Northern Ireland Troubles (Legacy and Reconciliation) Bill

Baroness Hoey Excerpts

Report stage
Wednesday 21st June 2023 Lords Chamber

I ask again, which is more important in the process of reconciliation: to create a technical process for immunity or to recognise by involvement the needs of suffering people who are carrying in their hearts and minds the scars of our Troubles? In my opinion and, I think, that of many of my colleagues who, like me, have given so much of their lives to this process, it has to be stated for the record that the immunity process has to climb over the reality of victimhood. Until it does so, it will be very unsatisfactory as an attempt at reconciliation. I beg to move Amendment 9.

[Baroness Hoey (Non-Afl)]

My Lords, as a signatory to Amendment 9 in the name of the noble and right reverend Lord, Lord Eames, and the amendments that follow from it, I support it very strongly. Realistically, we know that the Government are going to push the Bill through, so rather than trying to wreck it completely, it is important that we try to make it as good as it can be.

Fundamentally, Amendment 9 seeks to make what is imperfect legislation that little bit less imperfect. It would do so by at least making the immunity process absolutely victim centred. To put it simply, save for exceptional circumstances which we have set out in the amendment—such as a disagreement among family members as to whether to consent—the core principle will be that an immunity certificate cannot be granted unless there is the consent of a victim.

We have built in a provision whereby if a close family member requests a review, that is taken as consent. Once consent is given, a perpetrator—within the scope set out in the Bill—can obtain immunity, the family can obtain information and the chief commissioner can publish a report of his findings. But crucially, if there is no family consent, none of those things can happen. The chief commissioner may still conduct a review if a referral is made by one of the specified statutory bodies, but he may not grant immunity, provide information to families or publish a report if there is no consent. That means that the wishes of victims’ families are central to the process.

We would prefer that the Bill in this format was not here at all—but it is. These amendments seek to make the best of a bad situation and at least give victims, in all but exceptional cases, a veto over perpetrator immunity.

It should be noted—I raise it now because it is central to the whole issue of outcomes for victims—that if you look at paragraph 5(1) of Schedule 11, it appears that Section 4 of the Northern Ireland (Sentences) Act 1998 is being amended to, in effect, reduce the tariff to zero or at the most one day. At the moment, it works out as a two-year sentence for anyone convicted of a pre-1998 offence. On the face of it, this seems to mean that even if one were to be convicted of an offence on referral to the DPP by the chief commissioner, there would be a term of imprisonment of, in effect, one day maximum. That may not be called an amnesty, but it is a de facto amnesty. I am very sad about that and regret it. It is wrong. It was wrong in 1998, it is wrong now and it will be for ever wrong.

If the Government are determined to force the Bill through, at least our amendment would put victims at the centre of an imperfect process. I ask a simple question: how could anyone reasonably object to elevating the interests of victims over those of perpetrators?

[Lord Dodds of Duncairn (DUP)]

My Lords, first, I join with other noble Lords who have thanked the Minister for his engagement in relation to both the amendments he has tabled on Report and the amendments we considered in Committee and have brought forward again on Report. I think it has been a genuine engagement. I am pleased that the Minister has listened to some extent and that there have been improvements as a result of the discussions that have taken place, and indeed following amendments tabled in the other place which the Government responded to.

In paying tribute to the Minister, we should also pay tribute, as others have, to the innocent victims of terrorism, murder and mayhem in Northern Ireland over many years. We should pay tribute to their enormous tenacity and fortitude in the face of what has been happening in recent days in Northern Ireland, with the continuing eulogy and glorification of murderers and criminals by elected representatives, including those who purport to be the First Minister “for all”.

In relation to the Bill being brought back, given the pause and the length of time that has passed, and the universal opposition to it, some had hoped that this would be one area where the Government might actually listen to all the parties in Northern Ireland, but that does not appear to be the case. The Minister and your Lordships will be aware that on 19 June, the leader of the Democratic Unionist Party, Sir Jeffrey Donaldson, and others wrote to the Prime Minister asking, even at this stage, for the proposals to be withdrawn. The letter restated our fundamental opposition to an amnesty—which is what the Bill in effect creates—paid tribute to the victims and recognised that while we and other noble Lords have tabled amendments, that should not be misconstrued in any shape or form as providing tacit consent to this regime, which undermines confidence in the rule of law and has done so much harm to victims.

