Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024

Debate between Lord Hain and Lord Caine

Tuesday 13th February 2024 Lords Chamber

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

My Lords, I shall speak also to the draft Windsor Framework (UK Internal Market and Unfettered Access) Regulations 2024. I offer my gratitude to my noble friend Lord Hunt of Wirral, chair of the Secondary Legislation Scrutiny Committee; the Joint Committee on Statutory Instruments; and members of those committees in this House and the other place for their expeditious consideration of both instruments.

These regulations deliver on key commitments set out in the Safeguarding the Union Command Paper, the contents of which I set out on the Floor of the House on 1 February. The commitments made in that Command Paper will strengthen our union and the UK internal market now and for the long term. I am pleased that the Command Paper has created a situation whereby the Democratic Unionist Party agreed with the recommendation of its leadership to end the boycott of Stormont and has provided the basis on which the devolved institutions in Northern Ireland have returned, with support from across the community; a Speaker of the Northern Ireland Assembly has been elected with a full complement of Assembly Members now able to serve fully their constituents; a First Minister and deputy First Minister are now in office, and a full complement of Executive Ministers is now forming the Administration in Northern Ireland. It is in that context that I ask noble Lords to consider the two regulations before the House.

I turn to the first of these, the draft Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024, which seek to strengthen and future-proof Northern Ireland’s place within our union in law. They do so consistent with the vital protections contained in the Acts of Union 1800 and by the terms of the Northern Ireland Act 1998. They seek to address sincere concerns among some in the unionist community that Northern Ireland’s status within the union has somehow been diminished. The Government have been clear in our determination to see our union strengthened, and these regulations have been designed with that in mind. They clarify that Section 7A of the European Union (Withdrawal) Act 2018, the sovereign Act of Parliament that gives effect to the Government’s commitments under the withdrawal agreement, operates subject to the democratic safeguards in the Windsor Framework. That, of course, includes the Stormont brake, which gives the Assembly, now that it is up and running once again, powerful and vital democratic oversight over new, amending and replacing EU laws.

These regulations also provide a safeguard against any prospect of regulatory borders between Great Britain and Northern Ireland emerging from future agreements with the European Union. They mean that no Government in the future can agree to another protocol or form of agreement which would undermine the integrity of the United Kingdom internal market. On matters of domestic legislation, the regulations will introduce new safeguards so that government Bills that might affect trade between Northern Ireland and other parts of the UK are properly assessed. Ministers in charge of such a Bill would need to provide a Written Statement to Parliament on whether legislation would have a significant adverse effect on trade between Northern Ireland and other parts of the UK.

I should be clear that this provision does not bind Parliament’s hands, but rather ensures that Parliament is properly informed by the Government. The approach we are taking will deliver clarity to businesses that Northern Ireland’s unfettered access to the UK internal market will not be frustrated.

Finally, this legislation provides for how any independent review of the Windsor Framework would operate, requiring the Government to commission such a review one month after the Assembly having passed a consent vote on the Windsor Framework without cross-community consent. In those circumstances, the Government would be obliged to respond to a report from the independent review within six months and raise its contents at the UK-EU Withdrawal Agreement Joint Committee.

I now turn to the draft Windsor Framework (UK Internal Market and Unfettered Access) Regulations. The Government are clear that the old protocol created unacceptable barriers to the United Kingdom internal market. In response, the Windsor Framework sought to restore the functioning of the internal market by ensuring the smooth flow of trade within the UK. It disapplied a range of EU law, including ensuring that Northern Ireland benefits from the same VAT and alcohol taxes as the rest of the UK. We saw the framework commence at the start of October, with its benefits now being enjoyed by over 3,000 businesses registered on the internal market scheme.

Following the Windsor Framework, the Government announced the border target operating model. In line with this approach, we have now, for the first time, started to phase in checks and controls for Irish goods and non-qualifying goods moving from the island of Ireland to Great Britain. This is a powerful demonstration of Northern Ireland’s integral place within the UK’s internal market and rebuts claims that it is a member instead of the EU’s single market. The reality is that third-country members of the EU single market will now have full third-country processes applied, while Northern Ireland’s businesses have unfettered access to their most important market by far, in Great Britain.

As a result of these regulations, this now includes guarantees for qualifying Northern Ireland goods moving from Northern Ireland to the rest of the United Kingdom via Dublin. This unfettered access is future-proofed, ensuring that it will persist regardless of how rules evolve in either Northern Ireland or Great Britain. These regulations will more squarely focus the benefits of unfettered access on Northern Ireland traders. The regulations both tackle avoidance of the rules and ensure that agri-food goods are exempt from SPS processes only if they are dispatched from registered Northern Ireland food and feed operators. We will also expressly affirm through these regulations that export procedures will not be applied to Northern Ireland goods moving directly to other parts of the UK internal market. This reflects the legal guarantees secured in the Windsor Framework and achieves the effect of provisions dropped in the then United Kingdom Internal Market Bill by the previous Government in 2020.

