Northern Ireland Troubles (Legacy and Reconciliation) Bill

Baroness Smith of Basildon Excerpts

2nd reading
Wednesday 23rd November 2022 Lords Chamber

Moved by

[Baroness Smith of Basildon]

At the end to insert “but that this House regrets that the provisions contained in the bill do not command the confidence or support of groups and organisations representing the interests of victims and survivors of the Troubles, of Northern Ireland elected representatives, or of the wider community, including communities across the United Kingdom affected by the bill.”

[Baroness Smith of Basildon (Lab)]

My Lords, to be helpful, I intend to speak to the Bill and my amendment at the same time rather than have two debates, and I do not intend to move to a Division on my amendment. I apologise to the House; I will have to leave the Chamber; the previous business started slightly later than anticipated and I have another engagement, but I will be back as soon as I can.

I am grateful to the Minister. Like other noble Lords, I am trying to register the late announcement of some possible changes to the Bill by the Government, but in the last Queen’s Speech the Government committed to bringing forward legislation to address the legacy of the past. They said then that that would provide better outcomes for victims, survivors and their families, giving veterans the protection that they deserve and focusing on information recovery and reconciliation. As the Minister indicated in his speech today, we all know that these issues are complex, sensitive and deeply emotional.

Your Lordships’ House is as one in condemning terrorism from whatever quarter, and we concur with the noble Lord on that. As a party we are proud of the role that we played in securing the Good Friday agreement. But in the 30-plus years before that agreement, the euphemistically named Troubles—which I always find an uncomfortable term—saw more than 3,500 people lose their lives, with thousands more injured and maimed. No community was immune. The scars on physical and mental health remain evident throughout Northern Ireland and beyond, as this impacted on communities outside Northern Ireland. It is worth noting that this week is the anniversary of the Birmingham pub bombings, when 21 people were killed, 182 were injured, and six men wrongly convicted of those bombings served 16 years in prison before their convictions were quashed —so much suffering.

When I spoke in the Queen’s Speech debate in May, I made specific appeal to the Government about this legislation. It is not possible as Leader of the Opposition when speaking in the Queen’s Speech debate to refer to all proposed Bills, but I declared a particular interest in this one, as a former Northern Ireland Victims Minister, succeeding my noble friend Lord Browne of Ladyton, and appointed by my noble friend Lord Murphy, who was then the Secretary of State.

I said then of the legislation:

“I appeal to the Government: please understand that this needs support from the widest possible coalition.”—[Official Report, 10/5/22; col. 13.]

It is for that reason that I have tabled the amendment in my name today. The Bill as it currently stands does not have the support of the widest possible coalition. In fact, it is opposed by the widest possible coalition. That is quite an achievement; I think this is the only issue on which the Government have been able to unite every single political party in Northern Ireland, but it is deeply unfortunate that they have all been united against the Bill. The Government recognised the need for wider consensus in the New Decade, New Approach agreement, even going so far as to say that any UK Parliament legislation must have the consent of the Northern Ireland Assembly. I would be interested to know whether that commitment still stands.

So many of those affected by this Bill have come together to share with us their reasons for opposition, and how they would be impacted. I am sure they have listened to the noble Lord’s words very carefully. Noble lords may have seen an article in today’s Daily Telegraph, regarding a letter to the Prime Minister from Andy and Martha Seaman and Michael O’Hare. As a bereaved military family, and a victim of the Armed Forces, they have come together to express their concerns about the Bill, and in their letter say that it is not too late to do the right thing and scrap it.

I understand that that must be deeply disappointing to Ministers, but it was clear when this was debated in the other place that the consultation and the engagement with those affected was inadequate. I listened to what the noble Lord said about the additional meetings he has had since that time, and look forward to hearing more about those as the Bill progresses through Committee.

My noble friend Lord Murphy and I are grateful for the meetings we had with the Secretary of State and the Minister, who even though he had to join via Zoom, was nonetheless engaged. At that meeting, we asked that the Bill be withdrawn for further consultation and engagement. They were not willing to do that, but both said they were open to significant amendments, and that the Bill was now paused.

I am grateful for what the Minister said at the end of his speech, but I am disappointed that, since that meeting, we have had no response on what steps Ministers were willing to take. It would have been helpful to have had some response prior to this debate, to get a sense of what the Government intend. We want to work with the Government only on something that is workable. It would have been helpful had there been some engagement with those of us participating today—a briefing, a letter or something—and I regret that has not happened.

