Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Bew Excerpts

2nd reading
Wednesday 23rd November 2022 Lords Chamber

[Lord Bew (CB)]

My Lords, I want to say some words in favour of this Bill. One might assume that we had a situation at present that was viable. I very much sympathise with the noble Baroness, Lady O’Loan, and others who have looked at the word “reconciliation” and said that it is tossed around in the Bill in a way that is not entirely convincing, to put it politely. I absolutely understand that, but the truth is that we have an entirely rancid situation in Northern Ireland. The continuation of lawfare is just a contributory to what is perfectly obvious to anybody who pays the most casual attention to public opinion in Northern Ireland: there is an increasing mutual contempt between the two communities. There is a reason why the Government are trying to introduce this Bill. I fully accept the point from the noble Lord, Lord McInnes, that in part it is to do with a manifesto commitment and the issue of veterans, but it is also to do with the fact that the status quo is simply not tolerable, and in our discussions I think we should acknowledge that.

I was very impressed by the introduction to the Bill from the noble Lord, Lord Caine, not just because of the careful and calibrated way in which he spoke and acknowledged the difficulty, even the anguished way he spoke, but also the precise way that he spoke. But he did not really have much effect on the broader tone of the debate. As the debate went on, we learnt that the Bill was obscene and again and again it was said that it was depriving people of hope.

The noble Lord, Lord Hain, talked about Pinochet’s Chile. Perhaps it is because I was at Cambridge with people who suffered under Pinochet, I thought that was a slight stretch. I accept that the noble Lord was a remarkably effective Secretary of State. He has made it clear tonight that he is on a journey and that he has now modified some of the positions he previously held on this matter in the light of his hopes for what might come from the Boutcher inquiry. I must say, as someone who knows Jon Boutcher, that that is a big wager; it is a Pascal’s wager of a big sort that that inquiry will somehow challenge the terms of this debate, for all the brilliance of his police work. Everybody who knows about his career in London knows that he was—indeed, still is—a very fine policeman.

This language is striking and so different from the tone that the noble Lord, Lord Caine, adopted in an attempt to be precise and face up to difficulties. Again and again tonight, reference has been made to the fact that there were sexual crimes. In fact, the Government have tried to move on this; it is there, but you would not know it from anything that been said in the past two or three hours.

The crucial thing, above all, is that I find myself thinking again and again about the friend of the noble and right reverend Lord, Lord Eames, at the time of the initial report, which he has talked about so eloquently tonight. Everybody knows that his friend, Denis Bradley, is no particular friend to British Governments. When this Bill was published and it was clear that the Government were going to act in this way, did Denis Bradley talk about “obscene”? Did he talk about depriving people of hope? No. He went into a television studio and, to the annoyance of people who expected him to use that sort of language, he said, “There is no realistic hope. Politicians are merely playing a game if they try to defend the idea that there is hope somehow. They are making a public display. They are actually misleading people.”

It is important to remember the tone with which he spoke at that time. He said, “We cannot deliver more justice now, but we may be able to deliver more truth”; again, that is part of the thinking behind the Bill. That is what Denis Bradley said in the immediate aftermath of this Bill’s publication—quite different from the tone of so much of what has been said tonight, but at least it respected what the Government are trying to do. I am absolutely certain that, if he were here tonight, he would say, “There are loads of things in this Bill that I really don’t like,” but that is a different point. The noble Lord, Lord Caine, has already acknowledged that there are problems in the Bill and creative work will have to be done to sort it out. However, given the tone of what we have heard, it is worth remembering Denis Bradley’s initial response.

Again, the reason why I am sympathetic to the sceptical talk about reconciliation is that I was a historical adviser to the Bloody Sunday tribunal. As historical advisers, we all thought, “This is it. The Government’s great failing is that they won’t fess up to the things they or the state did wrong. We will put a line under it.” When the report came in, David Cameron made a fine speech, partly drafted by the noble Lord, Lord Caine, fessing up to what the British state had got wrong. The hope was, “Well, that’s it. That’s a dividing line. People will accept that we’re not afraid to criticise ourselves or our state’s performance.” The hope was that things would move on and the mood in Northern Ireland would change, but the mood did not change at all. It is as simple as that. I accept that it was a fine industry for the lawyers who worked in it, but the mood of the people did not change at all and the impact that David Cameron was aiming for in his speech ultimately amounted to zero. I am prepared to accept that it would have been worse had he not given that speech. But that is why I accept the talk that it is going to be difficult to achieve reconciliation and why I respond so sympathetically to what the noble Baroness, Lady O’Loan, said.

However, it is important to understand that the status quo is radically unacceptable, defective, and helping to create an increasingly rancid and divisive public mood in Northern Ireland. At this point, the Bill has unified both communities, but it is a false unity. They each simply want the terrorists of the other community to be brought to law. The unity disclaimed against the Bill is not a real unity.

What has surprised me most this evening is how the Supreme Court ruling in the McQuillan case in December 2021 has not been discussed in any serious way. It has a very significant impact. The headline in the Times law report on 10 January stated that the Supreme Court had said that Northern Ireland police are not required to reinvestigate incidents from the Troubles. That is not being said by the Minister or the British Government, and nor is it a clause in this Bill. It is a very firm statement of Supreme Court policy.

