Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Murphy of Torfaen Excerpts

2nd reading
Wednesday 23rd November 2022 Lords Chamber

[Lord Murphy of Torfaen (Lab)]

My Lords, this has been a very powerful, informed and serious debate. In fact, nothing else could be graver than the issues that we have been discussing for the last number of hours. It is about life and death; it is about the whole way in which Northern Ireland has suffered for so many years. So many people have lost their lives; so many families have been bereaved; so many people have been injured and maimed in all sorts of mental and physical ways. Of course, nothing could be more important than what we have been debating this evening.

I have been involved in Northern Ireland for about 28 years now. A Welshman with an Irish background, I was called by Mo Mowlam to be her deputy back in the time of the Labour Opposition before 1997, and then I became Minister of State and Secretary of State for Northern Ireland. Some of the highs—indeed, the highs—of my political life have been there. The Good Friday agreement was obviously one of them. However, some of the lows were there, too, and this debate is talking about the lows. The lowest point was when I had to fly back from a holiday in France to go to Omagh and talk to all the parents of those children who had been blown up by that terrible bomb. That occurred not long after the Good Friday agreement had been signed.

I believe that everybody who has spoken in this debate spoke from the basis of great sincerity and a belief that they want to ensure that right is done in terms of where we are going on legacy and reconciliation. I have done a little tally of Members of the House who spoke on this: about 19 Members have spoken against the Bill, four have spoken absolutely in favour of it, and about four were somewhere in between. That is not a scientific or mathematical way to look at how we should deal with these matters in the House, but it is an indicator of what people—people who take a great interest in, or come from, Northern Ireland—are feeling about this hugely important subject.

I agree very much with the noble Lords, Lord Cormack and Lord Bruce, and others too, who said that we should not be doing this at all. It is not a matter for us: it is a matter for the Northern Ireland Assembly and the Northern Ireland Executive to do. As we know, however, neither of those institutions is up and running, and that is why this House of Lords and the House of Commons have to deal with it. It is a great pity because, although I think it would probably be more difficult for political parties in Northern Ireland to deal with it, ultimately those parties in Northern Ireland own this problem and need to resolve it.

The Minister made a first-class speech, mainly because he spoke from his very great experience in Northern Ireland and knows what he is talking about. He was right to say that we could have amendments to this Bill, including amendments that the Government themselves will table to try to improve it. There are those who think that the Bill is entirely unamendable—that it is so bad that it should be dumped. I am veering that way myself, but, of course, we do not dare dump Bills in this House. We go through a Second Reading and we go through all the other stages. The noble and learned Lord, Lord Judge, the noble and right reverend Lord, Lord Eames, the noble Lord, Lord Hain, and others made wonderful speeches saying in general what the principles behind the Bill are, how they are wrong and how we ought to be able to change that.

Your Lordships ran through a huge number of issues which will undoubtedly come up in Committee: immunity, the powers of the Secretary of State, human rights, the rule of law, the glorification of terrorist acts, oral history, reviews as opposed to investigation, inquests, civil litigation, and others. These are all hugely significant issues that will undoubtedly occupy us for some weeks ahead.

We talked about veterans and their importance in all this. I sometimes think we overlook the problems of veterans in Northern Ireland who, more than veterans in any other part of the United Kingdom, have been adversely affected over the past 40 years. Above all, the theme, if there is a theme of this debate, is victims. That is at the heart of this. All the organisations in Northern Ireland, so far as I can tell, including the Victims Commissioner himself, are opposed to the Bill. That should be so important in our deliberations. I think what actually underpins the objections of everybody who is against this Bill, from whatever part of the community in Northern Ireland they come, is how it deals with victims, survivors and families. All those people would feel so adversely affected and let down if the Bill, in its present form, were allowed to go through. It has lots of flaws, and we will address them in the stages to come, but the biggest one is the issue of victims. I know the Minister has met victims’ organisations, he has met victims, but at the same time, we have to understand that they are crucial to all this.

The other big issue, of course, is that people are against it. Everyone is against it. Every single political party in Northern Ireland does not want it. Had the Assembly and the Executive been in operation, it would not have seen the light of day: it would not have got anywhere because everybody would have been against it. The NGOs are against it. The Human Rights Commission is against it. Amnesty is against it. Ireland is against it, which is important because Ireland is a co-guarantor of the Good Friday agreement. The United States is against it. The European Union is against it. The Council of Europe is against it. That is a pretty substantial and impressive list of people who do not want it.

As a consequence of that, it is bad law; it is unfair law; it is unworkable law. If I were still Secretary of State for Northern Ireland, I would not touch it with a bargepole. I would say, “Let’s start again.” It is an important issue: we cannot dodge the issue—of course we cannot. If we keep on saying, “It’s all too difficult, we can’t do this,” we would be wrong. Try and try. The noble and right reverend Lord, Lord Sentamu, referred to South Africa. Many years ago, I went to talk to the Truth and Reconciliation Commission in South Africa and listened to people, including the current President of South Africa, and heard some wonderful ideas, but South Africa is not Northern Ireland. Northern Ireland is too small. South Africa is huge, but there were issues we could learn from.

We must not rush this through; that will not be good for anybody. I urge the Minister, even at this late hour—and it is pretty late—to go to his boss and say, “It’s not good enough; let’s start again.”

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Murphy of Torfaen Excerpts

Committee stage
Tuesday 24th January 2023 Lords Chamber

[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.

[Lord Murphy of Torfaen (Lab)]

My Lords, if I were still Secretary of State for Northern Ireland and someone had suggested to me that the Bill should be introduced and then, immediately after suggesting it, said that all the international bodies concerned with human rights, Members of Congress in the United States, every single political party in Northern Ireland, every Church in Northern Ireland, and more or less everyone in Northern Ireland was against it, you might understand what my response would have been. The Bill certainly would not have ended up in this Chamber.

What I do not underestimate is the problem that the Minister and Government face. Of course, we have to try to resolve these issues—we have been 25 years trying to resolve these issues, and we did not do it when we did the Belfast/Good Friday agreement, because there were all sorts of other things to do. We have tried and tried, not least with the Eames-Bradley report, which I am sure the noble and right reverend Lord remembers. However, there is a dilemma: should the Government abandon the Bill—should they dump it? I think they probably should—or should it be improved? That is the work of the House of Lords, which is trying to improve it, to see whether there is any consensus at all among political parties here and in Northern Ireland as to what should replace it.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Murphy of Torfaen Excerpts

Committee stage
Tuesday 24th January 2023 Lords Chamber

and so on. If the Minister were minded to accept this amendment or something like it, would it be possible or desirable to define a little better what could be meant by “best endeavours”? Again, we could be looking at putting a lot of resource into some activity that might be really difficult. All these amendments have some merit, but with Amendment 99 there are some questions about its proportionality.

[Lord Murphy of Torfaen (Lab)]

I think the amendments are very sensible, they come from sensible people and the Minister should take them very seriously. They improve a Bill which we do not like, as we are again in this dilemma. Nevertheless, the amendments of the noble Baroness, Lady O’Loan, and the noble Lord, Lord Bew, really are worth investigating and we would support them.

My noble friend Lord Hain again has made an extremely sensible suggestion that we need to look at the resourcing. In the case of his amendment, that is with regard to prosecution, but the noble Baroness, Lady Smith, has made the very valid point that the whole apparatus that is to be set up by the Bill needs to be resourced. We are not in good financial times, so I am assuming that the Government have costed what all this will take and that it will be put into a Budget. We will have the Budget in a week or two’s time, so it is probably too early yet for the establishment of these institutions. Nevertheless, these are hugely important issues, not the least of which is linked to time. People should not have to wait a long time to have their case heard because there are no resources for it. We look forward to the Minister’s reply.

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

I am grateful to the noble Lord, Lord Murphy of Torfaen, and will, as ever, seek to deliver a sensible reply. My friend the noble Lord, Lord Bew, referred to this having already been a hard day’s work. I trust that it will not turn into a hard day’s night—but enough song references for this evening.

I turn to the amendments introduced by the noble Baroness, Lady O’Loan. Clause 15 places a duty on the chief commissioner to produce a final report on the findings of each review that the commission has carried out, as soon as is practicable once the review has concluded. This, as noble Lords will recognise, is designed to support information recovery.

However, where the commissioner for investigations has referred a case to prosecutors for possible prosecution, Clause 17(2) and (3) already require the chief commissioner to postpone publication of the final report pending a decision by the prosecutor, or the outcome of any criminal proceedings which might flow from that decision. In the Government’s view, therefore, Amendments 5 and 89 are not needed as the Bill already achieves their purpose.

I note the noble Baroness’s comments on sharing reports, which I take seriously. The commissioner will of course be subject to the safeguards set out in Clause 4, but I am happy to sit down with her and the noble Baroness, Lady Smith of Newnham, whom I welcome to our debates, to discuss the matter further. Where the legislation makes reference to “material” criticising an individual under Clause 15, it means

“material which, in the Chief Commissioner’s view, constitutes significant criticism of a living individual who was involved in the conduct forming part of the Troubles, or other harmful conduct … to which a review relates”.

I am advised that language in that space is aligned with the Inquiries Act, but, as I have said, I am very happy, between now and the next stage, to sit down with the two noble Baronesses to discuss those matters further.

My friend, the noble Lord, Lord Bew, rightly considered the importance of ensuring that the commission should follow best practice in carrying out reviews within the exercise of its power. The commission is already under a clearly defined obligation in Clause 4, to which I have just referred, not to do anything that

“would risk putting, or would put, the life or safety of any person at risk”.

It is the Government’s view that this safeguard is wide enough to offer sufficient protection to the rights of anyone likely to be named in reports. Therefore, in our view, the amendment is unnecessary. Additionally, we would expect the commission, as a public body, to maintain high standards and follow best practice when discharging all its functions, including those which relate to naming individuals in reports—but, as ever, I am very happy to discuss that further.

The noble Lord, Lord Hain, the former Secretary of State, referred to prosecutions and acknowledged, as he has done throughout, that the prospect of prosecutions is very rare. It is worth remembering, when looking at this legislation, that the most recent case that will be examined by the commission is now over a quarter of a century old, and the oldest case is just slightly older than me. I will be 57 in April, for those who are unaware.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Murphy of Torfaen Excerpts

Committee stage
Tuesday 31st January 2023 Lords Chamber

Therefore, I would like such appointments to have at least the scrutiny of Members of both Houses. Over the years, many commissioners have been appointed to deal with many sensitive issues, but those appointments have been questioned within the community. I come back to the beginning: the independence of commissioners is vital for success.

