Northern Ireland Troubles (Legacy and Reconciliation) Bill - Second Reading (Continued)

– in the House of Lords at 8:15 pm on 23rd November 2022.

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Photo of Baroness O'Loan Baroness O'Loan Crossbench 8:15 pm, 23rd November 2022

My Lords, I acknowledge and applaud the integrity with which the Minister introduced the Bill, and the way he articulated the problems that exist. Given the range of amendments apparently to be introduced by the Government, though, it is difficult to understand why we are actually debating this difficult and challenging Bill.

In starting my words, I pay tribute to all those with whom I have worked over the years. For 25 years, in one way or another, I have been in this business of investigating and overlooking the Troubles. I pay tribute to the people who came to me, particularly when I was Police Ombudsman for Northern Ireland, because that took a lot of courage. I remember one mother who came to me and was terrified; she knew the name of the person who had murdered her young son but was too afraid to tell me his name. As she sat at my table, I ran through the names of IRA men whom I had identified as working in the area until she nodded. That seemed to open some sort of gate, which enabled her to talk to me.

I think of the victims, including the police victims: people such as Constable Colleen McMurray, Detective Sergeant Joseph Campbell and Lance Bombardier Stephen Restorick, the last soldier to die in Northern Ireland. I think of all the victims of all the shootings and bombings. The first I dealt with in some detail was Omagh, where 29 people and two unborn children died, which was really traumatic and went to the heart of what the Bill is about. One of the problems we have is that although most people who were in the security services and the forces in Northern Ireland served with great distinction and integrity, not all did. We have a significant problem in relation to many agents of the state. I think of people such as Stakeknife on the one side and those in the UVF on the other, who were engaged in terrible crimes.

Noble Lords have referred to the extent to which the Bill has been rejected by people, organisations, statutory organisations, former police officers and soldiers, including veterans who served honourably and have stated that criminals who served alongside them should be prosecuted. It has also been rejected by numerous independent and distinguished human rights lawyers and other experts, the UN committees, the European Commissioner for Human Rights and so on.

However, at the heart of this, as we have heard tonight, the legacy of the Troubles lives on in the hearts of all of us who have been affected by them. I include all those affected by the deaths which occurred here in Westminster; I think of Airey Neave and of all the bombs that there were here in England. They live in my heart for my lost baby, who died before he was born in a bomb explosion; they live in the dreadful and murderous sectarian attack on my son when I was police ombudsman, which left him with terrible injuries. There was an investigation but we always knew that it would go nowhere, because people were so afraid of the loyalist paramilitaries that nobody would come forward to give evidence.

That is the legacy and reality of life in Northern Ireland, and it lives on still. On Saturday night, I will go to a place called Oristown in County Meath, where they are trying to recover the bodies of the remaining disappeared. There were three of them: Columba McVeigh, who was 17, Joe Lynskey and Captain Robert Nairac. It lives on in all our hearts and all our souls.

I did a search to find out how these new provisions will promote reconciliation. The word “reconciliation” is used in the Bill on 168 occasions, some 167 of which are in the titles of the Bill and the Independent Commission for Reconciliation and Information Recovery. There is one other reference to “reconciliation”: Clause 44(4) provides for a study of memorialisations and requires that there must be consideration of

“how … memorialisation activities currently, or will in the future, promote reconciliation in Northern Ireland”.

That is the sole provision aimed at reconciliation. Can the Minister explain whether the Government intend to amend the Bill to provide mechanisms by which they might promote reconciliation?

The Bill does four very important things, which are being articulated here. It terminates existing criminal investigations into Troubles deaths, including the Kenova investigations, with which I am involved. It provides for review in limited circumstances, which may lead to prosecution but is very unlikely to. It terminates civil actions from 17 May this year, and there will be no Troubles inquests after May 2023. I hope that the Government will not come back and tell us that they will allow it to be May 2024, which would be an insult to people in Northern Ireland. All inquests currently under way but that have not reached the stage of substantive hearing must be terminated by the coroner. The Bill also provides for conditional immunity for those involved in the Troubles, as we heard.

Earlier proposals included roles for the Northern Ireland Department of Justice and the Northern Ireland Policing Board, but the Bill makes no provision for any involvement of any of the devolved part of Northern Ireland. The Secretary of State is even responsible for making decisions about memorialisation projects. Does the Minister not agree that, like so much in the Bill, this should be a matter for the devolved Government rather than the Secretary of State?

The Bill makes the commission the only body that can examine legacy cases throughout the UK. As noble Lords have said, the structures will lack operational independence. I was pleased to hear the Minister say that there will be changes in how the Chief Commissioner will be appointed. However, the Bill provides for extensive involvement by the Secretary of State in operational matters, including giving guidance to a whole range of bodies, including the commission, about the exercise of its function; proposing cases of death or harmful conduct for review; determining resources—we all know that the way to render a new institution impotent is to limit its funding and powers, and there is scope for both here; determining applications for immunity; monitoring the work of the commission; and guarding access to information.

The Secretary of State can rule that information is

“protected international information … which … if disclosed generally might, in the opinion of the Secretary of State, damage international relations.”

The Constitution Committee observes that Clause 4(1) prohibits the commission doing anything that might “prejudice … national security”. There is no provision for the review of any national security claims made by the Secretary of State.

Clause 2 provides for the work of the commission. The language of Bills is normally very carefully chosen. As has been said, the need for proper investigations of Troubles-related deaths was previously acknowledged, and the language has changed in the Bill. The functions of the commission include the review of deaths and harmful conduct and the production of reports on the review of each death. Reviews are not investigations; they are conducted to help a senior investigating officer who is investigating a crime, or is proposing to investigate an unsolved crime, to detect that crime by identifying lines of inquiry. There is national best practice for how to do a review so that it is thorough, is conducted with integrity and objectivity, looks at all investigative opportunities and makes recommendations for further investigation. Reviews are there to assist investigation, not to substitute for it. They should result in further investigation, not just final reports. I do not believe that it is an accident that the word “review” has suddenly appeared in the Bill.

One of the requirements under Article 2 for investigating the crimes of the Troubles, especially those crimes in which a state agent or actor has been involved— although many served with honour, there were hundreds of these crimes—is that the investigation be independent. Taken together, the structures created by the Bill restrict and inhibit the operational independence of the commission. The right to independent investigation is guaranteed, not only through the convention on human rights but through the Good Friday agreement and, most recently, Article 2 of the protocol, which provides for no diminution of our human rights. Your Lordships have been debating with great interest the effect of Article 2 in the protocol debate.

International bodies and eminent experts do not accept that the structures created in this Bill will satisfy the UK’s international and legal obligations. The powers available to the commission do not even appear to include unfettered use of police powers—the powers of the Secretary of State seem to extend even to the use of those powers. This Bill does not provide the existing right of access to information held by state bodies. There is an obligation on state bodies only to provide information and documents that are “reasonably required”. As Police Ombudsman, I had a right to all information held by the PSNI. In other cases, I had to seek information from state agencies such as the MoD, MI5 and GCHQ. Sometimes they were helpful; on other occasions they were not. More recently, as a member of the international steering group for Operation Kenova—I have been there for nearly seven years—investigating the activities of the republican state agent known as “Stakeknife”, I have seen the difficulties experienced by this investigation, which was commissioned by the Police Service of Northern Ireland. It is not a new problem. The language of this Bill will make the work of information retrieval from the state much more difficult.

Under the Bill, in addition to his other powers, the Secretary of State gives guidance as to the identification of sensitive information. Sensitive information includes anything held by GCHQ, MI5, the MoD, the Army, the PSNI and any British police force. The Secretary of State can issue regulations on the holding and handling of that information. Those regulations may create criminal offences. The Constitution Committee has said that this provision is constitutionally unacceptable because criminal offences should be created in the Bill itself, not by negative resolution, where there is no provision for amendment. In addition, the holding and handling of such information can be regulated by the Secretary of State, and they can even provide for biometric information to be destroyed.