I am sure that there is debate about this, and that many do not like or accept it, but it is a Supreme Court—

[Baroness O'Loan (CB)]

Does the noble Lord accept that the Times headline writer might not have been quite accurate, and that the judgment in the McQuillan case might have been slightly more complicated than that?

[Lord Bew (CB)]

It is no more inaccurate than any other headline that I have seen. I accept that it is a complex ruling. However, the Northern Ireland police force issued a statement after the judgment:

“The Police Service welcome the clear legal ruling that there are no legal obligations arising from Article 2 ECHR to investigate these cases. We will now carefully consider the judgments and their impact on the legacy caseload.”


The Government have been attacked for depriving people of hope but, at the minimum, fairness requires us to say that the Supreme Court is depriving people of hope. Only this week we have had an attempt to assassinate two policemen, and serious business with loyalist paramilitaries. Anyone who thinks that the Northern Ireland police force does not look at that ruling and think it significant—and significant enough to be mentioned in this debate—is living in cloud-cuckoo-land. Yet apparently, no one thinks that because it is better to say that this Bill is obscene, is depriving people of hope, et cetera.

I am insistent because we have a problem. The public debate in Northern Ireland now—the way that lawfare operates and the way that these cases are now exhumed on a regular basis, which the Government are responding to—does not relate to what happened in the Troubles. To give a very simple example, the RUC, as was, suffered 309 deaths. It killed 53 people, including 10 of its own in error, carrying heavy weapons in police cars and so on. RUC officers were killed at five or six times the rate of their killing. This is very crude but factual. The killings committed by the republican movement were something like five times the rate of their own deaths, but no one would know that if they looked at the cases running through the courts in Northern Ireland, and at how lawfare was operating. No one would consider that to be the balance of killing and of suffering. Nobody would know that.

That is the problem that we are trying to address with this Bill and why I am willing to give it a degree of support. It is not in doubt that there are problems with the Bill. The Minister has made it clear that the problems are significant. The House can do a lot of work to improve it. Yet everyone must remember that the Bill does not exist on its own but alongside a Supreme Court ruling that unquestionably moves the dice—moves the balance. There is no question that it does that. It may not move it 100%. There may be requirements for other developments, but it certainly moves the discussion in a way that we have not acknowledged in several hours of debate tonight.

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[Lord Bruce of Bennachie (LD)]

My Lords, it is a privilege to follow the noble and right reverend Lord, Lord Sentamu, with that interesting comparison because everybody has said that the one thing the Bill does not do is promote reconciliation. We certainly need to have a debate about what would promote reconciliation.

I join others in showing appreciation to the Minister for his opening speech. I think we all genuinely appreciated his sincerity. When he said that the Bill is challenging for us and for him, it was pretty obvious that there was a very sincere situation. He has our sympathy, which is perhaps not what he wants, but I believe he will get engagement. What we will get at the end of it is obviously yet to be determined, but it is important to put that mark down.

Another thing that has been said is that the term “Troubles” is euphemistic. It is a terrible understatement for what was a bloody conflict. It convulsed Ireland and Northern Ireland for 30 years and has left, as we now appreciate, a tragic and very complicated legacy. It is also worth saying that while none of us who live on the mainland can possibly appreciate what it did to the communities in Northern Ireland—we have heard so much about that and all appreciate the contributions made—it has left deep scars across the whole of the United Kingdom. This is not just because of the atrocities committed in Great Britain. In so many meetings over many years just as a local MP, I heard the sense of inadequacy, guilt and despair at the conflict and the inability to bring it to an end. I think that affected people right across the UK; we were just so used to news bulletins about another bombing or shooting, and we wanted it to stop.

The Good Friday/Belfast agreement laid down hope for the whole of the UK, as well as the island of Ireland. The question now is: will we be able to celebrate the 25th anniversary of that agreement with a process of reconciliation and a functioning Executive and Assembly? That would attract well-wishers from across the world. Right now it does not look likely and if not that, what?

Reference has been made to the Stormont House agreement. I recognise that the Ulster Unionist Party said that it did not support the agreement but, as the noble Baroness, Lady Smith, said, I hope it did not reject the basic principles: any legacy solution should promote reconciliation and uphold the rule of law; it should acknowledge and address the suffering of victims; it should facilitate the pursuit of justice and be human rights-compliant. That is surely not a point of contention.

The other thing we are all concerned about is the switch in the Government’s position. At the 2017 general election, the Government said:

“We … continue to believe that any approach to the past must be fully consistent with the rule of law … Conservatives in government have consistently said that we will not introduce amnesties or immunities from prosecution.”


That was said by Karen Bradley, the Secretary of State at that time, but we have had an election since and the world has changed. The Minister has been here throughout that and will of course have his own appreciation of that change and development.

I think all of us accept the views of some that the uncertainty over possible prosecutions of service and security personnel causes stress and anxiety—of course it does. But surely that does not justify setting aside human rights issues and the rule of law; it cannot do so. We have to recognise, as the noble Lord, Lord Hain, did, that the security forces did an incredible job, took huge casualties, were brave, saved lives and kept the peace, but some of them clearly did not conform. In fact, it is in the interests of the overwhelming majority who performed absolutely professionally that those who did not should not be given absolution.