The Government are also determined to ensure that public authorities are clear-minded about their existing legal duty to have special regard to Northern Ireland’s place within the UK internal market. We are therefore taking a power to make guidance on Section 46 of the UK Internal Market Act. That guidance will set out how public authorities should have special regard to Northern Ireland’s place in the UK’s internal market and customs territory, and the need to maintain the free flow of goods from Northern Ireland to Great Britain. Public authorities will be bound to have regard to it, ensuring they meet the UK’s international obligations in a manner that is also consistent with ensuring the smooth flow of goods within the internal market.

The Government are now working with vigour to deliver on the commitments set out in the Command Paper, because we want to make Northern Ireland work well for all who live there today and allow it to remain a thriving, prosperous part of the United Kingdom. On that note, I beg to move.

[Lord Hain (Lab)]

My Lords, before I get to the specifics of these two statutory instruments, I ask, in relation to legacy inquests under way in Northern Ireland, is the Minister not extremely perturbed—indeed, embarrassed—by the fact that state bodies appear to be openly running down the clock to 1 May, when the due process that we set such store by in the United Kingdom will no longer apply in Northern Ireland thanks to the shameful legacy Act? In one case, a Ministry of Defence official told an inquest, “We have only a single officer supporting Northern Ireland inquests.” In another, the legal representative of the PSNI admitted that further resources could be deployed and more progress made, but said, in terms, “What’s the point?” Is this not a disgraceful way to treat victims of the Troubles, who have suffered so much already? An abject failure by state officials and agencies to produce the necessary files in anything like a timely fashion also continues, despite the relevant state bodies being directed to do so by a serving coroner acting with the full authority of the Lady Chief Justice.

What on earth makes the Minister think that a body which the legacy Act sets up outside the judicial system headed by a retired former Chief Justice, however distinguished, will fare any better? Or, as many suspect, will those who will be denied proper inquests have to make do with a vastly inferior process on the cheap?

Having said that, I congratulate both the Secretary of State and Sir Jeffrey Donaldson MP on the resurrection of Stormont. We hope that the people of Northern Ireland will see the tangible benefits of functioning devolved government without delay. Sir Jeffrey’s detractors would be wise to bear in mind that having functioning devolution is absolutely critical to safeguarding the union. The DUP recognised at St Andrews in 2006—I remember it well—that the future of Northern Ireland is necessarily shared, and its governance will always entail compromise.

Appropriately, therefore, the package of measures presented in the Safeguarding the Union Command Paper manages to address DUP concerns within the boundaries of the UK’s international legal obligations. Those obligations relate both to the EU and to the Irish Government and remain sensitive and vital relationships for the UK, particularly as they affect Northern Ireland. What happens in Northern Ireland will continue to be crucial to those relationships.

With this in mind, it is worth being exceedingly careful in legislating in this area, and I seek clarification from the Minister on four specific areas. First, relating to the amendment of Section 13 of the European Union (Withdrawal) Act 2018 regarding the transparency obligation, what is the definition of—or criteria for measuring—what would constitute

“a significant adverse effect on trade between Northern Ireland and the rest of the United Kingdom”?

Furthermore, the Command Paper states in paragraph 146 that, if there was to be such a significant adverse effect,

“the Government will set out any measures it proposes to protect the internal market”.

In such an eventuality, how might such measures be made known to Parliament by the Government? I would be grateful for an answer to that question.

Secondly, how is the House to understand the

“prohibition of certain Northern Ireland-related agreements”

that is to be added to Section 38 of the 2018 Act? This regulation specifically prevents only a future UK-EU agreement that

“would create a new regulatory border between Great Britain and Northern Ireland”.

In the Government’s view, does this constitute the complete fulfilment of the Command Paper’s claim to protect against

“future EU agreements which create new EU law alignment for Northern Ireland and adversely affect the UK’s internal market”?

My third question relates to the amendment of the Northern Ireland Act 1998 on the independent review after the democratic consent vote. Why is the independent review to include consideration of any effect of the Windsor Framework on, first, the constitutional status of Northern Ireland, and, secondly, the operation of the single market in services between Northern Ireland and the rest of the United Kingdom? I ask because the Windsor Framework does not cover services and because it is without prejudice to the constitutional status of Northern Ireland as part of the UK. Indeed, the latter point is to be made law with the amendment of the European Union (Withdrawal Agreement) Act 2020 that we are currently considering.

