Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Browne of Ladyton Excerpts

Committee stage
Thursday 11th May 2023 Lords Chamber

Moved by

[Lord Browne of Ladyton]

146: Clause 34, page 28, line 10, leave out “continued or”
Member’s explanatory statement
This probing amendment deletes “continued or” from Clause 34(1).

[Lord Browne of Ladyton (Lab)]

My Lords, I will also speak to Amendments 155 and 156, and to consequential amendments 152 and 157 to 161. These are supported variously by the noble Baroness, Lady O’Loan, and my noble friends Lord Murphy of Torfaen and Lady Ritchie of Downpatrick. My preference would be to see the removal of Clauses 39 and 40 from the Bill, as proposed by the noble Baroness, Lady O’Loan, and my noble friends Lord Murphy, Lady Ritchie and Lord Hain. However, I will restrict myself to the amendments in my name.

I take this opportunity to thank the Minister for his continued engagement on the Bill with me and others. I am sure we will have an opportunity in future to discuss some of the significant lengths he has gone to since the Committee last met to deal with some of the issues we have raised. In my view, some of these amendments make parts of the Bill—which I do not fundamentally support, but that is another matter—slightly more palatable. The Minister is very open and has done prodigious work in this regard, as have his officials, who are doing a very good job. They are admired by all noble Lords who have been engaged in this process.

Truth and justice are not merely two sides of the same coin; they exist in active relation to one another. They both are—and must be—indispensable elements of an alloy that can carry and sustain a lasting peace in Northern Ireland. Amendment 146 and its consequential amendments delete the time-limiting element of Clause 34, thus preventing criminal investigations being discontinued precipitately. I do not wish to stray into broader territory that is more customarily the stuff of Second Reading debates, but I wish to adduce an example that shows why this is important. In August 1974, John Pat Cunningham was shot and killed by a British serviceman. The soldier in question was finally put on trial in Belfast in 2021, 47 years later.

There are other families from all communities in Northern Ireland in that position—seeking justice for the deaths of loved ones. In earlier debates on this subject we heard of the case of Malvern Moffitt, murdered by IRA terrorists around 40 years ago. That is not an uncomfortable footnote in history but a tragedy whose concentric circles continue to lap at his family. His widow has expressed her profound upset at the prospect of the Bill in its current form receiving Royal Assent. His children gave a powerful and moving television interview in response to the Committee stage in the other place last year—something that should give us pause today.

Noble Lords will be familiar with the rule 9 submission by the Council of Europe Commissioner for Human Rights, dated 16 August 2022, which specifically focuses on this Bill. The submission is informed by a year’s close monitoring of the Government’s legacy proposals, engagement with the different stakeholders and, during a week-long visit, engagement with the Minister and his officials in the NIO.

I direct your Lordships’ attention to paragraph 15 of that well-written and comprehensive submission, which reads:

“In her September 2021 letter, the Commissioner already highlighted the importance of the interaction of different mechanisms in ensuring justice, truth and reconciliation. With regard to justice, it was noted throughout the visit that other mechanisms than prosecutions, such as inquests, Police Ombudsman investigations and civil proceedings have often been instrumental in uncovering information that could subsequently be used to ensure accountability. Furthermore, the various mechanisms have been able, to some extent, to cater for the different needs of victims, since these will not be the same for all. At the end of her visit, the Commissioner noted in this respect that ‘unilaterally shutting down options that many victims and families value greatly as part of their way of dealing with the past ignores their needs and wishes, and is causing many of them deep distress’”.


This is a question not merely of fairness but of compliance under our Article 2 ECHR obligations. In raising the question of these obligations, I realise that I am failing to conform with recent innovations whereby breaching these obligations is advertised as a bold innovation rather than a prohibition. In the case of Armani Da Silva v the UK, the court ruled that:

“Having regard to its fundamental character, Article 2 of the Convention contains a procedural obligation … to carry out an effective investigation into alleged breaches of its substantive limb”.


The question of effectiveness is crucial. I will quote further from that decision, as it speaks directly to what constitutes an effective investigation. If an investigation is to meet the preconditions of effectiveness, it must have the possibility of leading to punishment. The relevant passage runs:

“In order to be ‘effective’ as this expression is to be understood in the context of Article 2 of the Convention, an investigation must firstly be adequate … This means that it must be capable of leading to the establishment of the facts, a determination of whether the force used was or was not justified in the circumstances and of identifying and—if appropriate—punishing those responsible … This is not an obligation of result, but of means”.


This seems both compelling and clear. It would be useful to know with what elements of that judgment the Government wish to disagree and upon what authority such a disagreement might rest. In this context, it may be worth recalling the words of the Minister for Veterans Affairs, who, in giving evidence to the Joint Committee on Human Rights in 2020, conceded that there had been

“a serious generational problem with the standards of investigations”

carried out into the conduct of British servicemen and that

“a lot of the investigations have not withstood rigour as regards ECHR compliance”.

He concluded those remarks by stating boldly that that

“has been a major problem”.

I regret to say that as it stands, this Bill will deepen and not mitigate that problem.

This same question of Article 2 compliance also underlies Amendments 155 and 156, together with their consequential amendments. Probing Amendment 155 would delete Clause 39(1) from the Bill. That subsection states:

“A relevant Troubles-related civil action that was brought on or after the day of the First Reading in the House of Commons of the Bill for this Act may not be continued on and after the day on which this section comes into force”.


