Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Browne of Ladyton Excerpts

2nd reading
Wednesday 23rd November 2022 Lords Chamber

[Lord Browne of Ladyton (Lab)]

My Lords, it is a privilege—and a coincidence, which I will explain—that I should rise to speak after the noble Lord, Lord McInnes of Kilwinning. I am very pleased that his opening remarks made the case for those of us who are not Northern Irish, or indeed Irish, although I have extended family in Northern Ireland, to contribute to these debates.

I shall explain why that is particularly the case for both him and me. For those who do not know the geography of Ayrshire, Kilwinning is a really important railway hub. It is the point at which the train from Glasgow to Ayrshire splits and goes north and south all the way down to Stranraer, where it is a gateway to Northern Ireland. As it goes north, it comes to a town called Stevenston. I was born and grew up in Stevenston and was educated in Kilwinning.

Interesting as all that is, the important point here is that the demography of that part of Ayrshire is the mirror image of Northern Ireland. It is not the only part of Scotland that is the mirror image of Northern Ireland in that sense, but it is a part of Scotland that, through all of my young life and, I am sure, much of the noble Lord’s life, there was persistent cross-fertilisation between that part of Scotland and Northern Ireland—not all of it positive and enhancing, I have to say; quite a lot of it criminal; and at times, I have no doubt, some of it terrorist.

So, far from saying that we are entitled to participate in this debate, I think we both have a duty and a responsibility to participate in it, and we should declare an interest. If the legacy issue for Northern Ireland can be dealt with and reconciliation achieved, that will be reflected in our communities, which will be massively enhanced by that having been achieved. There are victims of the Troubles in the communities that we grew up in who are not counted in any of the arithmetic we have been discussing today. I do not intend to speak for victims; there are people in this debate much better qualified to do that than I am.

I respect and admire the Minister for a number of reasons. His honesty and the way that he introduced the Bill are only a part of it. I admire him for his persistent contribution to finding a way to deal with these and other issues for Northern Ireland. He merits our support, and nothing that I say—and I will be significantly critical on one theme of the Bill—is in any sense a criticism of him.

I was a Minister in the Northern Ireland Office for a period and had responsibility for victims and criminal justice matters, so I do not underestimate the difficulty or complexity of what the Government are faced with, but I do not think the Bill is the answer. I wholly adopt an element of my noble friend Lord Hain’s speech and that of the noble and right reverend Lord, Lord Eames: this needs to be substantially reworked. Others have made the same point. The willingness of the Government to rework it may or may not produce a workable piece of legislation; the jury is out in respect of that.

I pay tribute to those planning to table and support amendments that seek to palliate some of the problematic provisions of this legislation; indeed, I may do so myself. I am minded to table amendments that will deal with one part of it, though not nearly the most challenging part. Those amendments that have been proposed by the Law Society of Scotland, whose consistent advice about legislation in this House has been of the highest quality over the time that I have been here. They will deal with the Bill’s provisions to the extent that they limit the Lord Advocate’s constitutional position as the head of the system of criminal prosecution and investigation of deaths in Scotland, as set out in the Scotland Act 1998. The system of criminal prosecution and civil liabilities are matters devolved to the Scottish Parliament. In my view, the Bill’s provisions engage the legislative consent convention, the Sewel convention, and therefore require the consent of the Scottish Parliament.

To the extent that I have the capacity to do so, it is my intention to participate where I can and where I think I can make a contribution to the debates on other amendments, both in Committee and on Report. However, in these remarks I shall focus on those faults of the Bill that are intrinsic to it and which cannot be removed without making it a wholly different, and not guaranteed to be better, piece of legislation. I therefore support the amendment moved by my noble friend Lady Smith of Basildon, because it encapsulates many of those.

I regret that I have to say this but it would be difficult even for the most Panglossian optimist to contest the view that the UK’s reputation for adherence to international law has been degraded by the actions of successive Governments since the Brexit referendum. The Secretary of State has declared his belief that the Bill is compatible with our obligations under the ECHR, but others have raised significant doubts as to whether that is the case. For example, the European Commissioner for Human Rights and two UN special rapporteurs in relevant areas have raised concerns that the legislation threatens a de facto breach of our obligations. Nearer home, the JCHR and the Select Committee on the Constitution—the latter in a commendably short and accessible five-page report—persuasively explain why the Bill, as drafted,

“is unlikely to comply with the Convention”.

