Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Hogan-Howe Excerpts

Committee stage
Thursday 11th May 2023 Lords Chamber

Moved by

[Lord Hogan-Howe]

166: After Clause 42, insert the following new Clause—
“Amendment of the Code for Prosecutors for Troubles-related offences
In section 37 of the Justice (Northern Ireland) Act 2002 (Code for Prosecutors), after subsection (3) insert—“(3A) The code must ensure that the views, interests and well-being of victims, and of the families of deceased victims, are considered when determining whether criminal proceedings should be instituted for a Troubles-related offence.(3B) In relation to a Troubles-related offence the code must take account of—(a) the likelihood of the accused re-offending,(b) the time elapsed since the offence,(c) the volume and seriousness of the crime, and(d) the character and behaviour of the accused since offending.””

[Lord Hogan-Howe (CB)]

My Lords, I must make an apology because the noble Lord, Lord Hain, is unable to be in his place and I did not leap up quickly enough to speak to Amendment 147. I shall infuse into my comments on Amendment 166 some of what I would have said on Amendment 147.

My approach here is going to be brief. I am no expert on Northern Ireland. There are many people who live there and are experts. I spent two years as HMIC for the Police Service of Northern Ireland and I was head of the Met, which leads on counterterrorism investigations for the United Kingdom. That is the extent of my experience.

My interest in this Bill stems from a couple of things. First, my instinct is always that murderers and others who commit serious crime should not get away with it. However, I would subsume that interest if the people involved believe that no further action should be taken. The more this Bill has been heard in its various stages, the more I have been persuaded that no one from Northern Ireland supports this Bill and nor do many other people, which makes it rather difficult to support it in principle. My comments are really about how to mitigate some of the damages, should the Bill became law rather than whether it should become law, because it seems that it does not have the support of the people of Northern Ireland or, most importantly, the families and people who were most affected by the Troubles.

--- Later in debate ---

[Lord Caine (Con)]

My Lords, I am grateful to the noble Lord, Lord Hogan-Howe, for his intervention on this amendment. We have debated these issues at length so I do not propose to detain the House for long at this stage, but I commit to speaking further with him and the noble Lord, Lord Hain, in whose name the amendment stands.

The noble Lord has referred to Kenova. I am on record as saying that we are deeply appreciative of the work of Jon Boutcher and the way that he has gone about his business over the past number of years. As I say, I do not intend to detain the House, but I will engage with both noble Lords between now and Report.

[Lord Hogan-Howe (CB)]

I thank the Minister for his assurance and beg leave to withdraw the amendment.

Amendment 166 withdrawn.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Hogan-Howe Excerpts

Committee stage
Tuesday 31st January 2023 Lords Chamber

[Lord Hogan-Howe (CB)]

My Lords, I just want to comment on a small but important point that the noble Baroness, Lady O’Loan, made; I wondered whether the Minister would like to respond to it. The noble Baroness said that the advice being issued potentially by a Minister about the restriction on evidence could be quite worrying. As an investigator, I share that view, as I am sure the judiciary would in a court hearing. There are some present restrictions but the list is a small one; it includes the interception of communications, journalistic material, legally privileged material and, most of the time, medical advice. I suspect that this is something to do with foreign intelligence material, which is provided only under certain conditions. That is usually about source protection, and the usual condition is that the material can be shared further only in the event that the provider of the information agrees. I suspect that is what this is about but, if it is not, some reassurance ought to be offered; however, if it is, it could probably be explained quite quickly.

[Lord Dodds of Duncairn (DUP)]

My Lords, I want to comment briefly on the amendments in this group. Before I do so, once again, I put on record our thanks to the Minister and his officials for their continued engagement with us on the matters under consideration in the Bill.

