Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Hogan-Howe Excerpts

Committee stage
Tuesday 24th January 2023 Lords Chamber

So why are these provisions necessary in other inquiry legislation but omitted from this Bill? What is the Minister’s explanation—and why, if he resists these amendments, does he think that the Bill will not need these powers?

[Lord Hogan-Howe (CB)]

My Lords, I rise to support Amendment 147 from the noble Lord, Lord Hain. In passing, it might be worth mentioning that I am open-minded about whether this Bill should progress. I think that there are arguments both ways, and we have heard some powerful ones today, but it relies on the consent and support of those people most affected by it.

One thing that has struck me in the debate today is that certain groups of people have not been mentioned whom I am sure no one wanted to forget. It was not until the Minister responded that we talked about the RUC’s losses and about its involvement in some of these cases. As we consider the immunity that might be offered, I think that we all respect and support the military’s losses and involvement in these things. Of course, the RUC was directly involved, and its members did not return to barracks at the end of the day but went home to their children, their parents and many other people. I do not think that anybody is choosing to forget, but we ought to keep that in mind.

We also ought to keep in mind that, here in mainland UK, the people of Warrington, Manchester, Birmingham and London lost people. Their thoughts have to be borne in mind too. It is not a case of “This is predominantly a Northern Ireland Bill”. There are other people who must be considered too, and they have not been spoken of today.

I support Amendment 147 because I think that the progress made by Operation Kenova is very significant. I accept the point made by the noble Lord, Lord Weir, that we should be concerned that this might extend to a whole new group of investigations that might be extended. But we should have the reassurance that the number of investigations is quite discrete. A significant number of these are already with the DPP in Northern Ireland. They have been for quite a while, and there is a question about whether there are sufficient resources there and the skills necessary to make these decisions—none of which are easy, as we all know, but at least we have got to the point of a case going to a prosecutor to consider a charge. That is a very significant number.

There is also the outstanding case of Operation Denton, which has been investigated for a significant amount of time. As the noble Lord, Lord Hain, has already suggested, it is thought that there will be cases going to the DPP by the beginning of next year. There is no certainty about this, but that is a professional judgment which I think is not unreasonable. The main thing to consider there is that, obviously, the families and all those interested in the outcome of those investigations now have a trust and expectation: a trust in the investigation team, which has been hard won and can easily be lost, and also a trust in the process.

Of course, it may be that the Government have to decide that they will end these investigations and fold them within this proposal. I think we all understand that that is a real dilemma. But, for the families involved, and given all the hard work that has gone into this, it would be a terrible shame. Some of the previous investigations have not had the support that we heard described by the noble Lord, Lord Hain, and that, from my experience, has been garnered in this case. It would be a shame if that hard work and trust were lost on this occasion.

[Baroness O’Loan (CB)]

My Lords, I support Amendment 1 in this group, from the noble Baroness, Lady Suttie. She made the case with absolute clarity. No more needs to be said.

On Amendment 147, I reassert my declaration that I am a member of the international steering group advising on Operations Denton and Kenova. It is, as the noble Lord, Lord Caine, said, a very long-overdue review of cases involving the Glenanne gang, which is reported to have involved loyalists, including members of the security forces, who carried out shooting and bombing attacks against Catholics and Irish nationalists in the 1970s. We know that there are some 127 victims.

I will address the comments made repeatedly that terrorists do not keep records and that the police and Army do. Having investigated many of these cases of alleged collusion, I can tell noble Lords categorically that those involved in collusion do not keep records: for example, of instructions to not investigate; to bring people in for questioning during an investigation, provide them with a cup of tea and some sandwiches, leave them in the room but not actually ask any questions, then release them, to protect them so that they have been investigated in the eyes of the general public; to perhaps lose evidence, which I have seen; or to contaminate physical evidence. None of this is recorded. That is why, where you can identify collusive activity of that kind, it is very usually impossible to bring a prosecution—and it is right that there should be no prosecution where there is no unbroken chain of evidence.

