three-strand approach to Northern Ireland, including for the internal affairs of Northern Ireland, which are matters for the UK Government in discussion with Northern Ireland parties.

[Lord Judge (CB)]

May I return to the protocol, please? On how many occasions have there been negotiations and discussions specific to the issues raised in the protocol between the UK Government and the European Union, first, at Secretary of State level and, secondly, at any ministerial level? When will the next such meetings take place at each of these levels?

[Lord Caine (Con)]

Forgive me if I misheard the noble and learned Lord. Is he referring to discussions between the UK Government and the European Union?

[Lord Judge (CB)]

Yes, on protocol issues.

[Lord Caine (Con)]

I cannot give the noble and learned Lord a precise date for the next meeting, but there are ongoing discussions, as he well knows. The Foreign Secretary and Maroš Šefčovič have now spoken and met on a number of occasions. I can only reiterate what I said in response to earlier questions: we are determined to do whatever we can to secure a negotiated agreement that will remedy the defects in the protocol, preserve what works and facilitate a situation in which all parties can go back into a restored Executive for the good of the people of Northern Ireland.

[Lord Judge (CB)]

On how many occasions have meetings taken place, specific to the protocol, at Secretary of State level and ministerial level, with EU equivalents? There can have been only so many—one, two, 10, 15. If the Minister does not know the answer, I am perfectly happy to receive a letter.

[Lord Caine (Con)]

If the noble and learned Lord will forgive me, I will endeavour to write to him.

[Baroness Bennett of Manor Castle (GP)]

My Lords, in responding to the noble Baroness, Lady Ritchie of Downpatrick, the Minister said that the Government were not against reforms to the process. I believe that he was referring to reforms of institutions, in particular the way in which the Executive are constituted. Will he go further in saying that, to restore full faith in the process for the people of Northern Ireland, reforms are indeed necessary? Further to that, does he agree that it is crucial that people have a full understanding and involvement in the democratic process at all levels; and so, should there end up being a Stormont election next year, it would be absolutely essential that it were not combined with local government elections, as that would further complicate and involve matters that should be kept separate?

[Lord Caine (Con)]

At the moment, the priority has to be to try to re-establish the institutions. Of course, people will bring forward ideas about potential reforms to the institutions, and we are not against that. They have evolved over the years. Reference has been made to the election of First and Deputy First Ministers. The system that we now have in place following the agreement that the noble Lord, Lord Hain, negotiated at St Andrews is different from the one in the original Belfast agreement. There have been subsequent changes around a number of issues such as facilitating official opposition. I do not particularly want to get drawn into specifics on this. The priority has to be to get the institutions back up and running. Of course, next year is the 25th anniversary of the agreement. Assuming that the institutions are back up and running, which I hope they will be, that may well be a time when we need to reflect on whether there are things that can be done to make the institutions work better. Regarding the noble Baroness’s last point, I will not speculate on the dates of elections.

Northern Ireland Protocol Bill

Lord Caine Excerpts

Committee stage
Wednesday 2nd November 2022 Lords Chamber

[Baroness Chapman of Darlington (Lab)]

I would expect that, too, and I think it is regrettable that we have got to where we are. I was one of those people in the other place who very regularly got up and asked Ministers about Northern Ireland and what the plan was, because there were obviously going to be these issues. There were other solutions; we could have had a customs union or some kind of single market arrangement that would have maybe dealt with this in a slightly different way. I remember talking to one of the noble Lord’s colleagues who said, “Well, we don’t mind what it is as long as we’re all treated the same within the United Kingdom”. Ministers cannot be surprised that we are still having these discussions now.

I want to talk a little bit about this issue of cross-community consent; I am just reflecting on the speech made by my noble friend Lady Ritchie on Monday. It seems clear that the intention of Ministers is to protect the Article 2 rights of individuals, the Article 3 common travel area and the north-south co-operation in Article 11. We have debated the protection of the rights of individuals before, but what we really need is some sort of assurance from the Government that those intentions are reflected throughout the Bill in a consistent and watertight way. So can the Minister confirm that there is no prohibition on the overriding of Article 18 of the protocol, which deals with cross-community consent? We have rightly heard a great deal about this issue, and I would like the Minister to address it to make sure that I have understood it correctly.

