Northern Ireland Troubles (Legacy and Reconciliation) Bill

Debate between Lord Bew and Baroness Ritchie of Downpatrick

Report stage
Wednesday 21st June 2023 Lords Chamber

[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.

Northern Ireland Protocol Bill

Debate between Lord Bew and Baroness Ritchie of Downpatrick

Committee stage
Monday 7th November 2022 Lords Chamber

[Lord Bew (CB)]

My Lords, I thank the noble Baroness, Lady Doocey, for introducing the amendment; much that she said is extremely pertinent.

It is useful at this point to remind the Committee of quite why we are in this predicament over veterinary matters. From one point of view, you can acknowledge it as a simple function of our departure from the European Union. However, the protocol, in both the May and Johnson versions, contains a way of handling veterinary matters, which is essentially to say, “We will not accept UK veterinary testing. Pirbright is gone and you are out of the system. The only form of veterinary testing we will be able to accept is that within the European Union itself”—presumably, in the case of Ireland, in Dublin. In the EU documents of the time, there are rather interesting green pictures with little arrows showing power departing from the island of Ireland to the EU, which has now taken control of this area.

There is an obvious basic problem with that. The Good Friday agreement, whose importance has been increasingly acknowledged and accepted, was not accepted as the prior agreement when we began this debate, but I notice with pleasure that it is increasingly accepted as the key agreement; that has some significance, as it was not when we opened these discussions. The Good Friday agreement established food safety and animal health boards. For the life of me, I have never known why, in the negotiation, it was quite so necessary to have the approach of extraction of powers from the island of Ireland to the EU that the protocol, lodged by the May Government and signed by the Johnson Government, contains.

That is another example of why what the Good Friday agreement suggests, and obvious pathways that follow from everything that the noble Baroness, Lady Doocey, said, should be followed, rather than a strict obsessive acceptance of the fact that, “We signed it in this protocol and therefore it can’t be changed”. A negotiation is going on and it is bound to touch on these matters. In this case, as in so many others—including, I dare say, the issue we have been discussing for the last half hour—the canopy for the settlement is acceptance of the Good Friday agreement and the way in which it approached this problem. Then you get into the possibility of consensus and agreement.

It is not all the UK Government’s fault that they find themselves, to put it mildly, on the back foot. It is arguable that they have not behaved particularly effectively in sorting this problem out, but it is not all their fault. The root of the matter is the failure of the EU to understand—and how could it?—the north-south dimension of the Good Friday agreement. That failure is radically revealed in Michel Barnier’s memoir in these documents. The explanation has been given in various books and articles by the officials involved on the Irish side in Dublin in the negotiation on the 2017 agreement, which then set the template for the two later agreements. The explanation is that the Irish Government appropriated a particular version of the Good Friday agreement—their version—and sold it to the EU, and it was accepted in Europe and by us. We cannot revisit any of these issues in any simple sense but it remains an intellectual reality that is the clue to understanding how we can redress these processes.

All these problems that seem so insoluble—I absolutely respect the spirit in which the noble Baroness, Lady Doocey, moved the amendment—are much more easily resolved if we follow what the noble Lord, Lord Murphy, said, accept the prior importance of the Good Friday agreement and realise that the institutions and the concepts to be found there are the institutions and concepts that provide the basis for a benign compromise that both the UK and the EU can live with.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I thank the noble Baroness, Lady Doocey, for her amendment because it goes to the heart of the protocol and the protocol Bill issues in relation to the need for an SPS veterinary agreement. The dairy and farming industries on the island of Ireland require an SPS agreement. I have written to the noble Lord, Lord Caine, today, following last week’s debate on this issue following further discussions with elements of the dairy industry. The bottom line is that unless there is an SPS agreement, that could very much interfere with our dairy industry and totally undermine it.

