Northern Ireland (Stormont Agreement and Implementation Plan) Bill

Lord Empey Excerpts

Thursday 21st April 2016 Lords Chamber

[Lord Empey (UUP)]

My Lords, I take this opportunity to support the amendment of the noble Lord, Lord Alderdice, who touched on a number of very significant points. Noble Lords need to understand that this commission was appointed as a mechanism following the very severe events that took place last summer, which nearly brought the whole show down. A number of people have found that the appointment of this body gives them some reassurance that they can remain in the Assembly and that this commission would at least have the opportunity to shine a light on what was going on and to tackle one of the most significant outstanding, unresolved issues: those paramilitary organisations that were deemed to be active and have influence and control over one of the major parties and the totality of paramilitary involvement, which goes right across the community at all sorts of levels—in politics, in security, in crime and in other significant social circumstances where influence is being brought to bear on the younger generation to corrupt their views.

This is a very broad canvas. However, I want to talk about the specific security aspect of it, which is extremely important. The two shootings last year led up to the crisis and to a statement by the chief constable about the continuing operation of the Provisional IRA. That really destabilised the institutions to a significant extent. For many of us, the appointment of this body was an attempt to provide reassurance by shining an independent light on what was actually going on. I was one of those who felt that the removal of the IICD was premature. Perhaps I was wrong, but I felt that that body kept, as the noble Lord, Lord Alderdice, said, relentless pressure on paramilitaries. It also provided a degree of reassurance and kept momentum in the process going. I am not sure that an annual report is sufficient to deal with that.

I digress for a moment to the Explanatory Notes that were prepared by the Government for this Bill. I mention them because they are significant and relevant to this amendment. I refer to paragraph 2, on the policy background, which says that:

“The Fresh Start Agreement was reached on 17 November 2015 after 10 weeks of cross party talks between the UK Government, the five largest parties of the Northern Ireland Assembly and the Government of Ireland”.

The language in that would give the uninitiated reader reason to believe that this document and the Bill that has arisen were the product of that negotiation and agreed by the participants. That is not true. Yes, for the first eight out of 10 weeks of the discussions all the parties were involved. Sometimes they turned up and sometimes they did not, but everybody at least had the opportunity to turn up and most did. However, in the last fortnight, the discussions were taken out of Stormont House and moved to Stormont Castle, where the two largest parties, together with the Governments, produced the document, which some of the parties were then summoned to see on 17 November. My own party, the Ulster Unionist Party, the Alliance Party, and the Social Democratic and Labour Party were provided with this document, and we simply said that we would take it away and look at it. But this is not the product of an all-party agreement; let us be very clear about that.

The long-term problem that we have with this sort of legislation, and indeed the Scottish legislation, is that when it comes to the parliamentary side of it, government feels inhibited in paying any attention to Parliament, because it deals with these documents as if they were treaties—I made this point on the Scotland Bill. In my opinion, Parliament should be able to scrutinise and amend any of these things should it see fit. Governments, when they are making commitments, should make it very clear that they are subject to parliamentary scrutiny—they should not simply railroad things through whether they are right or wrong.

I believe that this amendment has merit. I would also like to comment on the other amendment in the group, in my name, which concerns appointments to the commission itself. Part of the arrangement is that the British Government and the Irish Government will appoint a nominee, and the First Minister and Deputy First Minister will appoint two nominees between them. There is a perfectly logical argument for that. You could say that for the First Minister and Deputy First Minister of the day, whoever they may be, it is a perfectly sensible arrangement. On the other hand, it means that you have people who are appointed basically on political grounds. Both of them will have a veto over who is appointed. One of them might be from Sinn Fein. We have to understand that the current Deputy First Minister, while he has changed much over the years—which I welcome—is nevertheless a self-confessed member of a paramilitary organisation. I personally believe that he was chief of staff of the IRA; he will have conducted paramilitary campaigns against and ordered the assassination of individuals and destruction of property and assets. Is it correct that the cat is put in charge of the cream?

