Amendment 9

Northern Ireland Troubles (Legacy and Reconciliation) Bill - Report (1st Day) – in the House of Lords at 6:15 pm on 21 June 2023.

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Lord Eames:

Moved by Lord Eames

9: After Clause 2, insert the following new Clause—“ICRIR: immunity consent(1) The ICRIR process must have as its central feature the requirement for a close family member of a deceased person to grant consent prior to the granting of specific immunity for deaths caused by a troubles-related offence, subject to section (Objections to request for immunity)(3).(2) If there is an objection raised to a request for immunity in relation to deaths then the ICRIR may not exercise any powers in section 14, 15 or 16, subject to section (Objections to request for immunity)(3).(3) The Chief Commissioner may still conduct a review under section 9(3) to (6) if they deem it to be proportionate and in the public interest.(4) Nothing in this section affects the operation of section 23.”Member’s explanatory statement This provides for the victim’s consent to be central to the process. In the absence of such consent in regards offences causing death, there can be no immunity (subject to subsection (3) of the new clause in Lord Eames' name after Clause 12). If there is no consent, it is also the case that the ICRIR may not supply information or produce a public report, but nevertheless may still exercise the power in section 23 to refer to prosecutors.

Photo of Lord Eames Lord Eames Crossbench

My Lords, I rise to address Amendment 9, recognising the consequential relationship of Amendments 20, 27, 29, 59, 61, 62 and 69. In Committee, I frequently reminded noble Lords of the centrality of the urgency of victims’ needs. I also referred to my personal experience, over my adult life, of being in close contact with so many victims. No later than this week, knowing this debate was taking place, I have been reminded of this by two families who are not members of any organisation for victimhood, but who quietly and with dignity carry the wounds of their victimhood in the privacy of their own homes.

It is that morass of emotions which prompted me to table this amendment, because back home in Northern Ireland there is almost universal opposition to this Bill. The more you think about it and try to analyse it, you come up with a conclusion that, first, we differ on what reconciliation means; secondly, any attempt through legislation to define reconciliation is going to run into a multitude of difficulties; and, thirdly, the reconciliation in the Bill is, for many of us who have experience of the Troubles, nothing short of hypocrisy. My amendment seeks to recognise the need of victimhood not just to be recognised as a term but to be experienced in the process of reaching what the Bill is set out to aim for: reconciliation with a small R.

When we come to consider the role of the ICRIR, we should recognise that there are limits to what this legislation or any other legislation can define or describe. A lot is going to be left to the way in which this new organisation runs its affairs. The reason the noble Baroness, Lady Hoey, and I are suggesting the incorporation of the terms of Amendment 9 is not to oppose the Bill but to try to make it better, more acceptable. Is how we get to a definition of immunity or how we reach the process of immunity more important than recognising victimhood? Is it more important than recognising that people have their memories, their hurts and their scars? We have said that so often in this House, and we have been reminded tonight by the noble Lord, Lord Murphy, and others of the significance of today as a day of remembrance.

I will be as brief as I can in moving this amendment. Once again, I thank the Minister for his compassion, as well as his listening ability. I ask him to accept that this is not an attempt to derail what he has said already—not least what he has said tonight—but an attempt to make it more acceptable to that vast community which thinks at this moment that what we are talking about has no relevancy to their situation.

I ask again, which is more important in the process of reconciliation: to create a technical process for immunity or to recognise by involvement the needs of suffering people who are carrying in their hearts and minds the scars of our Troubles? In my opinion and, I think, that of many of my colleagues who, like me, have given so much of their lives to this process, it has to be stated for the record that the immunity process has to climb over the reality of victimhood. Until it does so, it will be very unsatisfactory as an attempt at reconciliation. I beg to move Amendment 9.

Photo of Baroness Hoey Baroness Hoey Non-affiliated 6:30, 21 June 2023

My Lords, as a signatory to Amendment 9 in the name of the noble and right reverend Lord, Lord Eames, and the amendments that follow from it, I support it very strongly. Realistically, we know that the Government are going to push the Bill through, so rather than trying to wreck it completely, it is important that we try to make it as good as it can be.

Fundamentally, Amendment 9 seeks to make what is imperfect legislation that little bit less imperfect. It would do so by at least making the immunity process absolutely victim centred. To put it simply, save for exceptional circumstances which we have set out in the amendment—such as a disagreement among family members as to whether to consent—the core principle will be that an immunity certificate cannot be granted unless there is the consent of a victim.

