Northern Ireland Troubles (Legacy and Reconciliation) Bill

Gavin Robinson Excerpts

Committee stage
Monday 4th July 2022 Commons Chamber

[Conor Burns]

We believe that the commitment made by the Government of the Irish Republic was a stand-alone commitment to bring forward their own legislation to have a means of resolving some of the unresolved cases to the benefit of all, to aid the process of information recovery and reconciliation across the island of Ireland and the totality of these islands. We could rehearse—although I do not think that it would be particularly helpful, because the hon. Gentleman and I both know the arguments that would be deployed—why we have come to the conclusion that the process around Stormont House and the bodies that are in place will not, in our judgment, deliver what we seek, which is to help those who want to find out what happened to their loved ones. We have been open in saying that this is a movement beyond Stormont House, because the Government believe that this will be a better way of getting that information and trying to aid the process of reconciliation in Northern Ireland.

The prohibition created by clause 33 will not apply to criminal investigations that are ongoing on the day when the legislation enters into force, where those investigations are being carried out for the purposes of a criminal prosecution commenced before that date. The police will continue to conduct such investigations until the related criminal prosecution has concluded.

Clauses 34, 35 and 36 set out, for those granted immunity, that no criminal enforcement action may be taken against the individual in respect of the serious or connected troubles-related offence or offences for which immunity has been granted, while those who committed crimes should not be able to obtain something for nothing. They will not mean that individuals have immunity for any other serious or connected troubles-related offences in which they may have been involved. Those who do not acknowledge their role in the troubles-related events and incidents will not be granted immunity, and will remain liable to prosecution should sufficient evidence exist or come to light. If immunity is not granted, criminal enforcement action could be taken in respect of the offence. If the commissioner for investigations thinks there is enough evidence that an offence has been committed, the ICRIR can refer a case directly to the relevant UK prosecutor. The ICRIR will be fully equipped with the necessary expertise and full policing powers so that it can carry out robust investigations for the primary purpose of information recovery, as well as being able to refer cases directly to prosecutors if there is evidence of an offence for which someone has not been granted immunity.

Clause 37 contains general and saving provisions applying to troubles-related criminal investigations and prosecutions. Clause 38 and schedules 8 and 9 state that any new civil claim brought on or after the date of the Bill’s introduction will be prohibited once the relevant clauses come into force, two months after Royal Assent. Troubles-related civil claims already filed with the courts before the date of the Bill’s introduction will be allowed to continue. We want to deliver a system that focuses on effective information recovery and reconciliation measures, getting as much information to as many families as possible.

[Gavin Robinson (Belfast East) (DUP)]

The Minister will know that if a prosecutor has not made a decision on a file prior to the enactment of this law, the prosecutions will not proceed. That has caused huge concern among the families who have engaged with Operation Kenova and the more than 30 live files that rest with the Public Prosecution Service for Northern Ireland. There is an amendment on the table tonight that would allow the Government to accept that the cases that are with the Public Prosecution Service could proceed irrespective of when that decision is taken. Can the Minister confirm that he wants to see a conclusion to the Operation Kenova process, and that he wants to see justice for the families who have engaged so honourably and thoughtfully throughout this time?

[Conor Burns]

I completely understand why the hon. Gentleman has asked that question, and the view that he takes. I have acknowledged from this Dispatch Box, as has my right hon. Friend the Secretary of State, that some of these decisions are finely balanced and difficult, but the Government want to see a single body dealing with the cases and with getting the information to families, and that will mean that at some point there must be a date on which we stop other processes and roll everything into this one body. I will talk about that in more detail a little later, but the point is that the powers that this body will have at its disposal will be greater than some of the powers available to other bodies—for example, inquests—and we think that this will be a better way of proceeding.

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[Paul Girvan (South Antrim) (DUP)]

rose—

[Gavin Robinson]

rose—

[Conor Burns]

I will give way to the hon. Member for South Antrim (Paul Girvan) and then to the hon. Member for Belfast East (Gavin Robinson). I will then finish, and then the Committee can consider the clauses in detail.

[Conor Burns]

I entirely understand where the hon. Gentleman is coming from and I entirely understand what he says about the range of views within victims’ groups, and even within individual families, about how they want to approach this. In a sense, there is no right or wrong thing to do here. These are matters of judgment, and the view that the Secretary of State and the Government have come to on how we proceed is that this gives a chance for a degree of reconciliation that is not delivered by the existing institutions.

For those who take the view that the hon. Gentleman describes and want to be cut off from the process and freed from thinking about it, often because what happened is so intensely painful to them that the pain of connecting to the events and to the losses is overpowering, we totally and utterly respect that. No one will be compelled to participate in an oral history or a remembrance of an event if they do not want to, but for those who do, it will be there. We will set it up as I have described, involving victims’ organisations and the cross-sectoral, cross-community advisory panel, to try to make it as inclusive and as embracing as it can possibly be.

Rather like the information recovery body itself, however, the success or otherwise of the memorialisation process will be judged only when it is up and running. It will be judged only when people can see what is happening and can make a judgment call on whether we have achieved, in the institutions we are creating, the objectives we set ourselves and the chance for greater reconciliation in Northern Ireland.

[Gavin Robinson]

While the Minister took issue with the comment from the hon. Member for Foyle (Colum Eastwood), it proved his salvation, because it allowed him to completely ignore the point that the hon. Member for North Down (Stephen Farry) was making: irrespective of whether people believe the Minister or not, they will not engage in the process. We have seen victims’ groups say they will not engage in the process. We have seen organisations that represent republican terrorists indicate that they will not engage in the process.

As the Minister concludes his remarks, I say to him that on Wednesday he had the opportunity to accept an amendment that would have removed the pitifully low fine for non-engagement if notice was served—three days of the Minister’s wages—for something more substantive and meaningful, and he was against that amendment. He knows there is no encouragement or inducement to engage in this process. He knows there is no consequence for lying as a result of the process. He knows that, even if somebody stays outside the process and is prosecuted, the sentencing regime will be reduced from two years in prison to zero years in prison. On each and every one of those points there is an amendment that the Government could engage with to make sure that the process works, yet still they are against them all. Why?

[Conor Burns]

I have huge respect for the hon. Gentleman and the points he makes. What I will say to him from this Dispatch Box, from the Government Front Bench with the Secretary of State beside me, is that these points have been made incredibly powerfully by the hon. Gentleman on the Floor and reinforced by my right hon. Friend the Member for Chingford and Woodford Green (Sir Iain Duncan Smith).

The hon. Member for Belfast East is correct that the amendment on the fine for non-engagement was on the Order Paper last week. That question and the question on sentencing are things that—I think I am allowed to go this far—there are active conversations about internally. This is the Committee stage of the Bill, and the Bill will leave the Committee and will go to the other place. We are very carefully listening to the validity and strength of some of the arguments, but we must ensure that we get the Bill technically and legally right.

Mr Evans, you referred at the beginning to the fact that we will return later today to a manuscript amendment, at another stage of this Bill’s progress. That manuscript amendment is based on an amendment last week that we worked closely with the Opposition and other parties to get right, and we will table it tonight to achieve that. Just because we are not accepting an amendment as drafted this evening, or indeed last week, it does not necessarily mean that we have closed off interest in considering that in more detail to see if we can build on the ideas that the hon. Member for Belfast East has and improve the Bill further at a later stage.

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[Johnny Mercer]

My right hon. Friend is absolutely right, but as he said, there cannot be an equivalent. So what do we do? The situation is grotesque. There are no winners here at all, but as he said, there cannot be that mechanism on the other side. All I would say to my hon. Friend—Northern Ireland Members probably do not consider me that these days, but they are my friends—is that while I totally understand why they go on to a narrative about “We must have justice for this particular murder, and that one”, which everyone agrees, they must also accept that the price of that is the experience of people such as Dennis Hutchings, who they have stood up and spoken against as well. The two things cannot co-compete in this space.

[Gavin Robinson]

rose—

[Johnny Mercer]

I am happy to give way in a moment.

At some point we have to decide where the balance lies. If we constantly go over this saying, “Justice, justice, we will get there in the end”—0.1% chance, and the experience of all these veterans going to court in Northern Ireland has been an absolute joke; I am sorry to say that it has reflected very poorly on everybody in Northern Ireland. These veterans are going through the last 10 or 11 years of their life under this, and dying alone in a hotel room in Belfast. It comes at a price, and my hon. Friends have to be honest about that price and whether it is one worth paying, for the majority view, in getting at the truth and trying to understand what happened at that time, and bringing some sort of peace to the families.

[Gavin Robinson]

I would love to say that I am enjoying the hon. Member’s third Second Reading contribution. He knows full well—he sat on the Defence Committee, as did I—that the consequences and problems that we highlighted were repeated in investigation after investigation. The option was there for his Government to embrace the argument about what is required under article 2 of the ECHR and how the state has discharged that duty through a previous investigation, but his Government did not want to engage with that. They could have embraced that in a way that would have supported veterans and others. That is honesty. That is an honest position to hold, but his Government did not have the bottle to do it.

[Johnny Mercer]

I was in the Government, and I left the Government. Look, lots of discussions on legacy have taken place over the years. I sat on the same Committee as the hon. Member, and he raises a fair point, but it comes back to the same argument. This is where we are now. If the Government will accept his amendments, they will do and, if not, they will not, but if that means that we do not engage in this process—this is the last chance—that would be a huge mistake.

The last time that happened—this is the problem with what the hon. Member just said—was with the Historical Enquiries Team. I sat in a court in Belfast on the murder of Joe McCann when Soldier A and Soldier C—two soldiers, one significantly older than the other—gave evidence. One of them had a reasonable memory—the other did not—and gave a cohesive account of what happened to the Historical Enquiries Team, under the auspices that it would not be used to prosecute him, in order to bring some peace to the McCann family. Five years later, he sat in court with that evidence being used against him. That is why this process is needed.

[Gavin Robinson]

They weren’t prosecuted.

[Johnny Mercer]

They were prosecuted. Soldier A and Soldier C ended up in court in Northern Ireland—I was there—and the evidence that was attempted to be submitted was from the Historical Enquiries Team.

[Gavin Robinson]

rose—

[Johnny Mercer]

I will give way, because I am the only speaker on the Government side and I think that we want to have a debate. I do not want to bore anyone, though.

[Gavin Robinson]

The hon. Member knows that that prosecution collapsed, and rightly so. The court was hugely critical of how what was presented as new evidence had only a new cover letter on top of it—there was nothing new in the evidence—and there was a direction of no prosecution.

[Johnny Mercer]

That is my point: the fact that it got there and those two soldiers went through that process for nine years of their lives from 2005 to 2014. The wife of one the soldiers died during the process. That is why we need this process. A lot of this could have been done better over the years, but we are where we are.

I have a concern that people in Northern Ireland will not engage with the process and that victims and other groups will not come forward. That is a legitimate concern—I can see that campaigns will be run to try to get people not to engage. The only people who will lose out will be the families in Northern Ireland. For some time, they have been taken on journeys that, at times, were unfair on them. That is not a popular thing to repeat given the side of the argument that I come from, but some of the practices have been unfair on them.

Finally, I turn to glorification, and I urge my right hon. Friend the Minister to listen to Opposition Front-Bench Members on that. I know that there are provisions in legislation—[Interruption.] Not about crime but specifically about the glorification of terrorism. We must be very careful that those cowards who got up in the morning to murder women and children for their political aims are given absolutely no opportunities to glorify what they did. We must double down and ensure that there is no gap in legislation where those people could take advantage of their crimes.

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[Sammy Wilson]

I thank the right hon. Gentleman for his intervention. He is quite right.

The Minister said that the Bill is not about equivalence between terrorists and those who bravely fought them in Northern Ireland, but the truth of the matter is that it is. The mechanism open to terrorists is the same as the one that those who were in the security forces have to use. There is equivalence here. No matter how the Government try to twist on this one, I believe that the Bill does a huge disservice not only to victims but to those who fought bravely and sacrificed in Northern Ireland—the very people who many Government Members have rightly sought to defend as constituents, and who have been unfairly dragged through the courts not once or twice but, in some cases, three times. Yet the mechanism open to them is the same as the one open to terrorists. That does those people a disservice.

The victims, the security forces and the people who suffered through the terrorism in Northern Ireland have all had a disservice done to them. If some of the amendments that we are debating were accepted, that at least might ameliorate some of the deficiencies, but it would not make the Bill acceptable.

[Gavin Robinson]

I follow on from my right hon. Friend’s point about the frailties of the Bill. We have been consistent in our position that it is a corruption of justice. For me and my colleagues, one of the most disappointing things about the process is that here we are, on day 2 of Committee, and we should be discussing the merits of amendments that try to do what is in the best interests of people who have suffered through years of conflict in Northern Ireland, but all we get from the Government is that they cannot—or will not—accept amendments; they refuse.

I heard the hon. Member for Plymouth, Moor View (Johnny Mercer) indicate his support for our new clause 3, which looks at sentencing issues, and I have heard warm support from Labour, the SNP and others around the Chamber about the merits of our amendments on glorification. Yet still there is this intransigence. We, the representatives democratically elected to come to this Chamber and make laws that actually work for the people we represent, are told that it is really not our business because the amendment might involve a write-around or bureaucracy, so we should just leave it all to the Lords.

What are we doing? What have these two days of scrutiny been for if our scrutiny amounts to nothing? It is even worse when people in the Chamber accept the very points that we are making but say, “Ah, but our hands are tied. It would be far better if Members of the House of Lords dealt with it.”

[Bob Stewart]

I entirely agree. Please will the Government accept the amendment that would stop the glorification of terrorism? That glorification is wrong, and we should not agree to it. I urge the Government—my own side—to accept the amendment, because it makes absolute sense.

[Gavin Robinson]

I am very pleased that I gave way to the right hon. and gallant Gentleman. I have appreciated all his contributions on Northern Ireland issues over the years.

The amendments that the Committee is considering were tabled in advance of the sitting last Wednesday. Discussions about legal applicability, drafting and getting it right could easily have occurred over the weekend, exactly as they did with respect to amendment 115, but I am sorry to say that there has been a lack of willingness to engage thoughtfully and productively with the amendments that have been tabled. It is no use telling us that addressing them cannot be done tonight and will have to be done in the other place, when we have demonstrated over the weekend that it is possible. From listening to the concerns of victims in Northern Ireland and those who represent veterans’ organisations, the police and the Army, we know that there are aspects of the Bill that we can improve—and yet, try as we might, all we face is stiff Government resistance.

[Johnny Mercer]

If some of the amendments are accepted, will my hon. Friend be minded to vote for the Bill?

[Gavin Robinson]

I hope that the hon. Gentleman has listened to my contributions throughout these proceedings. We voted against the Bill on Second Reading because we believe that it is a corruption of justice. We will vote against it on Third Reading because the same corruption of justice will apply. The hon. Member represents a very bespoke view, or one-sided view, of the issues.

[Johnny Mercer]

That is unfair.

[Gavin Robinson]

It is not unfair; I think that it is absolutely appropriate. I do not say it as any criticism or to malign the hon. Gentleman. He and I take an interest in veterans’ issues: we have both served on the Select Committee on Defence, and he has been a Defence Minister and has served this country honourably.

I represent victims in my constituency. I represent people who have been blown up, bombed and maimed by their own neighbours in their own community. I represent families who walk the streets of Belfast and know that they are walking past the perpetrators who took their loved ones’ lives. I hope that the hon. Gentleman will therefore accept that when we say that the Bill is a corruption of justice, we mean it. When we table scores and scores of amendments, we are trying to make the Bill better, but that does not make it just.

[Johnny Mercer]

My hon. Friend says that I represent one side. I have never argued for anything other than fairness in this process; it is disingenuous to claim otherwise, and he knows that. I have only ever argued for fairness—and yes, that includes veterans who did the bidding of this House for the freedoms and privileges that Members on the Opposition Benches enjoy. Yes, I want fairness, but I have never been one-sided. I ask him to think again about that.

[Gavin Robinson]

I listened to the hon. Gentleman, and I hope that he heard what I had to say in response. If he wants to ask me the same question again, I will give him exactly the same response. I am not impugning his character, but I hope that he can accept where we are coming from.

This corruption of justice can be made better, but that does not make it just. This corruption of justice before us tonight can be improved, but that will not unpick the ban on the coronial court system or unpick the ban on prosecutions in this country, and it will not change the fact that a victim would not be able to sue the perpetrator of their crime. That is all in the Bill, and if the hon. Gentleman thinks that the amendments that we have tabled can bring the Bill to a place where we can support it, he is sadly mistaken.

We have raised amendment 112 in earlier exchanges with the Minister. I understand his point about deadlines, but Operation Kenova and the Public Prosecution Service’s live cases need to proceed. If we were to have an engaged exchange, we would probably agree that the Public Prosecution Service needs to move on with its decision-making process. However, now that the Government have established Operation Kenova to look into the actions of Stakeknife—Freddie Scappaticci, the head of the IRA’s internal investigations unit and an agent of our state—and now that the Public Prosecution Service has 30, 32 or 33 live prosecutions, they need to be concluded. The amendment would allow a conclusion to that process even if the Bill receives Royal Assent.

