Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Judge Excerpts

2nd reading
Wednesday 23rd November 2022 Lords Chamber

[Lord Judge (CB)]

My Lords, I respectfully support the last two speeches from the Leader of the Opposition and the noble Baroness, Lady Suttie. I rise with a certain degree of concern that I have no experience of Northern Ireland; many of my colleagues on the Cross Benches will speak on these issues. I do, though, have some experience of terrorism and terrorism offences in England.

Although I deeply sympathise with the Minister’s personal position—who can avoid being sympathetic with him?—and I share everything he said about the courage, dedication, commitment and the years of service we have received from the security forces, I am just a little worried that we do not fully appreciate what the Bill actually amounts to. We are being asked to legislate that men and women who are guilty of murder should be exempted from prosecution. If the Bill is enacted in its present form, they will literally be getting away, or will have got away, with murder. They will have got away with some of the most deliberate and cold-blooded killings that we have known in this country.

We cannot avoid that that is the consequence of this Bill. Before we enact it, we really need to know whether we are prepared to create an environment in which laws that betray the families of the victims, the victims themselves and society’s desire for peace and abhorrence of killings, among others, should be ignored.

The Title of the Bill is very misleading. I will not identify every word that is misleading, but the Title contains “Northern Ireland Troubles”, the Explanatory Notes say,

“prepared by the Northern Ireland Office”,

and Clause 1 is

“related to Northern Ireland affairs”.

It would be unacceptable anyway if it was so limited, but I have read it and I think this is a correct analysis: it applies to troubles associated with the Troubles in Northern Ireland that manifested themselves in this country.

That means, for instance, the IRA’s attempt to blow up the British Cabinet, in which many received catastrophic injuries and many died. If fresh evidence emerged demonstrating that two people who had not previously been suspected were involved in that dreadful offence, the Bill would apply to them. The Bill, and the exemption from prosecution if they went through the processes, would mean that they would not be prosecuted.

The noble Baroness, Lady Smith, raised the Birmingham case and the number of casualties there. If further evidence emerged demonstrating that A and B, or Z and Y, were involved in those killings, is it really right that through this Bill we should provide a means by which, although there is a very good case against them, they too should escape prosecution? These are the issues with which we are dealing.

However much we address the issue in general terms about the necessity of eventually achieving a peaceful outcome and reconciliation in Northern Ireland, these offences matter greatly to people here in England. I have one question for the Minister, apart from all the other questions that have been asked. How will this new commission, which is what I shall call it for today’s purposes, investigate offences committed in England or Wales?

Beyond the difficulties of the Bill, there is a certain illogicality that troubles me too. It applies to murder but not rape or a serious sexual offence. Rape is a foul crime—so is murder. Let us take an example. I do not know whether this ever happened, but it might have. A man decides to rape the daughter of a member of Sinn Féin as an act of revenge to counter some murderous Sinn Féin atrocity. The rape is associated with the Troubles. He could be prosecuted for the rape—the exemption provisions would not apply—but the Sinn Féin people responsible for the atrocity would be able to seek the exemption. To take the example a little further, if having raped this unfortunate girl the man then used a knife to kill her, we could have the absurd situation arising in which he could be prosecuted for the rape but seek exemption for the murder. If that is what the Bill means, there is an absurdity about it that has to be recognised. I am not offering a solution to it; I am simply pointing out the logical problem with some parts of the Bill.

I am also concerned that we are allowing ourselves to put overmuch emphasis on the length of time that this all goes back. Not very long ago it was proposed, and enacted by this Parliament, that any of those who served in Nazi concentration camps who could be proved to have been involved in those horrors could be prosecuted here. We saw men in their late 80s and early 90s being tried. There is no limitation position in our criminal justice system. Of course, there are safeguards for those who are charged with offences committed long ago. There is an abuse of process argument that the defendant is too old even to comprehend what is going on, or that there would be witnesses who have died. All that is a well-understood part of our criminal justice system.

To the extent that this legislation is concerned with those who served in Northern Ireland as part of the security forces who are alleged to have committed violent offences of their own, juries perfectly well understand that in the heat of battle, as for some of them it must have seemed, there is no time for detached reflection. Mistakes are made and things are done that are not intended. You can rely on a jury to try to appreciate this—they usually do, and they would be very sympathetic with a young man faced with some of the problems that faced some of our young men in Northern Ireland—and to return a true verdict according to the evidence.

