Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Blair of Boughton Excerpts

Committee stage
Tuesday 24th January 2023 Lords Chamber

I said earlier that I supported the initial amendment from the noble Baroness, Lady O’Loan, which I did. I also accepted her recognition of the fact that this House has to perform its constitutional duty. But this House will not be performing that duty if it allows the Bill, in anything like its present form, to go on to the statute book. I will leave it at that, but I wish my noble friend the Minister all success in his endeavours, because I know that he wants to get this right.

[Lord Blair of Boughton (CB)]

My Lords, I need to apologise for not attending Second Reading, but I want to support the amendments of the noble Baroness, Lady O’Loan, and the noble Lord, Lord Hain. We need to understand what Kenova is, and it is worth going back to understanding that it is an investigation of 200 murders. It is probably the most complex investigation in British criminal history. It also involves allegations of kidnap and torture.

In October, Jon Boutcher wrote this, which I want to read into the record:

“The Kenova interim report will address what was, and was not, happening between organisations; the Provisional IRA and its Internal Security Unit, the police, armed forces, intelligence services and their agents and informants. In particular it will focus on”


the Provisional IRA,

“which committed these murders and whether steps were, or were not taken by the security forces before these abductions and murders occurred to protect people, or subsequently to bring those responsible to justice. It will also comment on the state’s approach to investigating such cases and the nigh on impossible operating environment that confronted the security forces”.

He went on to say this about the Bill:

“My commitment to publishing the results of all of the Kenova investigations remains as strong as ever and this takes us a step closer to achieving this. While there is much discussion about the future of legacy following the Government proposed Bill, the Bill should not impact the release of Kenova’s findings”.


I simply could not agree more.

In a month’s time, it will be 48 years since the murder of a young man with whom I trained at the Peel Centre in Hendon. Stephen Tibble was five months younger than me and a month ahead in training; He was shot dead in west London by the IRA. For the first 15 years of my career, the world of Irish republican terrorism spread not only from Ireland to the rest of the UK but in particular to London. Quite a lot of Metropolitan Police officers also lost their lives in this struggle.

I join with those who have said that the Good Friday agreement was one of the great moments of our lives, because it is not for me to put myself forward in that way. The idea that the Bill will allow a way to end investigations into these terrible atrocities seems completely appalling. Personally, I agree with the noble Lord, Lord Cormack, that if the Bill is not amended to be run on Kenova terms, we must in the end oppose and defeat it in this House.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I support the amendments in the name of the noble Baroness, Lady O’Loan. I have already added my name as a signatory to those amendments and to those in the name of my noble friend Lord Hain in relation to Kenova. In relation to the amendments to do with investigations, I want to see these investigations as an avenue to justice, so that that justice is still open to victims and members of the public. Investigations must not be closed down and justice must be provided for. The question arises: why would the Government want to remove investigations and who does this benefit?

The review process, which I think is to be undertaken by the ICRIR, is unlikely to meet all the requirements of an independent and effective investigation with the participation of next of kin, in line with the ECHR. Many believe that the main damage the legacy Bill will do is in closing off all the routes to justice that currently exist in Northern Ireland and replacing them with a single new body that has insufficient powers and is constituted in a manner likely to breach the European Convention on Human Rights—hence the amendments in the name of the noble Baroness, Lady O’Loan. They are absolutely vital because we want to see investigations and access to inquests. We want to see proper justice and truth recovery for all.

As I understand it, the ICRIR will lose those investigatory powers. I am sure that the noble Baroness, Lady O’Loan, will correct me if I am wrong in the next respect: that the police ombudsman will be prevented from investigating matters related to the Troubles, on top of the limitation on dealing with complaints already in the Bill. Legislation for dealing with police complaints in Scotland, England and Wales will also be blocked off from applying to Troubles-related conduct.

I had direct contact with the police ombudsman’s office in relation to the Loughinisland inquiry. The noble Baroness, Lady O’Loan, initiated that inquiry, which I think was way back in 2004—it seems such a long time ago. It was practically complete by the time she left and was then taken over by her successor, who did not see avenues of collusion. I remember saying at that time that he was being unfair to the victims and families, and that he should vacate the post. I think I said it in terms that were stronger and a little more derogatory than those, if I cast my mind back to 2011.

In the subsequent report by a previous police ombudsman, Michael Maguire, it was quite clear that he had worked further with families and with members of the RUC and the PSNI. He discovered large avenues of collusion in the midst of our community being perpetrated against ordinary people and denigrating very good police officers who were operating according to the rule of law. We must always remember that.

