Northern Ireland Troubles (Legacy and Reconciliation) Bill

Nigel Evans Excerpts

Committee stage
Monday 4th July 2022 Commons Chamber

[Mr Nigel Evans in the Chair]

[The Second Deputy Chairman of Ways and Means (Mr Nigel Evans)]

Members may wish to note that a manuscript Government new clause and manuscript Government amendments to improve the drafting of amendments agreed in Committee on day one have been tabled for consideration on Report. They are now available in the Vote Office.

Clause 33

No criminal investigations except through ICRIR reviews

Question proposed, That the clause stand part of the Bill.

[The Second Deputy Chairman]

With this it will be convenient to discuss the following:

Amendment 114, in clause 34, page 27, line 19, at end insert—

‘(2A) But enforcement action may be taken against P to prevent P from seeking to profit from their conduct in relation to that offence (see section (Grant of immunity: criminal memoirs etc).’

This paving amendment is linked to NC2 which is intended to prevent a person who is granted immunity under this Act from profiting from the from the conduct which they received immunity for.

Amendment 107, page 27, line 19, at end insert—

‘(3) But any sentencing decision in respect of a serious offence committed by P after 10 April 1998 may take into account the panel’s findings on any relevant serious Troubles-related offence committed by P’.

This amendment is intended to allow the offences for which immunity has been granted to be taken into account in sentencing for post-Trouble offences.

Clauses 34 to 36 stand part.

Amendment 121, in clause 37, page 28, line 11, at end insert ”,or

(d) a file relating to P in respect of an offence is submitted to the Public Prosecution Service.

‘(2A) But if no prosecution of P is directed on the basis of the file submitted to the Public Prosecution Service for Northern Ireland, the case relating to P should be returned to the ICRIR for investigation in accordance with this Part.’

The purpose of this amendment is to treat as criminal enforcement action the passing of a file to the Public Prosecution Service for Northern Ireland.

Amendment 122, page 28, line 17, at end insert—

‘(3A) For the purposes of subsection (3), a criminal prosecution of P is to be treated as having begun when a file relating to the criminal investigation into P’s conduct has already been submitted to the Public Prosecution Service on or before the day that section 33 comes into force.

(3B) But if no prosecution of P is directed on the basis of the file submitted to the Public Prosecution Service for Northern Ireland, the case relating to P should be returned to the ICRIR for investigation in accordance with this Part.’

The purpose of this amendment is to treat a public prosecution as having begun when the file is passed to the Public Prosecution Service for Northern Ireland.

Clause 37 stand part.

Clause 38 stand part.

That schedule 8 be the Eighth schedule to the Bill.

That schedule 9 be the Ninth schedule to the Bill.

Amendment 116, in clause 39, page 30, leave out lines 15 to 42.

This amendment would remove the provisions inserted into the Coroners Act (Northern Ireland) 1959 that require the closure of existing Troubles related inquests in Northern Ireland.

Clause 39 stand part.

Amendment 117, in schedule 10, page 79, leave out lines 4 to 39.

This amendment would remove the provisions inserted into the Coroners and Justice Act 2009 that require the closure of existing Troubles related inquests in England.

Amendment 118, page 81, leave out from line 18 to line 16 on page 82.

This amendment would remove the provisions inserted into the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 that require the closure of existing Troubles related inquests in Scotland.

That schedule 10 be the Tenth schedule to the Bill.

Clauses 40 and 41 stand part.

Amendment 108, in schedule 11,  page 83, line 20, at end insert—

‘(1A) In subsection (2)(a), replace “four” with “five”.

(1B) In subsection (2)(b), replace “four” with “five”.’

This is a paving amendment for Amendment 110.

Amendment 109, page 83, line 21, at end insert—

‘(6ZA) The fifth condition is that the prisoner has been fully cooperative in responding any request for information made under section 14 of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2022.’

This amendment is intended to add a fifth condition for prisoner release under the Northern Ireland (Sentences) Act 1998 to ensure that prisoners who take part in the reconciliation process are not treated in the same way as those who do not.

That schedule 11 be the Eleventh schedule to the Bill.

