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.”