I shall give a short explanation from the letter. Those in the dairy industry acknowledge the issues that the Northern Ireland retail sector is dealing with regarding the protocol and support for a dual regulatory regime, but such a regime would not work for the dairy industry because we are looking at the very survival of Northern Ireland dairy farmers. Approximately 30% of all Northern Ireland milk is processed in the Republic of Ireland because there is not the capacity to do so in Northern Ireland. It may be worth visiting some of the processing factories in Northern Ireland that are part of a greater co-operative group to see what they do and what they are trying to tell us.

If you create a hard border for milk, which the dual regulatory scheme outlined in the Bill will, there will be enormous environmental issues. Northern Ireland does not have the capacity to dump 30% of its milk, and milk has special regulations for its disposal. You could then move to the culling of perfectly healthy animals which, in a cost of living crisis, is inconceivable. Finally, this would lead to devastating consequences for the economy of Northern Ireland, as the agri-food industry is its bedrock.

So I say to the Minister that those in the dairy industry have looked at the impact of a 30% reduction in sales to an average Northern Ireland farmer. When you consider their average interest on loans and their loan repayments, this would result in an annual negative cash flow. In other words, their costs would be greater than their income.

In summation, it is vitally important that the negotiations achieve an SPS veterinary agreement. From what I have read in the non-papers from the EU of October last year, it is very prepared to enter into such an agreement as part of the negotiations. However, the dual regulatory regime will not work for the agri-food sector. Maybe a bespoke arrangement is required for the retail sector where some of the problems lie.

--- Later in debate ---

[Lord Bew (CB)]

My Lords, I thank the noble Baroness, Lady Hoey, for this amendment. She knows from many discussions and from what I have said in this House that, despite the distinguished legal heft behind her argument on the Acts of Union, I do not accept it. By the way, I do not accept the argument that the protocol subjugates the Acts of Union, but I do not want to repeat things that I and others have said during this debate.

However, the noble Baroness’s speech is very important for a particular reason. I look over at the noble Lord, Lord Murphy of Torfaen, and the noble Baroness, Lady Hoey, and remember that we were all in exactly the same place in April 1998—in favour of the agreement. All of us were determined to get that agreement going. The speech from the noble Baroness, Lady Hoey, reflected a significant degree of disillusionment, largely provoked by events since the protocol.

The issue that the noble Baroness homed in on was the Acts of Union. The White Paper which preceded the Bill does not reference the issues around the Acts of Union, whereas the Bill does. It is more briefly than the noble Baroness would like, but it none the less references upholding the Acts of Union. That reflects the deterioration that has occurred in public opinion in Northern Ireland, even since the publication of the White Paper. The Government decided—I understand for tactical reasons—to include a reference to the Acts of Union in the Bill.

We have listened tonight to quite a lot of esteemed legal opinion, but the truth is that this is a political problem. It has to be faced up to. The truth is that we are in a very difficult moment when it comes to the possibility of making the Good Friday agreement’s institutions operate as we head toward its 25th anniversary. The strong conviction that I have—I think the noble Lord, Lord Murphy, also feels this—is that there is no other show in town, and so that is what we should be working to do.

One of the reasons why I am a little uncomfortable about the eloquent discourses on Henry VIII powers—I have been in this House long enough to have heard many such—is the point forcefully made by the noble Lord, Lord Dodds, tonight. The House gets very excited about Henry VIII powers when it suspects that the uses will not be loved by the House but, when it is a Henry VIII power which is pretty unpopular with large sections of opinion in Northern Ireland, the House has no qualms. We have seen it most recently on the abortion issue. What matters is not Henry VIII powers but the purposes to which they are put, and in this case the purposes to which these powers would be put would be essentially dealing not with a sea of anonymity but with EU interventions of one sort or another in the laws of the United Kingdom.

The way in which the House approaches this really makes me uncomfortable, because it is an attitude of mind that does not reflect the political nature of the problem. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, as a very esteemed legal mind in this House, actually faced up to what the Good Friday agreement, an international agreement, says quite clearly at Article 1(5). He used the expression: “You cannot live with long-term alienation.” The British Government—the sovereign Government—have a responsibility to address the long-term alienation of a community, as they did only recently on the Irish language. There is no question about that. “Alienation” is a perfectly fair translation, but that piece of legislation actually says that the British Government as the sovereign Government have to deal on the basis of equality of esteem with the long-term aspirations of both communities. There is no question but that the protocol as it now stands is seen by the unionist community as a whole as flouting its long-term aspirations.