[Lord Murphy of Torfaen (Lab)]

My Lords, this is an interesting and timely debate. I join many of your Lordships in thanking the Minister for his engagement on this Bill. It does not always happen, but it does in his case, and we thank him for that.

I also thank my noble friend Lord Browne, who introduced his amendment extremely ably, as I would expect, but also forensically. He pointed to the issue of independence, but in reality this is also about confidence. Independence means confidence, and a lack of independence means a lack of confidence. The system for appointing different people has been fraught with difficulty over the years, because those appointments have lacked the confidence of one side of the community or the other. Your Lordships referred to international comparisons, and the reason why people of international repute have been involved in Northern Ireland over the years is to try to ensure that all the people of Northern Ireland had confidence in them. When I was Secretary of State, we appointed Judge Cory to look at various inquiries. It was important that a Canadian judge—in his case—was involved.

If more people in Northern Ireland are to accept this Bill—I am sure it is not accepted at the moment—one possibility is to look at how the commissioner is appointed and who it should be. The Secretary of State has far too many powers in the Bill generally, and on the appointment of the commissioner specifically. When I was the Secretary of State, I tried to shed responsibilities so that they rested with the people of Northern Ireland themselves. I hope that, in the next couple of months—perhaps in a couple of years—we see the restoration of institutions in Northern Ireland. But responsibility for these matters should be taken by the people who were elected in Northern Ireland, not a Secretary of State who represents a constituency in Great Britain. We should be thinking about how there can be confidence in such an appointment.

There may be different ways in which we could ensure independence. The Judicial Appointments Commission in Northern Ireland could do it. Committees of this House and the other House could be involved in the scrutiny; there is merit in what the noble Lord, Lord McCrea, said about that. But it should be transparent and open, and it should certainly not take place through a British Secretary of State, who I hope will eventually have to pass powers to legislators and others in Northern Ireland.

There is another reason too: all the international criticism of this Bill—whether from the Council of Europe, the United States, the United Nations, bodies such as Liberty and all the rest—is about the inadequacy of the Bill’s compliance with human rights. It strikes me that the lack of independence in the way the commissioner is appointed is seriously linked with those concerns. In other words, if there were a more independent system of appointment, perhaps it would be more human rights compliant.

Even though the report is lengthy, I am not terribly convinced by the Government’s reasoning on the Bill’s compliance with the ECHR. Your Lordships will of course remember, as we have said consistently, that in a few months’ time it is the anniversary of the Good Friday agreement, which is based on compliance with the European Convention on Human Rights. This is therefore a timely and important debate, and we very much look forward to the Minister’s reply.

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

My Lords, I am very grateful to the noble Lord, Lord Murphy of Torfaen, for his kind words, and to other noble Lords for their engagement on this Bill. I think we are meeting again very shortly, almost immediately after Committee stage concludes, and I will continue to engage closely with all interested parties, bodies and noble Lords across the House on this legislation.

With one thing the noble Lord said, I could not agree more: to be honest, I would be more than happy for the people and the Assembly of Northern Ireland to deal with most of the matters in the Bill. However, I set out to the House at Second Reading and, to some extent, last week in Committee, why and how it went from being primarily a Northern Ireland Executive and Assembly responsibility to a UK Government one. Martin McGuinness and Peter Robinson came to see the then Secretary of State after Stormont House and said, “This is all far too difficult for us to do at Stormont. Please will you do it all at Westminster?” We agreed.

I also agree with those noble Lords who have argued that central to the effective delivery of this legislation is the need for an independent body to carry out reviews, including investigations, and to grant, where the tests are met, immunity from prosecution. The Government fully recognise the need for commissioners to have credibility, expertise and legitimacy, so that effective reviews and investigations can be carried out and information provided to families as soon as possible. The UK-wide nature of the legislation provides for the appointment of a person who holds or has held high judicial office across the United Kingdom. It would therefore not be appropriate, in our view, for the appointment function to sit with the Northern Ireland Judicial Appointments Commission, which, by definition, is concerned solely with judicial appointments within Northern Ireland.

I respectfully disagree with the noble Lord, Lord Browne of Ladyton, and others who have spoken about the independence of the commissioner if he or she is appointed by the Northern Ireland Secretary. The Northern Ireland Act 1998, as the noble Lord alluded, provides the Secretary of State with the power to appoint the commissioners of the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland. The Inquiries Act 2005, passed by the Government of which the noble Lords, Lord Murphy and Lord Browne, and the noble Baroness, Lady Smith of Basildon, were members, provides for the appointment of an inquiry panel by a Minister.

My experience of the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland is that they are fiercely independent of government. I think nobody would dare suggest that the fact that they are appointed by the Secretary of State for Northern Ireland makes them in any way in hock to government. They carry out their duties with total independence and they are not slow, as we have seen in respect of this legislation and other legislation which has recently been before your Lordships’ House, to voice their criticisms and their opinions vociferously. Therefore I simply do not accept that appointment by the Secretary of State somehow limits or inhibits the independence of the commissioners.

Another example to which I could refer is that I was involved as a special adviser in the setting up the independent review into the on-the-runs administrative scheme back in 2014 which was conducted by the noble and learned Baroness, Lady Hallett, then Lady Justice Hallett. She was appointed in 2014 by the Northern Ireland Secretary in consultation with the Lord Chief Justice at the time. The appointment process did not in any way impact on the independence of the review.

To give a further example, in the absence of a sitting Executive in 2019, it was the then Secretary of State for Northern Ireland, Karen Bradley, who appointed the current Police Ombudsman for Northern Ireland. I do not think anyone would remotely suggest that Marie Anderson is influenced by His Majesty’s Government because she was appointed by the Northern Ireland Secretary, any more so than any of her distinguished predecessors—I am looking towards the noble Baroness, Lady O’Loan, as I make those comments.

The noble Lord, Lord Browne of Ladyton, and the noble Baroness, Lady O’Loan, referred to some of the overarching powers of the Secretary of State for Northern Ireland. The noble Lord, Lord Browne, raised specific concern over the winding-up power under Clause 33. I remind noble Lords that the Secretary of State has a similar wind-up power contained in the Inquiries Act 2005, which was passed by the previous Labour Government. In respect of this legislation, the Secretary of State for Northern Ireland may wind up the commission via an affirmative procedure that would have to be debated by both Houses of Parliament. The Government believe that it is for Parliament to have the final say in the potential winding-up and abolition of what Parliament has created. However, the winding-up order will be laid only when the Secretary of State is satisfied that it is has delivered on its functions.

The noble Baroness, Lady O’Loan, referred to some of the Secretary of State’s powers in relation to national security. I hardly need to remind her, given her various roles over the years in Northern Ireland, that the Northern Ireland Secretary ultimately has responsibility for national security in Northern Ireland. The powers contained in the Bill are very reflective of what was proposed in the Stormont House agreement and the draft legislation that accompanied it. The power is not in any way extraordinary. I hesitate to remind her that Section 65 of the Police (Northern Ireland) Act 1998 also requires the police ombudsman to have regard to guidance given by the Secretary of State on matters relating to disclosure and national security.

The noble Lord, Lord Hogan-Howe, raised an important point, and I will try to deal with it. Clause 30(2) stipulates that the Secretary of State may by regulations make provision about the holding and handling of information by the commission. This is about ensuring that information is held securely and destroyed when no longer needed. It is not intended to be a power to place restrictions on the use to which the information can be put nor is it a power to restrict the use of information as evidence in a prosecution. I hope that goes some way to answering the noble Lord’s query.

--- Later in debate ---

[Baroness Suttie (LD)]

My Lords, as was said by the noble Baroness, Lady Ritchie, this is an extremely important debate. It may have been long, but it is extremely important. We have heard many detailed and deeply compelling speeches. I will just pay tribute to the noble and right reverend Lord, Lord Eames, because his intervention reminded us what this is all about. It is about people who have suffered, and it is important to focus on that.

As many noble Lords have said several times during debates on the Bill, we would have preferred it not to proceed at all, not least because of its Clause 18. I think I am not alone on these Benches in rather liking the radical noble Lord, Lord Cormack. He sometimes surprises us with his radicalism, but he was absolutely right to talk about this as trying to make a silk purse out of a sow’s ear. There are other, less polite, Scottish versions, but I will not use them today.

I will try to be brief, because time is ticking on and dinner break business is waiting. I am pleased to have added my name to Amendments 112, 124 and 135, tabled by the noble Lord, Lord Hain, who made a very compelling argument for them in his intervention. Clause 18 is absolutely the key clause of concern. It is at the very heart of people’s concerns about the Bill as currently drafted, and the proposals for immunity have caused a great deal of distress and anxiety to so many victims by potentially closing the door to hope. The maintenance of that hope that justice could be done has been so vital for so many victims and their families. If Clause 18 is left unamended, it is not clear to me how the Bill will be Article 2 compliant. I know that this view is shared by many others speaking in the debate, not least the noble Baroness, Lady O’Loan, and I feel that the Minister should respond to that in his concluding remarks.

At an earlier meeting on the Bill, I asked the Minister how the “general immunity from prosecution” set out in Clause 18 would sit alongside some of the government amendments proposed, which, in some way, restrict the definition of immunity. I am not a lawyer, but it is not clear to me how the general immunity framed in the existing Clause 18 would sit with some of the exemptions that the Government are proposing. I would be very grateful if the Minister could shed some light on this during his concluding remarks. We all appreciate that the Minister is trying to square multiple circles with this Bill, and that he himself has expressed deep concerns about the prospect of general immunity as it stands.

In conclusion, it would be useful to hear from the Minister whether there is still scope for movement on this between Committee and Report stages. He will have heard the united view of all noble Lords and Baronesses who have spoken this evening. Every single Peer who has spoken in this debate is against Clause 18. The victims are against Clause 18. I know that it was a Conservative Party manifesto commitment, but it is wrong and remains wrong. We would like to hear the Minister’s views on whether we can make progress, perhaps through the proposals of the noble Lord, Lord Hain, and the Operation Kenova process, but, personally, I think that it should be deleted from the Bill.

