Northern Ireland Troubles (Legacy and Reconciliation) Bill Debate
Full Debate: Read Full DebateDepartment: Northern Ireland Office
Lord Caine
Main Page: Lord Caine (Conservative - Life peer)Department Debates - View all Lord Caine's debates with the Northern Ireland Office
Northern Ireland Troubles (Legacy and Reconciliation) Bill
Lord Caine ExcerptsMonday 26th June 2023
(1 year, 5 months ago)
Lords ChamberRead Full debate Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 View all Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 37-R-II Second marshalled list for Report - (22 Jun 2023)
Lord Caine
“(4A) In particular, the Commissioner for Investigations is to decide whether a criminal investigation is to form part of a review.”Member’s explanatory statement
This makes clear that the Commissioner for Investigations should consider whether there should be a criminal investigation as part of an ICRIR review.
Lord Caine
“(2A) The final report must include a statement of the manner in which the review was carried out.”Member’s explanatory statement
This amendment requires the final report to include a statement about the manner in which a review was carried out.
Lord Caine
Member’s explanatory statement
This amendment replaces existing wording with the new defined term “consulted” which is inserted into subsection (12) by the amendment in Lord Caine’s name.
Lord Caine
Member’s explanatory statement
This amendment replaces existing wording with the new defined term “consultation provisions” which is inserted into subsection (12) by the amendment in Lord Caine’s name.
Lord Caine
Member’s explanatory statement
This amendment replaces existing wording with the new defined term “consulted” which is inserted into subsection (12) by the amendment in Lord Caine’s name.
Lord Caine
Member’s explanatory statement
This amendment would divide Clause 15 into two Clauses.
Lord Caine
“(5A) If a final report is not published in such a case, the Chief Commissioner must publish the statement of the manner in which the review was carried out that is included in the final report in accordance with section 15(2A).”Member’s explanatory statement
This amendment requires the Chief Commissioner to publish the statement about the manner in which the review was carried out if the final report is not published.
Lord Caine
(a) producing under section 15, and giving and publishing under section 16(2) and (3), the final report on the findings of an excepted review, or(b) publishing under section 16(5A) the statement of the manner in which an excepted review was carried out.(2A) For that purpose an “excepted review” is—”Member’s explanatory statement
This amendment expands subsection (2) to delay the production or publication of the final report, or the statement required by section 15(2A), where conduct is referred to a prosecutor.
Lord Caine
(b) any other law that might or would prevent a prosecution of P for an offence from being begun or continued (for example, abuse of process—but see paragraph 3 of Schedule (No immunity in certain circumstances)).”Member’s explanatory statement
This provides that the immunity requests panel can ignore any law that would prevent a prosecution, when the panel is deciding when P’s disclosed conduct would tend to expose P to criminal enforcement action in respect of an offence.
Lord Caine
Member’s explanatory statement
This amendment is in consequence of new Clause (Subsequent convictions: revocation of immunity).
Lord Caine
Member’s explanatory statement
The provision made by Clause 19 is moved to the new Schedule (No immunity in certain circumstances).
Lord Caine
Member’s explanatory statement
This amendment leaves out subsection (1) as corresponding provision is included in new Schedule (No immunity in certain circumstances) in Lord Caine’s name.
Lord Caine
“(7A) If the Chief Commissioner is unable to exercise some or all of the immunity functions, generally or in particular circumstances, the Chief Commissioner may nominate another person—(a) to temporarily exercise the immunity functions so far as the Chief Commissioner is unable to exercise them, and(b) to be a temporary member of, and to temporarily chair, the immunity requests panel so far as those functions are panel functions.(7B) But the Secretary of State may nominate a person under subsection (7A) if the Chief Commissioner is unable to make a nomination.(7C) A person may not be nominated under subsection (7A) if the person—(a) would be disqualified from appointment as a Commissioner by paragraph 7(2) of Schedule 1 (imprisonment, insolvency or disqualification from being a company director), or(b) does not hold, and has not held, high judicial office (within the meaning of paragraph 7 of Schedule 1).(7D) This Act is to apply to the exercise of immunity functions by a person appointed under subsection (7A) as if the functions were being exercised by the Chief Commissioner.(7E) In this section—“immunity functions” means—(a) the function conferred by subsection (6), and(b) panel functions;“panel functions” means functions of the Chief Commissioner as a member or the chair of the immunity requests panel.”Member’s explanatory statement
This amendment would allow a person to be nominated to act temporarily if the Chief Commissioner is unable to act, whether generally or in particular circumstances (eg. because of a potential conflict of interest), in relation to requests for immunity.
Lord Caine
Member’s explanatory statement
This amendment is consequential on the amendment in Lord Caine’s name to leave out subsection (1).
Lord Caine
“(1A) The ICRIR must take reasonable steps to obtain any information which the Commissioner for Investigations knows or believes is relevant to the question of the truth of P’s account.”Member’s explanatory statement
This amendment would require the ICRIR to take reasonable steps to obtain information in connection with determining the truth of P’s account (see Clause 18(3)).