We have built in a provision whereby if a close family member requests a review, that is taken as consent. Once consent is given, a perpetrator—within the scope set out in the Bill—can obtain immunity, the family can obtain information and the chief commissioner can publish a report of his findings. But crucially, if there is no family consent, none of those things can happen. The chief commissioner may still conduct a review if a referral is made by one of the specified statutory bodies, but he may not grant immunity, provide information to families or publish a report if there is no consent. That means that the wishes of victims’ families are central to the process.

We would prefer that the Bill in this format was not here at all—but it is. These amendments seek to make the best of a bad situation and at least give victims, in all but exceptional cases, a veto over perpetrator immunity.

It should be noted—I raise it now because it is central to the whole issue of outcomes for victims—that if you look at paragraph 5(1) of Schedule 11, it appears that Section 4 of the Northern Ireland (Sentences) Act 1998 is being amended to, in effect, reduce the tariff to zero or at the most one day. At the moment, it works out as a two-year sentence for anyone convicted of a pre-1998 offence. On the face of it, this seems to mean that even if one were to be convicted of an offence on referral to the DPP by the chief commissioner, there would be a term of imprisonment of, in effect, one day maximum. That may not be called an amnesty, but it is a de facto amnesty. I am very sad about that and regret it. It is wrong. It was wrong in 1998, it is wrong now and it will be for ever wrong.

If the Government are determined to force the Bill through, at least our amendment would put victims at the centre of an imperfect process. I ask a simple question: how could anyone reasonably object to elevating the interests of victims over those of perpetrators?

Photo of Lord Dodds of Duncairn Lord Dodds of Duncairn DUP

My Lords, first, I join with other noble Lords who have thanked the Minister for his engagement in relation to both the amendments he has tabled on Report and the amendments we considered in Committee and have brought forward again on Report. I think it has been a genuine engagement. I am pleased that the Minister has listened to some extent and that there have been improvements as a result of the discussions that have taken place, and indeed following amendments tabled in the other place which the Government responded to.

In paying tribute to the Minister, we should also pay tribute, as others have, to the innocent victims of terrorism, murder and mayhem in Northern Ireland over many years. We should pay tribute to their enormous tenacity and fortitude in the face of what has been happening in recent days in Northern Ireland, with the continuing eulogy and glorification of murderers and criminals by elected representatives, including those who purport to be the First Minister “for all”.

In relation to the Bill being brought back, given the pause and the length of time that has passed, and the universal opposition to it, some had hoped that this would be one area where the Government might actually listen to all the parties in Northern Ireland, but that does not appear to be the case. The Minister and your Lordships will be aware that on 19 June, the leader of the Democratic Unionist Party, Sir Jeffrey Donaldson, and others wrote to the Prime Minister asking, even at this stage, for the proposals to be withdrawn. The letter restated our fundamental opposition to an amnesty—which is what the Bill in effect creates—paid tribute to the victims and recognised that while we and other noble Lords have tabled amendments, that should not be misconstrued in any shape or form as providing tacit consent to this regime, which undermines confidence in the rule of law and has done so much harm to victims.

I will speak to the amendments in my name and those of my noble friends, but I say initially that I have a lot of sympathy with Amendment 9, moved by the noble and right reverend Lord, Lord Eames, on putting the victims at the centre of this immunity process if we are to have it. It talks about those cases that involve death; I would prefer it to cover all cases. Having said that, I think it is worthy of support, and I hope the Government will consider it.

The noble and right reverend Lord, Lord Eames, talked about hypocrisy in relation to mentioning reconciliation, yet we have the Bill before us. That was a very powerful but correct description, and I often hear that word mentioned by victims in relation to the approach taken in the Bill by the Government.

Amendment 59A, standing in my name and in the names of my noble friends, would require the commissioner for investigations to refer a file to the PPS when an individual is found to have provided false statements to the ICRIR. At present there is no explicit provision in the Bill to require the ICRIR to provide material evidence of false statements to the prosecutor in aid of proceedings. I would be grateful if, when the Minister responds, he can address that point and reassure your Lordships that this is not some kind of loophole that can be exploited but that, in the absence of this amendment, there will be no gap and that we will ensure that there is a joined-up approach to pursuing convictions.

