Northern Ireland Troubles (Legacy and Reconciliation) Bill

Baroness O'Loan Excerpts

Report stage
Wednesday 21st June 2023 Lords Chamber

[Baroness O’Loan (CB)]

My Lords, today, the Day of Reflection, was proposed many years ago by Healing Through Remembering. It is a very symbolic day, as noble Lords have noted, for families of victims, and we tonight, as they remember the dead and support the injured, are debating a Bill which takes away the rights they have under the law. They do not want the Bill; it is important to say that.

I thank the Minister for the amendments he has tabled that reflect my earlier comments during the passage of the Bill. On behalf of the noble Lord, Lord Hogan-Howe, who cannot be here today, I thank him for the meetings he held with the noble Lord and with me.

It may seem desirable—admirable, indeed—that the Minister has introduced a requirement in government Amendment 2 that the principal objective of the ICRIR in exercising its functions is to promote reconciliation. However, it seems to me that there may be a contradiction between the promotion of reconciliation and the conduct of an investigation. How does one conduct an independent, impartial investigation with the principal objective of promoting reconciliation? Does that objective detract from the duty to investigate fearlessly, regardless of what the outcome of an investigation may be, so that people can be assured that the Government act in accordance with their obligations under the rule of law?

Investigation can lead to the exposure of matters that were hitherto unknown or unconfirmed but which may demonstrate, for example, that a named individual or individuals were responsible for a particular atrocity, and that can cause massive concern, particularly in circumstances in which terrorist perpetrators regard their activities as justified by circumstances, or where state actors did not take action to prevent a planned murder of which they were aware. It may certainly lead to hostility and distrust, rather than promoting reconciliation. I do not know what the answer to this is, but I think there is a conflict there, or a dissonance.

I welcome the two government Amendments 85 and 86, which provide for victim statements and the publication of those statements. The Government have yet to provide, as the NIHRC has stated, that victims or family members are informed when an individual has applied for immunity. Victims or family members are not currently expressly required to be informed of the outcome of the immunity request. There is no express requirement for the independent commission to provide reasons why it is or is not granting immunity, and there is no proposed option for an individual requesting immunity, or an interested person, to appeal a decision on immunity made by the ICRIR. In short, the Bill still does not comply, in this context, with the requirements of the victims’ rights directive in its provision for victims.

[Lord Morrow (DUP)]

My Lords, the Minister was at pains to point out that Amendment 2 is all about reconciliation, yet no matter how much you search through the Bill, there is no definition of reconciliation in it. I am having difficulty, as are my colleagues, in being reconciled to the Bill and to have reconciliation with it, but I hope the Minister will—and I am sure he will—when he is winding up on Clause 2, give his definition of reconciliation. It seems to me that reconciliation means different things to different people. I am sure he will have observed that all the victims groups that have spoken about the Bill have not spoken in favour of it; therefore, I think he has a job to do. However, as my noble friend Lord Weir has said, we will not be dividing the House on this, but I earnestly ask the Minister why there is no definition of reconciliation in the Bill.

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I do not wish to speak for other Members of the House and will respond to amendments tabled by noble Lords in this group when I close.

[Baroness O'Loan (CB)]

My Lords, most of the amendments in this group are unexceptional. I have tabled Amendments 21 and 26 to Clause 9, which provides that close family members will have to apply to have their cases reviewed. There is a definition of “close family members” which effectively excludes those who are not parents, spouses, partners, children, brothers, sisters, half-brothers or half-sisters. For example, it does not include cousins, aunts and grandparents. This does not reflect modern families, who are much smaller than previously, where the deceased may be an only child with no issue or where the only surviving relatives are more distant but may be close.

In such cases, while a family member can make a request, the decision over whether it is appropriate will be made by the investigation commissioner. My Amendments 21 and 26 to Clause 9 remove from them that power to decide whether it is appropriate for a family member to make a request and leave it where it should belong—with the family member in question. This would be a victim-informed approach and go some way to meeting the requirements of the victims’ directive.

I hope the Minister will see that these two amendments are simply designed to give effect to the rights of victims, taking a victim-centred view of those who might not fit within the definition of a close family member but might well have been very close to the deceased person—even if they have felt forced by circumstances such as a threat by paramilitaries to leave Northern Ireland and therefore have not been able to return or have found it too traumatic to do so.

To respond to the Minister’s comments on the removal of access to communications data and the removal of the RIPA scheduling which was originally provided for in this Bill, this is not such a remote matter as he appears to think. Those powers were used most recently in Operation Kenova, which is investigating matters that occurred during the period covered by this Act. Those powers were used and should remain in the Bill.