We need to understand what the Bill actually proposes. That may be fine, and Parliament may decide that it will enact the Bill, but it must do so knowing what it will be enacting.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Judge Excerpts

2nd reading
Wednesday 23rd November 2022 Lords Chamber

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

My Lords, I said in my opening remarks some hours ago that I have found this legislation challenging and difficult, and the subsequent few hours have done nothing to reduce that one bit. I have listened to a very powerful debate. First, I thank a number of noble Lords for their kind words in response to my earlier remarks, which I genuinely and deeply appreciate. I also thank one or two noble Lords—the noble Lords, Lord Browne of Ladyton and Lord Bruce of Bennachie—who were kind enough to remind me of certain words I had written for previous Secretaries of State on this subject and into previous Conservative manifestos.

There have been a number of very powerful and moving speeches. As ever, I refer to the noble Baroness, Lady Ritchie of Downpatrick. She reminded us of the Loughinisland massacre. I remember it very well because I was with a friend from the Republic of Ireland, watching the same football match that evening, when the news came through. I was an adviser, as the noble Baroness knows, to the then Secretary of State for Northern Ireland, the late Lord Mayhew of Twysden, so I deeply sympathise with the case to which she referred. My noble friend Lord Rogan, who is in his place, the noble Viscount, Lord Brookeborough, my noble friend Lord Dodds of Duncairn and many others referred to incidents during the Troubles which deeply affected them, people right across Northern Ireland and people across the whole United Kingdom.

I concur with the noble and right reverend Lord, Lord Sentamu, that, of all the speeches, the noble and right reverend Lord, Lord Eames, made an outstanding contribution, which I think moved the whole House. I thank him very much for that, and I am aware of the tremendous work he has done over many decades in Northern Ireland, and his great record of service to the community there.

In my opening comments I said that there have already been a number of attempts to resolve these issues over many years. Going back to 1998 and the Belfast/Good Friday agreement, legacy was the untouched issue, if you like, and at the time it was one of those matters that was—probably for good reason at the time—put into the “too difficult” drawer. There have been a number of attempts since and they have all foundered for one reason or another.

A number of noble Lords, including the noble Lords, Lord Alton of Liverpool and Lord Bruce of Bennachie, talked about the need for the Assembly to be more closely involved in this. I remember, and referred in my speech to, the attempt by the Executive to deal with this issue back in 2013, with the Haass-O’Sullivan talks, which unfortunately did not lead to an agreement.

I referred also to the Stormont House agreement, when most of the institutions contained in that agreement, such as the Historical Investigations Unit and the ICIR, were very firmly in the devolved sphere. It was always our assumption at the time that it would be the Assembly that would take them forward. There would have had to be legislation in parallel here to deal with certain national security issues and issues around disclosure of the sort that the noble Baroness, Lady O’Loan, referred to. It was at that point that the then First and Deputy First Ministers came to see the then Secretary of State to say, “This is all far too difficult for us—could you do it all at Westminster?” I completely appreciate the sentiment of working with the local politicians and the local political parties in Northern Ireland, but there are difficulties in just handing it back to them. I do take on board the points about the need for a collaborative effort.

I think that is one reason why people refer to the shift in approach in 2020 by the then Secretary of State. If I am being fair to him, I think he genuinely looked at the previous attempts made to resolve this and at the possibility of prosecutions. We have heard a great deal about that this evening, and I have enormous respect for the noble and learned Lord, Lord Judge, with whom I agree far more than I ever disagree on a range of subjects. When he talked about people literally getting away with murder, unfortunately, in Northern Ireland they have for many decades because of the lack of evidence to convict. When I talked earlier about the vast majority of cases now being over 40 years old, the reality is that the likelihood of any meaningful prosecutorial process leading to a conviction is very slim indeed.

[Lord Judge (CB)]

That is not a justification for embodying it in statute.

[Lord Caine (Con)]

The noble and learned Lord touches on some of the issues that have also troubled me in dealing with this over the past months. I can see an argument to do with the chances of a prosecution being so slim in a very large number of cases. I talked to the retired police officers about this, who were very clear that in most cases, if the evidence had existed at the time, there would have been convictions, but it is simply not there and the chances are incredibly slim. Therefore—