Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Hain Excerpts

Committee stage
Tuesday 24th January 2023 Lords Chamber

[Lord Dannatt (CB)]

I accept that point entirely. I meant people such as me who live in England—I am three-quarters English and one-quarter Welsh. It is people such as me whom I had in mind, fully accepting that veterans from Northern Ireland have a very different outlook on the whole matter—quite understandably—because they were living and working within their own homeland. I am talking about soldiers who were brought up elsewhere than in Northern Ireland. I apologise for poor use of our language.

[Lord Hain (Lab)]

My Lords, in supporting the amendment from the noble Baroness, Lady O’Loan, I will not repeat the cogent and compelling case she put. While Secretary of State for Northern Ireland I tried to grapple with legacy issues, which are incredibly difficult. I was bruised by them, and I had to withdraw a Bill I introduced that had been in gestation prior to my appointment because it was opposed by everybody. That is what should happen to this Bill.

However, I would have liked to support the Bill for that very reason of having grappled with these issues. I would particularly have liked to support the Minister, the noble Lord, Lord Caine, because of his commitment to Northern Ireland, his long service and the high regard in which we all hold him in this House. But the Bill is opposed by every political party in Northern Ireland, and by every victims group. They do not agree between themselves very often and they do not agree about the definition of a victim, but they agree in their total, unanimous opposition to the Bill.

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[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make is that pausing or stopping the Bill, as some have suggested—or if it gets to the statute book and it were to be repealed by a Government of a different colour in 18 months’ time or so; although I do not predict that for one second—we risk, in those circumstances, prolonging this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.

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[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.

[Lord Hain (Lab)]

My Lords, I will speak briefly first to Amendment 63, which seems to be based on the premise that if any investigation was carried out or any report written on a Troubles-related incident, that would be enough to take it off the desk of the commissioner for investigations, and that any request for an investigation must be rejected unless the family requesting it “has compelling new evidence”. However, we know that one of the genuine concerns of many victims and survivors is that the case of their loved one was never properly investigated in the first place. In many cases at the height of the Troubles, there were understandable security reasons why proper investigations by the then RUC simply were not possible. We also know that information was very often withheld from investigating teams.

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[Baroness Hoey (Non-Afl)]

I accept part of what the noble Lord is saying about how the victims feel about what has happened in the past and the need to understand more. However, does he not agree that the reality is that for the people from the terrorist organisations who perpetrated these acts, there are no records, as was said earlier, and there is nothing that at this stage will ever lead to anyone ending up in court and being found guilty? Indeed, many of those people who were involved with some of these killings have in fact been given letters of freedom and have been given immunity.

[Lord Hain (Lab)]

The point I am making is that there were files, and Operation Kenova has had access to those files. They are held principally by the security services but, under very strict conditions and with trust, the investigation has been able to retrieve information on a sensible basis without compromising the work of the security services, and that has been of great comfort for victims. That is my point and my concern about the noble Baroness’s amendment.

I turn to my Amendment 147. I thank the noble Lords, Lord Hogan-Howe and Lord Blair, both distinguished former Metropolitan Police Commissioners, together with the noble Baroness, Lady O’Loan, a distinguished former Police Ombudsman for Northern Ireland, for adding their names. The amendment is designed to ensure, as my noble friend Lady Ritchie has already argued, that the Bill does not prevent the continuation of the review into the Glenanne gang series, known as Operation Denton, which is expected to conclude and report in spring 2024—that is, after the Bill could have received Royal Assent.

What is known as the Glenanne gang series includes a significant number of murders and other terrorist offences committed in both Northern Ireland and the Republic of Ireland during the Troubles between around 1972 and 1978. The cases within the Glenanne gang series are connected by common features, such as individuals, weapons, areas or targets involved. In some of these cases, direct evidence has already demonstrated the collusion of police or security force personnel.

Various parties, including families, have significant concerns about the rigour and professionalism of previous investigations into these cases and have for many years sought a comprehensive, overarching, thematic analysis of the Glenanne series and the extent of any state collusion. On 5 July 2019, the Barnard judgment set out the requirement for an independent review of the activities of the Glenanne gang, a statutory requirement in accordance with Section 35(5) of the Justice (Northern Ireland) Act 2002 and Article 2 of the European Convention on Human Rights. The chief constable of the PSNI requested that the former chief constable of Bedfordshire Police, Jon Boutcher, carry out this review. It was named Operation Denton, commenced in February 2020 and is part of the cases being conducted under the umbrella of Operation Kenova.

To date, Operation Denton has identified 127 murders resulting from 93 separate incidents connected to this series. It has met and is supporting families of the victims. It has had success in securing the release of material from the Republic of Ireland through lobbying for and securing the introduction of secondary legislation by the Irish Government to ensure access to records held by the Garda to assist the review. It is anticipated that Operation Denton will conclude and report publicly and to families no later than spring 2024.

Operation Denton is so well progressed and has developed such strong levels of trust and confidence with the families that it would cause unnecessary delay to the review—and, crucially, undue stress to families, who have suffered grievously already—for this inquiry to be passed to the ICRIR. It is important therefore that Operation Denton be allowed to complete its work. I hope that the Minister, who I see is nodding, will confirm that in his reply to this group of amendments. The lawyers and NGOs supporting the Glenanne series’ victims and families have indicated that they will legally challenge any decision to stop Operation Denton and will not co-operate with the ICRIR, such is their confidence in the work currently being done.

In conclusion, it is almost certain that Operation Denton’s work will be completed and families informed of its findings before the ICRIR is open for referrals. I therefore very much hope that the Minister will give the Committee the assurance that I seek and the absolute assurance that the victims desire.

[Lord Weir of Ballyholme (DUP)]

My Lords, I will deal first with Amendment 1. I support this probing amendment. That is not necessarily to make a judgment that what is in place at present is insufficient, but it is probing to establish whether what is placed in the legislation is comprehensive enough and whether it covers all the situations. There can be nothing worse than finding that there are inadvertent consequences and that, through a degree of misunderstanding or because we have not been exacting enough, some people are excluded wrongly, or perhaps even that the net is drawn too widely on other occasions. As I said, I draw no conclusions as to whether that is the case at present but I will listen with care to the answers given by the Minister on that.

To take the last point on Amendment 147, I have some sympathy for the case that the noble Lord put forward. However, I have some level of reservation. It is undoubtedly an investigation into one of the most horrendous series of murders that have taken place; they were horrific, and it is correct that they should be condemned. Where I have a little reservation in perhaps suggesting that the whole Bill is flawed is that if we start looking at individual operations, however well advanced, and singling them out for some level of exemption, that can create a concern that other areas of investigation into horrendous murders which are needed are not also covered. That is my concern about Amendment 147.

On Amendment 52, again, I look forward to what the Minister will say on that. I have some reservations about it. At the moment, there is a five-year period in which there is an opportunity for a request to be made. It is hard to see in genuine cases why a family would not make that within the five-year period, so I am not clear why this is necessary. Indeed, are we shifting the goalposts by making this entirely open-ended in terms of making the request? Therefore, at this stage I am certainly sceptical about that but I look forward to what will be said in connection with it.

