Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Cormack Excerpts

Committee stage
Tuesday 24th January 2023 Lords Chamber

You cannot make a silk purse out of a sow’s ear. The Government should take that old proverb to heart and stop trying to defy the rules of political gravity. To proceed pell-mell by putting this contested Bill on to the statute book lacks wisdom and prudence. At the very minimum, it should be considered by the Northern Ireland Assembly whenever that is reconstituted and before this goes on to the statute book. This amendment would stop it in its tracks at Third Reading, when we would have carried out our constitutional duty of scrutinising the Bill which has been laid before us. That is why I urge noble Lords to support my noble friend’s amendment to the Motion.

[Lord Cormack (Con)]

My Lords, during my time as chairman of the Northern Ireland Affairs Committee in another place I came to know, respect and admire a lot of people, none more than the noble Baroness, Lady O’Loan—a Roman Catholic of deep faith and a police ombudsman of utter impartiality—and the man who had been Primate of All Ireland, the noble and right reverend Lord, Lord Eames, who is respected and indeed loved by people throughout the island of Ireland. They have both made very powerful speeches today, and we should reflect very carefully on what they and others have said.

But we are dealing with thousands of human tragedies, and this terrible legacy, without the input of the devolved Assembly in Northern Ireland. I want to make a plea to the party politicians in Northern Ireland: for goodness’ sake, come together and discuss. It is absurd not to because of one issue over the protocol, important as it is. They have not even discussed that. There is an Assembly, it has been elected, and an Executive could be appointed within 24 hours of its meeting. In my view, it is very important indeed that, before we go very much further forward with the Bill, the Assembly comes together and recognises its constitutional responsibility to the people of Northern Ireland to make its views known on all issues of importance to them.

Of course, the amendment moved by the noble Baroness, Lady O’Loan, would allow this House to proceed, as the noble Lord, Lord Alton, said a moment or two ago. On balance, I think she is right to do that, because we have a constitutional duty too. But for the Bill to pass on to the statute book without a proper input from Northern Ireland would be, to put it very mildly, deeply unfortunate. So I hope that our friends and colleagues who have influence over the Members of the Assembly, as many do, will urge them to come together and discuss. Of course, they will not agree on everything. Of course, there will be vigorous debates on the protocol. But that is the purpose of a democratically elected body.

My noble friend the Minister’s behaviour has been exemplary: he listened carefully to all that was said on Second Reading, indicated his own discomfort with the Bill—I do not think that anybody could be comfortable with it—and promised to come back with some amendments. He has done that. He is an honourable man. He knows and cares more about Northern Ireland than most people who do not live there. He has spent much of his life there and has given much of his professional career to serving its people.

We have a good Minister, a decent man, with a bad Bill. I do not think that anybody disputes that. But I think that what the noble Baroness, Lady O’Loan, said was wise and sensible. We ought to resolve that this will not go on to the statute book until the Assembly in Northern Ireland has met. It must not continue to abdicate its responsibilities. It has a duty to the people who elected it, to serve them.

So, really, the substance of my brief remarks is to appeal across the Irish Sea, to a very beautiful part of the United Kingdom which I got to know well and love deeply: please do not continue to neglect your democratic responsibilities. Let us have your views on this Bill. I suspect that they will not be very different from most of ours.

[Lord Dannatt (CB)]

My Lords, I realise that I run the risk of striking a discordant note in this afternoon’s debate, and I very much understand the widespread criticism of this Bill from virtually every quarter that has been identified. However, I choose to identify with the remarks made earlier by the noble Viscount, Lord Hailsham, and take issue with just one of the comments made by the noble Baroness, Lady O’Loan, when, in the list of those opposing the Bill, she mentioned veterans.

Veterans are not a homogenous group; veterans come in very different categories. I feel that this debate would be lacking if someone did not speak for UK-based veterans who, for 38 years, served and did their duty, in the main, to the utmost of their ability. Yes, of course, there were tragedies, and errors were committed by the British Army. We know what they were, and I am not going to go into those; but the vast majority of soldiers, as we have debated in this Chamber before—I have had debates in my name making exactly these points over the years—did their duty to the best of their ability. Their voice must be heard.