Lord Caine
“(3A) For provision about the nomination of a person to act temporarily instead of the Chief Commissioner, see section 20(7A).”Member’s explanatory statement
This amendment is consequential on the amendment in Lord Caine’s name adding subsection (7A) to Clause 20.
Lord Caine
“Personal statements by persons affected by deaths etc
(1) This section applies in relation to—(a) each review of a death which the ICRIR carries out following a request made under section 9;(b) each review of other harmful conduct which the ICRIR carries out following a request made under section 10;(c) each request for immunity from prosecution that is made under section 18 (whether or not the ICRIR carries out a review following a decision made under section 12(2) or (3), and whether or not the ICRIR has made such a decision).(2) The Chief Commissioner must give an eligible person an opportunity to provide a personal statement to the ICRIR.(3) If an eligible person provides a personal statement, the Chief Commissioner must give that person an opportunity to supplement the statement.(4) In this section “personal statement” means a statement by an eligible person about the way in which, and degree to which, the Troubles-related events have affected and continue to affect—(a) that person, and(b) other relevant persons (if, and to the extent that, the person providing the statement is aware of, and wishes the statement to deal with, the effect on those persons).(5) The definitions in subsection (6) are to be used for the purposes of this section in cases where this section applies—(a) in relation to a review of a death which the ICRIR carries out following a request made under section 9, or(b) in relation to a request for immunity from prosecution that is made under section 18—(i) where the ICRIR carries out a review of a death following a decision made under section 12(2), or(ii) where, if the ICRIR were to carry out a review in connection with the request for immunity, it would be a review of a death following a decision made under section 12(2).(6) In any of those cases—“eligible person” means—(a) each known close family member of the deceased (and Part 1 of Schedule 3 is to apply for the purpose of determining who is a close family member), or(b) if there are no known close family members, each other known family member of the deceased to whom the Chief Commissioner considers it is appropriate to give an opportunity to provide a personal statement;and here “known” means known to the ICRIR by virtue of any of its other functions;“other relevant person” means—(a) a member of the family of the person to whose death the review relates;(b) a member of the family of any other person killed in the relevant event;(c) a person who suffered serious physical or mental harm in the relevant event and has subsequently died;(d) members of the family of a person falling within paragraph (c);“Troubles-related events” means—(a) the death to which the review relates, and(b) the relevant event (which has the same meaning as in section 15(4)).(7) The definitions in subsection (8) are to be used for the purposes of this section in cases where this section applies—(a) in relation to a review of other harmful conduct which the ICRIR carries out following a request made under section 10, or(b) in relation to a request for immunity from prosecution that is made under section 18—(i) where the ICRIR carries out a review of other harmful conduct following a decision made under section 12(3), or(ii) where, if the ICRIR were to carry out a review in connection with the request for immunity, it would be a review of other harmful conduct following a decision made under section 12(3).(8) In any of those cases—“eligible person” means—(a) each known close family member of the injured person (and Part 1 of Schedule 3 is to apply for the purpose of determining who is a close family member), or(b) if there are no known close family members, each other known family member of the injured person to whom the Chief Commissioner considers it is appropriate to give an opportunity to provide a personal statement;and here “injured person” means the person who was caused the physical or mental harm by the other harmful conduct concerned; and “known” means known to the ICRIR by virtue of any of its other functions;“other relevant person” means—(a) a member of the family of any person killed in the relevant event;(b) a person who suffered serious physical or mental harm in the relevant event and has subsequently died;(c) members of the family of a person falling within paragraph (b);“Troubles-related events” means—(a) the other harmful conduct to which the review relates, and(b) the relevant event (which has the same meaning as in section 15(5)).”Member’s explanatory statement
This amendment requires the Chief Commissioner to give individuals affected by a death or other harmful conduct the opportunity to provide personal statements to the ICRIR about the effects of the Troubles-related conduct.
Lord Caine
“(2) If the Commissioner for Investigations considers there is evidence that relevant conduct constitutes an offence under the law of Northern Ireland by an individual whose identity is known to the Commissioner, the Commissioner—(a) may refer the conduct to the Director of Public Prosecutions for Northern Ireland, and(b) if the conduct is referred, must notify that prosecutor of the offence concerned.(2A) If the Commissioner for Investigations considers there is evidence that relevant conduct constitutes an offence under the law of England and Wales by an individual whose identity is known to the Commissioner, the Commissioner—(a) may refer the conduct to the Director of Public Prosecutions (for England and Wales), and(b) if the conduct is referred, must notify that prosecutor of the offence concerned.(2B) If the Commissioner for Investigations considers there is evidence that relevant conduct constitutes an offence under the law of Scotland by an individual whose identity is known to the Commissioner, the Commissioner may—(a) refer the conduct to the Lord Advocate, and(b) notify that prosecutor of the offence concerned.(2C) 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.(2D) In any case where the Commissioner for Investigations refers conduct to a prosecutor under this section, the Commissioner—”Member’s explanatory statement
This amendment would enable the Lord Advocate to require the Commissioner for Investigations to refer relevant conduct to the Lord Advocate.