I support the proposals put forward by the noble Baroness, Lady Hoey, in Amendment 63. The noble Lord, Lord Hain, made the point that there is a concern about the inadequacy of some investigations. I take that very much on board. However, what the noble Baroness says is proportionate, fair and practical. I say that because Amendment 63 would take into account what previous investigations had taken place. Surely the aim of the investigations in review is to bring everything up to the same level. If work has already been done, that should be built on where necessary. We should not look to duplicate work; that is from a practical point of view because there is a danger of the level of funding becoming open-ended to the extent that it is simply unaffordable.

We also need equality of treatment. There would be a concern that if we simply disregarded an investigation —indeed, if we have investigation after investigation in some cases—then some high-profile cases in which people are able to shout the loudest may go to the front of the queue and get an additional level of investigation, rather than there being equality of treatment for victims.

Amendment 63 has been carefully worded. It does not say that a previous investigation would preclude a review or an investigation. It would place the onus on the Chief Commissioner to take account of what has happened before. In many cases, particularly in the early days of the Troubles, that investigation might well have been inadequate. What information is available should be a key factor in determining the level of work that must go into an individual case. What is there is balanced.

The proposed opposition to Clause 7 standing part of the Bill is also in this group. I again have considerable sympathy for what has been put forward. Undoubtedly, we must ensure that the net for what evidence is inadmissible to the courts is not thrown too wide. There is a concern that what is presently within Clause 7 is not fit for purpose and, at the very least, creates elements where clarity is needed. For example, it is not clear in what circumstances an applicant for immunity would provide information that is not connected with the application process. Perhaps the Minister can expand on this. Separately, Clause 7(3)(b) has the effect of making material that is later obtained “as a result” of material provided by the applicant inadmissible. That seems quite tenuous. We must ensure that the inadmissibility net is not any wider than it needs to be.

There are considerable concerns over Clause 7. I know that the Government are proposing some changes to it but again, there is a lack of clarity. For example, there is an interaction between admissibility of material, as mentioned in Clause 7, and Clause 23, on the provision of information to prosecutors. That needs to be clarified. If Clause 7 was to remain within the legislation, the Minister must clarify what impact Clause 23 has on Clause 7. Without such clarification, there would be a strong case at least for re-examination of what is in Clause 7, and perhaps for exclusion altogether.

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The remaining amendments in my name in this group would make all the necessary consequential changes to place in the Bill the obligations that the UK has in cases of deaths resulting from violence during the relevant period and cases involving allegations of torture in terms of the processes to be adopted by the commission in the conduct of its business. By using only the term “review”, the Bill as drafted is insufficient, even taking into account government Amendment 76, since it does not, as has been roundly stated internationally and repeatedly, impose the duties and obligations inherent in the existing legal obligations of the UK, which are guaranteed under the Good Friday agreement. Noble Lords have repeatedly acknowledged in this House the importance of not undermining that agreement. I beg to move.

[Lord Hain (Lab)]

My Lords, I support Amendment 2, which has been so ably moved by the noble Baroness, Lady O’Loan. I shall speak specifically to Amendment 72 standing in my name and those of the noble Baronesses, Lady Suttie and Lady Ritchie, and the noble Lord, Lord Cormack. I am grateful for their support and for the backing that these amendments have had from victims’ groups in Northern Ireland, especially the WAVE Trauma group, which, notably, represents victims from all parts of the community. That breadth of support is also the case for Amendments 112 and 124, which are also in our names.

Amendments 72, 112 and 124 form a coherent whole and a coherent alternative to this most objectionable Bill by putting on a statutory basis a process for addressing the legacy of the Troubles that will command cross-community, cross-party and cross-victim-group support where this Bill, with or without the government amendments tabled by the Minister, most certainly does not. With or without those government amendments, the Bill remains totally toxic. Our amendments would transform the Bill into a consensual one, and I very much hope that the Minister will be able to persuade the Defence Secretary and the Northern Ireland Secretary to support them, because if not then we will need to divide the House on them.

I come to this issue of legacy not from a legal or policing perspective; there are other noble Lords who have that experience, and no doubt they will speak to these amendments and others, drawing on their expertise. I come to it, as I know others will, with a degree of humility, trying to put myself in the shoes of those who are looking to us—looking specifically to your Lordships’ House to do this in a way that the Commons so palpably failed to do—to help them to try to address issues that have scarred them emotionally and psychologically, and in some cases physically, for decades. As I made clear at Second Reading and in the debates on the committal Motion, I do not think that the Bill as drafted does that in any way. Indeed, I think that for many it will have the most devastatingly adverse impact. I have proposed amendments that would turn a terrible Bill into one that could command acceptance.

As I have said before, I do not envy the noble Lord, Lord Caine, his task of taking this legislation through the House. Given his long experience in Northern Ireland and the great respect in which the whole House holds him for his knowledge and care for Northern Ireland, I doubt very much that, had he been asked to frame legislation to try to deal with the pain and trauma of Northern Ireland’s horrifically violent past, he would have come up with the Bill before us or indeed the amendments that he has tabled on behalf of the Government to try to remedy its most awful features. Bluntly, his tweaks here and there do not fix this fundamentally flawed Bill.

With his customary courtesy, the Minister wrote to Peers in advance of Committee, and I thank him for that, as I do for the meetings that he has readily offered to me and others to discuss the matter. In that letter, the Minister writes that he understands that

“for many in Northern Ireland the legislation is extremely challenging”.

I am afraid to say that in this context the Civil Service word “challenging”—I recognise it from my ministerial experience—must enter the lexicon of ironic political euphemism. To the victims and survivors of the Troubles, who should be at the heart of what we are trying to do, this is not challenging; it is devastating.

We have been told that the Government has been engaging with key stakeholders since Second Reading. Government Ministers and officials may well have heard what victims and survivors have had to tell them, but I am afraid they have not listened. They still seem intent on seeing though a kind of Faustian pact between the state and those who brought injury, death and destruction to thousands of our citizens. Putting the interests of perpetrators though a low-bar immunity process over the needs of victims is not only morally corrupt; it is politically disastrous.

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[Baroness O'Loan (CB)]

My Lords, I apologise and crave the indulgence of the Committee. On the point that those who are dealing with certain ongoing investigative processes get no updates, as police ombudsman I established a process of six-weekly updates for complainants. I know that the police ombudsman has contact with the families and a lot of very good work has been done on that process. It is for that reason that there is confidence in the police ombudsman processes. I can tell the Committee that the police ombudsman has no power to investigate anyone other than police officers. That is the deficit there: it is that they cannot investigate civilians or soldiers. I hope the noble Lord will forgive me for the intervention.

[Lord Hain (Lab)]

I am very grateful to the noble Baroness for her interruption. She makes a telling correction, or at least clarification, to the point I make. I agree with her, and take her point entirely, especially having worked with her and respected her for her work when I was Secretary of State.

However, there is regular contact with the families and regular updates; that should be the model adopted going forward. Not only is Kenova a model of effective police work and a model for how to work with the families concerned but it has the most robust governance and oversight structures in place. Two of our distinguished colleagues in this House, the noble Baroness, Lady O’Loan, and the noble and right reverend Lord, Lord Eames, serve on one such body, along with those who have extensive international policing experience. That is the model that should be adopted for any investigative process coming out of this legislation.