The decision as to reasonableness—the Bill refers to information that is “reasonably required”—will be made by the state agencies, not by the commission. In many cases, I am sure that the MoD, MI5 and GCHQ will decline to provide access to much of the information they have. They will say this is necessary because the material is secret, or its disclosure may put lives or methodologies at risk. I have seen material classified as secret which should not have been. I saw that most recently when I was investigating the Metropolitan Police. The European Court of Human Rights has found that determinations of national security threats must not be arbitrary and must contain sufficient safeguards to give the individual adequate protection against arbitrary interference. I have seen methodologies protected that are no longer relevant. It is most unlikely that the commissioner will get access to what they need for review, or even for investigation.

We must add to these difficulties and restrictions the fact that the commission must grant immunity to a person who has requested it, and who has given an account of their own conduct that formed part of the Troubles that was true to the best of their knowledge and belief. Immunity is not possible for Troubles-related sexual offences. Both the Delegated Powers Committee and the Constitution Committee have said that the power given to the Secretary of State to define sexual offences should be removed from the Bill. But what sort of regime prohibits immunity for sexual offences but grants immunity to murderers?

The Secretary of State can issue guidance on making a request for immunity or determining whether an immunity applicant’s conduct falls within the legislation and is criminal conduct, et cetera. The Delegated Powers Committee says that the statutory guidance should be subject to parliamentary procedure. The Constitution Committee suggests that your Lordships may wish to consider whether the guidance should be incorporated in the Bill. There is no requirement to inform victims or family members of a request for immunity or the outcome of that request. Victims, family members or interested persons cannot provide information to inform the commission’s immunity decisions. In many cases, the families of murder victims have gathered vast amounts of information about the murder of their loved one which they could provide to the commission, as they have in the past provided it to me, and which might demonstrate that the applicant has not told the whole truth about his or her own criminality.

The Government, in response to the Council of Europe’s Committee of Ministers, said that they would expect the commission to inform families and that

“information about the granting of immunity should also be included in the published family reports”.

The whole immunity process will be vested in secrecy. There will be no transparency and no accessible accountability for the decisions made.

We also know that accounts given to members of families by those who were involved in the murders of their loved ones are very often inaccurate and sometimes wrong. The harm caused to families by inaccurate information cannot be overstated. There is no penalty for an offender not telling what they really know, although this may change. Where there cannot be a prosecution of an individual because they have immunity, that will impact on the ability to prosecute others for that offence, just as there have been difficulties in prosecuting pursuant to the operation of the current arrangements for assisting offenders under the Serious Organised Crime and Police Act.

Even if the commissioner were to get access to information, to attempt to deal with the complications involving a request for immunity and to proceed to a review using police powers with a view to making a submission, there are very restrictive provisions as to the disclosure which may be made by the commission. In particular, paragraph 3 of Schedule 5 permits disclosure to a range of persons—the Director of Public Prosecutions, the Lord Advocate, a member of the police force, coroners, judges—but the Secretary of State must be notified. What is the purpose of notifying the Secretary of State? What is the Secretary of State going to do with the information? Why should case-sensitive information be disclosed in this way, rather than, for example, being dealt with under the normal rules for disclosure in prosecutions?

Paragraph 4 of Schedule 5 requires that proposed disclosure be notified to the Secretary of State, and he can then give consent for disclosure or withhold it if it would prejudice national security. Again, there is no clarity as to how this might impact on disclosure to the defence or, indeed, the prosecution in any criminal trial. What will be the impact of this provision? Can the Minister reassure the House that this will not have the potential to result in prohibition of the disclosure of material relevant to a prosecution? More importantly, what will the perception be of the victims?

These are not normal provisions. They build in delay. The Secretary of State has up to 60 days to make his first decision and 60 days to make his second decision, and that is for one piece of information. I can tell noble Lords that there are multiple pieces of sensitive information involved in any case. The power of the commissioner to submit a case for prosecution will be severely compromised by these provisions.

I have a few final points. The commission is charged to produce a historical record of the remaining deaths—those which it did not investigate. How will this record be created when there is no investigation? We already have that wonderful book, Lost Lives, which so many of us have used, which tells the story of every death of the Troubles. Will this process add anything to that work? Given that the commission’s work can be concluded or shut down

“if the Secretary of State is satisfied that the need … has ceased”, the question must be, can the Minister confirm that the commission will be funded until its work is completed and that the work of the commission itself will not be terminated after five years? Cases will run on after the five years.

Our history is very complex. Somehow, a situation evolved in which the police, the Army and MI5, having successfully infiltrated terrorist organisations, lost their way. There grew a time when many of the agents of the state currently under investigation were allowed to carry on their involvement in terrorism to preserve them as agents. People died because of this, and it should not have happened. Even when they admitted their crimes to their handlers, they were just sent back on the street. As this emerged, as people began to realise that their loved ones had been murdered by people such as informants—agents of the state who had not been dealt with—there grew an ongoing sense of betrayal in both communities.

There were of course also cases in which members of the police and Army were involved in crime. I emphasise that I know that most officers served honourably. I dealt with so many of them in my time; I lectured them. I remember giving evidence to a Diplock court against an IRA man who had been gathering information against judges and police officers, with a view to a spectacular shooting. That was a difficult thing to do, but it had to be done.

All I want to do in my work on this Bill is to try and help noble Lords to ensure that it will provide justice and enable hope for the people who, like so many of our noble colleagues, have suffered so much through the Troubles.

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour 8:35 pm, 23rd November 2022

My Lords, it is a pleasure to follow the moving and forensic speech of the noble Baroness, Lady O’Loan.

I hesitated before putting my name down to speak because I cannot claim the knowledge of Northern Ireland that other noble Lords can. Having had the privilege of being a member of the independent Opsahl commission that considered the future of Northern Ireland during the Troubles, and having visited numerous times subsequently, I took very seriously the passionate opposition to this Bill voiced in a number of quarters. I apologise for any repetition, but I hope it will serve to reinforce the case against the Bill.

I intend to make just two general points, relating to human rights compliance and to the failure to listen to the virtually unanimous opposition to the Bill in Northern Ireland, reflected in my noble friend’s amendment. These two fundamental concerns support the conclusion of the Joint Committee on Human Rights that the Government should “reconsider its whole approach”. The Northern Ireland Human Rights Commission, which I thank for a very useful meeting the other week, argues that the Bill requires

“immediate and thorough reassessment, which should take place through meaningful engagement. The result should be victim-centred and human rights compliant”.

Its view is that

“this is not delivered by the present Bill”, and nor can it be simply by means of a few amendments. This is a pretty damning conclusion from the official body established to advise on human rights matters in Northern Ireland.

On human rights, the JCHR voices its agreement with stakeholders that the Bill is unlikely to comply with the European Convention on Human Rights. It expresses serious doubts as to its compatibility with Articles 2 and 3, but also with Articles 6 and 13—the right to a fair trial and to an effective remedy—despite the former Secretary of State’s statement that the Bill is compatible with convention rights. One of those stakeholders, Amnesty, describes the Bill as a “flagrant breach” of human rights obligations. The NIHRC expresses grave concern and focuses in particular on what it considers to be the Bill’s incompatibility with Articles 2 and 3, and by extension suggests that the Bill contravenes the Belfast/Good Friday and Stormont agreements. It suggests that there is “little evidence that expert views on human rights compliance were meaningfully considered.” The Minister’s welcome, conciliatory speech offers some hope that they have, to some extent, been so now, but as colleagues have said, we need to see the detail, and it is not just about Article 2 compliance.

A briefing from Freedom from Torture and Survivors Speak OUT warns that the Bill “provides impunity for torture” and in doing so breaches the UK’s obligations under multiple international treaties, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It quotes the Committee against Torture, which has made clear that in order to ensure that perpetrators of torture do not enjoy impunity, state parties must

“ensure the investigation and, where appropriate, the prosecution of those accused of having committed the crime of torture, and ensure that amnesty laws exclude torture from their reach.”

The briefing explains: “We know as torture survivors that seeking justice helps recovery by affirming the unfairness of what we endured, restoring some control”, yet the Bill “silences victims and survivors”. Liberty makes similar criticisms and dismisses the attempt in the ECHR memorandum to the Bill to argue that it is consistent with the UK’s obligations under the convention against torture.

The Constitution Committee echoes concerns raised about the Bill’s implications for the UK’s international obligations and the rule of law, and it quotes criticisms voiced by two UN special rapporteurs and the Council of Europe’s Commissioner for Human Rights. The Council of Europe’s Committee of Ministers has urged a fundamental rethink of the Bill, as my noble friend Lady Ritchie pointed out.

