Northern Ireland Troubles (Legacy and Reconciliation) Bill Debate
Full Debate: Read Full DebateBaroness O'Loan
Main Page: Baroness O'Loan (Crossbench - Life peer)Department Debates - View all Baroness O'Loan's debates with the Northern Ireland Office
(2 years ago)
Lords ChamberMy Lords, I acknowledge and applaud the integrity with which the Minister introduced the Bill, and the way he articulated the problems that exist. Given the range of amendments apparently to be introduced by the Government, though, it is difficult to understand why we are actually debating this difficult and challenging Bill.
In starting my words, I pay tribute to all those with whom I have worked over the years. For 25 years, in one way or another, I have been in this business of investigating and overlooking the Troubles. I pay tribute to the people who came to me, particularly when I was Police Ombudsman for Northern Ireland, because that took a lot of courage. I remember one mother who came to me and was terrified; she knew the name of the person who had murdered her young son but was too afraid to tell me his name. As she sat at my table, I ran through the names of IRA men whom I had identified as working in the area until she nodded. That seemed to open some sort of gate, which enabled her to talk to me.
I think of the victims, including the police victims: people such as Constable Colleen McMurray, Detective Sergeant Joseph Campbell and Lance Bombardier Stephen Restorick, the last soldier to die in Northern Ireland. I think of all the victims of all the shootings and bombings. The first I dealt with in some detail was Omagh, where 29 people and two unborn children died, which was really traumatic and went to the heart of what the Bill is about. One of the problems we have is that although most people who were in the security services and the forces in Northern Ireland served with great distinction and integrity, not all did. We have a significant problem in relation to many agents of the state. I think of people such as Stakeknife on the one side and those in the UVF on the other, who were engaged in terrible crimes.
Noble Lords have referred to the extent to which the Bill has been rejected by people, organisations, statutory organisations, former police officers and soldiers, including veterans who served honourably and have stated that criminals who served alongside them should be prosecuted. It has also been rejected by numerous independent and distinguished human rights lawyers and other experts, the UN committees, the European Commissioner for Human Rights and so on.
However, at the heart of this, as we have heard tonight, the legacy of the Troubles lives on in the hearts of all of us who have been affected by them. I include all those affected by the deaths which occurred here in Westminster; I think of Airey Neave and of all the bombs that there were here in England. They live in my heart for my lost baby, who died before he was born in a bomb explosion; they live in the dreadful and murderous sectarian attack on my son when I was police ombudsman, which left him with terrible injuries. There was an investigation but we always knew that it would go nowhere, because people were so afraid of the loyalist paramilitaries that nobody would come forward to give evidence.
That is the legacy and reality of life in Northern Ireland, and it lives on still. On Saturday night, I will go to a place called Oristown in County Meath, where they are trying to recover the bodies of the remaining disappeared. There were three of them: Columba McVeigh, who was 17, Joe Lynskey and Captain Robert Nairac. It lives on in all our hearts and all our souls.
I did a search to find out how these new provisions will promote reconciliation. The word “reconciliation” is used in the Bill on 168 occasions, some 167 of which are in the titles of the Bill and the Independent Commission for Reconciliation and Information Recovery. There is one other reference to “reconciliation”: Clause 44(4) provides for a study of memorialisations and requires that there must be consideration of
“how … memorialisation activities currently, or will in the future, promote reconciliation in Northern Ireland”.
That is the sole provision aimed at reconciliation. Can the Minister explain whether the Government intend to amend the Bill to provide mechanisms by which they might promote reconciliation?
The Bill does four very important things, which are being articulated here. It terminates existing criminal investigations into Troubles deaths, including the Kenova investigations, with which I am involved. It provides for review in limited circumstances, which may lead to prosecution but is very unlikely to. It terminates civil actions from 17 May this year, and there will be no Troubles inquests after May 2023. I hope that the Government will not come back and tell us that they will allow it to be May 2024, which would be an insult to people in Northern Ireland. All inquests currently under way but that have not reached the stage of substantive hearing must be terminated by the coroner. The Bill also provides for conditional immunity for those involved in the Troubles, as we heard.