Amendment 61A would require an individual to be disengaged from activity which would be reasonably regarded as precluding reconciliation in order to be eligible for immunity from prosecution, Although the concept of immunity is in our view irredeemable, a further problem is that the Bill as drafted places no impediment to a perpetrator gaining the protection of immunity and then going on to publicise, promote or commemorate—the favourite word now used by terrorist apologists—his or her deeds in such a way that harms victims and generally offends the cause of peace and reconciliation. The Government have brought forward new proposals allowing immunity to be revoked in instances of glorification of terror, and I welcome that. However, I think it could go further in capturing activities that do not necessarily constitute offending but which will cause deep harm to victims, survivors and their families. Our Amendment 86A follows on by requiring the permanent revocation of immunity of individuals engaged in the sort of activity that I have outlined.

It should not be acceptable in general terms that political representatives of the IRA and Sinn Féin, including the potential First Minister or anyone else, and especially people who have taken advantage of this system, should go around the country, not doing enough to fall foul of the “glorification of terrorism” legislation but doing enormous harm psychologically to victims and their families by their continuing commemoration, eulogising and glorification of the perpetrators of some of the most heinous criminal and obscene acts that we have seen anywhere over the last 30 years. The purpose of these amendments is to address that point and to urge that the Government do something about it. It is not only causing trauma to victims and retraumatising their families but is toxifying the political atmosphere in Northern Ireland as people try to get the Assembly up and running again.

Amendment 61C is designed to prevent the grant of immunity to any person subject to active proceedings who has moved abroad to escape prosecution. We discussed this in Committee and we have discussed it with the Minister in detail, and I understand the position. However, the way the Bill is currently worded, this could have the effect of encouraging offenders to return to Northern Ireland to live out their final days there in close proximity to those they terrorised, having taken advantage of fleeing the jurisdiction for many years. We think that that will cause further problems for victims.

Amendment 89A is an amendment to the Government’s Amendment 89. It is intended to probe the omission of offences under Section 13 of the Terrorism Act 2000 from the proposed new clause on “Subsequent convictions: revocation of immunity” in the amendment in the name of the noble Lord, Lord Caine. The Government’s proposed new clause on revocation of immunity for subsequent convictions is based on Schedule 1A of the Counter-Terrorism Act 2008, which helpfully covers offences in Section 1 of the Terrorism Act 2006—which was the focus of our proposed offence in Committee—and Sections 11 and 12 of the Terrorism Act 2000. Although this is a step forward, the Government’s proposal does not cover Section 13 of the 2000 Act, which prohibits the wearing or display of items of clothing which explicitly or implicitly arouse the suspicion of support or membership of a proscribed organisation.

In recent days and over the last number of years we have seen these kinds of displays happening on the streets of Northern Ireland. Therefore, this could allow a loophole for perpetrators who have gained immunity to go about at these kinds of events without facing any prospect of criminal enforcement. There needs to be a recourse to revocation of immunity for the full range of activities that constitute glorification of terrorism. It is wrong that, having adopted the rest of it, the Government have omitted the part that talks about the display and wearing of paramilitary garb, and so on. That happens very frequently. Indeed, there was an example the other day of a convicted murderer who was released from prison early on medical grounds because he had only a short time to live. Many years later, that terrorist carried the coffin of one of his IRA volunteers through the streets of Belfast. So I have to say that these are real, practical problems and this causes immense damage and hurt to victims. Indeed, right across the spectrum of people in Northern Ireland, people are appalled at this kind of behaviour, yet it is allowed to happen.

Indeed, it happens with the encouragement, again, of leading politicians who claim that they want to be First Minister for all. How can you be a First Minister for all when you are out eulogising and praising murder and criminal activity? Imagine if the Prime Minister of any civilised country anywhere in the world was running around, being present at and organising eulogies and commemorations of criminals and murderers. It really does not bear thinking about, but that is the reality of what we face.

In conclusion, Amendment 93A would allow the offences for which immunity has been granted to be taken into account in sentencing for post-Troubles offences. The public rightly expect that sentencing should take into account whether an offence is a first offence and, if it is not, the severity of any sentence or penalty should reflect that. We believe that if somebody is convicted of a future offence and they have received immunity, whatever the crime was that they got immunity from being prosecuted for should be taken into account. The way the Bill currently stands, that would not be the case.

Finally, we regard Amendment 98A as very important, as it would treat a public prosecution as having begun when the file is passed to the PPS in Northern Ireland. The Kenova case has been mentioned. That is an example of an enormous amount of work that has gone into the pursuit and investigation of very serious issues in Northern Ireland. The files have been passed to the PPS and there they have sat for an inordinately long time—I cannot remember precisely how long off the top of my head, but it is a number of years. There is still no sign of that case emerging from that office, yet under the proposals in the Bill, as of 1 May next year, that would come to a complete halt, with no prospect of any criminal prosecution. That work should not be nugatory or conclude in that fashion. We believe it is important that this amendment is taken on board so at least that case and others where the file has been passed should continue. That would obviously be welcomed by those involved in that investigation but also by the families of the victims and many across the board of Northern Ireland.