The Secretary of State has already said that he is open to significant changes. It would be helpful to know from the Minister whether the changes he has outlined, which we will take time to reflect on, are the limit of what the Government are looking at—he is indicating that that is not the case—or whether they would be prepared to listen to other suggestions as well. We have already been approached about the scheduling of the Bill, and it seems that the Government are going at some pace, with Committee indicated to be during the train strike week, which may not be the best arrangement.

Seeking to pass legislation that has no support from the political parties in Northern Ireland, or any party here apart from the governing party, is not the best way to deal with this issue. I am not going to suggest to the Minister that this is easy, nor that it should be put in the ‘too difficult’ box and only paid lip service to. I commend the Minister; we know of his personal commitment and he indicated, very honestly I thought, how difficult this Bill is for him, and we appreciate that there have been so many attempts to address this over many years. I pay huge tribute to the noble and right reverend Lord, Lord Eames, and to the late, great Denis Bradley, who I thought were both courageous and powerful in the work they undertook. That report still stands the test of time, thanks to the effort, commitment and care that went into it.

In the Stormont House agreement, dealing with legacy issues was a key part of several rounds of talks between the then British government, the Irish Government and the political parties. The Minister seemed to dismiss that at the time, but the overarching principles of that agreement still stand as being some way to look to this issue:

“promoting reconciliation … upholding the rule of law … acknowledging and addressing the suffering of victims and survivors … facilitating the pursuit of justice and information recovery … is human rights compliant; and is balanced, proportionate, transparent, fair and equitable.”

It is hard to see why those principles should not underline anything when looking forward.

The Government said in response to their consultation that

“new ways to address the legacy of the past will only succeed if the institutions can command broad support and trust from the community.”

At that time, they said that they remain

“fully committed to the implementation of the Stormont House Agreement and it is essential that our work continues.”

Is the Minister saying that the Government are not now committed to the principles of the Stormont House agreement? I was unclear from his comments. It seemed he was saying that the Government do not now respect those principles and it is hard to see how this legislation fits in with them.

I will underline some specific areas of concern. Some of what the Minister said addresses some of these issues, but I am not 100% certain. First, on Clause 18 —the immunity test—in the Government’s response to the Delegated Powers and Regulatory Reform Committee, the NIO said:

“Immunity must be granted where certain conditions are met, including that the person has provided a truthful account of their involvement in the death or incident resulting in serious injury.”


Those “certain conditions” are very limited, at present, to just two: one is an offence for which there could be a criminal investigation or prosecution, and the second that immunity is asked for. I listened carefully to the noble Lord’s comments and he seemed to be proposing something to address the issue of someone not telling the truth. He did not seem to be making a change to the conditions or to the fact that immunity had to be granted, but he might be able to respond on that in his wind-up.

I agree with the Minister about the less than snappy title of the Independent Commission for Reconciliation and Information Recovery.

From my time as Victims Minister, I concur with the noble Lord’s comments: there were times when the emotions really cut through and I have very vivid memories of some discussions and conversations I had. So often, I heard that families and survivors want to know the truth. Truth can be painful and difficult, as noble Lords in the Chamber recognise, but, for many, that process of investigation was essential to fully understand what had happened.

It was not flagged up previously that the Bill has made a fundamental change from investigation to review. Can the Minister say if this implies a far less rigorous process of understanding? That is one of the great concerns that people have. Alongside those measures is a proposal to, in effect, cut off civil cases and inquests, which adds to families’ suspicion that it will be much harder to obtain the information that ensures that the truth is heard.

I am glad the Minister said something about the ECHR, because just saying that the Bill is compliant does not make it compliant. I think he implied that he will bring forward measures to ensure that it is compliant, and I am sure he will work with the Northern Ireland Human Rights Commission to ensure that that is the case, because it said it is “gravely concerned” about the current draft.

As the Bill progresses, we will hear more of the detail, but we may need to look at the depth and breadth of where the opposition comes from and how it can be addressed. From my time in Northern Ireland, I was struck, when talking to those who lived through that period, by how the pain and memories do not just fade away, over time. Many still experience what I might describe as the aftershocks from what happened to them, their loved ones, friends, co-workers, neighbours and the community as a whole. As those of us who attended some briefings for victims in your Lordships’ House were told, so often that damage is passed on to and through future generations. That means that all sides have to acknowledge and be accountable for their actions.