Earlier proposals included roles for the Northern Ireland Department of Justice and the Northern Ireland Policing Board, but the Bill makes no provision for any involvement of any of the devolved part of Northern Ireland. The Secretary of State is even responsible for making decisions about memorialisation projects. Does the Minister not agree that, like so much in the Bill, this should be a matter for the devolved Government rather than the Secretary of State?
The Bill makes the commission the only body that can examine legacy cases throughout the UK. As noble Lords have said, the structures will lack operational independence. I was pleased to hear the Minister say that there will be changes in how the Chief Commissioner will be appointed. However, the Bill provides for extensive involvement by the Secretary of State in operational matters, including giving guidance to a whole range of bodies, including the commission, about the exercise of its function; proposing cases of death or harmful conduct for review; determining resources—we all know that the way to render a new institution impotent is to limit its funding and powers, and there is scope for both here; determining applications for immunity; monitoring the work of the commission; and guarding access to information.
The Secretary of State can rule that information is
“protected international information … which … if disclosed generally might, in the opinion of the Secretary of State, damage international relations.”
The Constitution Committee observes that Clause 4(1) prohibits the commission doing anything that might “prejudice … national security”. There is no provision for the review of any national security claims made by the Secretary of State.
Clause 2 provides for the work of the commission. The language of Bills is normally very carefully chosen. As has been said, the need for proper investigations of Troubles-related deaths was previously acknowledged, and the language has changed in the Bill. The functions of the commission include the review of deaths and harmful conduct and the production of reports on the review of each death. Reviews are not investigations; they are conducted to help a senior investigating officer who is investigating a crime, or is proposing to investigate an unsolved crime, to detect that crime by identifying lines of inquiry. There is national best practice for how to do a review so that it is thorough, is conducted with integrity and objectivity, looks at all investigative opportunities and makes recommendations for further investigation. Reviews are there to assist investigation, not to substitute for it. They should result in further investigation, not just final reports. I do not believe that it is an accident that the word “review” has suddenly appeared in the Bill.
One of the requirements under Article 2 for investigating the crimes of the Troubles, especially those crimes in which a state agent or actor has been involved— although many served with honour, there were hundreds of these crimes—is that the investigation be independent. Taken together, the structures created by the Bill restrict and inhibit the operational independence of the commission. The right to independent investigation is guaranteed, not only through the convention on human rights but through the Good Friday agreement and, most recently, Article 2 of the protocol, which provides for no diminution of our human rights. Your Lordships have been debating with great interest the effect of Article 2 in the protocol debate.
International bodies and eminent experts do not accept that the structures created in this Bill will satisfy the UK’s international and legal obligations. The powers available to the commission do not even appear to include unfettered use of police powers—the powers of the Secretary of State seem to extend even to the use of those powers. This Bill does not provide the existing right of access to information held by state bodies. There is an obligation on state bodies only to provide information and documents that are “reasonably required”. As Police Ombudsman, I had a right to all information held by the PSNI. In other cases, I had to seek information from state agencies such as the MoD, MI5 and GCHQ. Sometimes they were helpful; on other occasions they were not. More recently, as a member of the international steering group for Operation Kenova—I have been there for nearly seven years—investigating the activities of the republican state agent known as “Stakeknife”, I have seen the difficulties experienced by this investigation, which was commissioned by the Police Service of Northern Ireland. It is not a new problem. The language of this Bill will make the work of information retrieval from the state much more difficult.
Under the Bill, in addition to his other powers, the Secretary of State gives guidance as to the identification of sensitive information. Sensitive information includes anything held by GCHQ, MI5, the MoD, the Army, the PSNI and any British police force. The Secretary of State can issue regulations on the holding and handling of that information. Those regulations may create criminal offences. The Constitution Committee has said that this provision is constitutionally unacceptable because criminal offences should be created in the Bill itself, not by negative resolution, where there is no provision for amendment. In addition, the holding and handling of such information can be regulated by the Secretary of State, and they can even provide for biometric information to be destroyed.
The decision as to reasonableness—the Bill refers to information that is “reasonably required”—will be made by the state agencies, not by the commission. In many cases, I am sure that the MoD, MI5 and GCHQ will decline to provide access to much of the information they have. They will say this is necessary because the material is secret, or its disclosure may put lives or methodologies at risk. I have seen material classified as secret which should not have been. I saw that most recently when I was investigating the Metropolitan Police. The European Court of Human Rights has found that determinations of national security threats must not be arbitrary and must contain sufficient safeguards to give the individual adequate protection against arbitrary interference. I have seen methodologies protected that are no longer relevant. It is most unlikely that the commissioner will get access to what they need for review, or even for investigation.
