Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Browne of Ladyton Excerpts

Report stage
Wednesday 21st June 2023 Lords Chamber

“must have regard to the need to ensure that— (a) there is support from different communities in Northern Ireland for the way in which that programme is carried out, and (b) a variety of views of the Troubles is taken into account in carrying out that programme”.

[Lord Browne of Ladyton (Lab)]

My Lords, I will speak to Amendments 71, 72, 73 and 74 in my name, which are amendments to Amendment 70, tabled by the Minister, who has continued diligently to engage with all shades of opinion in your Lordships’ House. Like other noble Lords, I thank him for that.

For the reasons given, I support the amendments in the name of my noble friends Lord Hain and Lord Murphy of Torfaen. At this stage, I feel no need to go over those reasons again. In proposing these amendments, I am conscious that, when juxtaposed with the larger issue of immunity itself, they are confessedly procedural and administrative in their scope. But they do seek to do something in the province of responsible legislation: they anticipate that which can be anticipated, minimise the effect of contingency and, in this particular case, ensure that, if the chief commissioner is unable to consider requests for immunity—whether for reasons of misadventure or owing to a potential or perceived conflict of interest, or for any number of reasons—there is a person empowered to do so. To some extent, this has been anticipated by Amendment 70 in the name of the Minister.

While the government amendment is welcome, the amendments I have tabled seek to do three specific things. Amendments 71, 72 and 73 mandate the appointment of a deputy for the chief commissioner. This deputy would be appointed by the Chief Commissioner immediately upon their own appointment and would be empowered to exercise some or all of the immunity functions if the chief commissioner were absent or otherwise unable to do so. I believe that the mandatory appointment of such a deputy would better ensure a consistency of approach, strengthen institutional memory in respect of such decisions and place a further brick in the wall dividing the Secretary of State—mindful as I am of new subsection (7B) in Amendment 70—from the fraught question of immunity.

Where Amendment 70 seeks to engage that eventuality by recourse first to a rapid nomination by the chief commissioner and, if that is not possible, through an ad hoc appointment by the Secretary of State, my amendments would see such a person already in place. This person would be fully briefed on these issues and placed in their position by the chief commissioner at the start of their term.

Given that new subsection (7C) in Amendment 70 quite rightly mandates that a stand-in for the chief commissioner must have held high judicial office, it is evident that one of the qualities such a person must possess is impartiality. Surely, being appointed by the Commissioner rather than by an active politician in the shape of the Secretary of State would strengthen claims to judicial objectivity rather than the reverse. Moreover, having a named deputy in place from the beginning of the chief commissioner’s term will provide confidence that, where decisions must be made in his absence, they will conform with the standards set by the chief commissioner and follow the tramlines of decision-making in a manner that is consistent across all cases. I beg to move.

[Viscount Brookeborough (CB)]

My Lords, I have listened to everything. I have not bothered to intervene because I basically agree that this is not a great Bill and that all we can hope to do is make it less damaging to what is happening in Northern Ireland.

The one thing that strikes me is that reconciliation is on the face of the Bill. I have been struggling with that and with the definition of “reconciliation”. I decided to look it up on my phone. It is on the face of the Bill: therefore, it is the number one objective of the Bill. If we had reconciliation, we would not be worried about the other things. “Reconciliation” is defined as

“the restoration of friendly relations”

and

“the action of making one view or belief compatible with another”.

The definition goes on to say

“an act of reconciling, as when former enemies agree to an amicable truce”.

The problem is that we know that there is not an amicable truce. We know from the glorification of terrorism and lots of other parts of what we have been discussing that that is not there. Yet it is on the face of the Bill as being the number one objective.

What troubles so many of us in Northern Ireland, whether our families have directly suffered a death, or for all the people we k now who have suffered and their families—one family has been mentioned; three of my soldiers were killed, one after the other, and a sister was mown down on a checkpoint for serving in the security forces—is that the people in Northern Ireland see the Bill coming and would love to have reconciliation but the Government are not giving one little inch to assuaging their lives and their fears. I know that there have been amendments, and everybody is very grateful for that, but, if people are to accept this and if it is to work, there has to be something significant, so they actually feel that it was made for them.