When Brandon Lewis spoke at the Second Reading of the Bill in the other place, he was passionate about the protection of veterans from the RUC, the Armed Forces and the Security Service. So many served with honour, courage and great distinction. Hundreds lost their lives.

A particularly sharp memory I have is from meeting a group of RUC widows. While impressed by their dignity, I was shocked by how little support they felt they had and how difficult their lives and their families’ lives had been. The acts of terrorism, the killings, reached into every corner of Northern Ireland and beyond its shores: from those RUC widows to the families of those killed at Ballymurphy—it was not until the coroner’s report 50 years later that their killings were officially found to be “without justification”—from organised attacks of terrorism to random acts of violence, and from the accounts of great courage to those who lived in fear, and the trauma of the families of the disappeared, it is not hard to understand why a legacy of pain, hurt and mistrust remains.

I fully understand the frustration of Ministers who feel that they have created a way forward, only to find that they have not taken people with them and that few agree. Passing the Bill without significant amendment might create a structure that will establish the new commission, but unless it has the understanding and support of those who have a direct interest, it will not make any difference. The tragedy is then that the legacy of the past will linger on.

We want to play our part in addressing the issue—to reflect and hear more about the proposed amendments the Minister has suggested today and discuss them with him. But until those very real concerns raised are taken on board and addressed in legislation, and until there is real work with those impacted, any legislation will just be words on a page. I beg to move.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Baroness Smith of Basildon Excerpts

2nd reading
Wednesday 23rd November 2022 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I thank the Minister. His comments tonight have been very helpful to the House. He has clearly listened to the concerns that have been raised. The most important thing he said is that he does not want to rush the process but wants to take the time to listen, engage and get this right. On that basis, I beg leave to withdraw my amendment.

Amendment to the Motion withdrawn.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Baroness Smith of Basildon Excerpts

Committee stage
Tuesday 24th January 2023 Lords Chamber

[Baroness Suttie (LD)]

My Lords, I too thank the noble Baroness, Lady O’Loan, for the amendment and for what, if I may say so, was an incredibly powerful speech today. We have heard so many powerful speeches today from all sides of the House. I noted here that we have had speeches from Northern Ireland and not Northern Ireland. We have had the noble and right reverend Lord, Lord Eames, the noble Lord, Lord Hain—a former Northern Ireland Secretary—and the noble Lord, Lord Cormack, who made an incredibly powerful speech. Then there were the noble Lords, Lord Weir and Lord Alton, who also made speeches that made a very powerful case. We even heard from the noble Lord, Lord Dannatt, and the noble Viscount, Lord Hailsham, making a slightly different case but supporting, none the less, the aims of the amendment before us this afternoon.

As I said at Second Reading, the strength of opposition risks undermining the Bill’s stated intentions of dealing with the past and promoting reconciliation—“reconciliation” is in the very title of the Bill. But the Bill is not promoting reconciliation and is opposed by so many who have spoken today. It is for this reason that on these Benches we support the amendment from the noble Baroness, Lady O’Loan. A Bill of such sensitivity and consequence cannot and should not proceed without the consent of the Northern Ireland Assembly. To quote the noble Lord, Lord Dodds, who I thought also made a very powerful speech this afternoon, we need to listen to the victims and pause this Bill before Third Reading.

[Baroness Smith of Basildon (Lab)]

My Lords, it is rare that I speak in this House and say how disappointed I am to be here. But I think there was some optimism that, when we had the Second Reading, the Government would go away and, in thinking again, perhaps have that pause for discussions that we had hoped. I pay tribute to the Minister, because he did. This has taken longer to come back to us; the Bill has had quite a long gestation period to get to this point. But it is worth noting that the reason the noble Baroness has brought her amendment before us today is that, for all the engagement the Minister has undertaken and all the discussions that have been had, there has been no movement in the opposition to this Bill. It is not a lack of engagement that is causing the problem. It is not a lack of talking to people. It is perhaps a lack of listening and changing.