It is important to say that this is not simply a domestic issue: it affects our reputation as a nation and an upholder of human rights, as the noble Lord, Lord Browne, said. We uphold human rights and the rule of law, but this has been seriously damaged by the conduct of this increasingly discredited Government who, as the noble Lord, Lord Anderson, said, now think that law should just be taken into account, rather than respected and followed.

I was a member of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe—its political wing, if you like —and I am concerned when I hear debates within certain sections of the Conservative Party calling for Britain to withdraw from the European Convention on Human Rights, alongside Belarus and Russia, the only non-members of that organisation. I am glad that Dominic Raab said that he does not think that useful, but that was not a robust defence of our membership, nevertheless. The idea that we should do that is unconscionable, and a dying Government with no mandate have no right even to consider it.

The problem, which has been mentioned, is that all of this should be happening in a debate among the elected representatives of Northern Ireland, who need to make an honest assessment of the role. We are here because they are not there, and that simply has to stop.

The Minister said that he has had many meetings recently, and I believe him; he probably listened and engaged sincerely and genuinely. But the fact is that the stakeholders are all saying that they have not been properly consulted and certainly have not been listened to, perhaps apart from in their engagement with the Minister. So we have to recognise that the Bill is supported by no one in Northern Ireland. I say to the noble Lord, Lord Bew, that it is not good enough to say that, because they all have different motives, the fact that they are united against it is not valid. For a Government to pursue a Bill that no one in Northern Ireland supports shows total contempt for devolution, as the noble Lord, Lord Alton, said. It is unacceptable.

[Lord Bew (CB)]

I absolutely take the point the noble Lord is making, but some polling suggests that significant groups on both sides of the community do want to draw a line under this dispute, to use that horrible phrase. I am not suggesting that it is a majority, but you cannot deduce from the political parties their hostility. Do not forget what I said about Denis Bradley. The parties are playing a game whereby they apparently offer justice to people, but realistically there is no chance of justice. So you cannot deduce anything from the parties’ positions. Some of the polling is more mediated, and there is the position of the veterans’ groups, which has been referred to.

[Lord Bruce of Bennachie (LD)]

I do not for a minute dispute that people have different motives for their objections, and they may have motives that I do not like or respect. But it is indisputable that no political party in Northern Ireland supports the Bill, yet the Government say they are determined to legislate against the wishes of all of the elected representatives of Northern Ireland. I repeat: those elected representatives should be sitting in Northern Ireland—

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Bew Excerpts

Committee stage
Tuesday 24th January 2023 Lords Chamber

Finally, I move to Amendment 136, which requires the provision of adequate resources for the commission. The cases arising in 1966 to 1998, as defined in the Bill, occurred very significantly during the period when Northern Ireland was subject to direct rule. We did not have our own Assembly and the UK Government were running the show: things happened on their watch. It is therefore incumbent on the Government to ensure that the resources are provided and not require those resources to be provided by the current Government of Northern Ireland out of their current budget. These events were all under the watch of the Government and it would be appropriate for the ICRIR to be appropriately resourced to enable it to conduct the work it must conduct. I beg to move.

[Lord Bew (CB)]

My Lords, I will speak to Amendments 99 and 101 in this group, which are in my name and those of the noble Baroness, Lady Hoey, and the noble Lords, Lord Empey and Lord Godson. As we have just heard from the noble Baroness, Lady O’Loan, the amendments are designed to focus on the possible functioning of the commission, the ICRIR. I think I will say “the commission” and follow the Minister’s advice on that: I do not want to struggle late at night with that mouthful of letters.

I say first to the Minister that it has been a hard day’s work. He has all my sympathy and is entitled to feel, given the amount of work and effort he has put into this Bill, that he has also somebody who supports the Bill, albeit somebody who is coming up and raising difficulties, although I hope of a containable sort. That might be a little bit more than flesh can bear at this stage in the proceedings.

I want to address an issue that has been at the centre of discussion during the week in Belfast: the article by Neil Faris in the Belfast News Letter—three articles in fact—about the possible functioning or the future functioning of the commission. It is perfectly possible that some of the concerns that exist and are expressed in those articles may be overstating and the Minister can allay them. But essentially my two amendments are both directed in that respect. They seek to balance the rights of those who may be named in reports with the rights of those requesting reviews, and particularly (6A)(a), (b) and (c) in my amendment are designed to achieve that end.

In the case of Amendment 101, it is a linguistic change, again with the same objective of balancing the rights of those who are at the other side of this process with those actually carrying out any review. One key point I want to make is quite simply that we have talked a lot already about what is or is not Article 2 compliant. But the UK Government also have a responsibility with respect to Article 8, respect for private and family life, and Article 10, freedom of expression, and both these rights also must be respected.

The particulars in new subsections (6A) and (6B) draw on best practice in the world of civil litigation, particularly inquiries by public bodies into alleged misconduct falling short of criminality. I would be happier if I felt that the Government were considering this best practice and how it has evolved, particularly since 2016, to ensure fairness when the commission indeed gets up and running. There are concerns at the moment about how the commission might actually work in practice. Those are concerns that the Minister and the Government have the capacity to meet, and that is really the point that lies behind my amendments, which are also in the name of the noble Baroness, Lady Hoey: Amendments 99 and 101.

