Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Browne of Ladyton Excerpts

Committee stage
Tuesday 31st January 2023 Lords Chamber

Moved by

[Lord Browne of Ladyton]

12: Schedule 1, page 50, line 34, leave out “Secretary of State” and insert “Northern Ireland Judicial Appointments Commission”
Member’s explanatory statement
This and subsequent probing amendments in the name of Lord Browne remove the Secretary of State from various roles in connection with the appointment and holding office of Commissioners.

[Lord Browne of Ladyton (Lab)]

My Lords, I will speak to Amendments 12 and 13 in my name and those of the noble Baroness, Lady O’Loan, and my noble friend Lord Murphy of Torfaen; Amendment 16 in my name and that of the noble Baroness, Lady O’Loan; Amendments 24 to 30 inclusive, which are all consequential; and, finally, Amendment 178, which will not detain us for very long.

Amendments 12 and 16 and their consequential amendments are probing amendments. Their effect is to remove the Secretary of State from the various roles in connection with the appointment and holding office of commissioners of the ICRIR, which, with the leave of the House, I will hereafter refer to as “the commission”. The amendments would replace the Secretary of State with the Northern Ireland Judicial Appointments Commission —NIJAC.

As it stands, the Bill confers sweeping powers on the Secretary of State, including the power of appointment to the newly established commission and powers over the process of the commission itself. These powers include but are not limited to: control over the commission’s funding; the power to request reviews; the appointment of commissioners; the devising of procedures for dealing with requests around immunity; the power to withhold permission for the disclosure of sensitive information; the power to terminate a review on national security grounds; and, most importantly, the power to wind up the commission itself.

The Government have noted the concerns relating to the commission’s lack of independence and have proposed an amendment to strengthen the commission’s independence by making it clear that the Secretary of State should consult individuals before appointing the chief commissioner. It is clear that independence is a precondition for investigations to satisfy our obligations under Article 2 of the ECHR. The purpose of the probing amendments in my name, and the consequential amendments, is to discern to what extent the extraordinarily wide-ranging powers conferred on the Secretary of State, even after the Government’s amendment, compromise that independence and risk a breach of our ECHR obligations.

One of the functions of independence is securing public confidence in the operation of investigations; to do that, it is necessary for the investigations to be independent—and to be seen to be independent. The role of the Secretary of State in relation to the commission, as currently envisaged, has attracted criticism from all communities in Northern Ireland. The Government have assured us that the commission will have full operational independence; we are assured that that includes the establishment of terms of reference, the appointment of staff and the making of all decisions related to the conduct of investigations. Of course, the commission may appoint its own staff, but that will be done by the commissioners appointed by the Secretary of State. The commission may make decisions related to the conduct of investigations, but with the hand of the Secretary of State ever present and able either to block disclosure or to shut the body down altogether. The commission may make decisions related to immunity applications, but only if the salient question is whether the applicant is telling the truth to the best of their knowledge and belief, and they must take account of any guidance given by the Secretary of State about when that condition is met. It is difficult to consider that a genuine and objective decision at all.

Defending the system, the Government have cited the Northern Ireland Human Rights Commission and various independent public inquiries as precedents, suggesting that it is common practice for the Secretary of State to appoint commissioners or chairs to organisations which enjoy absolute operational independence. The problem is that that is not comparing like with like; there is no way that an individual inquiry or human rights body with limited powers is comparable with the amount of responsibility being placed on the commission by the Bill. That responsibility is to provide the sole route to justice for anyone who lost a loved one during the Troubles.

Noble Lords will have noticed that my amendment does not seek to address all the powers of the Secretary of State. Because of its probing nature, it concentrates, in this form, on only some of those powers, particularly as there is a genuinely independent alternative to the Secretary of State: the Northern Ireland Judicial Appointments Commission. Additionally, the commission’s functions include:

“To select and appoint and recommend for appointment, in respect of all listed judicial offices up to and including High Court Judge … To recommend applicants solely on the basis of merit … To engage in a Programme of Action to secure … that appointments to listed judicial offices are … reflective of the community in Northern Ireland.”