Surely the Committee cannot be saying that through a process to look at legacy and reconciliation, we will just sweep Operation Kenova under the carpet. After all the years, all the evidence and all the engagement with victims and families, I hope we will not say that the Bill will conclude that process. If the Government are not minded to accept the amendment, I hope that it will be considered in the other place, and I truly hope that the Public Prosecution Service will get on with making a decision.

Amendment 107 is about the practical, simple ability for a court that is considering a conviction to take into account the fact that somebody has been granted immunity through the process. It seems to me very simple: if someone is granted immunity, they will stand before any subsequent court for any subsequent criminal activity and the courts will think that they have a clear record. Surely that cannot be our purpose. There should be a sentencing consequence for somebody who is now a repeat offender, albeit that they have immunity—somebody who has continued to engage in criminal activity post 1998. Should the courts not have access to that information? Should it not be available for the purposes of sentencing? The amendment says that it should.

Amendment 120, to which I hope the Minister will respond comprehensively in his closing speech, is connected to new clause 4. It specifically addresses the memorialisation project. How can we have a memorialisation project and a reconciliation project if there is no preclusion of glorification? The amendment would place a duty on the designated persons compiling the memorialisation project

“to ensure that no memorialisation activities glorify the commission or preparation of Troubles-related offences.”

What practical opposition could the Government have to that amendment? If they want the process to work and if they want it to be about reconciliation, surely they should impose on the people they are engaging to do the work a duty to preclude glorification.

I turn to amendment 110. The Northern Ireland Office and the Government have already accepted that an innocent victim is somebody who has not been harmed by their own hand. There are perpetrators of violence in Northern Ireland who have injured themselves while trying to kill others, but who purport to be innocent victims. We have gained significant traction with this argument; when it came to the troubles-related pension, the Northern Ireland Office accepted that an innocent victim is somebody who did not harm themselves and was not culpable for their own offence. Michelle O’Neill refused to allow the administration of the pension scheme, but the Northern Ireland Office accepted that interpretation of what an innocent victim is, so why is it not being replicated in the memorialisation project? It is simple—it is a rehearsal of a policy that the Government have already agreed—yet there seems to be some intransigent reluctance to accept it.

[Johnny Mercer]

I have huge respect for my hon. Friend, but a lot of what he says supports the view that he is his own worst enemy when it comes to getting the Government to accept his points. I, my right hon. Friend the Member for Beckenham (Bob Stewart) and others clearly do not want any glorification of terrorism, and so forth, but when my hon. Friend the Member for Belfast East (Gavin Robinson) comes forward with arguments that are clearly on one side, that does not deal with the situation as it is—not as we would like it to be, but as it actually is, for example in making sure that the investigations the first time round into people such as Dennis Hutchings were correct. We have to deal with the situation as it is, not as we would want it to be for individuals.

[Gavin Robinson]

I say to you, Mr Evans, that I have absolutely no idea what that intervention was about, what point the hon. Member was trying to make or whether it related to what I was saying or to his earlier contribution.

[Johnny Mercer]

I will explain.

[Gavin Robinson]

I am happy to give way—but I mean, really!

[Johnny Mercer]

What I am saying is that my hon. Friend is outlining individual cases and is putting across his outrage that they will not be reinvestigated ad infinitum. That is the point that he is making, and it is what he has said a number of times. Have I got that wrong? He has said it a number of times. My point is that if he continues down that byway while saying that the process should have been ECHR-compliant the first time round, we end up in a situation where the UK Government have to act unilaterally.

[Gavin Robinson]

The point that I was making was about the definition of “innocent victims” and the memorialisation project. The point that the hon. Gentleman is making relates to what he said during his own speech. He said that you cannot on the one hand say that there needs to be justice for victims, and on the other hand say that you stand with Dennis Hutchings. He either refuses to accept or fails to grasp a point that we have discussed over a number of years. There should be no repeated investigations when the state has discharged its article 2 compliance. It is as simple as that. The reason there is an investigation, the reason the coroner’s court looks at a case again, the reason a prosecutorial service considers evidence again, is that they are being told that there is new and compelling information. There is not.

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[Johnny Mercer]

rose—

[Gavin Robinson]

No, I want the hon. Gentleman to listen, because he does not seem to understand the point. From 1973, when there was a change in investigations, when the military stopped investigating themselves and incidents were investigated by the Police Service of Northern Ireland, those investigations were compliant. We asked the Government to accept that that was the basis on which we could move on in Northern Ireland. If the hon. Gentleman does not like that analysis—the one with which he agreed when he was a member of the Defence Committee—he could look at the Stormont House agreement that all the parties in Northern Ireland sat down and discussed and then accepted. So there is a second view.

[Johnny Mercer]

Will my hon. Friend give way?

[Gavin Robinson]

No, I will not give way at this point. When the hon. Gentleman stands up and says that there is no point in talking about what has been, and that this is all we have in front of us, I hope he genuinely recognises—and I say this not in fury but in sorrow—that this is not the way to deal effectively with the trauma of legacy and our past.

[Johnny Mercer]

My hon. Friend talks about compliance with the European convention on human rights. The critical point is that some of these specific allegations and prosecutions, which have been tested in court, came after 1973, and have been tested on the basis that those investigations were not ECHR-compliant. Conservative Members would love all of them to have been ECHR-compliant; the problem is that what my hon. Friend has just said—that from 1973 onwards they were all ECHR-compliant—has been proved in court to be untrue.

[Gavin Robinson]

Perhaps the hon. Gentleman failed to heed the necessity for the House to grasp the argument and to legislate on the basis of that argument: to legislate on the basis that, when an investigation has occurred in the past and was compliant at the time, we should move on. That is why we would have been legislating. There were some who did not like that because it would apply equally across the board, and the hon. Gentleman will remember that argument as well, but the Government never grasped it.

I am grateful for what Members have said about new clause 3, and I listened carefully to what the Minister said about it in his opening speech. He will recall from Second Reading that both the right hon. Member for Chingford and Woodford Green (Sir Iain Duncan Smith) and I mentioned this proposition, which concerns sentencing. Members who had the patience to listen to all our contributions will have learned that the passing of the Northern Ireland (Sentences) Act meant that anyone who had been convicted previously was to serve only two years in jail, and that anyone who was subsequently convicted, but convicted of a pre-1998 offence, would only ever have to serve a maximum of two years. It did not matter how many people you shot, or how many people died as a result of your explosives; you would serve no more than two years in prison.

Buried in this Bill, in schedule 11, is the provision that those two years required to be served in jail should be reduced to zero. That would mean zero for anyone prosecuted after the passage of the Bill, irrespective of whether they refused to engage in this process or honestly offered victims’ families the truth. We have been told that we need to swallow this process so that victims get the truth, yet if someone engages in this process dishonestly, or refuses to engage at all, the maximum consequence will be zero time in jail. There is no consequence for snubbing families. There is no consequence for snubbing victims. There is no consequence for lying through your teeth, or avoiding the process altogether.

If we can accept that the run of this process is that those who engage honestly and honourably could be granted immunity, surely the opposite has to be that for those who refuse to give families the answers, those who refuse to help them with reconciliation, there should be a consequence. That is why we are saying, 25 years on from the 1998 Act, that it needs to go. If someone has been offered an open door and the prospect of immunity through this process and giving the truth, surely there must be a consequence for lying or abusing the families of those who lost their lives.

We never supported the Belfast agreement for this very reason. I know that that is not a view shared unanimously by Northern Ireland representatives, and it is not something that we need to fall out about this evening, but we did not support it, while others accepted it as a price worth paying. However, 25 years on, if people are not prepared to give, through this process, truth and justice to families who need it, and to be honest about it, there must be a judicial and sentencing consequence.

[Conor Burns]

The last few moments have demonstrated the truth of what I have said on both days on which we have discussed these provisions: these are contested and very difficult proposals for some people in Northern Ireland and, indeed, throughout these islands.

I just want to emphasise to the hon. Gentleman what I said earlier, with the Secretary of State sitting next to me on the Front Bench, and to make two very brief points. The first is this. We believe that, when the body is created, the fact that it will be led by an experienced judicial-style figure and will be complemented with a team of people who are expert in investigations makes it highly improbable that someone could come forward with a false account, because it will also have access to the vastest array of information available to any body operating in this area hitherto. However, we accept the hon. Gentleman’s point about incentivisation for people to come forward and engage with the body, which is why I gave the undertaking earlier that we would look at the question of the financial penalty for non-engagement.

As for the question of why we are simply not accepting the amendments as they stand today, I think we demonstrated over the course of last week, and over the weekend, that when we think that the intent is sincere and it meets the objectives of the Government in the Bill, and also, critically, can command the greatest possible consensus across the House, the Secretary of State and I, and the Northern Ireland Office, will engage with Government lawyers to look at that. Let me make it absolutely clear to the hon. Gentleman in relation to the specific amendment that he is currently discussing that we are committed to going away and talking to legal teams to see where we can achieve some movement. We want to have a constructive dialogue with parties across the House to see how we can address this as the Bill progresses.

I also understand the hon. Gentleman’s point about the other place, but we act as one Parliament, and the objective for the Government is to secure the right outcome wherever we may do it in the course of the Bill’s journey.

[Gavin Robinson]

I am grateful to the Minister for that clarification. I hope he accepts the point that I made earlier—that all the amendments that I am speaking to this evening were available last Wednesday, and that the same thrust and energy that were dedicated to amendment 115 could have been engaged in respect of a number of these as well. I recognise that that has not happened, but I hope that the fact that we are not focusing on them this evening does not mean that attention has been lost on the issue of the notice requiring the provision of information. These are not the same rigorous powers that the police have. There are no powers of arrest, for example. However, there is this notice, and provision for a fine of up to £1,000 if it is not complied with. A £1,000 fine is pitiful for someone who was an active terrorist, who tried to destroy peace and democracy in Northern Ireland, who has never engaged with truth and justice and who does not want to comply with this process. They could be fined up to £1,000—it really is so inconsequential.

There are amendments that were discussed throughout last Wednesday and this evening, and I hope the Government will engage with them. I have mentioned amendment 120, which would place a duty on people involved in memorialisation to ensure that there was no glorification. New clause 4 deals with those who are granted immunity and then go on to glorify terrorism. We accept that section 1 of the Terrorism Act 2006 provides an offence of glorification of terrorism, but that is not what the amendment proposes. The amendment not only replicates section 1 but indicates that, if someone had previously benefited from immunity through the ICRIR process, new clause 4 would make it an aggravating feature if they had immunity and then ultimately glorified terror.

We will support Labour’s amendment 114 on this, although we do not think this should be solely confined to profit. Labour Members like to focus on profit sometimes, and their amendment is very much focused on profit from glorification. There is more to this than just making money; it is about the ruining of lives and the retraumatising of individuals in whatever guise, and profiteering could be one of those.

I shall turn now to new clause 5. Mr Evans, you will note that I did not start my contribution by saying I was not going to say very much. I can be accused of many things, but hypocrisy is not one of them. New clause 5 deals with revoking immunity, and I want to thank other Opposition leaders and Members for indicating their support for this. It would be hugely controversial and hugely damaging to the reconciliation spirit of what is proposed in the memorialisation strategy if, having assessed somebody, we gave them immunity from prosecution for their heinous crimes, only for it ultimately to be shown that they had lied throughout the process. If there is no way to revoke immunity, the whole system will collapse. There will be a crisis of confidence in the system. There needs to be a mechanism, whether through the panel during the five years it is in operation or through the Secretary of State thereafter, whereby immunity can be revoked. In the same way, when people were released on licence after 1998, licences could be revoked. It would be anathema to anyone who believes in reconciliation to allow a situation where individuals were granted immunity for their heinous crimes on the basis of a subsequently demonstrated and proven lie.

I know that others will wish to contribute on the range of amendments that we have tabled. I have highlighted just seven of them this evening. We have had engagement from the Minister specifically on new clause 3. I am grateful and welcome that. I hope that he will have something more positive to say about new clauses 4 and 5 and some of our other amendments when he sums up the debate.

[Stephen Farry]

It is a pleasure to follow the hon. Member for Belfast East (Gavin Robinson). It is not often that the Alliance party and the DUP find agreement in this Chamber, particularly in the current context, but there was certainly a lot I would concur with in his remarks. I would also concur with a lot of the interventions from the hon. Member for Foyle (Colum Eastwood). There is an important lesson in that, which is that, despite everything else that is happening in Northern Ireland, there is at least a degree of unity across the Northern Ireland political parties in expressing significant concerns about this legislation.

Before getting to the other points I want to make, I want to start on a more positive note. The shadow Secretary of State, the hon. Member for Hove (Peter Kyle), mentioned Paul Gallagher, who was shot and partially paralysed in a loyalist gun attack in 1994. I want to put on record our congratulations to Paul Gallagher on achieving his PhD at a ceremony at the weekend, not least because his research involves legacy. He has been both living it and researching it for almost 30 years.

The first point I want to make is about the word “reconciliation”, which appears in the long title of the Bill and is referenced throughout it. Reconciliation is very much in the DNA of the Alliance party; it is what we are fundamentally about. That said, we are concerned about the way in which the term “reconciliation” has been used in the Bill. Reconciliation was a core principle of the Stormont House agreement, and the implementation and reconciliation group was set up as a separate structure that was envisaged under Stormont House. Reconciliation was taken seriously in that process.

--- Later in debate ---

Hon. Members will understand, when those families left those farms, leaving their farmhouses in wreck and ruin, their machinery lying in the field and their land untilled for years, that I want justice on those people in the Garda Síochána and those in positions of power in the Republic of Ireland who gave sanctuary to those who carried out murders across all of Northern Ireland.

[Gavin Robinson]

I am grateful to my hon. Friend, who is making a strong point. When he talks of people who committed crimes in Northern Ireland and fled our jurisdiction, he will know that on Wednesday amendment 98 was put before the Committee and tested by the Committee. He will also know that we said that for this legislation to allow somebody who ensured no justice for their victims to come home and retire with a level of dignity would be abhorrent. However, 271 Members of this House voted for that. What would he say to that?

[Jim Shannon]

I share my hon. Friend’s disappointment over the amendment that he put forward. It grieves me deep in my heart when I think of those things, and I thank him for reminding us all in this House—those who are here and those who are not—of what it means.

There is an undoubted element of apparent collusion of those who were then, and possibly are now, in power. The question must be put: will the Garda Síochána and the Republic of Ireland Government be under an obligation to finally do the right thing when it comes to the victims—both Protestants and Catholics, including my cousin Kenneth and his friend Daniel McCormick—and release the information they have regarding the murders, disappearances and the alleged active role of the security forces in the Republic of Ireland in protecting and giving sanctuary to perpetrators and murderers?

Many of those people have hidden there for years. The murder of Lexie Cummings is a supreme example of that, because the person who did it ran across the border and is now an accepted politician in a certain party in the Republic of Ireland and holds a fairly high position. How does the Bill address that disgraceful element of the troubles, which people are all too quick to forget?

--- Later in debate ---

[Conor Burns]

Clause 20(2) makes very clear the obligations of the body to look at the totality of the information available to it, not solely to rely on the testimony—the account—of the individual who is appearing before it. As I just reiterated, it will be led by a judicially experienced figure. The team that that person will assemble will comprise people who are expert and professional and have had careers in investigation and information retrieval. They will be able to look at biometrics and other things as well. We therefore think it is highly unlikely that the commission could be duped by somebody who has come forward, particularly given that, as I said, there is an obligation in the Bill on institutions of the state to provide full information.

[Gavin Robinson]

The Minister is making a fair point, but it is not the right one for what we are considering. He is talking about the process of assessing the veracity of what is said, and neither I nor the hon. Member for Rochdale (Tony Lloyd) are saying it would be incapable of assessing the veracity of what is put forward. We are asking him to consider the consequence for lying. Just as people lie to judicial figures in every court throughout the land, what is the consequence for lying? It is not about whether the assessment of whether they are telling the truth is right, but what is done when somebody does lie.

[Conor Burns]

The consequence for lying, as the hon. Gentleman knows, in the first instance is that if the body determines that the account is false, the body will not grant immunity. I was referring to the amendments he has tabled to incentivise people to come forward and participate with the process, both in terms of the sentencing and the financial stuff, and I reiterate to the hon. Gentleman that we have undertaken to take that away and look at it.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Gavin Robinson Excerpts

Committee stage
Wednesday 29th June 2022 Commons Chamber

[Conor Burns]

The unimaginable tragedy and grief that people in Northern Ireland experienced is understood, as much as it is humanly capable of being understood by those who did not go through it. I am sorry that I could not attend the hon. Gentleman’s meeting last night. I received the email to my parliamentary email address; I was travelling back from Northern Ireland and did not return to Westminster in time to come. I would have been delighted and humbled to come and meet those people who came to Westminster, as my right hon. Friend the Secretary of State and I have met victims’ families and victims groups across Northern Ireland in the process of getting the Bill to where it is.

One of the reasons why my right hon. Friend and I have taken the time that we have taken, as we have both said, is to get the Bill right, and to make sure that what we are proposing will work. The hon. Member for Foyle (Colum Eastwood) is absolutely right that the test of the Bill will be when the information recovery body is up and running and functioning—when people can refer cases to it and when the British state transfers to it the documents that we have at our disposal. The test will be in the delivery of that body for victims and families.