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

My Lords, I am very grateful, as ever, to the noble Baroness, Lady Ritchie of Downpatrick, for moving Amendment 25. Much to my astonishment, the debate has veered away somewhat from the strict terms of her amendment. However, let me say at the outset, as I have said before, that I very much share the noble Baroness’s frustration at the lack of a sitting and functioning Northern Ireland Executive and Assembly. Of course, one of the motivations behind this legislation is to try to facilitate a situation in which those institutions might be restored. It is sensible that we always go back to why we are doing this and why we are legislating.

I can also sympathise with the intention behind the noble Baroness’s amendment, but the Government’s view is that it is unnecessary. To answer the noble Baroness, Lady Suttie, and I think to some extent the noble Baroness, Lady Chapman of Darlington, the Government have absolutely no intention whatever to use the powers in Clause 15 to alter the operation of the democratic consent mechanism in Article 18.

I appreciate that there are different views on the mechanism itself; they were aired to some extent a few moments ago. They have been debated extensively in this House, and I seem to recall that they even managed to make their way into the debate on the Ministers, elections and petitions of concern Bill at the end of last year and the beginning of this one—so, if my noble friend Lord Dodds of Duncairn will forgive me, I do not really wish to reopen that whole debate again at this late hour of the evening.

To answer the further question from the noble Baroness, the vote in the Assembly will be on Articles 5 to 10 of the protocol.

[Baroness Suttie (LD)]

Is that the protocol as amended, or the original?

[Lord Caine (Con)]

The vote will be on Articles 5 to 10, regardless of any changes in domestic law made by this Bill.

The noble Baroness, Lady Ritchie, will recall that securing the consent mechanism was, in the view of the Government at the time, one of the key measures which paved the way for them to agree to the revised Northern Ireland protocol in the autumn of 2019. It follows therefore that it would make no sense for the Government subsequently to remove what was seen at the time as a key part of the protocol. It is perhaps because this point is so self-evident to the Government that we did not see the need to protect this element of the protocol under Clause 15(1). The clause is not intended to provide an exhaustive list of every single article of the protocol that we do not intend to alter and therefore we have not listed other articles which we have no intention to amend.

For the avoidance of doubt, I can confirm to the noble Baroness that the democratic consent process remains an integral part of the Northern Ireland protocol. The protocol should not, and indeed cannot, continue unless it retains the support of a majority of Members voting in the Northern Ireland Assembly. Again, I hear the points made by my noble friend Lord Dodds of Duncairn in that respect, but I am just setting out the position as it stands.

I hope that this reassures the noble Baronesses, Lady Chapman, Lady Suttie and Lady Ritchie of Downpatrick, that we have no intention of using the powers to alter in any way the mechanism in Article 18.

[Lord Hannay of Chiswick (CB)]

The Minister gave a reply to the question about what the basis of the consent vote in 2024 would be, but I really did not understand what he said. Surely the vote in 2024 will take place on the Northern Ireland protocol and its arrangements for implementation as they stand at the time of the review, not as they are now and not as they would be if the Government unilaterally changed the protocol and destroyed it in the process—then there would not be a review at all. The answer is surely quite simple. It cannot be said with precision, because we do not know what the provisions of the protocol and those for its implementation might be at the time the vote takes place, but that is what it will be on.

[Lord Caine (Con)]

The noble Lord is right that it is probably not fruitful to speculate on what the circumstances might be in 2024. Our first objective is to have an Assembly in place that would be able to consider these matters and take the decision.

In conclusion, I hope I have provided some assurance to noble Lords about our intentions in respect of the powers in Clause 15, Article 18 of the protocol and the consent mechanism. I therefore urge the noble Baroness to withdraw her amendment.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I thank the Minister for his detailed explanation of the Government’s position. I also thank the noble Baroness, Lady Suttie, my noble friend Lady Chapman and the noble Lords, Lord Hannay and Lord Dodds, for their interventions. This has been a very useful debate underpinning the principle of democratic consent. Irrespective of our differing views on this, I think we all believe in the value of democracy and people making decisions.