All I plead is this: we really hope that the Government accept some of these amendments, which will enable people to say “Yes, but they have done this and they have worked towards us, and we want to make it work”. We know that at the moment virtually nobody in Northern Ireland is saying that.

--- Later in debate ---

So, I have tabled Amendment 110, which is supported by the noble Baronesses, Lady Ritchie and Lady Suttie, and the noble Lord, Lord Murphy. I ask your Lordships to support this amendment, which I intend to press on Monday, and to allow the outstanding inquests to continue.

[Lord Browne of Ladyton (Lab)]

My Lords, I stand to speak to Amendments 100, 103, 104 and 148 in my name, which are in this group. I find difficulty in explaining this: there are other amendments in my name in this group. Respectfully, they are Amendments 101, 149 and 150, and the fact that they are in this group concerns me because they are consequential to Amendment 123, which is in the eighth group. I will take advantage of raising this: Amendment 123 simply seeks to remove the phrase,

“the actual date of the First Reading”,

from the Bill and to substitute the actual date of the First Reading, which was 17 May 2022. That will probably save me a few seconds when we come back on Monday. That is the position.

Before I turn to Amendments 100, 103, 104 and 148, I will say two things. I fully support Amendment 110 in the name of the noble Baroness, Lady O’Loan, and will vote for it if she divides the House. I thank the noble Lord, Lord Caine, for addressing an issue that I raised in Committee about respect for devolution and the recognition that Scotland has had a separate jurisdiction from England since 1707 in the context of the UK and the role of the Lord Advocate. He has tabled an amendment to ensure that, in circumstances where, following a review, the commissioner for investigations considers that there is evidence that an offence has been committed, a referral must be made to the Lord Advocate where the suspected offence is an offence under the law of Scotland.

Insofar as it goes, this respects devolution. New subsection (2C) in the amendment reads as follows:

“The Lord Advocate may direct the Commissioner for Investigations to exercise the power of referral and notification in accordance with subsection (2B); and the Commissioner must comply with any direction that is given unless the person concerned has been granted immunity from prosecution under section 18 for the offence concerned”.


So, the commission still has the power to impact or to make a decision which will have extrajudicial impact in Scotland. That of itself, I suspect, will be considered disrespectful of devolution by the Scottish Parliament. That is perhaps a debate for another day, but I imagine that that debate will have to be had.

I return to Amendments 100 and those following. In tabling and speaking to these amendments, I am seeking to ensure that civil actions relating to the Troubles are not discontinued precipitately; that we reduce the risk of non-compliance with our obligations under Articles 2 and 6 of the ECHR; and that we preserve for a period of time a path to justice—albeit narrowing—for those families whose concerns, after all, ought to be paramount as we seek to improve this legislation.

Amendment 100 removes the blanket proscription on Troubles-related civil actions continuing on or after the day this Bill comes into force and instead allows such civil actions to be brought up to three years after that date when necessary. Given that, as we know, the ICRIR does not provide a legal remedy for victims and their families, surely accompanying the Bill’s other provisions with a complete ban on civil actions adds an element of insult to injury. Perhaps more seriously, this precipitate closure of an avenue towards civil redress, as I explained in detail in Committee and will not repeat, directly engages the UK’s obligations to offer access to a court under Article 6 of the ECHR.

As this Bill has journeyed through its various stages in your Lordships’ House, we frequently heard concerns about the degree to which the scope and powers of the ICRIR may already compromise access to justice, echoing the view of the former Northern Ireland Director of Public Prosecutions, who suggested that the Bill is incompatible with the ECHR as it abolishes due process. Surely, precluding the possibility of any further remedy through civil actions only imperils compliance with our ECHR obligations still further.

In considering the amendments I have put forward in this group, I returned to the official record of the Committee debates and re-examined the Minister’s response, which was characteristically thorough and generous of spirit. In his response on civil claims, he outlined three principal reasons that underlie his desire to discontinue all civil claims as outlined in Clause 39. He expressed concern, first, that they may impose an additional burden on the already backlogged Northern Irish civil courts; secondly, that they might reduce the status of the ICRIR as the primary institution dealing with Troubles-related offences; and, thirdly, that a three-year deadline might concentrate minds and lead to an enormous number of filings before this avenue of recourse is removed.