In bringing my remarks on this amendment to a close, I confess that I am still not absolutely sure where the Government stand on Operation Kenova. For a time, the mantra was trotted out at official and ministerial level that Kenova could not be said to be successful because no prosecutions had resulted. This was disingenuous at best. The Secretary of State who peddled this line knew full well that over 30 files sat with the seriously overstretched and underresourced Public Prosecution Service in Northern Ireland and have now done for three years or so. I will refer more to this in the debate on Amendment 136. If cases do not come before the courts for whatever reason, one cannot blame the investigation. Now it is conceded by Ministers and officials that Kenova does good work, but we are told it could not be upscaled, because it would be too expensive and investigations would take far too long. Jon Boutcher has made it clear that in his view the essential elements of Operation Kenova could be upscaled and investigations completed within a manageable timescale and not at an eye-watering cost.

I said at the outset that this is bad legislation. Our amendments could turn it into acceptable legislation and surely the Government are therefore duty bound to accept them.

[Lord Cormack (Con)]

My Lords, I was very glad to add my name to the amendment tabled by the noble Lord, Lord Hain, and will speak briefly in its support. I also pay tribute to the noble Baroness, Lady O’Loan, for the way in which she introduced this mammoth group of amendments.

As I listened to the noble Baroness, and to my friend, the noble Lord, Lord Hain, I kept thinking of those immortal words from the Irish story: “I wouldn’t have started from here.” What we have is a terrible ragbag of a Bill. Of course, I agree with the noble Lord, Lord Hain, that if our amendment were accepted, the Bill would be very significantly improved. However, we really need to go back to the drawing board here. The Bill is far too complicated and complex. It tries to treat a whole range of people with what I would call an artificial equality and, in the process, upsets everybody. We have heard that quoted time and again, at Second Reading and in the debates today. You cannot please everybody; you have to try to be fair and just. In particular, you must have regard for those who have been slaughtered or maimed in terrible incidents of which they were not the perpetrators and where they were seeking to defend what was right.

The House does not need me to give a whole series of encapsulations of dreadful events such as Enniskillen. But we cannot have this Bill because it does not recognise—as the noble Lord, Lord Dannatt, put it graphically earlier in our debate today—for instance, the proper desserts of the veterans of those forces who were seeking to defend, and who were not engaged in terrorist acts.

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[Lord Hogan-Howe (CB)]

My Lords, I rise briefly to support the amendments. First, I was struck during the debate by this distinction between investigations and reviews. Everyone agrees that investigations should follow but the question is whether there should be prosecutions. There are arguments around whether a review is really an investigation—do the families really get the facts? If we could agree that an investigation was not always followed by a prosecution, this may be something that we could start to agree on.

Secondly, it seems that there is a broad consensus that, as an approach, Kenova is good. The standards of connection to the families and of investigation have been supported by the people who most need this—namely, those who have lost family members.

Finally, there is a bit of a definitional issue around the difference between a review and an investigation, and we will have to address that at some point. One of the things about an investigation is that, obviously, there is always an interview with the suspect. It has to be conducted by the rules of evidence and there is the potential for a charge at the end. One of the dilemmas with any review, including Kenova, is that a review can consider material that is not evidence. I will make two broad points in that area.

First, as we have heard, Kenova is looking at intelligence material from other countries as well as from within the UK. It may be able to look at such material but it will not be able to quote it or quote it in a court. Secondly, it is impossible to use intercept material—intercepted communications, usually by telephone—as evidence in the UK unless it has been obtained in a jurisdiction in which it is legally possible to use it as evidence. It is ironic, but that is our system. Reviews are able to consider telephone communications that may be indicative of, but not evidence of, certain actions or charges. That dilemma has to be resolved at some point because although the reviewer may be led by such communications to conclude that one particular person was responsible or a crime was committed in a certain way, they cannot quote it in a court of law—it regularly now has to be held back in serious and organised crime and terrorism cases. The only information that can be quoted in a court is the fact that the telephone call occurred, the time it occurred, who was at either end of the communication, and, more recently, where they were when they made the call, because there is information on mobiles. I raise this not because it is an easy answer for the Minister to give but because it is fair to put that dilemma in this domain.

[Lord Hain (Lab)]

I thank the noble Lord for his support, which is extremely important. In making that important point, would he agree, with his long experience, that this kind of looking into the facts, if I can put it that way, through what I will call a review for these purposes, may not lead to that evidence going into court, for the reasons he explained, but could and does help considerably under Kenova, as I understand it, in the truth-recovery process, which is at the heart of this, in practical terms, for 99% of these cases, and what victims want?

[Lord Hogan-Howe (CB)]

I entirely agree. If you are able to say to a relative, “We are aware of a call and we know the content but we cannot tell you what was said”, you can start to fill that gap, which exists for every family, around what happened, when and how, and what the end was like—these are terrible questions to face, but it helps. I agree entirely: it is part of that truth-sharing, but, to be fair to everyone involved, I have to say that there is an evidential barrier which is available to help a reviewer but not a criminal charge.

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[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 Troubles (Legacy and Reconciliation) Bill

Lord Hain Excerpts

2nd reading
Wednesday 23rd November 2022 Lords Chamber

[Lord Bruce of Bennachie (LD)]

I do not for a minute dispute that people have different motives for their objections, and they may have motives that I do not like or respect. But it is indisputable that no political party in Northern Ireland supports the Bill, yet the Government say they are determined to legislate against the wishes of all of the elected representatives of Northern Ireland. I repeat: those elected representatives should be sitting in Northern Ireland—

[Lord Hain (Lab)]

More importantly, all of the victims’ groups are opposed to the Bill. It is quite difficult to get them to agree on anything, but they agree in their opposition to the Bill.

[Lord Bruce of Bennachie (LD)]

I thank the noble Lord for that intervention, which is obviously important —it was my final point. The most important thing of all is that the victims should determine the shape of whatever legislation we come up with. They are the people who need to know and be consulted.

This is a distasteful point to make, but the Bill is being driven by a wing of the Conservative Party that wants to protect service personnel from prosecution, which does not help the victims in any way. I plead with the Minister and I look him straight in the eye, because I believe that he will relate to this. Whatever he comes up with—he says that he wants to amend the Bill substantially, and he will have to—it has to be something that the victims recognise and that addresses their real issues and their desire for hope and justice. He has to reconcile the rule of law, human rights and the needs of victims; that is a huge challenge. I believe that he genuinely wants to try to do it, and he deserves support and help to do so, but clearly, if he cannot, the Bill can go no further.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Hain Excerpts

2nd reading
Wednesday 23rd November 2022 Lords Chamber

[Lord Hain (Lab)]

My Lords, it is always a pleasure and a privilege to follow the noble Lord, Lord Cormack, whose care and concern for Northern Ireland has always been exemplary. I thank and commend the Minister for the last part of his speech, which I hope signifies a complete rewrite of this Bill, not just tinkering amendments. To his great credit, he was pretty transparent that it would not have been his Bill; obviously, it was drawn up by others higher up the government ladder. It needs rewriting completely if it is to pass this House.