[Lord Murphy of Torfaen (Lab)]

My Lords, this has been a very impressive, rather stunning debate. I have tabled Clause 18 stand part, which would effectively omit immunity from the Bill. The noble and right reverend Lord, Lord Eames, quite rightly mentioned that this debate, and this and subsequent clauses, are at the heart of the legislation. Without them, there would be no Bill and no argument. If anybody reads in Hansard, or watches on television, the last two hours of debate in your Lordships’ House—and I hope they do—they will see how strong the feeling is across these Benches. This is not just because people do not like it but because noble Lords have spoken from deep experience over decades in Northern Ireland, from living there, being Ministers there, or whatever it might be, unanimous in the belief that this immunity, this amnesty—they are the same thing—should be dropped.

The other unanimous view in the debate was that the legislation completely ignores the victims: it is not about them, whereas it should be. Looking back over the last 25 years—particularly, I suppose, at the agreement—as I was saying to someone today, there were a number of things that we could have done and did not. We did many things when we introduced the agreement, but we could have improved on how we dealt with victims. In the years that followed, there were brave attempts: the Eames-Bradley review and others all tried to put right that which was not right a quarter of a century ago. What is certain is that this legislation does not. To the contrary, it makes things worse. Over 25 years, I have never experienced such unanimity on a difficult issue like this in Northern Ireland—I have experienced much disunity—so it cannot be right that we go ahead.

The noble Lord, Lord Cormack, made the interesting point about whether we should go ahead with the Bill, as it is so bad. Then the noble Lord, Lord Hain, the noble Baroness, Lady O’Loan, and others put their amendments forward, all first class with excellent speeches. They give an opportunity to improve it. Revocation of immunity, conditional immunity and licensing around immunity would all certainly improve it. The whole issue of trying to improve it was discussed last week in our first day of debates on Kenova. That is a dilemma for us in this House. We could have done nothing, let the Bill go through on the nod, and said that it was so bad that we would have to wait for a change of Government to repeal it, which the leader of my party has said that he will do. But there is a duty on us to try to ensure that it is not as bad as it is at the moment when it leaves this Chamber and goes back to the other place.

This part of the Bill in particular goes fundamentally against the rule of law. If I thought for one second that we could salvage some of this, that would be all well and good. But my feeling is that the Government simply want to go ahead, come what may. The amendments that they have put forward are all right, but they do not go far enough. My plea, and, I am sure, that of everybody in this Chamber, is to drop it.

[Lord Caine (Con)]

My Lords, I would like to say that I will try to be brief, but I fear that that might be impossible in response to a debate that has lasted for one hour and 58 minutes. I think the only debate that has lasted longer since I joined your Lordships’ House in October 2016 was on one of the amendments to the European Union (Withdrawal) Bill from my noble friend Lord Patten of Barnes, which lasted longer than two hours.

This has obviously been an extensive debate. I say sincerely that I am grateful to all those who have taken part. Noble Lords are absolutely right that these clauses and amendments go to the heart of the legislation before the Committee. I hope that noble Lords will forgive me if I take longer than normal in trying to respond to as many points as possible, in the knowledge that I will not be able to deal with everything but will try my best.

I start by expressing my gratitude to my noble friend Lord Bew for his kind words at the outset of this group some time ago. He and others who have spoken were absolutely right to draw attention to occasions in the past when quite extraordinary changes have been made to the criminal justice system in Northern Ireland: the noble Baroness referred to the decommissioning Act of 1997, the location of victims’ remains Act of 1999, and the early release scheme in the 1998 agreement and the subsequent Northern Ireland (Sentences) Act—the latter have caused so much difficulty, not least for my noble friends on the Democratic Unionist Benches. Those remind us that it is far from unknown for changes to be made to the normal process of the criminal justice system in Northern Ireland.

My noble friend Lord Bew referred to the importance of the commission following best practice in carrying out reviews and so on. I assure him that it is already under a clearly defined obligation in Clause 4(1)(b) not to do anything which

“would risk putting, or would put, the life or safety of any person at risk”.

It is the Government’s view that this safeguard is wide enough to offer protections of the kind to which he was referring.

A large number of amendments in this group, the vast bulk of them, consider the immunity process. It is worth reflecting at the outset that the Written Ministerial Statement of March 2020 and Command Paper of July 2021, both published by my right honourable friend Brandon Lewis when Secretary of State, envisaged a form of unconditional closure of cases which would apply to all Troubles-related offences, including offences carried out by members of terrorist organisations and the security forces. I am on record as saying that I do not support, and have never supported, a blanket statute of limitations. My position has not changed, so, as I said in the House last week, if the Government were still pursuing the position from the Command Paper of 2021, I would not be standing here taking the Bill through.

The point is that the legislation before us today is very different. Rather than a statute of limitations, it provides for a conditional immunity model whereby immunity from prosecution will be granted only on a case-by-case basis, and will depend on individuals providing an account that is assessed by the commission, using all the evidence available to it, to be true to the best of their knowledge and belief. I will go into some of the points raised in connection to that later. If individuals do not do so, they remain liable to prosecution should sufficient evidence exist or come to light.  I want to be absolutely clear that prosecutions in circumstances where individuals do not engage and co-operate fully with the commission will still be possible.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Murphy of Torfaen Excerpts

Committee stage
Tuesday 31st January 2023 Lords Chamber

[Lord Bruce of Bennachie (LD)]

I want briefly to ask the Minister how he feels people should be incentivised and whether this is the case in the Bill. The reality, as we have heard in previous debates, is that in many cases the consequences of not co-operating are nothing. If you do not co-operate, nothing happens. If the risk of co-operating is increased from £1,000 to £5,000, it is neither here nor there. Would the Minister explain why making that change would significantly affect the number of people who co-operate? Does he accept that victims are somewhat concerned that there is a desire to incentivise certain people to come forward and not others? It will do nothing to ensure that they get the information, knowledge or understanding that they need.

I know that the Minister is trying to reassure people that he is balancing the needs of victims with the concerns of veterans. The danger is that he ends up satisfying neither and alienating both. To what extent does he feel that this contributes constructively to the effective working of the commission?

[Lord Murphy of Torfaen (Lab)]

These are reasonably sensible amendments, but they go only so far. The points made by the noble Baroness, Lady O’Loan, and the noble Lord, Lord Bruce, are valid and we look forward to the Minister’s reply. If these amendments came to a vote, it is highly unlikely that we would oppose them. It was quite good that the Minister had, for example on Amendment 84, listened to the victims’ commissioner. We look forward to his reply.

[Lord Caine (Con)]

I am grateful to those who took part in this short debate. By way of a brief response, I disagree on the point about incentives. I have spoken to a number of victims’ groups and political parties that, while they might not like other parts of the Bill, have no issue with this and think it a sensible strengthening of the incentives to co-operate and the disincentives not to.

Having reflected on the earlier versions of the Bill, the Government think it right and proportionate that somebody who chooses not to co-operate with the commission on an investigation, if they are subsequently prosecuted and convicted in the normal way, should face and be liable to a full sentence. In many of the circumstances covered by this legislation, such as the Troubles-related offences, that could mean a sentence of life imprisonment. As a matter of common sense, that would be a stronger incentive to co-operate than an individual perhaps serving two years or no sentence at all. This is a sensible and proportionate change to the Bill which should genuinely encourage people to co-operate. If they do not co-operate, they do so in the knowledge that, if someone comes knocking on their door and they are convicted, they are liable for a lengthy prison term. I withdraw the amendment for now.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Murphy of Torfaen Excerpts

Committee stage
Wednesday 29th March 2023 Lords Chamber

[Baroness Hoey (Non-Afl)]

The noble Baroness is absolutely right; that is happening on all sides of the community. However, if you become an integrated school, you get a lot of extra money. A lot of schools now are becoming integrated—of course they have to sign up to the whole ethos of it. I am just putting in a slight point that integrated education is not this panacea that it somehow gets taken for. Particularly for the diaspora from Northern Ireland in England, that is the sort of thing it gets involved in, calling for integrated education.

The amendments in the name of the noble Lord, Lord Dodds, are important and I hope that when we come to the next stage of the Bill, the noble Lord, Lord Caine, will have found a way of getting this into the final Bill.

[Lord Murphy of Torfaen (Lab)]

My Lords, obviously I have a lot of sympathy with the amendments. I have never really agreed with the phrase that one man’s terrorist is another man’s freedom fighter. There is never any sort of justification for killing innocent people, particularly women and children and people going about their business. The only killing I suppose you can justify—and even that is doubtful—is in wars, if you have to do it in self-defence or whatever. There is no justification for the wickedness that accompanies such terrorism—none whatsoever. It offends both my human and my Christian principles; you cannot glorify these things.

However, I accept that there is a generational problem, as the noble Baroness, Lady Foster, said, for example. Just after the Good Friday agreement, there was a different feeling about the place, and as the generations go on and they forget what everybody has talked about today, things change and people’s attitudes change. Perhaps they ought to look at some pictures of the mayhem, murder and destruction caused by terrorism. I have said it before in the Chamber that one of the worst times in my political life, if not the worst, was when I had to go to Omagh two days after the bombing and talk to the relatives of the children who had been killed there. How on earth can we justify that sort of activity? There is no justification.

My own amendments refer specifically to people making money out of glorifying terrorism and that they should not be allowed so to do. The issue that the Minister faces is that, although everybody agrees that this is the wrong thing to do, how we then incorporate that into law and at the same time ensure that we all take into account what the noble and right reverend Lord, Lord Eames, said to us today: this is all about reconciliation.

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

My Lords, I am grateful to noble Lords who have spoken to this group of amendments, and I am in great sympathy with just about every word that has been said. I can remember a number of years ago being in the Northern Ireland Office when a Republican parade was organised in Castlederg to commemorate two IRA bombers who had blown themselves up when taking a bomb into the town in the early 1970s. I remember meeting the Derg Valley victims’ group on that occasion and the total distress and anger that the parade was causing. At the time, we condemned it in pretty unequivocal terms. Noble Lords have referred to more recent examples such as young children chanting slogans such as “Up the Ra”. I recall last year that an Irish language rap group called Kneecap, which noble Lords will understand has a specific meaning in Northern Ireland, performed at a festival where they even unveiled a mural depicting a burning police car. It is horrendous.

