Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Judge Excerpts

2nd reading
Wednesday 23rd November 2022 Lords Chamber

[Lord Judge (CB)]

My Lords, I respectfully support the last two speeches from the Leader of the Opposition and the noble Baroness, Lady Suttie. I rise with a certain degree of concern that I have no experience of Northern Ireland; many of my colleagues on the Cross Benches will speak on these issues. I do, though, have some experience of terrorism and terrorism offences in England.

Although I deeply sympathise with the Minister’s personal position—who can avoid being sympathetic with him?—and I share everything he said about the courage, dedication, commitment and the years of service we have received from the security forces, I am just a little worried that we do not fully appreciate what the Bill actually amounts to. We are being asked to legislate that men and women who are guilty of murder should be exempted from prosecution. If the Bill is enacted in its present form, they will literally be getting away, or will have got away, with murder. They will have got away with some of the most deliberate and cold-blooded killings that we have known in this country.

We cannot avoid that that is the consequence of this Bill. Before we enact it, we really need to know whether we are prepared to create an environment in which laws that betray the families of the victims, the victims themselves and society’s desire for peace and abhorrence of killings, among others, should be ignored.

The Title of the Bill is very misleading. I will not identify every word that is misleading, but the Title contains “Northern Ireland Troubles”, the Explanatory Notes say,

“prepared by the Northern Ireland Office”,

and Clause 1 is

“related to Northern Ireland affairs”.

It would be unacceptable anyway if it was so limited, but I have read it and I think this is a correct analysis: it applies to troubles associated with the Troubles in Northern Ireland that manifested themselves in this country.

That means, for instance, the IRA’s attempt to blow up the British Cabinet, in which many received catastrophic injuries and many died. If fresh evidence emerged demonstrating that two people who had not previously been suspected were involved in that dreadful offence, the Bill would apply to them. The Bill, and the exemption from prosecution if they went through the processes, would mean that they would not be prosecuted.

The noble Baroness, Lady Smith, raised the Birmingham case and the number of casualties there. If further evidence emerged demonstrating that A and B, or Z and Y, were involved in those killings, is it really right that through this Bill we should provide a means by which, although there is a very good case against them, they too should escape prosecution? These are the issues with which we are dealing.

However much we address the issue in general terms about the necessity of eventually achieving a peaceful outcome and reconciliation in Northern Ireland, these offences matter greatly to people here in England. I have one question for the Minister, apart from all the other questions that have been asked. How will this new commission, which is what I shall call it for today’s purposes, investigate offences committed in England or Wales?

Beyond the difficulties of the Bill, there is a certain illogicality that troubles me too. It applies to murder but not rape or a serious sexual offence. Rape is a foul crime—so is murder. Let us take an example. I do not know whether this ever happened, but it might have. A man decides to rape the daughter of a member of Sinn Féin as an act of revenge to counter some murderous Sinn Féin atrocity. The rape is associated with the Troubles. He could be prosecuted for the rape—the exemption provisions would not apply—but the Sinn Féin people responsible for the atrocity would be able to seek the exemption. To take the example a little further, if having raped this unfortunate girl the man then used a knife to kill her, we could have the absurd situation arising in which he could be prosecuted for the rape but seek exemption for the murder. If that is what the Bill means, there is an absurdity about it that has to be recognised. I am not offering a solution to it; I am simply pointing out the logical problem with some parts of the Bill.

I am also concerned that we are allowing ourselves to put overmuch emphasis on the length of time that this all goes back. Not very long ago it was proposed, and enacted by this Parliament, that any of those who served in Nazi concentration camps who could be proved to have been involved in those horrors could be prosecuted here. We saw men in their late 80s and early 90s being tried. There is no limitation position in our criminal justice system. Of course, there are safeguards for those who are charged with offences committed long ago. There is an abuse of process argument that the defendant is too old even to comprehend what is going on, or that there would be witnesses who have died. All that is a well-understood part of our criminal justice system.