I will speak to the amendments in my name and those of my noble friends, but I say initially that I have a lot of sympathy with Amendment 9, moved by the noble and right reverend Lord, Lord Eames, on putting the victims at the centre of this immunity process if we are to have it. It talks about those cases that involve death; I would prefer it to cover all cases. Having said that, I think it is worthy of support, and I hope the Government will consider it.

The noble and right reverend Lord, Lord Eames, talked about hypocrisy in relation to mentioning reconciliation, yet we have the Bill before us. That was a very powerful but correct description, and I often hear that word mentioned by victims in relation to the approach taken in the Bill by the Government.

Amendment 59A, standing in my name and in the names 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. At present there is no explicit provision in the Bill to require the ICRIR to provide material evidence of false statements to the prosecutor in aid of proceedings. I would be grateful if, when the Minister responds, he can address that point and reassure your Lordships that this is not some kind of loophole that can be exploited but that, in the absence of this amendment, there will be no gap and that we will ensure that there is a joined-up approach to pursuing convictions.

Amendment 61A would require an individual to be disengaged from activity which would be reasonably regarded as precluding reconciliation in order to be eligible for immunity from prosecution, Although the concept of immunity is in our view irredeemable, a further problem is that the Bill as drafted places no impediment to a perpetrator gaining the protection of immunity and then going on to publicise, promote or commemorate—the favourite word now used by terrorist apologists—his or her deeds in such a way that harms victims and generally offends the cause of peace and reconciliation. The Government have brought forward new proposals allowing immunity to be revoked in instances of glorification of terror, and I welcome that. However, I think it could go further in capturing activities that do not necessarily constitute offending but which will cause deep harm to victims, survivors and their families. Our Amendment 86A follows on by requiring the permanent revocation of immunity of individuals engaged in the sort of activity that I have outlined.

It should not be acceptable in general terms that political representatives of the IRA and Sinn Féin, including the potential First Minister or anyone else, and especially people who have taken advantage of this system, should go around the country, not doing enough to fall foul of the “glorification of terrorism” legislation but doing enormous harm psychologically to victims and their families by their continuing commemoration, eulogising and glorification of the perpetrators of some of the most heinous criminal and obscene acts that we have seen anywhere over the last 30 years. The purpose of these amendments is to address that point and to urge that the Government do something about it. It is not only causing trauma to victims and retraumatising their families but is toxifying the political atmosphere in Northern Ireland as people try to get the Assembly up and running again.

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[Baroness O'Loan (CB)]

My Lords, I will speak to my Amendment 13, which is also in the name of the noble Baroness, Lady Ritchie, and which simply requires the removal of the word “reasonably” from Clause 5. The noble Lord, Lord Hogan-Howe, is unable to be with us today, but he associates himself with my remarks.

The Government told us that one of the purposes of the Bill is to provide families with information that was not previously available to them, and another is to gather all investigative and review functions within the ICRIR. This was always the proposal under the Stormont House agreement, and I have no difficulty with it, except for the way in which it is done and the immunity clause. But the powers accorded under the Bill do not provide to the ICRIR the access to information that will be necessary to obtain the information that families need, without lengthy judicial reviews and threats of judicial reviews, which have bedevilled inquiries such as the Saville inquiry and, indeed, the Kenova investigation.

