Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Caine Excerpts

Committee stage
Tuesday 31st January 2023 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I thank the noble Baroness, Lady O’Loan, for bringing forward these amendments, which I think are very helpful. However, she said earlier—the noble Lord, Lord Dodds, referenced it as well—that while many in your Lordships’ House, perhaps everyone, think that this Bill is not fit for purpose and should not be brought, there is an obligation on us to do what we can to improve legislation. That is our role, and I think her amendments today and the way in which she has spoken to them illustrate that sharply.

They are a very helpful amendments because surely at the heart of any investigation is access to information. I was struck by the noble Baroness’s comment about there not being clarity if there is a test or qualification about getting that information, as it can take longer, be more expensive and does not do the job that this clause is probably intended to do.

As we know from other Troubles-related investigations, relevant information can be held by different authorities and different agencies. One of the things that the commission—I say that to save having to go through the initials and stumble over them—will have to do is access that information quickly if it is to gain as complete a picture as possible. I will be interested to hear what the noble Lord has to say and hope that he will view the amendments sympathetically when he comes to respond.

I understand the reasons the noble Baroness, Lady Smith, has put forward the amendments about the affirmative resolution. I think there is a general issue about government regulations; they seem to be heavily weighted. If we were to look at a chart of how many decisions are made or how much legislation can be done by secondary legislation, I think we would see quite a sharp incline in recent years. It is not a big leap from a negative to an affirmative procedure; it just guarantees that it will come before both Houses. But these are quite big issues. If something cannot be in the Bill, and if there are reasons why it has to be done by regulation, then it seems perfectly reasonable to have the affirmative procedure. Will that be enough, given that, as we all know, statutory instruments are an adequate of way of legislating when everything is set out first in the primary legislation? As I understand it, this is about looking at individual cases. I hope the Minister can give some reassurances on that. The noble Baroness, Lady O’Loan, has done the Committee a service by bringing forward these amendments today.

[The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)]

My Lords, I am grateful to those noble Lords who have put forward these amendments. In responding, I am conscious of the experience in these matters of the noble Baroness, Lady O’Loan, both in her role as police ombudsman and in the subsequent investigations and reviews that she has carried out.

The noble Baroness’s Amendments 37, 40, 191 and 197 aim to redefine the disclosure requirements of certain relevant authorities by, as she pointed out, creating a new tier of “special relevant authority”. This would mean that any authorities left in the “relevant authority” category, such as the ombudsman or the chief constable of the PSNI, would be required to disclose all material to the ICRIR regardless of whether or not it is reasonably required, while certain other agencies, such as MI5 and MI6—the Secret Intelligence Service—would be able to rely on the provisions as drafted, being required to provide information only where reasonably required.

The Government’s view is that the amendments are unnecessary, as we are clear that the disclosure provisions in the Bill already go further than ever before in statute in terms of putting relevant authorities under a duty to disclose information if it is reasonably required by the commission for its investigations.

[Baroness O’Loan (CB)]

I thank the Minister for giving way; I know that it is late. I just want to let him know that, as police ombudsman, I had a power to require information. There was no requirement of reasonableness in the requests; clearly, the requests were reasonable, but there was no requirement for them to be so. This is a new requirement.

[Lord Caine (Con)]

I totally accept what the noble Baroness says about her experience as police ombudsman; I think that it has been less straightforward in the case of information from other bodies over the years. That is why the Government have placed this obligation on bodies to disclose information, which goes further than ever before. Indeed, the provisions directly mirror those included in the draft legislation to give effect to the 2014 Stormont House agreement, so they have been around for some time, certainly in draft form.

The noble Baroness will be aware that “reasonableness” is not a term created or policed by the Government. It is widely used and understood; it is included in other legislation, such as the Finance Act 2008; and it has a specific purpose in terms of creating obligations on others to provide information. The law requires all public bodies to exercise their powers reasonably and proportionately. It is open to authorities to challenge an assessment of reasonableness, of course, but our expectation is that the ICRIR would request the information only if it were reasonably required for the purposes of discharging its functions, so any challenge would be likely to fail if the commission followed this practice. Ultimately, it will be for the courts to decide whether the commission has acted reasonably in any case.

On Amendments 39 and 185, which would add to the list of individuals who may be required to assist the commission in handling information that they have disclosed under Clause 5, the Government are confident that all relevant individuals are already listed in the legislation. However, I am happy to take that away and look at the clause again.

As the noble Baroness, Lady Smith of Newnham, pointed out, Amendment 145 in her name—I welcome her to our debates—would require regulations regarding the retention of biometric material under Clause 31 to be made by the affirmative rather than the negative procedure. I assure her that the Government take their international obligations in this area—and in other areas, I hasten to add—very seriously. We are confident that our approach to the retention of legacy biometrics, if I can use that term, is compliant with the relevant European Court of Human Rights rulings in this area.