The noble Baroness’s amendment before us today is a very unusual one, so I hope the noble Lord recognises that it indicates the strength of feeling across this House and outside in Northern Ireland. I think it is a rare and dubious honour to have united every Northern Ireland voice in your Lordships’ House.

The noble Baroness, Lady O’Loan, and the noble and right reverend Lord, Lord Eames, have tried to deal with some of these issues themselves in the past, and no one is pretending that it is easy or that there is an easy solution. But what is essential is that victims, survivors and indeed veterans and others—anyone who has been associated with this time—have confidence in the process. This is what we are lacking today. I suppose the point—it is not necessarily a disagreement —is that we all know the views of the Northern Ireland Assembly. If the Northern Ireland Assembly were up and running and debated this tomorrow, it would not make any difference. It would still oppose the Bill, such is the strength of feeling. I was there for just a few days, the week before last, and in every single meeting we had with every single political party, and at every meeting afterwards, this was raised as an issue and there was no support.

It is appropriate that in Committee we should be clear about our approach to the Bill. The Minister has been generous with his time and we have had numerous discussions, but our position remains the same: we do not support the Bill. Indeed, at Third Reading in the other place we voted against it. That remains our position. The leader of our party has said he will repeal the Bill, such is his opposition to it. He does not say that to wipe the issue to one side; he says it in order to find a better and different way of trying to deal with some of these issues, recognising that most people want to find a process that works and that this difficult, complex and painful for so many.

--- Later in debate ---

For the reasons I hope I have set out—and, again, I am grateful for the words of the noble Baroness—the Government cannot support the amendment to the Motion. I will make one final point. I said at Second Reading that I found this challenging; I make no attempt to conceal that, and neither will other people. But if, as some people are proposing, we simply withdraw, delay or start again, which I think is the position of the party opposite, we really risk spending at least another five years on the issue.

[Baroness Smith of Basildon (Lab)]

Forgive me, my Lords, but I wanted to clarify that our position has always been that this Bill should never have been brought forward in this form until it had commanded some support. That has not changed, so it is not a pause or delay if nothing has changed. If there is a fundamental problem with the Bill, we would rather it be pulled back. My noble friend Lord Murphy and I met the Secretary of State and the Minister himself to say, “Don’t proceed with this Bill; we will work with you to find a better way.”

[Lord Caine (Con)]

I appreciate the noble Baroness’s tone and comments. The only point I was trying to make is that pausing or stopping the Bill, as some have suggested—or if it gets to the statute book and it were to be repealed by a Government of a different colour in 18 months’ time or so; although I do not predict that for one second—we risk, in those circumstances, prolonging this for at least another five years while there is consultation, attempts to reach consensus, which will probably never happen, and the need to draw up legislation, et cetera. During that period, as I have referenced before, more people will have passed away and more people’s memories will be defective, so the chances of getting information to people will be even more remote and the chances of prosecutions more so.

--- Later in debate ---

[Lord Dodds of Duncairn (DUP)]

My Lords, I want to briefly comment on Amendment 52, which the noble Baroness raised, in relation to the five-year limit. When the Minister replies to this group of amendments, I hope he will respond to this point.

The Minister said in the previous debate that, if someone did not co-operate with an ICRIR investigation or review, a criminal route remains open—I think I am quoting him directly. But this amendment points to the fact that the Bill provides for a five-year limit: unless a case is brought to the commission within five years it cannot be brought, and the commission is the only body that can investigate Troubles-related crimes. Therefore, if somebody does not co-operate, after five years the body will continue to exist but it will not be able to take on or open any new investigations. How is it that a criminal route remains open, as there is no other body and the police will be prohibited from investigating? There is no other body that can do any investigations, so after five years, there is no criminal route open; it ends at that point. I would like an explanation as to what the Minister meant by his statement that a criminal route remains open if you do not co-operate. Under the Bill, after five years no further new investigations can be launched, nobody can make a complaint and there is nobody else who can do any investigations.

[Baroness Smith of Basildon (Lab)]

My Lords, this has been a deeply respectful debate. A number of issues have come to light, and it would be helpful if the Minister could respond to them. Some of the issues are quite complex. I am grateful particularly to the noble Baroness, Lady O’Loan, for the experience that she brings to this.