[Lord Hain (Lab)]

My Lords, in speaking—briefly, the Committee may be pleased to hear—to Amendment 136, I again thank the noble Lords, Lord Hogan-Howe and Lord Blair, and the noble Baroness, Lady O’Loan, for adding their considerable names. I am indebted to the noble Baroness for her forensic analysis and for bringing her long experience into the debate through her amendments.

We all understand that, due to the age and complexity of legacy cases, prosecutions will be rare—very rare—but it is important that the Public Prosecution Service for Northern Ireland is sufficiently resourced, with appropriately skilled and experienced lawyers, to promptly review cases referred to it by the commissioner of investigations of the ICRIR, and that is not happening at the moment in respect of the Kenova model. Families have been waiting many years to understand what happened to their loved ones. Delays in prosecution decisions must not be allowed to prolong the wait still further.

Currently, legacy cases are glacially slow, to be decided upon by the PPS Northern Ireland, and, when a decision to prosecute does result, those cases can be expected to take five or more years to come to a conclusion. These cases involve recurring legacy issues and present specific legal challenges, such as the admissibility of evidence, hearsay and the continuity of exhibits. They need to be dealt with by lawyers with experience and expertise in these matters. As an example, Operation Kenova now has 33 files with the PPS Northern Ireland for consideration. The first tranche of files was submitted in October 2019, over two years ago. For most of these cases, families have been waiting for more than 25 years, and in some cases almost 50 years.

The PPS Northern Ireland prioritisation criteria mean that legacy files are effectively put in a queue for examination, as resourcing and demand allow. Understandably, perhaps, given the resources available, priority is given to cases relating to current offences, so the review of legacy cases slips further and further backwards, to the frustration and unnecessary additional traumatisation of the families concerned. The Bill claims to be victim-focused, but it is time that legacy legislation actually demonstrated such an intention because, as currently drafted, it does not do so.

The way that the Public Prosecution Service for Northern Ireland reviews cases differs considerably from the way that terrorism cases are dealt with by the Crown Prosecution Service in England and Wales. The CPS has a specialist counterterrorism division that engages with the investigation team as soon as a file is submitted. Early joint case conferences with senior counsel and the investigation team are held to assist in understanding the evidential strengths and weaknesses of the file, enabling further evidential recovery and facilitating prompt decision-making. This collaborative approach allows a more informed understanding of the cases and speedy and effective decision-making. The PPS Northern Ireland simply does not have the resources to dedicate lawyers to legacy files in this way.

As part of this Bill, it is important that sufficient funding is allocated to the Director of Public Prosecutions for Northern Ireland to review files and make timely and good decisions on them. It is essential that the creation of the ICRIR is supported by robust operating practices within the Public Prosecution Service for Northern Ireland that must be adequately resourced to deal promptly with legacy files referred by the ICRIR Commissioner of Investigations.

In conclusion, the Minister cited resources as one of the reasons why he questioned the validity of the Kenova model being inserted into this Bill, as I am proposing to do on Report. The alternative to adequately resourcing this—and Jon Boutcher has already disputed that it will involve massive resources, at least compared to what has been devoted to these legacy cases in the past—is leaving victims betrayed. What is the point of this legislation unless it is to give some relief, closure and sense of justice, as well as, crucially, truth recovery, which is the predominant objective victims are seeking? If this Bill does not deliver that, and if the model adopted does not have the resources to deliver that, then it will fail in its objective, and we might as well say so. If the Government are going for a resource-thinned, slimmed-down operation, as I am afraid this Bill seems to propose—and the Minister’s response to the previous debate seemed to indicate that resources are one of his top concerns about the Kenova model—then they will leave victims completely dissatisfied. I do not think that is where your Lordships’ House wants to be, and I do not think that is where legislation seeking to bring to a head this whole legacy trauma should be either.

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[Baroness Smith of Basildon (Lab)]

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

[Lord Bew (CB)]

I do not have any amendments in this group.

[Baroness Smith of Basildon (Lab)]

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

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

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

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

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

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

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

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

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Bew Excerpts

Committee stage
Tuesday 31st January 2023 Lords Chamber

Moved by

[Lord Bew (CB)]

36: Clause 4, page 4, line 31, at end insert—
“(4) Before carrying out any reviews, the ICRIR must publish, and in carrying out any reviews, the ICRIR must take into account, guidelines containing best practice on the rights of those likely to be named in any reports.”Member’s explanatory statement
This new subsection makes it clear that when carrying out reviews and in the exercise of its power to make findings in reports the ICRIR will follow best practice for the due protection of the rights of any person who may be named with critical comment.

[Lord Bew (CB)]

My amendment to Clause 4 is similar to Amendments 99 and 101, which I spoke to in previous discussions on the Bill. I express my gratitude to the noble Lord, Lord Murphy of Torfaen, and the noble Baroness, Lady Smith, for their support for those amendments. My concern here is the functioning of the commission rather than its appointment.

I would also like to express my thanks to the noble Lord, Lord Caine, in a rather different vein from the thanks expressed already, for the very fair, frank and open discussion he gave to the people of Northern Ireland on Ulster Television last night, explaining the whys and wherefores of this Bill, in difficult circumstances. I was at times slightly puzzled, because it felt as if the Bill is the first assault on the principle of equality of justice for the people of Northern Ireland that we have seen. But for 25 years there has been irregular process.