Lord Caine
“Subsequent convictions: revocation of immunity
(1) If—(a) a person is convicted of an offence under section (False statements: offence),(b) that offence was committed in the course of requesting the ICRIR to grant the person immunity from prosecution under section 18, and(c) the person was granted the immunity from prosecution,the court which sentences the person for the offence must revoke that grant of immunity from prosecution.(2) If—(a) a person is convicted of a terrorist offence or an offence with a terrorist connection, and(b) the person had been granted immunity from prosecution under section 18 before the offence was committed,the court which sentences the person for that offence must revoke every grant of immunity from prosecution under section 18 given to the person before the offence was committed.(3) For the purposes of subsection (2) a person is convicted of “a terrorist offence or an offence with a terrorist connection” if—(a) the person is convicted of an offence by a court in Northern Ireland and either—(i) the offence is listed in Schedule 1A to the Counter-Terrorism Act 2008, or(ii) the court determines under section 30(2) of that Act that the offence has a terrorist connection;(b) the person is convicted of an offence by a court in England and Wales and either—(i) the offence is listed in Schedule A1 to the Sentencing Code, or(ii) the court determines under section 69 of the Sentencing Code that the offence has a terrorist connection;(c) the person is convicted of an offence by a court in Scotland and either—(i) the offence is listed in Schedule 1A to the Counter-Terrorism Act 2008, or(ii) section 31 of that Act applies to the offence (offences with a terrorist connection in Scotland).(4) Where—(a) an offence is found to have been committed over a period of two or more days, or at some time during a period of two or more days, and(b) a grant of immunity from prosecution is given at any time during that period,that grant of immunity from prosecution is to be regarded for the purposes of subsection (2) as having been given before the offence was committed.(5) A revocation of immunity under this section—(a) has immediate effect;(b) does not prevent a person making a further request for immunity under section 18 (but see Part 2 of Schedule (No immunity in certain circumstances) for provision about requests that overlap with revoked immunities).”Member’s explanatory statement
This amendment requires courts to revoke immunity granted under Clause 18 if a person is subsequently convicted of making a false statement in the course of applying for that immunity (see new clause (False statements: offence) or convicted of a terrorist offence or offence with a terrorist connection.
Lord Caine
“False statements: offence
(1) A person commits an offence by making a false statement to the ICRIR in connection with any of its functions under sections 18 to 22.(2) For the purposes of this section—(a) a person makes a false statement by—(i) making a statement which the person knows to be false in a material respect, or(ii) recklessly making a statement which is false in a material respect;(b) “making a statement” includes giving an account in connection with a request for immunity under section 18.(3) A person guilty of an offence under this section is liable—(a) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both;(b) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both;(c) on summary conviction in England and Wales, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine or both;(d) on summary conviction in Scotland, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum or both.(4) Proceedings for an offence under this section may be instituted—(a) in Northern Ireland, only by or with the consent of the Director of Public Prosecutions for Northern Ireland;(b) in England and Wales, only by or with the consent of the Director of Public Prosecutions.”Member’s explanatory statement
This amendment prohibits (knowingly or recklessly) providing a statement to the ICRIR that is materially false.
Lord Caine
Member’s explanatory statement
This would remove the provision that allows reports or statements about criminal investigations to be produced for a limited period after Clause 34 comes into force. It is no longer needed in consequence of the amendment in Lord Caine’s name providing for Clause 34 to come into force on 1 May 2024 (instead of two months after royal assent).
Lord Caine
Member’s explanatory statement
This is consequential on the other amendment of Clause 36 in Lord Caine’s name.
Lord Caine
Member’s explanatory statement
This removes the use of “P” to refer to a person who is being prosecuted for an offence.
Lord Murphy of Torfaen (Lab)
My Lords, this has been an interesting debate. I begin my brief remarks by paying tribute to Lord Brown; he was a great influence on me when I first entered this House and I always enjoyed listening to what he had to say. He was a fine lawyer.
I have looked at the legal arguments put forward by Policy Exchange on this amendment. I cannot say that I understood every word of them, but they looked impressive to me. However, from my experience, the practicalities of the situation indicate that something must be done.
The noble Lord, Lord Howell, quite rightly reminded us what the situation was like back in the 1970s. I assure him and your Lordships that, 25 years later when I was doing the same job, it had not changed all that much in terms of signing warrants. When I was the Minister of State in Northern Ireland, I knew that Mo Mowlam, who was Secretary of State at the time, was aware that I was signing these warrants on her behalf. Similarly, three years later when the roles were reversed and I became Secretary of State, I realised that the Minister of State signing those warrants on my behalf was doing so absolutely properly and within the law.