[Gavin Robinson (Belfast East) (DUP)]

The Minister is outlining to the Committee that he wants to get this right. It is a fundamental part of scrutiny in this House that the Committee is meeting on the Floor of the House today and will meet again on Monday, and that scores of amendments have been tabled to get this right. I had a meeting with the Secretary of State on Monday, and we discussed amendments. He knows from Second Reading that there is no consequence should somebody choose not to engage in this process, and for those who do engage, there is no consequence for lying. Those amendments are before the Committee today, and the Government can engage with them. Will they accept some of them? Is there any update from the meeting on Monday?

--- Later in debate ---

[Conor Burns]

I have listened carefully to what the Chairman of the Select Committee has said. Ultimately, it will be up to the shadow Secretary of State and his Front-Bench team to decide what to do. I share my hon. Friend’s affection—

[Gavin Robinson]

On a point of order, Dame Rosie. For the sake of clarity and for the benefit of all Members, may I ask you to confirm that there will be a Report stage? I have listened to these exchanges, but given the timescale that we have for the Bill’s remaining stages on Monday—given that the second day of the Committee stage will end an hour before the moment of interruption—and given the likelihood of many Divisions, I expect that there will not even be time for a substantive Third Reading, let alone a Report stage.

Just in case people fall into the view that there will be enough time for a Report stage and the opportunity to table further amendments, I must express my view that that will not be the case on Monday. But I ask you, Dame Rosie, for clarification.

[The First Deputy Chairman of Ways and Means (Dame Rosie Winterton)]

Report stage is currently scheduled for Monday. As I understand it, amendments would need to be tabled at the close of Committee stage on Monday, as manuscript amendments. I hope that is helpful.

[Gavin Robinson]

Further to that point of order, Dame Rosie. In principle there can be a Report stage, but in practice, if the Committee stage runs until an hour before the end of proceedings and there are Divisions—four, potentially—there will be no time whatever for a Report stage or a Third Reading. We cannot predict what will happen with Divisions, but I am asking for confirmation that a set of circumstances could arise whereby no effective Report stage would occur.

[The First Deputy Chairman]

Obviously it is difficult to predict what would happen on the day. In such circumstances, Members can all agree that they wish to allow enough time for Report stage by means of shorter speeches or fewer votes. On the other hand, I understand that it is also possible for the business managers and the Government to table a Business of the House motion that could perhaps give specific protected time to a Report stage, but that would be a decision for the Government. Again, I hope that that is helpful.

--- Later in debate ---

[Peter Kyle]

We have not made the degree of progress that we should have done, but the progress that has been made is transformative for the families and those impacted by the crimes of the time. The hon. Gentleman keeps saying that it is a small number, as if it is inconsequential, but I urge him to look at two things. For a start, there is the work of the Kenova investigation, undertaken by Jon Boutcher. With the Stakeknife investigation, it is currently looking at 220 murders—220. There is substantial progress. Is the hon. Gentleman going to put his hand up and make the gesture for “small” when we talk about resolving 220 murders?

There will not be justice for everyone, but families and victims are not naive. They know that not everybody will get a prosecution out of this, but they might get the results of an investigation done to criminal standards. This is the kind of thing that gives families a sense of justice and enables them to start healing after the damage that the troubles have inflicted on them. I do not accept the premise that because the numbers are small and do not match the scale of the challenge, this is not consequential.

[Gavin Robinson]

I am grateful to the shadow Secretary of State for taking that line in response to the hon. Member for Basildon and Billericay (Mr Baron). Twice now he has said in Committee that we cannot allow perfection to be the enemy of the good, and yet today we have amendments from the shadow Secretary of State and his colleagues, amendments from me and my colleagues, amendments from the hon. Member for Foyle (Colum Eastwood) and his colleagues, and amendments from the hon. Member for North Down (Stephen Farry) and those elsewhere in the Chamber. That is the process. We cannot allow perfection to be the enemy of the good, but today is about making the Bill better. Rather than ignoring the amendments because we cannot achieve everything, surely the purpose of Committee is to try to get as much of this right as we can.

[Peter Kyle]

I am grateful for the tone and the content of what the hon. Member says.

--- Later in debate ---

[James Sunderland]

I thank my hon. Friend for her intervention, and she is not wrong. My personal view is that we need to do a little more to ascertain that proof. It may be that the word of one individual may not be enough to grant them immunity; independent evidence and independent corroboration over a period of time may be needed to secure that immunity.

[Gavin Robinson]

First, the panel will already have to make an assessment of whether the information it has been given has been given truthfully, to the best of the person’s knowledge. Amendment 97 simply says what should then happen should it decide that that information was not given truthfully, to the best of the individual’s knowledge. It would not have much to do; it would already have made the assessment, and the file would then just go to the PPS.

I ask the hon. Gentleman to look at the exact provision, in clause 20(4), I believe, which sets out that the panel does not need any information other than that which is given to it by P, and then to have a read of subsections (1), (2) and (3). I think that there lies the answer to the question he is raising—subsection (4) could simply be deleted. An amendment has been tabled by my party and the Chair of the Northern Ireland Affairs Committee for that precise purpose.

[James Sunderland]

I thank the hon. Gentleman for his intervention. The Minister is now in his place and I hope he is paying heed to what we are saying, because these are all tweaks to the Bill that I feel we could make.

Let me return to clause 18 and ask, first, what defines an acceptable level of engagement. How do we specify it? Nothing in the Bill defines what level of information someone needs to give in order to qualify for immunity, and I think that needs work.

Secondly, Where a person is deemed a subject of interest, and perhaps is assessed as being a current threat, is there a case for their not being granted immunity? I believe that there is a bit of work to do there, and that this may be possible.

My third point is that we should perhaps legislate so that if a person is convicted of a post-1998 terrorist offence, the offence they were granted immunity for can be taken into consideration for the purpose of sentencing for other offences—I know that that is tricky and divisive, but it is worthy of consideration.

My last point on clause 18 is about what happens if the person’s account is found not to be true to the best of their knowledge and belief. We discussed amendment 97 earlier. If it is proved that the information given is completely false, perhaps immunity could and should be revoked. I know that the Minister will cover this issue later, but I think there needs to be a bit of work on what happens if there is compelling evidence that proves that the information given at the time was not true. In my view, therefore, clause 18 needs work.

That may not be possible, but I have outlined some suggestions to the Minister. My next point relates to clause 20, which is entitled “Determining a request for immunity”. In forming a view on the truth of the person’s account, the immunity requests panel will not currently be required to seek information from a person other than P. I reiterate my previous point that the threshold for the provision of information by the perpetrator is already very low and subjective. What change might we wish to make? Perhaps there should be a requirement that corroboration is sought before any immunity can be granted.

On the issue of prisoner release, the Bill states:

“Schedule 11 makes provision about prisoner release under the Northern Ireland (Sentences) Act 1998.”

Paragraph 5 of schedule 11 states:

“If a fixed term prisoner is released on licence under this section, the prisoner’s sentence expires”.

The key point is that the existing early release scheme provides that if a person’s application for early release is successful, they must serve the minimum term under their sentence before being released. Paragraph 5 replaces and repeals several provisions of the 1998 Act, potentially removing any minimum sentence. That virtually removes any incentive for a perpetrator to engage with the process. I therefore urge the Minister to look at that provision.

There are other areas that are not covered in the Bill, and we may come to them later. First, there is no legislation on the glorification of terrorism, or to enable those who flout such legislation to be held accountable. The issue is not provided for at all in the Bill, and that may require further work.

We may also need a better UK-wide definition of a victim or survivor of terrorism. In addition, there is the tricky issue of reparations for the bereaved. I know that that is difficult in law and difficult politically, but perhaps we could look at it in due course as part of the reconciliation process.

Perhaps we could even conduct a review in due course of how this legislation evolves and how it works in practice. Is the truth and reconciliation process working? Are people coming forward? Perhaps we need to build into the Bill a clause whereby we can legally review these issues in due course, with a view to tweaking what goes through Westminster.

This is a very difficult issue and this is a difficult Bill. I commend Ministers and everyone involved, particularly in the Northern Ireland Office, for getting this far. We now have something on the table that needs to go through. Time is short, and I recognise that the Bill will come back to the House on Monday, but I urge the Minister to consider what I have said over the weekend.

[Gavin Robinson]

It is a privilege to follow the hon. Member for Bracknell (James Sunderland), who has engaged continuously with Northern Ireland issues since his entry into the House in 2019. We are grateful that he has shown such an interest. His speech allows me to make an initial point for people outside this place who do not understand how we operate. Today we are dealing with parts 1 and 2 of the Bill, and on Monday we will deal with parts 3 and 4.

The hon. Gentleman hit the nail on the head when it comes to the requirement for an amendment that allows for the revocation of immunity in circumstances where somebody has lied; one on the repeal of the Northern Ireland (Sentences) Act 1998 so that there is an inducement for people to engage in the ICRIR process rather than stay outside; and one on the glorification of terrorism. While there is a discrete amendment on the glorification of terrorism today, we will debate new clauses 3, 4 and 5 on Monday, and they deal with all those points. I do hope that, after hearing what the hon. Member for Bracknell has had to say, colleagues throughout the Chamber will not only look at those new clauses and the thrust behind them, but encourage the Government to look on them favourably when we debate them on Monday. They are demonstrable and positive changes that would make this Bill better.

I am delighted that the hon. Member for Basildon and Billericay (Mr Baron) is back in his place. Perhaps I was a little hard on him, especially after he suggested that he was going to support some of my amendments. I genuinely believe that I would not have wasted my time over the past number of weeks, with colleagues from across Northern Ireland, in the preparation of amendments to make this process better if none of those amendments had the prospect of success today.

It is disappointing that, even when we hear positive noises not just on amendment 115 but on a range of issues that have been put before the Committee today to make the Bill better, we really get zero traction. It is very frustrating.

[Mr Baron]

Let me put the hon. Gentleman’s mind at rest. He was not too hard on me. Having served in the Province a few times, I am used to the Belfast way of things. What I would say, though, is that we are all, in good faith, trying to improve the Bill. We must remember that there are further stages, but I hear what he says.

[Gavin Robinson]

I am grateful to the hon. Member.

This Committee stage highlights the fact that there is a strong body of opinion in Northern Ireland that this Bill is irredeemable, that it should not progress and that it has no support among politicians or victims’ groups in Northern Ireland. The SNP spokesperson right crystallised that opinion, and said that his party had decided not to participate in amendments.

I stand here as a member of a party that has tabled scores of amendments in the hope that we can get this Bill to a better place. But I recognise that, for many at home, this is not a comfortable place to be. Without reiterating the comments made on Second Reading, I say that this Bill, whether it will affect a small number of people or a large number, is a true corruption of justice. The very idea that, under schedule 11, as the hon. Member for Bracknell read out, somebody prosecuted for heinous terrorist offences would serve no time in prison whatsoever for a prosecution arising either because that person has chosen not to give any information to victims’ families and stays outside the process, or because they engage in the process in an untruthful and dishonest way, is an affront to justice.

[Johnny Mercer]

How would the hon. Member describe the 1998 agreement that let murderers out having served two years? Would that be a corruption of justice? Would that be an affront to justice? And—

[Gavin Robinson]

Absolutely. I am very grateful to the hon. Gentleman. Let me make this point: we are not going to get unanimity of opinion on that issue from people in Northern Ireland. The Democratic Unionist party did not support the Belfast agreement. One of the strong reasons was the corruption of justice and the denial of rights to victims who saw the perpetrators walk the streets.

[Claire Hanna (Belfast South) (SDLP)]

rose—

[Gavin Robinson]

I will give way to the hon. Lady, because she will take a different view, and I want to be respectful of that different view. Then I need to move onto the amendments tabled for this Committee stage.

[Claire Hanna]

It is fair to say that, over the past couple of years, there have been a lot of new converts to the Good Friday agreement. Will the hon. Member concede that although the issue of prisoner releases was a very difficult pill to take for every single person in Northern Ireland, it was done with democratic legitimacy —in a referendum that more than 70% of the population voted for—and those people were in jail after due legal process?

[Gavin Robinson]

People were in jail after due legal process. Not only did we have that corruption of justice then, but we have had subsequent corruptions of justice on the provision of on-the-run letters, on letters of comfort, and on attempts to make sure that people get an amnesty or immunity from prosecution. Here we have a further iteration.

[Bob Stewart]

rose—

[Gavin Robinson]

I will not give way at this stage if the right hon. Gentleman does not mind, because I am deviating from the amendments and I recognise that we do not have much time.

We should be encouraging people in this process to give information, and we do that not by removing the consequence of avoiding the process, but by ensuring that there is a consequence should they not engage.

My hon. Friend the Member for North Antrim (Ian Paisley) made reference to Mrs Iris Moffitt-Scott, who gave an interview this morning on “Good Morning Ulster”. She asked that the Government not trample on victims. She said that today, on the 39th anniversary of her husband’s murder. Her husband had no affiliation; he was a farmer cutting hedges, and had just delivered his four-year-old child to the bus for the first day of school when he was murdered in cold blood. There was no reason for his murder other than pure, base sectarianism, and she is just asking today that the Government not trample on her and other victims like her.

[Ian Paisley]

I think in my earlier intervention I may have said that he was a part-time member of the UDR, but I was wrong in that. He certainly was not—in fact, reports at the time record his family saying he was a friend for all, a man with friends right across the entire community. There was no justification. His local canon, I think, indicated that the only reason he was murdered was that he was a member of the Protestant community. It was a straightforward, dirty, evil sectarian murder and it must be called out as that. As my hon. Friend will know, for those of us who grew up through those days—I was 17 at the time; he is slightly younger than me—our days were punctuated by the sounds of those bullets and bombs going off. Our news bulletins were punctuated by the soundtrack of the troubles. Unfortunately, this legacy Bill does not bring that soundtrack to an end.

[Gavin Robinson]

I thank my hon. Friend for that.

I have made reference to some of the substantive amendments that we will consider on Monday. I want to raise a series of amendments that I hope are not controversial, which representatives from across Northern Ireland would be able to accept, and put them forward in the hope that the Minister can offer some positivity. Then we will get on to the substantive amendments that I think will form part of our considerations later on.

An innocent victim: we know what that is. It is somebody who has been injured through the troubles through no fault of their own. They have not engaged in illegality; they have not gone out to damage, to murder, to kill. They have been injured. The Government accepted that definition when they published regulations around troubles pensions. There is an opportunity, which we can come back to on Monday when we talk about memorialisation, for this Government to provide a legal definition of an innocent victim.

There has been a debate about immunity. The legislation talks about its being general immunity, and that has caused concern for victims. The Minister, through engagement and with the NIO, has been very clear that it is immunity specific to an event, but covers the generality of offences during that event. The immunity attaches to the incident and not the person. I think the Minister should take the opportunity to clarify that and look at whether that can be strengthened through amendment.

I had an exchange with the hon. Member for Bracknell on clause 20 subsections (1) to (4). Subsection (4) is unnecessary. It suggests that the panel does not need to take information from anywhere other than the person before it, but subsections (1) to (3) suggest all the relevant information that the panel can and should take into account in making its determination on an individual incident. Clause 20(4) should be removed.

Amendment 97 is one that I hope hon. Members will engage with. An assessment must be made of whether the individual perpetrator who is giving information to the panel has done so truthfully, to the best of their knowledge. If they lie, if they seek immunity and spin the process out, playing with victims and their families, there is no consequence for them whatsoever. At the very least, amendment 97 would see a file issued to the Public Prosecution Service.

Amendment 119, which I referred to, is about the glorification of terrorism. The last thing we should do, if we are truly interested in achieving reconciliation in Northern Ireland, is to offer someone immunity only for them to go out and talk positively or proudly about their heinous exploits. That would be a fundamental outrage. We will never get reconciliation in Northern Ireland if we empower people to rub salt in the wounds of victims and their families there.

[Sammy Wilson]

Does my hon. Friend accept that the point he is raising is based on evidence that we already have of where, for example, members of Sinn Féin who engaged in a prison break-out in which an officer died went around boasting about the part that they played in that break-out? He is not making a theoretical or an academic point, but a very real point that we have to make sure is addressed.

[Gavin Robinson]

Yes. It is appalling—sickening—that people organise events and dinners, fundraise, sell books and write scripts for movies, then benefit on the backs of the blood of our neighbours in Northern Ireland. That is not appropriate.

I ask Members to consider amendment 98 very seriously indeed. This process is about providing answers to families who do not know all the circumstances of their loved one’s demise or who was responsible for it. That is a significant subset of legacy cases that are yet to be resolved in Northern Ireland. There are, however, other cases where the family know exactly who was responsible and know all the circumstances, and furthermore the state knows who is responsible and has sought the perpetrator for investigation and prosecution. Then what did the perpetrator do? They stood up and walked across the border and evaded justice. In amendment 98, we ask the Committee to accept that there are no circumstances in which we can provide a process that would grant immunity and allow somebody who has evaded justice, skipped the jurisdiction and made sure that loved ones had no answers the opportunity to come back to Northern Ireland and retire with dignity. That would be an affront to democracy and to justice. I hope that Members will look at accepting amendment 98 on such runaways.

[Jim Shannon]

One example of that, as this House already knows because I have said it before, is Lexie Cummings. He was having his lunch out at a shop in Strabane and was murdered—shot in the back of the head. The person who did it was apprehended by the police, who took him to court. They made a mistake in the subpoena that they handed out and got it wrong. While the subpoena was being changed, the person escaped across the border. He is now a very prominent member of Sinn Féin, as my hon. Friend the Member for East Londonderry (Mr Campbell) knows very well. That is an example of where the system has fallen down. My family, who are relatives, want to see justice for him in court. He has an on-the-run letter, which makes it very difficult for us as a family to comprehend and deal with issues, knowing that justice is not seen to be done and because we know who the perpetrator is.