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[Lord Bew (CB)]

My Lords, I wish to return to something I focused on in Committee: the role of the ICRIR and its officers. Tomorrow, I have the honour of addressing former Chief Constable Boutcher’s staff who are working on the Kenova inquiry. There are some 80 staff and a budget, so far, of over £40 million. We must have in our mind’s eye the criteria for people who work for the ICRIR. The concerns I had in the past have been greatly mollified by the fact that Sir Declan Morgan will now play such a key role in this new body. It is important to recall that there is no obstacle to employment in the ICRIR for those officers with, for example, HET experience, who did a good job, and former officers of the PSNI, and I am simply asking for reaffirmation of this from the Minister. We have to think about the complexity of issues, such as expense. Kenova is running to a cost of £40 million now, dealing with only a tiny percentage of the case load that the ICRIR might have, and therefore we do need experienced officers who know the ground working in this area. The Minister has been helpful in the past, but I am looking for a degree of reassurance.

[Baroness O’Loan (CB)]

Before the noble Lord sits down, I have a question. He talks about the tiny proportion of the cases which are dealt with by Operation Kenova. The reality is that Operation Kenova has dealt with over 200 cases of the 1,000 which currently remain to be dealt with. My understanding is that the budget of the ICRIR is to be £50 million a year, which will come to £250 million, so the approximate cost will be very much the same.

[Lord Bew (CB)]

I am grateful to the noble Baroness for the intervention. I did not express it quite correctly; I was thinking of the likely number of prosecutions, which is a substantially lower number. She is right to make the correction.

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[Baroness O’Loan (CB)]

My Lords, I must apologise to the House. I omitted to declare my interest as a member of the Operation Kenova steering group when I spoke on it previously.

The amendments in this group cover a massive range of issues affecting the proposed immunity provisions, which are contrary to the UK’s obligations under the Human Rights Act 1998 and the European Convention on Human Rights and are not consistent with the Government’s obligations under the Good Friday agreement. They will provide immunity from prosecution for murder, torture and other terrible crimes that have left people dead or with life-changing, life-limiting injuries. The only crimes for which immunity will not be possible are sexual ones.

Northern Ireland has not previously had immunity from prosecution. What we had were prosecutions that, on conviction, resulted in a maximum two-year sentence. We also had law that said that certain evidence was not admissible in a case. So, where information led to the recovery of one of those whom the IRA disappeared, that information could not be used for the purpose of prosecution. Similarly, when guns were brought in for decommissioning, they and any information attached to them could not be used as evidence. However, that did not confer immunity on an individual; it was still possible for them to be prosecuted for the crimes they had committed.

Those laws on the disappeared and decommissioning, and even the sentences Act, resulted from the Good Friday agreement and were not in breach of our convention obligations. However, these immunity provisions are different. The extent of the problem was made clear yesterday by the Northern Ireland Human Rights Commission, which is made up of advisers to the Northern Ireland Government. It said that,

“even with the UK Government’s additional amendments … fundamentally, the Northern Ireland Troubles (Legacy and Reconciliation) Bill is not compliant with the European Convention on Human Rights … the Belfast (Good Friday) Agreement 1998 requires the UK Government to incorporate the ECHR into Northern Ireland law and to do so to provide people with ‘direct access to the courts, and remedies for breach of the Convention’ … Therefore, our previous advice stands that closing off any pursuit of justice outside of the ICRIR is incompatible with human rights and the Belfast (Good Friday) Agreement”.

I would like to the Minister to explain to me, if he can, how people will have direct access to the courts and remedies for breaches of the convention under this Bill.

Even with the Government’s amendments—more than 120 of them—this legacy Bill will not provide something that is compliant. It will prevent direct access to the courts and to remedies. The Government’s 25 amendments to their immunity scheme do not, even in their totality, make the scheme compliant with convention rights. Such things as the revocation of immunity in particular circumstances do not change those facts. Amendment 63 in the names of the noble Lord, Lord Hain, and others would require that, to get immunity, a person would have to comply with the ICRIR’s requirements to provide fingerprints and “non-intimate samples”. It would also mean that a grant of immunity could be revoked in the event that a person commits a Terrorism Act offence, is a danger to the public or, to echo the comments of the noble Lord, Lord Dodds, attempts to make a profit from their criminality.

As the noble Baroness, Lady Ritchie, said, the Council of Europe’s Commissioner for Human Rights issued the following statement yesterday:

“I have repeatedly warned that the Northern Ireland Troubles (Legacy and Reconciliation) Bill would undermine the human rights of victims, as well as truth seeking, reconciliation and justice efforts. Serious concerns have also been expressed by the Council of Europe’s Committee of Ministers, the Parliamentary Assembly of the Council of Europe, the UN High Commissioner for Human Rights, UN Special Rapporteurs, national human rights institutions, parliamentary committees”—


of this Parliament, indeed—

“and civil society organisations, including victims’ groups. Despite this, the UK government has decided to go ahead with the Bill in a way that does not recognise Northern Ireland’s violent past or honours the suffering of victims. While the government has recently published amendments, these leave the fundamental problems with the Bill intact, such as the conditional immunity scheme that would result in impunity for serious human rights violations, the unilateral shutting down of avenues to justice for victims, and questions about the ability of the Independent Commission for Information Recovery to deliver outcomes that would meet human rights standards”.