In normal criminal investigations, there is a proviso that an investigator will not do anything which would prejudice national security or put someone’s life at risk. There is law that deals with this. The law also provides mechanisms which include a power to recover information, such as the search process when a warrant has been obtained. For example, police will seize all the computers in a house to determine whether the contents of any of them may be relevant to the matter under investigation. Those are general statutory investigation powers. Those charged with criminal investigation also have powers to require the provision of information from agencies and individuals. For example, under Section 17 of the Police Reform Act 2002 there is a simple duty on every chief constable and local policing body to provide information to the IOPC. Similarly, Section 66 of the Police (Northern Ireland) Act 2000 says:

“The Chief Constable and the Board shall supply the Ombudsman with such information and documents as the Ombudsman may require for the purposes of, or in connection with, the exercise of any of his functions”.


There is no qualification, simply a duty to provide information. However, this Bill as drafted states that a relevant authority

“must make available to the ICRIR such … information … documents, and … other material as the Commissioner for Investigations may reasonably require”.

This provision applies only to information which the ICRIR reasonably requests. Of course, an investigator must always act reasonably and in compliance with the law. However, there is no process for which a chief constable may, for example, say, “No, it’s not reasonable for you to make that request for information”. I had those conversations in the early days of my tenure as Police Ombudsman. I was told, for example, that it was not reasonable for me to ask for sensitive information, such as information held by Special Branch—now the Intelligence Branch. I was able to point to the law, which said that the chief constable

“shall supply the Ombudsman with such information … as the Ombudsman may require”.

That is how it is in criminal investigations. It is not required that the investigator demonstrates the reasonableness of any request for information.

The Minister has said that a requirement that information shall be reasonably required is to be found in other statutes. He cited one, the Finance Act 2008, so I looked it up. Section 113 of and Schedule 36 to the Finance Act 2008 provides that an officer of His Majesty’s Revenue and Customs can require a taxpayer to provide information reasonably requested by the officer for the purposes of collecting a tax debt owed by a taxpayer. There is a big difference in the powers required to collect an unpaid tax debt and those required to investigate a murder, as is evidenced by the current state of the law, which provides necessary protections for privacy in appropriate circumstances under the GDPR and the Data Protection Act, for example, but also empowers criminal investigators to access information. This is the proper working out of UK compliance with its obligations under the Good Friday agreement and the European convention.

If an agency could respond to a request for information by the ICRIR by challenging the reasonableness of that request, there would be inevitable and very lengthy disputes, possibly—indeed probably—involving judicial review, about why what the ICRIR was asking for was reasonable. The reality is that the investigator—the ICRIR in this case—may be in possession of material justifying the reasonableness of the request for information, but that material cannot be disclosed at this particular point in time without compromising the integrity of the investigation. The result is that an agency may be unaware of the material which the investigator holds, but it may be very aware that information which is held by that agency is highly compromising of the agency and may indicate how it came about that, despite an agency, for example, being aware of a proposal to murder someone, it did not intervene to stop that murder. It has happened.

The necessary unqualified powers to compel the production of documentation, especially documentation held by the other agencies, security intelligence services and police intelligence units, will not be available to the ICRIR because of how the Bill is drafted and the definition of sensitive information. The proposed powers to identify and gather information will also be subject to veto by the Secretary of State under the extensive provisions of Clauses 29 and 30. Access to information could be severely curtailed through the exercise of powers conferred on the Secretary of State in this Bill, because it gives the Secretary of State powers to give guidance about how the ICRIR is to identify sensitive information such as that held by police intelligence units and how that information is held and handled, et cetera, and even to create new criminal offences in relation to such matters.

Last year, the European Committee of Ministers exposed serious concerns about the Bill, and the Commissioner for Human Rights has now said that the amendments proposed by the Government do not sufficiently allay those concerns. This emphasised again that it is crucial that the legislation, if progressed and ultimately adopted, is in full compliance with our convention obligations and will enable effective investigation into outstanding cases.

The Committee of Ministers has called on the Government, first, to ensure that the Secretary of State for Northern Ireland’s role in the establishment and oversight of the ICRIR is more clearly circumscribed in law, in a manner that ensures that the ICRIR is independent and seen to be independent. Secondly, it has called on them to ensure that the disclosure provisions unambiguously require full disclosure to be given to the ICRIR. Thirdly, it has asked that they ensure that the Bill adequately provides for the participations of victims and their families for transparency and public scrutiny, which is fundamental to Article 2. It has again stressed the importance for the success of any investigative body of gaining the confidence of victims, families of victims and potential witnesses.