I turn first to Amendment 1, in the name of the noble Baroness, Lady Suttie. This definition is something that the victims’ commissioner has raised with a number of Members of your Lordships’ House. The phrase “serious physical or mental harm” is really key here. Many of us have met victims who have suffered harm that is not always immediately evident. We have to look at this again, because there is no power for the definitions to be amended. Given the Government’s fondness for Sis—not that I am recommending this route—there possibly needs to be some discretion for the commission. We discussed this briefly with the Minister, and he is rightly wary of having a list, which can never be exhaustive, but this has to be revisited and looked at again. Some discretion might possibly be the way forward.

On the amendment of my noble friend Lord Hain, I do not know whether the Minister is considering opening this up. Operation Denton is due to report in spring next year—I know that is an elastic term in government announcements. We will come to our amendment on this later in proceedings, but to have this investigation running for so long and for it then to be ended by the Bill would clearly be the wrong thing to do. It seems a sensible process, and one that started in 2020, and the point made by my noble friend Lord Hain is well made. I would like to hear the Minister’s response to that so I can understand the timing.

There is no commencement time in this Bill. It would be helpful to know when, if the Bill were to conclude all its stages and become law, the Minister envisages that it would start. That is important in this context.

My noble friend Lord Browne talked about transparency. That is clear-cut: if we are to have confidence in a process, it needs to have transparency. I think it might be a mistake in the Government’s drafting that someone could be compelled to attend but not compelled to give evidence. That seems to be a bit of a loophole, and I hope that the Minister can come back with something positive on that. did

I turn to the amendment of the noble Baroness, Lady Hoey. I can see the point that she is trying to address, which was repeated by the noble Lord, Lord Weir—that in repeated inquiries it is the people who shout the loudest who have more access to the various mechanisms in place—but it seems to me to be a very absolute point. If compelling new evidence was brought forward, in any circumstances and by anybody, surely there should be the option for the commission to consider that compelling new evidence.

[Lord Weir of Ballyholme (DUP)]

I entirely agree with the point that the noble Baroness has made. However, to be fair to the noble Baroness, Lady Hoey, is that not why the amendment refers to “take into account”? That then would not preclude it being taken into account and a different approach being taken.

[Baroness Smith of Basildon (Lab)]

It may be. I do not have the amendment in front of me—I will look at it again later—but there seemed to be an absoluteness. I understand the principle, but I want to make sure that the detail and specifics of the amendment do what they intend to and not cut off options for—

[Baroness O’Loan (CB)]

Proposed new subsection (5B) inserted by that amendment says that the commissioner

“must consider whether the close family member … has compelling new evidence, and if not, must reject that request.”

[Baroness Smith of Basildon (Lab)]

That is helpful; I am grateful. It is “the close family member” as well.

A number of issues arise from the amendments from the noble Baroness, Lady O’Loan, and the question of Clause 7 standing part. Amendment 52 seeks to delete the five-year deadline from the start of the ICRIR’s operation—it is a nifty little acronym—for seeking reviews of Troubles-related deaths and offences. I can understand where the Government are coming from in saying that the process cannot be open-ended, but could the Minister say why they settled on five years? What consultation or views expressed led to five years? What assessment was made of the risk of people refusing to engage because they think that they can be timed out given the five-year cut-off? Did he receive any representations on that? Was it discussed? Was there a consultation, or was it plucked out of thin air? That is what I seek some clarity on.

I would be grateful for any guidance from the noble Baroness, Lady O’Loan, but it seems to me that Clause 7 creates restrictions on the use of material against a person in criminal proceedings where that material is obtained by or provided to the ICRIR by that person, but it does not affect the use of material in proceedings brought against any other person. That seems to be a contradiction that needs to be addressed, and perhaps the Minister can clarify that. I have read the clause several times—that is why I was slightly delayed in getting up. It seems strange in the context of what the Government are trying to achieve.

The debate on this has again shown the respect that the Committee and this House have for victims, survivors and all those affected by the Bill. It also shows some of the tweaks and changes that will need to be made to address the particular concerns that have been raised today.

[Lord Caine (Con)]

I am very grateful to noble Lords for their contributions on this group of amendments. I will start with Clause 7. As the Committee knows, the Government’s overriding objective is to put in place mechanisms that have the potential to deliver better outcomes for those most affected by the Troubles, particularly victims and survivors, while seeking to help society look forward. The Bill is designed to help achieve those objectives.

