Northern Ireland (Miscellaneous Provisions) Bill

Baroness O'Loan Excerpts

Tuesday 4th March 2014 Lords Chamber

[Lord Trimble (Con)]

My Lords, I start by thanking the Minister for bringing forward the amendments that we are going to consider. They go some way towards addressing the concerns that have been expressed and it is very welcome that she has responded to them in that way. I also thank her for her acknowledgement that we could not pass by the events of last week. We have not had the opportunity in this House to refer to these matters because Statements were not repeated. If we were simply engaged in a mundane debate, people outside looking in would wonder what on earth was going on. Therefore, I am very glad that the Minister has widened the scope of the discussion, and I am going to take advantage of it in just a moment.

I very much agree with quite a few of the things that the noble Lord, Lord Alderdice, said. I was particularly attracted to his analogy of teenagers, although he should perhaps go a little further and bear in mind that some teenagers have delinquent tendencies and it is slightly better to view the matter in that way. We all know that it is absolutely essential that teenagers with delinquent tendencies have clear boundaries. In that situation, nothing is worse than letting people think that the boundaries can be blurred and that they can get away with things. Unfortunately, that has been done again and again over the past 15 years with regard to the republican movement.

Although what the noble Lord says about institutional memory is true, one tendency has not been forgotten. In the old days before the agreement, we used to say that the default mode of the Northern Ireland Office was to make sure that it kept the Irish Department of Foreign Affairs and Trade happy. Since the agreement, the default mode of the Northern Ireland Office has been to keep Gerry and Martin happy, irrespective of any other consideration—or that is how it seems. What was revealed last week regarding the letters that were sent out in connection with 187 cases, and what was described by Dominic Grieve in his Statement to the other place as the administrative process involving the Northern Ireland Office, the public prosecutor and the police, certainly ought not to have happened in the way that it did, and perhaps it ought not to have happened at all.

There are a number of really interesting aspects of the judgment, which I recommend to everyone. I am going to mention just a couple of paragraphs, one being paragraph 36. It reads:

“On 2 June 2000 the Attorney General”,

who I think at that time was Lord Williams of Mostyn,

“wrote to the then Secretary of State for Northern Ireland … Peter Mandelson stating: ‘… I am seriously concerned that the exercise that is being undertaken has the capacity of severely undermining confidence in the criminal justice system in Northern Ireland at this most sensitive of times. Individual prosecution decisions have to be justifiable within the framework in which all prosecution decisions are reached and I am not persuaded that some unquantifiable benefit to the peace process can be a proper basis for a decision based on the public interest”.

Interestingly, that last phrase about the peace process was echoed by the judge, Sweeney J, in this case at paragraph 168, in which he said that he was not taking that into account, adding,

“that is a matter for politicians and Parliament”,

and not for judges. I heartily applaud that.

Paragraph 37 is even more interesting. After referring to the letter from the Attorney-General, paragraph 37 states:

“That was followed by further correspondence and meetings (whether between Ministers or officials) during the course of which the need to proceed ‘by the book’ was accepted”.

So afterwards,

“the need to proceed ‘by the book’ was accepted”.

The implication is that before this stage people were not proceeding by the book. Of course, the great danger of this scheme is that it will create pressures on officials in the prosecuting authority and among the police not to stick to the book and to give what they think is the answer that Ministers want. One has seen that happen in Northern Ireland in other circumstances as well.

I urge noble Lords to read paragraph 82 of the judgment, which is a lengthy statement by an official from the prosecuting authority indicating all the problems and difficulties that this caused. If noble Lords read that, they will come, as I have done, to the conclusion that this whole exercise was misconceived and that it was asking questions of the police and the prosecuting authority that they could not reasonably and properly answer, and that the whole process is one that should never have been undertaken. If you have any doubt about the undesirability of it, you only have to read paragraph 52, which states:

“At a meeting with the SSNI”—

the Secretary of State for Northern Ireland—

“in May 2001 Mr Adams expressed the view that … it would be better if there was an invisible process for dealing with OTRs”.

Even Mr Adams wanted it to be kept but of course he wanted it to be kept invisible because it existed for the benefit of the IRA only. That is part of the reason why Lord Williams of Mostyn was so concerned about it. That concern comes out in paragraph 82 if you read it alongside.