I well remember Tony Blair, at the time of the Good Friday agreement, talking about tearing up the criminal justice system and the release system that was then put in its place, and the importance of getting a referendum result in its favour because it was so complicated, difficult and controversial. I well remember new Labour’s entirely reasonable—in my opinion—interest in an amnesty across the board, which was pursued at some length. While it failed because of party machinations in Northern Ireland, it did not fail because of an uprising of victims or sensitivity to the opinions of victims. It fell because of the workings out of political intrigues, particularly between the SDLP and Sinn Féin. I remember the letters of comfort and the royal pardons. All of these things were very unusual and all long pre-date this Bill. I remember Denis Bradley, the distinguished co-author of the noble Lord, Lord Eames, saying that we were now in a place where we could not reasonably expect Governments to deliver justice but that they should be doing their utmost to deliver truth. However inadequate and flawed this Bill is, it is an attempt to deliver more truth. We are in a darker place, and I felt for the Minister as he struggled under the weight of an accusation which is at least 25 years old and could be directed to others with more point than to him, especially in the context of the amendments that he seeks to make to the Bill.

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[Baroness O'Loan (CB)]

I thank my noble friend for giving way. I think the Supreme Court decided that the particular applicants in that case were not entitled to get their cases reinvestigated—or investigated. They did not say that there was no obligation on the state to provide investigation.

[Lord Bew (CB)]

I thank my noble friend for that intervention. I think the implications of the Supreme Court ruling are somewhat broader. I was going to say that, at some point or other, the Government will have to refer to this major change, possibly with the Attorney-General, because there is controversy about what it really means. We cannot finish the Bill as though something of that importance has not happened, because it clearly bears on the issues at stake in the Bill and on the international obligations or otherwise of the United Kingdom Government.

Like my previous amendments, my Amendment 36 is designed, essentially, to get the best possible practice in play for the commission. It calls for the ICRIR to publish

“guidelines containing best practice on the rights of those likely to be named in any reports”.

I think the Minister will have a reasonable reply. We already know that there is a process of Maxwellisation. During the long period of the Iraq report, many will have felt frustrated about the amount of time devoted to Maxwellisation but, none the less, people who are challenged in their conduct have every right to take time to give a decent reply.

I am sure that that will be the Minister’s reply—that we already have rights in law. But things have moved on since then. It seems to me that the best practice now is something that we might call Maxwellisation-plus. I again draw attention to the way in which the Green Paper to the Commons Treasury Committee sets out proceedings and an approach to the rights of those involved under questioning in the ICRIR, which the Government should adopt. They should follow that Green Paper.

[Lord Hain (Lab)]

My Lords, I too pay tribute to the Minister for his open door and willingness to engage. I hope to knock on that door in the next few days to persuade him to support the Operation Kenova amendments.

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[Lord Caine (Con)]

I will need to read the clause through again and come back to the noble Baroness on that, if I may. As I was just saying, moving Clause 19 into the schedule is simply intended to make this legislation easier to follow.

The ability of commission officers to use their powers of arrest and detention as part of its investigations is important. That includes cases where a suspect, having not obtained immunity, needs to be detained for the purposes of questioning. That would happen as part of the case-building process in a criminal investigation before a file was referred to prosecutors. I have tabled Amendment 151 to remove any doubt as to the circumstances in which criminal enforcement action can be taken where immunity has not been granted, and where a referral to a prosecutor has not yet been made. In addition to allowing for the exercise of powers of arrest and detention, the amendment also ensures that the commission would be able to charge a person with an offence before a referral to a prosecutor had been made. The amendment also clarifies that those with existing powers of detention—for example, the police—may continue to use those powers where they are being exercised in connection with the commission’s functions.

Amendments 150 and 153 are related minor and technical amendments. We touched on the importance of the chief commissioner’s actions over the course of a review leading up to a report, as per Amendment 36. Under Clause 15, the chief commissioner is required to share the draft report with the person who requested the review, with victims, where applicable, and with any relevant family members as defined in the Bill. These persons will have the right to make representations, which must be considered before a report is finalised. Separately, the chief commissioner must share the draft report with any living individual subject to significant criticism in the draft report, who also has the right to make representations that must be considered before a report is finalised.

We have discussed today the referral of conduct to prosecutors. Amendments 114 and 135 specifically would expect the commissioner for investigations to refer conduct to prosecutors in cases where the threshold is met, unless there is a good reason not to do so. If the commission were under an obligation to refer all relevant conduct to prosecutors that it considered an offence, there is a risk this would place an unreasonable operational burden on it—a concern that was also relevant to the Stormont House agreement. I will try to get through this as quickly as I can.

I turn to post-Troubles sentencing, and specifically Amendment 149 in the name of my noble friend Lord Dodds of Duncairn. All offences, including terrorist-type offences, committed after 10 April 1998 will remain the investigative responsibility of the relevant police force. I recognise the intent behind this amendment but we have already tabled an amendment which could mean that people lose immunity if they are convicted of knowingly or wilfully misleading the commission. I am content to keep engaging with noble Lords and others on possible instances where we can strengthen the incentives to engage with the body and ensure adequate and proportionate penalties for those who do not.