The Constitution Committee also notes, as the noble Baroness, Lady Suttie, said,

“the strength of opposition to the Bill—particularly by victims—which risks undermining its aim of addressing the past and promoting reconciliation.”

That is such an important point. In his letter to Peers, the Minister stated that “the Secretary of State engaged widely and listened to many different views”, but this is not how those affected see it. To the extent that the then Secretary of State did engage—and that is disputed in relation to the drawing up of the Bill itself—he may have listened, but he certainly did not take on board what he must have heard.

According to the NIHRC,

“the Bill does not reflect the views of 17,000 consultees who engaged with the NIO on the previous legacy bill and is staunchly opposed within NI, including among victims, survivors and their families.”

It suggested that public confidence is lacking due to the Government forging ahead with the Bill without “meaningful consultation”. As far as I can tell, apart from possibly a small group of veterans and the Malone House Group, no organisation or political party in Northern Ireland supports the Bill. I acknowledge that veterans—whose views are reported by the Northern Ireland Veterans Commissioner—tended to be more equivocal and show what the commissioner terms “begrudging acceptance”. Nevertheless, he also makes clear that veterans

“do not want an amnesty”.

Indeed, an invitation to a meeting with bereaved families of British Army soldiers said that they feel “deeply aggrieved” that the protection of veterans is said to be the justification for the Bill.

The Constitution Committee warns:

“It is constitutionally inappropriate for such a significant measure to pass without consent”, which is clearly lacking at present, regardless of whether or not the Assembly sits.

Could the Minister explain why the Government are railroading the Bill through despite such widespread and fundamental opposition? This opposition calls for more than the few improvements that the current Secretary of State himself acknowledged are needed when answering Oral Questions a couple of weeks ago, and which the Minister has suggested would lead to amendments being tabled before Committee. Welcome as that acknowledgement is, I am not sure that it reflects an understanding of how fundamental the opposition to the Bill is.

Surely the Government cannot believe that reconciliation can be achieved by imposing it in this form on an unwilling population. Reconciliation requires treading carefully. As the then Secretary of State noted when introducing the Bill’s Second Reading in the Commons, it concerns the

“most difficult and sensitive of issues.” —[Official Report, Commons, 24/5/22; col. 176.]

The Bill may have succeeded in uniting Northern Ireland’s political parties and civil society groups, but unity in opposition to the denial of justice and internationally recognised human rights does not offer a path to genuine reconciliation.

Could the Minister explain why the Government, in drawing up the Bill, have ignored the advice of bodies established to provide advice on human rights issues? In this context, could he respond to the request made by Simon Hoare MP, chair of the Northern Ireland Select Committee, at the Commons Second Reading that, in order to assure the House that the Bill is Article 2-compliant without “setting a precedent”, the Government give

“active consideration to putting Treasury counsel’s advice on this matter in the Library”.—[

The then Minister of State did not respond in his summing up and it seems that we are expected to accept a simple assertion that the Bill is compliant, despite all the advice we have received to the contrary from the JCHR, NIHRC and others. Indeed, he ignored the whole issue of human rights, despite concerns raised by the former Secretary of State, Julian Smith, who I know earned considerable respect in Northern Ireland.

The Minister’s letter to Peers claims that the Bill fulfils a manifesto commitment to address the legacy of Northern Ireland’s past through providing better outcomes for victims, survivors and their families, giving veterans the protection they deserve, and helping Northern Ireland’s society to look to the future, which I think was reflected in his speech today. These are admirable aims, but I do not know of anyone outside of the Government who believes that this Bill achieves them.

The JCHR, the NIHRC and the Northern Ireland Victims and Survivors Commissioner have asked the Government to think again. Informed by the view of victims and survivors, the commissioner expresses deep unhappiness and warns that the legislation is

“fundamentally flawed, and is not victim and survivor centred.”

In a letter to me, he explains that

“no-one I have met believes that the Bill is going to help heal or reconcile,” and in a recent letter to the Daily Telegraph he states:

“A draconian Bill, designed by one party in splendid isolation, is not the way forward, and it is not what our victims and survivors need.”

The JCHR spells out what alternative legislation would need to look like. It would ensure first that

“investigations are independent, effective, timely, involve next of kin, and are subject to public scrutiny; (ii) perpetrators of serious human rights violations are held to account; and (iii) that all possible avenues for the pursuit of justice and the provision of an effective remedy are available to victims and their families.”

Many in Northern Ireland believe that it should reflect the Stormont agreement which, while not perfect, I believe commanded sufficient support to offer a way forward, despite what the Minister said in his speech.

While I welcome the fact that the new Secretary of State and the Minister are engaging in a way that should have happened before the Bill was drafted, I can think only that they will have heard a clear message that it is not fit for purpose. It will not achieve the Government’s aims, but it will create considerable resentment and unhappiness among those it purports to help. It should be withdrawn—or at the very least, as the noble and right reverend Lord, Lord Eames, said, should be paused—so that the Government can go back to the drawing board and return with a Bill that is human rights compliant and can command support among victims and survivors of the conflict. They deserve no less.

Photo of Lord Bew Lord Bew Crossbench 8:48 pm, 23rd November 2022

My Lords, I want to say some words in favour of this Bill. One might assume that we had a situation at present that was viable. I very much sympathise with the noble Baroness, Lady O’Loan, and others who have looked at the word “reconciliation” and said that it is tossed around in the Bill in a way that is not entirely convincing, to put it politely. I absolutely understand that, but the truth is that we have an entirely rancid situation in Northern Ireland. The continuation of lawfare is just a contributory to what is perfectly obvious to anybody who pays the most casual attention to public opinion in Northern Ireland: there is an increasing mutual contempt between the two communities. There is a reason why the Government are trying to introduce this Bill. I fully accept the point from the noble Lord, Lord McInnes, that in part it is to do with a manifesto commitment and the issue of veterans, but it is also to do with the fact that the status quo is simply not tolerable, and in our discussions I think we should acknowledge that.

I was very impressed by the introduction to the Bill from the noble Lord, Lord Caine, not just because of the careful and calibrated way in which he spoke and acknowledged the difficulty, even the anguished way he spoke, but also the precise way that he spoke. But he did not really have much effect on the broader tone of the debate. As the debate went on, we learnt that the Bill was obscene and again and again it was said that it was depriving people of hope.

The noble Lord, Lord Hain, talked about Pinochet’s Chile. Perhaps it is because I was at Cambridge with people who suffered under Pinochet, I thought that was a slight stretch. I accept that the noble Lord was a remarkably effective Secretary of State. He has made it clear tonight that he is on a journey and that he has now modified some of the positions he previously held on this matter in the light of his hopes for what might come from the Boutcher inquiry. I must say, as someone who knows Jon Boutcher, that that is a big wager; it is a Pascal’s wager of a big sort that that inquiry will somehow challenge the terms of this debate, for all the brilliance of his police work. Everybody who knows about his career in London knows that he was—indeed, still is—a very fine policeman.

This language is striking and so different from the tone that the noble Lord, Lord Caine, adopted in an attempt to be precise and face up to difficulties. Again and again tonight, reference has been made to the fact that there were sexual crimes. In fact, the Government have tried to move on this; it is there, but you would not know it from anything that been said in the past two or three hours.

The crucial thing, above all, is that I find myself thinking again and again about the friend of the noble and right reverend Lord, Lord Eames, at the time of the initial report, which he has talked about so eloquently tonight. Everybody knows that his friend, Denis Bradley, is no particular friend to British Governments. When this Bill was published and it was clear that the Government were going to act in this way, did Denis Bradley talk about “obscene”? Did he talk about depriving people of hope? No. He went into a television studio and, to the annoyance of people who expected him to use that sort of language, he said, “There is no realistic hope. Politicians are merely playing a game if they try to defend the idea that there is hope somehow. They are making a public display. They are actually misleading people.”