I have no doubt that everybody signing these warrants in Northern Ireland over all these years believed that they were doing the right thing—and I am sure that they were—but there is clearly a problem because of the Supreme Court ruling. I look forward to the Minister telling us how he will change this situation and make things better.
Lord Caine (Con)
My Lords, I am very grateful, as always, to noble Lords who have spoken in this short but very important debate led by the noble Lord, Lord Faulks, to whom I am very grateful for the constructive engagement and discussions we have had over the past few days. This has been an excellent debate. I join in the tributes to Lord Brown of Eaton-under-Heywood, whose contribution to this House over many years has been immense.
The Government are extremely sympathetic to the aims of this amendment. It aligns with our desired policy aim to reduce pressure on the civil courts in Northern Ireland, which currently have a considerable case load. In our view, it would not be appropriate for the Government to give an opinion on the judgment of the Supreme Court in R v Adams, but we are of the view that this judgment, which was unexpected, has led to a degree of confusion in our law that merits clarification in some way. If I may go slightly further than my brief, when the judgment appeared some of us were—to put it mildly—somewhat baffled by its content.
On the numbers of cases in scope, we are aware of around 300 to 400 civil claims being brought on a similar basis to the Adams case, including those at pre-action stage, with 40 writs filed before First Reading of this Bill. It is therefore likely that a number of Adams-type cases will be allowed to continue in spite of the prohibition on civil claims in Clause 39 of the Bill. We are aware that this amendment has a wider application than just civil damages claims, which are otherwise within the scope of Clause 39, but the numbers of other types of cases in scope are limited.
The Government also understand that the amendment covers applications for compensation for miscarriages of justice under the statutory scheme established by Section 133 of the Criminal Justice Act 1988, following the reversal, as a result of the Adams judgment, of convictions for escaping or attempting to escape from internment facilities. The Government anticipate that it is unlikely that many more cases could in theory be brought along these lines; based on the numbers of escapees, this is unlikely to be more than around 30 and could be substantially less.
Claims brought as a result of the Supreme Court judgment in Adams are claims for compensation that are not based on any allegation against the state of mistreatment or misfeasance in public office, as other claims in this area are, but on a technical point regarding the signing of interim custody orders, as the noble Lord, Lord Butler of Brockwell, made absolutely clear. At the time of their detention and conviction for escape-related offences, and for decades afterwards, these individuals could not have expected the Supreme Court to find as it did.
The Government have always acted on the understanding that those interim custody orders made by Ministers of the Crown, under powers conferred on the Secretary of State, were perfectly valid on the basis of the well-established and understood Carltona principle. This is a clarification that needs to be made, in our view, to restore legal certainty around this crucially important element of the way in which government works in this country.
I listened with great interest to my noble friend Lord Howell of Guildford, who is the surviving member of the Northern Ireland Office from 1972 as Minister of State. He gave a very vivid and accurate description of just how difficult life was at the time, and how dangerous and fast-moving the situation was.
I agree with the noble Lord, Lord Murphy of Torfaen, in his description of how the warrant system works in Northern Ireland. As many Members know, I have worked for a number of Secretaries of State, and the signing of warrants is something all of them have taken a huge amount of care over to ensure that they are done properly and within the law.
In response to the noble Baroness, we are not far away from Third Reading, as she will be aware, but I will endeavour to consult with interested parties between now and then.
On this basis, as the noble Lord, Lord Faulks, indicated, I will commit to bringing forward an amendment at Third Reading next week, following consideration by officials and lawyers, that addresses these matters. In return, I ask that the noble Lord and my noble friend Lord Godson withdraw their amendment, subject to the caveat that the noble Lord, Lord Faulks, made in his remarks.
Lord Faulks (Non-Afl)
My Lords, I am very grateful to all those who have taken part in this debate, and I am grateful to the Minister for his remarks. I am sure the House is grateful for all those who associated themselves with the comments I made about the noble and learned Lord, Lord Brown of Eaton-under-Heywood.
The Minister said with his usual understatement that many were somewhat baffled by the decision of the Supreme Court. The bafflement was widespread, I can assure the House, and the notion that we should wait until another case comes along was never a convincing argument in favour of Parliament not acting to put right this injustice. As the Minister rightly said, Clause 39 of the Bill will not deal with this essential unsatisfactory aspect of the judgment, and there could be many cases arising out of the error made by the Supreme Court.
Of course courts make mistakes from time to time; the whole basis of an appeal from one judgment to another is predicated on the fact that they do. The Supreme Court rarely makes mistakes, but Parliament puts them right when it does. Parliament also makes mistakes, and would then reverse those mistakes. There is nothing in this amendment which shows a lack of respect for the Supreme Court or its decisions in any way.
I look forward very much to meeting the Minister and his officials, to help, I hope, provide an amendment which reflects what is in our amendment—government amendments are always better than amendments put forward by Back-Benchers. Provided it does what this amendment was intended to do, that would be satisfactory.