We must add to these difficulties and restrictions the fact that the commission must grant immunity to a person who has requested it, and who has given an account of their own conduct that formed part of the Troubles that was true to the best of their knowledge and belief. Immunity is not possible for Troubles-related sexual offences. Both the Delegated Powers Committee and the Constitution Committee have said that the power given to the Secretary of State to define sexual offences should be removed from the Bill. But what sort of regime prohibits immunity for sexual offences but grants immunity to murderers?
The Secretary of State can issue guidance on making a request for immunity or determining whether an immunity applicant’s conduct falls within the legislation and is criminal conduct, et cetera. The Delegated Powers Committee says that the statutory guidance should be subject to parliamentary procedure. The Constitution Committee suggests that your Lordships may wish to consider whether the guidance should be incorporated in the Bill. There is no requirement to inform victims or family members of a request for immunity or the outcome of that request. Victims, family members or interested persons cannot provide information to inform the commission’s immunity decisions. In many cases, the families of murder victims have gathered vast amounts of information about the murder of their loved one which they could provide to the commission, as they have in the past provided it to me, and which might demonstrate that the applicant has not told the whole truth about his or her own criminality.
The Government, in response to the Council of Europe’s Committee of Ministers, said that they would expect the commission to inform families and that
“information about the granting of immunity should also be included in the published family reports”.
The whole immunity process will be vested in secrecy. There will be no transparency and no accessible accountability for the decisions made.
We also know that accounts given to members of families by those who were involved in the murders of their loved ones are very often inaccurate and sometimes wrong. The harm caused to families by inaccurate information cannot be overstated. There is no penalty for an offender not telling what they really know, although this may change. Where there cannot be a prosecution of an individual because they have immunity, that will impact on the ability to prosecute others for that offence, just as there have been difficulties in prosecuting pursuant to the operation of the current arrangements for assisting offenders under the Serious Organised Crime and Police Act.
Even if the commissioner were to get access to information, to attempt to deal with the complications involving a request for immunity and to proceed to a review using police powers with a view to making a submission, there are very restrictive provisions as to the disclosure which may be made by the commission. In particular, paragraph 3 of Schedule 5 permits disclosure to a range of persons—the Director of Public Prosecutions, the Lord Advocate, a member of the police force, coroners, judges—but the Secretary of State must be notified. What is the purpose of notifying the Secretary of State? What is the Secretary of State going to do with the information? Why should case-sensitive information be disclosed in this way, rather than, for example, being dealt with under the normal rules for disclosure in prosecutions?
Paragraph 4 of Schedule 5 requires that proposed disclosure be notified to the Secretary of State, and he can then give consent for disclosure or withhold it if it would prejudice national security. Again, there is no clarity as to how this might impact on disclosure to the defence or, indeed, the prosecution in any criminal trial. What will be the impact of this provision? Can the Minister reassure the House that this will not have the potential to result in prohibition of the disclosure of material relevant to a prosecution? More importantly, what will the perception be of the victims?
These are not normal provisions. They build in delay. The Secretary of State has up to 60 days to make his first decision and 60 days to make his second decision, and that is for one piece of information. I can tell noble Lords that there are multiple pieces of sensitive information involved in any case. The power of the commissioner to submit a case for prosecution will be severely compromised by these provisions.
I have a few final points. The commission is charged to produce a historical record of the remaining deaths—those which it did not investigate. How will this record be created when there is no investigation? We already have that wonderful book, Lost Lives, which so many of us have used, which tells the story of every death of the Troubles. Will this process add anything to that work? Given that the commission’s work can be concluded or shut down
“if the Secretary of State is satisfied that the need … has ceased”,
the question must be, can the Minister confirm that the commission will be funded until its work is completed and that the work of the commission itself will not be terminated after five years? Cases will run on after the five years.