New clause 2—Grant of immunity: criminal memoirs etc—

‘(1) A person (P) who has been granted under section 18 immunity from prosecution for an offence may not seek to profit from their conduct in relation to that offence.

(2) The Coroners and Justice Act 2009 is amended as follows.

(3) In section 156 (Qualifying offenders), in sub-paragraph (3)(b)(i) at end add “or a citizen of Ireland who would qualify to be a United Kingdom national”.

(4) In section 159 (Relevant offences), after paragraph (1)(a) insert —

“(aa) a serious Troubles-related offence (see section 1 of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2022,”.

(5) The Secretary of State may, after consulting the First Minister and deputy First Minister if practicable, make regulations to prohibit the exploitation for profit of Troubles-related offences by any individual granted immunity under section 18.

(6) Regulations under subsection (5) may further amend the Coroners and Justice Act 2009 and make any necessary provision to amend any relevant primary or secondary legislation.

(7) Regulations under this section are subject to affirmative procedure.’

The intention of this new clause is to prevent a person who is granted immunity under this Act from profiting from the conduct which they received immunity for, by adapting the exploitation proceeds regime under the Coroners and Justice Act 2009.

New clause 3—Northern Ireland (Sentences) Act 1998: repeal—

‘(1) The Northern Ireland (Sentences) Act 1998 is repealed at the end of the period of two months beginning with the day on which this Act is passed.

(2) The Secretary of State may by regulations make any necessary temporary, consequential or transitional provision in connection with the repeal of the Northern Ireland (Sentences) Act 1998.’

This new clause provides for the Northern Ireland (Sentences) Act 1998 to be repealed when Part 3 of this Bill comes into force.

New clause 5—Revocation of immunity (No. 2)—

‘(1) This section applies if a person (P) has been granted immunity from prosecution for the offence under section 18, but later evidence is submitted to the immunity requests panel established under section 21 which the panel considers to be conclusive evidence that the Condition B in section 18 was not met because P’s account was not true.

(2) This section applies if, after the immunity requests panel has ceased to operate, the Secretary of State considers that there is conclusive evidence that the Condition B in section 18 was not met because P’s account was not true.

(3) Where subsection (1) or (2) applies, the immunity of P under this Act is revoked.’

Clause 42 stand part.

Amendment 120, in clause 43, page 34, line 12, at end insert—

‘(3A) The designated persons have an overarching duty to ensure that no memorialisation activities glorify the commission or preparation of Troubles-related offences.’

Amendment 110, page 34, line 15, at end insert—

‘(3A) The designated persons must take into account the interests and concerns of victims of the Troubles in the preparation of the memorialisation strategy.

(3B) “Victims of the Troubles” do not include any person P who has received immunity under this Act and whose physical or mental harm was caused by Troubles-related conduct in which P participated unlawfully.’

This amendment is intended to ensure that only innocent victims are included as victims in the memorialisation strategy under this Act.

Clause 43 stand part.

Clause 44 stand part.

Amendment 41, in clause 45, page 35, line 22, leave out “of the period of operation of the ICRIR” and insert

“from the date on which this Act is passed”.

This drafting amendment removes a reference to the Independent Commission for Reconciliation and Information Recovery.

Amendment 42, page 35, line 38, leave out subsection (5).

This amendment removes a reference to the Independent Commission for Reconciliation and Information Recovery.

Amendment 43,page 36, line 6, leave out paragraph (a).

This amendment removes a reference to the Independent Commission for Reconciliation and Information Recovery.

Amendment 44, page 36, line 8, leave out “the ICRIR reports and”.

This amendment removes a reference to the Independent Commission for Reconciliation and Information Recovery.

Amendment 45, page 36, leave out lines 18 to 21.

This amendment removes a reference to the Independent Commission for Reconciliation and Information Recovery.

Clause 45 stand part.

Clauses 46 to 48 stand part.

Amendment 93, in clause 49, page 37, line 43, leave out from “regulations” to end of line 15 on page 38 and insert

‘establish an independent panel of experts to make appointments for the purposes of this Part.

(1A) The independent panel of experts must include—

(a) representatives of the Northern Ireland Executive, the United Kingdom government and the government of Ireland,

(b) representatives of the British Academy, the Royal Irish Academy or other comparable learned societies, and

(c) a person of international standing with experience in or comparable to the post of special rapporteur on transitional justice for the United Nations.