It is clear that, even with the Government’s amendments, this Bill is not compliant with our international obligations. As has been said, it continues to be the case that nobody in Northern Ireland or elsewhere—apart from the Government, it seems—thinks that the Government’s amendments will fix the Bill.

As the Northern Ireland Human Rights Commission has said, the fundamental issue is that the ICRIR’s conditional immunity scheme is not, at its core, compliant with human rights. The noble Lord, Lord Dodds, has proposed Amendment 98A in this group. He said that it would be welcomed by those who have seen investigations completed and files just sitting there, waiting to be dealt with by the prosecutor of the Public Prosecution Service for Northern Ireland. The Kenova files have been waiting for up to four years. They include the Stakeknife files and the file that dealt with the terrible murders of three young constables on the Kinnego Embankment in Lurgan. All that will be lost. It will simply cease to operate unless the amendment in the name of the noble Lord, Lord Dodds, is accepted. I urge colleagues to think very seriously about the terrible injustice that would be done if we did not get that amendment through.

Despite all the amendments, the conditional immunity scheme remains in breach of our obligations. As we look at conditional immunity for murder, it must be more questionable—indeed, offensive—that immunity from prosecution will not be available for sexual offences but will be for the most heinous murders and tortures carried out by people like those who abducted and murdered Jean McConville, a mother of 10, in 1972; like those who planted the Enniskillen bomb; and like those who murdered people watching a football match in Loughinisland, as well as for all the other atrocities. Why? To know that your loved one was savagely murdered—even to witness it, as some did—is surely as egregious and terrible as any sexual offence.

Nobody in Northern Ireland wants these provisions. I urge noble Lords to support the amendments that seek to remove them, in particular Amendment 66 in the name of the noble Lord, Lord Murphy, to which I and the noble Baronesses, Lady Suttie and Lady Ritchie, have added our names.

[Lord Blair of Boughton (CB)]

My Lords, I will not detain the House much on this issue and Amendment 63, to which my name is attached, because I am really here to talk about Amendment 31, the Kenova amendment, which we will come to later on. I just want to remind noble Lords of the shocking effects of letters of comfort. We are about to repeat that same mistake if we continue with this process and do not do something to get Amendment 63 through the House on Monday.

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[Lord Caine (Con)]

The noble Lord will be aware from his own experience that the search for any consensus around this subject has eluded successive Governments of—I was going to say “both parties”, but it is actually three parties if you include the coalition.

The noble Baroness mentioned devolution. I well remember the history of why we are in this position in the first place: after the Stormont House agreement, the First and Deputy First Ministers came to what was then Her Majesty’s Government and said, “This is all far too difficult for us to do in Stormont. Please do it at Westminster”. The assumption always was that these issues would be dealt with in Stormont, with some parallel legislation in this House. Anyway, enough of the history.

I genuinely accept that this is the most controversial and challenging aspect of the Bill. As I acknowledged at Second Reading, I have found this very difficult. I reminded the House at the time that one of my first jobs in politics was to work alongside the late Ian Gow MP, a wonderful man, when he was chair of the Conservative Northern Ireland Back-Bench committee, so I understand. I have had many meetings with victims’ and survivors’ groups over many years, and intensively ever since I took on responsibility for this Bill in your Lordships’ House. Indeed, I responded to a request from the noble Baroness last year. I have done this very willingly and have heard many harrowing stories that I will never forget. One of the most difficult parts of the job of being a Northern Ireland Minister, as the noble Lord, Lord Murphy, will acknowledge, is that one has to listen to some of the most appalling stories of suffering and grief; I completely acknowledge that.

As I said earlier, the Government are determined, through the legislation, to attempt to deliver better outcomes for those most affected by the Troubles. I do not underestimate that this is a hugely difficult task and that the legislation contains, as I have said, finely balanced political and moral choices that are challenging for many.

On the comments that have been made about our international obligations, we debated that extensively in Committee and I have had lots of discussions in private. We are not going to agree. The Government’s advice is clear that the provisions of the legislation are compatible with the Human Rights Act and the ECHR.

[Baroness O'Loan (CB)]

Could the Minister explain to us how they are compatible?

[Lord Caine (Con)]

I explained that at length in Committee. They allow for investigations to an Article 2-compliant criminal standard, they allow for prosecutions in cases where people do not co-operate with the commission, and they allow for revocation.

[Baroness O'Loan (CB)]

Possibly my question was not properly phrased. Could the Minister explain how an immunity provision such as this is compliant with our obligations?

[Lord Caine (Con)]

There are circumstances where setting aside the prospect of a prosecution, if it is for the greater good of providing more information to victims and survivors that will help society to move on, can be justified.