The noble Baroness, Lady Hoey, referred to sanitisation and my noble friend Lord Weir to the casualisation of terrorism. Other friends of mine have referred to the Disneyfication of terrorism, and it has become quite a problem. For the sake of absolute clarity, in condemning any glorification of terrorism I apply that equally to any attempts to glorify the activities of loyalist paramilitaries over the years. It remains my view, and the Government’s view, that no taking of human life was ever justified in the Troubles. To paraphrase John Hume, I think it was, no injustice, whether perceived or real, ever justified the taking of a single life in Northern Ireland.

In response to the specific amendments tabled by my noble friend Lord Dodds, noble Lords will know that the Terrorism Act 2006 already makes illegal the encouragement of terrorism, and nothing in this Bill would prevent the prosecution of individuals who were deemed to have committed an offence under that legislation. However, we understand and sympathise with the principles and intent behind the amendments. It is clear that the society will never grow stronger and more united while individuals and organisations are involved in activities that risk progress on reconciliation and building a genuinely shared future for everybody. As ever, I take on the wise words of the noble and right reverend Lord, Lord Eames.

Any conduct that has the potential to retraumatise victims is clearly not something the Government will ever support. However, it is important to consider properly any amendment on these matters, including potential legal implications. I affirm that the Government remain open to constructive dialogue with noble Lords and all interested parties about how this issue of glorification might be appropriately addressed.

I turn to the issue of moving abroad to evade prosecution and Amendment 118 in the name of my noble friend Lord Dodds of Duncairn. If prior to entry into force of the Bill a decision has already been taken to prosecute an individual, that individual will not be able to apply for immunity. That would include somebody who has fled the jurisdiction in order to evade justice. Geographical location will have no impact on an individual’s liability for prosecution, or on the requirements which must be met to obtain immunity from prosecution. Individuals who reside abroad but who are not subject to an ongoing prosecution will, to be granted immunity by the commission, have to participate fully in this process on the same terms as everyone else. By applying for immunity, they will have to acknowledge their role in a Troubles-related incident—something they may be doing for the first time. They will then have to provide an account to the commission that the judge-led panel assesses as true to the best of their knowledge and belief. If the commission is not satisfied that the account provided is true to the best of an individual’s knowledge and belief, and should evidence exist, they remain liable for prosecution.

I turn to Amendments 148 and 167 in the name of the noble Lord, Lord Murphy. The Government understand and sympathise with their principle, which is to ensure that individuals who are granted immunity cannot subsequently participate in actions that financially reward them for the very same conduct for which they have received immunity.

The hour is late; we have been here a long time today. I will finish on this note. I remain open to constructive dialogue with noble Lords between now and Report about how these issues might be appropriately addressed. On that basis, I invite noble Lords not to press their amendments.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Murphy of Torfaen Excerpts

Committee stage
Thursday 11th May 2023 Lords Chamber

I also ask the Minister this. Who decided the salary that the new head of the ICRIR will be getting? It was reported in the media that they will be getting £150,000. I would be interested to know who made the decision about the salary, or whether that is just media speculation.

[Lord Murphy of Torfaen (Lab)]

My Lords, I support the various amendments brought forward by my noble friend Lord Browne, which aim to give room for ongoing criminal investigations to conclude and to allow space for civil action to be brought for an additional three years. I very much understand the concerns that the noble Baroness, Lady O’Loan, put forward regarding the closing off of other routes to justice under Clauses 39 and 40.

I often agree with the noble Lord, Lord Dodds. I sometimes disagree with him, but today I agreed with absolutely every word he said, particularly when he opened his remarks by making reference and paying tribute to those in the security services who lost their lives, and indeed the tens of thousands of other people who lost their lives over 30 years in Northern Ireland. I also agreed with his tribute and that of the noble and right reverend Lord, Lord Eames, to Lord Carswell, who I knew very well too. Our interest was not simply legal or political; we were both great lovers of classical music. He was a great expert—much more than I was—and I think that we in this House will all miss his wise words.

My noble friend Lord Browne referred to the fact that the First Reading of the Bill took place in the other place one year ago, and we are nowhere near finished. This is the fourth day in Committee—it seems a bit longer to me—over the last number of months in which we have been dealing with this, and there seems no end to it. I honestly think—and this is where the noble Lord, Lord Dodds, and I think most Members in the Committee would agree—that it is time to dump the Bill. There is no support for it. All my experience in Northern Ireland has been based on the fact that if there is not support across the community for something, it is doomed. I think it premature to advertise for the office of commissioner. I believe it is wrong that something as controversial as this can go ahead unless there is community support, political support and legal support, both here and, in particular, in Northern Ireland. There is still time. The noble Lord, Lord Dodds, referred to the fact that a number of Bills have been dumped. The Schools Bill was the other one that he did not mention, I think, but there are others. Now is the time to do that.

To refer particularly to the new amendment that has been introduced, Amendment 154A, I am glad that I am not the Minister answering this. I am sure that the Minister will have an answer, at least a temporary one, to this very interesting amendment. I do not want to comment on an individual case, obviously, but I do want to comment on the implications of what happened as a result of that case. I had never heard of the Carltona principle before, so I have learned something today, but I obviously operated under it when I was Secretary of State for Northern Ireland and, more significantly, when I was Minister of State for Northern Ireland, because as Minister of State I undoubtedly signed warrants on behalf of the Secretary of State at the time, understanding that everything I did was perfectly legal and right. Obviously, that has now been brought into doubt.

Very often, a Secretary of State’s name is used in tens of thousands of communications and letters for technical reasons, but this is not a technicality in Northern Ireland. This is about actually locking people up, tapping their phones or whatever it might be, so it really has to be got right—not least the issue of compensation, which could be absolutely horrendous. The Minister is not going to give us a complete answer to this today, but I hope that he will be able to assure us that by the time we get to Report, which I guess is not that long away, the Government will be taking action on this important measure.

I hope that the Minister, who has been extremely patient over the last seven or eight months with the Bill and with us, will look not just at that amendment but at the other amendments. They go to the heart of the criticism of the Bill: that the Government are wiping out any legal routes to ensure that there is some redress for the terrible things that have happened to people in Northern Ireland over the last 40 years.

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

The noble Lord, Lord Murphy of Torfaen, referred to the past seven or eight months—I assure him that, from this side of the Committee, it seems much longer. He, my noble friend Lord Dodds of Duncairn and the noble and right reverend Lord, Lord Eames, somewhat pre-empted my opening comments on this group of amendments by referring to the sad passing of Lord Carswell. As this is my first opportunity to address your Lordships since his death, I join those who pass on their condolences to his friends and family. Lord Carswell spent many years as a very dedicated public servant, including as Lord Chief Justice of Northern Ireland, as a Law Lord and as a distinguished Member of this House. We will miss his very wise and profound contributions.

I am also grateful to my noble friend Lord Dodds of Duncairn, the noble Baroness, Lady Hoey, and the noble Lord, Lord Murphy, for their references to the security forces. I intend to touch on that at slightly greater length in replying to the next group of amendments, but I concur with every word that was said.

As has become customary on the Bill, this has been a thorough debate. Before I respond directly, I would like to take a couple of moments to make an announcement in the Chamber. Last month, on 20 April, I laid in the Library of the House a paper setting out the selection process for the chief commissioner of the ICRIR. I am pleased to announce today that, following recommendations from the three Chief Justices across the United Kingdom, the Secretary of State has identified the right honourable Sir Declan Morgan KC to be appointed to the role of chief commissioner of the commission upon Royal Assent. The Secretary of State is today laying a Written Ministerial Statement providing more detail.

It is important that a chief commissioner be identified now in order to help victims, survivors and their families receive the answers they need with minimal delay, should this legislation receive Royal Assent. Sir Declan brings a wealth of experience from his previous role as former Lord Chief Justice of Northern Ireland from 2009 to 2021. A hallmark of his distinguished career has been his commitment to addressing the legacy of Northern Ireland’s past. I am confident that he will bring the highest level of experience, expertise and integrity to this post, and that this will help build public confidence in the work of the commission.

Sir Declan will begin work early next month to identify other commissioners and design how the new commission will carry out its role. Formal appointment as chief commissioner will take place only following Royal Assent and the establishment of the commission, taking account of any further considerations and final requirements of the Act. In particular, the chief commissioner will lead the process to recruit the commissioner for investigations and provide a recommendation to the Secretary of State. The role is currently advertised and subject to a fair and open competition, with appointment on merit. I trust that noble Lords across the House will warmly welcome this appointment.

--- Later in debate ---

[Lord Bruce of Bennachie (LD)]

My Lords, this has been an interesting debate; there is clearly a desire to have an objective record of a dark and troubled time, but it is a hugely sensitive issue that is going to present major challenges.

I absolutely agree that any history that glorifies terrorism or violence has no validity and can have no place. As the noble Lord, Lord Swire, said, people have looked at different examples such as in South Africa, and the genocide memorial in Rwanda is shocking and stunning and creates an impact. We also have to recognise that we have talked about the Troubles as a defined period, as if they just ended and the Good Friday agreement started, but we know that the divisions have not gone away. You even see in the Republic of Ireland newly elected representatives shouting, “Up the Ra”, so we are still in very difficult times.

I hear the call for an objective history, but I wonder how easy it would be to produce one and to ensure that it reflects the balance. I am not suggesting that it should not be tried, but we should not underestimate the challenges involved. At the end of the day, what would be the purpose of this history? The only fundamental purpose seems to be to ensure that, right across all sections of the community, it leads to a cry of “Never again”.

[Lord Murphy of Torfaen (Lab)]

My Lords, this has been a very interesting and thoughtful debate. For 17 years before I entered the House of Commons I taught history, and I thought that it had prepared me for the various jobs that I eventually had to do. When I became Minister of State in Northern Ireland, helping to negotiate the Good Friday agreement, I realised that it had not prepared me at all for what was up against me. Month after month, virtually every day, was occupied by a history lesson, which I was not teaching but which came from the different participants in the talks—of course, there were very different versions of what had happened over the last 30 or 40 years before then.