I ask the Minister when he replies to answer this question on the record. Did I understand him correctly in saying that the only way immunity can be revoked under this Bill is if the perpetrator lied, not if evidence is uncovered showing that the perpetrator was guilty of, let us say, murder? I would be grateful if he could clarify that.

The word “Reconciliation” appears in the title of this Bill, and there is a cruel irony in that, because it is not about reconciliation and, if enacted, would not aid reconciliation. In essence, it is saying to victims and survivors of the Troubles in Northern Ireland, “What happened to you and your loved ones no longer matters”, and to the perpetrators of some of the most horrific crimes imaginable, “What you did no longer matters”.

What is set out in this Bill is utterly shameful, and I cannot support it. I will give your Lordships a worked example. On 10 August 1996, John Molloy had nearly reached his home in north Belfast when he was confronted by a group of young men and women. He was repeatedly stabbed in a frenzied attack and was left to bleed to death on the pavement. He was just 18 years old. Can the Minister explain to the House and, more importantly, to John’s still grieving parents, Linda and Pat, what precisely the difference is between the sectarian murder of John in Belfast and a racist murder in Leeds?

My right honourable friend the shadow Secretary of State raised this case in the other place but got no direct response. I hope that the Minister, who cares deeply about Northern Ireland, will respond tonight. Saying that Northern Ireland is a place apart just will not wash. It seems that with the protocol, Northern Ireland must be as British as Finchley, but when it comes to the life of a young man in Belfast, the Government’s legacy proposals in this Bill put Northern Ireland closer to Pinochet’s Chile.

This Bill, if passed in its current form, would offer the thug who murdered John the chance to seek a kind of legal absolution—indeed, it would encourage it. All that is required under this Bill as it stands is for the perpetrator to tell the story of that night to the best of their “knowledge and belief”. “I murdered him because he was a Catholic”—and that will be it. The perpetrator will be free to walk up to Linda and Pat Molloy and laugh in their faces. Perpetrators can boast about it to their friends and the world at large if they so wish, because Clause 18(14) of this Bill says that once granted, immunity cannot be revoked except, possibly, if a lie is discovered, no matter what they do subsequently. Are the Government seriously asking this House to sign up to that? Will we really sink so low, just because the Commons did so when the Government rammed it through, in the name of so-called reconciliation?

When the noble Lord responds to the debate, perhaps he could also explain to the House what comfort he thinks this process will bring to the Molloy family, or to the families of those murdered because they were Protestant while singing hymns in the Darkley Pentecostal Church in 1983; or to Jean Caldwell, whose husband Cecil was blown up by the IRA along with seven workmates at Teebane in January 1992. The Bill puts the interests of the perpetrators over the needs of victims and survivors at every turn. Perpetrators are given choices denied to victims and survivors. If any come forward, they will control the narrative: it will be their version of events, “to the best of” their “knowledge and belief”, as the Bill specifies.

The Bill is sold as protecting veterans and other servants of the state from investigation and potential prosecution where their actions have resulted in deaths which are contested. I should like to make some observations on that. The first concerns the number of references from the Government Back Benches in the other place to “vexatious prosecutions”. I am not a lawyer but I am not aware of that as a legal concept. Perhaps they mean “malicious prosecutions”. In any event, I have yet to hear anyone from the Government Front Bench take issue with it. In which case, when the Minister responds, will he tell the House which part of the Northern Ireland criminal justice system the Government hold responsible for these “vexatious prosecutions”? Is it the PSNI, the Public Prosecution Service, the judiciary or a combination of all three? Perhaps he could tell the House how many vexatious prosecutions there have been in Northern Ireland since 2010.

My second observation is on the line of attack—again, particularly from some elements on the Government Back Benches in the other place and expressed at Second Reading—that anyone opposed to this legislation is therefore hostile to those who have served and those who continue to serve in the Armed Forces. That is specious nonsense—indeed, worse: a vile calumny. Those of us who had the privilege to serve as Ministers in Northern Ireland, as my noble friends Lord Murphy and Lady Smith did, had the privilege of doing so under the close protection of the RUC, then the PSNI and the Metropolitan Police. We were always aware that those officers would be prepared to put their lives in danger to protect ours. We worked with successive chief constables and we fully recognise and salute the role of the police, who, often in the direst of circumstances, served to uphold the rule of law and protect the people of Northern Ireland.

Equally, former Secretaries of State for Defence and distinguished noble and gallant Lords who served at the highest level in the Armed Forces know first-hand of the professionalism and bravery of those we put on the front line in Northern Ireland. That is not to say, however, that they could do no wrong. The unqualified Bloody Sunday apology made by then Prime Minister David Cameron, for the behaviour of soldiers that terrible day, underlined that. The Minister explained his role in drafting it. If the authors of the Bill have their way, Lord Widgery’s cover-up inquiry—for that is what it was—would have been the final word on Bloody Sunday. Those killed in Ballymurphy, including a priest and a mother of eight children, would have remained a gunman and a gunwoman. The truth that emerged through that inquest would have remained hidden and the reputations of innocents been trashed forever.

Those who argue the veterans’ case also stress two other points. First, they do not want equivalence with those who brought murder and mayhem to the streets of Northern Ireland, to our cities here and beyond. The Bill does not differentiate because, as much as the Government might want to, they know it cannot.

Secondly, they say that if someone in uniform has broken the law, they must be held to account. Who can argue against that? It is what those who serve with honour want and deserve, but the Bill does not deliver that. It is specifically designed to close down all routes to justice and accountability, including civil proceedings and inquests. As the Bill stands, there will be no proper criminal justice investigations, merely reviews into the balance of probabilities standard. We must presume that a Bill coming before us has been drafted with great care. We must presume that the words used express precisely what the Government intend to be enacted —and we all know the difference between investigation and review.

To say that this could lead to the prosecution of anyone who refuses to take advantage of the immunity process—in effect, an amnesty—is disingenuous at best. A Director of Public Prosecutions could not put a case before the court on the basis of a balance of probabilities review. The effect of this legislation will be to make some of the most heinous crimes simply disappear. It is an insult to victims and survivors and an affront to the rule of law, which, as parliamentarians, we are all committed to uphold. Among other things, it will create the bizarre and absurd situation whereby someone applying for a job with an unspent conviction for shoplifting would be required to tell his or her potential employer but a self-confessed mass murderer would not. As the Bill stands, once the low-bar immunity is granted, it cannot be revoked, even if it subsequently transpires that the perpetrator has misled the Independent Commission for Reconciliation and Information Recovery, or indeed has re-engaged with a proscribed organisation.

There are so many fundamental flaws in this legislation that it may be that, as the Chief Commissioner of the Northern Ireland Human Rights Commission, Alyson Kilpatrick, told the Northern Ireland Affairs Committee, it is not capable of being amended. As she told the committee in a devastating critique of the Bill:

“It is clearly in breach of the Human Rights Act”


and it is

“not going to be possible to remedy this Bill, certainly not without very significant redrafting such that it would change the whole nature of the Bill.”

I am flatly opposed to the Bill and, given the opportunity, will vote to kill it. Meanwhile, any amendments proposed must fundamentally address the perpetrator, victim and survivor imbalance in this legislation currently before us.