I would hope that we could have those institutions up and running in the short term, so that the democratic wishes of the people of Northern Ireland could be protected. I will further examine what Ministers have to say in relation to the protection of Article 18. If I have any further issues, I will write to the Minister, under separate cover, so to speak, and I reserve the right to further examine this on Report if required.

--- Later in debate ---

[Lord Purvis of Tweed (LD)]

I rise to move the amendment in the name of my noble friend Baroness Ludford, to which I have also added my name. The brevity of my contribution should not be seen as representing any lack of seriousness in the intent behind them. It really is to seek assurance from the Minister at the Dispatch Box that the regulation-making powers in Clause 15(2) would not be exercised unless there has been consultation with the human rights bodies outlined in Amendment 26, and similarly that regulations will not be put forward under other elements of the Bill without similar consultation of the human rights bodies. I need not make the case as to why that is so important. It is simply a case of seeking reassurance from the Minister that, at the very least, consultation with these bodies will have been carried out before the Government bring forward any orders. On that basis, I beg to move.

[Lord Caine (Con)]

My Lords, I am very grateful to the noble Lord, Lord Purvis of Tweed—as opposed to Twiddle—for being very brief. I think that this is probably the shortest debate by far that we have had throughout this Committee.

I will address the two amendments together, if that pleases the Committee. As the noble Lord set out, these amendments would require Ministers to consult both the Northern Ireland and the Irish human rights and equalities institutions before making regulations under the powers in the Bill. As I set out—I hope fairly clearly—on Monday evening when I was addressing the amendments in the name of the noble Baroness, Lady Ritchie of Downpatrick, the UK remains fully committed to ensuring that rights and equality protections continue to be fully upheld in Northern Ireland, in line with the provisions of Article 2 of the protocol. I think that on Monday I referred to the fact that, given my own experience over many years in Northern Ireland, I completely recognise the importance of those human rights protections. I often cite them when I am defending and supporting the Belfast agreement, as one of the key pillars of that agreement. I hope that the noble Lord will accept that assurance.

This is why Article 2 is explicitly protected from being made an excluded provision in Clause 15. The institutions mentioned in Amendments 26 and 47 are, as I have just stressed, important and respected institutions, established by the Belfast agreement and the Northern Ireland Act 1998. They therefore deserve—at the risk of repeating myself—our full and strong support. They undertake important duties and any change to their remit should, of course, not occur arbitrarily.

I will try to assure the noble Lord: the Government do engage regularly with these commissions. I last met the Northern Ireland Human Rights Commission on 8 August. It has powers to provide advice to the Government on issues arising from Article 2 of the protocol, as things stand. Officials have already had meetings with the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland regarding a number of these powers. I believe that a further meeting is being scheduled very shortly.

More broadly, the Government have engaged extensively on the issues created by the protocol with stakeholder groups across business and civic society, in Northern Ireland, the rest of the UK and elsewhere, and we continue to do so. This amendment would compel the Government to do what in many cases they already are doing and intend to continue doing. However, the situation in Northern Ireland is pressing. Therefore, it is essential that in certain circumstances powers might need to be used quickly. In normal cases, the Government would of course engage with stakeholder groups in Northern Ireland, but there may be occasions when we have to move very swiftly.

In that context, the requirements set out in the two amendments to engage with the Equality Commission and the Northern Ireland Human Rights Commission before making any changes to how the Bill operates or using any of the powers in the Bill—even though most areas of the protocol do not touch on the commissions’ remit—would be disproportionately burdensome and risk delaying the implementation of solutions for people and businesses in Northern Ireland.

However, I cannot emphasise enough the extent to which the Government are committed to no diminution whatever in human rights protections in Northern Ireland, an integral part of the Belfast agreement. As such, I invite the noble Lord to withdraw the amendment.