On the noble Baroness’s other point, I think she referred—I hope she will forgive me if I did not hear her quite right—to recourse to human rights remedies. The Bill does not remove the right of individuals to bring challenges under the Human Rights Act 1998, and that could include judicial review of decisions taken by the ICRIR in relation to the conduct of reviews. As a public authority, the ICRIR is under a duty to act compatibly with human rights obligations, something that we will probably talk about more in the next group of amendments.

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I apologise to the House for speaking at such length on this group of amendments, but there are many and I think it only right that we do justice to the importance of this challenging debate. I hope that I have answered as many questions as possible and I ask the noble and right reverend Lord to withdraw his amendment.

[Baroness O'Loan (CB)]

My Lords, I would like to query what the Minister said about Amendments 94 and 97 and about me. I have never suggested that the officers of the ICRIR would not have the powers of a constable.

[Lord Caine (Con)]

Forgive me, I am having difficulty hearing the noble Baroness.

[Baroness O'Loan (CB)]

My Lords, I said that the Minister made some allusion to me in the context of Amendments 94 and 97 as he was concluding his remarks. I have never suggested that the officers of the ICRIR would not have the powers of a constable. I just want to place that on record.

[Lord Caine (Con)]

I am grateful to the noble Baroness. I do not think I was in any way ascribing those opinions to her. If she thinks I was, then I apologise.

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In short, in Operation Kenova, there is a working model that is compliant with Article 2 of the ECHR, unlike the Bill. It is a working model that gives value for money and is scalable, as referenced in the NPCC review above. It is also a working model that has the confidence of families whose cases it has dealt with, and of Northern Ireland political parties. From his long service in Northern Ireland, the Minister will know that achieving a model backed by pretty well every victims’ group and every political party in Northern Ireland is unique. It is also a working model that is delivering on legacy, which the Bill so badly fails to do. If the Government continue to resist this amendment, which has wide cross-party and Cross-Bench support, I will put it to a vote on Monday. In that respect, I commend Amendment 31 to the House.

[Baroness O'Loan (CB)]

My Lords, I will speak to my Amendment 13, which is also in the name of the noble Baroness, Lady Ritchie, and which simply requires the removal of the word “reasonably” from Clause 5. The noble Lord, Lord Hogan-Howe, is unable to be with us today, but he associates himself with my remarks.

The Government told us that one of the purposes of the Bill is to provide families with information that was not previously available to them, and another is to gather all investigative and review functions within the ICRIR. This was always the proposal under the Stormont House agreement, and I have no difficulty with it, except for the way in which it is done and the immunity clause. But the powers accorded under the Bill do not provide to the ICRIR the access to information that will be necessary to obtain the information that families need, without lengthy judicial reviews and threats of judicial reviews, which have bedevilled inquiries such as the Saville inquiry and, indeed, the Kenova investigation.

In normal criminal investigations, there is a proviso that an investigator will not do anything which would prejudice national security or put someone’s life at risk. There is law that deals with this. The law also provides mechanisms which include a power to recover information, such as the search process when a warrant has been obtained. For example, police will seize all the computers in a house to determine whether the contents of any of them may be relevant to the matter under investigation. Those are general statutory investigation powers. Those charged with criminal investigation also have powers to require the provision of information from agencies and individuals. For example, under Section 17 of the Police Reform Act 2002 there is a simple duty on every chief constable and local policing body to provide information to the IOPC. Similarly, Section 66 of the Police (Northern Ireland) Act 2000 says:

“The Chief Constable and the Board shall supply the Ombudsman with such information and documents as the Ombudsman may require for the purposes of, or in connection with, the exercise of any of his functions”.


There is no qualification, simply a duty to provide information. However, this Bill as drafted states that a relevant authority

“must make available to the ICRIR such … information … documents, and … other material as the Commissioner for Investigations may reasonably require”.

This provision applies only to information which the ICRIR reasonably requests. Of course, an investigator must always act reasonably and in compliance with the law. However, there is no process for which a chief constable may, for example, say, “No, it’s not reasonable for you to make that request for information”. I had those conversations in the early days of my tenure as Police Ombudsman. I was told, for example, that it was not reasonable for me to ask for sensitive information, such as information held by Special Branch—now the Intelligence Branch. I was able to point to the law, which said that the chief constable

“shall supply the Ombudsman with such information … as the Ombudsman may require”.

That is how it is in criminal investigations. It is not required that the investigator demonstrates the reasonableness of any request for information.

The Minister has said that a requirement that information shall be reasonably required is to be found in other statutes. He cited one, the Finance Act 2008, so I looked it up. Section 113 of and Schedule 36 to the Finance Act 2008 provides that an officer of His Majesty’s Revenue and Customs can require a taxpayer to provide information reasonably requested by the officer for the purposes of collecting a tax debt owed by a taxpayer. There is a big difference in the powers required to collect an unpaid tax debt and those required to investigate a murder, as is evidenced by the current state of the law, which provides necessary protections for privacy in appropriate circumstances under the GDPR and the Data Protection Act, for example, but also empowers criminal investigators to access information. This is the proper working out of UK compliance with its obligations under the Good Friday agreement and the European convention.