The primary focus of this legislation is effective information recovery. The commissioner will conduct investigations for the purposes of providing answers to those who seek them. Central to that is Clause 7, which creates restrictions on the use of material against a person in criminal proceedings where that material was obtained by or provided to the ICRIR—that acronym of which the noble Baroness, Lady Smith of Basildon, is so fond—by that person. This is very much in line with the approach for information recovery included in the Stormont House agreement in 2014 and is extremely important in avoiding the creation of a disincentive for people to come forward and provide information to the ICRIR. In the Stormont House agreement there were similar provisions on evidence given to the ICIR, as was. It is very much in line with previous approaches to this issue.

The clause does not affect the use of material in proceedings brought against any other person, so it would be possible for a witness to provide information about an individual who was involved in a death or serious injury and for that information to be used in any subsequent prosecution against that individual. Equally, the clause does not affect the use of material obtained by a designated ICRIR—I am just going to say “the commission”—officer, for example when exercising police powers. This would ensure that the content of an interview given by a suspect while under caution, as part of a criminal investigation, could be used in criminal proceedings in the normal way.

I hope that goes some way to addressing the concerns of my noble friend Lord Weir of Ballyholme in respect of Clauses 7 and 23. If not, I am more than happy to sit down with him with my officials and go through it in greater detail, well in advance of the next stage of the Bill.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Baroness Smith of Basildon Excerpts

Committee stage
Tuesday 24th January 2023 Lords Chamber

[Baroness O’Loan (CB)]

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

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

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

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

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

[Baroness Smith of Basildon (Lab)]

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

[Lord Bew (CB)]

I do not have any amendments in this group.

[Baroness Smith of Basildon (Lab)]

My Lords, this has been an interesting discussion. I want to pick up on a couple of points and speak to our Amendment 198.

My comments on government Amendment 6 are not dissimilar to those made by the noble Baroness, Lady O’Loan. It seems quite prescriptive in terms of the work plan that has to be produced. Is there any flexibility within that? Is this a plan that must be adhered to? Is it for the Secretary of State’s benefit in terms of monitoring? I would be quite interested to know what the intention of the plan is and how much direction can be exercised by the Secretary of State.

Amendment 198 is a probing amendment on the timing of commencement. It would insert

“but such day or days must not be beyond the end of the period of two years beginning with the day on which this Act is passed”.

At the moment, it is open for the Secretary of State to implement commencement when he or she considers fit. I would like some clarity on when the Government think it will come into force. The Minister is looking at me with a rather puzzled expression. I direct him to page 47 of the Bill, where he will see what I am talking about. I am surprised that he is looking at me that way, but it is not unusual. Clause 57 says that the provisions will come into force

“on the day on which this Act is passed … Otherwise, this Act comes into force on such day or days as the Secretary of State may by regulations appoint”.

I am curious to know the Government’s intentions on that.

I will be interested in the Government’s comments on the amendment tabled by the noble Lord, Lord Empey, and spoken to by the noble Lord, Lord Rogan. I think that the Minister will recognise that he will have to reassure and give confidence to those who have raised the issue. What he says tonight will be very important in that regard.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Baroness Smith of Basildon Excerpts

Committee stage
Tuesday 31st January 2023 Lords Chamber

[Lord Caine (Con)]

I dealt with this to some extent last week, but I will go on to deal with it later in the course of my remarks; I hope the noble Baroness will bear with me. I was reiterating that I completely accept that this is the most challenging part of the legislation—I have been completely up front and honest; it is challenging for me, too. However, as I said a few moments ago, the difficult reality is that the prospect of successful prosecutions is vanishingly small, and a single-minded focus on them offers the prospect of achieving very little for families and for wider society.

Again, in response to some of the comments about pausing, pulling or repealing the Bill—which is, I believe, the official position of the Opposition—the difficulty is that, if we go back to square one, it will take at least another five years to come up with something. The reality is that no Government of either colour will go anywhere near this anytime soon, if at all. Maybe I am wrong and the Opposition have a fully fleshed-out and workable model—but the noble Baroness is shaking her head, which indicates that they do not. If they are starting from scratch, I can tell her that the process is extremely laborious and will take a long time.