It is important to remember the tone with which he spoke at that time. He said, “We cannot deliver more justice now, but we may be able to deliver more truth”; again, that is part of the thinking behind the Bill. That is what Denis Bradley said in the immediate aftermath of this Bill’s publication—quite different from the tone of so much of what has been said tonight, but at least it respected what the Government are trying to do. I am absolutely certain that, if he were here tonight, he would say, “There are loads of things in this Bill that I really don’t like,” but that is a different point. The noble Lord, Lord Caine, has already acknowledged that there are problems in the Bill and creative work will have to be done to sort it out. However, given the tone of what we have heard, it is worth remembering Denis Bradley’s initial response.

Again, the reason why I am sympathetic to the sceptical talk about reconciliation is that I was a historical adviser to the Bloody Sunday tribunal. As historical advisers, we all thought, “This is it. The Government’s great failing is that they won’t fess up to the things they or the state did wrong. We will put a line under it.” When the report came in, David Cameron made a fine speech, partly drafted by the noble Lord, Lord Caine, fessing up to what the British state had got wrong. The hope was, “Well, that’s it. That’s a dividing line. People will accept that we’re not afraid to criticise ourselves or our state’s performance.” The hope was that things would move on and the mood in Northern Ireland would change, but the mood did not change at all. It is as simple as that. I accept that it was a fine industry for the lawyers who worked in it, but the mood of the people did not change at all and the impact that David Cameron was aiming for in his speech ultimately amounted to zero. I am prepared to accept that it would have been worse had he not given that speech. But that is why I accept the talk that it is going to be difficult to achieve reconciliation and why I respond so sympathetically to what the noble Baroness, Lady O’Loan, said.

However, it is important to understand that the status quo is radically unacceptable, defective, and helping to create an increasingly rancid and divisive public mood in Northern Ireland. At this point, the Bill has unified both communities, but it is a false unity. They each simply want the terrorists of the other community to be brought to law. The unity disclaimed against the Bill is not a real unity.

What has surprised me most this evening is how the Supreme Court ruling in the McQuillan case in December 2021 has not been discussed in any serious way. It has a very significant impact. The headline in the Times law report on 10 January stated that the Supreme Court had said that Northern Ireland police are not required to reinvestigate incidents from the Troubles. That is not being said by the Minister or the British Government, and nor is it a clause in this Bill. It is a very firm statement of Supreme Court policy.

I am sure that there is debate about this, and that many do not like or accept it, but it is a Supreme Court—

Photo of Baroness O'Loan Baroness O'Loan Crossbench

Does the noble Lord accept that the Times headline writer might not have been quite accurate, and that the judgment in the McQuillan case might have been slightly more complicated than that?

Photo of Lord Bew Lord Bew Crossbench

It is no more inaccurate than any other headline that I have seen. I accept that it is a complex ruling. However, the Northern Ireland police force issued a statement after the judgment:

“The Police Service welcome the clear legal ruling that there are no legal obligations arising from Article 2 ECHR to investigate these cases. We will now carefully consider the judgments and their impact on the legacy caseload.”

The Government have been attacked for depriving people of hope but, at the minimum, fairness requires us to say that the Supreme Court is depriving people of hope. Only this week we have had an attempt to assassinate two policemen, and serious business with loyalist paramilitaries. Anyone who thinks that the Northern Ireland police force does not look at that ruling and think it significant—and significant enough to be mentioned in this debate—is living in cloud-cuckoo-land. Yet apparently, no one thinks that because it is better to say that this Bill is obscene, is depriving people of hope, et cetera.

I am insistent because we have a problem. The public debate in Northern Ireland now—the way that lawfare operates and the way that these cases are now exhumed on a regular basis, which the Government are responding to—does not relate to what happened in the Troubles. To give a very simple example, the RUC, as was, suffered 309 deaths. It killed 53 people, including 10 of its own in error, carrying heavy weapons in police cars and so on. RUC officers were killed at five or six times the rate of their killing. This is very crude but factual. The killings committed by the republican movement were something like five times the rate of their own deaths, but no one would know that if they looked at the cases running through the courts in Northern Ireland, and at how lawfare was operating. No one would consider that to be the balance of killing and of suffering. Nobody would know that.

That is the problem that we are trying to address with this Bill and why I am willing to give it a degree of support. It is not in doubt that there are problems with the Bill. The Minister has made it clear that the problems are significant. The House can do a lot of work to improve it. Yet everyone must remember that the Bill does not exist on its own but alongside a Supreme Court ruling that unquestionably moves the dice—moves the balance. There is no question that it does that. It may not move it 100%. There may be requirements for other developments, but it certainly moves the discussion in a way that we have not acknowledged in several hours of debate tonight.

Photo of Baroness Bennett of Manor Castle Baroness Bennett of Manor Castle Green 9:00 pm, 23rd November 2022

My Lords, perhaps I should declare my position as a former Times headline writer, from which I am able to confirm that the headlines very often do not reflect the nuance of a story—or, indeed, quite often the facts.

I rise to make a modest and short intervention in this enormously powerful debate. One of my chief reasons for doing so is to reinforce a point made by the noble Baroness, Lady Smith of Basildon, in her presentation of her amendment. The noble Baroness said this Bill is

“opposed by the widest possible political coalition.”

My remarks today come after a close consultation with the Green Party of Northern Ireland. The words are my own, but I received from the Green Party of Northern Ireland a very clear message, as reflected in the words of the noble Baroness, Lady Ritchie of Downpatrick, that this Bill should not go forward.

That is also the message I have personally received here in meetings with victims’ families in Westminster. I also note that, while we are focusing on the Bill, we are debating an amendment to a Second Reading. In my three years in your Lordships’ House, I have taken part in many debates—something the Whips often comment upon—but I have never seen this form before, and I think that is a reflection of the general feeling of the House.

I will acknowledge, as have many others, that the Minister has approached this debate in a conciliatory spirit and has clearly expressed his personal position, and I think the House collectively has thanked him for that. But that does not get us away from the fact that the Government are putting before us an unacceptable Bill. That is the view that has been expressed around your Lordships’ House and, indeed, around Northern Ireland.

An amnesty is not the answer. There is no appetite for it in Northern Ireland, from victims, veterans, political parties or former police officers. An amnesty is the negation of criminal and civil liability. Linking the avoidance of prosecution to any truth recovery body or mechanism undermines the credibility of that body.

The problem is not the awkwardness of its title, much as the Independent Commission for Reconciliation and Information Recovery is indeed a terrible mouthful, but, again, speaking as a former journalist, often when you see awkwardness in expression and explanation, that is an indication of underlying problems with the whole approach.

The noble and learned Lord, Lord Judge, says that this is a Bill that allows murderers to get away with murder. I am going to speak personally here, as I am still recovering from and processing in my own mind a visit last week to Ukraine: to Kyiv, Bucha and Irpin. That is where I saw unmistakeable evidence of war crimes and atrocity. To be absolutely clear, I am not making a comparison between the conflicts but I am making a comparison between two societies with a burning desire for justice.

In Ukraine, the international community and the Ukrainians themselves, even in the midst of an attempt to wipe their state off the face of the earth—something we have seen with increased hideousness even today—are making strenuous efforts to document crimes and collect evidence, to ensure that there is a possibility, however distant, for future justice.

The UN assistance mission told me at the weekend that it had reports of 47,700 potential war crimes. That desire for justice—to ensure full legal acknowledgement of what has happened, as the noble Baroness, Lady Ritchie, put it—is a reflection of the impact on ordinary families and people’s lives. That cannot be forgotten, no matter how many years have passed.

I was particularly taken by the words of the noble Baroness, Lady Ritchie, when she was talking about the impact of family loss on a six year-old boy. On the sleeper train back from Kyiv I shared a compartment with a Ukrainian family with a boy of about that age. You could see the impact that the war had had on that child’s life, and that will obviously continue right through his life. That is what we are looking at in the Northern Ireland situation today.

I also bring that in because it is important that we consider that we are operating in an international context, in which the rule of law and human rights are under concerted attack. As the noble Baroness, Lady Ritchie, and many others have said, independent sources have judged the Bill to be in breach of Article 2, “Right to life”, and Article 3, “Prohibition of torture”, of the ECHR.

It is not my place or, I suggest, that of this House to propose alternatives. As the noble Baroness, Lady Smith of Basildon, said, the way forward must have the support and full input of those affected. Moreover, the solution should be co-created with them. It has been said to me in these discussions that, if I am going to oppose this, I have to provide a solution instead. I do not think that is something that your Lordships’ House can do. The noble Lord, Lord Hain, said that the Bill needs to be completely rewritten. I agree with the sentiment, but I propose that this is not something that the Government are in a position to do, particularly now. It needs much broader and more democratic input.