If an agency could respond to a request for information by the ICRIR by challenging the reasonableness of that request, there would be inevitable and very lengthy disputes, possibly—indeed probably—involving judicial review, about why what the ICRIR was asking for was reasonable. The reality is that the investigator—the ICRIR in this case—may be in possession of material justifying the reasonableness of the request for information, but that material cannot be disclosed at this particular point in time without compromising the integrity of the investigation. The result is that an agency may be unaware of the material which the investigator holds, but it may be very aware that information which is held by that agency is highly compromising of the agency and may indicate how it came about that, despite an agency, for example, being aware of a proposal to murder someone, it did not intervene to stop that murder. It has happened.

The necessary unqualified powers to compel the production of documentation, especially documentation held by the other agencies, security intelligence services and police intelligence units, will not be available to the ICRIR because of how the Bill is drafted and the definition of sensitive information. The proposed powers to identify and gather information will also be subject to veto by the Secretary of State under the extensive provisions of Clauses 29 and 30. Access to information could be severely curtailed through the exercise of powers conferred on the Secretary of State in this Bill, because it gives the Secretary of State powers to give guidance about how the ICRIR is to identify sensitive information such as that held by police intelligence units and how that information is held and handled, et cetera, and even to create new criminal offences in relation to such matters.

Last year, the European Committee of Ministers exposed serious concerns about the Bill, and the Commissioner for Human Rights has now said that the amendments proposed by the Government do not sufficiently allay those concerns. This emphasised again that it is crucial that the legislation, if progressed and ultimately adopted, is in full compliance with our convention obligations and will enable effective investigation into outstanding cases.

The Committee of Ministers has called on the Government, first, to ensure that the Secretary of State for Northern Ireland’s role in the establishment and oversight of the ICRIR is more clearly circumscribed in law, in a manner that ensures that the ICRIR is independent and seen to be independent. Secondly, it has called on them to ensure that the disclosure provisions unambiguously require full disclosure to be given to the ICRIR. Thirdly, it has asked that they ensure that the Bill adequately provides for the participations of victims and their families for transparency and public scrutiny, which is fundamental to Article 2. It has again stressed the importance for the success of any investigative body of gaining the confidence of victims, families of victims and potential witnesses.

I also put my name to Amendment 31 in the name of the noble Lord, Lord Hain, supported also by the noble Baroness, Lady Ritchie, who has spoken at length about it, as well as the noble Lords, Lord Blair and Lord Murphy. The noble Lord, Lord Hain, is unable to be with us today. I shall support that amendment if a Division is called. I do not think that I need to describe the reasons for it, but I shall say that the National Police Chiefs’ Council has said that the Kenova model could effectively be scaled up for the purposes of the ICRIR.

I regret that I cannot support Amendment 28 in the names of the noble Baroness, Lady Hoey, and the noble Lords, Lord Bew and Lord Godson, because it requires that, when a family is seeking a review or investigation, they will have to be able to show that, if there is to be a review, and there has previously been an investigation or an inquest, for example, the ICRIR should not decide to grant a review unless there is compelling new evidence. To require a family to provide compelling new evidence would be to deprive them of their Article 2 rights to investigation, in particular in older cases where investigations and inquests were not as thorough or impartial as they are now. It is not the role of a traumatised and bereaved family to gather compelling new evidence. They have neither the powers nor the access to do so. That is the job of the investigator—in this case, the ICRIR.

[Baroness Hoey (Non-Afl)]

My Lords, with regard to Amendment 28 in the name of myself, the noble Lords, Lord Bew and Lord Godson, I tabled similar in Committee and have changed it to take note of what the Minister then said, deleting the parts that he found objectionable, which related to family requests for reinvestigations. I hope that what remains the Minister will find acceptable, given that the purpose of my amendment to Clause 11 is to ensure that there will not be duplication by the ICRIR in relation to previous investigations, despite what the noble Baroness, Lady O’Loan, has said, without compelling new evidence. This is the concept that was used in the overseas operation Act, and I cannot understand why it cannot be used in this legislation.

If the previous investigations listed in the amendment, such as those by a public inquiry, HET, or the police services Legacy Investigation Branch are not added to the Bill, thus narrowing the ICRIR’s potential range, I repeat what I said at Committee: namely, that the ICRIR could end up reinvestigating every one of the nearly 4,000 deaths, the cost will be £1 billion at least, not the budgeted £250 million, and the process will last for many years.

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[Lord Caine (Con)]

My Lords, I am grateful to all those who have spoken. We have debated compatibility with the European convention at length, as recently as the last group. I do not propose to revisit all those arguments in response to this group.