The noble Baroness, Lady Suttie, and my noble friend Lord Weir of Ballyholme have probed the meaning of “general immunity from prosecution” in Clause 18. To be clear, as I have said immunity will be granted only in respect of conduct disclosed by an individual as part of their application. “General immunity from prosecution” does not mean immunity for all Troubles-related conduct in which individuals may have been involved but which has not been disclosed. Clause 18(9) makes it clear that, where immunity from prosecution is framed as a grant of general immunity, it must be framed by reference to the particular conduct that the person has disclosed. In other words, it will not confer immunity in relation to other conduct. The noble Baroness is looking at me slightly quizzically; I am happy to go through this again with her.

The noble Lord, Lord Browne of Ladyton, proposed an amendment to add an additional condition that must be met before immunity is granted: that the commission is satisfied that the grant of immunity would be compatible with convention rights, comply with the constitutional principle of the rule of law and satisfy the interests of justice. In response, the Government remain confident that the legislation is legally robust and complies with our obligations, so it is not necessary to make specific reference in the Bill to the compatibility of convention rights in respect of the commission discharging specific functions. It is the Government’s view that this is already covered.

The noble Lord referred in one of his questions to cases being initiated by the state or being initiated by families. While the commission will carry out reviews where requested to do so by a family or where a person has requested immunity, I assure the noble Lord that the Secretary of State and other public officials, such as the Attorney-General in Northern Ireland, will be able to request a review where this is necessary to ensure an effective and efficient investigation for the purposes of discharging the UK’s international obligations. Those powers are there.

As I have explained before, the commission, as a public authority, will be under a duty under the Human Rights Act to act compatibly with convention rights when exercising its functions and making any of its decisions. Working together with public prosecutors and making use of its full police powers, it will also be able to institute criminal proceedings against suspected offenders in cases where conditional immunity has not been granted.

In response to the noble Baroness, who I know disagrees with me on this, I set out at length last week that the Government’s view is that the absence of a prosecution or punishment outcome in individual cases where immunity is granted can be justified on the basis that the conferral of such immunity in a limited and conditional way is necessary to ensure the recovery of information about Troubles-related deaths and serious incidents that is extremely unlikely to come to light in any other circumstances. It is through the recovery of information for the benefit of families and wider communities, in part by means of the conditional immunity process, that the new body will be enabled to contribute to moving society forward in Northern Ireland. It is therefore consistent with the Government’s stated objective to provide more information to victims and survivors in a timely and efficient manner, which would not happen if we engaged in a single-minded focus simply on criminal justice outcomes.

I have gone way over time. I have tried to answer as many points as possible, but if there are any that I have missed then I am happy to sit down with noble Lords following Committee. On that basis, I urge noble Lords not to press their amendments, as I will not press mine.

[Lord Bew (CB)]

I beg leave to withdraw the amendment.

Amendment 36 withdrawn.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Bew Excerpts

Committee stage
Thursday 11th May 2023 Lords Chamber

[Lord Bew (CB)]

My Lords, I rise to support the amendments in my name and the name of the noble Lord, Lord Godson, and to comment on Amendment 174B in particular; he has given a full exposition of the thinking that lies behind it. I would like to add one thing, and one thing only, to his exposition: the reference to the way in which the Saville inquiry created a kind of patent for this type of investigation. We definitely need a public history. I have long been an advocate of it; it is now a point in time when it is a job for a younger cadre of historian to carry out the work.

Let us stop and think what happens if we do not do that. I was a historical adviser to the Bloody Sunday inquiry, which led to the very eloquent apology given by David Cameron, to which the noble Lord, Lord Swire, referred. As a professional historian, you are often scrubbing around for documents, pleading with the Government and the Public Record Office for them. The amazing thing about the inquiry was that they were delivered to my door by trucks, and the material is still in my garage, now published by the Saville inquiry. It lays out a lot of really sensitive stuff: Cabinet minutes and discussions about Northern Ireland which were not then in the public domain—they mostly are now, but they certainly were not at the time of the inquiry —and intelligence documents about the debriefing of IRA informers and discussing the role of Martin McGuinness. These are really sensitive things which were released to me to work on. I produced an analysis which played into the statement to the inquiry by Christopher Clarke KC. In a Leverhulme lecture on contemporary British history, I was subsequently allowed to give my own take on what those documents meant.

That is why I strongly support Amendment 174B: that type of openness should be the patent for any subsequent work or research carried out. The world did not fall in; I have tried to indicate that this material was sensitive—it included discussions between the most senior military officers in the days and weeks before Bloody Sunday. This was not low-grade stuff. We did it, we published it, we took an honest decision about what it all meant—there was other evidence that Lord Saville had to consider—and we had the final conclusion, reached by David Cameron. However, if we say, “That’s it”, we will be saying that the only real public history the UK Government are interested in is—let us be clear—one of the very embarrassing moments of British history and the British state’s role in Northern Ireland, and that we are not interested in the rest of it. We will reveal stuff, and spend money and resources for that purpose, but we are not going to discuss in the round what really happened, which will inevitably lead to other occasions which are less than glorious.