So, there are two logical arguments for the amendment. However, I wanted to put it down as a probing amendment to assess whether there is an alternative mechanism. Some people say that the policing board is one. Of course, it is not a totally independent body either, but at least there are independent people on it, so it is not a political deal. But I know from experience that whoever is appointed, if the current arrangements are applied, it will be a political deal. That is fine, but I am just saying that the people who could be involved in that appointment are not necessarily independent. One of them at least, should he remain Deputy First Minister, is a self-confessed member of a paramilitary organisation. I would much prefer a more independent appointment process where people are not put in simply as stooges but would be genuinely free and independent and able to make a judgment without being somebody’s clone. That risk exists with the present arrangements.

I want to make it clear to your Lordships that this document is not universally agreed, although there are bits in it that I think are perfectly fine and reasonable and have no objection to. I do not understand why language is used which does not tell the reader what the situation in practice was.

There is great merit in the amendment in the name of the noble Lord, Lord Alderdice. It could also help to avoid pressures on the new Executive, when they come in, should other events occur that we cannot anticipate. What if we have to wait maybe 10 or 11 months? Let us take the situation of last summer, when those shootings occurred. If somebody said, “Well, the commission reported in June, so there’ll not be anything till next June”, that would be absolutely useless. This commission has the power to give reassurance to people that the paramilitary issue is being dealt with and will be reported on. It is not unreasonable to ask that the reporting mechanism be brought forward to six months, which could be an important escape valve for events that may occur which could destabilise the institutions once again.

[Lord Eames (CB)]

My Lords, I support the noble Lord, Lord Alderdice, in his amendment, but I do so from a point of view which has yet to be mentioned in this debate. On retirement, I have maintained the work that I initiated in those years with those former paramilitary members who were seeking a better way of life and a more just way of expressing their opinions. I have continued that work and am utterly convinced that one of the most extreme pressure points in ensuring that that process continues for the greatest number is contained in the words of the amendment, and for this reason. We may suspect, in the relatively calm waters of this Chamber and the Palace of Westminster, that some of the things that are said are not listened to by the likes of those who have former or present contact with paramilitary organisations, but let me assure noble Lords that that is untrue. Those words are read, thought about and used in deciding the meaning of this. Only recently, a group who I have been working with for some time said, “When will it be recognised that we are trying? We are trying to get out of this cauldron of paramilitary activity. When will society recognise that some of us do want out of it?”.

If the commission reports only at the sorts of intervals mentioned in the Bill, this important pressure will cease to have effect unless we accept what is sought in the amendment of the noble Lord, Lord Alderdice. As events move—and they can move very quickly in the world of the paramilitary—if this commission does not have the opportunity to tell civil society, “This is what’s happening”, and to tell it in a relatively speedy way after evidence has been uncovered, a wonderful opportunity will be lost. I beg the Government to think just as carefully about the meaning behind the proposal in this amendment as they do about what the amendment says. I beg the House to take this very seriously.

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[Lord Kilclooney]

My Lords, briefly, I support the amendment in the name of the noble Lord, Lord Lexden. The term “Ireland” is being used very loosely by the present Conservative Government, which is causing great offence to the vast majority of people in Northern Ireland. This error of decision by the Conservative Government has been increasingly noticeable over the past 18 months. Nationally, it is contrary to the laws of this country, as has been said. The Ireland Act 1949 made it clear that the Government in the southern part of our island are the “Republic of Ireland” —nothing else, not “Ireland”. Why are the present Government pretending that the Government in Dublin are now the “Government of Ireland”, because that is causing offence?

It has been stated that, in international law, they are the Government of the Republic of Ireland, but that is not so in European law. When the United Kingdom decided to accede to the treaty of Rome, the southern part of Ireland agreed to do the same on the same day, just as it is suggested now that, if the United Kingdom leaves the European Union, the southern part of Ireland will also leave the European Union on the same day—that is for the future to decide. At the time of accession, it was the Conservative Prime Minister who was there on behalf of the United Kingdom, and it was Mr Lynch, the then Prime Minister of southern Ireland, who was there on behalf of the Republic of Ireland. As they were signing, Jack Lynch said to Ted Heath, “Do you mind if I sign as the Prime Minister of Ireland?”, and the Conservative Prime Minister of the United Kingdom said, “It’s fine, go ahead”. Since that day, the European Union has referred to the southern part of Ireland as being Ireland and, I am sorry to say, it is Ireland in the context of the European Union and its laws.

