Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Weir of Ballyholme Excerpts

Committee stage
Tuesday 24th January 2023 Lords Chamber

I ask the Minister to reconsider the Bill, not just tweak it in the way he has with the amendments he has brought forward, as he promised. If he had been the architect of the Bill, I think it would be very different and one we could all support. There is a different model, which I will describe. I hope that it will receive the support of your Lordships’ House. Meanwhile, I support the amendment.

[Lord Weir of Ballyholme (DUP)]

My Lords, I also support the amendment in the name of the noble Baroness, Lady O’Loan. I am the first to acknowledge that many sensible amendments have been put forward from all sides of the House; there are also some that I would not be quite so keen on, but no matter how good some of those amendments are, they do not and indeed cannot deal with the fundamental flaws in the Bill.

Similarly—and I speak after a former Secretary of State for Northern Ireland—I am acutely aware of how difficult it is to find a way forward on legacy that is acceptable to everyone. Again, I am the first to acknowledge that, but I am completely convinced that the Bill before us is not that way forward.

The noble Baroness’s amendment goes to the heart of the process because it deals with the issue of democratic legitimacy and gives this House and Parliament an opportunity, if taken, to pause for thought. There are four good reasons why we need to pause.

First, as others have indicated, the Bill does not have a level of consensus within Northern Ireland among the political parties—indeed, quite the opposite. As someone who in a previous life served for 24 years in the Northern Ireland Assembly, and indeed for six of those as the Chief Whip of the largest party in the Assembly, I can say better than most that it is difficult at times to get a consensus within the Assembly. It is difficult to get a consensus in Northern Ireland. Indeed, in recent days on other issues there has been a level of debate as to what counts as sufficient consensus in Northern Ireland: is it a simple majority, or a cross-community majority? But one thing indicated by the proposer of the amendment is beyond doubt, as shown by the vote in 2021: every single party in Northern Ireland is opposed to this Bill. That is a complete consensus.

We may question in particular the bona fides of one of those parties, Sinn Féin, whose military wing inflicted violence for many years and was the biggest single contributor to deaths in Northern Ireland. But even leaving aside the fact that republicans were responsible for around 60% of the killings in Northern Ireland, nevertheless there is a complete consensus within all the parties in Northern Ireland that this is not the way forward.

Secondly, there is also a consensus among victims that this is not the way forward. As previously indicated, in the same way that veterans are not necessarily a homogeneous group with the same views on every subject, that is undoubtedly true of victims of the Troubles in Northern Ireland. Indeed, not only do they often desire different outcomes and have different perspectives on the world, but even members of the same family of a victim of the Troubles sometimes have different views. So it is extremely rare that a consensus emerges, but it is difficult to find a single victim, let alone a single victim group, who is in favour of this as a way forward. If indeed victims are supposed to be at the centre of this, by proceeding pell-mell with this Bill we are not moving forward.

Thirdly, the Bill very clearly represents a denial of justice. When we look at the Troubles, two myths are sometimes perpetrated. They are quite lazy assumptions. The first is that everybody in Northern Ireland is a perpetrator. That is clearly not the case. The vast majority of people, from whatever side of the community, got on with their lives, tried to make progress in a democratic way and gave the lie to the idea that there was no alternative to violence.

The second myth is that everyone is Northern Ireland is also a victim. I was extremely fortunate: although I grew up throughout the entirety of the Troubles, I did not lose a family member or close friend to the Troubles. Indeed, I probably grew up in one of the safest parts of Northern Ireland. I was able to grow up in such safety because of the bravery of veterans throughout the United Kingdom, both soldiers and police officers, in keeping that peace in Northern Ireland. I cannot claim to be a victim, which makes me particularly reluctant as a Member of this House to impose a denial of justice on victims. I would be imposing that on other people.

There is no doubt that many victims out there do not seek a particular form of justice or a conviction. It is also the case—none of us should be naive, particularly in historical cases—that the opportunities for a trial and conviction to hold somebody directly accountable for the murder of your loved one are extremely remote. I believe the Bill is fundamentally flawed in that it provides the “solution” of simply snuffing out, and taking away from families that want justice, any opportunity to have their day in court. That is the third reason why this is fundamentally flawed.

There is a final reason why we need to look at this. Understandably, when we are dealing with legacy the focus is quite often on the past and the legacy of the past, but I do not believe the Bill provides reconciliation in the future. Indeed, I believe it provides a very dangerous pathway for the future.

