Northern Ireland Troubles (Legacy and Reconciliation) Bill

Baroness O'Loan Excerpts

Committee stage
Thursday 11th May 2023 Lords Chamber

[Lord Howell of Guildford (Con)]

My Lords, I strenuously support this amendment spoken to by my noble friend Lord Faulks, supported by my noble friend Lord Godson, and for two specific and extremely important reasons.

The first is simply this. If your Lordships go back to the 1972 detention of terrorists order passed through the House of Commons and this House, they will find specific provision in the text of that order for 28-day and night ICOs to be signed by Ministers of State, junior Ministers or other officials. We were doing that—I had the privilege of being involved in taking it through the House of Commons at the time—not just to reinforce the eminently sensible Carltona principle but for the most practical, hard-headed considerations of the circumstances in which these matters would have to be handled.

What we were dealing with seems to have fallen out of the memory of many people. Although we said that it was not a war, the Provisional IRA said it was, and indeed there was talk from Dublin of the same thing. We were having to deal with war conditions, whether or not we accepted that a war was being waged against the United Kingdom. The practicality of that was that the Secretary of State—Mr William Whitelaw at the time, under whom I served—was having to move very quickly between Belfast and the Cabinet, handling the situation in the Houses of Parliament and a variety of other commitments as well. It was perfectly obvious that, for the smooth working of the procedures and the empowerment of the detention of terrorists order and many other pieces of legislation, he would need support of all kinds in handling these matters—in particular, in accordance with the detention of terrorists order and Carltona.

Much of the discussion since has been detached from the context and intense pressures in which we were working after the fall of Stormont and the arrival of the Whitelaw mission in Northern Ireland. Incidentally, this had the support of the whole House. The House of Commons supported it unanimously; there were maybe one or two queries but no amendments at all.

The second reason for my support for this amendment is that, while I do not wish to criticise the courts in anyway—I would not dare do so—I am absolutely baffled that legal and court procedures in a complex matter of this kind, going back in history, did not involve calling any witness of any kind to corroborate what actually happened and what went on in Stormont and in the procedures we are discussing. Ministers should have been called in those proceedings. It happens that I am the only Minister left from the Whitelaw team who is still alive, and I should have expected to be asked exactly how these things went on. What happened when one was asked on a Sunday night to sign an ICO? Who was consulted? To what extent did one talk to the Secretary of State beforehand, or to other Ministers of State or important witnesses from the police and other authorities? This was extensive but none of it was ever discussed.

It is utterly bizarre that somehow the court procedures should ignore what was specifically provided for in the original order. This seems to be almost incomprehensible. I therefore ask strongly that the Government reconsider what my noble friend Lord Faulks has put so eloquently and the point that the noble Lord, Lord Butler, has rightly argued about the procedure. Was there really a procedural glitch? No one knows; it was never discussed, and yet here we are with the prospect of millions of pounds being claimed on the basis of a judgment that appears to be based on sand—on nothing.

This is a very serious matter; it is a dangerous and costly matter. It may encourage many more difficult feelings at a time when—heaven knows—the whole balance and fragility of Northern Ireland is once again in question. It would be a great mistake not to accept the validity behind this clause, even if it needs amending in certain ways, and to pass it by or cast it aside on the grounds of matters settled. This is not settled; it is unsettled and most unsatisfactory. It needs very serious determination and consideration now.

[Baroness O'Loan (CB)]

My Lords, the discussion on Amendment 154A shows the importance of getting legislation right in the first instance. I speak in support of Amendment 146 to Clause 34, to which I have put my name. This amendment and Amendment 152 will remove the provision that all existing investigations must transfer from the existing investigation body to the ICRIR. Chief officers of police have to notify the Secretary of State of all criminal investigations of Troubles-related matters. The only exception to this under the Bill arises when a prosecution is under way and the investigation is pursuant to the prosecution.

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

The noble Lord, Lord Murphy of Torfaen, referred to the past seven or eight months—I assure him that, from this side of the Committee, it seems much longer. He, my noble friend Lord Dodds of Duncairn and the noble and right reverend Lord, Lord Eames, somewhat pre-empted my opening comments on this group of amendments by referring to the sad passing of Lord Carswell. As this is my first opportunity to address your Lordships since his death, I join those who pass on their condolences to his friends and family. Lord Carswell spent many years as a very dedicated public servant, including as Lord Chief Justice of Northern Ireland, as a Law Lord and as a distinguished Member of this House. We will miss his very wise and profound contributions.

