Northern Ireland Troubles (Legacy and Reconciliation) Bill

Baroness O'Loan Excerpts

Committee stage
Tuesday 31st January 2023 Lords Chamber

Moved by

[Baroness O'Loan]

37: Clause 5, page 4, line 37, leave out “reasonably”
Member’s explanatory statement
This amendment and the new Clause after Clause 5 in the name of Baroness O’Loan give the ICRIR the right to require information, documents and other material from all the organisations listed in the definition of “relevant authority”, other than the Security Service, the Secret Intelligence Service and GCHQ, without justification of the reasonableness of any request.

[Baroness O'Loan (CB)]

My Lords, the amendments in this group deal with the requirements in Clause 5 to provide full disclosure of information to the ICRIR. They are intended to assist the ICRIR in its work and are quite simple, but slightly technical.

In normal circumstances, the Police Ombudsman and many other public policing authorities with criminal investigation powers are entitled to require information to be supplied by relevant authorities such as those in Clause 54, where a whole list of police organisations is given. The ones from which there is no power to require information are the Security Service, the Secret Intelligence Service and GCHQ. Clause 5 as drafted imposes a requirement that any request for information must be reasonable. That is an unnecessary restriction, as the purposes for which the information will be required are the statutory functions of investigation. If the essential amendments providing for investigation, review and immunity are accepted, this information, which will be sought by the ICRIR, will be that required for the purposes of investigation, review and immunity.

The effect of my amendments is to take that composite group in Clause 54 of relevant authorities and divide it into two: relevant authorities and special relevant authorities. Relevant authorities will have to supply information. There will be one category of relevant authority, which will be under the obligation to provide information as provided for in Clause 5, as amended by Amendments 37 and 39. That will include all the authorities listed in Clause 54 except the Secret Intelligence Service, the Security Service and GCHQ. I suggest that the House remove them from the list by accepting Amendment 191. Through Amendment 197, a new category of “Special relevant authority” would be created into which the Security Service, the Secret Intelligence Service and GCHQ would be inserted.

Imposing a requirement of reasonableness on the process of making requests for information, which can be very complicated, imposes an unnecessary hurdle. When I was Police Ombudsman, I had complete power to require information, and it was delivered. There were a few early hiccups in the process, but everyone settled into it. When I was doing the non-statutory review of the Daniel Morgan inquiry for the Home Secretary, I had no power to require information and we had endless arguments about which information should and should not be required. Those arguments cost a lot of money and took a lot of time.

If the Bill is passed as drafted, there would need to be a process for determining reasonableness and a determination as to who other than a court might determine what is reasonable. This would lead to disputes and the matter ultimately would end up in court, particularly if a relevant authority is reluctant to disclose information about, for example, the handling of an informant or the way in which physical evidence was managed. To impose the restriction of a requirement of reasonableness, which will be assessed, on the ICRIR, would impact on the perception and reality of its independence and powers. For this reason, Amendment 37 simply excludes “reasonably” from Clause 5(1). That would make it consistent with current law as it applies, for example, to the Police Ombudsman and the police. It would apply to all the authorities listed as relevant authorities, as I said, except the Security Service, the Secret Intelligence Service and GCHQ.

Amendment 39 adds to the list of those required to provide reasonable assistance to facilitate the effective use of information, documents and other material. When one gets information from policing organisations, the way in which it has previously been handled can often be very helpful, particularly if it is on a digitised account such as the HOLMES investigation accounts. If there is a requirement, as there is in Clause 5, to provide reasonable assistance, the policing organisation supplying the material would also have to provide assistance to access those databases, et cetera.

The reason I suggest that other organisations should be included under Amendment 39 is that some of the criminal offences the ICRIR will investigate or review relate to events such as the bombings in Hyde Park, Manchester, London, et cetera, which were not investigated by the PSNI but by other police forces. The clause as it stands requires only the PSNI and the Police Ombudsman to provide assistance, but I suggest to your Lordships that all the other policing organisations should be under a similar obligation. Without this amendment, those providing information as relevant authorities would not be under the same obligation as, say, the PSNI to assist in the effective use of the information. Amendment 39 is therefore designed to assist the ICRIR in conducting its investigations.

Because we have to deal with GCHQ, the Security Service and the Secret Intelligence Service, Amendment 197 suggests a new category of “special relevant authority” in which those three organisations would sit. They would be required to supply information if the request by the ICRIR was reasonable. I would prefer that they had to provide it without a reasonableness requirement, but I understand that noble Lords might be reluctant to impose an obligation on the security services to provide information. This would enable those agencies to protect national security, which is their function. To give effect to that new special category of three organisations for which there would be a reasonableness requirement, a new clause, Clause 5A, would be required. That is provided by Amendment 40.