Teaching history had also not prepared me for the extent to which—as has been touched on a number of times in this debate—almost every single family in Northern Ireland was affected by violence in some form or another, either by people or their relatives being killed or by physical or mental injury. It struck me when I went back to Belfast a couple of weeks ago for the commemoration proceedings that, within 24 hours of getting there, I talked to two middle-aged men about their own history. In both cases, coincidentally, their fathers had been murdered. One had been murdered by the IRA, and the other had been murdered by loyalist paramilitaries. That was a coincidence; I did not seek it out. It just happened. It is the background of that communal history among people from all communities in Northern Ireland which makes this task immensely difficult. I am not saying that it should not be attempted, because I think it should be, but it will not be an easy task. It should be done by ensuring that there is as much impartiality and diversity as possible, which is a difficult combination to get together, so that it is written. The sensitivity behind this is enormous.

I make a very brief reference to the noble Baroness, Lady Hoey, and what I thought was a very good speech in terms of her reference to the gay community in Northern Ireland and how it suffered in a different way. There is particular resonance in my own constituency’s history because my immediate predecessor as Member of Parliament for Pontypool was Leo Abse, who in 1967 was responsible for the legislation which decriminalised homosexuality in Great Britain. Many people never realised that it was not replicated in Northern Ireland; it took many years before that was to happen. So, I think that this should be part of the history project as well.

When the Minister winds up, I am sure he will give us some good thoughts on what we should do about an official history. He might suggest the odd historian or two—there are one or two in here who might be very good at it—but at the same time he must understand that these matters, important as they are, have to be dealt with using the utmost sensitivity.

[Lord Caine (Con)]

Once again, my Lords, I am very grateful to all who have contributed to the debate on these amendments. We have heard a number of very moving contributions over the last 53 minutes or so. I was going to say that a number of noble Lords were, in my case, preaching to the converted—I do not need to be converted at all, and I agree with many of the sentiments that have been expressed throughout the past number of minutes.

Part 4 of the Bill builds in large part on the commitments made in the Stormont House agreement of 2014, such as the oral history initiative and new academic research, to help promote reconciliation and a better understanding of the past. A number of noble Lords will be aware that I was involved in all 11 weeks of negotiating that agreement in 2014. It underlines the importance of this work being carried out free of political influence, which has been one of our guiding principles—in fact, it has been our overriding guiding principle throughout.

To reiterate, in approaching these issues over many years, both this Government and I have been very clear from the outset that we will never accept any attempt to rewrite history in ways that seek to denigrate the contribution of the Royal Ulster Constabulary and our Armed Forces—the overwhelming majority of whom served with distinction and honour, and to whose dedication and courage we owe an enormous debt of gratitude. As I have said many times in this House and outside it, without their service and sacrifice there would have been no peace process, as was acknowledged by my right honourable friend the Prime Minister during his recent speech at the Whitla Hall in Belfast to mark the 25th anniversary of the 1998 agreement.

Politically motivated violence in Northern Ireland, whether it was carried out by republicans or loyalists, was never justified, and as the noble Lord, Lord West, and my noble friends Lady Foster and Lord Weir made clear, there was always an alternative to violence in Northern Ireland. We will never accept any suggestion of moral equivalence between the terrorists who sought to destroy democracy and those who in many cases paid the ultimate sacrifice to ensure that the future of Northern Ireland would only ever be determined by democracy and consent.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Murphy of Torfaen Excerpts

Report stage
Wednesday 21st June 2023 Lords Chamber

[Lord Murphy of Torfaen (Lab)]

I associate myself with the Minister in remembering those who suffered violence over the last number of years and thank him for the way in which he has engaged with Members of this House and beyond. His amendments generally improve the Bill, but I suspect that he will find this evening that they do not go far enough for those with fundamental objections to the Bill. We shall certainly not vote against them today or Monday, as they do, as I say, improve it.

The Minister made reference to Sir Declan Morgan, who has been appointed as the chief commissioner designate—a clever move on the Government’s part, because he is a man of huge integrity, experience and expertise. There is some doubt as to whether it should have been announced quite this early, but I understand why the Government decided so to do.

I am sure that this evening we will hear a number of important points on the many issues, from immunity to prosecution and other matters. I hope that the House will be able to give consideration briefly to those points.

[Baroness Suttie (LD)]

I echo a lot of the comments that the noble Lord, Lord Murphy, has just made, and the Minister’s comments about remembering. It is very important that we never forget all those impacted and killed by the Troubles.

I too start by thanking the Minister for the constructive way in which he has engaged on the Bill, given the constraints that he faces at the other end of the building. He has always shown himself willing to meet and discuss, and I know that he has dedicated a considerable amount of time to the Bill, including during the summer holiday last year, perhaps. For that we thank him.

Again, like the noble Lord, Lord Murphy, most of us feel that, although the amendments are to a very large degree to be welcomed, they are not game-changing; they have not really changed the Bill to the extent to which many of us would have liked to see. I am sure that we will return to that issue at later stages, but this group is a positive example of amendments that these Benches are happy to welcome.

--- Later in debate ---

[Baroness Suttie (LD)]

My Lords, I place on record my thanks to the Minister for introducing Amendments 85 and 86, which, in essence, as he has said, are the same amendments that I tabled in Committee and were recommended by the victims’ commissioner, Ian Jeffers. It is a very welcome and common-sense change to the Bill, allowing for individuals affected by death and other harmful conduct to provide and publish personal statements to the ICRIR. I am very grateful that he is willing to make this small but important change, notwithstanding my earlier comments about the bigger picture of the Bill, including, in particular, immunity and other issues that we will get to later this evening. I will be very interested to hear the Minister’s response to the important points raised by the noble Baroness, Lady O’Loan, about the potential conflict between reconciliation and investigation.

[Lord Murphy of Torfaen (Lab)]

My Lords, I agree with every word spoken by every Member of this House who has taken part in this very brief debate. First, I thank the Minister for certainly improving what was there before—there is no question about that—but it does not, of course, go to the heart of the issue of why it is that victims, victims groups and the victims’ commissioner are probably the people most opposed to the Bill as a whole. Putting the word “reconciliation” in it does not mean to say it makes it any better, because, as my noble friend Lady Ritchie and the noble Lord, Lord Weir, said, there is a vagueness about the definition, so it does not actually mean very much at the end of the day.

What is purposeful, I think, is the fact that there are going to be victim statements. I think that is a distinct improvement, but ultimately the reason that victims and their families and their advocates in Northern Ireland are opposed to the Bill is because of the proposals on immunity, which we will reach a little later this evening. However, the Opposition will not oppose the amendments.

[Lord Caine (Con)]

My Lords, again, I am very grateful to those who have participated in the admirably short debate on this group of amendments.

Returning briefly to the issue of personal impact statements, as I set out, these are designed to give victims and families a voice in the process, and an opportunity to set out how they have been personally affected by the Troubles. The noble Lord, Lord Weir of Ballyholme, referred to the way in which the amendment is drafted and the fact that the victim’s impact statement will not be part of the immunity process. The Government’s clear view is that determinations for applications for immunity must be solely a matter for the chief commissioner of the new ICRIR to determine within the framework of the legislation. The commission will decide, of course, to what extent families should be involved in the immunity process more generally.

The noble Baronesses, Lady Ritchie and Lady O’Loan, touched on the issue of the potential conflict between the duty on reconciliation and investigations. As the amendments set out, the primary objective of reconciliation does not contradict the functions of the ICRIR—I shall say “the commission” for short—which are focused on the provision of information to families and the powers of the ICRIR will facilitate that. There is no question of the duty getting in the way of investigations. Certainly, when it comes to family reports, the only thing that will not form part of the final family report will be those that are referred to in Clause 4 regarding national security and the duty to keep people safe and secure and not to put people’s lives at risk.

In response generally to the noble Baroness and the noble Lord, Lord Morrow, I touched on the issue of reconciliation way back at Second Reading in November, when I said that no Government can legislate to reconcile people or to impose reconciliation on people. However, we can try to put in place as many measures as possible to promote reconciliation. In my view, reconciliation in Northern Ireland means a place where society is peaceful and prosperous and which most people who live there would be proud to call home. I hope that deals with some of those points.

On the point made by the noble Lords, Lord McCrea and Lord Weir, the Government have never accepted any kind of moral equivalence between those who injured themselves at their own hands and the victims of terrorism in Northern Ireland. We made it quite clear when we passed the victims’ payment scheme in this House a few years ago that we did not accept any equivalence and there is certainly no intention to do so here.

On that note, I hope that I have managed to respond to a number of points and beg to move.

--- Later in debate ---

[Lord Murphy of Torfaen (Lab)]

My Lords, there are a lot of technical amendments to this and obviously we support those, as we support the other amendments in this group. Annual reports, work plans—all very sensible—but, in the nature of things, this is a relatively small part of this controversial Bill, and we will not oppose the amendments.

[Lord Bew (CB)]

My Lords, I wish to return to something I focused on in Committee: the role of the ICRIR and its officers. Tomorrow, I have the honour of addressing former Chief Constable Boutcher’s staff who are working on the Kenova inquiry. There are some 80 staff and a budget, so far, of over £40 million. We must have in our mind’s eye the criteria for people who work for the ICRIR. The concerns I had in the past have been greatly mollified by the fact that Sir Declan Morgan will now play such a key role in this new body. It is important to recall that there is no obstacle to employment in the ICRIR for those officers with, for example, HET experience, who did a good job, and former officers of the PSNI, and I am simply asking for reaffirmation of this from the Minister. We have to think about the complexity of issues, such as expense. Kenova is running to a cost of £40 million now, dealing with only a tiny percentage of the case load that the ICRIR might have, and therefore we do need experienced officers who know the ground working in this area. The Minister has been helpful in the past, but I am looking for a degree of reassurance.

--- Later in debate ---

The third point is the most important, and the noble Baroness, Lady Ritchie, made a very powerful speech in this regard. It is about the victims themselves. If this Bill is supposed to be about reconciliation, as other noble Lords have said, and moving on from the past, it should be of the deepest concern that it continues to be so strongly opposed by the victims themselves. They regard this Bill as closing down their hope of justice. For all these reasons, we oppose and will vote against Clause 18.

[Lord Murphy of Torfaen (Lab)]

This was bound to be a powerful and very emotional debate about an issue which goes, as many noble Lords have said, to the very heart of the legislation. It also goes to the heart of the opposition to the legislation. We heard some excellent speeches from the noble and right reverend Lord, Lord Eames, onwards on various amendments which have been tabled, which are very welcome and sensible.