[Baroness Smith of Basildon (Lab)]

There is a big difference between starting from scratch and having something fully worked out. The Minister has heard the views from around this House. There is work to be done and we would like to do it.

[Lord Caine (Con)]

The words “I’ll believe it when I see it” spring to mind, given the experience of successive Governments over the past 25 years who have sought to grapple with this issue.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Baroness Smith of Basildon Excerpts

Committee stage
Tuesday 31st January 2023 Lords Chamber

I am grateful to Rights and Security International for a briefing on this matter where it raises concerns about individuals’ rights under the Human Rights Act and the ECHR. In particular, apart from moving from negative to affirmative assent, I would be grateful if the Minister could consider specifying an upper limit on the retention of data. At the moment, the legislation simply talks about a “reasonable” amount of time. That seems fairly non-specific. Can the Minister clarify to the Committee what is really intended by this clause and whether it might be possible to bring forward a government amendment to ensure that people’s right are not unduly affected by sweeping powers to retain data? Can he also clarify that there is no intention for data collected to be circulated more widely than for very specific purposes? At the moment, that is not clear in the clause.

[Baroness Smith of Basildon (Lab)]

My Lords, I thank the noble Baroness, Lady O’Loan, for bringing forward these amendments, which I think are very helpful. However, she said earlier—the noble Lord, Lord Dodds, referenced it as well—that while many in your Lordships’ House, perhaps everyone, think that this Bill is not fit for purpose and should not be brought, there is an obligation on us to do what we can to improve legislation. That is our role, and I think her amendments today and the way in which she has spoken to them illustrate that sharply.

They are a very helpful amendments because surely at the heart of any investigation is access to information. I was struck by the noble Baroness’s comment about there not being clarity if there is a test or qualification about getting that information, as it can take longer, be more expensive and does not do the job that this clause is probably intended to do.

As we know from other Troubles-related investigations, relevant information can be held by different authorities and different agencies. One of the things that the commission—I say that to save having to go through the initials and stumble over them—will have to do is access that information quickly if it is to gain as complete a picture as possible. I will be interested to hear what the noble Lord has to say and hope that he will view the amendments sympathetically when he comes to respond.

I understand the reasons the noble Baroness, Lady Smith, has put forward the amendments about the affirmative resolution. I think there is a general issue about government regulations; they seem to be heavily weighted. If we were to look at a chart of how many decisions are made or how much legislation can be done by secondary legislation, I think we would see quite a sharp incline in recent years. It is not a big leap from a negative to an affirmative procedure; it just guarantees that it will come before both Houses. But these are quite big issues. If something cannot be in the Bill, and if there are reasons why it has to be done by regulation, then it seems perfectly reasonable to have the affirmative procedure. Will that be enough, given that, as we all know, statutory instruments are an adequate of way of legislating when everything is set out first in the primary legislation? As I understand it, this is about looking at individual cases. I hope the Minister can give some reassurances on that. The noble Baroness, Lady O’Loan, has done the Committee a service by bringing forward these amendments today.

[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.

--- Later in debate ---

[Lord Morrow (DUP)]

My Lords, I think we have to be grateful to the noble Baroness, Lady O’Loan, who has pointed out something very significant. I suspect many have not noticed it but, with her forensic mind, she has drawn our attention to the fact that “victim” is mentioned only twice in the Bill. That has concerned my party for quite some time. We have always contended —I know it has been said by others—that this Bill should have victims at its heart and soul. That is what it should be about.

It has to be remembered that more than 3,000 people were killed. I do not cast them all as victims because there were those who were caught in their own explosions and blew themselves to pieces, so judgment was swift there, but I include all innocent victims from whatever side—I care little about it—of the community they may have come. However, I am firmly of the opinion, as are others, that this Bill is not amendable. Maybe we would have done this House, the Minister and everybody else more justice if we had not put in any amendments and had said, “This is just not doable.”

I see that even the Minister’s own Back-Benchers have, to all intents and purposes, forsaken him. He cannot just blame the Opposition, the Lib Dems, the Cross-Benchers or the DUP—and we often get blamed for everything. He will have to blame his own side for not coming in and covering his back this evening; but I do not lay the blame at his feet. I believe that he is here with some degree of reluctance. He has been asked to steer a Bill in which I do not think he has great confidence; having listened to everybody this evening, I think he will go home with even less.