My answer to the first of these reasons is quite simple. Where families feel that a civil action is more likely to bring them the justice they seek, surely, administrative sclerosis is not an adequate reason for denying them that recourse. There are plenty of examples of this. Although I understand that the pandemic exacerbated the already considerable difficulties in this area, I struggle to countenance the idea that the solution to a struggling justice system is to deny justice to specific groups, rather than for the Government just to get to grips with the problem and make access to justice easier.

On the Minister’s second concern, I understand his need for the ICRIR to establish itself as the primary actor in Troubles-related offences, but while that imperative is important, it is surely trumped by the interests of the families it will be established to serve. Where they feel that civil action is their preferred recourse, the institutional interests of the ICRIR are, to say the least, secondary.

On the third point, about the possibility of a flurry of actions being filed to meet the three-year deadline, what is wrong with that? Some 25 years ago, I regularly appeared before courts and quite often asked judges to do things. On occasion, the judges would say to me, “But Mr Brown, that will open the floodgates”, or the people on the other side of the argument would say that it will open the floodgates. I developed quite a neat line, which was to say, “My Lord, this is a court of justice. If you are considering granting justice to one person today, it’s hardly a reason not to do so because somebody will come and ask you to do the same thing tomorrow”. That is what courts of justice are there for. Again, I appreciate the level of the backlog being worked through by the Northern Irish courts, but ultimately it is their job to dispense justice.

--- Later in debate ---

[Lord Caine (Con)]

It is assessed in the normal way, which the noble Baroness will know, in Northern Ireland. Inquests are covered by legal aid. The noble Baroness will know from looking at the Bill that cost proceedings where civil cases have begun can be continued. Anyway, I just wanted to try to be helpful to the noble Baroness in clarifying that.

[Lord Browne of Ladyton (Lab)]

I apologise for intervening on the Minister, but he did provoke me. My amendments relate to civil proceedings in these islands. There are sophistications about this, but broadly, costs go with success. In civil litigation, the people who win get costs against the people who made them go through the process in the court, at all that expense, but lost.

If the Government prevent anybody from winning or losing, who is going to bear the costs? I would find no difficulty in persuading a court that my party to a civil action had not lost at all. Therefore, we are both left with our own costs. However, the Government are responsible, through this legislation, for that cost for both of us. Neither of us had the opportunity to win, so we would come to the Government looking for costs. Either the Government will anticipate that in this legislation, or they will have to legislate for the number of people who have had civil claims stopped.

[Lord Caine (Con)]

Well, maybe I was very mistaken in trying to answer some of the questions put to me. I was merely setting out what is stated in the legislation, as the noble Lord will appreciate. I thank him. I do not intend to go over all the same arguments we have had extensively on all these matters, particularly at this late hour.

Moving on to the amendments in the name of the noble Lord, Lord Browne of Ladyton, on civil claims, as has been set out many times, our clear policy intent regarding Troubles-related civil claims is to reduce the burden on the Northern Ireland civil courts, which are ill-equipped to process such numbers, while allowing the ICRIR the ability to establish itself as the sole investigative body looking at Troubles-related deaths and serious injuries.

The amendments in the name of the noble Lord, Lord Browne, include Amendment 159. This would provide a three-year grace period for civil claims to be filed and would direct potential casework away from the new commission while placing further strain on an already creaking system in Northern Ireland. Under current estimates, it will take decades to work through its current backlog of over 700 cases. This is much less likely to provide answers for families in an efficient manner, which, again, sits in opposition to the stated aims I have set out.

In relation to Amendment 104, I remind the House that all civil claims filed before the date of introduction—over 700 cases—will be able to continue to conclusion. Claims that were filed following the Bill’s introduction, and with the knowledge that this prohibition would come into force when the Bill became an Act, will not.

In response to Amendment 98A in the name of the noble Lord, Lord Dodds, I sympathise with the sentiment behind the amendment, which is to provide additional scope for prosecutions to proceed. The amendment tabled in my name provides additional time, until 1 May 2024, for prosecution decisions to be made by prosecutors. It is the Government’s hope that, with this additional time, resources can focus on concluding a number of decisions in legacy cases before the cut-off point of 1 May 2024, when the commission will become operational.