I also want to put on record—the noble Baroness, Lady Ritchie of Downpatrick, referred to this—the meeting that we held yesterday with the victims’ group SEFF. Many of its members travelled from Northern Ireland to speak with your Lordships and highlight their concerns about the Bill. It is right that we pay tribute to those victims and the efforts that they are making to try to get across their profound concerns about it. Again and again, they emphasised something that I want to emphasise. While we discuss these amendments and debate independence, appointments and all that, no matter what improvements we make to the Bill, it is—in their view, certainly in my view, and in our view—irredeemable in its terms and fundamental aspects as a piece of legislation. Whatever we do in relation to justice, victims and getting at the truth, it cannot be right to have at the heart of government policy and a piece of government legislation the idea of immunity from prosecution for those who have committed crimes in the United Kingdom.

I want to touch on Amendment 14 in the name of the Minister. It concerns appointing a commissioner who has international experience. Can the Minister develop his thinking in relation to the motivation behind this amendment? I know that this was raised in the other place but it has not really been explained why it is thought necessary that someone should have international experience. It should be relevant to the work of the commission, okay, but what does that mean? Does it mean that they have done some academic studies or spent a bit of time abroad? Does it mean that they have been part of an international organisation? If so, what is the effect of the singling out of a particular position for such a person in relation to other appointments in the commission where other people may be better qualified but lack that particular qualification? I just think it is superfluous, as has been mentioned. There was nothing in the draft legislation to prevent the appointment of such a person, if it was thought necessary, but to put it in the Bill seems puzzling and I would like the Minister to develop his thinking on that.

On Amendment 12 and the other amendments in the name of the noble Lord, Lord Browne, I am not entirely convinced by the arguments that have been put forward. We have to remember that the commission and the commissioners, as has been said, will have the power of a constable. They will play more than just a judicial or quasi-judicial role; they will also have investigatory powers, they will be carrying out reviews and so on, so it is much wider than just a judicial-type role. Fundamentally, it gives more accountability if a Secretary of State, accountable to Parliament, is responsible for this, rather than a judicial appointments commission, whose appointments we really cannot question. Given the role of the judicial appointments commission in Northern Ireland and the fact that, throughout all the period of the Troubles, it has been above party politics and has never been dragged into any real controversy, here we are putting it into a position where it will be responsible for making what will be controversial appointments that could be the object of some criticism, in terms of balance and so on. I am not sure that that is a healthy or sensible position in which to place it.

Fundamentally, we come back to the point that was emphasised and re-emphasised to me at our meeting last night with the victims: whether the commissioners are appointed by the Secretary of State or a judicial appointments committee or whoever, fundamentally, they do not have the confidence and will not have the confidence of the victims. Therefore, all this is very interesting and important—absolutely—but it does not actually deal with the real fundamental flaw at the heart of this legislation.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Hogan-Howe Excerpts

Committee stage
Tuesday 24th January 2023 Lords Chamber

So why are these provisions necessary in other inquiry legislation but omitted from this Bill? What is the Minister’s explanation—and why, if he resists these amendments, does he think that the Bill will not need these powers?

[Lord Hogan-Howe (CB)]

My Lords, I rise to support Amendment 147 from the noble Lord, Lord Hain. In passing, it might be worth mentioning that I am open-minded about whether this Bill should progress. I think that there are arguments both ways, and we have heard some powerful ones today, but it relies on the consent and support of those people most affected by it.

One thing that has struck me in the debate today is that certain groups of people have not been mentioned whom I am sure no one wanted to forget. It was not until the Minister responded that we talked about the RUC’s losses and about its involvement in some of these cases. As we consider the immunity that might be offered, I think that we all respect and support the military’s losses and involvement in these things. Of course, the RUC was directly involved, and its members did not return to barracks at the end of the day but went home to their children, their parents and many other people. I do not think that anybody is choosing to forget, but we ought to keep that in mind.

We also ought to keep in mind that, here in mainland UK, the people of Warrington, Manchester, Birmingham and London lost people. Their thoughts have to be borne in mind too. It is not a case of “This is predominantly a Northern Ireland Bill”. There are other people who must be considered too, and they have not been spoken of today.