Our history is very complex. Somehow, a situation evolved in which the police, the Army and MI5, having successfully infiltrated terrorist organisations, lost their way. There grew a time when many of the agents of the state currently under investigation were allowed to carry on their involvement in terrorism to preserve them as agents. People died because of this, and it should not have happened. Even when they admitted their crimes to their handlers, they were just sent back on the street. As this emerged, as people began to realise that their loved ones had been murdered by people such as informants—agents of the state who had not been dealt with—there grew an ongoing sense of betrayal in both communities.
There were of course also cases in which members of the police and Army were involved in crime. I emphasise that I know that most officers served honourably. I dealt with so many of them in my time; I lectured them. I remember giving evidence to a Diplock court against an IRA man who had been gathering information against judges and police officers, with a view to a spectacular shooting. That was a difficult thing to do, but it had to be done.
All I want to do in my work on this Bill is to try and help noble Lords to ensure that it will provide justice and enable hope for the people who, like so many of our noble colleagues, have suffered so much through the Troubles.
My Lords, I want to say some words in favour of this Bill. One might assume that we had a situation at present that was viable. I very much sympathise with the noble Baroness, Lady O’Loan, and others who have looked at the word “reconciliation” and said that it is tossed around in the Bill in a way that is not entirely convincing, to put it politely. I absolutely understand that, but the truth is that we have an entirely rancid situation in Northern Ireland. The continuation of lawfare is just a contributory to what is perfectly obvious to anybody who pays the most casual attention to public opinion in Northern Ireland: there is an increasing mutual contempt between the two communities. There is a reason why the Government are trying to introduce this Bill. I fully accept the point from the noble Lord, Lord McInnes, that in part it is to do with a manifesto commitment and the issue of veterans, but it is also to do with the fact that the status quo is simply not tolerable, and in our discussions I think we should acknowledge that.
I was very impressed by the introduction to the Bill from the noble Lord, Lord Caine, not just because of the careful and calibrated way in which he spoke and acknowledged the difficulty, even the anguished way he spoke, but also the precise way that he spoke. But he did not really have much effect on the broader tone of the debate. As the debate went on, we learnt that the Bill was obscene and again and again it was said that it was depriving people of hope.
The noble Lord, Lord Hain, talked about Pinochet’s Chile. Perhaps it is because I was at Cambridge with people who suffered under Pinochet, I thought that was a slight stretch. I accept that the noble Lord was a remarkably effective Secretary of State. He has made it clear tonight that he is on a journey and that he has now modified some of the positions he previously held on this matter in the light of his hopes for what might come from the Boutcher inquiry. I must say, as someone who knows Jon Boutcher, that that is a big wager; it is a Pascal’s wager of a big sort that that inquiry will somehow challenge the terms of this debate, for all the brilliance of his police work. Everybody who knows about his career in London knows that he was—indeed, still is—a very fine policeman.
This language is striking and so different from the tone that the noble Lord, Lord Caine, adopted in an attempt to be precise and face up to difficulties. Again and again tonight, reference has been made to the fact that there were sexual crimes. In fact, the Government have tried to move on this; it is there, but you would not know it from anything that been said in the past two or three hours.
The crucial thing, above all, is that I find myself thinking again and again about the friend of the noble and right reverend Lord, Lord Eames, at the time of the initial report, which he has talked about so eloquently tonight. Everybody knows that his friend, Denis Bradley, is no particular friend to British Governments. When this Bill was published and it was clear that the Government were going to act in this way, did Denis Bradley talk about “obscene”? Did he talk about depriving people of hope? No. He went into a television studio and, to the annoyance of people who expected him to use that sort of language, he said, “There is no realistic hope. Politicians are merely playing a game if they try to defend the idea that there is hope somehow. They are making a public display. They are actually misleading people.”
It is important to remember the tone with which he spoke at that time. He said, “We cannot deliver more justice now, but we may be able to deliver more truth”; again, that is part of the thinking behind the Bill. That is what Denis Bradley said in the immediate aftermath of this Bill’s publication—quite different from the tone of so much of what has been said tonight, but at least it respected what the Government are trying to do. I am absolutely certain that, if he were here tonight, he would say, “There are loads of things in this Bill that I really don’t like,” but that is a different point. The noble Lord, Lord Caine, has already acknowledged that there are problems in the Bill and creative work will have to be done to sort it out. However, given the tone of what we have heard, it is worth remembering Denis Bradley’s initial response.