None the less, it seems to me a simple proposition: if you do not support this proposal for a public history, you are saying that we need to deal only with that one particular inquiry—that is all; the rest is closed. For some reason not clear to me, it is the only time we are going to open to scholars the sensitive material which will allow—as it did—a full evaluation of the political, military and other dimensions to Bloody Sunday. It is in the interest of totality and a broader approach to history that I strongly support Amendment 174B.

[Lord Bilimoria (CB)]

My Lords, I support the noble Lord, Lord Godson, and Amendment 174B, to enshrine in law the duty of the Secretary of State to ensure the production of an independent public history of the Troubles. I came as a boy, accompanying my late father, General Bilimoria, when he was a lieutenant colonel attached to the British Army at the School of Infantry in Warminster. Even as a young boy, I can remember the high security, the fear under which everyone lived, and the sad stories of people we knew and heard about on a regular basis. Fast forward to when I came to London as a student in the late 1980s, and then when I started my business: we lived under this fear, on a constant basis, and we witnessed the atrocities and tragedies that took place right until 1998 and the Good Friday agreement.

Successive Governments—of all political parties, to be fair—have sought to maintain peace during the Troubles, and at what a price. It is important that we record and acknowledge the history of those awful and terrible years, and the Government correctly regard a public history as playing an important role in addressing the legacy of Northern Ireland’s past. However, I hope the Minister will acknowledge that there is no mention of it in the Bill. It could in theory be managed through the Cabinet Office’s official history programme, but to my understanding that programme has been in a state of limbo in recent years. It is also insufficiently resourced to produce an official history on the Troubles—a topic that is going to be vast and require a huge amount of work from leading historians with substantial research support.

If the Government intend that the public history should support other academic research support programmes proposed by the Bill, we should note that these are to be concluded within seven years. Unless this public history is properly resourced through the Bill’s memorialisation programme, it is unlikely to be able to add meaningful value to other memorialisation activities within this timeframe.

We require an authoritative history to be produced in good time and to act as an absolute gold standard, and that this thoroughly informed history be communicated to the public, being both affordable and available to everyone who wants to read it. Additionally, it is a matter of equal concern to Ireland as well.

It is crucial that we support the proposal of the noble Lord, Lord Godson, for an additional clause in Part 4 after Clause 46, and I encourage the Government to accept this change.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Bew Excerpts

Report stage
Wednesday 21st June 2023 Lords Chamber

[Lord Murphy of Torfaen (Lab)]

My Lords, there are a lot of technical amendments to this and obviously we support those, as we support the other amendments in this group. Annual reports, work plans—all very sensible—but, in the nature of things, this is a relatively small part of this controversial Bill, and we will not oppose the amendments.

[Lord Bew (CB)]

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

[Baroness O’Loan (CB)]

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

[Lord Bew (CB)]

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

[Lord Caine (Con)]

I am grateful to noble Lords for their contributions. I turn first to Amendment 10 to Clause 4, in the name of the noble Lord, Lord Bew. The legislation is clear in relation to the powers provided to the ICRIR to assist in the performance of its functions. That includes Clause 5, in relation to disclosure, and Clause 6, which provides for ICRIR officers to have the powers and privileges of a constable. Clause 14 provides the ICRIR with the power to compel individuals to provide information, a power which is not provided to police officers but, in the Government’s view, is necessary to ensure that the commission can deliver effective legacy mechanisms while complying with our international obligations. Although I am sympathetic to the intent behind the amendment, I suggest that it is not necessary.

In respect of the noble Lord’s comments about the employment of former Royal Ulster Constabulary officers—former members of the Historical Enquiries Team—there is absolutely no prohibition, as I made clear in earlier comments in Committee. I think he is aware of my steadfast support and gratitude for the service and sacrifice of the Royal Ulster Constabulary over many years.

I turn to Amendments 21 and 26 in the name of the noble Baroness, Lady O’Loan. We had an extensive discussion about this issue yesterday afternoon so she will be unsurprised by my response. In our view, the Bill’s definition of a “close family member” is already extensive and covers spouses, civil partners, cohabitees, children, parents and siblings, as well as stepchildren, step-parents and half-step-siblings, and the ICRIR must accept a request for a review from any of these individuals. Therefore, this is a provision which is unlikely to be required in the majority of cases, given the comprehensive scope of the definition of close family member. However, where no close family member exists, it is right that the ICRIR has discretion—I repeat, discretion—to consider whether that request is appropriate. This could, for example, be considering the nature of the relationship to the deceased by the person requesting the review, both in terms of how they are related or the reality of that relationship. Factors such as whether they were estranged or were closely involved in the individual’s life could be relevant.

In respect of the comments made by the noble Baroness about data, we discussed this extensively. I am afraid I do not know the details of the circumstances in which Kenova has made the request to which she referred, but I think the Government’s position on this is solid.

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Tabled by

[Lord Bew]

10: Clause 4, page 4, line 26, at end insert—
“(d) would create or exercise police powers additional to those exercised by the PSNI, or(e) would create or exercise new duties towards prosecutors, additional to those exercised by the PSNI.”Member’s explanatory statement
These additional paragraphs in Clause 4(1) make clear that the ICRIR will not be exercising additional powers of any description not normally available to police officers.