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench 9:06 pm, 23rd November 2022

My Lords, my noble friend Lady O’Loan provided an analysis of the Bill in granular detail. We have heard remarkable speeches from Members of all sides of your Lordships’ House and particularly from Northern Ireland. We have heard from noble Lords, and will hear from others, who have held high office in Northern Ireland. My noble and right reverend friend Lord Eames said that he was glad that some who are not from Northern Ireland spoke in the debate. We just heard from the noble Baroness, Lady Bennett, and before her from the noble Baroness, Lady Lister. Now, I hope the House will listen to a few words from me.

For the best part of two decades, I represented a constituency in the city of Liverpool, which some wags refer to as the other capital of Ireland. Liverpool has a history of sectarianism but, in recent times, it has a different story to tell of reconciliation. My friend the sculptor Stephen Broadbent made a remarkable statue called the “Reconciliation Triangle” and two more, one in Glasgow and one in Belfast. Why did we do that? It was to explain something of the tarnished divisions that had disfigured the stories of our and other people’s cities. It was an attempt to understand one another’s stories and to stand in each other’s shoes.

My interest in British-Irish affairs has its antecedents in my origins, as is the case with thousands of people who live on this side of the Irish Sea. My father was one of five brothers who served in the Armed Forces in the Second World War. One was in the Royal Air Force and was killed. My grandfather served in the First World War, but my mother was from a Gaeltacht, an Irish-speaking area, in the west of Ireland. Irish was her first language. Growing up in family that had to live across the religious divide and across different traditions, I had some experience of the way in which it would take several decades for the old prejudices of the early 1950s to dissipate.

The need for reconciliation was also something I saw throughout my years as a city councillor and as a Member of Parliament for the city of Liverpool, when sectarianism was still part of its politics. It took patience, time and commitment to make progress. Some called it the “Mersey miracle”.

In the 1980s, as Irish affairs spokesman in the House of Commons for the SDP-Liberal Alliance, I worked on the alliance report What Future for Northern Ireland? with the late Baroness Shirley Williams of Crosby and the late Lords, Lord Donaldson of Kingsbridge and Lord Hunt of Llanfair Waterdine—the conqueror of Everest. We travelled together to Northern Ireland in the course of preparing that report. In it, in 1985, we were unanimous in trenchantly advancing the arguments for devolution and power-sharing. That is the issue I most want to talk about in my brief intervention.

In a leading article in 1985, the Irish Times said that the report was

“one of the most important documents published on the Anglo-Irish question in recent years … it shows signs of hard work, rigorous thinking, and a commendable attempt at objective analysis. The report set out in detail how power sharing could work and was forthright in defence of civil rights and the rule of law including the conduct of justice.”

We published that report believing that power-sharing and devolution were the only way we would ensure that the hopes, fears and aspirations of both parts of the community could be met. Short-circuiting devolution and power-sharing by pushing on with yet another Westminster Bill is simply disempowering of devolution. It is emasculating of power-sharing. It is disrespectful of opinion in Northern Ireland and those represented, most especially the victims who should be at the heart of the Bill. I strongly believe that there should be no Committee stage of the Bill until the Assembly in Northern Ireland is restored, and until it has first considered this Bill, providing for the pause that my noble and right reverend friend Lord Eames mentioned in his earlier remarks. Bypassing Northern Ireland does not represent progress: it is retrograde and unwise, and fundamentally diminishes the principle of devolution.

In introducing the Bill today, the noble Lord, Lord Caine, in his candid, measured and very honest remarks said that you cannot force through reconciliation via legislation. But that is exactly what we are in danger of being asked to do. It is why the Commissioner for Victims and Survivors has asked us to reject these proposals. It is not just the use of the word “reconciliation”; even the words “Northern Ireland” are inadequate and insufficient. They do not recognise the nature and extent of what are also euphemistically called “the Troubles” in its title. God knows that, at its worst, the hatred and violence that we have been recalling today disfigured, maimed and caused extraordinary suffering and anguish throughout these islands.

Some 3,720 people were killed as a result of the conflict and 47,541 were injured. There were 36,923 shootings and 16,209 bombings. Who will ever forget Bloody Sunday in 1972 or the Enniskillen Poppy Day massacre in 1987? As the noble Lord, Lord Dodds, rightly reminded us, there are still those who glorify violence and those who perpetrate it. Yes, the Bill is entitled the Northern Ireland Troubles Bill, but the ramifications and consequences of three decades of unspeakable violence have been felt by individuals, families and communities way beyond Northern Ireland.

Noble Lords will recall the deaths, injuries, and millions of pounds’ worth of damage in 1996 at Canary Wharf and in the Manchester shopping precinct, or the Provisional Irish Republican Army’s attempt in 1984 to murder the Prime Minister, Margaret Thatcher, and members of her Cabinet at the Grand Hotel in Brighton. Five were left dead and 31 injured, among them our noble friend Lord Tebbit and his wife Margaret, who was left paralysed from the chest down. I am privileged to share an office with the noble Lord, Lord Kilclooney, who has been here for most of this debate today; of course, an attempt was made on his life, too, in 1972. The noble Lord, Lord Caine, referred to the death of Ian Gow, with whom I served in another place, but in 1979, just 24 hours after I was elected to the House of Commons for that Liverpool division, Airey Neave, the shadow spokesman for Northern Ireland, was murdered here, within these precincts, when a bomb was fixed underneath his car by the INLA.

In my maiden speeches in both Houses, I reflected on the futility and unacceptability of such violence and was able to point to long, and ultimately successful, attempts in Liverpool to lay to rest sectarian ghosts and learn the art of respecting difference. It was why, on taking up my responsibilities as a spokesman, I spent a lot of time with Northern Ireland MPs, whom I enormously admire for their commitment to finding non-violent ways forward. I echo something that the noble Lord, Lord Cormack, said earlier when he referred to his visit to Crossmaglen. It was a place I visited with Seamus Mallon, the SDLP MP for Newry and Armagh, who played such an important part with John Hume and David Trimble in bringing about the Good Friday agreement.

The defining moment for me—and, I suspect, for John Major, when he was Prime Minister—came in February 1993, when we both attended the funeral of the boys murdered in Warrington after the Provisional IRA left bombs in the high street. Fifty-four were injured and a 13 year-old and a 12 year-old boy, Johnathan Ball and Tim Parry, were killed. Out of that tragedy, Tim’s father created a peace initiative to promote greater understanding among all communities affected by conflict and to deepen understanding between Great Britain and Ireland. Out of it also came new initiatives from Sir John Major, on which Tony Blair was able to build after 1997.

Not all of us will be able to find it in our hearts to seek reconciliation, or offer forgiveness like Gordon Wilson did in the aftermath of the murder of his daughter at Enniskillen—or, for that matter, like Her late Majesty did in 2011 when she set aside the 1979 murder of the Duke of Edinburgh’s uncle, Lord Mountbatten, to seek with President Mary McAleese a different context for our future relationships. No Act of Parliament could have legislated for that, and no Act of Parliament will ever be able to legislate for reconciliation or forgiveness.

That is why I believe that issues such as those contained in the Bill should first be debated in Northern Ireland and that its elected representatives should be given the first say in what should happen next. It is simply not good enough for Westminster to emasculate devolution, as it is inclined to do, by taking to itself decisions which were intended to be settled by Stormont. The continuation of that process will destroy devolution, not expedite its restoration. As the noble Baroness, Lady Ritchie of Downpatrick, said, we need to tread with great care and re-engage the institutions of Northern Ireland.

I have just one more thing to add. If this Bill goes further, I think many of us will feel forced to table amendments and, in effect, oppose it. That is not in anybody’s interest at this time. I recall the way in which leaders from both parties in both Houses worked with one another to bring about the Good Friday agreement. This is a moment to stop and to exercise some wisdom, rather than try to rush pell-mell with legislation which, as we have heard today, is resisted by people right across the divide. It might be, as the noble Lord, Lord Bew, said, that this is not something about which the detail is agreed. People are opposed to it. We have to work with the grain. That requires us to endeavour to work with those in Northern Ireland by giving them the first say and to work for the restoration of the institutions there before pressing on with this legislation.