Again, the reason why I am sympathetic to the sceptical talk about reconciliation is that I was a historical adviser to the Bloody Sunday tribunal. As historical advisers, we all thought, “This is it. The Government’s great failing is that they won’t fess up to the things they or the state did wrong. We will put a line under it.” When the report came in, David Cameron made a fine speech, partly drafted by the noble Lord, Lord Caine, fessing up to what the British state had got wrong. The hope was, “Well, that’s it. That’s a dividing line. People will accept that we’re not afraid to criticise ourselves or our state’s performance.” The hope was that things would move on and the mood in Northern Ireland would change, but the mood did not change at all. It is as simple as that. I accept that it was a fine industry for the lawyers who worked in it, but the mood of the people did not change at all and the impact that David Cameron was aiming for in his speech ultimately amounted to zero. I am prepared to accept that it would have been worse had he not given that speech. But that is why I accept the talk that it is going to be difficult to achieve reconciliation and why I respond so sympathetically to what the noble Baroness, Lady O’Loan, said.
However, it is important to understand that the status quo is radically unacceptable, defective, and helping to create an increasingly rancid and divisive public mood in Northern Ireland. At this point, the Bill has unified both communities, but it is a false unity. They each simply want the terrorists of the other community to be brought to law. The unity disclaimed against the Bill is not a real unity.
What has surprised me most this evening is how the Supreme Court ruling in the McQuillan case in December 2021 has not been discussed in any serious way. It has a very significant impact. The headline in the Times law report on 10 January stated that the Supreme Court had said that Northern Ireland police are not required to reinvestigate incidents from the Troubles. That is not being said by the Minister or the British Government, and nor is it a clause in this Bill. It is a very firm statement of Supreme Court policy.
I am sure that there is debate about this, and that many do not like or accept it, but it is a Supreme Court—
Does the noble Lord accept that the Times headline writer might not have been quite accurate, and that the judgment in the McQuillan case might have been slightly more complicated than that?
It is no more inaccurate than any other headline that I have seen. I accept that it is a complex ruling. However, the Northern Ireland police force issued a statement after the judgment:
“The Police Service welcome the clear legal ruling that there are no legal obligations arising from Article 2 ECHR to investigate these cases. We will now carefully consider the judgments and their impact on the legacy caseload.”
The Government have been attacked for depriving people of hope but, at the minimum, fairness requires us to say that the Supreme Court is depriving people of hope. Only this week we have had an attempt to assassinate two policemen, and serious business with loyalist paramilitaries. Anyone who thinks that the Northern Ireland police force does not look at that ruling and think it significant—and significant enough to be mentioned in this debate—is living in cloud-cuckoo-land. Yet apparently, no one thinks that because it is better to say that this Bill is obscene, is depriving people of hope, et cetera.
I am insistent because we have a problem. The public debate in Northern Ireland now—the way that lawfare operates and the way that these cases are now exhumed on a regular basis, which the Government are responding to—does not relate to what happened in the Troubles. To give a very simple example, the RUC, as was, suffered 309 deaths. It killed 53 people, including 10 of its own in error, carrying heavy weapons in police cars and so on. RUC officers were killed at five or six times the rate of their killing. This is very crude but factual. The killings committed by the republican movement were something like five times the rate of their own deaths, but no one would know that if they looked at the cases running through the courts in Northern Ireland, and at how lawfare was operating. No one would consider that to be the balance of killing and of suffering. Nobody would know that.
That is the problem that we are trying to address with this Bill and why I am willing to give it a degree of support. It is not in doubt that there are problems with the Bill. The Minister has made it clear that the problems are significant. The House can do a lot of work to improve it. Yet everyone must remember that the Bill does not exist on its own but alongside a Supreme Court ruling that unquestionably moves the dice—moves the balance. There is no question that it does that. It may not move it 100%. There may be requirements for other developments, but it certainly moves the discussion in a way that we have not acknowledged in several hours of debate tonight.
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—
I want to interject the fact that in the 1970s, a process was adopted which prevented prosecutions—there were to be no prosecutions for murder of any military personnel—and there was a process through which the Royal Military Police produced statements which have now been declared to be totally unacceptable, so there were processes which made it impossible. I ask the Minister again: will he make the money available for the prosecution of the 33 files which Operation Kenova has submitted to the Director of Public Prosecutions? If you have the money, you can prosecute.