To the extent that this legislation is concerned with those who served in Northern Ireland as part of the security forces who are alleged to have committed violent offences of their own, juries perfectly well understand that in the heat of battle, as for some of them it must have seemed, there is no time for detached reflection. Mistakes are made and things are done that are not intended. You can rely on a jury to try to appreciate this—they usually do, and they would be very sympathetic with a young man faced with some of the problems that faced some of our young men in Northern Ireland—and to return a true verdict according to the evidence.

We need to understand what the Bill actually proposes. That may be fine, and Parliament may decide that it will enact the Bill, but it must do so knowing what it will be enacting.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Judge Excerpts

2nd reading
Wednesday 23rd November 2022 Lords Chamber

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

My Lords, I said in my opening remarks some hours ago that I have found this legislation challenging and difficult, and the subsequent few hours have done nothing to reduce that one bit. I have listened to a very powerful debate. First, I thank a number of noble Lords for their kind words in response to my earlier remarks, which I genuinely and deeply appreciate. I also thank one or two noble Lords—the noble Lords, Lord Browne of Ladyton and Lord Bruce of Bennachie—who were kind enough to remind me of certain words I had written for previous Secretaries of State on this subject and into previous Conservative manifestos.

There have been a number of very powerful and moving speeches. As ever, I refer to the noble Baroness, Lady Ritchie of Downpatrick. She reminded us of the Loughinisland massacre. I remember it very well because I was with a friend from the Republic of Ireland, watching the same football match that evening, when the news came through. I was an adviser, as the noble Baroness knows, to the then Secretary of State for Northern Ireland, the late Lord Mayhew of Twysden, so I deeply sympathise with the case to which she referred. My noble friend Lord Rogan, who is in his place, the noble Viscount, Lord Brookeborough, my noble friend Lord Dodds of Duncairn and many others referred to incidents during the Troubles which deeply affected them, people right across Northern Ireland and people across the whole United Kingdom.

I concur with the noble and right reverend Lord, Lord Sentamu, that, of all the speeches, the noble and right reverend Lord, Lord Eames, made an outstanding contribution, which I think moved the whole House. I thank him very much for that, and I am aware of the tremendous work he has done over many decades in Northern Ireland, and his great record of service to the community there.

In my opening comments I said that there have already been a number of attempts to resolve these issues over many years. Going back to 1998 and the Belfast/Good Friday agreement, legacy was the untouched issue, if you like, and at the time it was one of those matters that was—probably for good reason at the time—put into the “too difficult” drawer. There have been a number of attempts since and they have all foundered for one reason or another.

A number of noble Lords, including the noble Lords, Lord Alton of Liverpool and Lord Bruce of Bennachie, talked about the need for the Assembly to be more closely involved in this. I remember, and referred in my speech to, the attempt by the Executive to deal with this issue back in 2013, with the Haass-O’Sullivan talks, which unfortunately did not lead to an agreement.

I referred also to the Stormont House agreement, when most of the institutions contained in that agreement, such as the Historical Investigations Unit and the ICIR, were very firmly in the devolved sphere. It was always our assumption at the time that it would be the Assembly that would take them forward. There would have had to be legislation in parallel here to deal with certain national security issues and issues around disclosure of the sort that the noble Baroness, Lady O’Loan, referred to. It was at that point that the then First and Deputy First Ministers came to see the then Secretary of State to say, “This is all far too difficult for us—could you do it all at Westminster?” I completely appreciate the sentiment of working with the local politicians and the local political parties in Northern Ireland, but there are difficulties in just handing it back to them. I do take on board the points about the need for a collaborative effort.

I think that is one reason why people refer to the shift in approach in 2020 by the then Secretary of State. If I am being fair to him, I think he genuinely looked at the previous attempts made to resolve this and at the possibility of prosecutions. We have heard a great deal about that this evening, and I have enormous respect for the noble and learned Lord, Lord Judge, with whom I agree far more than I ever disagree on a range of subjects. When he talked about people literally getting away with murder, unfortunately, in Northern Ireland they have for many decades because of the lack of evidence to convict. When I talked earlier about the vast majority of cases now being over 40 years old, the reality is that the likelihood of any meaningful prosecutorial process leading to a conviction is very slim indeed.