I support Amendment 147 because I think that the progress made by Operation Kenova is very significant. I accept the point made by the noble Lord, Lord Weir, that we should be concerned that this might extend to a whole new group of investigations that might be extended. But we should have the reassurance that the number of investigations is quite discrete. A significant number of these are already with the DPP in Northern Ireland. They have been for quite a while, and there is a question about whether there are sufficient resources there and the skills necessary to make these decisions—none of which are easy, as we all know, but at least we have got to the point of a case going to a prosecutor to consider a charge. That is a very significant number.

There is also the outstanding case of Operation Denton, which has been investigated for a significant amount of time. As the noble Lord, Lord Hain, has already suggested, it is thought that there will be cases going to the DPP by the beginning of next year. There is no certainty about this, but that is a professional judgment which I think is not unreasonable. The main thing to consider there is that, obviously, the families and all those interested in the outcome of those investigations now have a trust and expectation: a trust in the investigation team, which has been hard won and can easily be lost, and also a trust in the process.

Of course, it may be that the Government have to decide that they will end these investigations and fold them within this proposal. I think we all understand that that is a real dilemma. But, for the families involved, and given all the hard work that has gone into this, it would be a terrible shame. Some of the previous investigations have not had the support that we heard described by the noble Lord, Lord Hain, and that, from my experience, has been garnered in this case. It would be a shame if that hard work and trust were lost on this occasion.

[Baroness O’Loan (CB)]

My Lords, I support Amendment 1 in this group, from the noble Baroness, Lady Suttie. She made the case with absolute clarity. No more needs to be said.

On Amendment 147, I reassert my declaration that I am a member of the international steering group advising on Operations Denton and Kenova. It is, as the noble Lord, Lord Caine, said, a very long-overdue review of cases involving the Glenanne gang, which is reported to have involved loyalists, including members of the security forces, who carried out shooting and bombing attacks against Catholics and Irish nationalists in the 1970s. We know that there are some 127 victims.

I will address the comments made repeatedly that terrorists do not keep records and that the police and Army do. Having investigated many of these cases of alleged collusion, I can tell noble Lords categorically that those involved in collusion do not keep records: for example, of instructions to not investigate; to bring people in for questioning during an investigation, provide them with a cup of tea and some sandwiches, leave them in the room but not actually ask any questions, then release them, to protect them so that they have been investigated in the eyes of the general public; to perhaps lose evidence, which I have seen; or to contaminate physical evidence. None of this is recorded. That is why, where you can identify collusive activity of that kind, it is very usually impossible to bring a prosecution—and it is right that there should be no prosecution where there is no unbroken chain of evidence.

Denton has made very significant progress. It was reviewed by the National Police Chiefs’ Council in January 2021, which explained that Denton differs from Kenova in that it is being conducted as a review and not a criminal investigation at this time. This makes the approach by the operational team fundamentally different from that of Kenova, which is an investigation, from an evidential perspective. As the noble Lord, Lord Hain, said, Denton is due to be finished next year. Former Chief Constable Boutcher will then report.

Considerable resources have gone into this review. Were the Bill to be passed without an amendment of this kind, Denton would not be completed by Chief Constable Boutcher and his team and would fall for review by the ICRIR. Given the progress already made, to bring in a new team in would professionally require a review of what has been done before. I know we say that we do not reinvestigate, but, in professional terms, if you pick up a case that somebody has been managing, you must examine it to make sure you are satisfied that all investigative opportunities have been explored. That would result in a huge and unnecessary waste of resources, and it would be particularly damaging to victims and survivors, who would be required to revisit yet again what they suffered and have been suffering.

Such is the difference between investigations and reviews that An Garda Síochána, who have been very helpful to Denton and Kenova, was unable to provide sensitive material to Denton. That material could have been provided under international agreements for police co-operation, were Denton an investigation. But, because Denton is a review and not an investigation, it could not be provided under the European police co-operation agreements, et cetera.

At the request of the Operation Denton steering group and Chief Constable Boutcher, the Irish Government have passed a statutory instrument. The effect of that is to allow them to pass sensitive material, which they could not otherwise pass, to Operation Denton. When I was engaged in discussions about that matter with the Irish Government and Garda Commissioner Drew Harris, I was simultaneously considering this Bill. It was very odd to me that my Government in the United Kingdom were moving to close things down and the Irish Government were moving to open things up and be helpful.