[Gavin Robinson]

I agree with my hon. Friend and I hope that Members will look on amendment 98 favourably.

Finally, because I recognise that time is short—here we are, three hours in, before we get a Northern Ireland voice, but I appreciate the interest in the Bill—I turn to amendment 115. There has been considerable attention on amendment 115 during the Committee stage. My colleagues drafted our own amendment to exclude sexual offences from immunity. It was not as good or as strong as the Labour amendment, and, in truth, it was in the wrong place in the Bill, so we did not table it and signed amendment 115 and new schedule 1. We did that because we want to get to the end point. We are not interested in the politics, but we want to make sure that on such a wedge issue that engages issues of compassion and controversy, and affects communities right across the board in Northern Ireland, we have our name on that amendment, and we want to see progress on it this evening.

I have already highlighted the frailty of the argument that we could leave this issue until Report. I have heard that we could change the programme motion. Here we are with a programme motion that has already been extended once, at the end of Second Reading for this Committee stage, and I am the first Northern Ireland MP to speak when we have been debating the Bill since 20 minutes to 3.

[Colum Eastwood]

Can I take the hon. Gentleman back to what he was saying a little bit earlier? We obviously disagree on the Good Friday agreement and the need for prisoner release, but I think we both recognise that those prisoners were released on licence. A licence is capable of being revoked and has been on a number of occasions. If this Bill went through, would that get rid of that, so that those prisoners would then be totally immune from going back even on licence?

[Gavin Robinson]

I know that some from Northern Ireland did not take technical briefings on this Bill, but sadly I did and had to listen through them. Schedule 11, where we are talking about moving two sentences down to one, could lead to a circumstance where, were somebody prosecuted outside of this process, they would have a conviction on their record and would automatically be on licence for it. It is not that they would not be on licence—they would—but they would serve no time in jail whatever. We need to incentivise this process, and that is why I have talked about new clauses to be debated on Monday, which would ensure real terms and a real-life consequence for not offering truth to victims’ families.

I was talking about amendment 115 just before I was derailed. The Government have a huge opportunity to respond to what has been said this evening. This is a hugely important amendment. We talk about some amendments being inconsequential, and I accept that this one would affect a very narrow subset of legacy cases, but that does not make it any less of a touchstone. It genuinely is, and it has the support of our party. I am sad to say that there is no Northern Ireland Office representation in the Chamber at the moment. They are not here, and I genuinely believe that they had better be outside getting an agreement over this amendment so that it does not need to be pressed to a Division this evening.

[Mr Baron]

rose—

[Simon Hoare]

rose—

[Gavin Robinson]

I will give way in turn to the hon. Members, and then I will conclude.

[Mr Baron]

I hope that the hon. Gentleman is assured when I say that a number of others are making representations to those on our own Front Bench on a number of the amendments being discussed. One hopes that people are listening, which I suppose reinforces the point that we are trying to move in the same direction here and improve the Bill.

[Gavin Robinson]

I accept that and I am grateful to the hon. Gentleman.

[Simon Hoare]

I want to add to the hope of my hon. Friend the Member for Basildon and Billericay (Mr Baron), if it is of any help. To the best of my knowledge, conversations are taking place within Government and with the official Opposition to try to resolve this issue before we get to the moment of interruption. Principally that is because of the strong case that has been made by the hon. Member for Belfast East (Gavin Robinson), by colleagues and by the shadow Secretary of State, which I hope a number of us on the Government Benches have helped to augment.

[Gavin Robinson]

I do not want to sow discord or break the prospect of agreement, but I will say this to those who are outside talking about an amendment that we have signed, but who are not talking to us about that amendment: it is not just the first signatory who can ensure it proceeds to a Division. I hope there is an agreement on that amendment, but as signatories to it, should there not be an agreement, we think the Committee should divide on it.

[Sammy Wilson]

Does my hon. Friend not find it rather strange, given the debates in this House over the past week about the lack of response from the police and the courts on rape victims, the way in which so few rape cases are being brought to court, and the commitments that Ministers have made, that there is even a debate or a discussion about those who use their paramilitary positions and power to cover up rape having their crimes overlooked?

[Gavin Robinson]

I have to give way to seniority, but my right hon. Friend makes the point incredibly well for me, and it needs no further explanation. I am grateful for the time of the Committee.

--- Later in debate ---

[Johnny Mercer]

There has to be a landing zone. We are never going to reach an agreement that allows us to adhere to those standards. The hon. Gentleman’s point about trust in the state is valid. When it comes first to opening the books—I have experience of this not only as a Minister, but when I served in secret organisations, and I know there is an attitude or appetite to overclassify things and so on. Families have really felt the brunt of that over the years, and if I was part of one of those families, I would be deeply mistrustful of the state. I totally get that, and the Department must work harder to bring that integrity to the process.

However, I do not think we should throw away what is probably the last chance to get this right—well, “right” is not really the word, because we are not going to make it right: we are not going to bring anybody back. But we have to get to a space where we can deliver something for victims and veterans. We talk about prosecutions, but there have been no successful prosecutions of security force personnel since the Good Friday agreement. That is a fact.

What these victims are looking for is not there. If it was there, I would be the first to champion it. People such as my right hon. Friend the Member for Beckenham (Bob Stewart) are absolutely repulsed by those who think that uniform is a place where they can commit crime. The idea that we would not want people who have done those things to be held to account is for the birds. People who promote that—I see it in Northern Ireland about me all the time, but I never respond to it because it is totally false. Nobody wants those people convicted more than those who served there and adhered to the standards, showing extreme courage.

[Gavin Robinson]

I would be keen to hear which amendments the hon. Gentleman is supporting. He wants to get this right, but does he understand that one consequence of the Bill at Royal Assent is that, unless a decision has been made to prosecute by the Public Prosecution Service, the prosecutions lapse? There are 32 or 33 actual active files with the PPS as a result of Jon Boutcher’s Operation Kenova. Unless a decision is made now, or before Royal Assent, the prospects of live files will disappear.

[Johnny Mercer]

That is a good example of technical details in the Bill that need work. Aspects of this do need work. I think I have spoken individually to everybody on the other side of the Committee who opposes the Bill, and I agree with their technical changes to it. The idea that immunity cannot be revoked, or that there is no real compulsion to get involved because of jail sentences—I do not agree with that. At the same time, however, I am not going to say, “Don’t vote for this Bill”, because this is it; this is as good as it gets. There is an opportunity coming down the line, when the Bill goes to the Lords, when things such as that will happen.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Gavin Robinson Excerpts

2nd reading
Tuesday 24th May 2022 Commons Chamber

[Gavin Robinson (Belfast East) (DUP)]

It is a pleasure to follow the right hon. Member for New Forest East (Dr Lewis). He and I have parsed the course on this issue and the myriad alternatives within legacy over many years. I served on the Defence Committee with him during the 2016-17 inquiry, and the later inquiry whose findings were published in about 2018. We do not agree, and I am not sure that his synopsis of the views of those four academics was entirely fair; but I will return to that later in my speech.

Before I proceed, let me say that I thought the contribution from the right hon. Member for Skipton and Ripon (Julian Smith) was the most powerful that we are likely to hear this afternoon. I think that it was motivated not by prejudice or political aspiration of one hue or another, but solely by the right hon. Gentleman’s emotionally charged and personal experience in Northern Ireland. It was rooted in principle, and I thank him very much for it.

I have been thinking back to a debate that we had in Westminster Hall about proposals for legacy, and I was reading some of the speeches in Hansard this morning. I recalled a radio interview that I had heard on the morning of that debate. Alan McBride, a victims’ campaigner from Northern Ireland and a victim himself, was talking about a day of reflection for victims in Belfast and elsewhere in Northern Ireland. He said, “When we were thinking about a day of reflection in Belfast, we tried to find one day—one date—when nobody died.” They could not find one. They could not find a single day in the calendar when somebody had not been killed in Northern Ireland. They chose 21 June, the summer solstice, because that day heralds a new dawn, that day heralds a new season, that day heralds warmth and aspiration.

When it comes to our party’s approach to the issue of legacy—and, in fairness, the approach of the majority of parties in Northern Ireland—we cannot detach ourselves easily from victims, or their experiences, or their hurt, or the lingering fears and doubts that pervade our society. I know that it is easy for others in the Chamber to take a more “singular” view—a singular constituency-based view, or a single veteran’s view—but we cannot do that. A principle that we have applied throughout the myriad decades of consideration about legacy has been one that keeps open the hope of justice, no matter how easily those who have spoken today have tried to detach us from it. It keeps open the pursuit of justice, of recognition by the state that what happened to people’s loved ones was wrong. It is the principle that natural justice and the rule of law in this country still matter, still count, and should still run through our system. That is something that we have attached to every proposal that has been brought before us.

There is a second principle. I do not attach this to other parties, but we have never wanted to see an equivalence between people who lived innocent, peaceful and wholesome lives and were cut down in their prime as a result of terrorists—or those brave women and men who stepped forward and stepped up to protect all of us and give us the freedom to stand in this Chamber and political chambers throughout Northern Ireland, and to stand up for what is right and what is true—and those who went out to destroy and wreak havoc in our society.

I am afraid that on those two principles, this Bill fails. I take no joy in saying this. I know that there are Members in this Chamber wo are thinking, “For goodness’ sake, Northern Ireland legacy again, can they not just agree?” We do all agree in Northern Ireland that this Bill is wrong, that this Bill will not command support, that this Bill drives a coach and horses through the pursuit of justice, although I take no pride in that.

We have been through the discussions about a statute of limitations. I chided the right hon. Member for New Forest East earlier about his revisionism—perhaps his fair rehearsal—of the approach of the four academics, but I said it fondly, because I have huge admiration for him. He is right to say, and the academics were right to say, that should anything be brought forward, principled and detailed, as a statute of limitations, it would have to apply equally; but the landscape in Northern Ireland is not equal.

We always advanced the argument that no one who broke the law could escape the law and no one who deserved justice should evade justice. When those who served our state and put on the uniform of our brave armed forces—whether it was the Royal Ulster Constabulary, the Ulster Defence Regiment or other organisations—were involved in incidents that led to a killing, there will have been an investigation. We know that, post-1973, those investigations were article 2 compliant. We have always advanced the argument that where our state can demonstrate that it has discharged its duty, we should be able to move on: no reinvestigations, no trauma and no fear of that knocked door, because the state has done what is required of it under the European convention on human rights. For whatever reason, however, there were too few within the system of government that wanted to embrace that argument. I say that the landscape was uneven in Northern Ireland because when the state was involved, an investigation duly followed, but I am afraid that when the state was not involved, there were far too many deaths for which there was no investigation. That is how that principle could have been applied.

There has been mention of two years: the Good Friday agreement, the early release of prisoners and a maximum sentence of two years. Explanations have been bandied about today, including, “That’s just the way it is”, “That was proposed by the Labour Government”, “It was passed by referendum in Northern Ireland” and “It was ultimately put through this Chamber”. I will not be shy in saying that I found it obtuse and offensive then, and I find it offensive to this day. Two years—that is all. If you have served it, out you go. That is not justice. There were no cheerleaders for that proposal in Northern Ireland. Some accepted it as a compromise as part of the Good Friday agreement, and others did not.

How many times have we heard in the debate this afternoon that two years is not what we are talking about here? Read schedule 11 of this Bill; it will not tell you that the Bill removes those provisions. It will not be two years in jail; it will be nothing—no jail time whatsoever, whether someone engages in the process, seeks immunity from prosecution and tells the truth, or they do not. If someone sits outside the system, if they offer no answers for relatives of victims and their loved ones and if they decide that this process and this Bill are not for them, it does not matter because the British Government seek our support in this Parliament for legislation that reduces their time in jail to nothing. Who could be proud of that proposal? Schedule 11 does not even spell it out, but those are the ramifications of the Bill. Engage or do not engage—it does not matter; you will serve no time.

[Sir Jeffrey M. Donaldson]

My hon. Friend is making a powerful point. Does he agree that these provisions are not something remote in the sense that they apply only to incidents that occurred in Northern Ireland, but that in fact the provisions of the Northern Ireland (Sentences) Act 1998 apply to terrorist incidents that occurred in Great Britain and elsewhere? They include the murder of British citizens in this city, in Birmingham, in Manchester and, indeed, in many of the constituencies represented by Conservative Members. Those Members need to understand that this injustice does not just apply to the people we represent; it applies to every single family in this United Kingdom whose loved ones were cut down in cold blood by terrorists, and that that capacity remains in this country to this day.

[Gavin Robinson]

I agree, and I hope that the point is not lost.

No intended time, and no consequence. With no consequence to not engaging in this process, there is no inducement to engage in it. I heard the right hon. Member for Chingford and Woodford Green (Sir Iain Duncan Smith)—who has been fair in his contributions on the legacy issue over many years—ask what it is that people want. Do they want time served in jail or do they want answers? There is no single answer to that question— there are many victims. It has been said today that people just want to know the truth. There are victims the length and breadth of Northern Ireland who know exactly who killed their loved one, and they see the perpetrator walking freely through their town on a daily or weekly basis. As they walk the lonely path to the graveside to see their loved one, the person they know to be responsible for their loved one’s death walks free through the streets with their family. That person still walks and there has been no effective investigation.

To bring the question into this House, how often do Members walk through the double doors into the Chamber and look at the plaques right above? There is commonality between each of those three plaques, because each gentle man stood for election to this House, each gentle man believed in democracy and the rule of law and each gentle man was murdered by terrorists related to the Northern Ireland troubles.

Rev. Robert Bradford was murdered by the IRA at his constituency surgery in Belfast South in 1981. Airey Neave was murdered in his car by the Irish National Liberation Army with an under-car booby-trap bomb in 1979. In 1981 Ian Gow was murdered by the IRA, again with an under-car booby-trap bomb. They were our colleagues and predecessors who stood up for democracy in this country, but they were cut down in their prime. What else connects them? Nobody has been made accountable for those crimes. The perpetrators have evaded justice.

[Sir Jeffrey M. Donaldson]

Again, my hon. Friend makes a powerful point. Is he aware that the chief suspect for the murder of Airey Neave in the precincts of this House is currently operating a bar in Spain? He has eluded justice and, under the provisions of this Bill, will never have justice served upon him.

[Gavin Robinson]

That is exactly why I raise these issues. I want hon. Members to know that this is not just about cold cases that have never had a prospect of success in the courts. There are people out there today who are guilty of the most heinous crimes during the Northern Ireland troubles, against our state, our citizens and our neighbours across the communities in Northern Ireland and throughout Great Britain. They have evaded justice, they have fought extradition and they have squirrelled themselves away into the Irish Republic and, under the political offence exemption, have stayed there. Some of them live in the United States of America, and our Government have sought their extradition because they know they are responsible and they want to bring them to justice, yet they stay in their safe havens. And some freely walk the streets of Northern Ireland in exactly the same position.

Those perpetrators of violence, be they republican or loyalist, will be able to sleep soundly in their beds once this Bill is passed. They will know that they never have to spend a day in jail. They know that the focus will be on state cases for which there is information that will naturally run through the information recovery process. They will not engage in this, and there will be no consequence for their not doing so.

I say with as much respect as I can in the circumstances that the idea that our Government and this Parliament will pass legislation that allows perpetrators of violence who have evaded justice to retire in dignity is a disgrace, and retire they will. This Parliament has considered on-the-runs legislation in which our Government, at a request from the republicans, were going to pass measures saying that those who were on the run and evading justice could come home and get away scot-free. It was going to be passed by the Labour Government until Sinn Féin realised that it would apply to soldiers, too, and pulled its support.

After the on-the-runs legislation, we had the letters of comfort. I am glad the Secretary of State ruled out the application of letters of comfort today, but John Downey walked free from court as a result of letters of comfort. They were not issued by the Conservative Government; they just came to light after 2010. John Downey is responsible for the Hyde Park bombing that killed 11 service personnel and seven horses working alongside them. When he stood in the Old Bailey, he produced a letter that said, “You’re not currently or actively sought for investigation.” This Parliament has a history of bidding for the wrong people in my view. Our view will always be based on those who have suffered the most in Northern Ireland.

I am sure that the Government have got the impression that we will not be with them on Second Reading of the Bill, but the issues are far too important for us to say that we cannot have any part of it and therefore not engage. I want the Government to hear us loudly and clearly that we will be tabling amendments, and we will seek as much cross-party and cross-community support for those amendments as possible. I hope that if we do that in the spirit of good will and co-operation, the Government will engage in these thoughtful considerations about sentencing and time served, because getting a conviction, being out on licence and having all the freedoms that people enjoy while their victims do not is simply not sufficient. We need to rule out the ability of people who have actively evaded justice, and who the Government have sought through extradition proceedings, to come home and retire with dignity. I hope that we will get a willing ear, Mr Deputy Speaker.