This scheme was being put in place deliberately for the purpose of benefiting only one party and only one side of the community, and obviously was to be kept secret from the rest in so far as was possible. Incredibly, it was kept secret for so long, partly due to Answers to Parliamentary Questions given from the other side of the House which were quite simply lies. There is no other word to describe that. It is appalling that this happened.

I feel particularly ashamed that it continued after 2010 and that our Conservative Ministers were engaged in the decision. The decision to continue doing this was made by Owen Paterson. I wonder what advice he received to lead to that. I am very disappointed that it did not occur to him or to the other Ministers involved to say, “This is something which we should not have anything to do with. The previous Government may have done it but this is not something which we should put our hand to at all”. I have to say that I applaud what David Ford has said on this matter that he is not going to tolerate it in his department. Of course it should have been devolved to his department in 2010 but it continued after that being run by the Northern Ireland Office. It was interfering with criminal justice matters even though it no longer had responsibility for criminal justice matters. That is really very strange. It could only happen in the Northern Ireland Office. At that, I think I should conclude.

[Baroness O'Loan (CB)]

I wish to speak first of the reduction, the possible reduction and future reduction in the number of constituencies. The constituency in which I live is some 75% or 80% unionist. Of the original seats, two managed to elect nationalist, non-unionist politicians. The boundaries were withdrawn. One of the nationalist seats disappeared, so we are now down to five unionist and one nationalist seat. I declare an interest because my husband held one of those seats in the Assembly.

My point is that the impact of reducing the number of seats on the possibility of there being any purpose at all in voting in Northern Ireland is something of which the people of Northern Ireland are very aware. There are whole constituencies on both sides of the divide where people feel that at present there is little purpose in voting. We have single transferable voting so there is some purpose but I would very much endorse the words of my noble colleagues in regretting any attempt not to preserve the current numbers of Members of the Assembly.

I also want to talk about a matter which other noble Lords have addressed; namely, the crisis—it is a crisis—in the justice system in Northern Ireland at present. It is reaching right across the community. It has introduced a sense of distrust, which was beginning to be healed, throughout our community.

There has been no discussion in your Lordships’ House about what was done. Last week, a man walked free from court because he had had a letter that said the police had no interest in him. As the noble Lord, Lord Trimble, said, we believe that there are 187 such letters. I heard one former Secretary of State talk of the possibility of 200 such letters.

The problem is that letters of comfort may or may not have had the effect of removing the possibility of any future prosecution—not least because their very existence gives rise to the possibility of an abuse of process application in the event of any attempt to prosecute, but also because the letters of comfort have generated such consternation. There was no knowledge of these letters of comfort among the general population of Northern Ireland. It was a betrayal of the people.

Great courage was needed to do some of the things that had to be done, and I pay tribute to the noble Lord, Lord Trimble, for what he did to bring peace to Northern Ireland. However, it was a very difficult time, and I have said repeatedly in your Lordships’ Chamber that this deal is not done and settled; it is a very fragile state of affairs. The noble Lord, Lord Trimble, told us that Adams said it would be better if it were an invisible process—but it was an invisible process. I know, because in 2001 I was investigating cases involving IRA men who were acting as agents of the state for the police. In investigating those cases I had to look at the criminality of the IRA personnel. The HET is investigating the criminality of the IRA personnel, and the PSNI currently is also investigating that criminality. Neither the HET nor the criminal investigations branch of the PSNI was informed of the situation. None of us knew who we might have in our sights, if you like, and who would have been taken out of the sights of the Director of Public Prosecutions by virtue of a letter that may or may not have been issued, which may or may not have been correct in its terminology but which ultimately might have the effect of compromising any possibility of prosecution.

In such circumstances, the Government are spending huge sums of money to sustain a criminal justice system in Northern Ireland that is based on, to some extent, very significant failure. Throughout the Haass talks, there was a lot of talk about how we would deal with the past; it was one of the three strands of the talks. As I understand it, the possibility of letters of comfort did not at any stage get a mention.