I need not weary the House any longer at this stage. I have repeated that we will bring back the matter at Third Reading if, sadly, we are unable to find a satisfactory way through. In the meantime, I thank all noble Lords and beg leave to withdraw the amendment.
Lord Caine
Member’s explanatory statement
This would require any inquest initiated before the commencement of Clause 40 to be discontinued on the commencement of that Clause, unless the inquest is at its very final stage (the determination, verdict or findings).
Lord Caine
“(2A) On and after the day on which section 41 of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 comes into force, the Ombudsman—(a) is not to begin any formal investigation of a matter, and(b) is to cease any formal investigation of a matter begun before that day,insofar as the matter relates to conduct forming part of the Troubles.”Member’s explanatory statement
This prevents the Police Ombudsman for Northern Ireland from beginning, or continuing, to investigate matters that relate to conduct forming part of the Troubles. That power of investigation is in addition to the power to deal with complaints (already covered by Clause 41).
Lord Caine (Con)
My Lords, I am grateful as always to those who have contributed to this debate, which was lengthier than some of us had perhaps anticipated. We went over many of these issues extensively in Committee only a few weeks ago. I will therefore try to be as brief as possible and address my remarks in large part to the amendments.
Obviously I am aware that there have been a number of powerful and deeply moving contributions today that reflect the experiences of individual Members of your Lordships’ House who have suffered at the hands of terrorism and violence in Northern Ireland over many decades. I refer in particular to the comments of the noble Lord, Lord McCrea of Magherafelt and Cookstown, and the noble Baroness, Lady O’Loan, who shared some of her personal experiences. The House cannot fail to be moved by some of the remarks and reflections, including also those of the noble Baroness, Lady Ritchie of Downpatrick, that we have heard today.
As I have said many times, we are never going to agree on a common narrative about the past in Northern Ireland, but we can seek to put in place structures that will help all in society, including future generations, to have a better understanding of the past, with the overarching aim of enabling people in Northern Ireland to move forward, on which I agree wholeheartedly with the comments of my noble friend Lord Patten of Barnes.
I turn first to the memorialisation strategy, which will seek to build consensus around new structures and initiatives to commemorate those lost during the Troubles and to seek to ensure that the lessons of the past are not forgotten. The noble Lord, Lord Dodds of Duncairn, highlighted with his Amendments 114A and 114B that this objective would be fundamentally compromised if it allowed for the glorification of acts of terrorism. I am on record many times in this House as saying that politically-motivated violence on all sides, whether republican or loyalist, was never justified in Northern Ireland, and I agree completely with the words of the noble Lords, Lord Dodds, Lord McCrea of Magherafelt and Cookstown and Lord Weir of Ballyholme, and others on that. The Government will never accept any suggestion that there was, to use the quote, “no alternative”, which is peddled by those with a political motivation to rewrite history in order to denigrate the actions of the state along with the Royal Ulster Constabulary and the Armed Forces.
I take on board some of the comments of the noble Baroness, Lady O’Loan. There are of course examples where members of the security forces have fallen short of the highest standards, but I maintain that the vast majority of those who served in Northern Ireland did so with great courage, professionalism and integrity, while defending democracy and the rule of law. Without their service and sacrifice, there would have been no peace process; we owe them an enormous debt of gratitude. The noble Lord, Lord Dodds of Duncairn, can be assured that this Government will never accept any moral equivalence between those who defended democracy and the rule of law and those who sought to destroy both.
Having listened to the strength of feeling on this issue, the Government have tabled an amendment to Clause 48, adding an overarching duty that would require the designated persons to have regard to the need to promote
“reconciliation … anti-sectarianism, and … non-recurrence of political and sectarian hostility”.
In the Government’s view, this goes further than the amendments of the noble Lord, Lord Dodds, in that the overarching duty would apply to all the measures in Part 4, not only to the memorialisation strategy set out in Clause 44. Any attempt to glorify terrorism, or to revise or rewrite history in ways that justify it, would be fundamentally incompatible with this new overarching duty. Non-recurrence speaks to the avoidance of future political violence, which necessarily includes ensuring that no memorialisation activities glorify the commission or preparation of Troubles-related offences. The Government will also ensure that this understanding is reflected in any guidance documents or terms of reference.
Further amendments tabled by the Government commit the Secretary of State to consulting organisations with experience and expertise in promoting reconciliation and anti-sectarianism between communities in Northern Ireland before designating the delivery organisations and, crucially, before responding to each of the
“recommendations made in the memorialisation strategy”.
I hope that the Government’s amendments here address some of the noble Lord’s concerns around glorification, which I know are shared across the House, as has been so vividly set out this evening. Indeed, a core objective of the strategy, along with other measures in Part 4, is to confront the glorification of terrorism.