Again, that provides independence, but, crucially, it does so in a way which is transparent and will disarm those who may suggest that the commission is simply an arm of the UK Government in Northern Ireland. Why not forestall those criticisms and remove the Secretary of State from the area of appointments altogether? The NIJAC is accustomed to appointing those who fulfil statutory requirements and who are of good character and have integrity. Furthermore, the link between the commission and the judiciary is embedded in the Bill, as the chief commissioner must be a person who holds, or has held, high judicial office, and almost all those candidates have been appointed to their judicial role by NIJAC.

In addition to the issues with the composition of the commission, many noble Lords will be aware of an uneasiness about how this body will work, from where it will derive its legitimacy, what mechanisms exist for scrutiny, and, where necessary, how we can ensure that it is responsive to concerns in a way that is not simply subject to the fiat of whichever Secretary of State happens to be in post. Those issues speak to a wider systemic problem with the Bill.

The delegated powers memorandum contains a remarkable paragraph which encapsulates my concerns and those of other noble Lords:

“Legacy matters are highly controversial, politically charged and divisive in Northern Ireland. A vast number of issues remain unresolved as a result of political and societal impasse and there is no single accepted or agreed way to address them … There is a very real prospect that providing the Northern Ireland Assembly with the power of veto in relation to delegated powers could frustrate the purpose and application of the provisions in the Bill, which in the Government’s view is necessary to achieve progress and reconciliation in Northern Ireland.”


That is an explicit acknowledgment that the Government have decided to exclude the elected representatives of the people of Northern Ireland from important decisions for fear that they will not agree with the direction of travel determined from London. If we were to mould the Bill into a shape which will satisfy everyone in Northern Ireland and be seen as an attempt, in good faith, to further the course of reconciliation, the composition of the commission will need to be seen as independently determined.

Further, it will need to be seen as an avowedly apolitical body aimed at achieving a true incremental reconciliation woven from the skeins of public opinion in Northern Ireland, not a reconciliation based on our perceptions in London. I do not propose to put my amendments to a vote but urge the Government to engage with their provisions critically and take appropriate steps before Report.

I intend to dispose of Amendment 178 at the earliest possible opportunity. Consequently, with the leave of the Committee, I shall say no more about it. I beg to move.

--- Later in debate ---

On that note, I invite noble Lords not to press their amendments, as I of course shall not press mine.

[Lord Browne of Ladyton (Lab)]

I thank the Minister for his characteristically engaging response. He addressed a significant number of the issues that I and other noble Lords raised, reflecting the co-operation that we have all had from him, his Bill team and his private office. I have previously expressed my thanks for that but I am perfectly pleased to associate myself with the words of other noble Lords on that issue.

The one thing that is certain about the Bill, if it becomes an Act of Parliament, is that the independence of the ICRIR will be tested in legal proceedings that will define independence for us. It will not be, as a number of noble Lords have suggested, a question of independence meaning different things to different people; in that context, it will mean some very specific things.

When I introduced this group of amendments, I sought to give some indication of what I think that body will look for in independence if it is to conclude that the process is complying with the European Convention on Human Rights and with our history and the rule of law in these islands. In my view, it is highly improbable—in fact, impossible—that it will conclude, with this level of political interference in the commission’s work and the way in which it has been set up, that this not only is independent but can be seen to be independent. That will be a significant flaw in the whole process. I think all noble Lords realise that. They may not agree with me that that will be the conclusion, but there is an overwhelming body of opinion and expertise out there that believes that is the case, and we have all been briefed on that.

I thank all noble Lords who have contributed to this interesting debate, particularly those who supported my amendments. Those amendments were intended not to be definitive on this whole issue of independence but to be a way into the debate, and I am glad to say that they succeeded in being that. I am particularly grateful to the noble Baroness, Lady O’Loan, for bringing in her contributions experience that showed that, beyond the points that I identified, there are other issues in the Bill that undermine independence.