Amendment 185 is very simple: it would include the director-general of the NCA in the list of chief officers of police for the purposes of the Bill, to enable them to assist the ICRIR. It may be that the National Crime Agency will not have material relevant to the ICRIR, but it is distinctly possible that it will. It is important that it be empowered to provide information.

Finally, I support the amendment in the name of the noble Baroness, Lady Smith, which relates to the power of the Secretary of State to make regulations under Clause 31 about biometric materials and raises the level of procedure required for such regulations to the affirmative procedure. I beg to move.

[Baroness Smith of Newnham (LD)]

My Lords, I will speak to Amendment 145 in my name, and I also support the amendments in the name of the noble Baroness, Lady O’Loan. Amendment 145 is quite different from most of the other amendments put forward to the Bill. I am aware that it might sound a bit geeky, but much legislation brought forward by His Majesty’s Government seems to include sweeping powers for Secretaries of State in whichever department. This Bill does not have quite as many egregious cases of Henry VIII clauses but with Clause 31, about retention of biometric material, there is some concern that the Secretary of State can make regulations for which there would be very little scrutiny and by which, potentially, individuals’ rights are interfered with.

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[The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)]

My Lords, I am grateful to those noble Lords who have put forward these amendments. In responding, I am conscious of the experience in these matters of the noble Baroness, Lady O’Loan, both in her role as police ombudsman and in the subsequent investigations and reviews that she has carried out.

The noble Baroness’s Amendments 37, 40, 191 and 197 aim to redefine the disclosure requirements of certain relevant authorities by, as she pointed out, creating a new tier of “special relevant authority”. This would mean that any authorities left in the “relevant authority” category, such as the ombudsman or the chief constable of the PSNI, would be required to disclose all material to the ICRIR regardless of whether or not it is reasonably required, while certain other agencies, such as MI5 and MI6—the Secret Intelligence Service—would be able to rely on the provisions as drafted, being required to provide information only where reasonably required.

The Government’s view is that the amendments are unnecessary, as we are clear that the disclosure provisions in the Bill already go further than ever before in statute in terms of putting relevant authorities under a duty to disclose information if it is reasonably required by the commission for its investigations.

[Baroness O’Loan (CB)]

I thank the Minister for giving way; I know that it is late. I just want to let him know that, as police ombudsman, I had a power to require information. There was no requirement of reasonableness in the requests; clearly, the requests were reasonable, but there was no requirement for them to be so. This is a new requirement.

[Lord Caine (Con)]

I totally accept what the noble Baroness says about her experience as police ombudsman; I think that it has been less straightforward in the case of information from other bodies over the years. That is why the Government have placed this obligation on bodies to disclose information, which goes further than ever before. Indeed, the provisions directly mirror those included in the draft legislation to give effect to the 2014 Stormont House agreement, so they have been around for some time, certainly in draft form.

The noble Baroness will be aware that “reasonableness” is not a term created or policed by the Government. It is widely used and understood; it is included in other legislation, such as the Finance Act 2008; and it has a specific purpose in terms of creating obligations on others to provide information. The law requires all public bodies to exercise their powers reasonably and proportionately. It is open to authorities to challenge an assessment of reasonableness, of course, but our expectation is that the ICRIR would request the information only if it were reasonably required for the purposes of discharging its functions, so any challenge would be likely to fail if the commission followed this practice. Ultimately, it will be for the courts to decide whether the commission has acted reasonably in any case.

On Amendments 39 and 185, which would add to the list of individuals who may be required to assist the commission in handling information that they have disclosed under Clause 5, the Government are confident that all relevant individuals are already listed in the legislation. However, I am happy to take that away and look at the clause again.

As the noble Baroness, Lady Smith of Newnham, pointed out, Amendment 145 in her name—I welcome her to our debates—would require regulations regarding the retention of biometric material under Clause 31 to be made by the affirmative rather than the negative procedure. I assure her that the Government take their international obligations in this area—and in other areas, I hasten to add—very seriously. We are confident that our approach to the retention of legacy biometrics, if I can use that term, is compliant with the relevant European Court of Human Rights rulings in this area.

To remain compliant at all times, the commission will need to carry out regular, periodic reviews of the data that it retains for the purposes of its investigations, as set out in Clause 31(2)(a). This will of necessity involve the commission making decisions regarding the deletion or retention of certain data based on strict proportionality criteria that we will outline in secondary legislation. We feel that the negative procedure will provide an appropriate level of scrutiny for a power such as this, that is very limited in scope in the sense that it exists solely to ensure ECHR compliance in this area through the appropriate management of biometric material retained by the commission. The regulation-making power ensures that the commission retains only a limited category of biometric material in prescribed circumstances, for a limited purpose and a limited amount of time, after which it will fall for deletion.