Amendments 117 and 118 are in the name of the noble Baroness, Lady Hoey. As I said during Committee, I fully support the sentiment behind these amendments, which seek to ensure that any Troubles-related academic research is suitably diverse and not, as the noble Baroness said, monopolised by a single view. But while she rightly highlighted that funding applications are assessed based on the past record of those applying, that is not the sole criterion used by research councils: for example, research impact, value for money and public engagement are a few of the other criteria used. As such, the wording of this amendment would have little practical effect. Going further, Clause 48 specifically requires that the designated persons, in delivering this work, ensure that a variety of views of the Troubles are taken into account. However, I take on board the noble Baroness’s comments about even-handedness.
On Amendment 118, as I said in Committee, nothing in the provisions of the Bill would preclude research into LGBT experiences during the Troubles, should the academic community feel that there is a particular need. I am sure noble Lords will agree that if we were to debate the inclusion of every theme relating to the Troubles, or themes which occurred during the same period, we would be here for a very long time.
The noble Baroness, Lady Hoey, referred to the clauses that deal with the role of women. There are international precedents and standards affirming the important role of women in the resolution of conflicts, in peace negotiations and in reconstruction. I visited an exhibition dealing with those issues at Ulster Museum only a couple of weeks ago. I would therefore respectfully maintain our position that these amendments are not required, but I am grateful to the noble Baroness, along with Jeff Dudgeon and the Malone House Group in Northern Ireland, for their ongoing constructive engagement on these matters. I think the noble Baroness will be aware that I had a useful meeting with the Malone House Group in the last two weeks.
Touching briefly on the advisory forum under Clause 49, I think noble Lords are understandably concerned with ensuring that the advisory panel overseeing the measures in Part 4 is not politically biased in its composition. As I said in Committee, I respectfully suggest that this amendment is not expressly necessary. Clause 49(2)(b) already states that, in establishing an advisory forum, due regard must be given to the need for the forum to have a balance in terms of members who are associated with different parts of the community in Northern Ireland—“different communities” being defined in the Bill as those which have differing views on the constitutional status of Northern Ireland.
Lastly, Amendment 118A in the name of my noble friend Lord Godson would enshrine in legislation the Government’s commitment to commissioning an independent public history relating to the Troubles. The term used throughout the debate this evening was “an official history”; the updated term, following the Pilling review, is a “public history”. Noble Lords will recall the fairly recent debate on this amendment during Committee, when noble Lords had an opportunity to discuss these proposals. From those who contributed on that occasion, there was certainly support in Committee for this project in principle.
It is clear that the main practical concern is around the extent to which the Government’s official history programme, which has been in hiatus since 2008, is a suitable delivery vehicle for a historical project of this scale and importance. Let me therefore clarify to noble Lords that, while this project would be akin to the official history programme for the purpose of using long-standing protocols to grant the necessary access to archival material, it will be driven forward separately by the Northern Ireland Office, consistent with subsection (5) of my noble friend’s proposed new clause.
I turn briefly to the points raised by the noble Baroness, Lady O’Loan, the noble and right reverend Lord, Lord Eames—whom I have always listened to with huge admiration and respect, even when we may occasionally disagree slightly—and my noble friend Lord Patten of Barnes. It was in recognition of some of the difficulties that all three of them raised in their comments that the former Secretary of State specified in moving this project forward that, in keeping with previous official histories commissioned by the Government, this official history would focus primarily on the UK Government’s policy towards Northern Ireland during the Troubles, rather than attempting to write a general history of the Troubles themselves.
Returning to my noble friend Lord Godson’s amendment, in respect of funding, I can confirm that the project will be fully funded from the £250 million pot that the Government set aside for the establishment of legacy mechanisms as part of the Stormont House and New Decade, New Approach agreements. Having written to my noble friend, I hope that the update and clarifications have gone some way to providing assurances on the concerns which may have prompted his amendment, and otherwise demonstrated the seriousness with which the Government are approaching this endeavour, so I would respectfully suggest that he does not press his amendment. I am of course happy to engage with him further in advance of Third Reading, recognising his strong interest in this matter and his expert advice, which I warmly welcome.
On that basis, I urge noble Lords to withdraw or not to press these amendments.
Lord Caine
“(aa) consult relevant organisations in the course of considering each recommendation, and”Member’s explanatory statement
This requires the Secretary of State, when considering recommendations made in the memorialisation strategy, to consult organisations with expertise in reconciliation or anti-sectarianism.
Lord Caine
“(c) that programme is carried out in a way that promotes—(i) reconciliation,(ii) anti-sectarianism, and(iii) non-recurrence of political and sectarian hostility between people in Northern Ireland.”Member’s explanatory statement
This requires designated persons to have regard to certain (additional) matters when carrying out the Troubles-related work programme.
Lord Caine
(b) consult relevant organisations about the proposed designation.”Member’s explanatory statement
This requires the Secretary of State, before designating a person under Clause 50 in relation to the Troubles-related work programme, to consult organisations with expertise in reconciliation or anti-sectarianism.
