Northern Ireland Troubles (Legacy and Reconciliation) Bill

Viscount Brookeborough Excerpts

Committee stage
Tuesday 31st January 2023 Lords Chamber

This daisy chain of conditionality is extremely shaky ground on which to overhaul a country’s entire system of justice relating to a several-decades long conflict. The Bill, if passed, will be challenged in the courts. To base such a radical and controversial shift on a hypothetical statement, deemed irrelevant to its own case, is an adventurous act in a process that is supposedly about reconciliation.

[Viscount Brookeborough (CB)]

My Lords, I would like to mention one factor which may be naïve and maybe I just cannot see it, but we appear to be talking about amnesty for individuals who have committed a heinous crime of some type. I wonder whether noble Lords understand what actually occurred in practical terms? This is from my own experience of living there and serving there.

Early on in the Troubles there were cowboy shoots. There were people who went out just to murder a person. But after a certain time, I would like to think that the security forces not only became better, but they also became much more numerous. There were patrols all over the place. How was it that these people—supposedly individuals, as we seem to be talking about—were not caught? I will tell you why: after several years of the Troubles, no one except a madman carried out an incident on his own. It was not one person; it was a group of people.

When they went into Derryard checkpoint and reversed a lorry in and used flamethrowers, there were about—I am not sure—six people involved. Forty people were involved in that incident in total, and they were accomplices to murder. On every occasion, there were other people involved. Sometimes there was a change of gunman at the last minute. Does that make the other person any less guilty?

What I am really coming to is this: what is the evidence the commission will ask for in order to give immunity to a person? What can he say without giving evidence on some of the other people involved? Is he expected to do that, and how would it work? What evidence does the commission require to say that it knows he is telling the truth? If the commission asks how many were involved and he says, “Nobody. I carried a Mark 5 mortar on my back, crawled down the road and blew up the police station”, which is patently rubbish because you cannot do that, what is the proof it will require? What is the threshold of admission? Does that admission include any other names? If so, what is going to happen to these other people? Can the commission take it any further? This is really getting down into the practical side of how on earth this will work.

We talk about reconciliation—the noble Lord, Lord Browne, mentioned it a minute ago—saying that the truth would lead to reconciliation. Rubbish. What on earth are we talking about? There are people there who have lost loved ones and their families, and friends, who are equally hurt. In our case, in Fermanagh—I am talking about victims of all types, but these are my examples—every single one of my soldiers who was killed was killed off duty. They were killed feeding calves in the backyard; delivering vegetables; visiting a wife who happened to be Catholic, on a housing estate which was more Catholic; driving a lorry; leaving home in the morning.

How did they kill them? It was not the next-door neighbours; it was somebody close. If he is going to tell the truth, he is also going to say that his accomplice was his next-door neighbour. Do you call that reconciliation? Let us be realistic about this. There is a big hole here. How can you give immunity to individuals when there were multiple people in every incident who are equally guilty? Sometimes more so, because the gunman could be somebody who is instructed just to do it and is told: “I will drive you there and we will make sure that there are no patrols”. They did it to such an extent that they might have laid it on five mornings previously, one after the other; but lo and behold, there was a patrol and somebody said: “Don’t do it. They are closer to you than they can be”. The gunman, although he may have pulled the trigger, may never have done it without 20 people behind him, without the planning, without everything else.

Maybe I am being naïve but I just do not know where we are going with this at all, and I agree with everybody else that it is going to create rubbish and as far as reconciliation goes, which I would like to see in my own area, it is further from completion than anything I have ever heard.

[Lord Dodds of Duncairn (DUP)]

My Lords, it is an honour to follow the very powerful speech of the noble Viscount, Lord Brookeborough, who brings us back to the reality of the sordid terrorism, the violence and the campaign of the IRA—and other paramilitaries —during the period of the Troubles. It struck me very powerfully because just yesterday evening, Pam Morrison, who the noble Viscount will know well, as will others in this House, came to meet us as part of the delegation from SEFF, the victims group. In the space of six years from 1981, in the county of Fermanagh, she lost her three brothers to IRA terrorism—Jimmy, Cecil and Ronnie Graham. They were all slaughtered in the manner to which the noble Viscount referred: not on duty but going about their daily business. Pam also lost her sister, who was a Greenfinch in the UDR, as a result of the violence in Northern Ireland. This is the reality of what we are talking about. She was here at Westminster, along with others who have suffered terribly, basically to plead with lawmakers here to think of them, to bear in mind their loss and not to deprive them of hope, however difficult, as one of them said. They realise more than anyone the difficulty of getting justice, but to take away the hope of justice is a terrible thing.