Photo of Lord Anderson of Ipswich Lord Anderson of Ipswich Crossbench 9:17 pm, 23rd November 2022

My Lords, two or three times a year I attend, for reasons unconnected with this Bill, human rights meetings of the Committee of Ministers of the Council of Europe in Strasbourg. The committee’s function is to supervise the execution of judgments of the European Court of Human Rights. Its members are neither lefty lawyers drunk on the elixir of judicial power nor campaigners for human rights—far from it. They are the ambassadors of the member states, representatives of the Governments who routinely have to respond to human rights claims brought against them, either in their domestic courts or in Strasbourg. As potential defendants themselves, each has a strong interest in ensuring that any measures required for compliance are practical—there but for the grace of God go they.

The committee’s workload, brought from 46 countries, is immense, but it has chosen to make this Bill, in the context of the McKerr judgment, one of its very small handful of top priorities. It has been debated anxiously and at length in successive quarterly meetings. This September, the committee urged the Government to amend the Bill, including by—I quote its decision—ensuring that

“the ICRIR is independent and seen to be independent; ensuring that the disclosure provisions unambiguously require full disclosure to be given to the ICRIR; ensuring that the Bill adequately provides for the participation of victims and families, transparency and public scrutiny”.

The committee also urged the Government to reconsider the scheme for immunity and expressed “serious concern” about the arbitrary way in which ongoing inquests are dealt with. It will debate the Bill again next month.

The committee’s decision represents a consensus that Articles 2 and 3 as interpreted by the court require the Bill to be substantially amended in precisely the respects that have been identified by a wide spectrum of opinion, and not only legal opinion, here at home: consultation, independence, disclosure, participation, transparency and immunity.

Those concerns are close to those of the Commission for Victims and Survivors and reflect the principles that have been deployed to such good effect by Operation Kenova. Jon Boutcher’s remarkable work, and its legacy to date of more than 30 cases awaiting the decision of prosecutors, is proof that effective independent investigation can take place in a fully human rights compliant manner.

I invite the attention of noble Lords to the independent review of human rights compliance conducted last year for Kenova by Alyson Kilpatrick, who was my special adviser in Northern Ireland when I served as Independent Reviewer of Terrorism Legislation and is now the chief commissioner of the Northern Ireland Human Rights Commission. Ms Kilpatrick concludes of Kenova:

“without any hesitation, that in so far as Article 2 ECHR compliance is concerned, it is the exemplar of what such an investigation should, and can, be”.

So human rights compliance is attainable, even to the satisfaction of somebody the noble Lord, Lord Hain, rightly described as an exacting judge.

From these Benches, I can only guess at the political pressures the Minister is facing. He was an invaluable guide to me when I first started to visit Northern Ireland, he is engaged with us and he has given an impressive and heartfelt speech today. But this is not a happy time for the protection of human rights in this country. We somehow seem to be sleepwalking into a depressing world in which legal obligations are there not to be simply followed but rather to be taken into account, and in which Downing Street sources can be quoted as saying that the proposed Bill of Rights

“would allow UK courts to ignore European case law more often”— as if departure from the international norms that we have done so much to create and to export across Europe is some sort of badge of honour.

In Northern Ireland, of course, the European convention is central to the political settlement and is understood by all communities in a way that is not always the case in England. If an excessively relaxed attitude to legal requirements cannot be eradicated from our political culture, let us at least ensure that it is excluded from the Bill.

We owe a great debt to the Joint Committee on Human Rights for its constructive work on these issues since the Bill left the Commons. The Constitution Committee has referred approvingly to its concerns. It was good to hear that the Government have sympathy with some of those concerns, though not, on the basis of what we have heard so far, those relating to the most fundamental issues in Part 3 of the Bill. In that connection, I hope the Minister will agree to reconsider the arbitrary distinction drawn between inquests in which a substantive hearing has or has not begun.

The elephant in the room is the issue of immunities for criminal investigation and prosecution for unlawful killings and torture. The McQuillan case is of course relevant to that issue, but not conclusive of it. I believe it is perfectly realistic to suppose that decisions to charge for Troubles-related crimes may be possible in England as well as in Northern Ireland and perhaps elsewhere.

I recall that even the overseas operations Act 2021, which caused your Lordships a good deal of unease and was substantially amended in this House, provided only for a presumption against prosecution, not for immunity. That Act affects the prosecution only of British forces. This Bill, as we have heard, will predominantly affect the holding to account of terrorists for their crimes. There seems to be something not quite right there. The Minister has indicated flexibility, and it sounds as though he may need it.

Let us turn over the stones that the noble and right reverend Lord, Lord Eames, mentioned in his moving speech. The current situation is far from ideal, and the Bill too will not be ideal—but I hope we will end up with something we can live with.

Photo of Lord Browne of Belmont Lord Browne of Belmont DUP 9:23 pm, 23rd November 2022

My Lords, today we have heard from many noble Lords of their personal experiences of the Troubles in Northern Ireland. We have listened to the long list of the atrocities carried out by terrorists, leading to death, injury and suffering of innocent persons. I could add to that list, but the point that victims deserve justice has been well made.

For much of the past 25 years, there has been an erosion of justice when it comes to dealing with the troubled past in Northern Ireland. For many innocent victims of terror in Northern Ireland, there has been a hope of justice, but for many justice has only ever been a repeated word, as this word has not brought results alongside it. Regrettably, this began with a process whereby terrorists were being released from prison. That was followed by comfort letters, which offered no comfort to the victims of terror. Since then, due to the slow pace of this process, many innocent victims of terror have continued to suffer and have asked of many of us the question: when will I see real justice for the murder of a loved one?

Today we are addressing the legacy of more than 30 years of violence, and of 25 years since the drafting of the Belfast/Good Friday agreement. These matters deserve our fullest attention, and they deserve respect and time to consider carefully. I trust that that will be the case when the Bill reaches Committee and Report.

It would be wrong to view the Bill as the answer to the question of how we deal with the legacy of Northern Ireland’s troubled past. Regrettably, the Bill does not provide the answers to these outstanding matters. In my view, the Bill as it stands would in fact do much more harm than good to the fragile and delicate balance that exists in Northern Ireland. Ultimately, since 1998 there has been a failure to address these incredibly sensitive matters, and innocent victims have watched on as there has been an attempted rewriting of history in some very clear and obvious instances, as the noble Lord, Lord Godson, vividly illustrated in his excellent speech.

Many victims’ groups and individual victims continue to express real concerns about large parts of the Bill before us. They are understandably concerned about a process that could offer an amnesty to the victim-makers. A blanket amnesty would further add to their suffering, as it would continue to deny them the justice they seek. Across Northern Ireland, many people realistically accept that there is a limited possibility of a successful prosecution and meaningful jail term for those who carried out atrocities against their loved ones. Many innocent victims accept the harsh and regrettable reality that, 20 or 30 years on, the possibility is only very limited that they will receive justice. However, the Bill as drafted would remove that possibility altogether. There would be no possibility of jail time for bomb-making, murder or attempted murder, nor jail time for maliciously wounding a soldier. I could give examples. Because of the Bill, the limited possibility of justice would evaporate. The Bill is therefore unacceptable to victims.

In addition to the concerns over an amnesty, there is also concern about some other aspects of the Bill. Terrorists and victim-makers would be rewarded regardless of whether they stayed silent or told the truth. Surely, as a bare minimum, prosecution should be the alternative to not fully co-operating.

While every person in this nation should absolutely be equal and equally subject to the law, an opportunity has been missed to make a definitive distinction between the victim-maker and the innocent victims of their actions. For justice, there needs to be a clear definition of a victim. When no such definition exists in legislation, the danger is that we equate direct victims of terror with those who have been injured as a result of their own actions in carrying out acts of terror. Those who would be granted immunity for Troubles-related crimes or those injured by their own hands must not be defined as victims for the purpose of remembering the past. In the Bill as drafted, a blanket amnesty is set above investigations. Perhaps the most important, fundamental point of all in the Bill is that it gives more rights to the people who committed crimes during the Troubles than to the innocent victims of their crimes.