We knew about royal pardons and the exercise of the royal prerogative of mercy. We could identify where both those might have happened, although the information was generally not made public. However, we did not know about these letters. It is profoundly important that this Parliament should concern itself with them. This Parliament is concerned that those who might have abused children in years past, and who are being investigated in the Savile investigation, should be prosecuted. Surely this Parliament has a duty to have the same standards of justice for the people of Northern Ireland.

The final thing I will say is that this was a secret process that has, as I said, undermined our justice system. The fact that it would do so was recognised in 2000 when the process started. There is much work to be done to try to explain what happened and what the ongoing implications are for the operation of the justice system in Northern Ireland today.

[Lord Cormack (Con)]

My Lords, I will not detain the House for long, but I had the honour to be the chairman of the Northern Ireland Affairs Committee in another place for the whole of the previous Parliament. During that time, I came to know, respect and admire many of those, from all parts of the community, who were fighting very courageously for peace. I came to have a particular regard for the noble Baroness, Lady O’Loan. I had many meetings with her and admired the judicious sensitivity with which she approached her difficult task.

I have always had a very high regard for my noble friend Lord Trimble, who was a very courageous trailblazer. Without him, and without what he and Seamus Mallon did, we would not have had the Good Friday agreement. Although that came about during the premiership of Tony Blair, Prime Minister Blair himself was the first to acknowledge, in the ceremony that was held a few yards from here in the Royal Gallery, that without what John Major had done he could not have achieved what he did.

--- Later in debate ---

[Baroness O'Loan]

I listened very carefully to what the noble Baroness has just said, and I want her to clarify whether there was an investigation before the issue of these letters—which proved to be a comfort to some, I have to say—or whether the police were tasked to check whether there were outstanding warrants. Had there been an investigation there would have had to have been a proper review of the investigation file in respect of specific events and the extent to which individuals were linked to them. Was that investigation conducted or was a lesser exercise conducted, which simply examined whether there was sufficient information to justify a warrant for the arrest of someone? I hope that the noble Baroness understands the question.

[Baroness Randerson]

It is my understanding that inquiries were made with the PSNI as to whether the people on the list were wanted for specific offences. However, it is important that this will be examined by the inquiry, which will examine the nature of the whole process, and we will get far more detailed answers than that as a result of the inquiry.

I was saying to noble Lords that people who receive such letters should not consider them to be an amnesty. On the basis that those were simply factual letters, the current Government agreed in May 2010 that the list of names submitted by Sinn Fein to the previous Administration could continue to be checked. That answers questions from one or two noble Lords.

[Baroness Randerson]

I thank my noble friend for that question. I am certain that that will be covered by the inquiry. If it will not, I will of course ensure that he receives an answer to that question in writing.

The Secretary of State has made it clear, and I reinforce it, that if at any time we had been presented with a scheme that amounted to immunity, exemption or amnesty, we would have stopped that scheme, consistent with the opposition of both coalition parties to the previous Government’s Northern Ireland (Offences) Bill 2005, which noble Lords will recall was withdrawn because of the level of opposition to it. We believe in the application of the rule of law and due process, regardless of whether a person is in possession of a letter or will be eligible for early release under the terms of the Belfast agreement. We will take whatever steps are necessary to make it clear to all recipients of letters arising from the scheme, in a manner that will satisfy the courts and the public, that any letters issued cannot be relied upon to avoid questioning or prosecution for offences where information or evidence becomes available now or later. In the light of the error identified in the case of John Downey, the Prime Minister announced—

[Baroness O'Loan]

The Minister has just said that if information became available now or in future, there would be no impediment to prosecution. What would the situation be in respect of evidence or information which is currently in the possession of police but which has not been processed to an extent that it becomes attributable or linked to those named individuals? Will that information be taken into account or is there a line in the sand, and the only information that can be used to prosecute in the future in respect of these named individuals is that which comes to the attention of the police in the future?

[Baroness Randerson]

I fear that the noble Baroness will be frustrated by my answer, which is that that will be clearly part of the information that will become public once the inquiry is finished.

I was referring to the error in the case of John Downey. The Prime Minister announced on 27 February that a judge would be appointed to provide an independent review of the administrative scheme, and I have referred to that several times already this afternoon. I wish to set out the terms of reference of the review.