I also put my name to Amendment 31 in the name of the noble Lord, Lord Hain, supported also by the noble Baroness, Lady Ritchie, who has spoken at length about it, as well as the noble Lords, Lord Blair and Lord Murphy. The noble Lord, Lord Hain, is unable to be with us today. I shall support that amendment if a Division is called. I do not think that I need to describe the reasons for it, but I shall say that the National Police Chiefs’ Council has said that the Kenova model could effectively be scaled up for the purposes of the ICRIR.

I regret that I cannot support Amendment 28 in the names of the noble Baroness, Lady Hoey, and the noble Lords, Lord Bew and Lord Godson, because it requires that, when a family is seeking a review or investigation, they will have to be able to show that, if there is to be a review, and there has previously been an investigation or an inquest, for example, the ICRIR should not decide to grant a review unless there is compelling new evidence. To require a family to provide compelling new evidence would be to deprive them of their Article 2 rights to investigation, in particular in older cases where investigations and inquests were not as thorough or impartial as they are now. It is not the role of a traumatised and bereaved family to gather compelling new evidence. They have neither the powers nor the access to do so. That is the job of the investigator—in this case, the ICRIR.

[Baroness Hoey (Non-Afl)]

My Lords, with regard to Amendment 28 in the name of myself, the noble Lords, Lord Bew and Lord Godson, I tabled similar in Committee and have changed it to take note of what the Minister then said, deleting the parts that he found objectionable, which related to family requests for reinvestigations. I hope that what remains the Minister will find acceptable, given that the purpose of my amendment to Clause 11 is to ensure that there will not be duplication by the ICRIR in relation to previous investigations, despite what the noble Baroness, Lady O’Loan, has said, without compelling new evidence. This is the concept that was used in the overseas operation Act, and I cannot understand why it cannot be used in this legislation.

If the previous investigations listed in the amendment, such as those by a public inquiry, HET, or the police services Legacy Investigation Branch are not added to the Bill, thus narrowing the ICRIR’s potential range, I repeat what I said at Committee: namely, that the ICRIR could end up reinvestigating every one of the nearly 4,000 deaths, the cost will be £1 billion at least, not the budgeted £250 million, and the process will last for many years.

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[Lord Blair of Boughton (CB)]

My Lords, it is unusual for me to start by saying that I could not disagree more with what I have just heard from the noble Baroness, Lady Hoey. I was Metropolitan Police Commissioner at the time of the death of Jean Charles de Menezes, and it was a tragedy. I do not actually understand the connection that she is making with what is happening in relation to Operation Kenova.

[Baroness Hoey (Non-Afl)]

Strasbourg.

[Lord Blair of Boughton (CB)]

I shall stop there on that point.

I support Amendment 31 in the name of the noble Lord, Lord Hain, and the other signatories to it. It concerns Operation Kenova—the multiple investigations being carried out by ex-Chief Constable Jon Boutcher into some 200 murders on both sides of the conflict in Northern Ireland. I last spoke on Kenova on 24 January this year, when I read into the record of the House comments made by Jon Boutcher the previous October. I will not repeat all of that, except to remind noble Lords of his summary of his focus, being on the Provisional IRA,

“which committed these murders and whether steps were, or were not taken by the security forces before these abductions and murders occurred to protect people”.—[Official Report, 24/1/23; col. 161.]

I am not an expert on Northern Ireland, but I bring before the House two aspects of my own professional experience which I believe are of relevance. First, I have investigated murders and I know how difficult it is to tell families of victims that the trail has run cold and the investigation is, at least for the time being, being closed. Secondly, I have led some very large and complex investigations and watched many others. Never have I seen such a comprehensive, transparent and outstanding investigation as Kenova. Mr Boutcher has meticulously worked to gain the trust of families and has submitted a number of files, as we heard during the debate, to the Northern Ireland prosecution services. The submissions await a decision and the families know that. To discontinue all those inquiries by an Act of Parliament in these Houses seems to me to be an extraordinary step.