I have heard it said that throughout the peace process, compromises on the rule of law were made and that this is simply another one. The Northern Ireland (Offences) Bill of 2005-06, which I introduced as Secretary of State, has been cited as one example. There is no doubt that it was difficult and controversial legislation, but it came nowhere near to granting the amnesty that this current legacy Bill explicitly does. Anyone who went through the offences Bill process would have had to appear in a special court. They would have emerged with a criminal record. They would have been required to submit fingerprints and DNA samples to the police and, crucially, any benefits they gained could have been revoked if they committed further crimes.

The last Labour Government worked towards the goal of inclusive power-sharing in Northern Ireland, including the devolution of policing and justice powers. We achieved the first part in 2007, when I was Secretary of State, and completed the process in 2010 under my successor. This legislation attacks that settlement to reassert the primacy of the Secretary of State—something else wrong with it. The chief constable will be instructed by the Secretary of State which cases can and cannot be investigated. The courts will be told which cases they can and cannot try. The Northern Ireland Justice Minister, the Northern Ireland judicial system and the Northern Ireland Policing Board, all central to the devolution settlement, will be overridden by the Secretary of State. Whether this is an intended or unintended consequence, it is a massively retrograde step by any measure. Indeed, the powers of the Secretary of State to control the whole legacy process run right through the Bill and that is deeply concerning.

My thinking on legacy matters has evolved over the last number of years. Those of us who have grappled with them know that these are difficult matters. The Minister has tried to grapple with them honestly as best he could over many years. In 2018, I and other noble Lords with a close interest in Northern Ireland, including the noble Lord, Lord Cormack, who signed the letter, wrote to the then Secretary of State about pre-Good Friday agreement prosecutions. I believed then, as I do now, that there was little to be gained by devoting precious police resources to cases where there was little prospect of a successful prosecution.

The Historical Enquiries Team completed work on 1,615 cases involving more than 2,000 deaths, yet only three resulted in prosecutions and convictions for murder. I still believe that the PSNI should be focused on keeping the population of Northern Ireland safe in the here and now and into the future, rather than precious police resources being diverted to legacy cases. I have put these points to the Minister in terms of the amendments that I, with cross-party support, intend to table tomorrow.

A key point is that there is now an alternative to the less than satisfactory arrangements we have been criticising. Operation Kenova, headed by former Chief Constable Boutcher, is a working model of the way to deal with legacy that provides the information that many victims and survivors desperately want, and at the same time leaves open the route to justice where the evidence reaches the necessary threshold. For the last two years, more than 30 files referred by Kenova have been sitting with the under-resourced Public Prosecution Service for Northern Ireland—a point made by the noble Lord, Lord Dodds, and he was quite right to do so.

It is quite wrong, however, for Secretaries of State to criticise Kenova for failing to deliver any prosecutions when they knew full well that none had been put before the courts by the PPS, because it is under-resourced. Kenova, under the leadership of former Bedfordshire Chief Constable Jon Boutcher, has widespread support from the families who work with it. It is a model that can be upscaled and at a lower cost than current strategies, and it would release the PSNI from the burden of legacy cases. As I said, I will be tabling amendments to try to introduce this into the Bill. I hope the Minister will accept them, because I think they will create a consensus around the Bill that is palpably lacking.

[Lord Hogan-Howe (CB)]

I thank the noble Lord, Lord Hain, for the opportunity to intervene. It was merely on his point about Operation Kenova which, as he said, has gained widespread support. It included four investigations and one review. The noble Lord, Lord Dodds, mentioned Operation Denton, which I believe is reviewing 93 incidents and 127 murders. Whatever happens with this Bill, it seems important that that review continues and is not interrupted by what the Bill delivers. The prospect of that being stopped would be a terrible thing for all the families who believe that progress is being made because of Chief Constable Jon Boutcher’s good work.

[Lord Hain (Lab)]

I am grateful for the intervention, particularly as the noble Lord has long experience of policing, and he makes telling points. In short, Kenova is the way in which we can get consensus in this House to proceed with the Bill, heavily amended. I have suggested some amendments that have cross-party support. The Minister has seen them privately and, if the issues are only technical, I am willing to discuss them with him to try to reach agreement.

In conclusion, we frequently refer in this House to the need to develop consensus in Northern Ireland on a range of issues, not least on dealing with the legacy of violence. With this Bill, the Government have contrived to create a consensus: it is opposed by every political party in Northern Ireland and by all victims groups. When the 2006 offences Bill faced that kind of opposition, I withdrew it. The Government should follow that example with this ill-conceived Bill. They must think again before they do irreparable damage to victims and survivors who have suffered so much already.

Northern Ireland Elections

Lord Hain Excerpts

Monday 14th November 2022 Lords Chamber

[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.

Northern Ireland: Operation Kenova

Lord Hain Excerpts

Thursday 14th July 2022 Lords Chamber

Asked by

[Lord Hain]

To ask Her Majesty’s Government what assessment Ministers have made of the Operation Kenova investigation into past paramilitary criminal offences in Northern Ireland.

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

My Lords, before I answer the noble Lord’s Question directly, I am conscious that between now and the end of this month we will see the 40th anniversary of the Hyde Park bombings, the 50th anniversary of Bloody Friday and the Claudy bombings and 32 years since the murder of Ian Gow, a friend of many of us in this House. All were heinous, wicked terrorist atrocities which were totally unjustified. Our thoughts, as always, are with the survivors and victims.

Operation Kenova has conducted much commendable work since its establishment in 2016, particularly through its ability to build trust and confidence with those engaging with its investigations. The Government very much hope that the best practices established by it will be carried through into the new legacy bodies once they are established.

[Lord Hain (Lab)]

I thank the Minister for his reply, particularly his reminder to the House about past atrocities, which we should never forget. Before the Northern Ireland legacy Bill, to which he referred, comes to this House, will Ministers agree to an amendment that I will table to adopt the Operation Kenova investigations model? Lamentably, the Government’s current amnesty provisions—that is what they are—favour perpetrators of atrocities over the needs of victims. Kenova uncovers crucial information because it is carrying out investigations to criminal justice ECHR Article 2-compliant standards, with 32 of its cases referred to the Public Prosecution Service, and so offers potential justice to victims and upholds the rule of law in a way the Bill does not. As currently drafted, the Bill does neither and is opposed by all victims’ groups and Stormont parties. Surely, Ministers should think again.

[Lord Caine (Con)]

The former Secretary of State for Northern Ireland makes a number of important points. As I said at the outset, Operation Kenova has conducted much commendable work and I pay tribute to the way in which Jon Boutcher has set about his task. The noble Lord probably asks me to go a bit too far in agreeing to amendments before we have even considered Second Reading of the Bill in your Lordships’ House. As he is aware from my record in taking other legislation through this House, I am always prepared to look at any amendment on its merits and give it due consideration. I am very happy to sit down with the noble Lord and any other noble Lords across the House prior to Second Reading to discuss the contents of the Bill.