However, in the context of the United Kingdom and our laws, it is the “Republic of Ireland”, and the present Government are going contrary to the laws of this nation by referring to it as the “Government of Ireland”.

[Lord Empey]

My Lords, as usual, the noble Lord, Lord Lexden, has an uncanny habit of putting his finger on something that sparks a series of comments.

I am no lawyer or expert in these matters. All I can say is that, when we came to the Belfast agreement in 1998, no agreement would have been reached had the constitution of the Irish Republic remained as it was. We had the issue of Articles 2 and 3, which claimed the territory of Northern Ireland as part of the nation. If I remember correctly, “the island and its territorial seas” was the terminology at the time. Had that remained in place, there would have been no agreement.

A treaty was eventually written to implement the agreement—although it was brought in here as the Northern Ireland Act 1998, there is of course a treaty. The Irish Republic effectively changed its constitution by referendum in 1998 to remove those offending articles. So in terms of our operational day-to-day relationships with the Republic, when we were going to meet Irish Ministers, deal with them and set up bodies with them—which, as the result of the noble Lord, Lord Trimble, appointing me to positions, I had the opportunity to do—it was clear to us that the perceived threat/claim no longer existed from a practical position.

However, the problem was demonstrated by the 1985 arrangements, when there were two separate documents, as was pointed out. There was the question of the United Kingdom being given its full title—the mirror image of this question. This country was not getting its proper legal title from the Republic. We are the United Kingdom of Great Britain and Northern Ireland, as anyone who looks at the passport will see. The Irish state was not legally permitted to acknowledge anything other than Great Britain as part of our national territory. That was where the agreement of 1998 made progress, in that it was then accepted that we are an integral part of the United Kingdom. That had been the missing link and something that we had attempted to achieve. Several noble Lords who are here today were part of that negotiation.

So we have made huge progress. I am not qualified to judge what the international implications of this could be, but we know from dealing with this issue that things can creep in over time to dilute the agreements that we have made, because there are always people who will never give up their ultimate objectives. We know that people have been prepared to kill, be killed and do all sorts of other things to achieve an objective which does not meet with the democratic will of all of the people on the island of Ireland, as was expressed by the 1998 referendum.

Your Lordships will recall that John Hume’s argument always was that, if you got the people on the island to vote, you would undermine the arguments of 1918 and the republican movement, because you would actually get people to vote to accept the position. That was, of course, the whole purpose of the agreement. People were forced into accepting that—through gritted teeth, I suspect—and we got the vote.

I thank the noble Lord, Lord Lexden, for raising this matter, because it brings out whether people truly and actually believe what they have signed up to.

[Lord Trimble]

My Lords, everything that has been said by the previous three noble Lords who have spoken is significant, and how people feel about things and the language that is used is also significant, but in assessing the legal situation we must bear in mind that Ireland—the Republic of Ireland, the Irish Free State, whatever you want to call it—operates under a formal, written constitution. Here, I am speaking from memory, not having consulted documents to refresh my memory and ensure that it is accurate, which is a dangerous thing to do, but the 1937 constitution, in giving a name to the state, said that the name of the state was “Éire, which in English means Ireland”. That is a nice one to reflect on. That constitution was still in force in 1949, when the state was declared to be a republic, but that was legislation. No amendment was made to the constitution, so in Irish constitutional law, the name remained unchanged.

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Moved by

[Lord Empey]

3: After Clause 5, insert the following new Clause—
“Victims and survivors
In Article 3 of the Victims and Survivors (Northern Ireland) Order 2006, at the end insert—“(3) In this Order references to “victim and survivor” shall not include an individual appearing to the Commission to be any of the following—(a) someone who is or has been physically or psychologically injured as a result of or in consequence of their undertaking a criminal act in a conflict-related incident;(b) someone who was in whole or in part responsible for an unlawful conflict-related incident if that person took part in all or any of the planning or execution of that unlawful act.””

[Lord Empey]

My Lords, I will take this opportunity first to remind noble Lords of our contributions at Second Reading. The co-called Stormont House agreement is a two-stage rocket. The first stage took place in 2014. Of course, even in 2015 a large part of the discussions rested on legacy issues and not on the issues contained in the Bill. So the Bill is largely devoid of the matters that were discussed for prolonged periods during both sets of negotiations.