(1B) When deciding whether to designate a person for the purposes of this Part, the panel must, in accordance with clear and transparent criteria, ensure that the individual has the necessary expertise in at least one of the following: oral history, academic research, archiving, trauma, gender studies and memorialisation.’

This amendment would remove the Secretary of State’s power to designate persons for the purposes of Part 4 of the Bill and instead provide for the appointment of an independent panel to designate persons for the purposes of this Part, while keeping the provision for financial and other resources to be supplied by the Secretary of State.

Clause 49 stand part.

Amendment 94, in clause 50, page 38, line 20, leave out from ”means” to end of line 21 and insert

‘persons designated by the independent panel established under section 49 (1);’

This amendment removes the definition of designated persons in Part 4 of the Bill as persons appointed by the Secretary of State and instead refers to appointments by an independent panel.

Clause 50 stand part.

New clause 4—Offence of glorifying terrorism: Northern Ireland—

‘(1) This section applies to a statement that is likely to be understood by a reasonable person as a direct or indirect encouragement or other inducement to some or all of the members of the public in Northern Ireland, to the commission, preparation or instigation of acts of terrorism.

(2) A person P commits an offence if—

(a) P publishes a statement to which this section applies or causes another to publish such a statement; and

(b) at the time P publishes it or causes it to be published, P—

(i) intends members of the public in Northern Ireland to be directly or indirectly encouraged or otherwise induced by the statement to commit, prepare or instigate acts of terrorism; or

(ii) is reckless as to whether members of the public in Northern Ireland will be directly or indirectly encouraged or otherwise induced by the statement to commit, prepare or instigate such acts.

(3) For the purposes of this section, the statements that are likely to be understood by a reasonable person as indirectly encouraging the commission or preparation of acts of terrorism include every statement which—

(a) glorifies the commission or preparation in the past of Troubles-related offences; and

(b) is a statement from which members of the public in Northern Ireland could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated by them in existing circumstances.

(4) For the purposes of this section the questions how a statement is likely to be understood and what members of the public in Northern Ireland could reasonably be expected to infer from it must be determined having regard both—

(a) to the contents of the statement as a whole; and

(b) to the circumstances and manner of its publication.

(5) It is irrelevant for the purposes of subsections (1) to (3)—

(a) whether anything mentioned in those subsections relates to the commission, preparation or instigation of one or more particular acts of terrorism, of acts of terrorism of a particular description or of acts of terrorism generally; and

(b) whether any person is in fact encouraged or induced by the statement to commit, prepare or instigate any such act or Troubles-related offence.

(6) In proceedings for an offence under this section against a person P in whose case it is not proved that P intended the statement directly or indirectly to encourage or otherwise induce the commission, preparation or instigation of acts of terrorism it is a defence for P to show—

(a) that the statement neither expressed P’s views nor had P’s endorsement (whether by virtue of section 3 or otherwise); and

(b) that it was clear, in all the circumstances of the statement‘s publication, that it did not express P’s views and (apart from the possibility of P’s having been given and failed to comply with a notice under subsection (3) of that section) did not have P’s endorsement.

(7) A person guilty of an offence under this section shall be liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding 15 years, or to a fine, or to both;

(b) on summary conviction in England and Wales, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum, or to both;

(c) on summary conviction in Scotland or Northern Ireland, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum, or to both.

(8) in considering sentencing for an offence under this section, the court will take into consideration as an aggravating factor any immunity granted to P under the Northern Ireland Troubles (Legacy and Reconciliation) Act 2022.’

This new clause, based on section 1 of the Terrorism Act 2006, makes having received immunity under this Bill an aggravating factor in sentencing for the offence of glorifying terrorism.

New clause 6—Opening closed files—

‘(1) Every Minister of the Crown must review the status and classification of files held or sealed by the Department for which the Minister is responsible which relate to events which formed part of the Troubles with a view to ensuring that relevant information, is duly and truly accessible for the various purposes of information recovery, historical records, memorialisation and academic research provided for in this Act by those mandated to discharge those purposes.