Again, this seems to breach not only the demands of natural justice but our Article 2 obligations. Amendment 156 in my name and that of the noble Baroness, Lady O’Loan, and my noble friend Lord Murphy seeks to defang this particular risk by deleting the words “on or after” from Clause 39(2) and substituting “three years after”. The amendment would ensure that a Troubles-related civil action can be brought up to three years after the coming into force of Clause 38.

Amendments 155A, 161A, 161B and 178A are easy to explain. Clause 52(8)(c) refers to the

“actual date of the First Reading”.

The actual date was 17 May 2022, so the formula proposed in Clause 52(8)(c) is unnecessary if the Bill is otherwise amended to refer to 17 May 2022, which is exactly what this group of amendments does.

Lastly, I turn to the role of the Secretary of State in curtailing criminal investigations. Under these provisions, as it stands, it threatens incompatibility with Section 48(5) of the Scotland Act 1998. Two committees of the Scottish Parliament examined the Bill, and the consequent legislative consent memorandum points out that the Bill makes “novel and unwelcome changes” to the functions of the Lord Advocate as the head of the systems of criminal prosecution in Scotland. In particular, the power of the ICRIR to refuse to refer appropriate cases to the Lord Advocate compromises their independence, a supposedly inviolable principle under-pinning the whole architecture of the Scottish legal system. I would be grateful if the Minister made it clear why, and in what way, he believes that the role of the Lord Advocate is not compromised as I have outlined. Passing legislation aimed at bringing harmony to one constituent part of the United Kingdom by creating constitutional problems in another seems at the very least a somewhat quixotic way to proceed.

I would be grateful if the Minster could answer these questions of compatibility. If he is not disposed to accept these amendments, could he further explain how the Government will ensure that these provisions do not breach our obligations, both in the context of my earlier points on Article 2 of the ECHR and this Bill’s compliance with the Scotland Act 1998? I beg to move.

[Lord Faulks (Non-Afl)]

My Lords, I shall speak to Amendment 154A. I apologise for my late arrival to the debate on this important Bill, and for the lateness of this amendment, in my name and that of the noble Lord, Lord Godson.

At first sight, noble Lords may be a little bewildered as to where the amendment is directed. It arises out of a decision of the Supreme Court in a case concerning Gerry Adams. The decision was given on 13 May 2020.The only judgment of the court was given by Lord Kerr, who described the regime in Northern Ireland, commonly known as internment. As many noble lords will be aware, the way in which interment operated was initially by an interim custody order, or ICO, which was made when the Secretary of State considered that an individual was involved in terrorism. That person was taken into custody and had to be detained there, to be released within 28 days unless the chief constable referred the matter to a commissioner. Detention continued while the commissioner considered the matter. If satisfied that the person was involved in terrorism, the commissioner would make a detention order. If not so satisfied, the release of the person detained would be ordered.

--- Later in debate ---

[Lord Caine (Con)]

As the noble Baroness is aware, claims that were filed before the introduction of the Bill last year will be allowed to continue, but there will be a cut-off thereafter. As she is also aware, other avenues are available for compensation which Parliament has introduced in recent years, such as payments for those who were injured and so on in the Troubles.

[Lord Browne of Ladyton (Lab)]

My Lords, I will be brief. I thank the Minister for his characteristic way of responding to debates such as this. Subject to a few interventions on parts of the argument that noble Lords thought he had not dealt with, he covered the debate, as he always does, very comprehensively. He is probably the most open Minister I have ever been involved with in debates in your Lordships’ House. He did it at speed, though, so this issue probably bears some consideration between now and Report. In any event, he is inviting us to do that and will be doing it himself.

I thank all noble Lords who have contributed to the debate. My amendments were probing in nature, but once grouped with the amendments from the noble Baroness, Lady O’Loan, and the noble Lord, Lord Dodds of Duncairn, this became a comprehensive debate on issues that the noble and right reverend Lord, Lord Eames, correctly described as, in the view of many, the greatest failure of this legislation. This debate is about the scale of that failure. I admire the Minister’s ability always to defend the Government’s policy intent, but we have an argument with that intent. The fundamental challenge of this debate is that others, almost universally, think that the policy intent is wrong and that the sacrifices having to be made in other areas, such as the needs of survivors and victims, should not be made. In any event, I do not propose to say anything further on this.

Before I sit down, however, I must make some reference to Amendment 154A, and I do this in a personal context. Between 2001 and 2003, I was a Parliamentary Under-Secretary of State in the Northern Ireland Office. I signed a number of warrants—thankfully, none authorising an interim custody order—some of which were on behalf of my noble friend Lord Murphy of Torfaen when he was Secretary of State. So, if the implications of the current state of the law are sufficiently far-reaching, they may reach me as well. I am not sure that they are: I got notice of this amendment very late and have had insufficient time to look at it and its implications.

The noble Lord, Lord Faulks, will appreciate that, while, on the face of it, I was persuaded of the importance of this amendment—or at least part of it—by his introduction and the other contributions, I will keep my powder dry until Report, when I am sure it will come back. In the meantime, I beg leave to withdraw the amendment.

Amendment 146 withdrawn.