I have, however, brought back Amendment 32 to make it clear in the Bill that the independent commissioner for investigations will determine whether a criminal investigation should form part of a review. I have also tabled Amendments 30 and 33 expressly to confirm that the commissioner, when exercising operational control over the conduct of reviews and other functions, must comply with obligations imposed by the Human Rights Act. In addition, I will place a duty on the commission to publish a statement outlining how each review was conducted as part of its final report, thus enhancing the transparency of its work through Amendments 34, 49, 50 and 55.

The legislation rightly ensures that the independent commission, via the commissioner for investigations, has the flexibility to determine whether and when it is appropriate to use police powers during its review. An approach requiring a criminal investigation in all cases, as would be required under Amendment 31 in the name of the noble Lord, Lord Hain, would remove such flexibility and significantly increase the likely time to complete reviews, further delaying the provision of information to many families. I do not intend to go over the contents of my letter to the noble Lord again; it is there for everybody to see.

As I have said in the House on numerous occasions, I recognise the work carried out by Operation Kenova and the way in which Jon Boutcher, to whom I pay tribute, has developed strong relationships with the families of victims. There are many features of Operation Kenova’s work that the Government consider capable of being built on, should the commission choose to do so. However, as I have put on record numerous times, the Government view it as vital that the commission is free to determine its own approach to these complicated matters. That would be constrained if we were to adopt the amendment of the noble Lord, Lord Hain.

In response to amendments tabled by the noble Baroness, Lady O’Loan, in Committee, I have brought forward Amendments 14 and 15 to Clause 5. These would extend the list of authorities which may be required by the commissioner for investigations to provide the commission with assistance for the purposes of, or in connection with, the effective use of information, documents and other material provided by those authorities under Clause 5.

On the issue of Maxwellisation, I have introduced a series of amendments to Clauses 15 and 17, in response to discussions with the noble Baroness, Lady O’Loan, requiring the chief commissioner to share only relevant sections of a report criticising a person rather than the full draft report and allow them to make representations about that material.

I am sympathetic to what Amendments 39 and 41 in name of the noble Baroness, Lady O’Loan, attempt to do. We explored this in Committee and the noble Baroness and I discussed these matters yesterday, so I do not intend to go over all the arguments again. Suffice it to say that, in our view, the current drafting ensures that the chief commissioner can modify material as well as exclude it, so in our view the amendments are unnecessary.

In response to Amendments 12, 37 and 47 tabled by my noble friend Lord Bew, the ICRIR is already under a clearly defined obligation, in Clause 4(1)(b), not to do anything that would risk putting, or would put, the life and safety of any person at risk. It is the Government’s view that this safeguard is wide enough to offer sufficient protection of the rights of anyone likely to be named in reports, and therefore my noble friend’s amendment is unnecessary.

In respect of Amendment 13 to Clause 5, again in the name of the noble Baroness, Lady O’Loan, it is not unusual for legislation giving a power to require the provision of information to be subject to the requirement of reasonableness. Reasonableness is a widely used and understood term, which is included in other legislation. She referred to one example which I provided, in the Finance Act. I could add the paragraph 19ZA of Schedule 3 to the Police Reform Act 2002, which uses the same reasonableness requirement formulation in the equivalent power of the director-general of the Independent Office for Police Conduct. The Inquiries Act 2005 gives the chairman of an inquiry the ability to require a person to provide evidence and documents to the inquiry panel within such a period that appears reasonable to the inquiry panel. Section 17(2) of the Criminal Appeal Act 1995, which gives equivalent powers to the Criminal Cases Review Commission, is also drafted in those terms, so there are a number of other examples.

In practice, the commissioner for investigations will decide, based on the facts of the particular review, what information can reasonably be required of a relevant authority. If there is a dispute, and the relevant authority considers the commissioner has acted unreasonably in imposing the requirement, the matter will ultimately have to be resolved by the courts. I believe the noble Baroness, as we discussed recently, is reading too many restrictions into the Bill, where do they not exist and there is no intention for them to exist, and where our purpose is to get as much information into the public domain as possible.

[Baroness O'Loan (CB)]

I thank the Minister for giving way. Does he accept that, in the examples he gave of the time within which information might reasonably be provided, and the powers of the chair of a tribunal who is reasonably requesting information, there is a distinction between a reasonable request for information and a request for information to be provided within a reasonable time? We have seen, in the current judicial review, the difficulties faced by the Government in relation to the information held in respect of the Prime Minister which is required by the Covid inquiry.

[Lord Caine (Con)]

If I am honest, I am not entirely sure I follow the point the noble Baroness is making, but I stand by the point I have just made, that our intention is not to impose unnecessary restrictions through this legislation but to allow the commission to access information and be in a position to put more information about what happened into the public domain than has been the case.

