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.