Lord Caine
““relevant organisation” means an organisation that the Secretary of State considers to have expertise in carrying out, promoting or otherwise facilitating activities that are intended to encourage reconciliation or anti-sectarianism;”Member’s explanatory statement
This defines a term used in the amendments in Lord Caine’s name related to the Troubles-related work programme under Part 4.
Lord Caine
“financial year | This has the meaning given in section 2(9).” |
This amends the table of definitions to include the definition of “financial year” that is added to the Bill by the amendments of Clause 2 in Lord Caine’s name.
Lord Caine
Member’s explanatory statement
This changes the definition of “reserved provision” to reflect the fact that section 8(b) of the Northern Ireland Act 1998 requires consent to a Bill for an Act (rather than to the Act itself).
Lord Caine
Member’s explanatory statement
This would provide for only Clause 39 (and the associated amendments in Schedule 12) to come into force two months after royal assent.
Lord Caine
“5A_(1) The ICRIR must—(a) keep proper accounts and proper records in relation to them, and(b) prepare a statement of accounts in respect of each financial year.(2) The statement of accounts must be prepared in accordance with any directions that are given by the Treasury.(3) The ICRIR must send a copy of each statement of accounts to the Secretary of State and the Comptroller and Auditor General as soon as practicable after the end of the financial year to which the statement relates.(4) The Comptroller and Auditor General must—(a) examine, certify and report on each statement of accounts,(b) send a copy of each report and certified statement to the Secretary of State, and(c) lay before Parliament a copy of each such report and certified statement.”Member’s explanatory statement
This would require the ICRIR to keep accounts and provides for the accounts to be laid before Parliament.
Lord Caine
“(1A) Sub-paragraph (1)(a) does not apply to an assault on a designated ICRIR officer under the law of England and Wales (instead see section 1 of the Emergency Workers (Offences) Act 2018).”Member’s explanatory statement
This avoids overlap with the provisions of the Emergency Workers (Offences) Act 2018 which will apply to designated ICRIR officers (but is law only in England and Wales).
Lord Caine
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
“NO IMMUNITY IN CERTAIN CIRCUMSTANCESPART 1SEXUAL OFFENCE, EXISTING CONVICTION OR ONGOING PROSECUTIONApplication of this Part
1_ This Part of this Schedule applies if—(a) a person (P) has requested the ICRIR to grant P immunity from prosecution (the “current request”) under section 18 and conditions A to C are met, but(b) this Schedule prohibits a grant of immunity for an identified possible offence (see paragraphs 2 and 3).Prohibition of grant of immunity: sexual offences
2_(1) A grant of immunity for an identified possible offence is prohibited if it is—(a) a sexual offence, or(b) an inchoate offence relating to a sexual offence.(2) For the purposes of this paragraph “sexual offence” includes—(a) rape;(b) any offence committed by—(i) sexual assault,(ii) sexual activity, or(iii) causing or inciting another person to engage in sexual activity;(c) any offence relating to indecent images of children.(3) For the purposes of this paragraph “inchoate offence relating to a sexual offence” includes an offence of—(a) attempting to commit a sexual offence;(b) conspiracy to commit a sexual offence;(c) incitement to commit a sexual offence;(d) aiding, abetting, counselling or procuring the commission of a sexual offence.(4) The Secretary of State may, by regulations, make provision about the meaning of—(a) “sexual offence”, or(b) “inchoate offence relating to a sexual offence”;for the purposes of this Part of this Schedule (including provision specifying offences which are to comprise, or to be included in, that definition).(5) Regulations under this paragraph are subject to negative procedure.Prohibition of grant of immunity: conviction or ongoing prosecution
3_(1) A grant of immunity for an identified possible offence is prohibited if—(a) P has a conviction for the identified possible offence,(b) P is being prosecuted for the identified possible offence, or(c) P is being prosecuted for any other offence (whether or not a Troubles-related offence), and the immunity requests panel is satisfied that granting P immunity from prosecution for the identified possible offence would risk having, or would have, a prejudicial effect on that prosecution.(2) For the purposes of this paragraph—(a) P is “being prosecuted for” an offence if a public prosecution of P for the offence has begun and is continuing;(b) a “public prosecution” means any prosecution other than a private prosecution;(c) a public prosecution of P for an offence “has begun” if a prosecutor has made the decision to prosecute P for that offence;(d) the circumstances in which a public prosecution of P is to be regarded as continuing include circumstances where the trial which forms part of the prosecution ends without P being convicted or acquitted or any other verdict being given and either—(i) the period for the prosecution to seek a retrial is continuing (without a retrial having been sought), or(ii) the prosecution have sought a retrial;(e) the circumstances in which a public prosecution of P is to be regarded as not continuing include—(i) circumstances where the trial which forms part of the prosecution ends with P being convicted or acquitted or with another verdict being given, and(ii) circumstances where the trial ends without P being convicted or acquitted or any other verdict being given and the period for the prosecution to seek a retrial ends without a retrial having been sought.Grant of immunity prohibited for all identified possible offences