Turning to Amendment 28 in the name of the noble Baroness, Lady Hoey, I understand the intention behind this amendment, but Clause 11(7) already requires the commissioner for investigations to ensure that the commission does not do anything that duplicates any aspects of a previous review, unless duplication is deemed absolutely necessary. We believe this is a proportionate approach that ensures the resources of the commission are not wasted through unnecessary duplication, while providing limited discretion for the commission where that might be required. In our view, the effects of the amendment tabled by the noble Baroness would be to hamper the ability of the commission to conduct reviews which might lead to the effective provision of information to many families, which would run counter to a key objective of the legislation. I therefore urge noble Lords not to press their amendments.

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[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I believe that the Bill and the government amendments to this clause to do with inquests and judicial outcomes clearly undermine the fundamental tenet of basic human rights: the right to access to inquests and investigations for those seeking truth and justice following the heinous murder of their loved ones. Clause 40 deals with investigations, inquiries and inquests, but the Government seek to eradicate such provisions.

In my former role as MP for South Down, as an MLA for that constituency and as a district councillor, on many occasions I met families who had lost their parents, their siblings or their sons and daughters through summary execution by paramilitaries or as a result of state violence. On all occasions, those people wanted truth, justice and, above all, to know what had happened to their loved ones, why it had happened, what were the circumstances, and most of all, whether it could have been avoided.

I suppose that I have the most direct experience with Loughinisland, where six men were gunned down on 18 June 1994. That was subject to an inquiry by the former Police Ombudsman for Northern Ireland, the noble Baroness, Lady O’Loan, which was then progressed by her successors until eventually a Police Ombudsman report was published in 2016 which found elements of collusive behaviour between security forces and members of loyalist paramilitary organisations. I knew many of those people who were killed, and I have to say that the people I knew had absolutely no participation in terrorism. They abhorred violence, and perhaps their only political act was to vote. In fact, two of those people who were killed on that night were indirectly related to me, one of them the eldest man to be killed in the Troubles; his brother was married to my aunt. Those things you do not easily forget.

Clause 40 deals with investigations and the Government seek to eradicate those provisions. I am a signatory to Amendment 110 in the name of the noble Baroness, O’Loan, which seeks to remove this clause from the Bill and try to ensure a redress system. This view is supported by the Commission for Victims and Survivors, Amnesty and the CAJ, and latterly by the Tánaiste, Micheál Martin. He wrote an opinion piece this week for the Financial Times in which he states:

“Existing mechanisms for dealing with the legacy of the past, while imperfect, deliver important outcomes for those families, such as the vindication of a murdered loved one’s innocence. In its Legacy bill, the UK government intends to permanently close off access to these mechanisms—inquests, police ombudsman investigations, civil cases and police investigations—which are working for families and, importantly, demonstrating a vindication of the state’s obligations under the European Convention on Human Rights to investigate killings effectively”.


With the government amendments in this group, all investigations into harmful conduct forming part of the Troubles will be brought to an end by the Bill and by the amendment of the deadline to 1 May 2024. That applies to inquests, investigations, inquiries and investigations by the Police Ombudsman. After that date, the only remaining available investigation will be a toothless light-touch review by the ICRIR. This is a much inferior mechanism to those that currently exist.

For example, in the case of the late Sean Brown from Bellaghy, whose inquest hearings were last week—he was murdered by loyalist paramilitaries about 30 years ago—if information from the MoD and the police does not reach the inquest hearing, which has been delayed, the family fear that what they believe to be deliberate delaying tactics, which have proved successful for the state agencies, will continue until 1 May 2024 and there will therefore be no redress. The late Sean Brown’s widow and family simply want truth and justice via the inquest system. It is important that this right is not denied to them through this arbitrary deadline of 1 May 2024. I am also aware of police widows who seek similar redress, which they are entitled to.

The Commission for Victims and Survivors wants the inquest system to remain as it is because of a number of families who are concerned about this change of approach. These are the people who carry the weight of loss in circumstances that have never been properly explained. The 1 May 2024 deadline has added to that weight and their sorrow.

The Human Rights Commission’s view is that the existing system should be developed, not regressed. There have been significant steps forward for several families in uncovering the truth and seeking justice that would not have been possible without the existing systems—I have already referred to Loughinisland and the Police Ombudsman’s investigation. That point is emphasised by the CAJ, which states that the Bill will shut down existing legacy mechanisms when such mechanisms are increasingly delivering for families. The government amendments are designed to copper-fasten and extend this process.

I therefore support the amendment in the name of the noble Baroness, Lady O’Loan, which seeks to remove Clause 40 and ensure that the existing work, which is being done very efficiently and is helpful to families, can continue. Can the Minister confirm whether he received support for or opposition to these amendments and for the Government’s intended purpose in this legacy Bill in all the meetings he had over the last number of months? I urge him to withdraw the 1 May 2024 deadline and go back to the drawing board of the Stormont House agreement as a basis for dealing with legacy, because it has the involvement of the parties and of the Irish Government. Will he and government colleagues meet the Irish Government to discuss this issue as a matter of priority? If the noble Baroness moves her amendment on Monday, I will be very happy to support it.