I will deal with the amendments briefly because we have had a long debate, but this group of amendments on immunity is an important one; it goes to the heart of the Bill and it is right that we take time to examine it in detail. I just want to pick up on what the noble Lord, Lord Bew, said at the start of our debate on this group. He was absolutely right when he said about the concentration now by so many on this legislation that it is as if it is the first time there has been an attack on the equality of justice. We hear people in the United States complaining about this Bill. We hear people who have defended the IRA and raised money for it complaining about this Bill. We hear people in the Irish Republic who provided a safe haven over many years for terrorists and would not extradite them complaining about this Bill.

A number of examples have been listed, such as the letters of comfort to on-the-run terrorists, the royal pardons—we have never had a proper explanation of what crimes, and who, were covered by those—and, let us be frank, the 1998 agreement itself. To be fair, the noble Lord, Lord Hain, referenced the point about victims and that agreement, which released some of the most hardened criminals who had carried out some of the most obscene atrocities in Northern Ireland after only two years’ imprisonment. That was a grievous body blow to the victims, and many of us spoke out about it at the time. There has been a litany of issues affecting victims. I thank the noble Lord, Lord Bew, for making this point because it puts all this into context.

Having said all that, I want, if I can, to focus briefly and concisely on the amendments in this group in my name and those of my noble friends. The first is Amendment 149, which is

“intended to allow the offences for which immunity has been granted to be taken into account in sentencing for post-Troubles offences.”

That means offences committed after 10 April 1998. In my view, it is only right that, if a perpetrator or defendant committed a crime after that date and was convicted of that crime, a court of law should be able to take into account all previous convictions, including crimes for which they may have received immunity. Otherwise, we will have a perverse situation where post-Troubles crimes and sentencing are also affected by this legislation, which would be entirely wrong.

Amendment 114, also in my name and those of my noble friends, would

“require the Commissioner for Investigations to refer a file to the PPS when an individual is found to have provided false statements to the ICRIR in the course of its functions.”

I take the point made by the noble Baroness, Lady O’Loan, in relation to that. The Government have conceded that making a false statement should be an offence and that, if someone is found guilty of it, their immunity should be revoked. I very much welcome that limited progress, which my colleague, Gavin Robinson MP, spoke about and pushed an amendment on in the other place. I am glad that the Government have now come forward with something, albeit in a different form than we originally proposed, by creating an offence and then having a court revoke the immunity. However, in our view, Amendment 114 would tackle a deficiency in the Government’s drafting: the offence is established but it is not apparent who is to bring proceedings and where the burden falls. Although the Government are making provision to ensure that compelled material can be inadmissible in criminal proceedings, there is no provision to require the ICRIR to provide that material and evidence of false statements to the PPS. I just want to probe the Minister on that issue and see whether that gap can be rectified.

I very much welcome Amendment 130 in the names of the noble Baroness, Lady O’Loan, and others; indeed, we sought to table the same amendment. Again, there was a bit of a competition to get some of these amendments in, but it shows the level of cross-party support on many of these issues, in an effort to improve the Bill. If it can be improved, we should try to do that as part of the function of our House. Clause 21(4), which this amendment would remove, does need to be removed. It is wrong for the ICRIR not to be required to seek information from others in relation to someone who comes forward and gives their point of view on crimes they may have committed.

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[Lord Weir of Ballyholme (DUP)]

My Lords, in dealing with this group of amendments, as we have to, it is undoubtedly the case, as has been said on all sides of this Committee, that we cannot get away from the elephant in the room: no matter how good an amendment is put forward—I include the amendments I have added my name to—it cannot turn what is an unacceptable Bill into an acceptable Bill. I urge the Minister and his government colleagues to listen to the clarion voices from all sides of the Committee, from all sections of society within Northern Ireland and from all groups connected with victims that this is not the right way forward. At the heart of it is the completely unacceptable anathema of the immunity that the Bill proposes. I agree with the remarks of the noble Baroness, Lady O’Loan, and her call for Clause 18 not to stand part of the Bill.