To remain compliant at all times, the commission will need to carry out regular, periodic reviews of the data that it retains for the purposes of its investigations, as set out in Clause 31(2)(a). This will of necessity involve the commission making decisions regarding the deletion or retention of certain data based on strict proportionality criteria that we will outline in secondary legislation. We feel that the negative procedure will provide an appropriate level of scrutiny for a power such as this, that is very limited in scope in the sense that it exists solely to ensure ECHR compliance in this area through the appropriate management of biometric material retained by the commission. The regulation-making power ensures that the commission retains only a limited category of biometric material in prescribed circumstances, for a limited purpose and a limited amount of time, after which it will fall for deletion.

The power allows only relevant biometrics to be retained and used by the commission to ensure there can be effective Article 2 investigations, while also ensuring compatibility with the provisions of Article 8 relating to the right to a private life. It also allows for biometric data no longer needed by the commission to be deleted, again to ensure ECHR compliance. So, in our view the power is proportionate and does not, for example, enable the commission to take new biometric data from individuals, but if the noble Baroness still has concerns about this, again, I am very happy to sit down with her. On that basis, I urge her to withdraw the amendment.

[Baroness O’Loan (CB)]

I beg leave to withdraw the amendment.

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Moved by

[Lord Caine]

84: Schedule 4, page 64, line 39, leave out “£1,000” and insert “£5,000”
Member’s explanatory statement
This increases the maximum penalty for failure to comply with an information notice under section 14 from £1,000 to £5,000.

[Lord Caine (Con)]

My Lords, I plan to be brief. At the introduction, the Bill made provision for amendments to the early release scheme under the Northern Ireland (Sentences) Act 1998, with the effect that a person convicted of a Troubles-related offence could, in future, apply for immediate release from prison, regardless of the amount of time served, thus removing even the current two-year minimum requirement. This reflected a focus on reconciliation. But a number of Members in the other place, as the Bill was going through, questioned the rationale behind this approach, arguing that it would not encourage people who may have information to come forward and provide it in seeking immunity. This is a very fair and reasonable challenge, and one which was also raised by a number of interested groups and parties during the engagement that I have been extensively carrying out since the summer. I have therefore carefully reflected on this, and I am pleased to bring forward an amendment that will address this issue and, in the Government’s view, strengthen the Bill. Under these amendments, only certain categories of people will be eligible for the early release scheme in future. These are people who were convicted before the establishment of the Bill’s conditional immunity scheme as well as people who were convicted after it but following a prosecution that began before.

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[Lord Murphy of Torfaen (Lab)]

These are reasonably sensible amendments, but they go only so far. The points made by the noble Baroness, Lady O’Loan, and the noble Lord, Lord Bruce, are valid and we look forward to the Minister’s reply. If these amendments came to a vote, it is highly unlikely that we would oppose them. It was quite good that the Minister had, for example on Amendment 84, listened to the victims’ commissioner. We look forward to his reply.

[Lord Caine (Con)]

I am grateful to those who took part in this short debate. By way of a brief response, I disagree on the point about incentives. I have spoken to a number of victims’ groups and political parties that, while they might not like other parts of the Bill, have no issue with this and think it a sensible strengthening of the incentives to co-operate and the disincentives not to.

Having reflected on the earlier versions of the Bill, the Government think it right and proportionate that somebody who chooses not to co-operate with the commission on an investigation, if they are subsequently prosecuted and convicted in the normal way, should face and be liable to a full sentence. In many of the circumstances covered by this legislation, such as the Troubles-related offences, that could mean a sentence of life imprisonment. As a matter of common sense, that would be a stronger incentive to co-operate than an individual perhaps serving two years or no sentence at all. This is a sensible and proportionate change to the Bill which should genuinely encourage people to co-operate. If they do not co-operate, they do so in the knowledge that, if someone comes knocking on their door and they are convicted, they are liable for a lengthy prison term. I withdraw the amendment for now.

Amendment 84 withdrawn.

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[Baroness Smith of Basildon (Lab)]

My Lords, having had a long debate, we are now moving at pace. These are interesting amendments. Just as the immunity debate went to the heart of the Bill, in many ways this one does as well. Although we have not seen victims mentioned much in the Bill, it is entitled the Northern Ireland Troubles (Legacy and Reconciliation) Bill, and if victims are not at the heart of what we do here, it is hard to see how reconciliation follows. That is what prompted the amendments before us today.

I have said before in this place that one of the most profound experiences I had was as victims and survivors Minister for Northern Ireland, which I did for about two and a half years. There is not a homogenous design whereby you can say, “Victims want this.” Different people have had different experiences, and different things have happened to them in different ways. There is not one experience whereby everyone can say, “Yes, that is how I feel; this is what I want.” They are looking for different things, and that is what makes this so complex and these amendments so important.