[Lord Judge (CB)]

That is not a justification for embodying it in statute.

[Lord Caine (Con)]

The noble and learned Lord touches on some of the issues that have also troubled me in dealing with this over the past months. I can see an argument to do with the chances of a prosecution being so slim in a very large number of cases. I talked to the retired police officers about this, who were very clear that in most cases, if the evidence had existed at the time, there would have been convictions, but it is simply not there and the chances are incredibly slim. Therefore—

Northern Ireland Elections

Lord Judge Excerpts

Monday 14th November 2022 Lords Chamber

[Lord Caine (Con)]

I am grateful to the noble Lord. He will not be surprised to hear that I would not characterise my right honourable friend the Secretary of State’s approach to this as attempting to blackmail any party in Northern Ireland. He was rightly setting out the legal position in which he found himself, at one minute past midnight on 28 October. As the noble Lord is aware, having consulted political opinion widely in Northern Ireland, the Secretary of State took the view that an election would not be the right course at this time—hence the extension and the legislation.

As far as the noble Lord’s other point is concerned, of course the Secretary of State has numerous discussions, but the important point is that strand 1 issues are—and remain—for the United Kingdom Government and the Northern Ireland parties. That is clear. We are always committed to the three-strand approach to Northern Ireland, including for the internal affairs of Northern Ireland, which are matters for the UK Government in discussion with Northern Ireland parties.

[Lord Judge (CB)]

May I return to the protocol, please? On how many occasions have there been negotiations and discussions specific to the issues raised in the protocol between the UK Government and the European Union, first, at Secretary of State level and, secondly, at any ministerial level? When will the next such meetings take place at each of these levels?

[Lord Caine (Con)]

Forgive me if I misheard the noble and learned Lord. Is he referring to discussions between the UK Government and the European Union?

[Lord Judge (CB)]

Yes, on protocol issues.

[Lord Caine (Con)]

I cannot give the noble and learned Lord a precise date for the next meeting, but there are ongoing discussions, as he well knows. The Foreign Secretary and Maroš Šefčovič have now spoken and met on a number of occasions. I can only reiterate what I said in response to earlier questions: we are determined to do whatever we can to secure a negotiated agreement that will remedy the defects in the protocol, preserve what works and facilitate a situation in which all parties can go back into a restored Executive for the good of the people of Northern Ireland.

--- Later in debate ---

[Lord Judge (CB)]

On how many occasions have meetings taken place, specific to the protocol, at Secretary of State level and ministerial level, with EU equivalents? There can have been only so many—one, two, 10, 15. If the Minister does not know the answer, I am perfectly happy to receive a letter.

[Lord Caine (Con)]

If the noble and learned Lord will forgive me, I will endeavour to write to him.

Northern Ireland Protocol Bill

Lord Judge Excerpts

Committee stage
Wednesday 2nd November 2022 Lords Chamber

[Lord Purvis of Tweed (LD)]

My Lords, this is a very short group. I will be quick, because to some extent the case has been made—well, the arguments have been presented. I believe that the case has been made; the Advocate-General might consider it not proven, however, for the Scottish reference.

This is another area where it would be helpful if the Government could give some examples of where they seek these very broad powers. The Delegated Powers and Regulatory Reform Committee again has stressed that what is to replace the protocol has not been determined yet because the underlying policy has not been formulated. This is an opportunity to provide some examples and to say why, if there is the defence of necessity, it extends to this clause. I simply do not understand.

If Article 13 of the protocol is to be an excluded provision, it would also be helpful to know the mechanism to supersede it if the Government secure an agreement, or indeed any subsequent agreement, because that is a necessary element within Article 13 that would be removed.

The final point I want to ask concerns Clause 14(3)(a) and (b). I do not know what powers the Government envisage will be necessary to manage the red lane—the EU lane—because that is presumably under EU laws and procedures, and obviously not under a dynamic mechanism. I do not know how the Government envisage the responsibility of managing that process under the EU rules.