[Baroness O’Loan (CB)]

My Lords, group 6 refers to criminal justice outcomes. These really are the critical clauses. They remove from those affected by deaths and serious injuries between 1966 and 1998 the ability to pursue civil actions for the loss or damage that they have suffered; the ability to have investigations, as required by the ECHR; and, in cases where people have suffered a violent death, the ability to have inquests in respect of those deaths.

The noble Lord, Lord Hogan-Howe, who cannot be with us this evening, and I asked the Government to provide definitions of “review” and “criminal investigation” in order to inform your Lordships’ understanding of the difference between the two, which is a vital issue in this Bill. The Minister expressed the view that it was not necessary to provide such definitions. However, in its report of January 2021 on the work of Operation Kenova and the Glenanne review—Operation Denton—the National Police Chiefs’ Council explained:

“Operation Denton differs from Kenova in that it is being conducted as a review, and not as a criminal investigation at this time. This makes the approach by the operational team fundamentally different to that of Kenova”,


which is an investigation,

“from an evidential perspective”.

That fundamental difference of approach is why His Majesty’s Government were so strongly criticised for making the function of the ICRIR to conduct reviews of deaths. That confusion continues to permeate the legislation. Even by Third Reading, perhaps the Minister might seek the assistance of the National Police Chiefs’ Council and provide us with an amendment to define “review” and “investigation”, which would help the House in making its decisions.

In future, despite the Minister’s Amendment 32 to Clause 23, it is for the commissioner to decide whether investigations should form part of a review. Once the Act comes into force, there will be no criminal investigations as we know them today by the police or other agencies in relation to Troubles-related offences. Existing investigations will cease unless a decision to prosecute has been made and the ongoing investigation is for the purpose of that prosecution. A few minutes ago, the Minister expressed the hope that Operations Kenova and Denton would be complete by 1 May 2024. However, I have to point out to him that that is not to be determined by Kenova and Denton, which have finished their work and are simply waiting for decisions from the Director of Public Prosecutions, security reviews, Maxwellisation and that sort of thing. There is very little that Kenova or Denton can do; it is for others to do this. We have been told, however, that others cannot do it because there are no resources; we are also told that that is the fault of the Northern Ireland Assembly, which does not sit. This does not seem to be a particularly constructive approach to the problem.

Unless a family member, the Secretary of State for Northern Ireland, the Attorney-General for Northern Ireland or the Advocate-General for Northern Ireland asks for a review and the ICRIR decides both that there should be a review and that the review should take the form of a criminal investigation, other investigations will simply cease without any provision for victims. Earlier, I referred in particular to the case of those three young police officers who were killed in the Kinnego Embankment explosion and whose file has been referred to the DPP. It would be wrong for these cases simply to die with the passing of this Bill.

In more limited circumstances where a review involves a death that was caused directly by conduct during the Troubles, coroners, sheriffs and procurators fiscal in Scotland can ask for a review. In all other cases, the investigation will cease and there will be no investigation and no provision for victims.

As a consequence of the Government’s amendments to this Bill, even those that say that there must be compliance with the obligations imposed by the Human Rights Act, such compliance is de facto not possible because, among other reasons, there is provision for immunity from prosecution for murderers and the ICRIR does not have unqualified access to information held by relevant agencies under Clause 5. Despite the Minister’s comments on the previous group, I, as Police Ombudsman for Northern Ireland, had the right to require the delivery of information. The ICRIR has the right only to reasonably request information. It is different.

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[Baroness O’Loan (CB)]

The noble Lord is very generous. I want to ask him if legal aid is available to everyone for inquests, or is it assessed according to income?

[Lord Caine (Con)]

It is assessed in the normal way, which the noble Baroness will know, in Northern Ireland. Inquests are covered by legal aid. The noble Baroness will know from looking at the Bill that cost proceedings where civil cases have begun can be continued. Anyway, I just wanted to try to be helpful to the noble Baroness in clarifying that.

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Finally, on the role of the Lord Advocate, raised by the noble Lord, Lord Browne of Ladyton, as I said in my opening comments, I discussed these matters with the Solicitor-General for Scotland, Ruth Charteris, a few days ago in order to find an agreed way forward that respects the devolution settlement.

[Baroness O'Loan (CB)]

Can the Minister enlighten us as to what remedy the Bill will provide to those who seek, in the civil court, not information but damages for torts they have suffered and that will be removed from them by Clause 39? Judicial review is not a remedy for tort. The remedy for tort is damages, if you establish it.

[Lord Caine (Con)]

As I said and as the noble Baroness will be aware, 700 cases are currently stuck in the Northern Ireland courts, and they will still be allowed to proceed after the prohibition comes into effect. That will probably take many decades to bring to a conclusion but, thereafter, she is right: any cases that were filed after the First Reading of the legislation will not proceed and will therefore go into the new body for examination, should that be the wish of the families.