[Several hon. Members rose—]

--- Later in debate ---

[Sir Iain Duncan Smith (Chingford and Woodford Green) (Con)]

I rise to speak in this debate because I have had a long interest in Northern Ireland. I served in Northern Ireland in 1975. I remember the billboards at Christmas saying, “Seven years will have been too much”. To be honest with you, Mr Deputy Speaker, I hated every moment of it. I did not ask or volunteer to go there. I did not want to be doing something that I did not think I was ever trained to do, although we did carry out training. It struck me as a real problem.

I also want to say one other word about it, because often it is bandied around that political parties over here do not really get it. The Conservative party has lost a large number of people to terrorism—in the Brighton bombings alone and in other killings. We can see their coats of arms up on the wall in the Chamber. My predecessor, Norman Tebbit, has had a lifelong period of pain. His wife was disabled. She is now dead sadly, God rest her soul, and she put up with a lot as a result of her husband being in politics. The sadness is, as he leaves politics now, that he bore that all the way through. After the Good Friday agreement, he had to watch those who he knew had done it walk away. They walked away under the agreement that reduced everything to two years, and the pain he and his wife must have suffered was enormous—I know it was. I speak therefore with a certain amount of humility, as much as I speak about my own service.

The truth is, I want to talk about one particular person. Captain Robert Nairac was a good friend. He was passionate about going to Northern Ireland as a Catholic. I am a Catholic myself, and he thought that he could do something over there to help and that he would understand it. [Interruption.] My right hon. Friend the Member for Hemel Hempstead (Sir Mike Penning) served with him as well. The truth is that Robert was captured. He was taken, he was tortured, we understand, and we think he was eventually executed after attempting to escape, but we do not know the full circumstances.

The sadness of all of us who have watched is that we want to know what happened. We want to get some closure. We have never understood what happened. Where is he buried? His parents went to their graves never knowing where he was. They could never go to that grave and say some words over it. That is the reality of where we are today and the point is that many people already suffer because of it.

The truth is that I do not love this Bill. I think that it is, in many senses, imperfect—as it will be—and it has problems and difficulties, some of which were related earlier. The question that we need to face is what we are really after. If we want justice in terms of prosecution and, if necessary, eventual incarceration, we need to deal with the reality that we no longer have that, because two years for murder most foul is not justice. It cannot be justice.

So do we want the prosecution to raise information? The problem is that many prosecutions are taking place against people about whom there are huge numbers of records because they happened to be servicemen and women. That is why those cases can be taken up—because the Government have all those records. Those who committed terrorist acts, however, where there is little information and little willingness to do anything about giving evidence—they may have fled the country—will remain a mystery. I talked about Robert Nairac, but I have no idea who committed that murder or how many were involved in his final demise.

All I can say is that if the Bill is about knowledge, the system at the moment is imperfect. If it is about punishment and prosecution, the system at the moment is imperfect. So what are we going to do? I understand that the Bill is a process and I think it is a genuine attempt by the Government to try to find a way that allows the families of victims to at least know and understand what happened.

My point is that things will have to change if we are to see any of this happen. On that, I have a small comment for the Opposition. I understand their position, but I wish that they had said “Maybe” rather than “No”, because we now engage in a process. The question is whether we can get some of those things right during that process. That is the point. There was an exchange between my right hon. Friend the Member for New Forest East (Dr Lewis), the Chair of the Intelligence and Security Committee, and the hon. Member for Gordon (Richard Thomson) about exactly what we want to achieve at the end of this and whether it can be made to achieve it. That comes down to a couple of issues, which I will deal with now.

First, we have a problem in the reconciliation process. To allow someone to just come in and say, “As far as I can recall, this happened and that’s my lot,” and for them to be told, “Well, that’s okay. Now you can go away and you’ll never be prosecuted for it. It’s alright. Don’t worry.” does not work for me, and I do not think it will work in the process. It must be much more interrogative and individuals must be cross-examined about exactly how far their knowledge went.

Secondly, I would like the commission to decide whether we are going to go ahead with this regardless of whether it considers that, on balance, the individual has told the truth and deserves any kind of immunity from future prosecution. In other words, that needs to be tightened up a great deal. If families of victims are to have any faith in it, they will need to understand that there was due process.

[Gavin Robinson]

The right hon. Gentleman touches on a good point, because the commission would consider what the individual seeking immunity says and whether it is truthful, but under the Bill it is not allowed to consider any other information. Does it not strike him as odd that it has no ability to challenge the rigour or integrity of what it is told?

[Sir Iain Duncan Smith]

I understand that. As I said earlier, with all humility to my colleagues from Northern Ireland, I start from a position of trying to find a way through. That is one of the problems with the Bill. If it is about knowledge, we have to meet that requirement somehow in the Bill, because it is not happening out there. For all the talk about prosecutions and knowledge, few of those who carried out those heinous crimes have ever ended up in the courts or will ever end up in the courts, so how can we manage to make that happen?

Another part of the problem is those who do not co-operate. I worried about the two-year issue in 1998, because it seemed unfair and not really justice. If someone blows somebody else up; murders them; or takes away a family’s father, brother, sister or whoever or a member of the armed forces who was there to protect them, they should, after committing such a crime—murder most foul—face the fullest penalty.

I understand the compromise that was made at the time—I understand that. Many of us had to bite our lips, but we understood it. My point is that if we are going to open the door on the one hand to those who would entertain the possibility of coming to speak the truth, we must also say that those who do not will face the full penalty of the law for murder most foul: “You will not be given an exemption. You will not end up with only two years. You will face a full prosecution if you are not part of this process. In other words, either you co-operate, you face the interrogation and you actually come out as having told the truth, or else you go down the other road back into the justice system and you face full prosecution.” To some degree, that would at least give balance. It would at least give an idea that somehow the process not just sought the truth, but punished those who refused to participate in that process.

I end simply on the basis that the process will never satisfy everybody. I know that, and I know that families will feel very hurt by this process so far, but I think there is a way through. The one thing that has characterised, in many senses, this House over Northern Ireland has been somehow trying to find a way through the thicket of the different positions that people take. I for one think that the process of trailing veterans—where the information is there, they had given evidence previously and they have been fact-faced at interrogations—should not go on, because it is terrible and belittling, and at the same time creates real problems for them at home. We want to find a way to settle that, but I do not want to settle it on the backs of those who still await to find out what happened.

If we can find a way through on this Bill, imperfect as it is at the moment, that would be worthy of the effort. I would encourage the Opposition to engage as much as they possibly can, because this is too important an issue to divide on in a very political sense. I want to see closure: I want to find out what happened to my friend Robert Nairac, because it troubles me every single day and I never got to say goodbye to him.

--- Later in debate ---

[Jim Shannon]

The right hon. Gentleman and Captain Nairac served together, and that is the important thing to put on the record.

I want to put something from a different point of view and to speak about the victims. In the middle of all this debate—my hon. Friend the Member for East Londonderry (Mr Campbell) referred to it—it is important to focus on that. I do not want to speak as Jim Shannon the Member of Parliament for Strangford; I want to speak as the cousin of Kenneth Smyth.

[Gavin Robinson]

It is important for the House to recognise that sometimes politicians talk about how powerfully these things affect us, but it is fair to say that from my hon. Friend’s contributions throughout the years he has brought a great deal of personal empathy and emotion to these issues. I make that intervention, and I will talk perhaps longer than you would normally permit in an intervention, Madam Deputy Speaker, and I will look for a nod from my hon. Friend whenever the time is appropriate—

[Madam Deputy Speaker (Dame Rosie Winterton)]

Order. If the hon. Member for Strangford (Jim Shannon) would like me to come back to him after the hon. Member for Belfast South (Claire Hanna), I am happy to do that if at any point that is what he feels.

Oral Answers to Questions

Gavin Robinson Excerpts

Wednesday 27th April 2022 Commons Chamber

[Conor Burns]

My hon. Friend is absolutely right. In Northern Ireland we are determined that the celebration of this historic event will bring communities together. I have acknowledged previously in this House the words of the leader of Sinn Féin, who extended her congratulations to Her Majesty, saying that

“70 years is quite some achievement.”

This jubilee can be celebrated across communities and in every part of our United Kingdom, and we are determined that it will be.

[Gavin Robinson (Belfast East) (DUP)]

The Minister will recall that at Northern Ireland questions six weeks ago, he said that

“we will be marking this jubilee with full throttle, joy and celebration,”

and that he and the Secretary of State would be

“coming forward with some very innovative ideas”.—[Official Report, 9 March 2022; Vol. 710, c. 311.]

So far we have a hamper and the potential for an annual garden party. I do not want our celebrations to be lacklustre; I want the NIO to bring a level of sparkle and joy to the platinum jubilee celebrations. Is there more to the plans the Minister will unveil next week?

[Conor Burns]

I can assure the hon. Gentleman that my right hon. Friend the Secretary of State and I, and the whole of the Northern Ireland Office, will be sparkling throughout the jubilee celebrations. We will be unveiling very shortly another very exciting proposal—a competition in Northern Ireland’s schools for something to be presented to Her Majesty on behalf of the young people of Northern Ireland. I assure the hon. Gentleman that he will not be disappointed, and I say that knowing that that is a very high bar to cross with the Democratic Unionist party.

Oral Answers to Questions

Gavin Robinson Excerpts

Wednesday 26th January 2022 Commons Chamber

[Julian Smith (Skipton and Ripon) (Con)]

3. What steps his Department is taking to support stability in Northern Ireland.

[Gavin Robinson (Belfast East) (DUP)]

7. What steps his Department is taking to support stability in Northern Ireland.

[Brandon Lewis]

A stable Northern Ireland needs sustainable devolved institutions. We have progressed the Northern Ireland (Ministers, Elections and Petitions of Concern) Bill to that end. Prosperity is another foundation stone of stability. We have been working with the Executive to deliver the city and growth deals, which my hon. Friend the Minister of State, the right hon. Member for Bournemouth West (Conor Burns), is taking forward, and to invest in priority areas such as skills through the new deal for Northern Ireland. We will continue to support stability and co-operation in Northern Ireland throughout this important election year.

[Brandon Lewis]

Yes, absolutely. That is our focus, and we have been taking this through the House. As my hon. Friend the Minister of State said a short while ago, and no doubt he will be back here talking about it soon, taking this through is important for Northern Ireland and its people, who want a functioning Northern Ireland Executive.

[Gavin Robinson]

The right hon. Member for Skipton and Ripon (Julian Smith) brought forward New Decade, New Approach with commitments within it that would guarantee and protect the stability of our institutions. The Secretary of State knows that the commitment to protect the UK’s internal market has not been delivered. He knows that some of the balanced commitments in that document are now being tinkered with, be they on legacy or on language. What steps will he take in the very short term to sincerely protect the institutions?

[Brandon Lewis]

On the cultural package, what we agreed to take forward is exactly what was agreed between the parties in New Decade, New Approach itself, and we will continue to look at that. It is important that we deliver on all of New Decade, New Approach. We have the United Kingdom Internal Market Act 2020, which is doing that work and has ensured that trade between GB and NI from the NI side is working in an unfettered way. We said we would bring forward further work to develop and deliver that, which we will do, but it is also important—this is why the work on the Northern Ireland protocol is so important—to ensure the same sort of effect in GB to NI as in NI to GB and that it is working for everyone in Northern Ireland.

Northern Ireland (Ministers, Elections and Petitions of Concern) Bill

Gavin Robinson Excerpts

Report stage & 3rd reading
Tuesday 26th October 2021 Commons Chamber

[Stephen Farry]

At the outset, I take the opportunity to pay tribute to Sir David Amess and pass on my condolences to his family. I also reference his personal connection to the Bill, in that he was one of the Chairs in Committee. True to his character, he handled proceedings professionally, efficiently and with huge impartiality. May I also say, for those MPs who are still new to this place and are still swotting up on procedure, that he was very generous and understanding in that regard? I also thank the House of Commons staff, and the Bill Clerks in particular, for the rapid turnaround of amendments in the past week.

The amendments in my name fall into four broad categories: the election or nomination of First Minister and Deputy First Minister; reforms to petitions of concern; the operation of the Executive; and the commencement date. On the nomination and election of the First Ministers, frankly the current system does not work. The First Minister and Deputy First Minister are identical in terms of status, powers, responsibilities and duties. That one small distinction in wording takes on disproportionate importance—indeed it is only symbolic—and turns our elections into the politics of fear. That risks crowding out consideration of important economic, social and environmental issues during election campaigns. They are often about keeping the other side out, and yet, in the past, the so-called victorious party has gone on to share power in the same joint office with the largest party from the other designation.

There is speculation that Sinn Féin could emerge as the largest party after the next Assembly election and we have two Unionist parties unwilling to make clear whether in such circumstances they would serve as Deputy First Minister. That is hugely destabilising and a selective application of the rules of democracy as they stand. That could lead us into a difficult situation after the next election. People should clearly adhere to the rules, but that does not preclude us from seeking support for reforms to make the system work more effectively.

[Gavin Robinson (Belfast East) (DUP)]

It is important to note that there will be issues on which we can find agreement. There will also be issues and amendments before us today on which we cannot find agreement. However, importantly for these proceedings, does the hon. Member agree that, as we discussed in Committee, the Bill fairly reflects what was agreed in New Decade, New Approach and that, unless and until we get joint agreement on a range of issues through another forum, we should not be tinkering around with too many amendments?

[Stephen Farry]

I am grateful to the hon. Member for his comments. I agree partially. The Bill does accurately reflect the New Decade, New Approach agreement, but it is worth referencing that that was made back in January 2020. I pay tribute to the former Secretary of State, the right hon. Member for Skipton and Ripon (Julian Smith), for his endeavours in that regard. However, we have had many political developments since then. One of my great frustrations as a Member of this place and previously as a Member of the Northern Ireland Assembly is that we often respond to the last crisis and fix the rules to address what has already happened rather than trying to look ahead, anticipate where crises are likely to happen and put measures in place that will make the world operate more easily.

That brings me to new clause 1, in my name, which seeks to address anomalies in the current system. At present, the largest party regardless of designation is entitled to the position of First Minister. However, the Deputy First Minister must come from the largest party from the largest remaining designation. I do not want to get too far ahead of myself as a member of the Alliance party, but it is conceivable that, one day—perhaps after the next election or at some time in the future—a party that is not Unionist or nationalist may be the second-largest party in Northern Ireland and yet it would not be automatically entitled to that position. That would create a certain crisis of legitimacy in terms of the institutions and the First Minister and Deputy First Minister team. With that small measure, we could address that problem.

Secondly, I turn to new clause 4 in in the names of the hon. Member for Foyle (Colum Eastwood) and the hon. Member for Belfast South (Claire Hanna) of the Social Democratic and Labour party, which would essentially return to the Good Friday agreement model and the first iteration in the Northern Ireland Act 1998 by providing for an election of a joint team of FM and DFM. That would have two advantages: Assembly endorsement of the team; and reinforcement of the point of collective responsibility from being part of a joint office, not two individuals pursuing separate agendas.

My one reservation is that that relies on the current cross-community voting system, which is fundamentally linked to the designation system. As hon. Members will know, MLAs are required to sign in as Unionist, nationalist or other. I used to be an “other”, which is a wonderful way to describe one’s identity. The system perpetuates the two communities model in Northern Ireland rather than reflecting the diversity that existed in 1998 and that which exists today. There are people with open, mixed and multiple identities, and there are people from different backgrounds who have come to live in Northern Ireland and are not properly reflected in how we frame the operation of the Assembly. That needs reform.

Thirdly, new clause 2, in my name, would return to the Good Friday agreement model but with the distinction that we end up with a purely weighted majority vote—set at two thirds—without reference to any designations whatsoever. That is the fairest and most ideal way to address the issue. It would avoid some anomalous outcomes and inflexibility. Both new clauses on the second and third options would take the opportunity to acknowledge in law and change terminology to confirm and reinforce that the First Minister and Deputy First Minister are identical in status, powers, responsibilities and duties.

New clause 3—my final amendment in the group—would reinforce that point about the equality of the First Minister and Deputy First Minister in all those respects but outside the context of the nomination or election process. We may not be able to find consensus on that during the Bill’s remaining stages. However, we should take the opportunity outwith that to reflect in law that the FM and DFM are entirely equal, to try to take the heat out of the fairly stupid, meaningless contrast that is made and creates huge tension in our election campaigns. Unfortunately, we would need to make one exception and say that that would not apply to the First Minister and Deputy First Minister election process, because, until we change the system, someone must be put in place first, and someone else second.

I turn to petitions of concern, which have been a source of huge controversy in the past 20 years in Northern Ireland. Petitions of concern have been used and abused well beyond their original intention. They have brought huge discredit, and indeed tension, to the Assembly. It is worth noting that virtually no human rights or equality legislation has been passed by the Assembly. Instead, it has been done either through various periods of direct rule or through the direct intervention of Westminster, notably through the Northern Ireland (Executive Formation etc) Act 2019 in recent times. I welcome the reforms in New Decade, New Approach, but the Alliance party is sceptical about whether they go far enough. People may say that there have not been any petitions of concern since the Assembly’s restoration. That is true, but we have also not had much legislation or any equality or human rights pieces before the Assembly. We must therefore remain vigilant.

I want to test two points with the Government. The first lies in the 14-day timeframe for a petition of concern to be considered, which may turn out to be a straitjacket. There may well be situations in which a matter must be considered urgently, such as a legal responsibility or some other deadline that must be met in response to a legislative consent motion. I therefore think it is worth clarifying that the Assembly has the ability within its Standing Orders to vary that 14-day timeframe if the circumstances warrant it. In a similar light, a petitioner or set of petitioners could withdraw their support for a petition if they feel that the issues they were concerned about have been addressed otherwise, rather than having the clock continue. In Committee, the Minister of State’s predecessor did give such reassurances, and I hope that the incumbent will be happy to do the same today.