The noble Baroness has asked me this question a number of times before. The Public Prosecution Service is not funded by the Northern Ireland Office; it is funded by the Executive, and it is a devolved responsibility. It would have to find the money from within its own resources, if resourcing is the only issue here. I have heard from a number of respected figures within Northern Ireland, within the legal system, who would argue that it is not just about resources at all.
I was trying to set out what I think the Government’s position was, because the chances of prosecution in so many cases were so remote, even where people have held out for prosecutions. I have given the example before of Bloody Sunday and the Saville inquiry, which reported in June 2010. The PSNI then very methodically went through the report and investigated the cases again to see whether there were any grounds for the prosecution of soldiers. It took nine years for the current DPP to come to a decision around prosecutions, concluding that prosecution would be justified in one case. As we know, that case subsequently collapsed. I think it has now been re-referred, but it did collapse. One noble Lord mentioned the fact that people are getting older and dying, and this example points to the fact that these processes can take a very long time.
Therefore, the purpose of what the Government are putting forward here is to try to bring forward information and get people to the truths in a much more timely way. The noble Baroness, Lady O’Loan, shakes her head and disagrees, but that is the genuine intention: to try to get more information out there while it is still available. As noble Lords know, the problem with a prosecution if it collapses is that no information is provided to families, and they are literally back at square one. We can have these discussions, but I just wanted to say that that was one of the justifications for this. In order to encourage people to come forward and co-operate, as noble Lords know, the Government originally put forward in the Command Paper a blanket statute of limitations of the kind referred to by my noble friend Lord Cormack, but they then refined the position on the basis that if people were going to be given immunity from prosecution, there should at least be some incentive to earn it. That was the way in which the Government approached this back in 2020.
I have taken on board the very strong feelings expressed this evening. If noble Lords will forgive me, I think I have been fired hundreds of very detailed questions from across the House, which I could not possibly answer, particularly at nearly 10.05 pm. But what I am prepared to do is to sit down with noble Lords, both individually and collectively, before Committee, which I hope will not be rushed. That is certainly not my intention. I think somebody used the phrase “pell-mell” the legislation through the House, but that is not my approach or my intention. I would want to take sufficient time to look at the Bill in detail and give it the scrutiny that it absolutely deserves.
In my speech I tried to respond to some of the concerns that have been expressed already and which were brought out in the debate. I apologise to the noble Baroness, Lady Smith of Basildon, that I was not in a position to flag, if you like, at an earlier stage what these amendments might be. I think the noble Baroness is familiar with government write-round processes, which do not always proceed at pace and are the subject of discussion. I do apologise. In all genuineness, I hope that these amendments, when they are drafted and I bring them forward, will go some way to allaying concerns on the issues that have been raised outside the House and inside the House this evening around ECHR compatibility, independence of the new commission, greater incentives for co-operating with the body, and penalties for misleading, lying and not telling the truth, including revocation of immunity where that has already been granted, and full sentences for those who do not co-operate with the body but are subsequently investigated and convicted.
I also assure the noble Baroness, Lady Smith, that I do not expect those amendments to be the end of the story. There are other amending stages in your Lordships’ House beyond Committee, and, again, I hope we will not rush from Committee to Report and can have a reasoned and genuine discussion and debate between those two stages of the Bill.
While I will look at what further amendments the Government might be able to bring forward, I will genuinely look constructively at those which are put forward by other noble Lords across the House. As I have always said in my engagements within Northern Ireland itself with victims groups and others, I am the least precious person when it comes to amendments and where they come from. If they are sensible and constructive, I will always look at them and give them a fair wind.
As I say, I am very happy to sit down individually and collectively and engage with noble Lords before Committee. I will seek to go through the speeches made in your Lordships’ House this evening and, where detailed questions have been put to me, I will respond in writing, if noble Lords will allow me, rather than detain the House for a great deal longer this evening.
As I said at the outset, it is challenging and difficult, but there is no perfect way of dealing with this. I want to try and genuinely use this House in its proper constitutional way to revise and improve legislation.