I certainly support the noble Baroness, Lady O’Loan. As I said earlier, we owe her a debt for pointing out very clearly that “victim” is mentioned twice; I do not think we need to hear much more.

[Baroness Smith of Basildon (Lab)]

My Lords, having had a long debate, we are now moving at pace. These are interesting amendments. Just as the immunity debate went to the heart of the Bill, in many ways this one does as well. Although we have not seen victims mentioned much in the Bill, it is entitled the Northern Ireland Troubles (Legacy and Reconciliation) Bill, and if victims are not at the heart of what we do here, it is hard to see how reconciliation follows. That is what prompted the amendments before us today.

I have said before in this place that one of the most profound experiences I had was as victims and survivors Minister for Northern Ireland, which I did for about two and a half years. There is not a homogenous design whereby you can say, “Victims want this.” Different people have had different experiences, and different things have happened to them in different ways. There is not one experience whereby everyone can say, “Yes, that is how I feel; this is what I want.” They are looking for different things, and that is what makes this so complex and these amendments so important.

As has been noted, some will be saying, “We want justice. We know who is responsible. There should be action.” Others say, “I just need to know the truth. I want to know what happened”, because the agony of not knowing is so great. In some cases, knowing what happened creates additional agony. I remember a discussion where the truth for one individual was going to be awful. They wanted it and needed it, but it was not a pleasant experience for them in any way at all. Others just want acknowledgement that this is what they and their families went through. When we are talking about victims and survivors, one thing that was brought home to us all by those we met during the process of this Bill is that the trauma of what happened can survive several generations. It is not just the individual who has been through the experience of the Troubles; the family can be affected, whether financially, emotionally or physically.

This group of amendments is really helpful and goes to the heart of what the Bill should be about. Possibly the biggest failure of the Government is not recognising that. There have been a lot of warm words for the Minister, and they are well deserved, but he is there to support the Government in defending this Bill and he may be disappointed that only one member of his party is behind him to offer support. We have all been there; it can be a lonely experience on the Front Bench in those circumstances—although I am not sure I have ever been in quite the same circumstances. That is why, if he cannot say tonight that he will accept these amendments, it would do the Government well if he can say what he will bring forward to address the issues that have been raised.

My noble friends Lord Murphy and Lady Ritchie have signed these amendments, which allow family members to provide a victim impact statement as part of the review process. Without that, this will be one of the biggest failures of the Bill—and we have mentioned many tonight.

The Bill allows family members to refer cases and make general representations, but it is not clear what the family member gains from that process. If, as the noble Baroness, Lady Suttie, has proposed, the Bill explicitly allows statements and for the proper resourcing of that process, that would go some way towards some resolution of that issue. It would not go the whole way; I think the Bill is so badly drafted and ill-conceived that it cannot address all the issues. The noble Lord made the point that has been made many times today in every part of the Bill: we would not start from here, but as Members of this House we have a duty to do what we can and fulfil our role—though I have been struck by how many of the individuals and organisations that I have spoken to have said they almost feel they are compromising their own integrity by bringing forward and suggesting amendments and changes to us.

I commend my noble friend Lord Hain on the different approach that he has taken. It is not one that I had considered before and I would be interested to hear the Minister’s comments on it. My noble friend is suggesting that we amend the code for prosecutors, and he talks about how that could be done: it would take account of

“the likelihood of the accused re-offending … the time elapsed since the offence … the volume and seriousness of the crime, and … the character and behaviour of the accused since offending.”

The code would have to

“ensure that the views, interests and well-being of victims, and of the families of deceased victims, are considered when determining whether criminal proceedings should be instituted for a Troubles-related offence.”

I will be interested to hear what the Minister has to say on that tonight. If he cannot give any satisfaction then I hope he will agree to have further meetings so that we can progress it. It seems to me that this is one of the biggest failings of the Bill, and it is what has caused so much upset and unhappiness among those who will be affected by this legislation.

[Lord Caine (Con)]

I am grateful to noble Lords. When the noble Baroness, Lady Smith of Basildon, and my noble friend Lord Morrow were referring to the lack of members of my own party sitting behind me tonight, I could not help but reflect on the famous poster, with which noble Lords behind me at least will be very familiar, from the period of the third home rule Bill, with the caption:

“Deserted! Well—I can stand alone.”