Of course, like many others in the House, I am a great supporter of the truth and reconciliation process in South Africa, but that process took place instead of investigations, not after they had been completed. Moreover, entering into such an approach has to be a voluntary process; and, having come this far, from a position of deep cynicism to trust in Kenova’s approach, I doubt whether many families will wish the completed investigations into these deaths just to be put to one side. With respect to the Minister, he knows that the continuance of Kenova is supported by politicians of every stripe in Northern Ireland, a position which I believe is not a common occurrence on any topic, let alone one as explosive as this. Any suggestion that the Kenova model is too expensive is risible, given all the suffering and all the costs that have preceded it.

I hope that when the House returns to this subject next week, it will ask the Government to think again.

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Before I finish, I shall mention Amendment 104, which provides that the Secretary of State should defray the fees and costs already incurred by litigants, and maybe also by potential litigants, whose proceedings are either terminated or banned by this legislation. If the Government wish to bring such proceedings to a precipitate end, it is incumbent on them to meet the cost of so doing.

[Baroness Hoey (Non-Afl)]

My Lords, I support the Government’s intention to set a deadline on the issue of inquests. I oppose Amendment 110 because it is a—“wrecking amendment” is probably wrong because there are lots of things about this Bill that we all want to wreck, but the reality is that, without incorporating all inquests into the new body at some stage, it might as well not exist. We would see what I have mentioned before: lawfare would recommence with a vengeance at a very high cost, forcing reinvestigations that, if we are honest, would never occur or be enabled to occur here in England.

As it is, the ICRIR is already showing signs of becoming just a one-stop shop for reinvestigations of historic deaths currently or previously undertaken, as I mentioned on the previous amendment, by the PSNI’s legacy investigations branch, HET, the Police Ombudsman, Strasbourg, public or judicial inquiry, civil suits or inquests. The 50 or so currently outstanding promised inquests are almost all reopened ones that the courts, the DPP or the Attorney-General have decided were inadequate previously. Inquests were apparently being reopened according to two loose criteria: first, the usual one where collusion was alleged, such as Glenanne and Finucane; and, secondly, where the deceased was a terrorist but the command and control arrangements of the security forces were in question—in other words, once again only the state was being reinvestigated.

At the height of the Troubles, as we know, evidence gathering was next to impossible for fear of another death, so inquests tended to be brief, especially for the 700 murdered soldiers. It is worth remembering too that in the case of the IRA’s 1974 Birmingham bombing there was never an inquest.

Reopening has been granted when some new information has come to light after inspection of, for example, new files in the National Archives at Kew. Quite often the new information is not that compelling and, increasingly, judicial reviews do not succeed when the killings occurred up to 50 years ago. Judges accept that memories fade and become unreliable.

The Human Rights Act and thus the ECHR Article 2 procedure, much quoted in recent days by the Secretary of State, do not require deaths to be reinvestigated prior to its commencement in 2000. The Supreme Court has of course suggested that the cut-off date should be a decade earlier but certainly not the 1970s, so I think His Majesty’s Government are absolutely right on this and I oppose Amendment 110.

[Baroness Suttie (LD)]

My Lords, I shall speak in favour of Amendment 110, to which I have added my name. It would remove Clause 40 from the Bill and would have the effect of leaving the inquest system as it currently stands. I shall be extremely brief because the noble Baronesses, Lady O’Loan and Lady Ritchie, have made the case so powerfully in favour of the amendment.

The Minister will know that the victims’ commissioner, Ian Jeffers, is deeply concerned that removing the current inquest system would be an additional blow to families who have already waited decades for an inquest, and it is just not clear how and when the ICRIR will work to deal with them. Does the Minister agree that, when an inquest has begun and the preparatory work has been done, it seems inefficient and impractical to start a new process with new personnel?