4_(1) If this Schedule prohibits a grant of immunity for all of the identified possible offences, the ICRIR must not grant P immunity from prosecution in relation to the current request.(2) Accordingly, section 18(1) and (7) to (16) do not apply in relation to the current request.Grant of immunity prohibited for some identified possible offences
5_(1) This paragraph applies if this Schedule prohibits a grant of immunity for some (but not all) of the identified possible offences.(2) The immunity requests panel must not decide under section 18(7) that P should be granted immunity from prosecution for—(a) any identified possible offence for which this Schedule prohibits a grant of immunity, or(b) a description of offences that includes any identified possible offence for which this Schedule prohibits a grant of immunity.(3) The ICRIR must not grant P immunity from prosecution for any identified possible offence for which this Schedule prohibits a grant of immunity.(4) Section 18(7) to (13) have effect subject to this paragraph.PART 2NEW REQUEST FOR IMMUNITY AFTER REVOCATION OF PREVIOUS GRANT6_(1) This paragraph applies where—(a) under section (Subsequent convictions: revocation of immunity), a court revokes immunity from prosecution granted to a person (P)(the “revoked immunity”),(b) P requests the ICRIR to grant P immunity from prosecution (the “new request”),(c) the new request—(i) is made before the revocation and is not concluded at the time of the revocation, or(ii) is made after the revocation, and(d) conditions A to C in section 18 are met in relation to the new request.(2) When dealing with the new request, the duty of the immunity requests panel to decide (under section 18(7)) what immunity should be granted to P has effect subject to sub-paragraphs (3) and (4).(3) The panel must not decide that P should be granted immunity from prosecution for any identified possible offence which was also within the scope of the revoked immunity.(4) When the panel is determining under section 18(9) or (11)(b) a description of offences for which P should be granted immunity from prosecution, the panel must frame the description so that it does not consist of, or include, one or more offences which were also within the scope of the revoked immunity.(5) If the panel decides in accordance with sub-paragraphs (3) and (4) that there are no offences for which P should be granted immunity—(a) the panel must decide that P should not be granted immunity from prosecution, and(b) the ICRIR must not grant P immunity from prosecution (and accordingly section 18(1) does not apply).(6) For the purposes of this paragraph the new request is “concluded” when the ICRIR gives P written notice of the outcome of the request in accordance with section 18(13)(a).”Member’s explanatory statement
This amendment deals with offences for which a person cannot be granted immunity from prosecution. The provision about sexual offences is moved here from Clause 19. It contains provision about previous convictions and current prosecutions (replacing Clause 20(1)). It also deals with cases where a person’s immunity from prosecution is revoked under new Clause (Subsequent convictions: revocation of immunity).
Lord Caine
Member’s explanatory statement
This would require any inquest initiated before the commencement of Schedule 10 to be discontinued on the commencement of that Schedule, unless the inquest is at its very final stage (the determination and any findings).
Lord Caine
““(6A) An offence is a qualifying offence if—(a) subsection (7) or (7A) applies to the offence, and(b) the prisoner was convicted of the offence—(i) before the day on which section 18(1) of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 came into force, or(ii) on or after that day by virtue of a public prosecution begun before that day.(6B) For the purposes of subsection (6A)—(a) “public prosecution” means any prosecution other than a private prosecution;(b) a public prosecution of a person for an offence is “begun” when a prosecutor makes the decision to prosecute that person for that offence.””Member’s explanatory statement
This will prevent a prisoner from being released under the Northern Ireland (Sentences) Act 1998 if the prisoner is convicted after the ICRIR’s power to grant immunity from prosecution becomes exercisable (and so is a case where the prisoner could have avoided conviction by obtaining immunity).
Lord Caine
“2A_ After section 60ZC of the Police (Northern Ireland) Act 1998 insert—<strong>“60ZD </strong> The Independent Commission for Reconciliation and Information Recovery(1) An agreement for the establishment in relation to ICRIR officers of procedures corresponding or similar to any of those established by virtue of this Part may, with the approval of the Secretary of State, be made between the Ombudsman and the ICRIR.(2) Where no such procedures are in force in relation to the ICRIR, the Secretary of State may by order establish such procedures.(3) An agreement under this section may at any time be varied or terminated with the approval of the Secretary of State.(4) Before making an order under this section the Secretary of State must consult—(a) the Ombudsman; and(b) the ICRIR.(5) Nothing in any other statutory provision prevents the ICRIR from carrying into effect procedures established by virtue of this section.(6) No such procedures shall have effect in relation to anything done by an ICRIR officer outside Northern Ireland.(7) In this section—“ICRIR” means the Independent Commission for Reconciliation and Information Recovery;“ICRIR officer” has the same meaning as in the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023.””Member’s explanatory statement
This enables the Police Ombudsman for Northern Ireland to have jurisdiction over ICRIR officers.