Northern Ireland

Lord Hain Excerpts

Monday 7th February 2022 Lords Chamber

[Lord Caine (Con)]

The noble Lord, Lord Browne, will be aware—as I have said on a number of occasions—that the Government are strongly committed to remedying the defects in both the construction and the implementation of the protocol, which has led to a distortion of trade, disadvantaged consumers, led to societal problems and placed burdens on business, all of which is deeply regrettable. Yes, he has my assurance that we are committed to making progress and remedying the most obvious defects that we face.

[Lord Hain (Lab)]

My Lords, I remind the Minister, although he probably does not need reminding, that the last time Stormont was suspended it was down for three years, and the time before it was down for five years. I am sure he agrees that this is a very serious situation. It is critical that the Government accelerate the negotiations—I am sure there is a deal to be done—and work with the parties to get Stormont operating properly as soon as possible.

[Lord Caine (Con)]

I am very grateful to the former Secretary of State for reminding me of three very painful and frustrating years of my life after the Assembly and Executive were last in a state of flux and unable to function. It is important to remind the House at this stage that the First and Deputy First Ministers have ceased to hold office, but individual Ministers remain in office and the Assembly is still meeting. I think there are something like 28 pieces of legislation currently before the Assembly, and 15 sitting days before it is supposed to rise for the election in which to try to progress a number of them.

If the legislation to which I referred earlier is to receive royal assent shortly, there will be a period after the next election when Ministers can remain in place while an Executive is formed. So the situation is not—or hopefully will not be—exactly akin to that in which we find ourselves after 2017 and the noble Lord found after the Assembly fell in 2002. There are some important differences, but I entirely take his point about the urgency to get on with things.

Northern Ireland (Ministers, Elections and Petitions of Concern) Bill

Lord Hain Excerpts

2nd reading
Monday 29th November 2021 Lords Chamber

[Lord Hain (Lab)]

My Lords, before I congratulate the noble Lord, Lord Caine, on his promotion as Minister, with his long service in Northern Ireland I hope he will be able to bring much greater understanding to the Northern Ireland Office, which I once had the privilege to lead with some of the finest-ever civil servants and advisers. As things stand under the stewardship of the present Secretary of State, I am sorry to say that it will certainly need that.

As a former Secretary of State I, along with other noble Lords across this House who worked for many years to establish stable political structures in Northern Ireland, will support efforts in this Bill to safeguard power sharing and improve the sustainability of the Executive and the Assembly. There were hard lessons to be learned following the collapse of the Executive in 2017, and during the three long years until their restoration with the New Decade, New Approach agreement at the beginning of 2020. In so far as the Bill represents a sensible evolution of the arrangements for the appointment of Ministers following an Assembly election, or in the event of the resignation of the First or Deputy First Minister and restores the original purpose of the petition of concern mechanism, it should command the support of the House.

My serious concern, however, is that the legislation which the Government agreed to implement nearly two years ago will come too late to deal with the political crisis that will inevitably ensue if the current leader of the DUP carries out his threat to bring down the Executive and Assembly over the entirely predictable outcome of the Brexit deal negotiated and agreed by this Government—namely, the Northern Ireland protocol to the withdrawal agreement. There is no shortage of ironies in this potentially disastrous scenario. The DUP would bring down the painfully hard-won Northern Ireland Executive and Assembly over Brexit, which is way beyond its competence to deal with, and the political representatives of the people most adversely impacted will be kept out of the room while the negotiator-in-chief who got them into this shambles in the first place has another go. This is not an oven-ready Brexit; it is an Eton mess.

There are other aspects of the New Decade, New Approach agreement, which the noble Lord, Lord Caine, helped to negotiate, that are yet to be implemented—one of which, we are told, will imminently be legislated for—which cause me great concern. The NDNA agreement promised that within 100 days from 9 January 2020 the Stormont House agreement of December 2014, which set out the structures to deal with the legacy of Northern Ireland’s violent past, would be implemented.

Although noble Lords will have their views on the efficacy of the Stormont House agreement, it is an agreement not least between the UK and Irish Governments. On 18 March 2020, the Secretary of State for Northern Ireland announced in a two-page Written Ministerial Statement that the Government were unilaterally repudiating the agreement. There was no consultation with the victims and survivors sector in Northern Ireland, who are most directly affected, no consultation with the political parties in Northern Ireland, and no consultation with the Irish Government.

Fast-forward to July of this year, and the Government produced a Command Paper which in so many ways is the most shocking document I have come across in my 50 years in politics and in government. It proposes what is, in effect, a blanket amnesty which would include those who carried out some of the most unspeakable atrocities imaginable during what is still euphemistically called the Troubles. It would halt all court proceedings on crimes related to the Troubles, both criminal and civil. It would halt all inquests, even those currently listed for hearing. It would say to traumatised and still-grieving victims that what happened to their loved ones is no longer of any interest to the state, and it says to the perpetrators that what they did to those victims is no longer of any interest to the state—and this from a Government who purport to respect and uphold the rule of law. These proposals are legally dubious, constitutionally dangerous and morally corrupt, in my view. I am raising it here in an effort to get the Government to think again before the Bill is brought to Parliament.

On 24 October 1990, Patsy Gillespie, who worked as a civilian cook in an army base, was chained to the steering column of his van, which had a 1,200 lb bomb placed in it. While his wife and young family were held at gunpoint, he was made to drive the van to an army post. He shouted a warning but, while he was still in the driver’s seat, the bomb was detonated, killing Patsy and five soldiers. No one has been made accountable for this horrendous crime and, if the Government have their way, no one ever will be. The police in Northern Ireland are convinced that one of those responsible is today part of an active dissident republican group in Derry/Londonderry. If the legislation as currently proposed is enacted, who do you think will sleep easier in their beds: Patsy’s wife, Kathleen, or the people who turned her husband into a human bomb? Could any of us look Kathleen in the eye and say: “I voted for a law that will offer succour and protection to the men who robbed you and your children of the love of your life”? I could not, and I urge the Government to think again before their Bill is presented to Parliament.

In our joint letter in September 2018, a cross-party group of Peers, each with direct ministerial or parliamentary experience in Northern Ireland, suggested another way forward. So does Operation Kenova, so ably headed by former Chief Constable Jon Boutcher; having observed how Kenova is working, my thinking on dealing with legacy issues has evolved. In essence, Kenova prioritises an information-recovery process rather than a prosecutorial process, but—and this is crucial—it leaves open prosecutions if the evidence uncovered sustains those.

Victims and survivors will be properly served only through a criminal justice process that is compliant with Article 2 of the European Convention on Human Rights. I urge the Secretary of State, through the Minister, to change his proposals and follow a Kenova-type model, or I predict his amnesty for some of the most terrible crimes will face certain defeat in your Lordships’ House.

European Union (Withdrawal Agreement) Bill

Lord Hain Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting: House of Lords & Report: 1st sitting
Monday 20th January 2020 Lords Chamber

At the end of the day, it would have been better if the Government had legislated on unfettered access at this time. Like the noble Baroness, Lady Hayter of Kentish Town, I feel that, in the main, the reasons for not doing so are largely political—obviously, Downing Street does not allow it, but maybe the noble Lord the Minister would like to do it. I would like to see a change of heart on the Government’s part to support our fledgling, new Northern Ireland Executive and underpin businesses and the local economy in Northern Ireland. I beg to move.

