Northern Ireland Troubles (Legacy and Reconciliation) Bill

Baroness O'Loan Excerpts

Committee stage
Tuesday 24th January 2023 Lords Chamber

Moved by

[Baroness O’Loan]

5: Clause 2, page 3, line 18, at end insert “unless an investigation is one to which subsections (2) and (3) of section 17 apply”
Member’s explanatory statement
This amendment removes the duty to produce a report on the finding of any investigation until the matter under investigation has been dealt with by the Prosecutor.

[Baroness O’Loan (CB)]

My Lords, these amendments relate to the reporting functions of the commission that will be established by the Bill. Noble Lords will know that the process of reporting and producing a report for public consumption is enormously important because it complies with the requirements to be open and transparent about the work that has been done.

At the same time, those who report must rightly engage in a complex but necessary fairness process—a process in which one has to consider all one’s obligations to all the various actors mentioned in the report. I did so most recently in June 2021, when I reported on my work for the Home Secretary in relation to the Metropolitan Police Service’s handling of the case of Daniel Morgan. The fairness process at the end of that report lasted months and months, because it was so important to ensure that letters went to everyone who might be mentioned and even very faintly criticised in the report, to receive their responses and then to produce a report that reflected precisely what we wanted to say. I am very much aware, as I am sure noble Lords are, of the difficulties attached to this reporting process.

These amendments apply to the reporting process following review or investigation because of the other amendments I have tabled. Amendment 5 in my name removes the requirement to produce a final report on an investigation if that investigation has been subject to a referral to the prosecutor under Clause 23 and the prosecutor has yet to make a prosecutorial decision or a prosecution has not occurred. This is an amendment to Clause 2, so it is the first time the Bill is introducing the functions of the commission, and one of those functions is to report. The amendment says simply that you do not have to do so if there has been a referral to the prosecutor and it is not resolved. I want to put that in the Bill to prevent any expectation that there is an obligation to report in these circumstances. I think that expectation would exist but for this amendment.

Similarly, Amendment 89 to Clause 15 would mean that the Chief Commissioner is under no obligation to produce a final report or to provide the specified information where a matter has been reported to the prosecutor. Obviously, where an investigation has occurred it is not possible to provide the information referred to in Clause 15 until all prosecutorial possibilities have been exhausted. This is to protect the integrity of any investigation that has occurred.

Amendment 98 refers to the requirement in the Bill to provide a copy of a whole report to somebody who is criticised in it. I may have misread or misunderstood the impact of this clause, but I think the Bill requires the commission to send the report to anybody who has been criticised in it. I am suggesting an amendment that would introduce a process similar to that of the Salmon or Maxwellisation principles and would require only information that relates to the criticism of the individual in question to be shared with that individual, not the whole report. Were the whole report to be provided, it would give the individual who has been criticised access to information about other criticisms and other information that it may not be appropriate to include before the final editing of the report. For example, the commissioner might find that his criticisms were not justified when he gets a response from those to whom the material has been provided. Clause 15(11) may be attempting to deal with this problem, but it is not clear what is meant by that subsection. I do not know whether the Minister will be able to enlighten us as to the extent of that subsection and how it applies. I hope that the amendment as suggested would limit the obligation on the commissioner while still satisfying the requirements of fairness for those who are criticised and still enabling him or her ultimately to produce the necessary report.

Clause 15 provides that if there is a criticism of the criticism, the commissioner will exclude the material. In Amendment 100 I suggest that it is very helpful, when one is producing the material, if one can modify the material that one has sent out, rather than exclude it in its entirety. There may well be issues that still need to be raised for the purposes of completeness and accountability in reporting. I think it would give the commissioner much more flexibility and allow the production of a fair but more complete report.

Clause 24(4) provides that the commission may not request information from a victim or survivor of the Troubles or their family member. Clause 24(5) modifies that slightly by providing that information can be sought if they hold a public office or something like that. To enhance the confidence of victims in the proposed process, my Amendment 141 provides a right for such a person to provide information. I think that is important in caring for victims.

Amendment 142 is a probing amendment, simply to consider the circumstances in which confidential information should be available to the ICRIR for the purposes of historical reports. For example, I have seen multiple situations in which information held by organisations such as the PSNI, the RUC or the Metropolitan Police has been marked confidential despite the fact that, even by government marking standards, it does not warrant such classification. When you are confronted with information marked confidential, you can challenge the classification and get it downgraded so that it does not attract the protections that confidential information attracts, but I think it is important for the Minister to consider whether it is possible to arrange for situations in which information that may have been marked confidential might be made available for historical purposes.

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[Lord Caine (Con)]

A lot of it is determined by the Barnett formula, but, in large part, it is not just security but the additional needs that Northern Ireland has. I have no issue with the additional spending: it is right that, as part of the United Kingdom, Northern Ireland benefits from the same levels of service as every other part, and that should continue. But the additional spending is not just down to security, by any means.

[Baroness O'Loan (CB)]

Is the Minister sure that Northern Ireland benefits from the same level of services as the rest of the United Kingdom? Our waiting lists are very much longer than any in the health service here—far more people are waiting for appointments there than here—and we have major difficulties in our education system because of funding matters. So the service is not the same.