[Lord Purvis of Tweed (LD)]

My Lords, I welcome the Minister’s commitment. I hope he sees very clearly that we do not doubt his commitment or his work in this area. The challenge we all have is that there may be a situation where he is no longer the Minister. We hope he will have as long a ministerial life as his noble friend Lord Ahmad of Wimbledon next to him, but that is not guaranteed in this world, so this is about having statutory protections, which we will reflect on. We are considering the question because it does not necessarily delay, nor is it burdensome, to consult human rights organisations before bringing forward amendments.

On the basis of the Minister’s commitment, we will reflect on this. However, in the meantime, I beg leave to withdraw this amendment.

--- Later in debate ---

[Baroness Chapman of Darlington (Lab)]

Very briefly, I very much welcome these amendments for many of the reasons that have been said. We favour a veterinary agreement with the EU to assist us in resolving some of the issues brought about by the protocol.

I use this opportunity to say that I agree wholeheartedly with what the noble Lord, Lord Purvis, said, but remind Ministers of the amendment on consultation and impact assessments that we tabled at the beginning of this process, which we will come back to and want to see addressed either at the end of this process or at the very beginning of Report, if the Government bring the Bill back. That has not gone away and, much as we have engaged with this Committee process, those asks that we had of the Government remain on the table.

[Lord Caine (Con)]

I am extremely grateful again to the noble Lord, Lord Purvis of Tweed, for proceeding at a canter. To some extent, as he said, we are, to borrow a line from “Wish You Were Here”, going over the same old ground—Pink Floyd, for the uninitiated.

I will address the amendments in the names of the noble Baroness, Lady Ludford, and the noble Lord together. Again, I will try to reassure noble Lords that the Government have engaged very broadly on the issues created by the protocol with groups across business and civic society in Northern Ireland, the rest of the UK and internationally. I remind the Committee of something that I think was raised on Monday: over the summer, in addition to routine engagement the Government held 100 bespoke sessions with more than 250 businesses, business representative organisations and regulators.

Within my department, Northern Ireland Office Ministers held discussions with a wide range of businesses and organisations, including a number of those not actually named in the amendments tabled by the noble Lord and his colleague, such as the Dairy Council, Hospitality Ulster, as mentioned by my noble friend Lord Dodds of Duncairn, the Northern Ireland Grain Trade Association, the Northern Ireland Meat Exporters Association and the Northern Ireland Poultry Federation, either individually or as part of the Northern Ireland Business Brexit Working Group. In fact, the noble Lord might or might not be aware that most Northern Ireland food and drink representative bodies—although not one of those listed in his amendment, Food NI—are members of the Northern Ireland Business Brexit Working Group, with which we engage regularly, as are the Federation of Small Businesses in Northern Ireland, the Northern Ireland Retail Consortium, the Northern Ireland Chamber of Commerce and Industry, and the CBI in Northern Ireland.

Alongside this engagement, we have made visits to a number of individual businesses. I reminded the Committee on Monday about a farm I visited between Newry and Armagh during the summer, where senior representatives of the Ulster Farmers Union were indeed present, and where we discussed a number of issues relating to the operation of the Northern Ireland protocol in respect of the dairy sector. So the Government have already been conducting a detailed programme of engagement to inform the specific design of the regime in Northern Ireland that will be created by this Bill, and I give every assurance that we will continue to do so.

The noble Lord’s amendments would compel Ministers to engage in consultation with specific organisations as set out in the amendment, but as I said, there are many others that we are in discussions with that are not mentioned in those amendments. In many cases, the consultations that would be set out in statute would not necessarily be pertinent or proportionate to the regulations themselves and would lead only to further delays in implementing solutions. For example, I think the Committee would agree that the Northern Ireland Food and Drink Association might not necessarily need to be consulted on VAT applied to domestic energy saving materials.

However, the powers in the Bill might need to be used quickly, and while in normal cases the Government would seek to engage with stakeholder groups, there may be occasions on which the urgency of a situation would make that unnecessary and therefore it should not be compulsory. Given the extent of the consultation we are already carrying out with business organisations and others in Northern Ireland, this amendment would risk tying the Government’s hands behind their back.