While the UK authorities continue to claim that the ICRIR reviews will be capable of Article 2 compliant investigations, using full police powers, human rights organisations such as the Committee on the Administration of Justice assert that this will not be the case, particularly for those who avail of the immunities scheme. Police powers will not be exercisable against persons who cannot be subject to criminal proceedings for an offence as they have immunity for it. However, I agree with the noble Lord, Lord Cormack, who says that, unless we—or rather the Government—go back to the drawing board, the Bill, as it is currently drafted, will fail before it even starts, because it does not command the respect of victims, political parties or the churches in Northern Ireland. Unless it has that cross-community support and support from victims, it is redundant.

I turn now to the amendment tabled by my noble friend Lord Hain about Kenova. We all know of the good work that has been done by Jon Boutcher, particularly in relation to Kenova, the investigations into the activities of the alleged agent known as Stakeknife, the Provisional IRA and the security forces. The interim Kenova report is drafted and about to enter a process of representation for those who will be adversely impacted by its findings. One thing that Mr Boutcher has done is liaise with the victims and their families at every possible avenue; they know exactly what is going on and what the next steps will be. He does that in a sympathetic and empathetic way, while also being very assertive in the job he has to do. Another amendment deals with the PPS in Northern Ireland being properly resourced to ensure that those files are not left lying on the shelf without any form of prosecution. So I am very happy to support all the amendments in this group, as I believe that the Kenova model, because it establishes the minimum standards for an ICRIR review, would be a very good model, if the Minister would consider accepting it.

While I am very happy to support the amendments in this group and to add my name to some of them, I feel that the current proposals in the Bill do not fulfil what is required for investigations. Yesterday morning, I listened to an actor playing the role of a victim who had been subjected to a paramilitary shooting. It did not say where he lived in Northern Ireland, but he was subjected to the most horrendous shooting incident that was witnessed by his own daughter through their front window after he returned from the pub. He was set upon by about three or four gentlemen and shot; to all intents and purposes, it was a punishment shooting. Therefore, in terms of that particular incident, I firmly believe that investigations must be central, because we have to find out who is responsible for those acts of terror.

Alan McBride was on the radio today speaking about Kenova. He is part of the WAVE Trauma Centre, and his wife sadly died in the Shankill Road bombing in October 1993. He is a firm believer in the Kenova model, because he believes that that would establish the minimum standards for ICRIR reviews and because it commands respect across the community and of so many victims’ groups—particularly WAVE, which has done such good work in this regard.

So I am very happy to support the amendments in the names of my noble friend Lord Hain and the noble Baroness, Lady O’Loan, because investigations must go along with reviews; without investigations, review is redundant and it makes the Bill redundant.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Blair of Boughton Excerpts

Report stage
Wednesday 21st June 2023 Lords Chamber

[Baroness O’Loan (CB)]

My Lords, I must apologise to the House. I omitted to declare my interest as a member of the Operation Kenova steering group when I spoke on it previously.

The amendments in this group cover a massive range of issues affecting the proposed immunity provisions, which are contrary to the UK’s obligations under the Human Rights Act 1998 and the European Convention on Human Rights and are not consistent with the Government’s obligations under the Good Friday agreement. They will provide immunity from prosecution for murder, torture and other terrible crimes that have left people dead or with life-changing, life-limiting injuries. The only crimes for which immunity will not be possible are sexual ones.

Northern Ireland has not previously had immunity from prosecution. What we had were prosecutions that, on conviction, resulted in a maximum two-year sentence. We also had law that said that certain evidence was not admissible in a case. So, where information led to the recovery of one of those whom the IRA disappeared, that information could not be used for the purpose of prosecution. Similarly, when guns were brought in for decommissioning, they and any information attached to them could not be used as evidence. However, that did not confer immunity on an individual; it was still possible for them to be prosecuted for the crimes they had committed.

Those laws on the disappeared and decommissioning, and even the sentences Act, resulted from the Good Friday agreement and were not in breach of our convention obligations. However, these immunity provisions are different. The extent of the problem was made clear yesterday by the Northern Ireland Human Rights Commission, which is made up of advisers to the Northern Ireland Government. It said that,

“even with the UK Government’s additional amendments … fundamentally, the Northern Ireland Troubles (Legacy and Reconciliation) Bill is not compliant with the European Convention on Human Rights … the Belfast (Good Friday) Agreement 1998 requires the UK Government to incorporate the ECHR into Northern Ireland law and to do so to provide people with ‘direct access to the courts, and remedies for breach of the Convention’ … Therefore, our previous advice stands that closing off any pursuit of justice outside of the ICRIR is incompatible with human rights and the Belfast (Good Friday) Agreement”.

I would like to the Minister to explain to me, if he can, how people will have direct access to the courts and remedies for breaches of the convention under this Bill.