Unfortunately, we have already seen a younger generation in Northern Ireland—sometimes fuelled particularly by comments from those who have been supportive of terrorism—effectively trying to rewrite history. It is not unique to Northern Ireland, but the glib mantra of some people is that there is no alternative to violence, and there is an attempt retrospectively to justify that level of violence. Let me make it absolutely clear: from whatever source, whether republican or loyalist, violence in Northern Ireland was never justified and never will be. But if we rewrite history by effectively whitewashing what happened and providing an amnesty, we are in danger of sending out a signal to the future that violence is an acceptable way forward. That is a very dangerous pathway and not one that any of us would intend to go down, but I think we are inadvertently going down it.

For all those reasons, this is an opportunity to think again and pause for thought. I therefore welcome the noble Baroness’s amendment. I believe it is a productive and balanced way forward, and I therefore urge the House to support it.

[Baroness Suttie (LD)]

My Lords, I too thank the noble Baroness, Lady O’Loan, for the amendment and for what, if I may say so, was an incredibly powerful speech today. We have heard so many powerful speeches today from all sides of the House. I noted here that we have had speeches from Northern Ireland and not Northern Ireland. We have had the noble and right reverend Lord, Lord Eames, the noble Lord, Lord Hain—a former Northern Ireland Secretary—and the noble Lord, Lord Cormack, who made an incredibly powerful speech. Then there were the noble Lords, Lord Weir and Lord Alton, who also made speeches that made a very powerful case. We even heard from the noble Lord, Lord Dannatt, and the noble Viscount, Lord Hailsham, making a slightly different case but supporting, none the less, the aims of the amendment before us this afternoon.

As I said at Second Reading, the strength of opposition risks undermining the Bill’s stated intentions of dealing with the past and promoting reconciliation—“reconciliation” is in the very title of the Bill. But the Bill is not promoting reconciliation and is opposed by so many who have spoken today. It is for this reason that on these Benches we support the amendment from the noble Baroness, Lady O’Loan. A Bill of such sensitivity and consequence cannot and should not proceed without the consent of the Northern Ireland Assembly. To quote the noble Lord, Lord Dodds, who I thought also made a very powerful speech this afternoon, we need to listen to the victims and pause this Bill before Third Reading.

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[Lord Hain (Lab)]

The point I am making is that there were files, and Operation Kenova has had access to those files. They are held principally by the security services but, under very strict conditions and with trust, the investigation has been able to retrieve information on a sensible basis without compromising the work of the security services, and that has been of great comfort for victims. That is my point and my concern about the noble Baroness’s amendment.

I turn to my Amendment 147. I thank the noble Lords, Lord Hogan-Howe and Lord Blair, both distinguished former Metropolitan Police Commissioners, together with the noble Baroness, Lady O’Loan, a distinguished former Police Ombudsman for Northern Ireland, for adding their names. The amendment is designed to ensure, as my noble friend Lady Ritchie has already argued, that the Bill does not prevent the continuation of the review into the Glenanne gang series, known as Operation Denton, which is expected to conclude and report in spring 2024—that is, after the Bill could have received Royal Assent.

What is known as the Glenanne gang series includes a significant number of murders and other terrorist offences committed in both Northern Ireland and the Republic of Ireland during the Troubles between around 1972 and 1978. The cases within the Glenanne gang series are connected by common features, such as individuals, weapons, areas or targets involved. In some of these cases, direct evidence has already demonstrated the collusion of police or security force personnel.

Various parties, including families, have significant concerns about the rigour and professionalism of previous investigations into these cases and have for many years sought a comprehensive, overarching, thematic analysis of the Glenanne series and the extent of any state collusion. On 5 July 2019, the Barnard judgment set out the requirement for an independent review of the activities of the Glenanne gang, a statutory requirement in accordance with Section 35(5) of the Justice (Northern Ireland) Act 2002 and Article 2 of the European Convention on Human Rights. The chief constable of the PSNI requested that the former chief constable of Bedfordshire Police, Jon Boutcher, carry out this review. It was named Operation Denton, commenced in February 2020 and is part of the cases being conducted under the umbrella of Operation Kenova.