As has been noted, some will be saying, “We want justice. We know who is responsible. There should be action.” Others say, “I just need to know the truth. I want to know what happened”, because the agony of not knowing is so great. In some cases, knowing what happened creates additional agony. I remember a discussion where the truth for one individual was going to be awful. They wanted it and needed it, but it was not a pleasant experience for them in any way at all. Others just want acknowledgement that this is what they and their families went through. When we are talking about victims and survivors, one thing that was brought home to us all by those we met during the process of this Bill is that the trauma of what happened can survive several generations. It is not just the individual who has been through the experience of the Troubles; the family can be affected, whether financially, emotionally or physically.

This group of amendments is really helpful and goes to the heart of what the Bill should be about. Possibly the biggest failure of the Government is not recognising that. There have been a lot of warm words for the Minister, and they are well deserved, but he is there to support the Government in defending this Bill and he may be disappointed that only one member of his party is behind him to offer support. We have all been there; it can be a lonely experience on the Front Bench in those circumstances—although I am not sure I have ever been in quite the same circumstances. That is why, if he cannot say tonight that he will accept these amendments, it would do the Government well if he can say what he will bring forward to address the issues that have been raised.

My noble friends Lord Murphy and Lady Ritchie have signed these amendments, which allow family members to provide a victim impact statement as part of the review process. Without that, this will be one of the biggest failures of the Bill—and we have mentioned many tonight.

The Bill allows family members to refer cases and make general representations, but it is not clear what the family member gains from that process. If, as the noble Baroness, Lady Suttie, has proposed, the Bill explicitly allows statements and for the proper resourcing of that process, that would go some way towards some resolution of that issue. It would not go the whole way; I think the Bill is so badly drafted and ill-conceived that it cannot address all the issues. The noble Lord made the point that has been made many times today in every part of the Bill: we would not start from here, but as Members of this House we have a duty to do what we can and fulfil our role—though I have been struck by how many of the individuals and organisations that I have spoken to have said they almost feel they are compromising their own integrity by bringing forward and suggesting amendments and changes to us.

I commend my noble friend Lord Hain on the different approach that he has taken. It is not one that I had considered before and I would be interested to hear the Minister’s comments on it. My noble friend is suggesting that we amend the code for prosecutors, and he talks about how that could be done: it would take account of

“the likelihood of the accused re-offending … the time elapsed since the offence … the volume and seriousness of the crime, and … the character and behaviour of the accused since offending.”

The code would have to

“ensure that the views, interests and well-being of victims, and of the families of deceased victims, are considered when determining whether criminal proceedings should be instituted for a Troubles-related offence.”

I will be interested to hear what the Minister has to say on that tonight. If he cannot give any satisfaction then I hope he will agree to have further meetings so that we can progress it. It seems to me that this is one of the biggest failings of the Bill, and it is what has caused so much upset and unhappiness among those who will be affected by this legislation.

[Lord Caine (Con)]

I am grateful to noble Lords. When the noble Baroness, Lady Smith of Basildon, and my noble friend Lord Morrow were referring to the lack of members of my own party sitting behind me tonight, I could not help but reflect on the famous poster, with which noble Lords behind me at least will be very familiar, from the period of the third home rule Bill, with the caption:

“Deserted! Well—I can stand alone.”

[Lord Weir of Ballyholme (DUP)]

Good choice.

[Lord Caine (Con)]

Maybe, like Ulster in 1912, I have no choice.

I appreciate the sentiments behind these amendments. The noble Baroness, Lady Smith, referred to the fact that victims groups are not a homogenous group of people. People are looking for different things. She referred to her time as victims Minister. As I have said before, I have probably met more groups over many decades than any person, certainly any politician, who does not live in Northern Ireland.

Yesterday was the 51st anniversary of the events of Bloody Sunday. I vividly recall that, a few weeks after David Cameron responded to the Saville inquiry in June 2010, I went with the then Secretary of State to the City Hotel in Derry, where we met members of the Bloody Sunday families. It will not be any surprise that they did not all speak with one voice. Some of them thought that what had happened with Saville and David Cameron’s response was fantastic: “We can now move on and get on with the rest of our lives”. Others said to us, “It was fantastic, we really appreciate it, but now we want to see the next phase of this, which is prosecutions”. I have referred to the later time when it came to taking a decision on that. Another group—by far the smallest—said to us, “Well, the Saville inquiry did not finger Edward Heath, Brian Faulkner or the military top brass and so on, therefore it’s a whitewash and, 12 years and £200 million later, we need another inquiry”. So I was struck that, even on an issue such as that, where most people suggest that the Government got it right in June 2010, not everybody was satisfied and people wanted different outcomes.