Even with the Government’s amendments—more than 120 of them—this legacy Bill will not provide something that is compliant. It will prevent direct access to the courts and to remedies. The Government’s 25 amendments to their immunity scheme do not, even in their totality, make the scheme compliant with convention rights. Such things as the revocation of immunity in particular circumstances do not change those facts. Amendment 63 in the names of the noble Lord, Lord Hain, and others would require that, to get immunity, a person would have to comply with the ICRIR’s requirements to provide fingerprints and “non-intimate samples”. It would also mean that a grant of immunity could be revoked in the event that a person commits a Terrorism Act offence, is a danger to the public or, to echo the comments of the noble Lord, Lord Dodds, attempts to make a profit from their criminality.

As the noble Baroness, Lady Ritchie, said, the Council of Europe’s Commissioner for Human Rights issued the following statement yesterday:

“I have repeatedly warned that the Northern Ireland Troubles (Legacy and Reconciliation) Bill would undermine the human rights of victims, as well as truth seeking, reconciliation and justice efforts. Serious concerns have also been expressed by the Council of Europe’s Committee of Ministers, the Parliamentary Assembly of the Council of Europe, the UN High Commissioner for Human Rights, UN Special Rapporteurs, national human rights institutions, parliamentary committees”—


of this Parliament, indeed—

“and civil society organisations, including victims’ groups. Despite this, the UK government has decided to go ahead with the Bill in a way that does not recognise Northern Ireland’s violent past or honours the suffering of victims. While the government has recently published amendments, these leave the fundamental problems with the Bill intact, such as the conditional immunity scheme that would result in impunity for serious human rights violations, the unilateral shutting down of avenues to justice for victims, and questions about the ability of the Independent Commission for Information Recovery to deliver outcomes that would meet human rights standards”.

It is clear that, even with the Government’s amendments, this Bill is not compliant with our international obligations. As has been said, it continues to be the case that nobody in Northern Ireland or elsewhere—apart from the Government, it seems—thinks that the Government’s amendments will fix the Bill.

As the Northern Ireland Human Rights Commission has said, the fundamental issue is that the ICRIR’s conditional immunity scheme is not, at its core, compliant with human rights. The noble Lord, Lord Dodds, has proposed Amendment 98A in this group. He said that it would be welcomed by those who have seen investigations completed and files just sitting there, waiting to be dealt with by the prosecutor of the Public Prosecution Service for Northern Ireland. The Kenova files have been waiting for up to four years. They include the Stakeknife files and the file that dealt with the terrible murders of three young constables on the Kinnego Embankment in Lurgan. All that will be lost. It will simply cease to operate unless the amendment in the name of the noble Lord, Lord Dodds, is accepted. I urge colleagues to think very seriously about the terrible injustice that would be done if we did not get that amendment through.

Despite all the amendments, the conditional immunity scheme remains in breach of our obligations. As we look at conditional immunity for murder, it must be more questionable—indeed, offensive—that immunity from prosecution will not be available for sexual offences but will be for the most heinous murders and tortures carried out by people like those who abducted and murdered Jean McConville, a mother of 10, in 1972; like those who planted the Enniskillen bomb; and like those who murdered people watching a football match in Loughinisland, as well as for all the other atrocities. Why? To know that your loved one was savagely murdered—even to witness it, as some did—is surely as egregious and terrible as any sexual offence.

Nobody in Northern Ireland wants these provisions. I urge noble Lords to support the amendments that seek to remove them, in particular Amendment 66 in the name of the noble Lord, Lord Murphy, to which I and the noble Baronesses, Lady Suttie and Lady Ritchie, have added our names.

[Lord Blair of Boughton (CB)]

My Lords, I will not detain the House much on this issue and Amendment 63, to which my name is attached, because I am really here to talk about Amendment 31, the Kenova amendment, which we will come to later on. I just want to remind noble Lords of the shocking effects of letters of comfort. We are about to repeat that same mistake if we continue with this process and do not do something to get Amendment 63 through the House on Monday.

[Lord Morrow (DUP)]

My Lords, I will speak to Amendment 61A, tabled by me and my noble friends Lord Dodds and Lord Weir. My noble friend Lord Dodds has already spoken very eloquently on this, but I will add some comments.

Amendment 61A would require

“an individual to be disengaged from activity which would be reasonably regarded as precluding reconciliation in order to be eligible for immunity from prosecution”.

Earlier, I tried to push the Minister a little on this, because although reconciliation is laced through the Bill, its definition is anything but clear. I still feel strongly that the definition should be in the Bill. However, we are where we are.