The Bill before the House today is described as a legacy and reconciliation Bill. In the eyes of many victims of terror-related offences in Northern Ireland, reconciliation remains a deeply challenging ask when the prospect of any sort of Troubles-related amnesty looms large. Many victims have said from the outset that they will struggle to support any legislation that falls short of delivering accountability and true justice. Large swathes of the Bill are inconsistent with the desire to pursue justice. If the Bill succeeds, many of those who have openly evaded the authorities for years will seemingly be able to reap the benefits of immunity.

While it is true to say that the passage of time presents obstacles and prosecutorial difficulties, the answer to this problem does not lie in arbitrarily halting routes to justice for innocent victims. Such a system would not be accepted elsewhere in this nation for criminal gang-related offences. A blockage to justice of this nature should not therefore be deemed acceptable in Northern Ireland.

Like others, I wish to see an outcome that deals with the legacy of our troubled past. We all wish for this. I acknowledge and recognise the Government’s desire to move this long and challenging process forward. However, it would be a mistake to rush through or proceed with a Bill that ultimately does more harm than good when it comes to delivering for victims of terror.

To deal with these matters adequately, fairly and proportionately, we need a transparent process in place that commands broad support across the wider community in Northern Ireland. We have not reached this point with the Bill before us. As we have said in respect of many other matters relating to Northern Ireland, agreement has been and should be built on consensus. Where there is no consensus, there cannot be a fair and balanced way forward. It is clear that consensus does not exist on supporting this Bill in its current form. I oppose the Bill as drafted, and I am sure that my noble friends will have much more to say as it proceeds to its next stage. I look forward to listening to the Minister as he winds up this debate.

Photo of Lord Sentamu Lord Sentamu Crossbench 9:31 pm, 23rd November 2022

My Lords, I apologise for not putting my name down to speak. Having listened to the whole debate, I thought it would be good for your Lordships’ House if I gave a very short contribution, inspired by South Africa’s Truth and Reconciliation Commission. The President of South Africa’s address to us yesterday gave me the confidence to contribute briefly to this debate.

First, I congratulate the noble Lord, Lord Caine, on his speech, which graciously tried to reconcile irreconcilable problems. I also congratulate the noble and learned Lord, Lord Judge; the issues he raised and the questions he posed have to be answered. We cannot have a situation in Northern Ireland where those who committed crimes are simply pardoned and not prosecuted. The same situation is not true for England and Wales. Our law would become confused.

I commend the noble Lord, Lord Hain, for his efforts towards achieving the Belfast/Good Friday agreement. The speech of the noble and right reverend Lord, Lord Eames, warmed my heart. If the Minister is wise, he will pause this Bill and ask noble Lords such as these to work out what should come before your Lordships’ House. If not, we may pass this Bill but it will not happen in Northern Ireland.

What did we learn from the Truth and Reconciliation Commission, chaired by Archbishop Desmond Tutu? There had been a few prosecutions of very high-ranking officials from the security forces, including the former Minister of Law and Order, Adriaan Vlok. He was given a suspended sentence following a plea bargain. Many other such cases were not prosecuted. The victims felt that the Government were strengthening impunity and that the beneficiaries of apartheid had escaped accountability for their actions. The Truth and Reconciliation Commission was set up to try to deal with that feeling. Despite the challenges and limitations, the commission’s decision-making processes and hearings attracted global attention. It was the first commission to hold public hearings at which victims and perpetrators were heard. While amnesties were generally considered inconsistent with national law, the South African Truth and Reconciliation Commission provided a basis for showing that conditional amnesties were a useful compromise, particularly if they helped to secure confessions from perpetrators. If they led to a confession, there was a positive; if they did not, they did not.

This was a major departure from the sort of trial there was at Nuremberg. Although it was built on justice, the methodology was very different. It provided the world with another tool in the struggle against impunity and the search for truth and justice. The regret that Archbishop Desmond Tutu had was that it did not have “justice” in its name. It had “truth and reconciliation”; the truth was found and reconciliation was attempted but, in the end, justice was not delivered.

I took part in the Drumcree reconciliations in Northern Ireland. For me, that was a statement of public policy. Could we not enshrine in law what most people are saying we should not do and pause, like we did with the health Bill in this House, and come back with something slightly more wonderful, as the noble Lord said?

Photo of Lord Bruce of Bennachie Lord Bruce of Bennachie Liberal Democrat Lords Spokesperson (Scotland) 9:36 pm, 23rd November 2022

My Lords, it is a privilege to follow the noble and right reverend Lord, Lord Sentamu, with that interesting comparison because everybody has said that the one thing the Bill does not do is promote reconciliation. We certainly need to have a debate about what would promote reconciliation.

I join others in showing appreciation to the Minister for his opening speech. I think we all genuinely appreciated his sincerity. When he said that the Bill is challenging for us and for him, it was pretty obvious that there was a very sincere situation. He has our sympathy, which is perhaps not what he wants, but I believe he will get engagement. What we will get at the end of it is obviously yet to be determined, but it is important to put that mark down.

Another thing that has been said is that the term “Troubles” is euphemistic. It is a terrible understatement for what was a bloody conflict. It convulsed Ireland and Northern Ireland for 30 years and has left, as we now appreciate, a tragic and very complicated legacy. It is also worth saying that while none of us who live on the mainland can possibly appreciate what it did to the communities in Northern Ireland—we have heard so much about that and all appreciate the contributions made—it has left deep scars across the whole of the United Kingdom. This is not just because of the atrocities committed in Great Britain. In so many meetings over many years just as a local MP, I heard the sense of inadequacy, guilt and despair at the conflict and the inability to bring it to an end. I think that affected people right across the UK; we were just so used to news bulletins about another bombing or shooting, and we wanted it to stop.

The Good Friday/Belfast agreement laid down hope for the whole of the UK, as well as the island of Ireland. The question now is: will we be able to celebrate the 25th anniversary of that agreement with a process of reconciliation and a functioning Executive and Assembly? That would attract well-wishers from across the world. Right now it does not look likely and if not that, what?

Reference has been made to the Stormont House agreement. I recognise that the Ulster Unionist Party said that it did not support the agreement but, as the noble Baroness, Lady Smith, said, I hope it did not reject the basic principles: any legacy solution should promote reconciliation and uphold the rule of law; it should acknowledge and address the suffering of victims; it should facilitate the pursuit of justice and be human rights-compliant. That is surely not a point of contention.

The other thing we are all concerned about is the switch in the Government’s position. At the 2017 general election, the Government said:

“We … continue to believe that any approach to the past must be fully consistent with the rule of law … Conservatives in government have consistently said that we will not introduce amnesties or immunities from prosecution.”

That was said by Karen Bradley, the Secretary of State at that time, but we have had an election since and the world has changed. The Minister has been here throughout that and will of course have his own appreciation of that change and development.

I think all of us accept the views of some that the uncertainty over possible prosecutions of service and security personnel causes stress and anxiety—of course it does. But surely that does not justify setting aside human rights issues and the rule of law; it cannot do so. We have to recognise, as the noble Lord, Lord Hain, did, that the security forces did an incredible job, took huge casualties, were brave, saved lives and kept the peace, but some of them clearly did not conform. In fact, it is in the interests of the overwhelming majority who performed absolutely professionally that those who did not should not be given absolution.

It is important to say that this is not simply a domestic issue: it affects our reputation as a nation and an upholder of human rights, as the noble Lord, Lord Browne, said. We uphold human rights and the rule of law, but this has been seriously damaged by the conduct of this increasingly discredited Government who, as the noble Lord, Lord Anderson, said, now think that law should just be taken into account, rather than respected and followed.

I was a member of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe—its political wing, if you like —and I am concerned when I hear debates within certain sections of the Conservative Party calling for Britain to withdraw from the European Convention on Human Rights, alongside Belarus and Russia, the only non-members of that organisation. I am glad that Dominic Raab said that he does not think that useful, but that was not a robust defence of our membership, nevertheless. The idea that we should do that is unconscionable, and a dying Government with no mandate have no right even to consider it.

The problem, which has been mentioned, is that all of this should be happening in a debate among the elected representatives of Northern Ireland, who need to make an honest assessment of the role. We are here because they are not there, and that simply has to stop.