I am grateful to the noble Lord, Lord Dodds of Duncairn. I share his view about the Bill, that this whole exercise is irredeemably flawed. The major issue that he raised, which is clearly foremost in his mind, is that of immunity, which we shall come to later today. I am focusing on independence at the moment, and in this group we are looking at independence. I cannot see how that can be consistent with what we have heard today from people with experience interpreting the words of the Bill and relaying to us, from their experience with victims, that there is concern here about the issue of independence.

I say to the noble Baroness, Lady Hoey, that the independence that I am talking about is not restricted to any part of the geography of these islands. It is independence from political control at a level that does not allow the informed examiner of how this will work to conclude that it is independence that is necessary for a process of this nature to satisfy the text. Now, that is going to be tested. I invite the Minister to look at this issue beyond the point that I highlighted in order to get into this debate, which is the appointment of the commissioners. I see the criticism that he makes of that, but the criticism goes much beyond just the appointment of the commissioners.

I ask the Minister to consider some of these points and take seriously some of the well-informed criticism from outside about where this is all going to end up. There are alternatives if he wishes to proceed on this basis—although I am not certain that they can be applied—to give the Government the results that they want. I ask the Minister to go away and think about this and perhaps come back with a response. I will look carefully at the words he has said. I have indicated that I intend to withdraw the amendment in my name, but if the Minister does not come back in anticipation of Report with some response to this issue which is convincing on independence, there will be a race between me and the noble Baroness, Lady O’Loan, to put down an amendment of this nature to be debated and perhaps voted upon on Report. I beg leave to withdraw my amendment.

Amendment 12 withdrawn.

--- Later in debate ---

Our subsequent Amendment 131 removes the Secretary of State’s power under Clause 21 to give guidance to the ICRIR about how to operate the immunity system. It would leave the immunity requests panel, which comprises the chief commissioner—a person who holds or has held high judicial office—and two ICRIR officers, who must be senior lawyers, as provided for in Clause 22, to make its decisions with complete and unfettered independence. If this immunity system is to operate at all—and I do not believe that it should—it will be vital that there can be no suggestion that the independence of the immunity requests panel is in any way compromised by political interference.

[Lord Browne of Ladyton (Lab)]

My Lords, I have amendments in this group. I say emphatically at the outset to the noble Lord, Lord Cormack, and other noble Lords that I am not in the business of silk purse manufacturing. But I do have amendments in this group and I will explain the purpose of them. My noble friend Lord Hain’s decades—in fact, lifetime— of commitment to human rights issues, peace and reconciliation, and latterly, for decades, to the people of Northern Ireland, is to be commended. I do not believe that he is in that business either; he explained himself the purpose of these amendments. I say in support of him that, if his Kenova amendments were accepted, we would not be dealing with this Bill. It would fundamentally change the legislation we have before us and, in my view, open up lots of other opportunities. In terms of the support for reconciliation, it may be potentially more valuable than what we have here.

Amendments 113, 115 and 119 are in my name and supported by the noble Baroness, Lady O’Loan, for whose support I am once again extremely grateful. They are probing amendments with the effect of ensuring that the ICRIR—the commission—must consider whether granting immunity from prosecution would be compatible with convention rights and, as important, compliant with the constitutional principle of the rule of law, as well as satisfying the interests of justice. Amendment 115 is the active amendment, Amendment 113 is a paving amendment and Amendment 119 is consequential.

The other purpose of Amendment 115 is to create an opportunity for your Lordships’ House to explore the compatibility or otherwise of the immunity provisions of the Bill with our obligations under Article 2 of the European Convention on Human Rights and the constitutional principle of the rule of law. Also inherent in this question is the scope of the commission to deal with the question of immunities without the guiding hand of the Secretary of State, in a way that is truly and avowedly independent—a point I made in the earlier debate.