The power allows only relevant biometrics to be retained and used by the commission to ensure there can be effective Article 2 investigations, while also ensuring compatibility with the provisions of Article 8 relating to the right to a private life. It also allows for biometric data no longer needed by the commission to be deleted, again to ensure ECHR compliance. So, in our view the power is proportionate and does not, for example, enable the commission to take new biometric data from individuals, but if the noble Baroness still has concerns about this, again, I am very happy to sit down with her. On that basis, I urge her to withdraw the amendment.

[Baroness O’Loan (CB)]

I beg leave to withdraw the amendment.

Amendment 37 withdrawn.

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I contend that these amendments significantly strengthen the Bill. They provide clear incentives to co-operate with the commission and clear sanctions for those who do not co-operate and might subsequently be convicted. I beg to move.

[Baroness O'Loan (CB)]

My Lords, with respect, I am not sure why these measures are described as incentives. Certainly, the victims and survivors whom I met yesterday did not regard them in any way as incentives, and it does not seem to me or them that those who hold information that may be of use to the ICRIR and do not provide it in accordance with the notice under Clause 14 are likely to be incentivised by an increase in the possible fine from £1,000 to £5,000. I will simply say that I do not see this as providing any incentive to someone to provide information if they are reluctant to do so. Bearing in mind that the information may reveal that the person or organisation they represent may have done something that relates to, or constitutes part of, a Troubles-related offence, that reputational issue, with all its potential consequential damage, could be a compelling reason not to disclose information. I think the changes made by Amendments 168 to 170 are not of great significance because they seem to apply to a very limited subset of people.

[Lord Bruce of Bennachie (LD)]

I want briefly to ask the Minister how he feels people should be incentivised and whether this is the case in the Bill. The reality, as we have heard in previous debates, is that in many cases the consequences of not co-operating are nothing. If you do not co-operate, nothing happens. If the risk of co-operating is increased from £1,000 to £5,000, it is neither here nor there. Would the Minister explain why making that change would significantly affect the number of people who co-operate? Does he accept that victims are somewhat concerned that there is a desire to incentivise certain people to come forward and not others? It will do nothing to ensure that they get the information, knowledge or understanding that they need.

I know that the Minister is trying to reassure people that he is balancing the needs of victims with the concerns of veterans. The danger is that he ends up satisfying neither and alienating both. To what extent does he feel that this contributes constructively to the effective working of the commission?

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[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I am very pleased to have been a signatory to these amendments and to assist the noble Baroness, Lady Suttie, in dealing with the needs of victims. The need for these amendments became very apparent last night, when we were talking to the victims associated with SEFF. As we have already explained, many of them experienced undue suffering and terrible hardship as a result of the summary execution of their loved ones, whether they were members of the security forces or ordinary members of the community.

The victims’ commissioner and his commission are absolutely correct in their assertion, based on feedback from members of the Victims and Survivors Forum and victims themselves: it is important that they can tell their story and the impact of that immediate and summary loss on them, their families and their wider community. That is vitally important and should be permitted. I make a plea to the Minister to give due consideration to these amendments. Maybe the Government would consider coming back on Report and inserting them in the Bill.

[Baroness O'Loan (CB)]

My Lords, I support the amendments tabled by the noble Baronesses, Lady Suttie and Lady Ritchie, and the noble Lord, Lord Murphy, which provide for the inclusion of victim impact assessments, which are now part of normal criminal justice processes, in the consideration of a final report on a review or an investigation.

I cannot help noticing that the word “victims” appears but twice in the Bill. One is in Clause 49, which states that the designated persons are to be appointed by the Secretary of State under Clause 50 if he

“is satisfied that the person would make a significant contribution to the performance of the functions which are imposed by sections 43, 44 and 46”,

in Part 4, “Memorialising the Troubles”. Clause 50 states:

“When deciding whether to designate a person, the Secretary of State must have regard to whether the person is supported by different communities in Northern Ireland and will act independently of the influence of any other persons.”


Questions must arise here. Do they have to be supported by different communities? What are different communities? Are we back to sectarian headcounts? The legislation provides that:

“The designated persons must use their best endeavours to establish an advisory forum consisting of other persons”—


simply “use their best endeavours”, not just establish it—including

“persons who represent the views of victims and survivors of events and conduct forming part of the Troubles”.

The only other reference to victims appears in paragraph 5 of Schedule 11, which relates to the situation in which a person asks the Secretary of State for information about any application which may have been made for release under the sentences Act by a person who is serving a sentence of imprisonment for at least five years or for life. Two fairly insignificant changes are made to the information to be provided to the victim about the convicted person. In a Bill that the Government have presented as being designed to bring reconciliation to Northern Ireland, these minor but very important amendments would do something to promote the interests of victims.

[Lord Eames (CB)]

My Lords, I too want to give some support to this amendment because it touches on what we were crying out for in earlier debates, which is a small but significant voice for victims. As I tried to say this afternoon, these are real people who would perceive in some ways the legislation as it stands as being tilted against the victimhood that they had suffered. I want to see some more thought given to what that means, but I support the pith and substance of what is involved.