I turn briefly to the operation of the Executive. Amendment 2 would move the “three meetings rule” from guidance to statute. At present, we have much concern in relation to the petitions of concern issue in the Assembly, but it is not as commonly understood that there are mutual vetoes in the context of the Executive. They must also be addressed. One such veto relates to the formation of the agenda. At times, Ministers have sought to put papers on the agenda but been blocked persistently. The three meetings rule is therefore of particular importance.

I appreciate that others are waiting to speak so, finally, I want to talk about the commencement timeframe. Comments about such timeframes may be unusual on Report, but this is an important point in this particular context. It is unusual to have a Northern Ireland Bill moving through Parliament at the normal pace of a Bill—most tend to be matters of urgency.

The ethos of the New Decade, New Approach agreement was to ensure that the institutions worked together, that we have sustainability and that we try to avoid crises, whether that is collapse of the Assembly or difficulty in forming a new Executive after an Assembly election. It is two years since New Decade, New Approach was agreed, but we are only now putting this into legislation, and we meet in the midst of a potential crisis of non-delivery of other aspects of New Decade, New Approach, with tensions emerging around the protocol and the unrealistic demands made in that regard—the Democratic Unionist party of colleagues sitting in front of me has made threats that it may withdraw its Ministers from the Executive in the near future—as well as speculation about what might happen after the next Assembly election. It would therefore be seen as absurd if we had a crisis when the measures in the Bill could to some extent have been helpful in managing that crisis. However, the Bill might still be in the process of going through Parliament or, even worse, it might have received Royal Assent but, because of the two-month commencement period, we would not be in a position to deploy the measures that might have helped the situation.

Northern Ireland Protocol

Gavin Robinson Excerpts

Wednesday 21st July 2021 Commons Chamber

[Brandon Lewis]

My hon. Friend’s comment is absolutely spot on. The Command Paper is clear that we seek an agreed new balance to meet the commitments in the protocol in a way that fully respects Northern Ireland’s place in the UK market. Obviously, we understand that we have a duty to help maintain the integrity of the EU market, and we take that seriously. We think we can deliver on that, but we also have to be clear about the fundamental integrity of the UK market.

[Gavin Robinson (Belfast East) (DUP) [V]]

The Secretary of State will know that aerospace is a key industry in my constituency. If we needed a good example of the flaws of the piecemeal approach, the resolution on steel is a great example. When we raised aluminium, the European Union was of the view that we needed a separate and bespoke negotiation to resolve those issues. That crystallises the conundrum that has led to this White Paper.

My right hon. Friend the Member for Lagan Valley (Sir Jeffrey M. Donaldson), my hon. Friend the Member for North Antrim (Ian Paisley) and the hon. Member for Wellingborough (Mr Bone) have all raised the timescales. I understand the Secretary of State’s reluctance to give arbitrary timescales, but there will be two choices: the European Union will either indicate very quickly that it has no interest in engaging with this process, or it will start to engage.

Will the Secretary of State at least commit not only to put his best efforts into achieving the right outcomes but that he will come to the House, when we return in September, to update us on progress or on the steps that may be necessary at that stage?

[Brandon Lewis]

The hon. Gentleman perfectly outlines the reason why it is important that we deal with the underlying problem, rather than looking separately at all these different symptoms. Many hon. Members have talked about a veterinary agreement and, as he has outlined, that will not solve the overall problems. He has given a very good example of that, which is why we want to take this approach to find a fundamental resolution to the underlying problems.

On the timeframe, as I have said, we want to work positively with the European Union. We are looking to agree a standstill so that we avoid any cliff edges that the grace periods may create, and that would also give us the space to have these negotiations to get a permanent, fixed, long-term solution. It would be wrong of me to put timeframes on that at the moment.

The hon. Gentleman is right that we will have to see how things work over the next few weeks, and I have no doubt that the opportunities in this House will be abundant for him and others to raise these questions and make these points to me on our return after the recess.

Northern Ireland (Ministers, Elections and Petitions of Concern) Bill (Third sitting)

Gavin Robinson Excerpts

Committee stage
Tuesday 6th July 2021 Public Bill Committees

[Stephen Farry]

Thank you very much, Mr Stringer. It is a pleasure to serve under your chairmanship. I take no offence at the mis-association of me with the hon. Member for Foyle—I have been called far worse, so I will take it on the chin.

I will speak briefly to amendment 6, which appears in my name. It relates to the ministerial code and the insertion into law of what is known in Northern Ireland as the three-meeting rule, which was agreed by the Northern Ireland political parties as recently as the Fresh Start agreement in 2015. At the moment, my understanding is that it is in essence guidance and not part of law, and we see partial implementation of the rule in the Executive. Sometimes papers can be blocked for considerable periods, causing considerable frustration for Ministers. In recent weeks, for example, the Northern Ireland Health Minister has had a Bill on organ donation blocked. My party colleague, the Justice Minister, has had a Bill blocked for a considerable time.

There has been a lot of talk about the petition of concern and vetoes in discussion of the Assembly, but a lot less attention has been paid to what happens inside the Executive where, in essence, there are two vetoes. The first is in the way in which the First Minister and Deputy First Minister have almost full control over the Executive agenda. It takes almost a double sign-off from both for a matter even to get on to the agenda for debate. Secondly, a cross-community veto can be deployed by three Ministers to block a decision. My amendment addresses the former issue of the agenda, so that there is at least scope for a discussion and a vote to take place on any Executive paper. No Minister puts a paper to the Executive that is without merit, and they all deserve discussion.

The purpose of amendment 6, in essence, is to put into the ministerial code something that has already been agreed by the Northern Ireland political parties in the Fresh Start agreement of 2015.

[Gavin Robinson (Belfast East) (DUP)]

It is a pleasure to serve under your chairmanship, Mr Stringer.

I promised myself this morning that I would not get into the mould of opposing every amendment that has been proposed by my colleagues from Northern Ireland, but I have a couple of points to make about SDLP amendments 17, 18 and 19, which were tabled by the hon. Member for Belfast South. The danger is that we seek to legislate too much on such issues. I understand entirely the thrust of her argument and, indeed, the way in which the amendments have been structured is to talk of best endeavours and the relationships that we want to see in our political situation. In truth, however, they bring with them no legislative consequence should we not see best endeavours. How I would frame it is that if we need to rely on such provisions being in legislation, the system is not working as it should in any event. Without a consequence, and given the positive but loose nature of the amendments, I do not think that the proposals would add significantly to the Bill or to the agreement reached in New Decade, New Approach.

I also understand why the hon. Member for North Down has advanced amendment 6. He served in the Executive when I was a special adviser in the Office of the First Minister and Deputy First Minister. He will understand not only that the nature of that joint office brings political challenges with it, but that there is still an importance of that office’s chairing and maintaining the efficiency of the business brought before the Executive. He and I will both remember times when things were much more terse around that table, but to reflect on his time as a Minister, whenever he brought forward papers for the Department for Employment and Learning, we engaged in discussions prior to any difficulty emerging around an agenda. His special adviser and I used to spend a lot of time problem solving before issues were brought formally to the agenda.

--- Later in debate ---

[Stephen Farry]

I apologise, Mr Stringer. I will focus exclusively on amendment 7. My party has been very keen to see the petition of concern amended. Our views and, indeed, those of many others on this issue are very clear. In some senses, it would be almost logical for us to try to make the signing of a petition of concern as difficult as possible. However, I was very struck by evidence that we received orally last week and also in writing from the Speaker of the Assembly. Concern was expressed that if the proposal for Deputy Speakers not to be able to sign a petition of concern were put into law, that might well deter people from coming forward to become a Deputy Speaker in the Northern Ireland Assembly. It is worth referencing the fact that the way Deputy Speakers operate there is somewhat different from the practice at Westminster, in that they continue to have a political role.

I should say that my party does not have at present a Member of the Assembly who is a Deputy Speaker, and nor do we intend to seek any of those offices in the future, so I may be speaking from a position of a certain objectivity in this regard. I do think it is worth the Committee’s considering whether what was a sincere commitment made in New Decade, New Approach—I accept that it is in black and white in that document—may have, in the cold light of day, some unintended consequence and therefore that there may be some scope for reconsideration. I would be happy to hear the views of other Members in that regard.

[Gavin Robinson]

I just want to give my reflections on the evidence that we heard from the Speaker of the Northern Ireland Assembly. I do not agree that there is a chilling effect associated with the agreement reached––New Decade, New Approach–that would have a material impact on parties’ willingness to provide a Deputy Speaker for the Assembly. I would go further and say that our Deputy Speakers are not the same as Deputy Speakers here. Neither is our Speaker. Our Speaker in Northern Ireland does not resign from their political party. When they seek re-election, they do so as a member of a political party.

The element that I do not think the Speaker reflected on appropriately in his evidence last week is that, as each of the four parties provides a Speaker and three Deputy Speakers—one from each of the four parties—the consequence of assuming that office and so being unable to sign a petition of concern applies to the four largest parties. Each is supplying somebody and each takes the consequence. In that sense, what was agreed in New Decade, New Approach is fairer than one party losing a signatory from a petition of concern because they assume the position of Speaker, so I take quite a different view from that of the Speaker of the Northern Ireland Assembly and I do not believe that the fears that he outlined are merited.

[Mr Walker]

The New Decade, New Approach deal was explicit that the Speaker and three Deputy Speakers shall not sign a petition. I therefore question why we would seek to amend the deal, which delivers on a key concern of the party of the hon. Member for North Down during the negotiations: that a petition of concern should be used only in rare situations.

I acknowledge the concerns that were raised by the Speaker, but as we have just heard, there are different views on their strength and there is the fact that four out of the five major parties in the Assembly are represented in the speakership or deputy speakership. There is a balance in its impact in that regard. I have offered a follow-up conversation between officials at the Northern Ireland Office and the Speaker’s officials to look into the matter further, but I cannot at this moment support an amendment because we are not aware of how real a risk this poses. We have heard divergent views on that. The Government are willing to return to the issue after further engagement with the Speaker, but for the time being I ask that the amendment be withdrawn.

--- Later in debate ---

[Claire Hanna]

While we welcome minor amendments to the petition of concern to make it a little more difficult to table one, that does not improve how the POC works or restore it to its intended purposes. Amendments 11 and 12 seek to do that by restoring some of the Belfast agreement’s factory settings, as it were, and reinserting the special procedure described in paragraphs 11 to 13 of strand one, whereby a special committee should examine the rationale and viability of a petition of concern so that it is used as a mechanism to protect minority rights and not, as has been practised during the previous mandate, to thwart them. Amendment 11 would restore that original intent, which has not been adequately used. Amendment 12 enables that by specifying how such a committee could be established at the request of either the Assembly Executive Committee, a Minister or a relevant Committee.

[Gavin Robinson]

I am not doing very well on my commitment at the start. I want to push back politely on the notion of factory reset, and that we are getting back to the original intent of the provision. That is not agreed. Going through last week’s evidence, it is fair to say that there are those who were involved in the process in 1998 who are now trying to retrofit and read into the 1998 agreement what they hoped to attain or achieve at that stage, and did not.

--- Later in debate ---

[Mr Walker]

I am happy to give him that assurance.

[Gavin Robinson]

I think this is a constructive proposal. We have to be mindful of the concern that was raised last week in evidence: that Assembly authorities might be slow to consent or assent to such a restriction on the 14-day timescale should it not be elucidated very clearly—not just here, but on Report and so on. If we cannot find a form of words that is acceptable on Report, the exchange that has just been had needs to be expanded on and very clearly delivered on Report in Hansard. There should be no doubt or equivocation among the Assembly authorities that, should petitioners decide that the 14 days are no longer required, or that the issue is of such urgency or significance that it needs to be resolved within that timeframe, that flexibility is permissible.

[Mr Walker]

I absolutely take note of the hon. Gentleman’s comments, and agree with his intent. I am happy to come back to that issue on Report, as appropriate.

Amendment 1 agreed to.

Amendment made: 2, in clause 5, page 7, line 17, leave out from beginning to first “the” on line 18 and insert “the presentation of the petition and the time when”.—(Robin Walker.)

This amendment means that the standing orders may specify a minimum period of notice of less than a day for a petition of concern.

[Stephen Farry]

I beg to move amendment 9, in clause 5, page 7, line 31, at end insert—

“(e) make provision to allow petitioners to withdraw a petition of concern at any stage in the process.”

The amendment relates to the wider package of comments I made earlier. I will not press it to a vote today. I just flag it up as part of that wider discussion and hope that the Government reflect on it and, indeed, as the hon. Member for Belfast East said, speak further to this general issue on Report.

[Gavin Robinson]

When you see the physiology of that amendment, it is clean; it does exactly what we have described. We may have to consider whether it is appropriate for us to do this through the Bill or whether it can be reflected through the Standing Orders of the Assembly, but it is exactly what the intent behind amendment 8 was; amendment 9 does it very cleanly. I am positive about the spirit and the text of the amendment, but it may not be pressed to a vote this morning.

--- Later in debate ---

[Gavin Robinson]

There are no surprises in this Bill to the parties of Northern Ireland. There is no period of time that is required to get ready, implement or reflect the changes brought forward in the Bill. The shadow Secretary of State has clearly outlined that the agreement was reached 18 months ago. But for coronavirus—whether we accept it as an excuse or not—the provisions in the Bill would be in place and we would be able to fall back on them if they were required.

I am not sure what the rationale is for two additional months beyond Royal Assent. A strong argument has already been put forward by the hon. Member for North Down and the shadow Secretary of State. Subject to a compelling reason why an additional two months are required, there is merit in curtailing that timescale.

[Mr Walker]

Committee members will know that it is usual practice and parliamentary procedure to allow two months before provisions come into effect following Royal Assent. The type of preparatory measures we might be referring to in this case could be the very changes to Assembly Standing Orders that we have debated. Nevertheless, I recognise the strength of feeling among Committee members.

The hon. Member for Sheffield, Heeley talked about recent events in Northern Ireland. The Bill was not brought forward as a response to recent events. It was brought forward as a response to NDNA and what was agreed between the parties. In terms of the time that has elapsed, she will know that Parliament has been extremely occupied with covid legislation, thanks to the pandemic, but we made a point of introducing this Bill early in this Session. We have also given the time for the Bill not to be rushed through as emergency legislation, but to be subject to full parliamentary scrutiny, which has been welcomed by all sides. That is good news and is all too rare an occurrence for a Northern Ireland Bill.

We are not minded to accept the amendment, but should the political context in Northern Ireland and an early commencement be beneficial for Executive stability, we are content for it to be considered in the other place. I urge the hon. Gentleman to withdraw the amendment for the time being and allow the process of parliamentary scrutiny to continue. Should the progress that we have seen today be repeated in the other place, and the level of cross-party support that we are seeing at this stage, I see no reason why they could not allow for an amendment of this nature to proceed.

Northern Ireland (Ministers, Elections and Petitions of Concern) Bill (Second sitting)

Gavin Robinson Excerpts

Committee stage
Tuesday 29th June 2021 Public Bill Committees

[Stephen Farry (North Down) (Alliance)]

Q It is a pleasure to serve under your chairmanship, Sir David. A very warm welcome to you, Sir Jonathan. I will largely pick up on your answer to the questions posed by Colum Eastwood. You are one of the very rare officials with long experience of Northern Ireland over several different stints in office, so you have that wider perspective. You indicated that there might be a need to revise the rules around the institutions at some stage. Do you feel there is a danger of the Northern Ireland Office almost operating on a reactive basis after a problem has actually arisen and then trying to patch it up, amend it and move on for a few more years before going back to the next crisis? Is there not an argument for trying to be a little bit more proactive and anticipate where pressure points are likely to emerge, to assess how society is changing and to act accordingly? In that regard, should we look at some of the rules around the election of the First Minister and Deputy First Minister, particularly in the light of the democratic change that we are seeing in society?

Sir Jonathan Stephens: In a sense, I agree with you, Mr Farry. I was indicating earlier that there had been significant change in Northern Ireland. At the time of the Good Friday agreement, the assumption was that there was a Unionist majority community, a substantial nationalist minority community and a relatively small but steady component who did not identify with the others. Since then, the situation has changed. It is more like two substantial minorities with a much larger, more significant and growing number of people who choose not to identify with either.

Over time, I think that will mean that a number of the arrangements need to be looked at again and examined. I am just conscious, having participated in a number of those discussions over the years, that that is not an easy task. It takes up a huge amount of political energy. Yes, there is a lot to be said for anticipating, rather than reacting to, crises, but Governments across the world, not least in Northern Ireland, have a number of crises right now to respond to. I simply suggest that right now does not seem to me to be a good time to undertake that significant and mammoth task, but I would be surprised if at some point in the next 10 years it is not on the agenda.

[Gavin Robinson (Belfast East) (DUP)]

Q Good afternoon, Jonathan. I will reflect on the question from the hon. Member for North Down. Of course, the Assembly and Executive Review Committee is the sort of place where you would ordinarily think these discussions at the moment should occur. Going to the NIO and expecting the Government to sort these issues out should be the last resort; it should be something that is foreseen and considered among parties.