I will take this opportunity to thank the Minister for holding a meeting. Sadly, it was in Committee Room 10A, which was far too small and stuffy for the number of people who showed up, but I thank him for holding it. I do not know whether he believes that it served him any purpose—a number of noble Lords are here this afternoon who were there last week to express their views—nevertheless, it gave an opportunity to ventilate on the legacy issues, which the Minister had indicated he hoped to bring before your Lordships at a future date, in a separate piece of legislation. We also have people in this House today, such as the noble and right reverend Lord, Lord Eames, who have a distinguished history of work in this very sensitive area.

As someone who, fortunately, came out of our Troubles without a member of my family or a close acquaintance being directly affected, in the sense of being either killed or injured as a result, I am in a minority, but I know there are still a lot of people who are deeply unhappy that the issues they feel are so significant to them are not being addressed. Consequently, this amendment seeks to amend the Victims and Survivors (Northern Ireland) Order 2006 to make it clear that, if a perpetrator of an act of violence should subsequently try to claim compensation, that they would no longer be eligible. The situation is fairly clear in English law. When a person is responsible for something that is their own doing and that thing is unlawful, it seems perverse that they should then have full access and be treated as being in exactly the same position as the person against whom an act of violence was committed. Effectively, that is what the amendment seeks to deal with.

There is no common view or belief on what is a victim. For a variety of reasons, it has not been possible to get an agreed definition, despite the fact that many people have tried. We understand the rationale for this—that those who were members of paramilitary organisations feel that they have been fighting in their terms a just war, and therefore they see themselves in the same light as we would see veterans of our Armed Forces, for instance. Strange as that may seem to many people, it is nevertheless the fact, and we have to be aware of that. Similarly, the loyalists and republicans felt that they were involved in just wars. But of course, that is not how the law of this country sees it, and it is not unreasonable to see a distinction between someone involved in an act of terrorism—an unlawful act—and a person who was a victim of that particular unlawful act, and treat them differently. That is what this addition to the Victims and Survivors (Northern Ireland) Order 2006 seeks to achieve. I beg to move.

[Lord Rogan]

My Lords, efforts are increasingly being made by Sinn Fein/IRA to rewrite the history of the Troubles. The forces of the Crown are being portrayed as the bad boys and the bad side and, indeed, have been shown as the perpetrators of most of the violence. The terrorists are being seen as not really to blame—indeed, if it had not been for the British Government’s misrule, they would all have been model, peace-loving citizens. They are attempting to airbrush terrorists and terrorist atrocities out of history, and they portray themselves as victims, putting themselves in the same category as those thousands of innocent victims. This revisionism must not be allowed to happen. There is absolutely no way that someone injured or killed when carrying out an unlawful terrorist incident can be equated with an innocent civilian or member of the Crown forces performing their duties of protecting us.

In giving evidence to the Northern Ireland Affairs Committee yesterday, the victims commissioner stated that some 200,000 persons in Northern Ireland, 12% of the population, are suffering from mental health problems as a result of the Troubles. A disproportionate number of these victims—and these people are as much victims as those with physical injuries—live in areas which were, and in some cases still are, controlled by paramilitaries. Paramilitaries were terrorising and exploiting their own communities—one more reason why no more justification can be given to equate innocent victims with terrorists. I support the amendment proposed by the noble Lord, Lord Empey.

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[Lord Dunlop]

My Lords, I welcome the noble Lord, Lord Murphy, to the Dispatch Box. He played a very significant role in Northern Ireland, and it is great to see him speaking from the Dispatch Box.

Before I address the amendments, it has already been mentioned that organisations that deal with the legacy of the past may be the subject of legislation in future, but only if sufficient consensus can be established among the Northern Ireland parties. Amendments 3 and 5, tabled by the noble Lord, Lord Empey, relate to the definition of a victim in relation to the role of the Commission for Victims and Survivors. Before I engage on the detail of these amendments and the challenges that they pose, I first make clear that the Government are sympathetic to the import and feeling behind them. Noble Lords will be aware that the definition of a victim in Northern Ireland is a matter of considerable contention. It is a matter that has been debated in this House before—indeed, I think the noble Lord, Lord Empey, tabled a similar amendment to the Northern Ireland (Miscellaneous Provisions) Bill in November 2014—and it remains an area of disagreement between the Northern Ireland parties that is yet to be resolved.