I hope the Minister will take on board some of the amendments we have tabled. I look forward to his response.

Photo of Baroness Ritchie of Downpatrick Baroness Ritchie of Downpatrick Non-affiliated 6:45, 21 June 2023

My Lords, we are now on one of the main debates in this Bill: the issue of amnesty and immunity. As the noble Lord, Lord Dodds, and the noble and right reverend Lord, Lord Eames, said, this issue goes to the heart of the legislation, but it also drives a dagger through victims in Northern Ireland—people who have endured immeasurable suffering because of the loss of their loved ones in unexplained circumstances, because many of them have not been told how or why that loss happened, or the nature of the wounds inflicted on them. Those who are victims suffer many wounds in later life that can never be measured in terms of compensation or monetarily but can be measured only in terms of loss of family lives and family time, because they have lost their loved ones. We all know many of those people, whose lives have been totally turned around by the actions of paramilitaries and—we cannot deny it—of state forces.

However, this issue of immunity strikes at the heart of everybody. As the noble and right reverend Lord, Lord Eames, said, there is universal opposition to this Bill and this particular part of it on immunity, and the clauses dealing with the withdrawal of access to inquiries and investigations. That is very much a denial of basic human rights in any normal democracy.

In the unavoidable absence of my noble friend Lord Hain, I will speak to Amendment 63, which is in his name and those of the noble Baroness, Lady O’Loan, the noble Lord, Lord Blair of Boughton, and my noble friend Lord Murphy of Torfaen. As the Bill stands with the Government’s amendments, there are only two circumstances in which immunity for some of the most heinous crimes imaginable can be revoked: if there is a conviction for misleading the ICRIR or for a subsequent terrorist offence. This is not good enough. Amendment 63 sets out other circumstances which would put in place at least some accountability measures as to the future conduct of perpetrators.

Are the Government seriously saying that, as far as they are concerned, someone who has confessed to a sectarian murder, for example, is perfectly free to harass that person’s family, laugh at their grief, celebrate their loss and still retain their immunity? Are they saying that they should still retain their immunity if they are a threat to the public? Where in this legislation is there any element of accountability for perpetrators? They do not even have to express remorse or regret for their actions. Presumably, they could appear before the ICRIR, describe what they have done to the best of their knowledge and belief, say, “By the way, I would do it all over again”, and still walk away with lifelong immunity in their pocket. As far as the world at large is concerned, they will not have a stain on their character, but we will never forget, nor will those who were the victims. They will carry the cross of the loss of their loved ones, in the most heinous circumstances, to their graves.

If we let this element of the legislation go through as the Government currently propose, we will be telling victims and survivors that we care more about the perpetrators than we do about them. I cannot believe that that is the message this House wants to send. The clauses regarding conditional immunity and those dealing with the eradication of inquests and investigations undoubtedly go to the very heart of this legacy debate. To impose conditional immunity and remove access to inquests and inquiries is a denial of basic civil liberties.

It is worth noting the following from the Council of Europe’s Commissioner for Human Rights, Dunja Mijatović, who spoke yesterday on immunity. She said:

“Despite this, the UK government has decided to go ahead with the Bill in a way that does not recognise Northern Ireland’s violent past or honours the suffering of victims. While the government has recently published amendments, these leave the fundamental problems with the Bill intact, such as the conditional immunity scheme that would result in impunity for serious human rights violations”.

She went on to talk about the cutting off of

“avenues to justice for victims”, and questioned the ability of the ICRIR

“to deliver outcomes that would meet human rights standards”.

I would like the Minister to comment on the commissioner’s words and the actions the Government will take on foot of that.

It is noteworthy that victims organisations throughout Northern Ireland, such as Amnesty, the CAJ and the Human Rights Commission, have asserted in their submissions that the government amendments are not compliant with the provisions required by the ECHR—a point denied by the Secretary of State yesterday.