Fourthly, the Safeguarding the Union Command Paper announces some ambitious new structures and bodies. Given their importance to the realisation of the objectives of this legislation, I would like clarification from the Minister on the following matters. How does the new UK east-west council relate to existing bodies affecting all-UK and east-west governance, including the Prime Minister and Heads of Devolved Governments Council, the Interministerial Standing Committee, and the British-Irish Council? How, too, would it relate to the new ministerial group that, according to paragraph 152 of the Command Paper, is

“to oversee the implementation of the new arrangements”?

How is “political” and “governmental” participation in the east-west council from Northern Ireland to be decided? Is it to be the same as for the North/South Ministerial Council, with two Northern Ireland Ministers designated to attend each meeting, both of whom have to be jointly signed off by the First Minister and Deputy First Minister? How does the function of these new bodies and structures relate to the common frameworks programme?

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Debate between Lord Hain and Lord Caine

Consideration of Commons amendments
Tuesday 5th September 2023 Lords Chamber

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

My Lords, I beg to move Motion A and will speak also to Motions B and C.

We have debated these issues at great length since this Bill was introduced in your Lordships’ House in July 2022. I will therefore speak briefly to the remaining issues today. I have always been the first to acknowledge the challenging nature of this legislation and how it requires some very difficult and finely balanced political and moral choices. The Government have, however, continued to listen and sought to strengthen the legislation. Since July last year, I alone have had more than 80 meetings on legacy issues, mostly in Northern Ireland, but also in Ireland, the US and of course in your Lordships’ House. My right honourable friend the Secretary of State has also had a large number of meetings on these issues.

Motion A1, regarding the conduct of reviews by the commission, raised a number of important issues, and I am extremely grateful to the noble Lord, Lord Hain, a distinguished former Secretary of State, for the manner in which he has engaged on these matters. This engagement has resulted in a number of key amendments to strengthen this aspect of the Bill. This includes amendments expressly to confirm that the Commissioner for Investigations, when exercising operational control over the conduct of reviews and other functions, must comply with obligations imposed by the Human Rights Act 1998 and to make clear that the independent Commissioner for Investigations will determine whether a criminal investigation should form part of any review. The noble Lord has, therefore, already significantly influenced this Bill during its passage, and I genuinely thank him for that.

Respectfully, however, I would suggest that the content of the noble Lord’s amendments has been extensively addressed by the package of amendments tabled both on Report and subsequently at Commons consideration by the Government. Indeed, my right honourable friend the Secretary of State tabled two amendments in lieu in the other place to address further the concerns raised by the noble Lord, Lord Hain, through these amendments.

The first of these amendments, Amendment 20A, clarifies that the duty to look into all the circumstances of a death or harmful conduct when carrying out a review applies no less rigorously in a case where the Commissioner for Investigations has decided that a criminal investigation should not take place. Amendment 20B emphasises the importance of the involvement of victims’ families in the review process. It does so by placing the commission under an express obligation to include in its final report answers to any questions posed by family members as part of a request for a review, where it has been practicable to obtain the requested information as part of that review. I should remind the House that both these amendments in lieu were accepted in the other place without the need for a vote.

Turning to Amendment 20D in the name of the noble Lord, Lord Hain, the Government are also unable to accept the addition of a power that would allow the Secretary of State to prescribe standards under subsection (6A) as an alternative to attempting to provide for those standards on the face of the Bill.

The Government consider it vital to safeguard the independence of the commission. This is something that we have worked very hard to do, and to strengthen, during the Bill’s passage, in direct response to a number of points made in your Lordships’ House. In our view, any such power as set out in the noble Lord’s amendment would run directly counter to this objective.

[Lord Hain (Lab)]

I am grateful to the Minister for accepting this intervention and I thank him for his generous remarks earlier. The point that he has not so far made, and which I hope he will acknowledge, is that the amendment says that it would be by affirmative resolution. In other words, it will require proper consideration by both Houses. My concern in the amendment, as I will explain, is that this Bill can be further improved over time in the light of experience and the views of victims’ groups.

[Lord Caine (Con)]

I thank the noble Lord, although I think my point stands. Throughout the passage of the Bill—in response to criticisms, when it was brought from the other place, that the Secretary of State had too many powers vested in him—we have sought to divest powers and to strengthen the independence of the commission. Whichever procedure is used in this House, this amendment seems to me to be running in the opposite direction. I also remind the House that the Bill already contains a provision in Clause 35 requiring the Secretary of State to review the performance of the new commission by the end of its third year of operation.