As the noble Baroness, Lady Suttie, said, she and I and others have tabled Amendment 66, which removes the clause dealing with immunity. One of my later successors as Northern Ireland Secretary, the right honourable Karen Bradley, said some years ago that proposals for legacy must follow the rule of law. She went on:

“Conservatives in government have consistently said that we will not introduce amnesties or immunities from prosecution”.


It is as clear and simple as that.

Why then should we be so drastic as to propose the deletion of that vital clause? First, we need to send a message as clearly and strongly as we can to the Members of the House of Commons when they consider the amendments that go back from this place. The Government have a majority of 80. Inevitably, with that large majority they can do what they want, but they should think again because of the nature of this Bill. Every single Northern Ireland Member of Parliament from all parties in Northern Ireland voted against it. To send a signal to the House of Commons that this House recognises the significance of the opposition to the Bill in Northern Ireland would be very powerful.

People say that the release of prisoners under the Good Friday agreement was similar—not the same because prisoners had to have served at least two years in prison before they could be released. The big difference between this and that is that the people of Northern Ireland, in a referendum on the Good Friday agreement, however distasteful they thought it was, voted in favour. No one in Northern Ireland is voting in favour of this. In fact, this entire Bill, with the possible exception of some national security elements, should have been passed by the Assembly in Belfast, and I suspect that the reality is that not one single Member of the Belfast Assembly would have voted for this Bill. Perhaps a handful might have done so, but I very much doubt that.

That is why it is so important that the Government should think again about this. They should think in terms of who is against it. Every church in Northern Ireland is against it. Every single political party is against it. All the victims’ groups and the victims’ commissioner are against it. The Northern Ireland Human Rights Commission and every single human rights group are against it. Internationally, only a day or so ago the Tánaiste—the Deputy Prime Minister and Foreign Minister of Ireland—said how much the Irish Government are against it because their legacy provisions in the Republic are affected by it. The Council of Europe is against it. The United Nations is against it. The list goes on and on but, most significantly, it is because there is no consensus in its favour.

The Minister has been involved in Northern Ireland for a very long time, and he knows that you cannot simply impose things on Northern Ireland. You cannot impose resolution on Northern Ireland. People in Northern Ireland should decide for themselves on this, which is the most crucial and delicate issue that they can possibly make a decision on. Imposition is entirely improper. That is the message I hope we will be able to send to the House of Commons when we vote on these issues on Monday.

The Minister will say this wrecks the Bill. It does not. It takes out the part of the Bill which is most severely disliked. The Government will still have their commission and their reviews, but they will have to put something else in place of this proposal on amnesties and immunity, and that something else has to be based upon the co-operation and consent of the people of Northern Ireland. I went to Belfast in April when we were dealing with the anniversary of the Good Friday agreement, and not one single person came up to me and said they agreed with this legislation—indeed, the opposite. All the people, right across the political spectrum, I talked to about the Bill were against it because this immunity issue is the one that they particularly disagree with for all the reasons that noble Lords have spoken about in this short debate. Why on earth are the Government persisting in something that should not be imposed upon the people of Northern Ireland against their will?

[Lord Caine (Con)]

My Lords, this has been a very thorough debate, as indeed it was in Committee. At the outset, I am very grateful to the noble Lord, Lord Murphy of Torfaen, for quoting some words which I think I probably drafted for Karen Bradley when she was Secretary of State a few years ago. I gently remind the noble Lord, Lord Murphy, of a letter to which he put his name, as did the noble Lord, Lord Hain, to Karen Bradley in 2018. They wrote that

“the priority is surely now … not investigations that have little or no likelihood of either prosecution or alternative closure satisfactory to victims”.

I would be interested to hear at some stage what the alternative proposal of His Majesty’s Opposition might be.

[Lord Murphy of Torfaen (Lab)]

I rarely do this in the House of Lords, but I think that is worth an answer. It would have been based on consensus. Whatever was done would have been done with the agreement of the people of Northern Ireland through their elected representatives and through the people in their other organisations. That is the difference.

[Lord Caine (Con)]

The noble Lord will be aware from his own experience that the search for any consensus around this subject has eluded successive Governments of—I was going to say “both parties”, but it is actually three parties if you include the coalition.

The noble Baroness mentioned devolution. I well remember the history of why we are in this position in the first place: after the Stormont House agreement, the First and Deputy First Ministers came to what was then Her Majesty’s Government and said, “This is all far too difficult for us to do in Stormont. Please do it at Westminster”. The assumption always was that these issues would be dealt with in Stormont, with some parallel legislation in this House. Anyway, enough of the history.

I genuinely accept that this is the most controversial and challenging aspect of the Bill. As I acknowledged at Second Reading, I have found this very difficult. I reminded the House at the time that one of my first jobs in politics was to work alongside the late Ian Gow MP, a wonderful man, when he was chair of the Conservative Northern Ireland Back-Bench committee, so I understand. I have had many meetings with victims’ and survivors’ groups over many years, and intensively ever since I took on responsibility for this Bill in your Lordships’ House. Indeed, I responded to a request from the noble Baroness last year. I have done this very willingly and have heard many harrowing stories that I will never forget. One of the most difficult parts of the job of being a Northern Ireland Minister, as the noble Lord, Lord Murphy, will acknowledge, is that one has to listen to some of the most appalling stories of suffering and grief; I completely acknowledge that.

As I said earlier, the Government are determined, through the legislation, to attempt to deliver better outcomes for those most affected by the Troubles. I do not underestimate that this is a hugely difficult task and that the legislation contains, as I have said, finely balanced political and moral choices that are challenging for many.

On the comments that have been made about our international obligations, we debated that extensively in Committee and I have had lots of discussions in private. We are not going to agree. The Government’s advice is clear that the provisions of the legislation are compatible with the Human Rights Act and the ECHR.

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[Baroness Suttie (LD)]

My Lords, this has been an interesting short debate. These Benches fully support Amendment 31, tabled by the noble Lord, Lord Hain, and signed by the noble Lords, Lord Blair and Lord Murphy, and the noble Baroness, Lady O’Loan; if it is pushed to a vote on Monday, we will certainly support it. As other noble Lords have spelled out so clearly—perhaps not the noble Baroness, Lady Hoey, who has reservations, but certainly the noble Lord, Lord Blair, and the noble Baroness, Lady Ritchie—the Operation Kenova model, with investigations to criminal justice standards, has been proven to work and should and could provide an effective alternative to the approach being adopted by the Government. I still hope that the Government will move further in this direction and support at least the spirit of Amendment 31. If they will not, it would be very useful to hear why from the Minister in his concluding remarks.

[Lord Murphy of Torfaen (Lab)]

My Lords, I very much appreciate the amendments put forward by the Government in this group, which are a genuine attempt to improve the Bill. In particular, Amendments 30 and 33 make it clear that the commission must act in a way that is consistent with the Human Rights Act and therefore the European Convention on Human Rights. The problem is that the Government need to ensure that the people who take these matters very seriously are convinced, when it is said that the legislation is compliant, that it actually is. That is a job of work that the Minister must undertake in the weeks ahead.

I very much support Amendment 31 in the name of my noble friend Lord Hain, ably moved by my noble friend Lady Ritchie. I have met Jon Boutcher on a number of occasions and have been deeply impressed by his work and by him personally. Operation Kenova has achieved a very compassionate and efficient way of dealing with these issues, not just in a couple of cases but in anything up to 200, as the noble Lord, Lord Blair, has said. I hope the Government seriously consider my noble friend’s amendment on this issue, because it would be more generally acceptable than the present system.

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[Baroness Suttie (LD)]

My Lords, I shall speak in favour of Amendment 110, to which I have added my name. It would remove Clause 40 from the Bill and would have the effect of leaving the inquest system as it currently stands. I shall be extremely brief because the noble Baronesses, Lady O’Loan and Lady Ritchie, have made the case so powerfully in favour of the amendment.

The Minister will know that the victims’ commissioner, Ian Jeffers, is deeply concerned that removing the current inquest system would be an additional blow to families who have already waited decades for an inquest, and it is just not clear how and when the ICRIR will work to deal with them. Does the Minister agree that, when an inquest has begun and the preparatory work has been done, it seems inefficient and impractical to start a new process with new personnel?

[Lord Murphy of Torfaen (Lab)]

My Lords, after immunity, this part of the Bill is the most disliked, criticised and disapproved of in Northern Ireland. I understand why: because we will have inquests abolished, civil action banned and investigations not allowed to go on. That means the rule of law in Northern Ireland is being denied to the people, because of the decision of the Government to impose this Bill upon them.

I am not saying that there might not be occasions when all those things should happen. The problem is that, as in the case of immunity, effectively the Government have no Northern Ireland mandate for what they are doing. You can abolish the rule of law in some forms in a country only if the people are behind it. If the people’s representatives from all the political parties in Northern Ireland, and through all the churches and the organisations representing human rights there, and the victims’ commissioner for Northern Ireland, are opposed to this serious deflection from the rule of law then the only way that it can happen is if there is consensus.

The Good Friday agreement and the St Andrews agreement were based on consensus. The Stormont House agreement was based on consensus; the clue is in the name. The Minister shakes his head at that, but he knows that it would be a good basis for action if the Stormont House agreement were put forward. He had a very good Secretary of State at the time, but Johnson sacked him—maybe because he was too good. The issue, at the end of the day, is that you cannot impose these draconian changes in how the judicial and legal system works unless they have a legitimacy among the people who will have to live with them. That applies to the whole Bill but particularly to this provision. The reason why I support Amendment 110 is, again, because it gives the House of Commons the opportunity, if it is passed here, to have another look at it—a deep look at why this aspect of the Bill is so unpopular.

I cannot get my mind or head around why the Government are so stubborn on this. They can do what they like in Britain because they have a mandate, for another year, in the House of Commons. But, more than anybody else in the Government, the Minister knows that it is different in Northern Ireland and that these enormous changes cannot be made effective unless there is some sort of consensus. I do not for one second believe that the Government are wrong in seeking and trying to find a solution. The problem is that, in this case, they simply have not.

[Lord Caine (Con)]

My Lords, I am tempted to write at some point the definitive account of the Stormont House agreement, and to reveal just how exaggerated the levels of consensus in that agreement were. It almost started to unravel right from the start, and it was not entirely about legacy. In fact, legacy was never the motivation behind the talks that led to the agreement; it was about the Executive’s finances and welfare reform, principally. Anyway, that is for another day.