I do not know whether you had the opportunity to hear the evidence session this morning. Some questions were raised about the lack of detail in the Bill as to what safeguards are in place if Ministers are in position and there is a difficulty in forming an Executive. You will know that the discussions during the negotiations focused on safeguards for issues that are significant, cross-cutting and controversial, which would ordinarily therefore go to the Executive, but with no Executive sitting, those decisions could not be made. It appears in one sense that there needs to be further detail in the Bill on what the pitfalls might be. One aspect that did not come out in the evidence this morning was the fact that Ministers normally operate after having gone through a process of reaching consensus on a programme for government. Any Minister without an Executive could therefore continue to bring forward decisions on that basis, and perhaps juxtapose that with an inability for Ministers to act and the difficulty that the Northern Ireland civil service found itself in during that three-year hiatus.

Sir Jonathan Stephens: The fundamental position is that the Bill essentially provides for a form of caretaker Administration in the absence of the formation of a full Executive. Without an Executive Committee or an Executive meeting—there cannot be an Executive without a First and Deputy First Minister—as you say, Mr Robinson, decisions cannot be taken on issues that are cross-cutting, significant or controversial. That in itself will be a significant constraint. During the absence of Ministers, cases were brought before the courts arguing that decisions had been reached without the required authority, and the courts policed that quite robustly. No doubt they will police these provisions equally robustly.

Although there might not be an Executive Committee meeting in place, there is likely to be agreement on a programme for government, even if it was of the previous Administration. That will provide an overview, as it were, of the direction of the Government under which a caretaker Administration would be able to continue to operate. I think there are protections in place, but I continue to come back to the point that no system is perfect, and there should be no doubt that the absence of a properly functioning Executive for the periods of time that could be possible under the Bill would itself have serious consequences, but at least we would not be in a situation where there was no direction and no decision making at all.

[Alex Davies-Jones (Pontypridd) (Lab)]

Q It is a pleasure to serve under your chairmanship, Sir David. Sir Jonathan, thank you for joining us this afternoon. Given your experience from the negotiations, are you concerned that the scope of powers is not clearly defined in the Bill and an Executive could essentially limp on without any broad cross-community support, but still would be able to make significant decisions?

Sir Jonathan Stephens: I think that is where the provisions in the Bill for the Secretary of State to call an election in the event that he judges that there is no longer broad cross-community support are critical. That underpins the whole basis of government in the Good Friday agreement, which is that Government should have broad cross-community support. If one ended up in a situation in which there were Ministers of only one party, that would be very unlikely indeed to command broad cross-community support, and you would expect the Secretary of State to step in. I think there are protections against that.

I have also identified the fact that if there is no Executive Committee meeting, because there is no First or Deputy First Minister, the ability of Ministers to take significant, controversial or cross-cutting decisions is heavily constrained. They cannot take such decisions, and the courts have already demonstrated their readiness to step in if they think that that boundary has been crossed. So this sets up a mechanism in which this is a caretaker Administration keeping the business of government and public services going, but unable to take it in new, strategic directions. So I think there are protections in place.

--- Later in debate ---

[The Chair]

Colleagues, we have scheduled 45 minutes for this session. Who would like to ask the first question?

[Gavin Robinson]

Q Good afternoon, Emma. Members will know you well from your time here, but those of us from Northern Ireland will know that you have been integrally involved in numerous iterations and negotiations over the years.

You know the Bill before us. Would you mind giving us your reflection on its provisions, the rationale for them as you see them, and whether you feel there are elements that have not been achieved or are worthy of consideration by the Committee?

Emma Little-Pengelly: My experience of the existing provisions comes from a more practical point of view, as well as the theoretical and legal aspects of the Belfast/Good Friday agreement and the Northern Ireland Act 1998. I had come in initially as a shadow special adviser to help prepare for the restoration of institutions back in 2007. That included working very closely with the drafters office and with machinery of Government elements within the Executive and the Departments in order to look at things such as the ministerial code, how the Executive should operate, and the guidance for Ministers and Departments in relation to what matters needed to come to the Executive. Also, it included issues such as the nomination of Ministers and the First and Deputy First Minister.

Over that period of time, from 2007, obviously we have had a number of significant issues and challenges. Very often they led to periods of negotiation. Much of those negotiations took place within the context of trying to talk about the technical details of the process in which we try to operate in Northern Ireland. It is a very challenging and difficult system to operate. It is a system where, at the very heart, arising from the Belfast/ Good Friday agreement, the key principle is consensus and inclusion. That is a very slow and difficult process for trying to come to decisions.

The key element to remember is that in Northern Ireland we do not have—and have never had for some considerable time since the Belfast agreement—a majoritarian system of government. Therefore, that principle is very much cooked into every part of the process, from the nomination of First and Deputy First Minister and what they can do, singly or acting jointly, to the way the Ministers operate in relation to the Executive. All of that is based on a process of consensus and a process of agreement. That of course means that at times we cannot get agreement, and that has been very, very difficult. Nevertheless, that is the system that we have had. It is the system that we have operated right up until very recently.

In more recent years, there has been a drive to change some of the elements of the Belfast/Good Friday agreement —in particular, around the concept of cross-community voting and consensus, and particularly around the safeguard mechanism of the petition of concern. When you look at the petition of concern, it is important to take a look, carefully, at the Belfast/Good Friday agreement. I listened to the evidence very carefully today. I strongly disagree with what was put across, for example, this morning by Daniel from the Committee on the Administration of Justice, in relation to the original intent of the petition of concern mechanism. I think that the proposal that this was supposed to be a very narrow issue, as opposed to it applying to all key issues, simply does not hold up to scrutiny.

I would ask everybody to take a look back at the Belfast/Good Friday agreement. The petition of concern is set out in the section referred to as Safeguards, and the Safeguards section that refers to the cross-community voting is entirely separate from the safeguard that sets out the ECHR and the equality protections. The cross-community component of that is set out in 5(d), under strand 1, and yet the ECHR and the equality severable obligations are set out in 5(c) of strand 1 of the Belfast agreement. Those are not conditional on each other; they are entirely separate. It was clear from the Belfast agreement and then the Northern Ireland Act 1998 that the cross-community consensus was to apply to all key decisions.

This is not just in terms of the basic reading of the Belfast/Good Friday agreement or the Northern Ireland Act. I think it is important also to look back at the Hansard for the passage of the Northern Ireland Bill in 1998 and the comments that were made about that Bill from all parties. I think the key thing here is that those commenting on that in the House of Commons were those who negotiated it. It was the Ulster Unionist party—David Trimble and others—along with the Social Democratic and Labour party representatives. It is very clear from reading the Hansard that no issues of concern were raised about the scope of the petition of concern and cross-community vote protections and safeguards as set down in the Safeguards section of the Belfast/Good Friday agreement.

[Gavin Robinson]

Q Thank you for that. To draw on some of the issues that were brought out this morning, there was a suggestion from Professor Tonge, for example, that the petition of concern could benefit from being amended so that you had support across the community designations, so that one community wishing to table a petition of concern would require support from another or the other designation, if I can put it that way. Do you have any reflections on that contribution or suggestion that was made this morning?

Emma Little-Pengelly: When you look back to the operation of the petition of concern—again, I referenced, in terms of the passage of the Northern Ireland Bill, as it then was, in 1998, the fact that no concerns were raised about the scope of those particular provisions. But likewise, when the Northern Ireland Assembly was established under the First Minister and Deputy First Minister leadership of the Ulster Unionist party and the SDLP, no concerns were raised at that time about the petition of concern. It was still difficult. When you look back at the history of the Northern Ireland Assembly and the various crises that we have faced, of course it is difficult, because the ultimate aim of those provisions, and the provisions across the Northern Ireland Act, arising from the agreement, is that they are all based on consensus building.

We have heard some reference about the petition of concern being used as a veto, but in reality it is used in a way that reflects the fact that there is not yet, or no, consensus on particular issues, and those are key issues, so where a petition of concern is used, it is an indication that an issue has been pushed forward without consensus. That is why, when you look at the new provisions proposed in this Bill—the idea, for example, of a 14-day cooling-off period for a petition of concern is, I think, very welcome. Gavin will know as well as I do that—look, the sustainability procedures and processes as part of the New Decade, New Approach negotiations were something that the Democratic Unionist party pushed very, very hard. We pushed because we could see that it does not benefit the people of Northern Ireland to be in a situation of perpetual crisis, particularly if those crises are manufactured by, for example, the tactical resignation of a First or Deputy First Minister. Ultimately, we do need stability, and stability within a very difficult process to operate. I think the 14-day period, now within this proposed Bill, will allow a period for people to get together to try to find a consensus way forward. That may be through amendment if it is legislation, or it may be by some further or different agreement. But at the very heart of this is the idea that because the institutions were set up to be very inclusive, from the very beginning there was a concern that significant minorities should not be forced to be part of either an Executive or Government in Northern Ireland where they were subject to continual majority decision making.

That applied right up until the point at which Unionism was no longer the majority. We have since seen concerted moves to try to remove that safeguard for significant minorities. The concern there is that yes, it is a difficult and frustrating system, but in Northern Ireland ultimately this will only work if you have that maximum consensus. As I understand from those who negotiated the Belfast agreement, and right through to those who negotiated the St Andrews agreement that modified and built on some of those protections, that at the heart of that is the idea that significant minorities should not be excluded, and that consensus decision making is the priority over a quick and simple majority system, which would exclude those people.

[Gavin Robinson]

Q Perhaps just one final question from me, Sir David, if you have a rake of colleagues now hoping to jump in. Questions have been raised around the lack of detail on safeguards for Ministers who find themselves remaining in position where the Executive is not fully functioning. Do you have any concerns about the provisions as drafted in the Bill, or do you feel that the safeguards from the St Andrews agreement around significant, cross-cutting and controversial decisions are sufficient in the circumstances?

Emma Little-Pengelly: I think that Northern Ireland have found themselves in this position on previous occasions, and in fairness, on those occasions all Ministers have respected that an Executive is not in place, and largely abided by and operated under the decisions previously agreed by it. I agree completely with what Sir Jonathan Stephens said on the safeguard of the courts, but as we know, the court process is long; it requires somebody to take a challenge and often ends up in Ministers taking legal challenges against Ministers.

I would have thought, though, that there is an additional safeguard in that Ministers in Northern Ireland are required to operate lawfully—they cannot step outside of that. If a Minister wanted to take a decision that was significant or controversial or cross-cutting, it is very clear from both the jurisprudence and the legal cases on this, and in terms of what was said at the time of the passing of the Northern Ireland (St Andrews Agreement) Act 2006, that a Minister has no power—there is no vires for a Minister to take a decision that ought to have come to the Executive under the terms of the St Andrews Act amendments. Therefore, a Minister could not take a decision on a significant, controversial or cross-cutting matter, unless that had already been agreed by the Executive.

In the situation that you have outlined, Gavin, there would be no way to form an Executive. Without the First Minister and Deputy First Minister, you cannot have an Executive meeting and therefore those decisions cannot be decided on because an individual Minister does not have the power or the vires to do that. Therefore, he would be operating ultra vires. I presume that the permanent secretary or the accounting officer of that Department would advise the Minister of that, and that the Minister could not proceed because that would be unlawful under those circumstances.

[Colum Eastwood]

Q Thanks for your evidence, Emma. You are absolutely right that the Democratic Unionist party pushed very hard for a lot of the provisions around sustainability during the negotiations, and some of us had some concerns about it, but I absolutely agree with you that there have to be some mechanisms for keeping the show on the road. Nobody should be threatening to pull down institutions. Of course, it was Sinn Féin that walked out the last time. Does that go as well for the DUP when it comes to issues like the protocol?

Secondly, you and I will disagree about the purpose of the petition of concern and when it should be used and so on. You have said, now that Unionism is no longer a majority, there are moves to take away safeguards like the petition of concern. What did you think, then, when Arlene Foster suggested removing it as a mechanism altogether during the negotiations?

Emma Little-Pengelly: First, to be fair to the Democratic Unionist party, I should make it clear that I am not here as a spokesperson for the DUP, so I cannot comment on the particular issues of the current situation. What I can say is that the DUP, along with many others, has, over the years since the Belfast/Good Friday agreement, pushed for a better form of government, as you will be aware, very much around trying to put better democracy in that and a better system that is not so slow or difficult to try to get agreement through.

There is a real issue around protections and safeguards. It is notable that the petition of concern is in the safeguard section. It does apply to all key decisions. That is the system that was set up—purposely difficult, I suppose, one might say—to ensure that there was maximum buy-in. What we are rapidly seeing is that people now have a particular policy proposal, they get the majority for it and they want to push that forward, against the will of significant sections of the other community.

People need to get back better to fundamental consensus policy making. Potentially we have lost that over the years. As I said, it is slow but there is a benefit to that. When you look back to the original point about intent, it is important to point out that equality and human rights are very well protected, cooked in right across the system.

If you look back to the narrative around the Belfast/Good Friday agreement, including the discussions and the debates in the House of Commons on those matters, you will see that the key safeguards lay with the establishment, under the agreement, of the Equality Commission for Northern Ireland and the Human Rights Act, which at any time can give advice or perhaps even take a legal challenge against a Department or the Northern Ireland Assembly—certainly give advice on that.

Importantly, the Northern Ireland Assembly is set up but it does not have competence to deal with matters that would be in contravention of the European convention on human rights or equality legislation. I understand that your evidence will go on next to the Speaker. The Speaker will have a legal team, so it is not even a case of a discretion. The Northern Ireland Assembly, certainly even set down in the agreement and the Northern Ireland Act, emphasised and safeguarded even further in the Human Rights Act 1998, has no power to legislate in a way that is in violation of that. A piece of legislation should never be introduced where there is a decision by the Speaker’s legal panel that is in contravention of that.

What we have seen subsequently is that people will have a range of views about whether something is a breach of human rights, which is very different from whether it is legally a breach of human rights. Of course, that is an evolving issue. There are safeguards there already, but I would also point out that the party of which Mr Eastwood is a member did not raise any concerns about the scope of the petition of concern at the time of the passing of the Northern Ireland Act, nor in the first decade of the Northern Ireland Assembly’s operation, and the operation of the petition of concern. This is an issue that has emerged over the past number of years, on the briefing from the likes of CAJ and others. There was no indication on the record—Hansard or elsewhere—that there was a concern about this.

To go back to the Belfast/Good Friday agreement, the obligations under strand 1 5(d) are completely separate from the obligations under strand 1 5(c). They are severable. Of course, they can be linked through the special process, which has already been outlined to you, but they are separate. It is very clear from both the spirit and the detail of the Belfast/Good Friday agreement that cross-community consensus was to apply to all key decisions.

--- Later in debate ---

[James Sunderland (Bracknell) (Con)]

Q Mark, thank you for appearing before the Committee. Politicians generally agree that the Good Friday agreement was a good bit of work. It was successful, it has endured to the present day, and there is lots of confidence in it for the future as well. We know there are some relative threats to it at the moment, not least the Northern Ireland protocol and possibly the forthcoming statute of limitations on legacy—the list goes on. Can you assure the Committee that the Bill does not pose any threat to the Good Friday agreement? If there is a threat, can you explain what it is?

Mark Durkan: In terms of the agreement, the Bill is meant to uphold and follow through on understandings that were reached by five parties and the two Governments in the NDNA, and that was the price of getting devolution restored. I look at the Bill not as something that is going to directly damage the Good Friday agreement. I would say it is something that does not go far enough to restore and repair the Good Friday agreement, to correct its standing. What is missing is the true correction correcting the original architectural flaw in the original 1998 legislation around the petition of concern. What is in the Bill about qualifying the use of the petition of concern is helpful and good, but it does not go far enough to correct the basic architectural flaw about the absence of the special procedure and the focus on equality and human rights, so that is something that could be improved.

Likewise, in terms of the appointment of First Ministers, I would prefer legislation that restored the factory setting of the Good Friday agreement and allowed for the joint election by the Assembly of joint First Ministers. That is going to be particularly important coming up to the next Assembly election when there will be all sorts of speculation about the possible permutations of numerical strengths of different parties. The terms that were fixed at St Andrews say that the biggest party in the biggest designation gets one nomination, and the next nomination goes to the biggest party in the next biggest designation, but they also provide for the fact that if the biggest party is not in the biggest designation, it will get to appoint the First Minister, and then the Deputy First Minister will go to the biggest party in the biggest designation. So, you can see areas where parties will speculate that they might score very highly in the election in terms of seats but end up, because of St Andrews, being disqualified from the exclusive nominating rights that are fixed. It would be much better if the whole Assembly, as elected at the next Assembly election, had the responsibility of jointly electing First and Deputy First Ministers, and if all parties had responsibilities for making the Government work, rather than being able to say, “It’s the problem of those two parties,” which are preassigned those two nominating positions by the random results of the election. Nobody else can be nominated to anything without the First and Deputy First Ministers being nominated.

The repair work that could be done and the prevention of some pretty serious anomalies or absurdities that could potentially arise after the next election have not been achieved by the Bill. I do not think that we should be precluded from thinking that through further, in order to avoid an impasse after the next election.