(2) Classified government files for the purposes of this section relate to deaths, injuries, other public harms and miscarriages of justice which occurred as part, or in consequence, of the Troubles.

(3) No later than six months from the date on which this Act is passed, each Minister of the Crown must compile a list of such Troubles-related files which have been sealed from public disclosure for longer than standard periods, showing the previously specified date until which they were to remain closed and indicating, on the basis of the review referred to in subsection (1), how and when relevant information in those files will be available to bodies or persons undertaking work enabled or mandated under this Act.

(4) The list referred to in subsection (3) must be laid before both Houses of Parliament.

(5) A Minister of the Crown must make a statement to the House of Commons on steps being taken to ensure disclosure of such information in order to afford more truth to those bereaved or otherwise harmed by events related to the Troubles, fuller public awareness and understanding and to assist the cause of reconciliation.’

This new clause deals with opening closed files as a State step towards truth and reconciliation. The duties of the Minsters of the Crown apply to any Minister including the Prime Minister, any Secretary of State (including the Secretaries of State for Defence and for Northern Ireland) as well as to the Lord Chancellor and the Cabinet Office.

Amendment 46, in clause 51, page 39, line 12, leave out subsection (1).

This paving amendment would remove Schedule 12 which amends existing legislation in relation to the Independent Commission for Reconciliation and Information Recovery and the limitation of legal proceedings.

Amendment 47, page 39, line 35, leave out paragraph (c).

This drafting amendment removes a provision which would be redundant if Clause 38 and Schedule 9 were removed from the Bill.

Amendment 48, page 39, line 35, leave out paragraph (d).

This amendment removes references to criminal investigations and inquests.

Clause 51 stand part.

That schedule 12 be the Twelfth schedule to the Bill.

Amendment 49, in clause 52, page 40, line 9, leave out subsection (2).

This amendment removes provision which is not necessary for the operation of Part 4 of the Bill.

Amendment 50,  page 40, line 11, leave out from “they” to “may” in line 16.

This amendment removes provision which is not necessary for the operation of Part 4 of the Bill.

Amendment 51,  page 40, line 11, leave out lines 21 to 28.

This amendment removes provision which is not necessary for the operation of Part 4 of the Bill.

Amendment 52, page 40, line 29, leave out from “procedure“” to second “the” in line 34.

This amendment removes provision which is not necessary for the operation of Part 4 of the Bill.

Amendment 53, page 40, line 37, leave out from “Parliament” to the end of subsection (4).

This amendment removes provision which is not necessary for the operation of Part 4 of the Bill.

Amendment 54, page 41, line 9, leave out subsections (6) and (7).

This amendment removes provision which is not necessary for the operation of Part 4 of the Bill.

Clause 52 stand part.

Amendment 55, in clause 53, page 41, line 20, leave out subsection (1).

This amendment removes provision which is not necessary for the operation of Part 4 of the Bill.

Clause 53 stand part.

Clause 54 stand part.

Amendment 56, in clause 55, page 46, line 18, leave out subsection (4).

This amendment removes provision relating to the repeal of the Coroners Act 1988.

Clause 55 stand part.

Amendment 57, in clause 56, page 46, line 24, leave out paragraph (b).

This amendment would be consequential on the removal of Schedule 12 which amends existing legislation in relation to the Independent Commission for Reconciliation and Information Recovery and the limitation of legal proceedings.

Amendment 58, page 47, line 32, leave out subsection (4).

This amendment removes provision which is not necessary for the operation of Part 4 of the Bill.

Clause 56 stand part.

Amendment 59, in clause 57, page 46, line 35, leave out “Troubles (Legacy and Reconciliation)” and insert “(Memorialising the Troubles)”.

This amendment would change the short title applicable to an Act comprising only Parts 1, 4 and 5 of the Bill.

Clause 57 stand part.

New clause 7—Compatibility with Article 2 of ECHR—

‘(1) Notwithstanding any other provisions of this Act, the exercise of powers, the performance of functions and the discharge of duties under this Act, including by bodies or offices created under this Act, may be subject to civil action and judicial review on grounds of incompatibility with Article 2 of the European Convention on Human Rights.