I turn next to the issue of conditional immunity, which I readily accept is the most difficult and challenging element of this legislation, but which, in the view of this Government, is essential if the new processes which the legislation establishes are to have a chance of working. I am grateful as always to the noble Lord, Lord Murphy of Torfaen, for his alternative proposal, instead of insisting on the wholesale removal of conditional immunity. Having been passed in your Lordships House by 12 votes, this was decisively overturned in the elected House by 92 votes—far more that the Government’s actual majority in the other place. As I have said, conditional immunity is, in this Government’s view, an important mechanism to help the independent commission to fulfil its functions.

I briefly remind the House that the aim of the Bill is simple and straightforward: to provide more information to more people in a shorter timeframe than is possible under current mechanisms, to establish the facts of what happened to the families who wish for that, and to help society both to remember the past and to look forward to a more genuinely shared future.

I understand that the aim of Amendment 44E in the name of the noble Lord, Lord Murphy of Torfaen, is to give family members a role in whether immunity should be granted. In the Government’s considered view, that would critically undermine the effectiveness of these provisions in their principal aim: the recovery of information for families. For example, the “public interest” consideration element in condition D would lead to uncertainty as to the circumstances in which immunity will be granted, undermining the clear and transparent approach that we have sought to develop.

To ensure that the commission can obtain as much information for families as possible, we need to ensure that the right incentives are in place for individuals to come forward and provide that information. The possibility that eligible individuals who co-operate fully with the commission could be prevented from obtaining immunity is highly likely to act as a significant disincentive for individuals to disclose information.

As the House is well aware from our numerous debates over many months, the commission will grant immunity from prosecution only if individuals provide an account that is true to the best of their knowledge and belief. We have developed a more robust test for immunity in which that account must be tested against any information that the commission holds or can access. The commission must, as a result of amendments in your Lordship’s House, take reasonable steps to secure additional information needed to test the truthfulness of an account.

If an individual does not provide a truthful account of their actions that could be passed to families or does not participate in the immunity process at all, immunity will not be granted and that individual will remain liable for prosecution, should the evidence exist. Where prosecution takes place, should a conviction be secured, an individual will not be eligible for the early release scheme under the Northern Ireland (Sentences) Act 1998—again, as a result of amendments in this House.

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[Lord Caine (Con)]

There are officials from the Northern Ireland Office assisting with the establishment of the body, but the staffing of the body will be entirely for the commission itself; it is not a matter for the Northern Ireland Office. The legislation is not yet passed, so the commission will not formally come into being until next year. All that is happening is that officials from my department are helping with the establishment during that transition phase.

As I said, this has taken on something of a Second Reading debate. We have heard many points rehearsed extensively. Therefore, I conclude by asking noble Lords not to insist on Motions A1 and B1 but instead to agree with the Commons amendments in lieu under Motions A, B and C, and pass this Bill; that is the clear will of the elected House of Commons. I beg to move.

[Lord Hain (Lab)]

My Lords, I want to thank especially the noble Baroness, Lady O’Loan, the noble and right reverend Lord, Lord Eames, and my noble friend Lady Ritchie, for their fulsome support for my amendment. In the circumstances, I reluctantly beg leave to withdraw Motion A1.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Debate between Lord Hain and Lord Caine

Committee stage
Tuesday 31st January 2023 Lords Chamber

[Lord Hain (Lab)]

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

[Lord Caine (Con)]

The noble Lord is always welcome.

[Lord Hain (Lab)]

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

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

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

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

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

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

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

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

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


Quoting Dr Sandra Peake, the article goes on:

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


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

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

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

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

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[Lord Hain (Lab)]

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

[Lord Caine (Con)]

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

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

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

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

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

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

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Debate between Lord Hain and Lord Caine

Committee stage
Tuesday 24th January 2023 Lords Chamber

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

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

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

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

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

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

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

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

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

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

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

[Lord Hain (Lab)]

He is a young man.

[Lord Cormack (Con)]

He is a very young man.

[Lord Caine (Con)]

I am a child in your Lordships’ House.

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

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

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

[Lord Hain (Lab)]

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

[Lord Caine (Con)]

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

--- Later in debate ---

[Lord Caine (Con)]

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

[Lord Hain (Lab)]

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

[Lord Caine (Con)]

No.

[Lord Hain (Lab)]

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

[Lord Caine (Con)]

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

[Lord Hain (Lab)]

Amendment 183.

[Lord Caine (Con)]

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

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Debate between Lord Hain and Lord Caine

Committee stage
Tuesday 24th January 2023 Lords Chamber

[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.

--- Later in debate ---

[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 Elections

Debate between Lord Hain and Lord Caine

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

Debate between Lord Hain and Lord Caine

Thursday 14th July 2022 Lords Chamber

[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

Debate between Lord Hain and Lord Caine

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.