The legislation defining a victim in the context of legacy matters in Northern Ireland relates to the work of the Commission for Victims and Survivors. Under that order, which is now a devolved responsibility, the term “victim and survivor” is defined as a person appearing to the commission to be physically or psychologically injured as a result of a conflict-related incident, or who regularly provides substantial care for such a person, or who is bereaved as a result. This is a broad definition and can include persons who are psychologically injured as a result of being a witness to an incident or of providing medical or emergency assistance to a person in connection with an incident.

The placing of restrictions on the definition of a victim is a difficult and complex issue affecting access to services for those who have suffered losses during the Troubles. However, let me be clear again that the Government believe that there is an unquestionable distinction between innocent victims and perpetrators. As my right honourable friend the Secretary of State said in February:

“The terrorist campaigns caused untold misery and suffering”,

and we will never accept any equivalence between those who sought to defend democracy and those who attempted to destroy it.

Under the current definition, it is possible for someone who was a perpetrator of violence or their family member or carer to be defined as a victim and to benefit from the commission’s assistance. The Victims and Survivors (Northern Ireland) Order 2006 was passed by the previous Labour Government, and the definition remains highly controversial, with the Northern Ireland parties divided on the issue. The lack of consensus around the definition of a victim is one of the key challenges in dealing with the past, and the issue has not formed part of the two agreements reached in recent cross-party talks: the Stormont House and fresh start agreements.

As I mentioned previously, this legislation is now a devolved matter and therefore the responsibility of the Northern Ireland Assembly. Accordingly, any change to the definition would require cross-community support in the Assembly, and at present the issue is not one on which the Northern Ireland parties have been able to agree a way forward. Even if the Assembly were currently sitting, I doubt that a legislative consent Motion would be agreed enabling this Parliament to change the definition.

Noble Lords will be aware of the significant progress that has already been made on legacy issues during the Stormont House talks towards the end of 2014. It included the Northern Ireland Executive agreeing the Victims and Survivors Commission’s recommendation for a new mental trauma service, better to meet the needs in this area. Advocate counsellor assistance was agreed for victims and survivors in order to provide support and help to individuals in accessing relevant services.

When it comes to the past, and I recognise that many noble Lords have strong views on how best to deal with it, it is clear that victims should be our first priority. These commitments in the Stormont House agreement have the potential to deliver better outcomes for victims and their families. The delivery of the Stormont House agreement still represents the best chance of making progress on these matters and remains the Government’s priority in dealing with Northern Ireland’s troubled past.

My noble friend has made an argument on the issue of victims with which it is easy to sympathise. As I have made clear, the Government agree that there is a clear distinction between innocent victims and perpetrators. However, the matter is one that I am sure noble Lords will agree is best resolved by the political parties in Northern Ireland, and on that basis I urge my noble friend to withdraw his amendment.

[Lord Empey]

I am obliged to the Minister for his response. I would point out to the noble and right reverend Lord, Lord Eames, and others that I and my party will take any legislative opportunity that we can to put this case forward. It should be drawn to people’s attention that the current legislation was introduced during direct rule. Had there been devolution at that time, there would not have been agreement on the current order because it does not do what it says on the tin. For that reason, we would object strongly. The reason why this Parliament has a role is its oversight over some of the fundamental issues. I still believe that while this particular legislative vehicle may not be the most appropriate, it is nevertheless possible to resolve this because it is such a fundamental issue.

The Minister says that Stormont has this responsibility today, but I can tell him that had Stormont been dealing with things at this stage in 2006 it would never have agreed to this particular set of proposals, because they leave the door wide open. They do not distinguish between a perpetrator and victim; in fact, they make the perpetrator and the victim equal. That is what the order says, and my amendment seeks to change that.

I understand the dilemma that the Minister is in. We can run away from this issue as much as we like but sooner or later we are going to have to confront it. Whether in this vehicle or some other vehicle is unimportant, but I personally and my colleagues in my party will take every legislative opportunity that comes our way to put this case until the matter is resolved. Having said that, I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

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Moved by

[Lord Empey]

4: Clause 8, page 5, line 11, at end insert—
“(5) Standing orders must provide for a process for investigating any alleged breach of the undertaking by any member of the Assembly and for determining whether the undertaking has been breached.(6) Standing orders must provide for sanctions that shall apply to any member of the Assembly who has been found to have breached the terms of the undertaking.”