[Lord Hain (Lab)]

My Lords, I support the excellent speech of my noble friend Lady Ritchie of Downpatrick. I remind the House that I spoke at some length and in detail in Committee last Tuesday, so I will speak only briefly in support of Amendment 6 and do so with increased urgency.

Since last week’s debate on essential damage limitation amendments to the EU withdrawal Bill—I remind the Chamber that they have the support of the entire business community and, as the noble Lord, Lord McCrea, pointed out last week, not just cross-party but all-party support in Northern Ireland—the Chancellor of the Exchequer has confirmed what many of us had long believed: that the Government are hell-bent on an ideologically hard Brexit that could do untold damage to the small and medium-sized enterprises that make up the overwhelming bulk of businesses in Northern Ireland.

When he told the Financial Times last week that there will be no regulatory alignment with the EU after Brexit and insisted that firms must “adjust” to new regulations, the Chancellor blithely said that businesses have had since 2016 to prepare. However, businesses in Northern Ireland were not presented with the Northern Ireland/Ireland protocol until last November, just a couple of months ago. How on earth are small and medium-sized businesses, which are the cornerstone of Northern Ireland’s private sector economy, supposed to adjust in only 11 months to a unique and complex set of relationships with the internal UK and EU markets —and just when the Northern Ireland economy slowed last year because of a contraction in the private sector?

When the Secretary of State said in terms in the other place that the Assembly and the Executive should take greater responsibility for Northern Ireland’s economic and financial future, I doubt that many here, or indeed in Northern Ireland, would say he was wrong, but the Government cannot have it both ways. They cannot demand that and at the same time inflict serious damage on many private sector businesses through erecting obstacles to trade across the Irish Sea and through their hard Brexit policies.

As was stressed by speaker after speaker from all sides of the Chamber last week, these amendments are essential to protect the very businesses that the Government say they want at the core of Northern Ireland’s economic future. They are intended simply to put into law what the Government profess to support: that there should be no impediments to trade in both directions across the Irish Sea.

The Minister wrote to noble Lords offering what I am sure he hoped would be reassurance on the issues raised here, but we are not remotely reassured. To be frank—I say this as an admirer of the Minister—the letters were full of warm words and elegant waffle. The core message was, “Don’t worry. Trust us and it will all be all right on the night.” But business leaders and politicians in Northern Ireland do not want mere reassurance. They want action and they want it without delay, through either accepting Amendment 6 or the Government coming up with their own mechanism in law that will have precisely the same effect.

I have huge admiration for the Minister. I know that he is in a difficult position because No. 10 is flatly refusing to listen and accept amendments, but that is not acceptable. Businesses in Northern Ireland should not be sacrificed on the altar of government dogma and be forced to incur obstacles and charges when trading both ways across the Irish Sea.

[Lord Eames (CB)]

My Lords, I added my name to that of the noble Baroness, who spoke so eloquently on this subject this afternoon, for one reason: throughout my professional life, I have come to value the core of Northern Ireland life through its business community. In many cases, those businesses were small. They are the heartbeat of the Northern Ireland community. Given the sensitivities of our situation both politically and economically—politically because of the sensitive nature of reaching the recent agreement, which we all welcome—and of our geographical position, having on our shore what is soon to become the border between the United Kingdom and the European Community, there is no better word than “sensitivity” to be adopted regarding the wording of the amendment.

During the lengthy debate in Committee, I coined the phrase “the reality of reassurance”. Behind what has already been said this afternoon, that remains the key reason why we make a strong plea to Her Majesty’s Government to take seriously not just the amendment’s wording and technicalities but the motive behind it: the reality of reassurance. No one can tell how this will develop once Brexit is a reality. The noble Baroness quoted the letter that came to us from right across the business community, which is united in making a plea for this reality of reassurance. At this stage, I simply say this: I realise the difficulties faced by the Minister and I accept the sincerity of his position, but I urge the Government to realise that there is a lot more to this amendment than simply technical phrases.

Northern Ireland Executive Formation

Lord Hain Excerpts

Thursday 16th January 2020 Lords Chamber

[Lord Duncan of Springbank]

I put on record my thanks to my noble friend Lord Caine. I know how much he has done in the Northern Ireland Office to bring about what has been achieved today. The success is owed not to any one individual but to a number of individuals over a very long period of time who have put their shoulder to the wheel. Again, I agree that this should allow us to move from that political paralysis. The key thing here is the sustainability of the institutions, which we must now ensure goes forward. We do not wish to be in anything like this situation again—ever, let alone any time soon.

As to the joint board and the notion of “devolve and forget”, the joint board, I hope, will provide that momentum and push to ensure that, where there are issues that require early engagement on a ministerial level, this will take place and will allow filtering down into the Civil Service on both sides of the water to ensure that we are able to get Northern Ireland back to where it belongs, which is what the people of Northern Ireland richly deserve.

[Lord Hain (Lab)]

I echo the congratulations that I made fulsomely in my speech during the withdrawal Bill on Tuesday evening. Is this executive joint board a form of conditional devolution? I do not necessarily ask that critically, because the Northern Ireland Executive have had a record of not making tough decisions. Being in government involves choices and, sometimes, tough decisions. I speak from 12 years of my own experience in government. For example, I introduced water charges before we got the settlement of 2007. They were very unpopular and acted as a spur to the agreement we got. They were immediately abolished by the new Executive, which deprived the water industry of the capital investment and finance it needed to modernise, and the consequences are to be seen. Also, combined water charges and household taxes in Northern Ireland are half the average across England, Scotland and Wales. They need to raise more of their own revenue.

[Lord Duncan of Springbank]

The noble Lord is right to bring this matter before us. Restoring the Executive might end up looking like the easy bit of the operation when we start to see what serious challenges over revenue the incoming Executive are confronted by. Very difficult decisions will need to be taken, and I hope that the joint board will be able to operate in a spirit of consensus in that regard. It is the job of the Secretary of State for Northern Ireland not to instruct this process but to support it as it goes forward. There will be difficult decisions in health and on the wider education question, and each will require Ministers to step up to the plate, which is how it should be. They must then face the electorate in due course to see whether they have done what they wanted done; they will be judged not by us sitting in this place but by the elections yet to come.

European Union (Withdrawal Agreement) Bill

Lord Hain Excerpts

Committee: 1st sitting (Hansard continued) & Committee stage & Committee: 1st sitting (Hansard continued): House of Lords
Tuesday 14th January 2020 Lords Chamber

Moved by

[Lord Hain]

13: Clause 21, page 25, line 6, leave out “may” and insert “must”

[Lord Hain (Lab)]

My Lords, at the request of my noble friend Lady Ritchie of Downpatrick, who has to attend a funeral tomorrow, I wish to move Amendment 13 and speak to Amendments 14, 16, 17 and 20 appearing also in the names of the noble and right reverend Lord, Lord Eames, and the noble Lord, Lord Empey, and with the blessing, I know, of the DUP, Sinn Féin and the Alliance Party.