To deal briefly with that second question first—and to repeat myself in a sense, if I may—the Bill does empower the commission to make decisions relating to immunity applications. But if the only salient question precedent to the exercise of this power is whether the applicant is telling the truth “to the best of” their “knowledge and belief”, and at the same time it

“must take account of any guidance given by the Secretary of State”

about when this condition is met, it is very difficult to consider this as any genuinely independent decision at all. I ask the Minister to consider the language of the Bill here. “Take account of” could imply various widely divergent systems in practice. Does it imply oversight, indifference or interference? Given the importance of independence and the appearance of independence in the conduct of reviews and investigations, I would welcome guidance from the Minister here in clarifying what this would look like in practice.

Turning to the wider question of compatibility, I read the Government’s ECHR memorandum issued by the Northern Ireland Office with great interest. It acknowledges candidly that the Bill will

“restrict or prohibit the investigation and prosecution of offences arising out of Troubles-era deaths”

and will

“therefore engage the UK’s obligations under Article 2 of the Convention.”

But there are certain minimum requirements that investigations must meet for the state to be conforming with its duties to protect the right to life as defined by its obligations. Investigations must be independent—as we debated earlier—effective, prompt and open to public scrutiny and must involve the next of kin.

Noble Lords have considered and are considering the questions of independence and transparency elsewhere, and we may come back to them on Report. But, speaking to the questions on the involvement of the next of kin and effectiveness, I would observe that, while the involvement of the next of kin is mandated, the European court previously has ruled that the state cannot rely solely on the next of kin, but rather that

“authorities must act of their own motion, once the matter has come to their attention.”

However, the Explanatory Notes to the Bill suggest that reviews primarily will be instigated by the next of kin rather than by the state. I hope the Minister will help me to square that circle in his response.

Most of all, it is unclear just how “effective” a commission review can be said to be, considering the weakness of the body’s powers and the immunity provisions in the Bill, to which I now turn. In their ECHR memorandum, the Government argue that the conditional immunity scheme can be justified as

“a proportionate means of achieving and facilitating truth recovery and reconciliation in Northern Ireland”.

In interrogating this assertion, we must ask two questions. First, will the immunity scheme prove an effective and proportionate means of achieving reconciliation? Secondly, may amnesties be accepted at all under the European convention?

Under the Bill’s provisions, to receive immunity, a person must just offer an account of their behaviour that is

“true to the best of”

their “knowledge and belief”, even if this account is already entirely in the public domain. This contrasts with the South African Truth and Reconciliation Commission, which demanded

“full disclosure of all the relevant facts”

as a precondition of amnesty. What fresh truths could one expect to uncover given this somewhat anaemic provision? It is hard to see how the cause of reconciliation is furthered by the spectacle of killers being granted immunity in return for partial and self-serving recollections.

Even if it were effective, it is far from clear that amnesties might be accepted at all under the ECHR. The Government acknowledge that previous amnesty schemes launched without reconciliation processes have been found to undermine Article 2, citing the case of Ould Dah v France and the court’s finding that

“an amnesty is generally incompatible with the duty incumbent on the States to investigate such acts.”

Yet the Government suggest that it is unclear in case law whether amnesties will be incompatible in all cases. The ECHR memorandum reads—this is crucial, because this is the basis of the Government’s immunity and amnesty—that the European Court of Human Rights

“has countenanced the possibility of an amnesty being compatible with Article 2 in some particular circumstances, including where a reconciliation process is in existence”.

The Government specifically cite the case of Marguš v Croatia. They go on:

“It is therefore an open question as to whether the Court would find an amnesty to be compatible with the Article 2 procedural obligation where there are alternative procedures that allow for investigation, information recovery and reconciliation.”


An “open question” where a “possibility” has been “countenanced”. This is hardly an endorsement of the Government’s legal position.