[Gavin Robinson]

Q Good afternoon, Mark. I do not agree with all of your evidence, but I certainly enjoy the fact that you have not lost your unique turn of phrase. I have been following very closely. On some of your comments concerning human rights and equality, you will remember the negotiations that led to the deal that was not a deal, which you and I were involved in around Stormont Castle. We had interesting discussions about the petition of concern and so on. Do you still accept that it is impossible for the Assembly to consider a Bill that has not been screened for equality and human rights impacts, and that the Assembly cannot progress or pass a Bill that is in conflict with human rights or equality legislation?

Mark Durkan: I do not fully accept that. The whole point about the petition of concern at the time was to ensure that we had—I used this phrase earlier—joined-up scrutiny and that we would make sure that there could be a connection between the quality of Assembly consideration and the advice or evidence that might come from the Equality Commission, the Human Rights Commission or indeed others.

Remember that the whole promise of the Bill of Rights in the agreement was very much a promise to citizens. That is one of the reasons I lament the absence of a Bill of Rights. When we were negotiating the agreement, our thinking was that the reliance on things like the petition of concern would reduce in circumstances where you had a live Bill of Rights and the good custom and practice of people being able to exercise their own challenges. Parties would not then have to rely on some of these other designation-related devices. It was there for a reason. Yes, the agreement and the legislation are clear about the obligations around rights, including the European convention on human rights. But the logic and strength of that has been watered down by much of the legislation that has happened since Brexit, because the European convention on human rights does not have the same strength of standing in Northern Ireland after some of those bits of legislation as it did.

We are in a bizarre situation whereby a public authority can say to a Northern Ireland Minister, “You cannot ask us to breach the European convention on human rights,” and they are within their rights to do so and to challenge any request, demand or pressure by a Minister or Department to so do. But they will not be in a position to so challenge a demand or instruction from a Minister of the Crown under, for instance, the United Kingdom Internal Market Act 2020. Those instructions can apply directly to Departments in Northern Ireland or to other public bodies. What was envisaged in the Good Friday agreement, which Mo Mowlam in particular put so much work into the wording and strength of, is now diminished. I would like to see it restored.

[Gavin Robinson]

Q You know that the European convention on human rights is there in the Belfast agreement, and the Human Rights Act in the UK was passed some months after and came into operation in 2000. As part of that, for any challenge that is brought within Northern Ireland, our courts have to consider the jurisprudence of the European Court of Human Rights in assessing the application of the Human Rights Act. Does that diminish your concerns in any way? Does that give you more reassurance? You mentioned earlier in your evidence that you could not go to court and rely on the convention, but you seemed to not ignore but maybe not reflect on the Human Rights Act and the part of it that specifically requires our courts in Northern Ireland to consider the jurisprudence and case law of the European Court of Human Rights.

Mark Durkan: Yes, and the courts in Northern Ireland are given under the agreement the power to strike down legislation of the Northern Ireland Assembly on the grounds of incompatibility. They do not have the power to strike down legislation from Westminster, for instance. They do not have the power to strike down decisions that might be taken by a Minister of the Crown under something like the United Kingdom Internal Market Act. The decisions of a Minister of the Crown cannot be challenged in the courts. The UK Internal Market Act specifically provided for there being no challenge in the courts of Northern Ireland, or indeed in any other courts, on that basis.

That knocks a pretty big hole in the intended effect of the commitments on the European convention on human rights, which was provided for as part of the Human Rights Act. When negotiating the agreement, one of the reasons we were able to agree that the work on the Bill of Rights was something that would be for the future—for the next few years—was that a bird in the hand was worth two in the bush. The promise of the European convention being available and accessible in the domestic courts in Northern Ireland, on the basis of the Human Rights Act, meant there was a starting point—there was already a starter for 10—as far as rights protections, alongside the institutions, was concerned. But the intent and the expectation was that there would also be some additional rights that would go alongside the European convention and that, together, those rights and the European convention would constitute a Northern Ireland Bill of Rights.

It would have been good to achieve that. I think it would also relieve the temptation that parties sometimes feel to use devices like the petition of concern and other structural blocks in the name of saying they are reserving or protecting rights, when they are actually preventing decisions. The more robust and articulate a Bill of Rights that can be taken to the courts, the better for the decision-making processes.

[Gavin Robinson]

Q This is perhaps slightly outside the scope of the Bill—Sir David, you can strike me down if you wish—but on the issue of a Bill of Rights, as you know, Mark, the agreement provided that the Human Rights Commission would bring forward proposals at the request of the Government, and it did and you reflected that there was not consensus at that time. What it was asked to bring forward was additional rights framed particularly because of the unique circumstances of Northern Ireland. It may fall outside the scope of your remit or interest, but what sort of issues do you think fall within that category of being unique issues to the circumstances of Northern Ireland now, in 2021, today’s era?

Mark Durkan: The word in the agreement is not “unique” but “particular”. From my memory, that was because one negotiator in particular and one party would have voice-activated apoplexy any time anybody said Northern Ireland was a “unique situation” or “unique”. George Mitchell, Ministers of both Governments and all sorts of people found themselves seized with this fierce reaction to the suggestion that we were unique. “Particular” was, apparently, allowed, so that is what is there.

In the wording of the agreement, we did not specify—we did not give lists of examples of the particularities—and that was simply because we did not want to turn that section of the agreement into a sort of sin sheet, whereby we would each record or voice sensibilities about rights breaches or perceived rights breaches that had been endured, either through governmental or non-governmental and other actions.

Obviously, Northern Ireland does have very particular circumstances. At the time we were negotiating the agreement, there was a lot of talk around group rights. For instance, people were talking about that in relation to the parades issues, from two different sides and two different senses of rights. They were partly being talked about there, but we were not writing that specifically into the agreement.

Obviously, there is a statement in the agreement that makes a commitment—a kind of “from here on in”, future-looking commitment—around certain rights in Northern Ireland. Some of those touch on some of the issues that maybe are not dealt with in this Bill but are dealt with in other aspects of NDNA.

[Gavin Robinson]

Q Finally, Mark, you reflected on your disappointment with the Civic Forum. I think you know that we are probably in a different space from that, but as part of New Decade, New Approach there was an agreement, outside this Bill, to incorporate civic co-design in policy making and so on. Do you think that that was a useful step forward as part of the overall discussions in New Decade, New Approach, although I recognise that you still want to see the re-establishment of the forum itself?

Mark Durkan: I think you can have both—it does not have to be an either/or. The forum having its own standing is good—it can take on work, particularly long-term work that may need careful framing of options and choices, and scoping out some of the issues and potential problems. We saw the forum as something that could do that, but we do not think it is the only form of civic engagement or input that there should be.

Let us not forget part of the success of a different aspect of the agreement in terms of policing—the Patten plan. We think the role of the independent members of the Policing Board was part of the strength of making that new beginning for policing happen and succeed during some very challenging times in the early days of the Policing Board and some challenging issues, in terms of the Omagh bombing report and the issues around, “I’m retiring; no, I’m not retiring”, by the then Chief Constable. The independents had a key role alongside the elected representatives. That is something that we can replicate in other ways. When it comes to prelegislative scrutiny in the Assembly, for instance, there is no reason why members of the public with particular policy insider expertise and credibility in given policy communities should not be there alongside MLAs.

There are different models and options, but there is certainly a big appetite among the public for it to be not just politicians alone who decide those things—or, more often than not, fail to decide them—and then recriminate those who are to blame.

[The Chair]

If there are no other questions from colleagues, I call the Minister.

--- Later in debate ---

[Claire Hanna]

Q I want to pick up on an issue that has been discussed today by a number of witnesses: the processes that were envisaged originally regarding the use of the petition of concern, but that have not been regularly used, such as this Ad Hoc Committee on Conformity with Equality Requirements. I remember, from my time in the Assembly, a previous committee being in place for the POCs on welfare reform. What has been the thinking around those? There was a difference in opinion on whether they were required or discretionary. What is your analysis?

Again, I suppose this is relatively moot in your term, Alex, because the POC has not been deployed while you have been in post, but what is your understanding of the requirement for those Committees to be established under the current framework?

Alex Maskey: You know that as part of the Good Friday agreement, that framework was agreed, but it was never, if you like, replicated in the Assembly. Speaking as someone involved in the Good Friday agreement, that was one of key areas people were focusing on to make sure we built the new instructions on a proper framework. However, it is a statement of fact that they are not there, not used and not in place at the moment. I spend every other week in the Chamber, busily telling people, “I have no role over that,” in terms of the code of conduct, for example.

On what you are requesting, Claire, I would have liked the provisions in the Good Friday agreement to have been faithfully implemented across the board, and that would have applied to these provisions as well. The fact they are not means that I have to deal with what is in place within the framework, the Northern Ireland Act, and our own Standing Orders, and I will faithfully deliver on those.

[Gavin Robinson]

Q Good afternoon to all three of you. Alex, you mentioned that you did not want to engage in suggesting solutions, or do not see that as your role. You highlighted the issue of the 14-day consideration period for a petition of concern. Those are really issues that may arise in extreme circumstances where there is a legislative deadline, or there is some urgency to matters proceeding. From what you say, the frailty in the legislation is that there is no indication that the petition can be rescinded if a resolution is found, say, two, three, four, five or 13 days into that 14-day period. Would that option to withdraw the petition satisfy the concerns that have been raised either through your officials or the Office of the Legislative Counsel?

Alex Maskey: On one level, it could possibly help, because it would remove the issue. If you were to remove it, then you do not need to deal with any consequences. Gareth said earlier that we have identified a number of issues that could be impacted, such as the LCMs, but there are others we may not have detected yet. I suppose it could go some way towards solving it.

[Gavin Robinson]

Q May I ask Lesley or Gareth if those are discussions that you have had with the NIO? Or as Mr Speaker says, are you highlighting the problems as you see them and looking to the NIO to bring solutions?

Lesley Hogg: We have really highlighted the problems; these are political solutions that are you are trying to identify. Many of these have been ongoing for a number of years. We have highlighted that there is an issue. There is no easy solution, but we are happy to continue to work with officials to see if we can come up with anything.

Dr McGrath: Mr Robinson, I would just add that former Speaker Hay wrote in 2009 that the tabling of a petition of concern is a serious and important procedural step that has the effect of raising the bar. From an Assembly perspective, you hope to avoid the law of unintended consequences with all of these. For example, you could imagine that making it easier for Members to withdraw a petition of concern could potentially increase the number tabled. Given that 116 petitions of concern were tabled in the 2011 to 2016 mandate, one in the 2016 to 2021 mandate and none in the last 18 months, the Committee will want to consider the law of unintended consequences.

[Gavin Robinson]

Q Alex, I hope you do not mind, but the hon. Member for Belfast South asked you about the petition of concern and some of the equality and human rights aspects. Leaving aside the petition of concern, if legislation was passing through the Assembly, and somebody raised an issue to do with the declaration that it is compatible with human rights and equality legislation, how would you deal with that, procedurally? If someone raises the concern that the declaration on the face of the Bill is erroneous, do you have a process that you can use, or can the Office of the Legislative Counsel look at it?

Alex Maskey: First of all, as you know, the Speaker has the role of verifying or confirming whether a Bill is competent in the first instance, before it is introduced. Once it is introduced, I would refer that to the Human Rights Commission. The Assembly also has the right, which was exercised recently, to vote to make sure we do refer something; it is a bit of an additional belt-and-braces provision. The Assembly can vote to refer a Bill or a measure to the Human Rights Commission at the outset, so it would always be referred in the first instance to the legal team, who would look at it from a perspective of rights, as well as considering all other matters of competence. Of course, additionally, we then refer it to the Human Rights Commission. The provisions are there, and they are acted on in each and every case.

[Mr Walker]

Q It is good to see you and your team again, Mr Speaker. As Speaker of the Northern Ireland Assembly, you will be better placed than most to appreciate the importance of having the Assembly up and running and legislating again after three years of absence. In your opinion, overall, does the Bill safeguard the institutions in Northern Ireland, and support them in working collectively for the benefit of the people whom they are there to represent?

Alex Maskey: I certainly hope that anything that we do would lead to that outcome. As I said at our meeting, Minister, with the political will, we can resolve most of the matters, if not all of them. Unfortunately, occasionally we have not been able to resolve matters, including, as I said, when it came to an Opposition Bill passed a number of years ago; it was put forward by John McCallister. There was no cross-community agreement to enact a Standing Order to apply that. That might seem odd or unusual, and it probably is, but the fact of the matter is that we did not get an agreement.

At our meeting and in correspondence, we addressed the fact that the first item of business of an Assembly is electing the Speakers. With the six-week ruling, and the six-week period of delay envisaged in the Bill, theoretically, the Assembly could meet after six weeks, and if it could not be formed at that time or could not fill the offices, then it could close down for the next six weeks, but if we do not get a Speaker in place—if we do not have that agreement—we cannot even move to that point. With political agreement and common sense, you would imagine we could resolve these matters. We have only drawn attention to these matters on a cautionary basis because of our experiences; in the past, we have not even been able to pass a number of important matters on the basis of cross-community support.

Since taking up my post, I have routinely been on record reminding Members that we have a very important job to do, as guardians of the legislature, in holding the Executive to account. However, it is also by way of being our business to secure and try to maintain public confidence in the institutions. If we can do anything to maintain the sustainability of the institutions on the basis of the integrity of NDNA and previous agreements reached, I think we will be doing a good job. Anything that helps us to perform our duties in a way that maintains and builds public confidence, we need to embrace.

Northern Ireland (Ministers, Elections and Petitions of Concern) Bill (First sitting)

Gavin Robinson Excerpts

Committee stage
Tuesday 29th June 2021 Public Bill Committees

[James Sunderland]

Thank you.

[Gavin Robinson (Belfast East) (DUP)]

Q Good morning. Mr Holder, will you reflect on your repetition that these provisions will bring us back to what was intended on the petition of concern? You have tried to contextualise what you believe was intended, but may I ask you to provide us with your authority for what the Belfast agreement says on the intended purpose of the petition of concern?

Daniel Holder: Certainly. We have done a number of papers on this, which we have fed into the negotiations that led to the re-establishment of it. In summary, we think that what is in the Belfast agreement as the petition of concern was set up as a safeguard to ensure that all sections of the community are protected and can participate in the institutions. That was linked expressly to conformity with equality requirements, specifically, as I have said a number of times, the ECHR and the Northern Ireland Bill of Rights. The provision for cross-community voting was also linked to that.

The Good Friday agreement provides for a special procedure committee, which would be a committee with full powers. It would be established to examine and report on whether a measure or proposal was in conformity with equality requirements, including the ECHR and the Bill of Rights. That committee must be convened when a petition of concern is tabled, unless there is a cross-community vote to the contrary.

In our view, it is very clear that that was the original intention of the Belfast agreement. I do not think that the custom and practice of it not operating properly through this time is sufficient to suggest that that should be viewed differently. Essentially, the original intention of the agreement has been departed from. It is now, but was not supposed to be, essentially, a subjective political veto; it was supposed to be tied to more objective criteria.

We always go back to the fact that—plus sometimes the difference of views—you cannot just make up human rights, ECHR rights or the rights in the Bill of Rights. They would largely reflect the existing human rights commitments of the UK, albeit not in an enforceable format without the Bill of Rights. Therefore, you bring in a level of objectivity, with the same function that the Joint Committee on Human Rights would have, in that the special procedure committee may seek advice from the Human Rights and the Equality Commissions that were established under the Belfast agreement as to whether a measure or particular piece of legislation offends those standards.

Of course, there is a weakness, that a party or parties could just ignore the expert advice and the determination as to whether a particular measure breaches those equality standards and vote to the contrary anyway. However, the original intention was very much to make that linkage. It is expressly on the face of the agreement.

[Gavin Robinson]

Q Although expressly on the face of the agreement, it states that a special agreement may be established, but there is no requirement—it was not mandated to be so. Do you accept that?

Daniel Holder: If you read paragraph 13 of strand 1 of the Good Friday agreement it says that, when a petition of concern is tabled,

“the Assembly shall vote to determine whether a measure may proceed without reference to this special procedure. If this fails to achieve support on a cross-community basis...the special procedure shall be followed.”

The agreement expressly says that the special procedure committee must be established each time a petition of concern is tabled, unless there is a cross-community vote to the contrary.

[Gavin Robinson]

Q But, of course, we all know in Northern Ireland the good phrase, “cherry picking”, and you cannot outline the provisions of paragraph 13 without considering those of paragraph 11, which start:

“The Assembly may appoint a special Committee”.

Is that correct?

Daniel Holder: I am fortunate to have the relevant paragraphs in front of me; yes, but—

[Gavin Robinson]

You can take my word for it, Mr Holder. I will move on.

Daniel Holder: No, I do have the relevant paragraph in front of me but, Mr Robinson, that is referring to other occasions when the Assembly may establish this particular committee. For example, the special committee on equality requirements can be established for another reason. There is one example of its ever being established, for the Welfare Reform Bill. That was on the basis of a petition of concern, from a referral from the Bill Committee dealing with welfare reform. The Assembly can establish this Committee for other reasons, and you are right to point to that being permissive. However, it is not permissive when a petition of concern is tabled; it is mandatory, unless there is a cross-community vote to the contrary.

[The Chair]

I have two Members indicating that they wish to ask questions, and there are nine minutes left, so I will move on.

[Gavin Robinson]

Do you mind, Mr Stringer, if I ask one question of Professor Tonge?

[The Chair]

If there is time at the end, but I want to see if we can get everybody in.