Regarding the publication of consultations, it is vital that we be able to have free and frank discussions in confidence with as many groups and organisations as possible, in which they can freely express their views to government, sometimes in forthright terms. I am sure the noble Lord would not want them to be constrained in so doing, but the amendment might well inhibit that. Of course, the outcome of our engagement will be considered and reflected in the final regulations, which the House, as has been mentioned in earlier debates, will have an opportunity to consider and scrutinise under the normal procedures. In our view, we do not need a statutory obligation to do something we are already doing with a far larger number of organisations and bodies than the amendment would have us commit to. In that spirit, I ask the noble Lord to withdraw the amendment.

On the government impact assessment set out in Amendment 74, I understand completely and sympathise with the desire for an assessment of the arrangements under the new regime. I will try to reassure noble Lords that while the Bill does not at present have an impact assessment, the full details of any new regime will be set out in regulations alongside and under the Bill, including the economic impact where appropriate. We do not, however, believe it would be appropriate to mandate by statute that the Government must in all circumstances produce an economic impact assessment before the Bill can be brought into full force. Conducting an impact assessment, while important, is not and never has been a statutory bar to making legislation, and for that reason I invite the noble Lord not to move Amendment 74.

[Lord Purvis of Tweed (LD)]

I am grateful for the Minister’s response and I am not entirely surprised by it. I mean no disrespect by that. There is a distinction between engagement—I welcome the engagement that is taking place—in how the Government are informed about the operation of the framework, and the regulations in the two parts: first, to change the exclusion areas, to alter them, to expand them and to diminish them; and, secondly, to bring forward regulations. When we in Parliament are then asked to approve them, our knowing that consultation has been carried out is an important factor when we are scrutinising them.

The second issue is consultation with the Trade and Agriculture Commission and the Competitions and Markets Authority. I will not labour the point, but it is certainly not tying hands behind Ministers’ backs to consult those organisations before bringing forward regulations, because that is a statutory duty in other legislative areas for the functioning of the UK single market. But I hear what the Minister has said, and I understand the engagement. It is reassuring that that engagement will carry on. I will, of course, reflect on the Minister’s comments in more detail, but in the meantime, I beg leave to withdraw the amendment.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the continued absence of a formal budget for the coming year is a pressing problem. While there may be a draft budget, departments are unable to plan ahead, and this undermines both consumer and business confidence at the worst time. As-yet unspecified changes to the protocol are a risk to the Northern Ireland economy, which is one of the reasons why we, and many business organisations, would like to see a detailed impact assessment from the Government, alongside indicative regulations. Engaging with those departments in the weeks and months ahead is very important, as they know the Northern Ireland economy far better than any Minister in Whitehall. Can the Minister outline how frequently these discussions are taking place in Northern Ireland? Have the Government shared detailed proposals with their Northern Ireland counterparts? If they have, why should not Parliament see what those plans are as well?

[Lord Caine (Con)]

My Lords, once again I am very grateful to the noble Lord, Lord Purvis of Tweed, for speaking to Amendments 29 and 30, which I will address together. I will try to be very brief in this response, because the answers are actually very similar to the ones I gave in response to the last group. That is, the UK Government, since this Bill was introduced, have engaged extensively across Northern Ireland on the use of the powers in the Bill, including with the Northern Ireland Executive, with Ministers in the Executive when Ministers were in place, and with Northern Ireland departments. The expertise of officials in the Northern Ireland departments, to whom the noble Lord has just referred, is absolutely invaluable and crucial, and I take his point about budgets. Obviously, there are ongoing discussions about how that issue needs to be addressed in the absence of a functioning Executive and Assembly—but I cannot really go much beyond saying that this evening.

As of a minute past midnight on 29 October, we have no Ministers. The views of civil servants are obviously constrained by their positions, but the engagement with them is absolutely invaluable. Once again, the amendments from the noble Lord, Lord Purvis of Tweed, seek to place on a statutory footing things that we are already doing. He has my assurance that we will continue to engage as widely and comprehensively as possible, including with the bodies to which he refers in his amendments. On that basis, I do not think I need to say a great deal more. We are committed to continuing that dialogue with all the relevant departments and bodies, so I invite the noble Lord to withdraw his amendment.