The Minister said that he has had many meetings recently, and I believe him; he probably listened and engaged sincerely and genuinely. But the fact is that the stakeholders are all saying that they have not been properly consulted and certainly have not been listened to, perhaps apart from in their engagement with the Minister. So we have to recognise that the Bill is supported by no one in Northern Ireland. I say to the noble Lord, Lord Bew, that it is not good enough to say that, because they all have different motives, the fact that they are united against it is not valid. For a Government to pursue a Bill that no one in Northern Ireland supports shows total contempt for devolution, as the noble Lord, Lord Alton, said. It is unacceptable.

Photo of Lord Bew Lord Bew Crossbench

I absolutely take the point the noble Lord is making, but some polling suggests that significant groups on both sides of the community do want to draw a line under this dispute, to use that horrible phrase. I am not suggesting that it is a majority, but you cannot deduce from the political parties their hostility. Do not forget what I said about Denis Bradley. The parties are playing a game whereby they apparently offer justice to people, but realistically there is no chance of justice. So you cannot deduce anything from the parties’ positions. Some of the polling is more mediated, and there is the position of the veterans’ groups, which has been referred to.

Photo of Lord Bruce of Bennachie Lord Bruce of Bennachie Liberal Democrat Lords Spokesperson (Scotland)

I do not for a minute dispute that people have different motives for their objections, and they may have motives that I do not like or respect. But it is indisputable that no political party in Northern Ireland supports the Bill, yet the Government say they are determined to legislate against the wishes of all of the elected representatives of Northern Ireland. I repeat: those elected representatives should be sitting in Northern Ireland—

Photo of Lord Hain Lord Hain Labour

More importantly, all of the victims’ groups are opposed to the Bill. It is quite difficult to get them to agree on anything, but they agree in their opposition to the Bill.

Photo of Lord Bruce of Bennachie Lord Bruce of Bennachie Liberal Democrat Lords Spokesperson (Scotland)

I thank the noble Lord for that intervention, which is obviously important —it was my final point. The most important thing of all is that the victims should determine the shape of whatever legislation we come up with. They are the people who need to know and be consulted.

This is a distasteful point to make, but the Bill is being driven by a wing of the Conservative Party that wants to protect service personnel from prosecution, which does not help the victims in any way. I plead with the Minister and I look him straight in the eye, because I believe that he will relate to this. Whatever he comes up with—he says that he wants to amend the Bill substantially, and he will have to—it has to be something that the victims recognise and that addresses their real issues and their desire for hope and justice. He has to reconcile the rule of law, human rights and the needs of victims; that is a huge challenge. I believe that he genuinely wants to try to do it, and he deserves support and help to do so, but clearly, if he cannot, the Bill can go no further.

Photo of Lord Murphy of Torfaen Lord Murphy of Torfaen Labour 9:45 pm, 23rd November 2022

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.”

Photo of Lord Caine Lord Caine Parliamentary Under-Secretary (Northern Ireland Office) 9:53 pm, 23rd November 2022

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

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

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

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

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

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

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

Photo of Lord Judge Lord Judge Convenor of the Crossbench Peers

That is not a justification for embodying it in statute.

Photo of Lord Caine Lord Caine Parliamentary Under-Secretary (Northern Ireland Office)

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

Photo of Baroness O'Loan Baroness O'Loan Crossbench

I want to interject the fact that in the 1970s, a process was adopted which prevented prosecutions—there were to be no prosecutions for murder of any military personnel—and there was a process through which the Royal Military Police produced statements which have now been declared to be totally unacceptable, so there were processes which made it impossible. I ask the Minister again: will he make the money available for the prosecution of the 33 files which Operation Kenova has submitted to the Director of Public Prosecutions? If you have the money, you can prosecute.

Photo of Lord Caine Lord Caine Parliamentary Under-Secretary (Northern Ireland Office)

The noble Baroness has asked me this question a number of times before. The Public Prosecution Service is not funded by the Northern Ireland Office; it is funded by the Executive, and it is a devolved responsibility. It would have to find the money from within its own resources, if resourcing is the only issue here. I have heard from a number of respected figures within Northern Ireland, within the legal system, who would argue that it is not just about resources at all.

I was trying to set out what I think the Government’s position was, because the chances of prosecution in so many cases were so remote, even where people have held out for prosecutions. I have given the example before of Bloody Sunday and the Saville inquiry, which reported in June 2010. The PSNI then very methodically went through the report and investigated the cases again to see whether there were any grounds for the prosecution of soldiers. It took nine years for the current DPP to come to a decision around prosecutions, concluding that prosecution would be justified in one case. As we know, that case subsequently collapsed. I think it has now been re-referred, but it did collapse. One noble Lord mentioned the fact that people are getting older and dying, and this example points to the fact that these processes can take a very long time.

Therefore, the purpose of what the Government are putting forward here is to try to bring forward information and get people to the truths in a much more timely way. The noble Baroness, Lady O’Loan, shakes her head and disagrees, but that is the genuine intention: to try to get more information out there while it is still available. As noble Lords know, the problem with a prosecution if it collapses is that no information is provided to families, and they are literally back at square one. We can have these discussions, but I just wanted to say that that was one of the justifications for this. In order to encourage people to come forward and co-operate, as noble Lords know, the Government originally put forward in the Command Paper a blanket statute of limitations of the kind referred to by my noble friend Lord Cormack, but they then refined the position on the basis that if people were going to be given immunity from prosecution, there should at least be some incentive to earn it. That was the way in which the Government approached this back in 2020.

I have taken on board the very strong feelings expressed this evening. If noble Lords will forgive me, I think I have been fired hundreds of very detailed questions from across the House, which I could not possibly answer, particularly at nearly 10.05 pm. But what I am prepared to do is to sit down with noble Lords, both individually and collectively, before Committee, which I hope will not be rushed. That is certainly not my intention. I think somebody used the phrase “pell-mell” the legislation through the House, but that is not my approach or my intention. I would want to take sufficient time to look at the Bill in detail and give it the scrutiny that it absolutely deserves.

In my speech I tried to respond to some of the concerns that have been expressed already and which were brought out in the debate. I apologise to the noble Baroness, Lady Smith of Basildon, that I was not in a position to flag, if you like, at an earlier stage what these amendments might be. I think the noble Baroness is familiar with government write-round processes, which do not always proceed at pace and are the subject of discussion. I do apologise. In all genuineness, I hope that these amendments, when they are drafted and I bring them forward, will go some way to allaying concerns on the issues that have been raised outside the House and inside the House this evening around ECHR compatibility, independence of the new commission, greater incentives for co-operating with the body, and penalties for misleading, lying and not telling the truth, including revocation of immunity where that has already been granted, and full sentences for those who do not co-operate with the body but are subsequently investigated and convicted.

I also assure the noble Baroness, Lady Smith, that I do not expect those amendments to be the end of the story. There are other amending stages in your Lordships’ House beyond Committee, and, again, I hope we will not rush from Committee to Report and can have a reasoned and genuine discussion and debate between those two stages of the Bill.

While I will look at what further amendments the Government might be able to bring forward, I will genuinely look constructively at those which are put forward by other noble Lords across the House. As I have always said in my engagements within Northern Ireland itself with victims groups and others, I am the least precious person when it comes to amendments and where they come from. If they are sensible and constructive, I will always look at them and give them a fair wind.

As I say, I am very happy to sit down individually and collectively and engage with noble Lords before Committee. I will seek to go through the speeches made in your Lordships’ House this evening and, where detailed questions have been put to me, I will respond in writing, if noble Lords will allow me, rather than detain the House for a great deal longer this evening.

As I said at the outset, it is challenging and difficult, but there is no perfect way of dealing with this. I want to try and genuinely use this House in its proper constitutional way to revise and improve legislation.

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Shadow Leader of the House of Lords, Shadow Spokesperson (Northern Ireland), Shadow Spokesperson (Cabinet Office, Constitutional and Devolved issues) 10:08 pm, 23rd November 2022

My Lords, I thank the Minister. His comments tonight have been very helpful to the House. He has clearly listened to the concerns that have been raised. The most important thing he said is that he does not want to rush the process but wants to take the time to listen, engage and get this right. On that basis, I beg leave to withdraw my amendment.

Amendment to the Motion withdrawn.

Bill read a second time.