The aggregate of this convincing cacophony of concern is that the measures set out either are incompatible with the UK’s obligations under the ECHR or create a risk of incompatibility. Either way, the effect of the Bill will ultimately be more litigation before our courts or, if the present Government deploy their overwhelming majority in the other place to secure the Bill of Rights, before the European Court of Human Rights in Strasbourg, because applicants who will then not be able to enforce their rights domestically will be more likely to take their cases to the ECHR. That will be directly contrary to the UK Government’s ambition to bring an end to litigation; in my view, it will significantly increase the possibility of it.

Of particular concern is the fact that the new ICRIR will be given wide discretion in deciding whether actions should be referred for prosecution and in setting time limits for future criminal and civil actions. In addition, by creating a limited immunity scheme, potentially barring certain civil claims and affecting existing and potential future inquests, the Bill potentially undermines the rights of victims in significant ways.

I think we all received the same email yesterday from the Northern Ireland Victims Commissioner. In it, he urged me—as I read it—

“to keep the victims, survivors, and their families at the front of your mind.”

Earlier in the letter, he explained:

“Since the Bill started its passage through Parliament on 17 May I have met with many victims and survivors including the Commission’s own Forum, to fully understand how or indeed if, the Bill could work for them. The cold reality is that no-one I have met believes that the Bill is going to help heal or reconcile.”


That environment is not likely to bring us to one of the fundamental objectives that the Government have set themselves here—of bringing an end to this litigation —and which other noble Lords have spoken in great detail about the necessity of achieving.

Article 2 of the ECHR requires that:

“Everyone’s right to life shall be protected by law.”


In that light, it is incumbent on the Government to explain how the proposals for the ICRIR, which is created to recover information about a death or serious injury but does not provide any legal remedy, are compatible with their ECHR obligations under Article 2.

This is a point that I do not think anyone else has made, but it is an important and serious one that we should make in the current conditions: while the risk of the UK breaching its obligations under international law is serious in and of itself, it is perhaps exceeded in seriousness by the fact that it compromises our ability beyond these shores to challenge other nations when far more serious and fundamental breaches occur.

Those hostile to human rights in authoritarian states are watching. So too are human rights defenders in other states who substantially depend on us. How will we be able to insist that, for instance, Russian commanders are held accountable for atrocities in Ukraine? We are presently and properly investing millions of pounds in collecting the evidence of those very possibilities. The retort is dismally predictable. How can we insist upon accountability under the rule of law when we have exempted potential offenders of our own from just that mechanism?

If accountability is to mean anything, this basic principle must be maintained: that crimes, when proven, are punished and that victims receive justice. While I sympathise with the desire to draw a line under the Troubles and focus on reconciliation, it is an uncomfortable and regrettable truth that justice cannot conform to a politically expedient timetable. More than 1,000 killings remain unsolved. Although I accept that the chances of prosecution diminish with every passing year, the granting of immunity in exchange for information will be seen by many—nay, all—victims as an attempt to achieve present harmony at the price of their past and enduring distress.

Greater unity in Northern Ireland is desirable, although I suspect that unifying the leaders of the DUP and Sinn Féin in disapproval of this measure is not quite the spur to unity that the Government had in mind. How can imposing a set of measures that have attracted disapproval from all communities and shades of political opinion possibly heal the fractures that remain in Northern Ireland?

I applaud those who are seeking to amend this legislation and to improve it, but I have fundamental concerns about the direction of travel represented by the Bill. In her foreword to the 2018 consultation document, Addressing the Legacy of Northern Ireland’s Past, the then Secretary of State, Karen Bradley, wrote:

“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.”


What has changed in the four years since to cause this Conservative Government to jettison what was apparently an immutable principle in favour of this new approach? The answer is clear: either it is not a fixed principle practised by Conservatives in government, or this legislation does not do what it appears to do. I look forward to the Minister clarifying which of these two interpretations is correct.