(2) Recourse to civil action under this section shall be open to—

(a) a close family member of a person whose death was caused by conduct forming part of the Troubles; or

(b) if there are no close family members of the deceased, any family member of the deceased.

(3) The Northern Ireland Human Rights Commission may—

(a) provide assistance to individuals or families who take civil action under this section; or

(b) bring court proceedings itself in respect of policies, practices and performances of relevant authorities with powers and functions under this Act in order to test their compatibility with Article 2 of the European Convention on Human Rights or to vindicate that right or others under the European Convention.’

Amendment 72, in title, line 1, leave out from “by” to “providing”.

This amendment would change the long title applicable to an Act comprising only Parts 1, 4 and 5 of the Bill.

While we are in Committee of the whole House, Members should refer to me as Chair or Mr Evans, and not as Mr Deputy Speaker. I call the Minister.

--- Later in debate ---

[Conor Burns]

The short answer to my county neighbour is yes. That is why we are reflecting very carefully on the points that the hon. Member for Belfast East, my right hon. Friend the Member for Chingford and Woodford Green, and others, have made as to whether that is the right way to proceed, or whether we might want to have another look at that whole area and the wider context of the Bill as it progresses through its remaining stages.

I have done less today than I did last week, which I think is a good thing for everybody, including me. I look forward to hearing the detailed debate during the afternoon and evening, and look forward to returning to respond on behalf of the Government to the Committee later today.

[The Second Deputy Chairman of Ways and Means (Mr Nigel Evans)]

Could I ask anybody who intends to try to catch my eye to stand so that we can get an idea of numbers?

[Several hon. Members rose—]

[The Second Deputy Chairman]

Right—thank you very much.

[Peter Kyle (Hove) (Lab)]

I will try to keep my remarks as brief as possible as well. We do not want to end up in the situation we did last Wednesday, where it took three hours before we heard a speech from a Northern Irish Member.

Today, we are going to scrutinise parts 3, 4 and 5 of the Bill, followed by the final stages. This is a major undertaking in such a small amount of time, particularly for legislation on such sensitive issues. The Government’s rushing the Bill through has only deepened mistrust in its proposals. Opposition amendments 114 and 116 highlight some of the gaps between the Government’s rhetoric and what the Bill actually delivers. I hope the Committee considers the amendments with the same generosity it did amendment 115 last Wednesday, and that once again we can find agreement on how to improve the Bill. The Opposition will be supporting other parties in their attempts to remove clause 39. We will also support new clauses 4 and 5, which are thoughtful attempts at improving how immunity works.

Our amendment 114 is based on exploitation proceeds orders from the Coroners and Justice Act 2009, which stop criminals in our country profiting from their crimes, usually through books or memoirs. Our amendment would allow the Secretary of State to make regulations to ensure that people given immunity cannot then profit from the actions that they have just admitted to. The test that Labour has set remains that this Bill needs to offer greater benefits to victims than it does to perpetrators of terror.

The Government have repeatedly told us that as a result of this Bill all victims might get—might get—information, yet perpetrators stand to benefit much more. If basic tests are met, they must be granted irrevocable immunity from prosecution. There are no conditions to that immunity. There is nothing stopping people from then using their immunity to write down their own history of their crimes and profit from them. What is more, only perpetrators have to give the immunity panel an account of events that is true to the best of their knowledge. No input from victims is required. Quite simply, the Bill hands perpetrators control over the narrative of their crimes. Indeed, once a perpetrator has been granted immunity, I cannot see any limits on what they can do with it. There is nothing to stop terrorists writing books and seeking to justify the mayhem and senseless killings that they have carried out. Undoubtedly, that would re-traumatise victims. This is not idle speculation but a concern that victims have raised with me directly.

Just after my appointment, I travelled to Northern Ireland and sat with Paul Gallagher. Paul was left in a wheelchair after a loyalist gun attack in 1994 when he was just 21 years old. Paul told me that it cut to the core when he learned that his shooting featured in a book about his attackers. It contains a first-hand account and justification of Paul’s shooting by the paramilitaries. No one asked for Paul’s consent, or his version of events. This Bill would not only allow perpetrators to live in freedom, but empower them to tell their own version of events in their own names, without fear of prosecution.