I am also grateful to my noble friend Lord Dodds of Duncairn, the noble Baroness, Lady Hoey, and the noble Lord, Lord Murphy, for their references to the security forces. I intend to touch on that at slightly greater length in replying to the next group of amendments, but I concur with every word that was said.

As has become customary on the Bill, this has been a thorough debate. Before I respond directly, I would like to take a couple of moments to make an announcement in the Chamber. Last month, on 20 April, I laid in the Library of the House a paper setting out the selection process for the chief commissioner of the ICRIR. I am pleased to announce today that, following recommendations from the three Chief Justices across the United Kingdom, the Secretary of State has identified the right honourable Sir Declan Morgan KC to be appointed to the role of chief commissioner of the commission upon Royal Assent. The Secretary of State is today laying a Written Ministerial Statement providing more detail.

It is important that a chief commissioner be identified now in order to help victims, survivors and their families receive the answers they need with minimal delay, should this legislation receive Royal Assent. Sir Declan brings a wealth of experience from his previous role as former Lord Chief Justice of Northern Ireland from 2009 to 2021. A hallmark of his distinguished career has been his commitment to addressing the legacy of Northern Ireland’s past. I am confident that he will bring the highest level of experience, expertise and integrity to this post, and that this will help build public confidence in the work of the commission.

Sir Declan will begin work early next month to identify other commissioners and design how the new commission will carry out its role. Formal appointment as chief commissioner will take place only following Royal Assent and the establishment of the commission, taking account of any further considerations and final requirements of the Act. In particular, the chief commissioner will lead the process to recruit the commissioner for investigations and provide a recommendation to the Secretary of State. The role is currently advertised and subject to a fair and open competition, with appointment on merit. I trust that noble Lords across the House will warmly welcome this appointment.

[Baroness O'Loan (CB)]

Does it not seem slightly precipitate to be engaging the services of the chief commissioner and other commissioners when the powers and duties of the commission have yet to be decided by your Lordships’ House? It seems to me that, notwithstanding the amount of time needed to establish the new offices, the Bill is not yet in a state in which the chief commissioner can approach commissioners and say to them, “This is what we’re going to do, and this is how we’re going to do it”, because the House has not decided those issues.

[Lord Caine (Con)]

As I just made clear in my remarks, the appointment is as chief commissioner-designate, and the formal appointment will not take place until after Royal Assent. That will take into account any further considerations that the House will have upon this legislation. It is important to enable the work of the commissioner to start now in order that, once Royal Assent is—I hope—received, the commission’s work can begin without delay.

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[Lord Caine (Con)]

The salary is based on judicial pay scales, as set out by the Ministry of Justice. I cannot off the top of my head tell the noble Baroness precisely what day his remuneration will begin, but I will get back to her on that. However, it is consistent with the MoJ’s judicial pay scales.

I turn to the amendments on criminal investigations, and first to Amendments 146 and 152 in the name of the noble Lord, Lord Browne of Ladyton. Under the Bill, the only existing criminal investigations that will be allowed to continue will be those where a decision to prosecute has been reached by the time of the Act’s commencement, currently two months after Royal Assent.

As the noble Lord knows, it has long been the Government’s view that to allow too many existing processes to continue alongside the ICRIR’s establishment would dilute the commission’s credibility as the sole investigator of Troubles-related deaths and serious injuries, and the wider objectives of the legislation to encourage information recovery and—an issue on which many noble Lords have touched today—the truth of what happened. In the Government’s view, the legislation as drafted strikes the right balance between allowing existing criminal cases that have made significant progress in the prosecutorial process to continue while giving the ICRIR the space it needs to become established as the sole responsible body for these types of investigations.

The legislation does not prevent the new commission, once it is operational and subject to a request being made, resuming criminal standard investigations into deaths or serious injury which the police have been prevented from pursuing under Clause 34(1). As we have discussed many times in the past, the commissioner for investigations will have the full powers of a police constable.

[Baroness O’Loan (CB)]

It has to be said that the powers of investigation conferred on the commissioner for investigations in the statute are not the same powers as the powers—for example, to access information, and other powers—which are held by an ordinary chief constable and his officers. The powers of investigation in the Bill are circumscribed by the role of the Secretary of State and the interventions which he can make.

[Lord Caine (Con)]

I disagree with the noble Baroness. The commissioner for investigations will have the powers of a police constable and will have access to far greater information and records than is currently the case. We have been over this many times before. It is written into legislation that the commission will have access to far more archive and intelligence material than has ever been made available before.