However ultimately unamendable the Bill is in terms of its scope, we have no choice at this stage but to look at these amendments. It is a duty on all of us to make whatever improvements we can, however small, and at least try to take any step forward that we can, so I will touch on them briefly.

I welcome Amendments 120 and 121 in the names of the noble Baronesses, Lady Suttie and Lady Ritchie. Along with others, I met representatives of SEFF and have spoken to other victims’ groups as well. There is undoubtedly a deep sense of hurt and betrayal among victims. It is obviously not their biggest concern, but one of the concerns that adds to their hurt is a level of confusion and anxiety over the definitions of general and specific immunity. There is a lack of clarity around that. While this will not get to the heart of the issue, at the very least, can the Minister give us some clarity around that today? I would welcome these probing amendments if they can draw out that information.

I also welcome Amendments 112 and 124, brought forward by the noble Lord, Lord Hain, and others. To move from a position in which immunity is effectively compulsory to one which gives a much greater level of discretion to the commission is a sensible step forward. I think the scope of Amendment 124 has been accepted and government Amendments 139 and 140, dealing specifically with the issues around withholding information, move in a way that was not the case a while ago: at least there has been an acceptance that, if immunity is to be granted, it cannot simply be a one-off gift and that, where there are breaches, it can be revoked. That is an important principle as well.

We believe our Amendment 114 to be complementary with the provisions on the withholding of information or the giving of wrong information, because it gives a clear pathway for those prosecutions which the offence created in Amendment 139 can progress. The giving of false information or the withholding of information are of importance for two reasons. First, if we are to be stuck with this inequity of immunity, it should not be some form of tick-box exercise that anybody can qualify for no matter what information they give. Also, if there is anything to be gained from this at all in terms of truth—I very much share the views of the noble Viscount, Lord Brookeborough, that this whole process will be entirely counterproductive rather than helpful—one of the things that will aggravate victims is if the information provided is false, if they are given false hope and wrong information about the deaths of their loved ones.

[Viscount Brookeborough (CB)]

Perhaps the noble Lord would like to ask the question of what information given to the commission by somebody seeking immunity will be made available to the victims. That is the point at which reconciliation breaks down—when the names of the other people involved will horrify most families, people who have never appeared on the radar.

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The noble Viscount, Lord Brookeborough, raised the question of someone who clearly lies because they do not want to name accomplices. That person would not get immunity because the commission would determine that they had not been truthful in their account. If they did name accomplices, those people could be investigated by the commission and, if they did not engage, they could be prosecuted.

[Viscount Brookeborough (CB)]

Does he mean that the commission will ask them who their accomplices were and that they must not refuse to name them?

[Lord Caine (Con)]

It is fairly straightforward. The commission will ask whatever questions it believes to be appropriate. On the basis of the answers it is given, it will have to make its decisions regarding immunity. If a person is untruthful or unwilling to give information, that will of course be taken into account.

I am delighted to say that I am sympathetic to the proposed Amendment 130 from the Baroness, Lady O’Loan, to Clause 21(4), which is designed to ensure that the commission has to take steps to seek information beyond that which it holds already for the purposes of testing an account. I am very much open to exploring further with her how this issue might be appropriately addressed, when we move to the next stage of the legislation,

I wish to focus very quickly on some other amendments that I have tabled. Under Clause 23, the commissioner for investigations currently has the power to refer for possible prosecution conduct causing death or serious injury which is the subject of the review under consideration. My Amendment 137 clarifies that the commissioner is also able to refer conduct that constitutes “connected offences” within the meaning of the Bill. These are offences which do not themselves meet the Bill’s definition of “serious offence” but are nevertheless factually connected to such offences, for example because they form part of the same incident. This would allow, for example, the commission to refer to prosecutors evidence of sexual offences connected to a death or serious injury, if it came to light during the investigation.

Noble Lords will have noticed my intention to oppose the proposition that Clause 19 should stand part of the Bill. To reassure, this is simply because I propose to move provisions made by Clause 19 to the new schedule introduced by Amendment 85, titled “No immunity in certain circumstances”. This will bring together these provisions and those relating to the revocation of immunity mentioned before. Moving Clause 19—