We do not want, as a veteran group, to set ourselves against all the other powerful arguments against the Bill, but the voice that I speak for is the voice that has had enough of investigations being mounted on now quite elderly soldiers on the whim of evidence, often causing them a lot of fear and upset, some of them going to their grave with the allegations not fully investigated. If the Bill is intended by the Government to stop that process, it is a very blunt instrument to achieve a particular aim. On that basis, I would ask the Government to think again about the Bill, but if the Bill is lost, for all the very good reasons that people have been talking about, what must not be lost is some way for veterans who did their duty to be protected.

I am not going to personalise it; I am one of them. My colleagues and I, on the whole, did our best, serving to the best of our ability. There must be some protection for us. We tried to raise it in the context of the overseas operations Bill, but those protections were dismissed by the Government, who said we would come back to it in the Northern Ireland Bill. We are back now. If we lose this Bill, the vast majority of UK-based veterans—not all—will feel that they have been let down by the Government and that successive promises have been broken. That is the only point that I will make.

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[Lord Hain (Lab)]

I am very grateful to the noble Baroness for her interruption. She makes a telling correction, or at least clarification, to the point I make. I agree with her, and take her point entirely, especially having worked with her and respected her for her work when I was Secretary of State.

However, there is regular contact with the families and regular updates; that should be the model adopted going forward. Not only is Kenova a model of effective police work and a model for how to work with the families concerned but it has the most robust governance and oversight structures in place. Two of our distinguished colleagues in this House, the noble Baroness, Lady O’Loan, and the noble and right reverend Lord, Lord Eames, serve on one such body, along with those who have extensive international policing experience. That is the model that should be adopted for any investigative process coming out of this legislation.

In bringing my remarks on this amendment to a close, I confess that I am still not absolutely sure where the Government stand on Operation Kenova. For a time, the mantra was trotted out at official and ministerial level that Kenova could not be said to be successful because no prosecutions had resulted. This was disingenuous at best. The Secretary of State who peddled this line knew full well that over 30 files sat with the seriously overstretched and underresourced Public Prosecution Service in Northern Ireland and have now done for three years or so. I will refer more to this in the debate on Amendment 136. If cases do not come before the courts for whatever reason, one cannot blame the investigation. Now it is conceded by Ministers and officials that Kenova does good work, but we are told it could not be upscaled, because it would be too expensive and investigations would take far too long. Jon Boutcher has made it clear that in his view the essential elements of Operation Kenova could be upscaled and investigations completed within a manageable timescale and not at an eye-watering cost.

I said at the outset that this is bad legislation. Our amendments could turn it into acceptable legislation and surely the Government are therefore duty bound to accept them.

[Lord Cormack (Con)]

My Lords, I was very glad to add my name to the amendment tabled by the noble Lord, Lord Hain, and will speak briefly in its support. I also pay tribute to the noble Baroness, Lady O’Loan, for the way in which she introduced this mammoth group of amendments.

As I listened to the noble Baroness, and to my friend, the noble Lord, Lord Hain, I kept thinking of those immortal words from the Irish story: “I wouldn’t have started from here.” What we have is a terrible ragbag of a Bill. Of course, I agree with the noble Lord, Lord Hain, that if our amendment were accepted, the Bill would be very significantly improved. However, we really need to go back to the drawing board here. The Bill is far too complicated and complex. It tries to treat a whole range of people with what I would call an artificial equality and, in the process, upsets everybody. We have heard that quoted time and again, at Second Reading and in the debates today. You cannot please everybody; you have to try to be fair and just. In particular, you must have regard for those who have been slaughtered or maimed in terrible incidents of which they were not the perpetrators and where they were seeking to defend what was right.

The House does not need me to give a whole series of encapsulations of dreadful events such as Enniskillen. But we cannot have this Bill because it does not recognise—as the noble Lord, Lord Dannatt, put it graphically earlier in our debate today—for instance, the proper desserts of the veterans of those forces who were seeking to defend, and who were not engaged in terrorist acts.

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I hope that the Government will have a very serious look at this proposal, because it might save the Bill—not save it in the sense of whether it would go through the two Houses of Parliament, but save it in that, whatever happens here, if it goes back to Northern Ireland and nobody wants it, it is doomed. It is as a simple as that—but it could be saved. It is significant that we have had two former Commissioners of the Metropolitan Police speak powerfully in favour of the amendment proposed by my noble friend Lord Hain. Perhaps above all else, the Operation Kenova system, if you can call it that, puts the victims at its very heart. Frankly, that is what is missing in the current proposals that the Government are putting forward—so I suggest to the Minister that it is not just worth considering but that he must consider it.