Denton has made very significant progress. It was reviewed by the National Police Chiefs’ Council in January 2021, which explained that Denton differs from Kenova in that it is being conducted as a review and not a criminal investigation at this time. This makes the approach by the operational team fundamentally different from that of Kenova, which is an investigation, from an evidential perspective. As the noble Lord, Lord Hain, said, Denton is due to be finished next year. Former Chief Constable Boutcher will then report.

Considerable resources have gone into this review. Were the Bill to be passed without an amendment of this kind, Denton would not be completed by Chief Constable Boutcher and his team and would fall for review by the ICRIR. Given the progress already made, to bring in a new team in would professionally require a review of what has been done before. I know we say that we do not reinvestigate, but, in professional terms, if you pick up a case that somebody has been managing, you must examine it to make sure you are satisfied that all investigative opportunities have been explored. That would result in a huge and unnecessary waste of resources, and it would be particularly damaging to victims and survivors, who would be required to revisit yet again what they suffered and have been suffering.

Such is the difference between investigations and reviews that An Garda Síochána, who have been very helpful to Denton and Kenova, was unable to provide sensitive material to Denton. That material could have been provided under international agreements for police co-operation, were Denton an investigation. But, because Denton is a review and not an investigation, it could not be provided under the European police co-operation agreements, et cetera.

At the request of the Operation Denton steering group and Chief Constable Boutcher, the Irish Government have passed a statutory instrument. The effect of that is to allow them to pass sensitive material, which they could not otherwise pass, to Operation Denton. When I was engaged in discussions about that matter with the Irish Government and Garda Commissioner Drew Harris, I was simultaneously considering this Bill. It was very odd to me that my Government in the United Kingdom were moving to close things down and the Irish Government were moving to open things up and be helpful.

So, given the complexity and extent of Operation Denton, I suggest to the Minister that it would clearly be in the public interest to permit Mr Boutcher and his team to complete the work in which they are engaged. I therefore support this amendment.

Amendment 52 in my name and that of the noble Lords, Lord Murphy and Lord Hain, and the noble Baroness, Lady Ritchie, would remove the five-year rule contained in the Bill, which effectively introduces a limitation on prosecution that is inconsistent with the Good Friday agreement and our international legal obligations.

This work of dealing with the past is incremental. It requires consideration of victims’ needs. A five-year limitation period for the seeking of investigations or reviews would place huge pressure on people who may be suffering the consequences—for some, very severe mental health problems—of the incident in question. I know that noble Lords will think that five years is a very long period, but I assure them that, in investigation terms and for people dealing with the mental health problems that have arisen as a consequence of the Northern Ireland Troubles, to add the additional pressure of knowing that you have to be there before five years are up is difficult.

Noble Lords will also understand, I think, that it will take some time to grow confidence in these new ICRIR processes. In light of the international condemnation of the Bill as it stands, questions might rightly be asked about whether victims, survivors and their families will use the new processes. That is another reason for us to think about the need to amend the Bill very significantly.

Does the period when the ICRIR becomes operational include or exclude the period of finding premises, setting up an office, agreeing a budget, getting staff, establishing processes, providing training, and the Secretary of State drafting all his guidance, et cetera? We do not have limitation periods for criminality in this country, for very good reasons. If a person was murdered before 10 April 1998, under this Bill they will have only five years to seek an investigation. If they were murdered four months later—in the Omagh bomb, for example, or in any of the other atrocities—that limitation would not apply. It is arbitrary. How do the Government justify the introduction of a limitation for a very small subset of the victims of crime in the United Kingdom?

--- Later in debate ---

[Baroness Hoey (Non-Afl)]

My Lords, I will speak to my Amendment 34 about human rights, to which the noble Lords, Lord Godson, Lord Empey and Lord Bew, have added their names.

Human rights are usually invoked by people in support of their political position, without actually admitting or understanding that there is always a conflict of rights in most situations. This could not be more true of legacy in Northern Ireland. One right is always mentioned—Article 2 of the European Convention on Human Rights on the right to life—but of course there are other ECHR rights that should arise in a legacy debate. Article 6 is the right to a fair trial, which has implications for those whom the ICRIR will consider in its reinvestigations and public reports. Article 8 is the right to respect for private and family life, which applies to an even wider range of people caught up in every Troubles death, especially those who served in our Armed Forces and the police. Article 10 concerns freedom of expression and the right to a reputation, and this applies to another group, including those who are critical of lawfare for different reasons but who fail to get much reported by our state broadcaster in Northern Ireland, BBC Northern Ireland.