We all welcome the restoration of devolved Stormont government and wish the Assembly and Executive well in taking Northern Ireland forward to what we all hope will be a better and more stable future. I have always maintained that, where there is deadlock in the political process, as we have seen over the last three years so tragically, it can be resolved only when the British and Irish Governments work together in a focused and positive way. There are former Secretaries of State in this House who I think will not disagree with that. I particularly commend the way in which the current Secretary of State, Julian Smith, approached the outstanding issues, working closely with the Irish Foreign Minister, Simon Coveney, ably supported by the noble Lord, Lord Duncan, and the Minister in the Commons. The Secretary of State has brought energy and commitment to the negotiations that, sadly, his predecessors lacked, and he was doing so even before the political arithmetic changed with the election last month.

It is in the context of the restoration of the institutions in Northern Ireland and, more crucially, their prospects for long-term stability that I urge the Government to accept these amendments. After all, they achieve what the Government themselves profess to support: namely, no impediments to trade across the Irish Sea. The purpose of these amendments is to protect the Northern Ireland economy from the clear and inevitable damage that leaving the European Union in the hard Brexit way seemingly envisaged by the Government will otherwise cause. They are not delaying or wrecking amendments—nor are they the last frantic efforts of deluded remainers or remoaners to thwart the democratic process. They are essential damage-limitation measures, supported by all the political parties in Northern Ireland. Let us pause on that: all the political parties. How often do we see that? And joined by businesses and civic groups, too.

Amendments 13, 14, 16, 17 and 20 hang together as a package. Amendment 13 replaces “may” with “must” in Clause 22, Part 1C, and new Clause 8C in Clause 21 in order to stiffen the drafting of the regulations that will be made under these provisions of the Bill. Otherwise, the problem is that the protocol either places Northern Ireland in a good place or between two bad things, where it will have its largest internal sales market putting barriers up to it and it will not have genuinely unfettered access to the EU market. That will put businesses in Northern Ireland at serious risk of competitive disadvantage on all sides.

Amendment 14 ensures that, in accessing the market within Great Britain, businesses in Northern Ireland must continue to be able to sell their qualifying goods to Great Britain without tariffs, origin requirements, regulatory import controls, dual authorisations or discrimination in the market. Also, Northern Ireland businesses will enjoy these rights to free access regardless of whether they trade directly with Great Britain or via an Irish port or airport.

Amendment 16 would ensure that any relevant regulations for new requirements on goods traded to and from Northern Ireland to Great Britain cannot come into force without the consent of the Northern Ireland Assembly—and, furthermore, that there must be no additional charges or administrative costs for the businesses involved in this trade. The reason for Amendment 16 is that, in their own impact analysis, the UK Government note that exit summary declaration forms will be needed for goods moving from Northern Ireland into Great Britain for the purposes of security and safety, listing the type and weight of goods in order to keep track of what kind of imports or exports are crossing economic borders. The Government estimate the costs as ranging from £15 to £56 per declaration. This too will add costs and friction to the movement of goods. Businesses will need support to adjust to these new requirements. They will also need proper training to adapt to them, and of course any additional costs will inevitably be passed on to consumers, unless the Government ensure there are no such additional costs, which is precisely what this amendment does, and what the Bill does not do.

Amendment 20 requires the Government to develop mitigations to protect Northern Ireland businesses and consumers within the UK internal market. By mitigations we mean demonstrable steps to safeguard their position. But we are not being overprescriptive—I urge the Minister to note this point—as to how this is done. We are simply asking for effective mitigating steps to be delivered by the Government in the way they choose. What objection to that could there possibly be?

--- Later in debate ---

[Lord Hain]

My Lords, I congratulate the Minister on a beautiful response to the question put by the noble Lord, Lord Teverson. I must say that the skill with which he did it was admirable. I am grateful to all noble Lords who have contributed to the debate. The noble Lord, Lord Empey, made a truly excellent speech, the key message of which was that this is not a partisan issue. This point was reinforced by the noble Lord, Lord McCrea—he has not often praised me, especially when I was the Secretary of State for Northern Ireland, even though his leader did from time to time—so when the Minister consults with the Secretary of State and No. 10, can he make that point? We are not trying to re-fight a battle that dates from before the election; we are trying to resolve a problem that uniquely affects Northern Ireland. The point was reinforced by the noble Baroness, Lady Altmann, and the noble Lords, Lord Teverson and Lord Bruce, who put it very succinctly when he said that all we are asking is to put into law what the Prime Minister has promised. That is what it is.

My noble friend Lady Smith urged the Government to compromise, like the parties in Northern Ireland have compromised. Perhaps we can urge No. 10 to compromise. Your Lordships’ House has been put in a difficult predicament in this situation; it is like a sword of Damocles hanging over us. Unlike with other Bills, where we can make a logical and reasonable case, as we have done on Northern Ireland in recent times—I acknowledge that the Minister has been good enough to respond creatively, with the Government behind him—and there is then a bit of give and take, this does not even seem to be in the arena. It is as if we might as well not have this debate because the Government are not going to consider it anyway. I therefore urge the Minister to transmit in crystal clear terms what has been said right across the House in this debate. It is actually a question of trust, as a number of noble Lords said. I have tried to go into the detail in a reasonably forensic way, but it does not seem that what has been said in public by the Prime Minister—I am not taking a party-political pop at him because that is not what we are about this evening—actually reconciles with the facts on the ground.

I come to the Minister’s admirable summing up. To be perfectly frank, what he is really saying is, “Trust us because we are going to talk to the Assembly. It is going to be in business and that is a good thing. The Members can have their say and it will all work out on the day.” Well, there are certain brick walls here, and hard places and collisions between the two, so I am not convinced by that. I am not convinced that a process of sweet dialogue between the Government and the Assembly will necessarily solve these problems. The purpose of the amendment is to solve them, so that there will not be any costs on businesses and no impediments to trade between Northern Ireland and its brothers and sisters in the rest of the UK. That is what it is about. Therefore, I think that there is bound to be a sense of distrust if the Government are not willing to accept the amendment. As my noble friend Lady Smith said, if the Minister comes back and says that the Government would like to rejig the amendment to achieve what we want to achieve by using the expert help of his officials in the Box, of course we will look at that, because we want the same objective. Otherwise, we will be put into the position of having to consider a Division—which we do not want to do.

Can I just ask specifically: will there be direct Northern Ireland representation on the Joint Committee, to actually deal with this issue? Will there be direct input for the Executive and, sitting behind it, the Assembly, reflecting businesses? Will that be possible? Will the Minister clarify that point?

[Lord Duncan of Springbank]

I do not know the answer right now, but when I come back I will know the answer and I will set that out next week.

[Lord Hain]

I am grateful. As always, the Minister is very helpful.

We have a dilemma here. At the moment, we are intending to retable the amendments and we will have to decide what we want to do, and what the feeling of the House is. We all saw that the feeling in the Committee tonight, including on the Conservative Benches, was pretty unanimous that these amendments and the principles behind them are ones that the House wants to see.

Unless the Minister wants to add anything before I sit down—no? He is being diplomatic and possibly prudent in not doing so. But on that basis I will withdraw Amendment 13 in the hope that we will get something practical that is actually in statute on Monday or Tuesday before we consider this matter again.

Amendment 13 withdrawn.