[Lord Cormack (Con)]

You are on!

[Lord Caine (Con)]

As if I need reminding. I am grateful to all who have contributed to this extensive and far-reaching debate. The noble Lord, Lord Hain, referred to my all-Peers letter in which I described this legislation as “challenging”. I assure him that that word was not chosen by the Civil Service—it was inserted by me. I think that the intention could best be described as ironic understatement.

I am also grateful for the words of the noble Lord, Lord Murphy of Torfaen, about the role of this House and the attempts to improve the Bill. I genuinely hope that, whether one agrees with my amendments or not—and I suspect from what I have heard across the Chamber that a large number of your Lordships would fall into the latter category—it is recognised that I am trying sincerely to improve the Bill as best as I can, and will continue in those endeavours.

On the various amendments before the Committee, as noble Lords are aware, the legislation establishes the commission to carry out reviews of Troubles-related deaths and incidents involving serious injury. I have tabled Amendment 76 to make it clear, I hope, beyond any doubt that the commissioner for investigations is to decide whether a criminal investigation should form part of a review in any case that is considered by the commission. I reiterate the point that, under the legislation currently before the Committee, “review” is intended to be an umbrella term that can include a criminal investigation. We have tried to take on board some of the concerns and criticisms over the use of that word.

In the Government’s view, the amendment that I have tabled would confirm very clearly that the Government can meet and deliver on their international obligations in respect of investigations. The Bill does this by ensuring that the commissioner for investigations, as a person with the powers of a police constable, has access to the complete range of investigative measures, including as part of a criminal investigation, while giving them the discretion and flexibility to determine how they can best fulfil the needs of victims and survivors.

I completely understand that the noble Baroness, Lady O’Loan, who proposed a series of amendments, does not agree, and does not believe that the amendment goes far enough. In all honesty with your Lordships, I tread warily on this issue of the ECHR. I am not a lawyer, unlike the noble Baroness. The Government’s position on this is that obviously it follows that, when immunity is granted by the commission, the commission will not be capable of following that with a process leading to a prosecution or the punishment of an individual concerned. Nevertheless, the Government consider that result to be compatible with their international obligations, for the following reason. The absence of a prosecution or punishment outcome in individual cases where immunity is granted can, in the Government’s view, be justified on the basis that the conferral of such immunity in those circumstances, in a limited and specific way, is necessary to ensure the recovery of information about Troubles-related deaths or serious incidents that would not otherwise come to light. Such recovery is an important part of trying to help society in Northern Ireland move forward. I think we will touch on that issue further in a later group of amendments.

I turn to the amendments in the names of the noble Lord, Lord Hain, and others. The Government do not believe that it would be appropriate or effective to stipulate that all reviews must entail criminal investigations, which would be the effect of Amendment 72, or that in some cases a criminal investigation, and only a criminal investigation, must be carried out. There are circumstances where families might wish simply to gain a further degree of information about something that happened on the day, about some specific aspect of what happened, and we would envisage that the commission in those circumstances might determine that a short review is all that is required to answer a small number of specific questions—and that information might be readily available in the archive of material available to the commission without having to go down the criminal investigation route.

We believe that stipulating that all reviews entail criminal investigation would—I do not think the noble Lord will be surprised to hear me say this—add a significant amount of time and resource to how long it would take the body to work through its caseload and prevent it being able to prioritise appropriately. We are clear that, in all cases, the commission will be able to conduct full, effective investigations capable of discharging our obligations. The commission will have all the necessary powers to conduct investigations, including the powers and privileges of a police constable, the power to compel evidence from witnesses and full access to state records.

As I said in response to an earlier group, it is of course vital that the commission is informed by best practice from elsewhere, including Operation Kenova, which I agree with many noble Lords across the Committee has achieved very positive outcomes in building strong relationships with victims and helping them to better understand the circumstances around what happened to their loved ones. Like many noble Lords across the Committee, I have met Jon Boutcher on a number of occasions and continue to engage with him, and I pay tribute to him for the work he has carried out—specifically for the way he has conducted relations with families.