For over 20 years, following the McKerr judgment of the European Court in May 2001, the slogan “Not Article 2 Compliant” has been thrown around, not just by the advocates of lawfare but by too many figures in the criminal justice system. In the McKerr case—he was a member of the IRA killed on active service in November 1982 by members of the RUC—Strasbourg invented a new right. The court did not say that the UK had violated McKerr’s substantive Article 2 right to life, but the seven human rights judges said that a new right had been violated due to an alleged inadequate investigation. That right became known as “Article 2 procedural”. The UK was required to continue to investigate and to ensure that

“the next-of-kin of the victim must be involved in the procedure”.

I am sorry to say that, in the context of Northern Ireland and terrorism, there are some relatives who might have an interest greater than justice, such as discrediting the way police officers and soldiers resisted republican and loyalist terrorism during the decades of the Troubles—and Strasbourg does not deign to notice that.

There is a second McKerr line of cases in the House of Lords, and later the Supreme Court, which the Committee on the Administration of Justice and academics never mention. On 2 October 2000, the Human Rights Act 1998 came into force. The House of Lords, in another McKerr judgment in 2004, said that Article 2 compliant investigations did not apply to deaths before that October 2000 date. This position was left in place in domestic law by our judges in the McCaughey case in 2011, the Keyu case, a Malaysian case, in 2015, and the Finucane case in 2019. Then, in December 2021, in a key Northern Ireland case called McQuillan, the Supreme Court reaffirmed the rule of no Human Rights Act requirement for such investigations —which, essentially, were reinvestigations—before October 2000, with a qualification, based on some controversial Strasbourg jurisprudence, that a 10-year pushback was permissible. The helpful headline in the Times Law Report read, “Northern Irish police are not required to re-investigate incidents from the Troubles”.

Solicitor Patrick Finucane was murdered by loyalists in February 1989, some 12 years before the human rights commencement date. His killers have been convicted but the need for reinvestigation—a public inquiry, as Strasbourg and his family demand—remains an open question. Some human rights lawyers query whether Strasbourg’s 10-year rule is even arguable under the Human Rights Act 1998. If the Supreme Court judgments are relied on to turn down a Finucane public inquiry, and the Supreme Court said that the Government, for various other reasons, were not obliged to have one, the matter should be over and we would save up to £100 million. For this reason, I believe that the Government need to beef up their responses at Strasbourg —I note what the Minister said in answer to the previous debate about the Northern Ireland Office making overtures; it would be helpful if we could see some of those—because they have to start ignoring what is seen as an international lynch mob currently baying at the Northern Ireland Office over the Bill.

I look forward to the Minister explaining how, given the McQuillan judgment, much of Article 2 procedure now applies to the nearly 4,000 Troubles killings. In 2021, in a PSNI statement just after the judgment, Assistant Chief Constable Jonathan Roberts, who well understood the import of McQuillan, wrote:

“The Police Service welcome the clear legal ruling that there are no legal obligations arising from Article 2 ECHR to investigate these cases”,


including McQuillan. He continued:

“We will now carefully consider the judgments and their impact on the legacy caseload.”


Sadly, nothing visible has happened since that.

I am sure that, in answer to my amendment, the Minister will say that Section 6(1) of the Human Rights Act 1998 means that all ECHR articles would apply to the ICRIR’s work. If the Government are being pushed by the CAJ and Strasbourg into Article 2 procedure—as they have been in Northern Ireland Amendment 76, which the Government will move—by adding criminal investigations to the review process, why can they not also say in the Bill, using the Minister’s phrase, that other ECHR articles, particularly Articles 6, 8 and 10, will be in play?

