Northern Ireland Troubles (Legacy and Reconciliation) Bill

Debate between Lord Hain and Lord Bew

Committee stage
Tuesday 31st January 2023 Lords Chamber

[Lord Bew (CB)]

I thank my noble friend for that intervention. I think the implications of the Supreme Court ruling are somewhat broader. I was going to say that, at some point or other, the Government will have to refer to this major change, possibly with the Attorney-General, because there is controversy about what it really means. We cannot finish the Bill as though something of that importance has not happened, because it clearly bears on the issues at stake in the Bill and on the international obligations or otherwise of the United Kingdom Government.

Like my previous amendments, my Amendment 36 is designed, essentially, to get the best possible practice in play for the commission. It calls for the ICRIR to publish

“guidelines containing best practice on the rights of those likely to be named in any reports”.

I think the Minister will have a reasonable reply. We already know that there is a process of Maxwellisation. During the long period of the Iraq report, many will have felt frustrated about the amount of time devoted to Maxwellisation but, none the less, people who are challenged in their conduct have every right to take time to give a decent reply.

I am sure that that will be the Minister’s reply—that we already have rights in law. But things have moved on since then. It seems to me that the best practice now is something that we might call Maxwellisation-plus. I again draw attention to the way in which the Green Paper to the Commons Treasury Committee sets out proceedings and an approach to the rights of those involved under questioning in the ICRIR, which the Government should adopt. They should follow that Green Paper.

[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.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Debate between Lord Hain and Lord Bew

Committee stage
Tuesday 24th January 2023 Lords Chamber

[Lord Bew (CB)]

My Lords, I will speak to Amendments 99 and 101 in this group, which are in my name and those of the noble Baroness, Lady Hoey, and the noble Lords, Lord Empey and Lord Godson. As we have just heard from the noble Baroness, Lady O’Loan, the amendments are designed to focus on the possible functioning of the commission, the ICRIR. I think I will say “the commission” and follow the Minister’s advice on that: I do not want to struggle late at night with that mouthful of letters.

I say first to the Minister that it has been a hard day’s work. He has all my sympathy and is entitled to feel, given the amount of work and effort he has put into this Bill, that he has also somebody who supports the Bill, albeit somebody who is coming up and raising difficulties, although I hope of a containable sort. That might be a little bit more than flesh can bear at this stage in the proceedings.

I want to address an issue that has been at the centre of discussion during the week in Belfast: the article by Neil Faris in the Belfast News Letter—three articles in fact—about the possible functioning or the future functioning of the commission. It is perfectly possible that some of the concerns that exist and are expressed in those articles may be overstating and the Minister can allay them. But essentially my two amendments are both directed in that respect. They seek to balance the rights of those who may be named in reports with the rights of those requesting reviews, and particularly (6A)(a), (b) and (c) in my amendment are designed to achieve that end.

In the case of Amendment 101, it is a linguistic change, again with the same objective of balancing the rights of those who are at the other side of this process with those actually carrying out any review. One key point I want to make is quite simply that we have talked a lot already about what is or is not Article 2 compliant. But the UK Government also have a responsibility with respect to Article 8, respect for private and family life, and Article 10, freedom of expression, and both these rights also must be respected.

The particulars in new subsections (6A) and (6B) draw on best practice in the world of civil litigation, particularly inquiries by public bodies into alleged misconduct falling short of criminality. I would be happier if I felt that the Government were considering this best practice and how it has evolved, particularly since 2016, to ensure fairness when the commission indeed gets up and running. There are concerns at the moment about how the commission might actually work in practice. Those are concerns that the Minister and the Government have the capacity to meet, and that is really the point that lies behind my amendments, which are also in the name of the noble Baroness, Lady Hoey: Amendments 99 and 101.

[Lord Hain (Lab)]

My Lords, in speaking—briefly, the Committee may be pleased to hear—to Amendment 136, I again thank the noble Lords, Lord Hogan-Howe and Lord Blair, and the noble Baroness, Lady O’Loan, for adding their considerable names. I am indebted to the noble Baroness for her forensic analysis and for bringing her long experience into the debate through her amendments.

We all understand that, due to the age and complexity of legacy cases, prosecutions will be rare—very rare—but it is important that the Public Prosecution Service for Northern Ireland is sufficiently resourced, with appropriately skilled and experienced lawyers, to promptly review cases referred to it by the commissioner of investigations of the ICRIR, and that is not happening at the moment in respect of the Kenova model. Families have been waiting many years to understand what happened to their loved ones. Delays in prosecution decisions must not be allowed to prolong the wait still further.

Currently, legacy cases are glacially slow, to be decided upon by the PPS Northern Ireland, and, when a decision to prosecute does result, those cases can be expected to take five or more years to come to a conclusion. These cases involve recurring legacy issues and present specific legal challenges, such as the admissibility of evidence, hearsay and the continuity of exhibits. They need to be dealt with by lawyers with experience and expertise in these matters. As an example, Operation Kenova now has 33 files with the PPS Northern Ireland for consideration. The first tranche of files was submitted in October 2019, over two years ago. For most of these cases, families have been waiting for more than 25 years, and in some cases almost 50 years.

The PPS Northern Ireland prioritisation criteria mean that legacy files are effectively put in a queue for examination, as resourcing and demand allow. Understandably, perhaps, given the resources available, priority is given to cases relating to current offences, so the review of legacy cases slips further and further backwards, to the frustration and unnecessary additional traumatisation of the families concerned. The Bill claims to be victim-focused, but it is time that legacy legislation actually demonstrated such an intention because, as currently drafted, it does not do so.

The way that the Public Prosecution Service for Northern Ireland reviews cases differs considerably from the way that terrorism cases are dealt with by the Crown Prosecution Service in England and Wales. The CPS has a specialist counterterrorism division that engages with the investigation team as soon as a file is submitted. Early joint case conferences with senior counsel and the investigation team are held to assist in understanding the evidential strengths and weaknesses of the file, enabling further evidential recovery and facilitating prompt decision-making. This collaborative approach allows a more informed understanding of the cases and speedy and effective decision-making. The PPS Northern Ireland simply does not have the resources to dedicate lawyers to legacy files in this way.

As part of this Bill, it is important that sufficient funding is allocated to the Director of Public Prosecutions for Northern Ireland to review files and make timely and good decisions on them. It is essential that the creation of the ICRIR is supported by robust operating practices within the Public Prosecution Service for Northern Ireland that must be adequately resourced to deal promptly with legacy files referred by the ICRIR Commissioner of Investigations.

In conclusion, the Minister cited resources as one of the reasons why he questioned the validity of the Kenova model being inserted into this Bill, as I am proposing to do on Report. The alternative to adequately resourcing this—and Jon Boutcher has already disputed that it will involve massive resources, at least compared to what has been devoted to these legacy cases in the past—is leaving victims betrayed. What is the point of this legislation unless it is to give some relief, closure and sense of justice, as well as, crucially, truth recovery, which is the predominant objective victims are seeking? If this Bill does not deliver that, and if the model adopted does not have the resources to deliver that, then it will fail in its objective, and we might as well say so. If the Government are going for a resource-thinned, slimmed-down operation, as I am afraid this Bill seems to propose—and the Minister’s response to the previous debate seemed to indicate that resources are one of his top concerns about the Kenova model—then they will leave victims completely dissatisfied. I do not think that is where your Lordships’ House wants to be, and I do not think that is where legislation seeking to bring to a head this whole legacy trauma should be either.