I suppose that just after Brexit came into our lives—unhappily, for many—former Taoiseach Bertie Ahern, who was present in 1998, came to this House and addressed the House of Lords Select Committee. He said, “You can talk all you like about Europe but there is the little matter of the Good Friday agreement, held as an international agreement in the United Nations.” The House has tended to forget that. Therefore, while I am sympathetic to the fundamental legal thrusts at the beginning of the amendment in the name of the noble Baroness, Lady Hoey, the fact that many people in Northern Ireland will see her case as, if anything, too soft and too moderate is a sign of how we are losing control of public opinion in Northern Ireland and our ability to intervene in that public opinion. That is extremely worrying.

The noble Lord, Lord Empey, who was in his place earlier this evening, is quite right: we cannot afford to give the impression that Northern Ireland is an ungovernable entity. There must be a return to power sharing. I will be clear about this: it will not occur on any other basis than a renewed form of historic compromise. We should take the amendment in the name of the noble Baroness, Lady Hoey, as a warning about how public mood is evolving away from compromise, and all the lectures on Henry VIII powers in the world are not anything like as significant as that fact for the political history of this country.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I have three amendments in this group but, before referring to them, I say that obviously this set of amendments really deals with the restrictions on the use of ministerial powers. In fact, the noble Lord, Lord Bew, referred to the kernel of the issue, which is about the politics of Northern Ireland. I think that is what the noble Baroness, Lady Hoey, also said. Obviously, as a democratic Irish nationalist I come from a very different position, and I make no bones about it. In the fullness of time, subject to agreement and to consent, I would like to see the island of Ireland politically united, but that is united according to the principle of consent and united by agreement. The land is already united, but I mean the uniting of people on the island.

In this discourse, we must not forget that we have to move towards compromise and achieve it. I go back to the point made by my noble friend Lord Murphy: the most important thing is that there is an urgent need for the parties in Northern Ireland to be directly involved in the negotiations with the UK, the Irish Government and the EU. Unless that happens, we will go down the road of technical negotiations and discussions ad infinitum but they will not solve the political issues that exist, and those political issues urgently require to be resolved if we are to have the restoration of political institutions.

In that context, I pose this question: do all parties and all peoples want those political institutions restored? For my part, I would like them restored because they are based on the principle of consent and it is all about power sharing and co-operation. Because of the nature of the divided society in Northern Ireland, it cannot go any other way and the only solution is via the Good Friday agreement. I hope we will get back to that, and the best way to do it is through negotiations between not only the UK and the EU but the parties in Northern Ireland that are most directly affected, representing all the people, and of course the Irish Government, who could take on the role of the EU or work in partnership with the EU as a member state.

Amendment 46 seeks to circumscribe and limit the regulations to ensure adherence to Northern Ireland Assembly approval for a legislative consent Motion. The regulations are referred to only in the Bill; they are not specified and will be subject to secondary legislation. The noble Lord, Lord Bew, referred to Henry VIII powers. If this were just about Henry VIII powers then it might be quite simple, but it comes back to the overarching umbrella of the political situation and the need for a political solution. Here, there is a total disregard for the democratic consent of the Assembly and the importance of what it is there to do as an organ of the Good Friday agreement. It is important that that is built into this legislation, although obviously I would prefer that the legislation was not there and that it was replaced totally by negotiations.

Amendment 54 seeks the agreement of the First and Deputy First Ministers acting jointly on behalf of the Executive or Assembly. In that, I am building in joint accountability. There is a case for reverting to the appointment of the Ministers jointly as joint First Ministers. In fact the noble Lord, Lord Empey, referred to the earlier situation where, at St Andrews, that principle was undermined. Appointing Ministers and calling them joint First Ministers would emphasise power sharing, co-operation and jointery. It would recognise the principle of consent as prescribed by the Good Friday agreement, and it would get away from the idea of one side saying, “Make me First Minister”, and the other side saying, “No, make me First Minister”. We have to ensure that equality and parity of esteem are recognised in the Bill if the Bill is to go ahead.