The noble Lord, Lord Browne of Ladyton, quoted the decision of Armani Da Silva v the UK in regard to what constitutes an effective investigation. Again, we have debated this at length on previous days in Committee. To reiterate a point I made during those debates, the commission, working together with public prosecutors and making full use of the police powers to which I have just referred, will be able to institute criminal proceedings against suspected offenders in cases where conditional immunity has not been granted.

In the Government’s view, the absence of a prosecution or punishment outcome in individual cases where immunity is granted can be justified on the basis that the conferral of such immunity in a limited and conditional way is necessary to ensure the recovery of information about Troubles-related deaths and serious incidents that is extremely unlikely to come to light in any other circumstances. It is therefore consistent with the Government’s stated objective to provide more information to victims and survivors of the Troubles in a timely and efficient manner.

In response to his question about the compatibility of the Bill with the Scotland Act 1998, it has always been our expectation that the power of referral will be exercised in consultation with the relevant prosecuting authorities, including the Lord Advocate, and I commit to consider this matter further in advance of Report.

In response to Amendment 154 in the name of my noble friend Lord Dodds of Duncairn, where a decision to prosecute has already been made, the case will be allowed to continue to trial and the individual involved will not be able to apply for immunity until its conclusion. If they are convicted of an offence, they will not of course be able to apply for immunity from that offence, as we have discussed previously.

Clause 6 designates the commissioner for investigations as a person having the powers and privileges of a constable, as I referred to a few moments ago, and they have access to the functions they need to carry out robust investigations.

On the very important Amendment 154A, in the name of my noble friends Lord Faulks and Lord Godson, I am very aware of the issues being raised following the Supreme Court ruling in 2019—indeed, I was a special adviser in the Northern Ireland Office at the time that that ruling was made by Lord Kerr. It has been brought back into focus following a court judgment in the past few days and I am aware of its importance. I hope my noble friend will understand, as he alluded to in his comments, that, given the lateness with which the amendment appeared and important legal considerations on which it touches, I am not in a position to give him or other noble Lords a full response today. But I do take on board the very powerful points made by a number of noble Lords: the noble Lords, Lord Butler of Brockwell, Lord Macdonald and Lord Murphy of Torfaen, my noble friend, Lord Howell, who reminded the House that he was indeed a Minister in the Northern Ireland Office in 1972 with some responsibility for these matters, and my noble friend Lord Sandhurst. All upheld the importance of the Carltona principle. As I say, I cannot give a definitive response today, but I do commit to discussing it further before Report and possibly returning to this when the Bill comes back on Report.

I turn to the group of amendments put forward by the noble Lord, Lord Browne of Ladyton, supported by the noble Baroness, Lady O’Loan, and other noble Lords, to address some of the concerns raised over the inclusion of a number of clauses. I begin by reminding the House that, as regards civil cases, over 700 writs were issued against the state in legacy civil claims before the First Reading of the Bill a year ago on 17 May 2022.

As has been stated many times, the Government’s policy intent regarding civil claims is to reduce the burden on the Northern Ireland civil courts—which currently have a huge case load backlog to work through—while enabling the commission to establish itself as the sole investigative body looking at Troubles-related deaths and serious injuries. It is the Government’s intent that families should no longer have to go through the strained civil court system in order to receive the answers they seek.

In the Government’s view, there is a danger that these amendments in the name of the noble Lord and others would significantly dilute both of those aims, taking potential casework away from the ICRIR and putting it back into an already clogged system that on current estimates will take decades to work through. In our view, this is much less likely to provide answers for families in an efficient manner, which again sits in opposition to our stated aims.

On Amendment 156 specifically, filing claims can be done relatively quickly. This means that if a three-year grace period were to be given, it is possible that a huge number of claims would be filed, as a clear deadline would be in sight, and would remain in existence for a number of years. That would mean that the system would be hugely clogged up and have to deal with an even higher case burden than is currently the case.

Our current position will allow existing claims that were filed before the Bill’s introduction to continue to conclusion while bringing to an end new processes, to ensure that not too many concurrent cases are running once the ICRIR is established. Clause 39(7) simply allows any civil cases where a final judgment has been reached before commencement to continue to conclusion, where they would otherwise be caught by the prohibition in Clause 39(1). We believe that this is a reasonable approach to ensuring that the prohibition on civil claims does not interfere with cases where the court has handed down a final judgment when the prohibition would otherwise apply.