[Lord Empey]

My Lords, this amendment was moved in the other place. It is on the back of the fact that a series of pledges were included in the Stormont House agreement, to which people were asked to commit before they took office as Ministers and Assembly Members, relating to a series of things that I have no difficulty with, although I said at Second Reading that I had little faith in commitments because I thought some people would sign anything, and the history over the last 30 years was that they did so. We had issues at local government level where people had to sign, pledging to a peaceful way forward, when we knew that they had no intention of doing so. Still, the language in some of the pledges is quite positive and a step forward.

However, if there is a breach of those undertakings, no sanction whatever is provided for. The point was made repeatedly in the House of Commons from all parties, including the Labour Party, that there were gaps here that should be filled. I suggest that we make it clear that Standing Orders should be provided in the Assembly saying that if a person is clearly guilty of a breach of these undertakings, something happens. At present, nothing happens. What will happen in practice is what has happened before: even where someone is in breach or is challenged over their behaviour in the current Assembly, the party of which that person is a member puts down a petition of concern, if it is in a position to do so, which means that nothing happens. That means we can have the best form of commitments and statements of commitment to pursue peaceful means and all the rest of it, but at the end of the day nothing can be done in the Assembly to have any impact or effect any change. That point was made repeatedly in the other place. It makes sense if you have a series of commitments that people are being asked to make. What is the point of asking them to make those commitments if, when they breach them, absolutely nothing happens?

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[Lord Dunlop]

My Lords, this has been a short but important debate. Clause 8 makes provision for a new undertaking to be given by all Members of the Northern Ireland Assembly, in line with the fresh start agreement. To be clear with the Committee, it was necessary to introduce this undertaking through Westminster legislation because the Assembly is prohibited by the Northern Ireland Act from introducing a requirement for its Members to make an oath or declaration as a condition of taking office. The Assembly has established mechanisms for holding MLAs to account for their adherence to the existing Assembly code of conduct, through the Assembly Committee on Standards and Privileges and the independent Commissioner for Standards. The Assembly already has the power to introduce measures to investigate alleged breaches of the undertaking and to impose sanctions for any such breaches.

The amendment in the name of the noble Lord, Lord Empey, assumes that Standing Orders would be the obvious vehicle for introducing any such measures, but this is not necessarily the only vehicle. For example, it may be open to the Assembly to legislate. There may of course be other options, and it is right that the Assembly should be able to debate and explore the available options for itself. Indeed, the whole issue of devolution was mentioned by my noble friend Lord Trimble. There is considerable value in the Assembly and not this House determining how MLAs should be held to account for any breaches of the new undertaking, just as this House holds its Members to account for their behaviour. Any such measures would of course need to be built upon cross-community support in the Assembly, and it must be right that Assembly Members should be subject to scrutiny for their conduct.

To answer the noble Lord, Lord Murphy, the Government will of course encourage the Assembly to consider carefully how this might be achieved. However, for the reasons I have given, I urge the noble Lord to withdraw this amendment.

[Lord Empey]

Once again, I thank the Minister for his comments and thank other noble Lords who have participated in this. As with the Minister, it is great to see the noble Lord, Lord Murphy of Torfaen, at the Dispatch Box once again. He knows his onions when it comes to this subject.

The Minister is right that Standing Orders may not be the only mechanism. I do not care what the mechanism is, to be honest. The simple point—the noble Lord, Lord Murphy, put it very clearly—is that these pledges mean nothing if they can be ignored with no consequence. That is self-evident. The Minister hinted to us that he intended to bring forward another piece of legislation in the next Session, perhaps to deal with legacy and other matters. There will therefore be time for the Assembly to address this issue, and I welcome that, but there will also be time for the Assembly not to address it. However, I think that we, and the Government, will be provided with an opportunity and the time to get this matter resolved. If it is not resolved, it will continue to fester.

If I may paraphrase MacArthur, I assure the Minister that we shall return to this matter if it is not resolved. On that basis, I beg leave to withdraw the amendment.

Amendment 4 withdrawn.