Amendment 55 proposes a new clause requiring the Minister yet again to obtain the consent of the Northern Ireland Assembly to exercise the power to make regulations conferred by the Bill. It would also require a Minister to obtain the consent of the Assembly for the continued application of the regulations beyond the relevant period. It would therefore require the consent and the accountability of the Assembly. There should be no imposition of these unspecified regulations without the agreement of the Assembly. The fundamental point is that the people of Northern Ireland and their elected representatives in the Assembly are key and fundamental to the whole process, and should be directly involved in the negotiations in deciding the way forward.

Northern Ireland Protocol Bill

Debate between Lord Bew and Baroness Ritchie of Downpatrick

Committee stage
Tuesday 25th October 2022 Lords Chamber

[Baroness Ritchie of Downpatrick (Lab)]

I thank the noble Lord, Lord Bew, for giving way. While I was not at BIPA, my clear understanding—and I have just had it confirmed—is that the Irish Government’s position is quite clear that they view this protocol Bill as an unnecessary, unilateral move that breaks international law. Of course, they want to see a successful outcome to negotiations between the UK and the EU.

[Lord Bew (CB)]

I thank the noble Baroness for her intervention. Of course I take the point, but I was saying that nationalist Ireland basically does not like this Bill. That is not the point. The point is that it is not in any way stopping or infringing or slowing up the negotiations. The point is that the equality of esteem doctrine, which we are supposed to be following with the Northern Ireland protocol, means that the House is bound by international law to pay attention and to try and do something. On whether this Bill is precisely right, there are amendments starred in the normal way to be discussed, but we are not in the situation where we are talking about amendments.

I have great sympathy for the noble Lord, Lord Howard, who raised the issue of Article 16. However, when I look at the noble Lord, Lord Frost, who was in a critical position on this matter for quite long spells in recent times, I think that he is bound to be surprised by the sudden outbreak of support for the implementation of Article 16, because at any time when he voiced the same civilised opinion in this Chamber, noble Lords were totally against it and regarded it as outrageous—of course it never was.

There is even a case now for the implementation of Article 16, made by Professor Boyle, who was professor of international law at Edinburgh, to both the House of Commons Select Committee on this matter and our own Select Committee on this matter. He is actually open to the argument for the importance of the prior international agreement and the importance of protecting it. He is a very distinguished international lawyer. What I understand him to be saying is that, first, you must apply Article 16; that is a perfectly reasonable argument that I am open to. In addition—I look at the noble Lord, Lord Howard, in engaging on this point—the other point that I very much agree with him about is that there is no need to ask the EU to change its negotiating mandate; it has to live up to its commitment to the Good Friday agreement.

The context is one in which—Members of this House do not read the Irish media as I do, and Irish books, articles and so on—there is a fairly consistent admission on the part of the Irish Government’s negotiating team that, when Theresa May was on her knees in November 2017, the advantage was pushed very hard in that agreement, and that they took sole ownership, or sole guardianship, of the Good Friday agreement. In many ways, what is happening here is an attempt by the British Government to say, “Well, actually, that is not really the Good Friday agreement. First of all, you do not have sole ownership. Secondly, we have responsibilities as a sovereign Government not held by the Irish Government and”—as I have tried to explain—"we are trying to move back to deal with this in some way.”

This does not mean that every clause in this Bill is particularly wise, but it does mean that we should not take the attitude that in principle we should not be doing it, or that we must stop now because otherwise the EU will stop negotiating—that is clearly not true. I agree that the Irish Government do not like the Bill and that they believe that it infringes international law. I absolutely accept that point, but the point is that we have to follow our obligations under international law, which means that the long-term alienation of one community must be avoided. Unless the Government do something substantive such as this—