So, given the complexity and extent of Operation Denton, I suggest to the Minister that it would clearly be in the public interest to permit Mr Boutcher and his team to complete the work in which they are engaged. I therefore support this amendment.

Amendment 52 in my name and that of the noble Lords, Lord Murphy and Lord Hain, and the noble Baroness, Lady Ritchie, would remove the five-year rule contained in the Bill, which effectively introduces a limitation on prosecution that is inconsistent with the Good Friday agreement and our international legal obligations.

This work of dealing with the past is incremental. It requires consideration of victims’ needs. A five-year limitation period for the seeking of investigations or reviews would place huge pressure on people who may be suffering the consequences—for some, very severe mental health problems—of the incident in question. I know that noble Lords will think that five years is a very long period, but I assure them that, in investigation terms and for people dealing with the mental health problems that have arisen as a consequence of the Northern Ireland Troubles, to add the additional pressure of knowing that you have to be there before five years are up is difficult.

Noble Lords will also understand, I think, that it will take some time to grow confidence in these new ICRIR processes. In light of the international condemnation of the Bill as it stands, questions might rightly be asked about whether victims, survivors and their families will use the new processes. That is another reason for us to think about the need to amend the Bill very significantly.

Does the period when the ICRIR becomes operational include or exclude the period of finding premises, setting up an office, agreeing a budget, getting staff, establishing processes, providing training, and the Secretary of State drafting all his guidance, et cetera? We do not have limitation periods for criminality in this country, for very good reasons. If a person was murdered before 10 April 1998, under this Bill they will have only five years to seek an investigation. If they were murdered four months later—in the Omagh bomb, for example, or in any of the other atrocities—that limitation would not apply. It is arbitrary. How do the Government justify the introduction of a limitation for a very small subset of the victims of crime in the United Kingdom?

--- Later in debate ---

[Baroness Hoey (Non-Afl)]

My Lords, I will speak to my Amendment 34 about human rights, to which the noble Lords, Lord Godson, Lord Empey and Lord Bew, have added their names.

Human rights are usually invoked by people in support of their political position, without actually admitting or understanding that there is always a conflict of rights in most situations. This could not be more true of legacy in Northern Ireland. One right is always mentioned—Article 2 of the European Convention on Human Rights on the right to life—but of course there are other ECHR rights that should arise in a legacy debate. Article 6 is the right to a fair trial, which has implications for those whom the ICRIR will consider in its reinvestigations and public reports. Article 8 is the right to respect for private and family life, which applies to an even wider range of people caught up in every Troubles death, especially those who served in our Armed Forces and the police. Article 10 concerns freedom of expression and the right to a reputation, and this applies to another group, including those who are critical of lawfare for different reasons but who fail to get much reported by our state broadcaster in Northern Ireland, BBC Northern Ireland.

For over 20 years, following the McKerr judgment of the European Court in May 2001, the slogan “Not Article 2 Compliant” has been thrown around, not just by the advocates of lawfare but by too many figures in the criminal justice system. In the McKerr case—he was a member of the IRA killed on active service in November 1982 by members of the RUC—Strasbourg invented a new right. The court did not say that the UK had violated McKerr’s substantive Article 2 right to life, but the seven human rights judges said that a new right had been violated due to an alleged inadequate investigation. That right became known as “Article 2 procedural”. The UK was required to continue to investigate and to ensure that

“the next-of-kin of the victim must be involved in the procedure”.

I am sorry to say that, in the context of Northern Ireland and terrorism, there are some relatives who might have an interest greater than justice, such as discrediting the way police officers and soldiers resisted republican and loyalist terrorism during the decades of the Troubles—and Strasbourg does not deign to notice that.