My query about paragraph (b) is that I fear that considerable doubt will be raised over how the EU position in the single market will be able to be considered by Northern Ireland Ministers, of whatever Administration. I do not know what the consequences of paragraphs (a) and (b) will be. As I understand the Bill—the noble and learned Lord, Lord Judge, might know if he has had an opportunity to look at this—regulations made under Clause 13(5) could reverse primary legislation that has been removed in Clause 14. We could be in a position where regulations can reverse elements in another clause of the Bill. I think the Government are tripping over themselves.

If the Advocate-General is responding to this, can he give some examples of these areas? That would go some way towards reassuring the Delegated Powers and Regulatory Reform Committee and me. I beg to move.

[Lord Judge (CB)]

I shall not help the noble Lord, Lord Purvis, out, but I will say that the next time we come to this Bill, I think we will find that Clause 22 is the most devastating of all the Henry VIII powers. As to this amendment, I hope the Committee will excuse me if I do not keep repeating what I have said and would go on saying. I thought of giving the Minister a sheet of paper for him to write on, but then I thought I had better take it away as he might keep it and write on it. That is my point.

[Lord Browne of Belmont (DUP)]

I rise to speak to Amendment 22 and, indeed, all the other amendments. I am conscious that this amendment and others like it have been developed in response to concerns raised by the Delegated Powers and Regulatory Reform Committee’s report and, as such, are informed by growing concern about the Executive’s use of delegated legislation. In the context of the legislative challenges posed by Brexit and Covid-19, there has been increased use of delegated powers, which has concerned the Delegated Powers and Regulatory Reform Committee and the Secondary Legislation Scrutiny Committee and given rise to two important reports, Democracy Denied? and Government by Diktat.

The basic thesis of these reports is that there is a growing democratic deficit arising from the fact that delegated legislation does not afford the same opportunity as primary legislation for parliamentarians to scrutinise its development. The point is not that the delegated legislation is always wrong but that to avoid creating a democratic deficit, wherein the representatives of the people in the legislature are afforded less opportunity to shape legislation than in primary legislation, the use of delegated legislation must be limited.

As a democrat, I applaud this general approach and believe it is imperative in a functioning democracy that the opportunities for people to shape legislation through their parliamentarians in the legislature are maximised. Of course, there are ways in which a democratic deficit has been felt in our politics other than overreliance on delegated decision. In truth, the reason we are considering the Bill at all is the concern about the democratic deficit at the heart of the EU project, which was undoubtedly one of the key drivers of Brexit.

Brexit has been applied in England, Scotland and Wales with the effect that the democratic deficit arising from EU membership has been fixed in those parts of the United Kingdom. Laws are now made for Great Britain by Great Britain, but the democratic deficit in Northern Ireland has not been fixed. It has not been alleviated, it has not even been left untouched and it has not been allowed simply to deteriorate. The underlying difficulties have instead been allowed to become total, such that rather than amounting to a widening of the deficit—a democratic shortfall—that shortfall has been replaced by something much more radical: the complete negation of democracy in relation to the development of 300 areas of law to which we are subject.

The protocol that Parliament imposed on Northern Ireland against the clear wishes of its unionist representatives was one that, rather than addressing the principal difficulty with EU membership for anyone raised in the Westminster political tradition, has made it infinitely worse. In this context, the significance of Amendment 22—and, indeed, all the amendments debated tonight—is that it introduces not a regulation-making power that is part of a process that represents a step backwards, but one that is a step forward.

Finally, to unpack this problem, rather than using my words, I will use some very powerful words of a man living in Northern Ireland who wrote to my noble friend Lord Morrow, who unfortunately is unable to be in his place tonight due to a family illness. This man expressed his dismay at the actions of some parliamentarians from outside Northern Ireland towards our problems. I will be quick and quote just a few passages from his letter.