[Lord Bew (CB)]

My Lords, I rise to address the subject of the fairness of the working of the commission in future. This amendment is alongside Amendments 37 and 47, which essentially have the same effect.

[Lord Caine (Con)]

Just to clarify: does the noble Lord wish to speak to Amendment 12, which we have not yet reached?

--- Later in debate ---

[Lord Bew (CB)]

Yes, I wish to speak to Amendment 12.

Amendment 10 not moved.

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Moved by

[Lord Bew]

12: Clause 4, page 4, line 31, at end insert—
“(4) Before carrying out any reviews, the ICRIR must publish, and in carrying out any reviews, the ICRIR must take into account, guidelines containing best practice on the rights of those likely to be named in any reports.”Member’s explanatory statement
This new subsection makes it clear that when carrying out reviews and in the exercise of its power to make findings in reports the ICRIR will follow best practice for the due protection of the rights of any person who may be named with critical comment.

[Lord Bew (CB)]

My Lords, I apologise for being, as they say in Northern Ireland, a little bit previous. I want to address the fairness of the functioning of the commission. My concerns on this matter, like many people in Northern Ireland and on this island, have been greatly allayed by the appointment of Sir Declan Morgan as the chair of the commission. None the less, fairness has to be at the heart of the future working of the commission. This applies both to people who might work for the state forces who come before it, and those who do not.

It has been established in recent years that good practice in such inquiries is what might be called pre-Maxwellisation. I recall the Green report to the Commons Treasury Committee of 2016, which laid out ground rules for handling people who come before a commission in guaranteeing fairness. I know that to some, these will be seen as exaggerated concerns, but we have talked a lot about the international requirements and obligations that the United Kingdom has under Article 2. There is also an international requirement in, I think, Article 6 to protect reputation and to be fair to the reputation of individuals.

I wish to return to the theme—the Minister has listened already with some responsiveness to it—of the importance of guaranteeing as much as we can that when the commission is set up, it works as fairly as possible in respect of the rights of the individuals who may be coming before it.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, with permission, and in the unavoidable absence of my noble friend Lord Hain, I will speak to Amendment 31, upon which a vote will take place on Monday. The amendment is in his name and those of the noble Baroness, Lady O’Loan, the noble Lord, Lord Blair, and my noble friend Lord Murphy of Torfaen. This amendment seeks to turn a terrible Bill into one that could at least act in the interests of victims, rather than the perpetrators of horrendous crimes of violence, by inserting as a method of bringing some form of justice a model based upon Operation Kenova, led by former Chief Constable Jon Boutcher. This model was referred to by the noble Baroness, Lady O’Loan.

Operation Kenova has the interests of victims, survivors and their families at its core, in stark contrast to the current legislation, in which victims and survivors are barely mentioned and to which they are universally opposed, along with each and every political party in Northern Ireland, as well as the Irish Government. In Operation Kenova, there is a proven model of the way to deal effectively with the legacy of Northern Ireland’s violent past.

After his remarks on this amendment in Committee, my noble friend Lord Hain wrote a detailed letter of rebuttal to the Minister. Sadly, the Minister’s reply completely failed to rebut any of my noble friend’s arguments. While acknowledging the excellent work of Operation Kenova, the Minister, the noble Lord, Lord Caine, made a number of assertions that simply do not stack up. The first was that, in some cases, a full Kenova-type investigation would not be appropriate if a family simply wanted information that could be readily found. The second was that an Operation Kenova model could not be upscaled and it would take too long to deal with the legacy case load. The third was that it would not be value for money. Each of these contentions does not stand up to scrutiny.

On the first, this circumstance has arisen with Operation Kenova, and it has been dealt with in a sensible and pragmatic way by the Kenova team, as the family requested. It is simply not an issue. Indeed, Kenova has been praised by victims’ groups precisely because of its effective truth recovery, providing information never before revealed on what actually happened to loved ones. In fact, Jon Boutcher visited a gentleman who lived quite close to me and whose son was brutally murdered. He did so before the gentleman, sadly, passed away, to explain the circumstances in which his son was murdered. That person was deeply grateful for that information and then, sadly, died some days later.

On the other contentions, I urge the Minister to take note of the independent National Police Chiefs’ Council’s review of Operation Kenova. The reviewers are recognised nationally as experts in investigations, especially homicide investigations—they deal in analysis, not assertion. On upscaling to deal with outstanding legacy cases, they said that

“the Terms of Reference … included the question as to whether Kenova might offer a ‘scalable’ model upon which to build any future Legacy Investigative capability for Northern Ireland. Having exhaustively reviewed its strategy, governance, partnerships and all facets of its operations, the review team firmly believes that Kenova would form the best possible foundation for this purpose”.

In his evidence to the Northern Ireland Affairs Committee on 2 September 2020, Jon Boutcher, who leads Kenova, said that legacy cases could be addressed within “five to 10 years” because Operation Kenova has developed processes that can now carry out comprehensive investigations expeditiously, not least because it now has unfettered access to security and police files that have hitherto been hidden. This is the considered view of a hugely experienced and highly regarded senior investigator.

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[Lord Caine (Con)]

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

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

[Lord Bew (CB)]

I beg leave to withdraw Amendment 12.

Amendment 12 withdrawn.