There is a second McKerr line of cases in the House of Lords, and later the Supreme Court, which the Committee on the Administration of Justice and academics never mention. On 2 October 2000, the Human Rights Act 1998 came into force. The House of Lords, in another McKerr judgment in 2004, said that Article 2 compliant investigations did not apply to deaths before that October 2000 date. This position was left in place in domestic law by our judges in the McCaughey case in 2011, the Keyu case, a Malaysian case, in 2015, and the Finucane case in 2019. Then, in December 2021, in a key Northern Ireland case called McQuillan, the Supreme Court reaffirmed the rule of no Human Rights Act requirement for such investigations —which, essentially, were reinvestigations—before October 2000, with a qualification, based on some controversial Strasbourg jurisprudence, that a 10-year pushback was permissible. The helpful headline in the Times Law Report read, “Northern Irish police are not required to re-investigate incidents from the Troubles”.

Solicitor Patrick Finucane was murdered by loyalists in February 1989, some 12 years before the human rights commencement date. His killers have been convicted but the need for reinvestigation—a public inquiry, as Strasbourg and his family demand—remains an open question. Some human rights lawyers query whether Strasbourg’s 10-year rule is even arguable under the Human Rights Act 1998. If the Supreme Court judgments are relied on to turn down a Finucane public inquiry, and the Supreme Court said that the Government, for various other reasons, were not obliged to have one, the matter should be over and we would save up to £100 million. For this reason, I believe that the Government need to beef up their responses at Strasbourg —I note what the Minister said in answer to the previous debate about the Northern Ireland Office making overtures; it would be helpful if we could see some of those—because they have to start ignoring what is seen as an international lynch mob currently baying at the Northern Ireland Office over the Bill.

I look forward to the Minister explaining how, given the McQuillan judgment, much of Article 2 procedure now applies to the nearly 4,000 Troubles killings. In 2021, in a PSNI statement just after the judgment, Assistant Chief Constable Jonathan Roberts, who well understood the import of McQuillan, wrote:

“The Police Service welcome the clear legal ruling that there are no legal obligations arising from Article 2 ECHR to investigate these cases”,


including McQuillan. He continued:

“We will now carefully consider the judgments and their impact on the legacy caseload.”


Sadly, nothing visible has happened since that.

I am sure that, in answer to my amendment, the Minister will say that Section 6(1) of the Human Rights Act 1998 means that all ECHR articles would apply to the ICRIR’s work. If the Government are being pushed by the CAJ and Strasbourg into Article 2 procedure—as they have been in Northern Ireland Amendment 76, which the Government will move—by adding criminal investigations to the review process, why can they not also say in the Bill, using the Minister’s phrase, that other ECHR articles, particularly Articles 6, 8 and 10, will be in play?

[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.

[Baroness Suttie (LD)]

My Lords, I will be extremely brief, given the hour and the desire to move on to the dinner break business. From these Benches, we very much support the amendments of the noble Baroness, Lady O’Loan, to impose a function of investigation on the ICRIR, as well as one of review. She made very compelling arguments and I will not repeat them, but I hope that the Minister will take on board the strength of feeling in the debate on these amendments this evening.

I will speak briefly to Amendment 72 in this group, to which I have added my name. I was struck by the personal and powerful speech of the noble Lord, Lord Blair, as well as the practical suggestions of the noble Lord, Lord Hogan-Howe, for some ways forward. Perhaps we could take this forward with the noble Lord, Lord Hain, before Report.

The noble Lord, Lord Hain, made the case powerfully that the process being used by Jon Boutcher in Operation Kenova has cross-party support and has acquired the confidence of all those who have been directly engaged in it. Perhaps most importantly, it demonstrably works. As the noble Lord, Lord Hain, said, we do not need to reinvent the wheel. I suspect that virtually everyone taking part in this debate has spoken to Jon Boutcher. If you meet him, it is hard not to be overwhelmingly impressed by his commitment, dedication and drive. He is really committed to this process, and we should seriously consider it between now and report.

I urge the Minister to look closely at Amendment 72. I look forward to his response at the end of this group, not least to some of the questions that have been asked on the Government’s response to the option of upscaling the processes used in Operation Kenova, which seems to me to be a preferable approach compared to the proposals in the Bill.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Hogan-Howe 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.