[Lord Caine (Con)]

I completely appreciate the point made by the noble Baroness. To some extent, the problems there are exacerbated by the lack of a devolved Administration between 2017 and 2020: we are still living with the consequences of there being no decision-making during that period, when Sinn Féin pulled down the institutions. Of course, we are also suffering from the lack of a functioning Executive at the moment. I suspect that we might return to some of these issues when we debate the Northern Ireland Budget Bill in your Lordships’ House in two or three weeks’ time. However, I accept that the situation, particularly regarding health and waiting lists, is considerably worse in Northern Ireland, but we stand by the principle that Northern Ireland, and all parts of the United Kingdom, should benefit from the same levels of service.

I turn to the noble Baroness’s amendments on the historical record. If families do not request an investigation into the death or serious injury of their loved one, or their cases are not referred to the commission by the Secretary of State in circumstances where he has deemed it appropriate to meet international obligations, the researchers responsible for compiling the record will use only publicly available information and will not contact families. This is of the utmost importance because we know that, for perfectly understandable reasons, a number of families in Northern Ireland would rather not resurrect the past, and we entirely respect that. Nothing in the current drafting prevents individuals voluntarily providing information to the commission, but, again, I am happy to continue to talk to noble Lords on this matter. On that basis, I urge the noble Baroness to withdraw her amendment.

[Baroness O'Loan (CB)]

My Lords, once again, I thank noble Lords for their contributions on these issues. Amendment 136, on the need for funding for prosecutions, covers a very complex and sensitive issue. The reality is that a case takes an average of three years—probably longer now in Northern Ireland—to come to prosecution once it is presented to the prosecutors. With the various stages of the trial process, it lasts a number of years. If the commission has a lifespan of five years for the receipt of information, with a consequential period for investigation, which may well exceed a year for each one, there will be difficult problems in trying to process cases. Quite simply, we are trying to do too much in a limited amount of time with limited resources. That is why I am afraid I have to challenge the Minister again on his assertion that the money must come from the current Northern Ireland budget—it quite simply is not there. I hope that the Minister will recognise the need to resource both investigations and prosecution.

If we set up a commission to deal with the past and it is capable of doing what Jon Boutcher has done in Kenova, which I am serving on, and the cases go into a black hole called the prosecution service and nothing comes out the other end, conclusions will be drawn about what Parliament’s intentions were in setting up this legacy process—and they will not be positive conclusions. I just reiterate that issue.

The noble Baroness, Lady Smith of Newnham, made very valuable and thoughtful contributions. In relation to the question of whether it is possible to give a criticised individual a partial report, rather than a whole one, report writers have to take into account the privacy rights of the individuals who appear in the report, whether they are named or might be recognised by the role that they hold. There is that need to try to balance the need to ensure accountability and transparency with the proper protection of the privacy rights of others. My amendments seek to make the process of preparing those reports more compliant with all the requirements of fairness.

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[Lord Caine (Con)]

Absolutely not—nothing here is intended to dilute the investigatory powers of the commission at all.

[Baroness O’Loan (CB)]

My Lords, I acknowledge the need for many of these government amendments, which clarify technical and procedural points. They do not go to the heart of the objections to the Bill that have been articulated tonight.

Some amendments, such as Amendments 6 and 7, are very minor. They provide for the provision of annual work plans, six-monthly reporting and things like that. It seems slightly heavy that you have to produce those as a matter of good governance—the auditors will require that. There is a requirement to provide annual reports and things like that, but, as regards putting that in statute, I do not object to it, but it is kind of heavy-handed. It goes again to the suspicion that the Secretary of State wants to be very involved in the work plans, how they are doing it and how they intend to distribute the resources that are available to them within the commission. I simply draw that to the Minister’s attention.

I am not sure about the meaning of Amendment 35. I know it is not the Minister’s amendment, but can he say whether it is possible that it may have the effect of limiting the application of some of the provisions of the Bill and some of the amendments that we have discussed and will discuss? There are powers other than those commonly known as police powers which may apply. I do not expect the Minister to answer that tonight, but will just leave the thought with him.

It seems that Amendment 41 may limit the ability of the commissioner to be flexible in the use of his staff. Obviously, the commissioner will be making decisions about which staff are required to have police powers and which are not. Those who have police powers will be able to do things such as arresting, searching and seizing, et cetera, while those who do not will not, but they can accompany and assist. I am not sure—perhaps the Minister can clarify this at a later time—whether an officer can have a limited subset of police powers, as provided for in the legislation, and I am not sure what that would add. So Amendment 41 may in fact not be particularly helpful in ensuring the most economic and effective use of the resources available to the commissioner.

The Minister referred to my reservations about Amendment 183. That refers to the removal of the provision making the ICRIR a relevant authority under the Investigatory Powers Act 2016—which goes to the question that the noble Lord, Lord Hain, has just asked. As I understand it, as drafted, the Bill gave the commission the right to require the delivery of data. Information may or may not have been requested by a previous investigation. If it was requested, it should be available in the files of that previous investigation. However, we know that, in many cases, data which may have been available was not requested by previous investigations for a variety of reasons, and therefore it will not be available to the commission unless the commission has the power to ask for it. The suggestion has been made—I thank the Minister for the discussions we had about this—that the holder of the data could voluntarily surrender it. That may or may not be correct, but my question is: this is actually a tool in the toolkit of a standard investigation, so why take it away?

[Baroness Smith of Basildon (Lab)]

I was expecting the noble Lord, Lord Bew, to speak on this group of amendments.