Northern Ireland Troubles (Legacy and Reconciliation) Bill

Debate between Lord Hogan-Howe and Baroness Hoey

Committee stage
Tuesday 24th January 2023 Lords Chamber

[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.