I appreciate that coronial inquests are a matter of huge concern to a number of noble Lords. I gave a commitment that this Government would not rush the legacy Bill through this House, and that we would prioritise steady passage and provide ample time for continued engagement. That is what we have done, in good faith. As noble Lords will be aware, the original working assumption was that the ICRIR would be fully operational by 1 May 2023 at the latest, on the assumption that Royal Assent would have been received some time before then. At that point, the intention was that those inquests which had reached an advanced stage would continue, while those which had not would move into the new commission. It will not have escaped the attention of noble Lords that 1 May 2023 has come and gone without Royal Assent, and that the establishment of the new commission has not yet happened, largely due to the extra time that we have given for thorough consideration of this legislation. However, this raises important issues that we must address. I will discuss this further with noble Lords between now and Report.

As the Bill has not yet become law, all current criminal justice processes may, for now, continue as normal. In that context, the noble Baroness, Lady O’Loan, asked me how many PSNI investigations have been initiated since the introduction of the Bill. That information rests with the PSNI, which, as the noble Baroness knows, is operationally independent from the Government, but I will seek an answer.

As Lord Chief Justice of Northern Ireland, Sir Declan Morgan demonstrated his leadership and his determination to provide answers for families of victims, through the work of coroners’ courts in legacy inquests. Sir Declan’s commitment to providing effective, efficient and independent coronial investigations won the respect and trust of countless families and the wider community in Northern Ireland. I am confident that he will take forward the work of the ICRIR with the same determination and commitment. The Government believe that once the commission is established there should be one process for investigating the past that is available equally to all those—I repeat, all those—who have lost loved ones, providing parity to all families, victims and survivors, while allowing other organisations to focus on contemporary issues.

While the coronial process has proved more effective than other mechanisms in providing information, accountability and acknowledgement to some families, including in some very high-profile cases, it is undeniably a resource-intensive process that can tackle only a small number of Troubles-related cases when compared with the many families who still wait for similar outcomes. The commission seeks to provide this, and it is worth reminding noble Lords that the commission will have easier access. The noble Baroness and I disagree here, but it will have easier access to more information than coronial inquests, through the obligation of full disclosure from relevant authorities, as outlined in Clause 5. This is particularly relevant to information that is national security sensitive. The commission will also have comparable powers to compel witnesses, and only on the basis of evidence will be able to make findings public via a final report, in a manner similar to an inquest.

The Government are confident that the legislation provides the chief commissioner with all the requisite tools to fulfil the commission’s functions fully and effectively. Indeed, it is fair to say that any chief commissioner, given their senior status within the judiciary, will be very cognisant of the legal obligations on all public authorities, including the commission, to meet the requirements of the ECHR.

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As the noble and right reverend Lord, Lord Eames, knows, I made clear at Second Reading that this is challenging legislation—it has been challenging for me from the outset—but my commitment has always been to try to bring forward amendments that will improve it, putting it in a better state to go back to the House of Commons. That commitment will continue through to Report. On that note, I request that the noble Lord, Lord Browne, withdraw his amendment.

[Baroness O'Loan (CB)]

Before the Minister sits down, will there be any process by which complainant compensation or damages can be awarded after Clause 39 comes into effect, or will anybody who was injured or whose loved one was killed have no right of action at all and no route to compensation? Is this the end of the road for any right to compensation in Northern Ireland?

[Lord Caine (Con)]

As the noble Baroness is aware, claims that were filed before the introduction of the Bill last year will be allowed to continue, but there will be a cut-off thereafter. As she is also aware, other avenues are available for compensation which Parliament has introduced in recent years, such as payments for those who were injured and so on in the Troubles.

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Academic research can provide not just a record of those events but a valuable analysis of how life amidst death occurred in the gay community. I sincerely hope that the Minister will see the justice in this amendment and make it one of the NIO’s promised additions on Report.

[Baroness O’Loan (CB)]

My Lords, this part of the Bill provides for history and memorialisation. It is about creating as true and honest an account as possible—one which has integrity—of what happened during our tortured, troubled past.

This is hugely sensitive. I hear what the noble Baroness, Lady Hoey, has said. All I will add is that, given the fact that the eyes of the whole community will be on those who are attempting to deal with these matters, it is vital that there is equity and fairness for all.