Admittedly, the Government have brought forward new proposals allowing immunity to be revoked in incidents involving glorification of terror, as my noble friend Lord Dodds said. It is very disturbing when one watches our television screens or reads a newspaper to see leading, prominent politicians elegising the past—murder—and commemorating those who were intercepted by the security forces while carrying out murder, or who were blown up by their own bomb. In an age of reconciliation, how can this continue? Yet those same people tell us that they will be a First Minister for everybody.

That is the strangest way of setting out. If that is their idea of reconciliation, then I no longer understand plain English. Surely it is time for the Government to take a long hard look at this situation. As has already been said by others, this is not good legislation. It is bad legislation, and it has no support back in Northern Ireland from anyone who has spoken publicly about it. I have not read of support for this legislation, yet the Government are intent on pushing on and pushing it through. Those of us who have these great concerns are therefore making an honest attempt to make this less bad. That might not be good grammar, but it is the best way that I can say it.

We want the Government to stop and think. Admittedly, they brought forward new proposals allowing immunity to be revoked for the glorification of terror, but this does not go far enough in capturing activities that do not necessarily constitute offending, but which will cause deep harm to victims, survivors and their families. If this Bill is about reconciliation, it must take into account the hurt caused not only 30 years ago but right up to recent times. Some tell us that we have every right to remember our dead, and maybe that is true, but we have absolutely no moral right to glorify those who carried out these evil deeds of terror. “Reconciliation” is in the title of the Bill, but that seems to be as far as the Government are willing to go.

The ICRIR will be statutorily required to oversee an amnesty process which runs contrary to reconciliation and which is opposed almost unilaterally by victims. Any sense that the ICRIR can deliver on its primary objective is diminished from the word go. It should be made clear in Clause 18 that one condition for immunity, applied not just at the point of application but thereafter, is that an individual is not engaged in activity which can reasonably be regarded as precluding reconciliation by glorifying terror and violence, eroding support for the rule of the law or traumatising victims yet again.

--- Later in debate ---

Also, does the Minister have any comment on what Minister Varadkar said today? He is the Minister in the Republic of Ireland, for noble Lords who have not heard of him, and he is now threatening that an interstate case at Strasbourg will be taken against the UK Government if this legacy Bill passes. I would be very grateful if the Minister commented on that.

[Lord Blair of Boughton (CB)]

My Lords, it is unusual for me to start by saying that I could not disagree more with what I have just heard from the noble Baroness, Lady Hoey. I was Metropolitan Police Commissioner at the time of the death of Jean Charles de Menezes, and it was a tragedy. I do not actually understand the connection that she is making with what is happening in relation to Operation Kenova.

[Baroness Hoey (Non-Afl)]

Strasbourg.

[Lord Blair of Boughton (CB)]

I shall stop there on that point.

I support Amendment 31 in the name of the noble Lord, Lord Hain, and the other signatories to it. It concerns Operation Kenova—the multiple investigations being carried out by ex-Chief Constable Jon Boutcher into some 200 murders on both sides of the conflict in Northern Ireland. I last spoke on Kenova on 24 January this year, when I read into the record of the House comments made by Jon Boutcher the previous October. I will not repeat all of that, except to remind noble Lords of his summary of his focus, being on the Provisional IRA,

“which committed these murders and whether steps were, or were not taken by the security forces before these abductions and murders occurred to protect people”.—[Official Report, 24/1/23; col. 161.]

I am not an expert on Northern Ireland, but I bring before the House two aspects of my own professional experience which I believe are of relevance. First, I have investigated murders and I know how difficult it is to tell families of victims that the trail has run cold and the investigation is, at least for the time being, being closed. Secondly, I have led some very large and complex investigations and watched many others. Never have I seen such a comprehensive, transparent and outstanding investigation as Kenova. Mr Boutcher has meticulously worked to gain the trust of families and has submitted a number of files, as we heard during the debate, to the Northern Ireland prosecution services. The submissions await a decision and the families know that. To discontinue all those inquiries by an Act of Parliament in these Houses seems to me to be an extraordinary step.

Of course, like many others in the House, I am a great supporter of the truth and reconciliation process in South Africa, but that process took place instead of investigations, not after they had been completed. Moreover, entering into such an approach has to be a voluntary process; and, having come this far, from a position of deep cynicism to trust in Kenova’s approach, I doubt whether many families will wish the completed investigations into these deaths just to be put to one side. With respect to the Minister, he knows that the continuance of Kenova is supported by politicians of every stripe in Northern Ireland, a position which I believe is not a common occurrence on any topic, let alone one as explosive as this. Any suggestion that the Kenova model is too expensive is risible, given all the suffering and all the costs that have preceded it.

I hope that when the House returns to this subject next week, it will ask the Government to think again.