I discussed the clauses relating to investigations and inquests when opening this group, and these issues have been discussed at length both at Second Reading and in Committee. I will therefore not repeat well-rehearsed arguments here, other than to note the intervention by noble Lords today and to reassert that the primary purpose of the new commission—the ICRIR—is to provide more information through reviews that can include investigations. Those are not necessarily light-touch, as the noble Baroness, Lady Ritchie of Downpatrick, suggested; they can include full criminal investigations. It is to get more information to more families in a timelier manner than happens under the current processes.

I will respond to one point the noble Baroness, Lady O’Loan, and the noble Lord, Lord Browne of Ladyton, made on the recovery of costs. I have just looked at the Bill, which provides for costs. Clause 39(8)(a) stipulates that, while the prohibition will bring the substantive claim to an end, it will

“not stop costs proceedings from being continued or begun”.

The noble Baroness will know that inquests are covered by legal aid. So, I do not think it is entirely right to say that costs cannot be recovered. I willingly give way to the noble Baroness.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Murphy of Torfaen Excerpts

Report stage
Monday 26th June 2023 Lords Chamber

Moved by

[Lord Murphy of Torfaen]

66: Clause 18, leave out Clause 18
Member’s explanatory statement
This amendment would remove Clause 18 from the Bill, preventing a person from requesting immunity from prosecution as part of the ICRIR’s investigations of Troubles-related conduct.

[Lord Murphy of Torfaen (Lab)]

My Lords, this amendment deletes Clause 18, which introduces conditional immunity in the Bill. This is the most contentious and controversial part of the Bill. It is almost universally condemned in Northern Ireland, and I wish to test the opinion of the House.

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[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.

--- Later in debate ---

[Lord Patten of Barnes (Con)]

My Lords, I did not intend to contribute to this debate, but sitting here listening to some of the speeches, not least the wonderful remarks we have just heard, reminded me of what I think was the most difficult period of my life, when I was responsible for the committee that, after the Good Friday agreement, reorganised the police service in Northern Ireland. With my colleagues—people such as the late Maurice Hayes, Peter Smith and others—we thought we needed to have public meetings around Northern Ireland. When we suggested this, people said, “But nobody’ll come, nobody goes to public meetings now”. But come they did; to 40 meetings, probably 40,000 people came, and each of those meetings was a reminder not just of exactly what has just been said, the horror of the violence, but of the intimacy of the violence.

I think people who have not lived or been very much to Northern Ireland simply never comprehend how awful the intimacy of that violence is. I remember one evening having a public meeting in a rather raw little town in Northern Ireland—I had better not mention which one—and it was pretty difficult. A terrorist from the borders, Slab Murphy, had come down with some of his colleagues and we were quite worried that there would be violence. I undertook all those public meetings without police protection because you could not examine the record of the police and have yourself guarded by policemen. We got out of the meeting in one piece—I think it was Maurice Hayes and myself—largely because of the extremely sensitive and sensible chairmanship of a solicitor who had made her reputation invariably defending republicans who were accused of violence.

From Portadown we then went to a meeting in Craigavon and the first three questions I had were from the widows of police officers. The man accused in the case of the husband of the last of these had been got off on a technicality in his trial, with the solicitor working for him being the same woman who had kept the peace in the meeting I had just come from.

I think going through all those horror stories, trying to be objective and balance one bit of horror against another, is a less than useful idea. I think I am right in saying that it was the episcopal father of Louis MacNeice who said in a famous sermon words to the effect that we should remember the past the better to forget it. Northern Ireland remembers the past too much and does not spend enough time building a better present and a better future, even today; even today that is the situation.

The very last public meeting that we had in Northern Ireland was in a little fishing village. It was a difficult meeting; three of us were sat up on a stage like that in “Cinema Paradiso”, and, as the meeting went on and on, the thought of getting back to Hillsborough for a glass of whiskey became more and more enticing. Eventually, we brought the meeting to a close and got up ready to leave, and I made a little speech about reconciliation, healing and hope. A little lady at the back of the room stood up and said, “Mr Patten, before you go off, before you go back to London, before you make any more speeches about reconciliation, healing and hope, and all of us getting on with one another, I would like you to know that this man here”—and she put a hand on the shoulder of the man in front of her—“killed my son”. It was true. He had been one of those let out as part of the Good Friday agreement. We forget sometimes, standing in a queue in Morrisons, how it would be seeing in the next queue somebody who killed your uncle or tried to kill you. I have never believed that you actually deal with that problem by going over again and again who was right and who was wrong about that particular barbarity—the sort of barbarity that was mentioned earlier.

The best book I have read on Northern Ireland was Seamus Mallon’s memoir. I think Seamus Mallon is one of the great, largely unsung heroes of the attempt to produce decency in Northern Ireland. I recall from that extraordinary book how he went again and again to the funeral or wake of anybody in his constituency who had been killed. It was difficult. Sometimes he had a problem getting out without being beaten up by people who did not want to see him there because he was from the wrong side. On one occasion, he is at a wake and they do not want him there. He is helped to leave safely through the intervention of a man who is a part-time—a reservist—police officer. Two days later, on his way to the pharmacy in the local village, Seamus sees the same man gunned down by republicans. Seamus has to spend the man’s last moments with him, under a lorry leaking animal urine, as they lie there saying the Lord’s Prayer.

As I say, I do not see how you deal with those sorts of memories by going through the catalogue of who did what to whom and whether one horror was greater than another. I think it is the case that good sermons are likely to make more of an impact than endless historical reconstruction.

When it comes to that, I will say what I have never said before: I am not sure that the Church of which I am a member has been wise in the view that it has taken over the years about segregated education. If we want kids to learn the sort of history that we would like them to, you do not slant it and insist that, in order to listen to your version, they must go to one of your schools otherwise they cannot get confirmed, which was the situation when I was a Minister in Northern Ireland for years.

I had not meant to say any of this. When it comes to history, however brilliant the historians and however balanced they try to be, we have difficulty even in producing official histories of our relationship with the EU, so producing a balanced history of what has happened in Northern Ireland would be very difficult. We should try to understand what has happened, of course, but—I sound like a bishop now—we should build on the decencies that have ensured that, despite all the trouble and the extremism, Northern Ireland still exists as, in many respects, a thoroughly decent community.

The people who I remember when I look back are the heroes. Some of the civil servants and public servants that I had, people such as Norman Dugdale and Maurice Hayes, were great human beings who gave their lives to the attempt to produce decency, prosperity and peace in Northern Ireland. But, please—no official history.

[Lord Murphy of Torfaen (Lab)]

This has been a powerful debate in many ways. I suppose it should be, bearing in mind what has happened in Northern Ireland over 40 years. This part of the Bill was meant to be the easy bit but it is not; as noble Lords have heard over the past hour or so, it is possibly even more difficult than the rest of this legislation.

I remember vividly going to Northern Ireland to help chair the talks on the Good Friday agreement, back in 1997. About 10 months in, I was chairing strand 1 of the talks and I had had enough of history by then. I told the people at the talks that I had spent 17 years of my life before I became an MP teaching history but had had enough of it, 10 months into the talks. I suddenly realised that it was a bit daft to say that because the people in those talks were revealing their past in a very special way. Looking back, I can see that there were not just one or two but even more versions of the same history, in exactly the same place, and we have heard a bit about that in today’s debate. That is not easy.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Murphy of Torfaen Excerpts

3rd reading
Tuesday 4th July 2023 Lords Chamber

[Baroness Suttie (LD)]

My Lords, I broadly welcome these government amendments. This is a complex matter, as the interventions this afternoon have illustrated, but I am glad that the Minister has managed to find a solution that is, broadly speaking, acceptable to all, subject to the comments made for the record by the noble Lord, Lord Pannick.

I have only one question for the Minister regarding these Third Reading amendments. I assume that the Northern Ireland Department of Justice was also consulted and that it is happy with these proposals. Could the Minister perhaps confirm that that is the case?

[Lord Murphy of Torfaen (Lab)]

My Lords, this is the third occasion on which your Lordships have had the opportunity to discuss what has become an increasingly complex issue. I am delighted that it is probably the last as, should there be any more, it would get even more complicated.

I agree with the noble Lord, Lord Pannick, that Lord Kerr was a very eminent judge. Many of us remember him and the great work that he did. However, there has clearly been a problem with this particular judgment, and the principle of junior Ministers signing orders on behalf of the Secretary of State, even if it applied all those years ago, must be sustained. So I very much look forward to what the Minister has to say in response to this short debate. We will not be opposing this amendment.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Murphy of Torfaen Excerpts

Consideration of Commons amendments
Tuesday 5th September 2023 Lords Chamber

[Lord Hain (Lab)]

My Lords, I thank the noble Lord, Lord Caine, for his generosity. It is true that, having clearly been uncomfortable with the Bill from the outset—a Bill imposed from elsewhere in the government machine—he has sought to come at least some way towards the deep concerns and criticisms of it that have been expressed on a cross-party basis. Yes, he has made some concessions, but, frankly, they have not gone anything like far enough to satisfy victims’ groups especially. The Bill remains toxic for almost all victims’ groups in Northern Ireland and has not been supported, even in its amended form, by any political party in Northern Ireland, so far as I am aware.

My amendments would ensure that there was an opportunity to improve over time—by affirmative resolution, not executive fiat—what will soon be an Act, thereby creating a measure of consent for it where currently there is absolutely none in Northern Ireland, amended or not. As this sorry Bill slithers towards Royal Assent, one thing is clear: despite the willingness of the noble Lord, Lord Caine, to engage and listen—he has regularly gone out of his way to do so to me, for which I thank him—and despite the amendments that he has tabled that have marginally improved a truly terrible Bill, the Government have monumentally failed to persuade Northern Ireland’s victims and survivors that what is being done in the name of reconciliation is even remotely in their best interests. Instead, the Government turn their back on them, saying, “Take it or leave it. We are done with you”.

Even when the Bill leaves here, with all its worst excesses, and goes to the other place, that will emphatically not be the end of the story, hence the need for my Motion. There remain serious doubts as to the legal basis upon which the Bill is founded. When Sir Declan Morgan, an outstanding jurist of unimpeachable integrity and the immediate past Lord Chief Justice for Northern Ireland, who has been appointed interim chief commissioner of the ICRIR, was asked whether he believed that the legislation was European Court of Human Rights-compliant, he said:

“I am not going to express a view”.