To date, Operation Denton has identified 127 murders resulting from 93 separate incidents connected to this series. It has met and is supporting families of the victims. It has had success in securing the release of material from the Republic of Ireland through lobbying for and securing the introduction of secondary legislation by the Irish Government to ensure access to records held by the Garda to assist the review. It is anticipated that Operation Denton will conclude and report publicly and to families no later than spring 2024.

Operation Denton is so well progressed and has developed such strong levels of trust and confidence with the families that it would cause unnecessary delay to the review—and, crucially, undue stress to families, who have suffered grievously already—for this inquiry to be passed to the ICRIR. It is important therefore that Operation Denton be allowed to complete its work. I hope that the Minister, who I see is nodding, will confirm that in his reply to this group of amendments. The lawyers and NGOs supporting the Glenanne series’ victims and families have indicated that they will legally challenge any decision to stop Operation Denton and will not co-operate with the ICRIR, such is their confidence in the work currently being done.

In conclusion, it is almost certain that Operation Denton’s work will be completed and families informed of its findings before the ICRIR is open for referrals. I therefore very much hope that the Minister will give the Committee the assurance that I seek and the absolute assurance that the victims desire.

[Lord Weir of Ballyholme (DUP)]

My Lords, I will deal first with Amendment 1. I support this probing amendment. That is not necessarily to make a judgment that what is in place at present is insufficient, but it is probing to establish whether what is placed in the legislation is comprehensive enough and whether it covers all the situations. There can be nothing worse than finding that there are inadvertent consequences and that, through a degree of misunderstanding or because we have not been exacting enough, some people are excluded wrongly, or perhaps even that the net is drawn too widely on other occasions. As I said, I draw no conclusions as to whether that is the case at present but I will listen with care to the answers given by the Minister on that.

To take the last point on Amendment 147, I have some sympathy for the case that the noble Lord put forward. However, I have some level of reservation. It is undoubtedly an investigation into one of the most horrendous series of murders that have taken place; they were horrific, and it is correct that they should be condemned. Where I have a little reservation in perhaps suggesting that the whole Bill is flawed is that if we start looking at individual operations, however well advanced, and singling them out for some level of exemption, that can create a concern that other areas of investigation into horrendous murders which are needed are not also covered. That is my concern about Amendment 147.

On Amendment 52, again, I look forward to what the Minister will say on that. I have some reservations about it. At the moment, there is a five-year period in which there is an opportunity for a request to be made. It is hard to see in genuine cases why a family would not make that within the five-year period, so I am not clear why this is necessary. Indeed, are we shifting the goalposts by making this entirely open-ended in terms of making the request? Therefore, at this stage I am certainly sceptical about that but I look forward to what will be said in connection with it.

I support the proposals put forward by the noble Baroness, Lady Hoey, in Amendment 63. The noble Lord, Lord Hain, made the point that there is a concern about the inadequacy of some investigations. I take that very much on board. However, what the noble Baroness says is proportionate, fair and practical. I say that because Amendment 63 would take into account what previous investigations had taken place. Surely the aim of the investigations in review is to bring everything up to the same level. If work has already been done, that should be built on where necessary. We should not look to duplicate work; that is from a practical point of view because there is a danger of the level of funding becoming open-ended to the extent that it is simply unaffordable.

We also need equality of treatment. There would be a concern that if we simply disregarded an investigation —indeed, if we have investigation after investigation in some cases—then some high-profile cases in which people are able to shout the loudest may go to the front of the queue and get an additional level of investigation, rather than there being equality of treatment for victims.

Amendment 63 has been carefully worded. It does not say that a previous investigation would preclude a review or an investigation. It would place the onus on the Chief Commissioner to take account of what has happened before. In many cases, particularly in the early days of the Troubles, that investigation might well have been inadequate. What information is available should be a key factor in determining the level of work that must go into an individual case. What is there is balanced.

The proposed opposition to Clause 7 standing part of the Bill is also in this group. I again have considerable sympathy for what has been put forward. Undoubtedly, we must ensure that the net for what evidence is inadmissible to the courts is not thrown too wide. There is a concern that what is presently within Clause 7 is not fit for purpose and, at the very least, creates elements where clarity is needed. For example, it is not clear in what circumstances an applicant for immunity would provide information that is not connected with the application process. Perhaps the Minister can expand on this. Separately, Clause 7(3)(b) has the effect of making material that is later obtained “as a result” of material provided by the applicant inadmissible. That seems quite tenuous. We must ensure that the inadmissibility net is not any wider than it needs to be.