[Lord Hogan-Howe (CB)]

My Lords, I rise briefly to support the amendments. First, I was struck during the debate by this distinction between investigations and reviews. Everyone agrees that investigations should follow but the question is whether there should be prosecutions. There are arguments around whether a review is really an investigation—do the families really get the facts? If we could agree that an investigation was not always followed by a prosecution, this may be something that we could start to agree on.

Secondly, it seems that there is a broad consensus that, as an approach, Kenova is good. The standards of connection to the families and of investigation have been supported by the people who most need this—namely, those who have lost family members.

Finally, there is a bit of a definitional issue around the difference between a review and an investigation, and we will have to address that at some point. One of the things about an investigation is that, obviously, there is always an interview with the suspect. It has to be conducted by the rules of evidence and there is the potential for a charge at the end. One of the dilemmas with any review, including Kenova, is that a review can consider material that is not evidence. I will make two broad points in that area.

First, as we have heard, Kenova is looking at intelligence material from other countries as well as from within the UK. It may be able to look at such material but it will not be able to quote it or quote it in a court. Secondly, it is impossible to use intercept material—intercepted communications, usually by telephone—as evidence in the UK unless it has been obtained in a jurisdiction in which it is legally possible to use it as evidence. It is ironic, but that is our system. Reviews are able to consider telephone communications that may be indicative of, but not evidence of, certain actions or charges. That dilemma has to be resolved at some point because although the reviewer may be led by such communications to conclude that one particular person was responsible or a crime was committed in a certain way, they cannot quote it in a court of law—it regularly now has to be held back in serious and organised crime and terrorism cases. The only information that can be quoted in a court is the fact that the telephone call occurred, the time it occurred, who was at either end of the communication, and, more recently, where they were when they made the call, because there is information on mobiles. I raise this not because it is an easy answer for the Minister to give but because it is fair to put that dilemma in this domain.

[Lord Hain (Lab)]

I thank the noble Lord for his support, which is extremely important. In making that important point, would he agree, with his long experience, that this kind of looking into the facts, if I can put it that way, through what I will call a review for these purposes, may not lead to that evidence going into court, for the reasons he explained, but could and does help considerably under Kenova, as I understand it, in the truth-recovery process, which is at the heart of this, in practical terms, for 99% of these cases, and what victims want?

[Lord Hogan-Howe (CB)]

I entirely agree. If you are able to say to a relative, “We are aware of a call and we know the content but we cannot tell you what was said”, you can start to fill that gap, which exists for every family, around what happened, when and how, and what the end was like—these are terrible questions to face, but it helps. I agree entirely: it is part of that truth-sharing, but, to be fair to everyone involved, I have to say that there is an evidential barrier which is available to help a reviewer but not a criminal charge.

[Baroness Suttie (LD)]

My Lords, I will be extremely brief, given the hour and the desire to move on to the dinner break business. From these Benches, we very much support the amendments of the noble Baroness, Lady O’Loan, to impose a function of investigation on the ICRIR, as well as one of review. She made very compelling arguments and I will not repeat them, but I hope that the Minister will take on board the strength of feeling in the debate on these amendments this evening.

I will speak briefly to Amendment 72 in this group, to which I have added my name. I was struck by the personal and powerful speech of the noble Lord, Lord Blair, as well as the practical suggestions of the noble Lord, Lord Hogan-Howe, for some ways forward. Perhaps we could take this forward with the noble Lord, Lord Hain, before Report.

The noble Lord, Lord Hain, made the case powerfully that the process being used by Jon Boutcher in Operation Kenova has cross-party support and has acquired the confidence of all those who have been directly engaged in it. Perhaps most importantly, it demonstrably works. As the noble Lord, Lord Hain, said, we do not need to reinvent the wheel. I suspect that virtually everyone taking part in this debate has spoken to Jon Boutcher. If you meet him, it is hard not to be overwhelmingly impressed by his commitment, dedication and drive. He is really committed to this process, and we should seriously consider it between now and report.

I urge the Minister to look closely at Amendment 72. I look forward to his response at the end of this group, not least to some of the questions that have been asked on the Government’s response to the option of upscaling the processes used in Operation Kenova, which seems to me to be a preferable approach compared to the proposals in the Bill.