But the Secretary of State at the time that the Bill was published did express a view that it is and I have no doubt that the noble Lord, Lord Caine, will express that same view. What else could he do?

Just last week, Sir Declan said that he welcomed victims challenging the legislation in the courts. I repeat: he welcomed them challenging it in the courts. What on earth are we doing to victims? Will they welcome being forced to go to court to fight for their basic right to be treated fairly, with respect and dignity and within the law? For that is what the Government are doing to them.

There is no doubt that the Bill’s immunity provisions will be challenged and, very possibly, the review/investigations mechanism as well. In my amendments in lieu, I set out a mechanism whereby the commissioner can move towards a Kenova-type operating model, endorsed by this House but rejected by the Commons, that is demonstrably European Court of Human Rights-compliant, and evolve the Bill in the light of experience and the views of victims’ groups, or indeed if the courts rule against what is proposed, as many think is likely. It is a modest amendment but if it is adopted change can evolve by affirmative resolution rather than ministerial fiat or going through further lengthy years of consultation and fresh primary legislation on this perhaps most thorny and difficult of the issues in Northern Ireland’s great list of difficult issues. I tried to address it with the Eames-Bradley report; the Minister has grappled with this issue for years. We who are former Secretaries of State have all tried to address it but it is very difficult.

If the Bill does not have the support of those whom it is designed to address, surely it should be allowed to evolve in the light of representations. That was what my amendments provide for, rather than going through years of further grief and consultation, and fresh primary legislation. I appeal to the Minister, even at this late stage, to accept my Motion and, by doing so, achieve a measure of support for a Bill that currently has none. I beg to move.

[Lord Murphy of Torfaen (Lab)]

My Lords, I will speak to the complicated amendments in the Motion in my name on the Marshalled List. Like the Minister, I wish to pay tribute to his civil servants, who have worked very hard on this Bill during a very long 13 months. I also thank the Minister himself for the courtesy and diligence with which he has taken this dreadful Bill through this House.

I do not believe for one second that the Government were wrong in trying to address the issue. Of course, it has to be addressed. It is a difficult one: Governments and the people of Northern Ireland have tried for a quarter of a century to deal with it. Generally speaking, they have failed, so there is no difficulty in accepting that the Government should try to deal with it. However, I believe that in this instance, particularly because of the most central and controversial part of the Bill—the issue of immunity—they have not succeeded in acquiring the support that would be deserved under normal circumstances in Northern Ireland.

Some months ago, your Lordships agreed the amendment I tabled to delete entirely Clause 18—the central clause dealing with immunity and therefore the central and most controversial issue of the Bill. It was defeated in the House of Commons and has now come back, but, because the clause was defeated here, two important amendments that would have been debated on that occasion—one tabled by my noble friend Lord Hain and one tabled by the noble and right reverend Lord, Lord Eames—were not given the opportunity to be considered by your Lordships. My amendment is an amalgamation of both of them, dealing with licence conditions and family consent.

I point out again to the House that those amendments were originally moved by a former Secretary of State and a former Church of Ireland Primate of All Ireland and Archbishop of Armagh—so they were serious amendments about serious issues. I believe that the Government have tried to remedy some of the worst injustices of the Bill, and I thank them for it, but they have not gone far enough. They have not addressed the real issues that have been expressed over the course of the last 13 months when the Bill has been going through.

My noble friend Lord Hain referred to the comments of the commissioner-designate, Sir Declan Morgan, and I share his view that he is of course a considerable and significant jurist. He said that the issue of compliance and compatibility with the ECHR would now be a “matter for the courts” and international law. Only last week, we heard that the Irish Government are contemplating taking serious legal advice about going to court. That cannot be right for a Bill as significant as this.

Sir Declan went on to say that the Bill has virtually “no support” in Northern Ireland—that is one of the most major understatements I have heard for a very long time. Every Church in Northern Ireland is opposed to the Bill—and Northern Ireland is a very churchgoing place. If all Churches are against it, that should be taken seriously into account. Every single political party is opposed to it, whether they be nationalist, republican, unionist or none of these. Every victims group, and the victims’ commissioner, is opposed to the Bill. The Equality and Human Rights Commission and commissioner are opposed to it, as are all human rights bodies in Northern Ireland. The Irish Government do not like it, the Council of Europe has disagreed with it, the United States Government are dubious about it and the United Nations is against it. With all that opposition, why on earth are the Government insisting on proceeding with this?

My amendment would not solve the whole difficulty with this bad Bill, but it would mean the involvement of victims’ families and the ability to impose conditions on immunity, including the right to revoke it altogether. This would improve it, but we have heard that the Minister will not accept it.

But the best solution is for the Bill to be put on hold and frozen until such time as we have a properly governing Executive and Assembly back in Northern Ireland. Those are the people who should decide how these matters should be dealt with. Once again—finally, I suspect—I appeal to the Government to do such a thing. The Minister knows that imposition on the people of Northern Ireland never works, and nor should it.

[Viscount Hailsham (Con)]

My Lords, although the House is faced with two undesirable options, I very much prefer the position advanced by the Government to that advanced by the noble Lord, Lord Murphy. If accepted, his amendment would preclude immunities from being granted, in the most part. The Government’s position allows for the possibility of immunities, albeit surrounded by provisos and caveats.

I personally take what I know to be a minority view: that the proper way forward is for a statute of limitations to preclude all prosecutions for all offences alleged to have been committed prior to the Good Friday agreement. This would apply both to security personnel and to alleged terrorists; I do not think it is possible to make a distinction between the two.

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Moved by

[Lord Murphy of Torfaen]

At end insert “, and do propose Amendments 44D, 44E, 44F and 44G as additional amendments to the words so restored to the Bill and Amendments 44H and 44J as consequential amendments—

44D: Clause 18, page 16, line 16, leave out “C” and insert “E”

--- Later in debate ---

44J: As an amendment to Lords Amendment 111, in paragraph 6, leave out “C” and” and insert “E”

[Lord Murphy of Torfaen (Lab)]

My Lords, I beg leave to test the opinion of the House.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Murphy of Torfaen Excerpts

Consideration of Commons amendments
Tuesday 12th September 2023 Lords Chamber

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

My Lords, last week your Lordships sent this legislation back to the other place after agreeing an opposition amendment with a majority of 11 votes. This was overturned the following day by the elected House by a majority of 83. It followed the rejection of an earlier amendment passed by this House with a majority of 92. I fully accept that this House has exercised its legitimate constitutional role by asking the other place to reconsider. It has done so and very decisively answered on both occasions with overwhelming majorities. I therefore respectfully hope that your Lordships now agree to this Bill being passed, over one year and two months since I introduced it.

The legacy Bill introduced to the other place at the start of the Session last year took on a very different form to the Bill before us today. The changes brought about by the Government and extensively influenced by your Lordships over the course of the Bill’s passage mean that the Bill that I hope will receive Royal Assent is a more robust piece of legislation, designed to deliver better outcomes for victims and survivors of the Troubles. The current mechanisms for addressing legacy matters work for only a very small number of people rather than the overwhelming majority and where established criminal justice processes are increasingly unlikely to deliver the outcomes that people desire, particularly in respect of prosecutions. This legislation will provide more information to more people in a shorter timeframe than is possible under current mechanisms.

Should this Bill become law, which I hope it will, it is for the commission that it establishes to build on the framework that the legislation provides by developing, independently of the UK Government, clear structures, guidance and protocols regarding how it will work in practice. However, the new commission will need time to do this. While I recognise that this has been a difficult process, I encourage everybody to give Sir Declan Morgan KC and his team a fair wind, to demonstrate that the commission can deliver effectively for families. The UK Government will provide whatever support that they can in this endeavour while of course respecting the operational independence of the commission, which has been significantly strengthened by your Lordships’ House. I hope that others can do the same. I beg to move.

[Lord Murphy of Torfaen (Lab)]

It has been a long time—well over a year, as the Minister said—and I continue to say that I do not blame the Government for one second for trying to resolve what is a hugely difficult issue. Of course they were right to do so, but they do not have the answer.

My right honourable friend the new shadow Secretary for Northern Ireland, Hilary Benn—I welcome him to his post and, incidentally, pay tribute to Peter Kyle, who did a great job over a couple of years—said in the Commons last week, quite rightly, that the Government have made changes that all of us welcome, including this House, but it simply is not enough.

The Minister mentioned the Divisions we have had in the last few weeks. Twice, this House—the majorities might not have been huge, but they were majorities nevertheless—has asked the House of Commons to look again at the central controversial issue of the Bill, which is conditional immunity. He is right, of course, that ultimately we have to give way to the elected House, but that does not alter the fact that this is a friendless Bill. In effect, it has no support in Northern Ireland at all. All my experience of Northern Ireland over the years is that, where there is no support for a Bill such as this, from all communities in Northern Ireland, it will not work. There should have been consensus.

The Government should put the Bill on hold—put it on ice, if you like. Wait until there is a restored Assembly and Executive. When we debate other issues affecting Northern Ireland on Thursday, we will perhaps hear that there has been progress on the possibility of restoration. The right place for this to be debated and discussed is Belfast, not London, so put it on hold. If that does not happen, a future Labour Government will undoubtedly repeal this legislation.

[Lord Bruce of Bennachie (LD)]

My Lords, I concur with the noble Lord, Lord Murphy. I question the Minister on the wording of the Commons reason, which is very short:

“Giving family members a role in whether immunity should be granted or not would critically undermine the effectiveness of delivering on the principal aim of this legislation”.


Could the Minister explain what the principal aim of this legislation is? Many of us feel that the motivation underlying it is one of the reasons why it has attracted total opposition from all sections of the population and all the political parties in Northern Ireland.

This House was trying to ensure that families and victims have more say in the process. I absolutely concur with the Minister that he has extended his offices, to a very generous degree, with a desire to try to engage people. It is true that the Bill has been substantially improved from what it set out to be, but it does not satisfy anybody any more than it did at the beginning. Serious questions remain as to whether it accords with international human rights. We know that the Government believe it does, but others disagree. Sir Declan himself has said that he would welcome legal challenges. I referred to that the other day, as there is still a concern that the Bill may become an Act and then be subject to legislation or court action that could undermine its effectiveness.

That said, at this stage, we have exercised the debate and stated our view. The Commons has decided to persist and, in these circumstances, we are bound to accept its view.