There are considerable concerns over Clause 7. I know that the Government are proposing some changes to it but again, there is a lack of clarity. For example, there is an interaction between admissibility of material, as mentioned in Clause 7, and Clause 23, on the provision of information to prosecutors. That needs to be clarified. If Clause 7 was to remain within the legislation, the Minister must clarify what impact Clause 23 has on Clause 7. Without such clarification, there would be a strong case at least for re-examination of what is in Clause 7, and perhaps for exclusion altogether.

[Lord Browne of Ladyton (Lab)]

My Lords, I will speak to Amendments 71 and 83, which are in my name and that of my noble friend Lady Ritchie of Downpatrick. Amendment 83 is also in the name of the noble Baroness, Lady O’Loan, and my noble friend Lord Murphy of Torfaen. I am grateful to them for their support. I too have benefited from engagement on my amendments with not only the Minister but the Bill team and his private office, and I put on record my thanks and appreciation.

Amendment 71 requires that, as far as possible, ICRIR reviews be conducted in public, providing for transparency in the conduct of reviews by that body. Transparency is not only desirable in reconciliation but a necessary precondition for it to occur. Many of the reviews that the ICRIR will be charged with conducting will have decades of mutual suspicion to contend with. My amendment to Clause 13 attempts to bring greater transparency to those reviews where possible. It is not merely a question of procedural efficiency; it will make clear to those for whom we are seeking the truth that they can be as confident as possible that there is no thumb on the scales, that the review process can be trusted, and that those tasked with handling these hugely sensitive investigations are doing so without the pressure to conform to some predetermined narrative.

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[Baroness Smith of Basildon (Lab)]

My Lords, this has been a deeply respectful debate. A number of issues have come to light, and it would be helpful if the Minister could respond to them. Some of the issues are quite complex. I am grateful particularly to the noble Baroness, Lady O’Loan, for the experience that she brings to this.

I turn first to Amendment 1, in the name of the noble Baroness, Lady Suttie. This definition is something that the victims’ commissioner has raised with a number of Members of your Lordships’ House. The phrase “serious physical or mental harm” is really key here. Many of us have met victims who have suffered harm that is not always immediately evident. We have to look at this again, because there is no power for the definitions to be amended. Given the Government’s fondness for Sis—not that I am recommending this route—there possibly needs to be some discretion for the commission. We discussed this briefly with the Minister, and he is rightly wary of having a list, which can never be exhaustive, but this has to be revisited and looked at again. Some discretion might possibly be the way forward.

On the amendment of my noble friend Lord Hain, I do not know whether the Minister is considering opening this up. Operation Denton is due to report in spring next year—I know that is an elastic term in government announcements. We will come to our amendment on this later in proceedings, but to have this investigation running for so long and for it then to be ended by the Bill would clearly be the wrong thing to do. It seems a sensible process, and one that started in 2020, and the point made by my noble friend Lord Hain is well made. I would like to hear the Minister’s response to that so I can understand the timing.

There is no commencement time in this Bill. It would be helpful to know when, if the Bill were to conclude all its stages and become law, the Minister envisages that it would start. That is important in this context.

My noble friend Lord Browne talked about transparency. That is clear-cut: if we are to have confidence in a process, it needs to have transparency. I think it might be a mistake in the Government’s drafting that someone could be compelled to attend but not compelled to give evidence. That seems to be a bit of a loophole, and I hope that the Minister can come back with something positive on that. did

I turn to the amendment of the noble Baroness, Lady Hoey. I can see the point that she is trying to address, which was repeated by the noble Lord, Lord Weir—that in repeated inquiries it is the people who shout the loudest who have more access to the various mechanisms in place—but it seems to me to be a very absolute point. If compelling new evidence was brought forward, in any circumstances and by anybody, surely there should be the option for the commission to consider that compelling new evidence.

[Lord Weir of Ballyholme (DUP)]

I entirely agree with the point that the noble Baroness has made. However, to be fair to the noble Baroness, Lady Hoey, is that not why the amendment refers to “take into account”? That then would not preclude it being taken into account and a different approach being taken.

[Baroness Smith of Basildon (Lab)]

It may be. I do not have the amendment in front of me—I will look at it again later—but there seemed to be an absoluteness. I understand the principle, but I want to make sure that the detail and specifics of the amendment do what they intend to and not cut off options for—