I fully support Amendment 172 from the noble Lord, Lord Dodds, in particular. It is right that no memorialisation activities glorify the commission or preparation of Troubles-related offences. We see at regular intervals events from different sections of the community, not just the republican community, which glorify individuals who contributed to atrocities and occasions that caused immense pain to so many of us, but particularly to those whose loved ones died or were permanently maimed in the attack being celebrated. Such events cause great pain; they can reignite the terrors and agony of the post-traumatic stress disorder suffered by so many as a consequence of these events. There is no justification whatever for the glorification of terrorism.

[Lord Weir of Ballyholme (DUP)]

I rise to support the amendments tabled in my name and the names of the noble Lord, Lord Dodds, and others, but also to give a broad welcome to this group in its entirety—notwithstanding some of the major concerns that have been expressed by ourselves and others from across the Chamber about the overall contents of the Bill. From that point of view, no amendments can make the Bill itself acceptable. Nevertheless, actions that we can take to deal with the issue of memorialisation have a level of importance.

Memorialisation can be a force potentially for good, but we also need to be aware that it can also be a major force for further problems and further evil. If done correctly, memorialisation can be beneficial in helping to remember innocent victims and, one hopes, helping towards a level of reconciliation. If we get the conditions right, that can be something of benefit to society and, potentially, to some families. But there is a real danger that memorialisation can be got wrong, which is the thrust of the amendments that we have proposed. It is about trying to provide a level of consistency.

As in previous groups of amendments, we are talking about the real danger of a glorification of terrorism, which must be prevented—certainly from anybody who seeks to benefit from this legislation. It is also the case that, if memorialisation is used as a back door to glorify or justify terrorism, it would be deeply damaging to society. It is not simply a question of rubbing salt in the wounds of the innocent victims and their families—although, if there were no other consideration, that would be a reason why Amendment 172 needed to be proposed and supported completely. But, as the noble Lord, Lord Dodds, indicated, it goes beyond simply dealing with the legacy of the past; it is about the implications for the future and the present day.

We have a generation growing up who did not experience the Troubles but who are clearly susceptible to the message that there was no alternative to violence in the past and that terrorism could be justified today and into the future. That is not simply an academic concern or one that might be moot. We have seen dissident organisations sucking in those young people to be directly involved in terrorism. That is the real danger for the future. Let us send out by this legislation, or at least through these amendments that we are putting forward, a very clear and unambiguous statement: there was always an alternative to violence. That is why, throughout the entire history of the Troubles, there was never a majority in either community for violence; it was opposed by the ordinary people throughout, and it was a minority on both the loyalist and republican sides who engaged in that terrorism and the wickedness and pain that it caused. It is critical that we send out the clear message that there was no justification for terrorism and that there was always a democratic alternative.

Allied to that, we cannot be ambiguous about those who went out to perpetrate the evil of terrorism, from whatever side they came, and those who were the innocent victims. Therefore, it is right that we draw this distinction, which is in line with some changes that the Government have made in other spheres. That is why Amendment 173 is also critical.

It is also the case—and why I welcome the amendments of the noble Lords, Lord Godson and Lord Bew, and the noble Baroness, Lady Hoey—that, overall, it is critical that memorialisation is approached with academic rigour and diversity, and a balanced approach that provides a fair and accurate summary of what happened. Again, if this is a one-sided process or one that in some way gives some level of light to those who would argue for violence in the past, it will do irreparable harm. Therefore, the academic approach that needs to be taken is critical.

I have a good deal of sympathy for the amendment of the noble Lord, Lord Godson, on an overall tone in regard to the Troubles. One thing that has struck me as a former Education Minister is that, unfortunately, at times, we see the ignorance of history. We see young people who simply do not know what happened. It is therefore important that we educate people in a neutral and fair way. There is no doubt that there are contested opinions and views as regards Northern Ireland but there cannot be contested facts. That is why we need to approach this with a level of academic rigour, and that is why I welcome the amendments.

Finally, there is an iterative process to be done, particularly with victims’ families, regarding memorialisation. It may well be that, as part of that process, there is the gathering of an oral history of the stories of the Troubles. It is important that people are able to do that through organisations with a good track record of fairness and balance, and organisations which we can trust. I declare an interest as a member of the Linen Hall Library, which for many years has taken a wide range of views and worked with all parties on reflecting the troubles in a fair and historic manner. It is a role that the library and others can play. We need to make sure that that is not one-sided or biased in any way, and in particular that we draw a clear-cut distinction between, on the one side, the vast majority of people in Northern Ireland who simply wanted to get on with their lives and the victims, and, on the other side, the perpetrators.