He writes: “I am deeply concerned about the approach adopted by some Peers who are seeking to remove the regulation-making powers from the Northern Ireland protocol rendering it ineffective.” He goes on, very powerfully, “Anyone who does not understand what a significant, democratic step forward that will be for us in Northern Ireland is completely detached from the reality in which we live and clearly has no idea what it feels like to have your votes slashed, as ours have been. I find it shocking that some Peers seem so absorbed in their Westminster bubble battle against delegated legislation, supposedly in the name of concern for democracy, that they should have completely lost their sense of perspective such that they cannot see how inappropriate it is to oppose these regulations in the name of opposing a democratic deficit. If they wanted to have a fight about delegated legislation out of regard for a concern for democracy, this was the last context in which to do so. It is so striking that the democratically elected House did not pick this fight on this. I would urge you to call Peers to recognise how these regulation-making powers will help restore some much-needed parliamentary democracy in places where it has been completely taken from us and help restore what was promised in the Belfast agreement, namely our right ‘to pursue democratically national and political aspirations’. That right has been taken from us in the 300 areas of lawmaking. These regulation-making powers represent a first step in their restoration. Rather than opposing them in the name of democracy, Peers should examine these powers in context and celebrate them for what they are, a critical step in restoring democracy to Northern Ireland.”

By all means, declare war on regulation-making powers that reduce democratic scrutiny but, please, do not declare war on these regulation-making powers, which take a first, crucial step in its restoration.

European Union (Withdrawal Agreement) Bill

Lord Judge Excerpts

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

[Lord Judge (CB)]

My Lords, I cannot resist the invitation. First, a word of apology to the noble Baroness, Lady Hayter; I was not here for her very first words, but I was on my way.

Can we just pause? We are going to give a Minister power, if he so chooses, to impose taxation. The whole basis of our democracy started because no taxation was allowed without representation. The Americans picked it up in 1776, but it goes right back to Clause 12 of Magna Carta. The way Henry VIII powers are being used now has led to constant protests by the parties in opposition and by Cross-Benchers.

The time has come for us to address the difficult problem and decide that, if the powers given under these Henry VIII clauses are being misused, we will reject the affirmative process when they are put before us and take it on. If and when Labour comes to power, and one day it will, or if and when the Liberals come to power, and maybe they will, let us hope that when they are addressing Parliament and creating Henry VIII clauses they will remember their hostility to them now and allow the then Opposition, the Conservatives, to lead an attack on affirmative resolutions misusing these powers.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will speak to Amendments 5 and 7. The same arguments apply to both, so I will deal with them together.

The purpose of these amendments, as with all the amendments we have moved, is to try to ensure that, for the future and in the passage of this Bill, the union is strengthened. To that end, it is of the greatest importance that amendments to the devolution statutes should be made only by primary legislation or by the procedures under the pieces of legislation, such as Section 109 of the Government of Wales Act, that allow amendments to be made by consent. Secondly, we should go forward in our negotiations with the European Union and in the adjustments necessary within the UK in a spirit that honours the constitution as changed as a result of devolution—not merely its letter, but its spirit.

The amendments that we seek to raise address two distinct points. First, why are these powers needed, if it is said that they are, to implement the international obligations of the United Kingdom? Secondly—this is quite a distinct issue—why are these powers needed to implement the United Kingdom Government’s commitment to unfettered access for Northern Ireland goods to Great Britain? They raise entirely different constitutional issues and need to be looked at separately.

As regards the claim that they are needed to implement the international obligations of the United Kingdom, the powers under the Government of Wales Act, particularly Sections 82 and 114, give the Government very significant powers to direct the Welsh legislature and Welsh Ministers, so that what they do complies with international obligations. It is difficult to see why those are not sufficient.

Secondly, the astonishing breadth of these powers enables the Minister to repeal the devolution statutes. The Minister has in his helpful letter indicated that the Government would never contemplate doing so. Indeed, it is asserted that there would be no power to do so given the restrictions in the Bill on what can be done in respect of these powers to the implementation of the protocol. If that is the case, why is this not spelled out in legislation? Why is there not some limit on the Henry VIII powers?