I am told that the Secretary of State relies on the amnesty provisions in the weapons Act as a basis for the amnesty in this Bill. When he was Secretary of State, Sir Patrick Mayhew, later Lord Mayhew—a former colleague of the Minister—said on the then Northern Ireland Arms Decommissioning Bill that that amnesty was “tightly defined”, and

“available only to those who adhere to the strict terms of a decommissioning scheme, and only for offences that they technically commit in respect of anything done in accordance with such a scheme”— mainly offences of a possessory nature. He continued by saying that these provisions

“in no sense constitute some form of general amnesty covering other offences: the security forces will go on with undiminished resolution pursuing and bringing to justice those responsible for other crimes”.—[Official Report, Commons, 9/12/1996; col. 24.]

How does that square with this information and this clause on immunity? Maybe the Minister could comment on that in the light of the Government’s current Bill.

For all these reasons, I support the amendments in the names of my noble friends Lord Hain and Lord Murphy. If my noble friend Lord Murphy pushes Amendment 66 to a vote on Monday, I will support him in the Division.

Photo of Baroness O'Loan Baroness O'Loan Crossbench 7:00, 21 June 2023

My Lords, I must apologise to the House. I omitted to declare my interest as a member of the Operation Kenova steering group when I spoke on it previously.

The amendments in this group cover a massive range of issues affecting the proposed immunity provisions, which are contrary to the UK’s obligations under the Human Rights Act 1998 and the European Convention on Human Rights and are not consistent with the Government’s obligations under the Good Friday agreement. They will provide immunity from prosecution for murder, torture and other terrible crimes that have left people dead or with life-changing, life-limiting injuries. The only crimes for which immunity will not be possible are sexual ones.

Northern Ireland has not previously had immunity from prosecution. What we had were prosecutions that, on conviction, resulted in a maximum two-year sentence. We also had law that said that certain evidence was not admissible in a case. So, where information led to the recovery of one of those whom the IRA disappeared, that information could not be used for the purpose of prosecution. Similarly, when guns were brought in for decommissioning, they and any information attached to them could not be used as evidence. However, that did not confer immunity on an individual; it was still possible for them to be prosecuted for the crimes they had committed.

Those laws on the disappeared and decommissioning, and even the sentences Act, resulted from the Good Friday agreement and were not in breach of our convention obligations. However, these immunity provisions are different. The extent of the problem was made clear yesterday by the Northern Ireland Human Rights Commission, which is made up of advisers to the Northern Ireland Government. It said that,

“even with the UK Government’s additional amendments … fundamentally, the Northern Ireland Troubles (Legacy and Reconciliation) Bill is not compliant with the European Convention on Human Rights … the Belfast (Good Friday) Agreement 1998 requires the UK Government to incorporate the ECHR into Northern Ireland law and to do so to provide people with ‘direct access to the courts, and remedies for breach of the Convention’ … Therefore, our previous advice stands that closing off any pursuit of justice outside of the ICRIR is incompatible with human rights and the Belfast (Good Friday) Agreement”.

I would like to the Minister to explain to me, if he can, how people will have direct access to the courts and remedies for breaches of the convention under this Bill.

Even with the Government’s amendments—more than 120 of them—this legacy Bill will not provide something that is compliant. It will prevent direct access to the courts and to remedies. The Government’s 25 amendments to their immunity scheme do not, even in their totality, make the scheme compliant with convention rights. Such things as the revocation of immunity in particular circumstances do not change those facts. Amendment 63 in the names of the noble Lord, Lord Hain, and others would require that, to get immunity, a person would have to comply with the ICRIR’s requirements to provide fingerprints and “non-intimate samples”. It would also mean that a grant of immunity could be revoked in the event that a person commits a Terrorism Act offence, is a danger to the public or, to echo the comments of the noble Lord, Lord Dodds, attempts to make a profit from their criminality.

As the noble Baroness, Lady Ritchie, said, the Council of Europe’s Commissioner for Human Rights issued the following statement yesterday:

“I have repeatedly warned that the Northern Ireland Troubles (Legacy and Reconciliation) Bill would undermine the human rights of victims, as well as truth seeking, reconciliation and justice efforts. Serious concerns have also been expressed by the Council of Europe’s Committee of Ministers, the Parliamentary Assembly of the Council of Europe, the UN High Commissioner for Human Rights, UN Special Rapporteurs, national human rights institutions, parliamentary committees”— of this Parliament, indeed—

“and civil society organisations, including victims’ groups. Despite this, the UK government has decided to go ahead with the Bill in a way that does not recognise Northern Ireland’s violent past or honours the suffering of victims. While the government has recently published amendments, these leave the fundamental problems with the Bill intact, such as the conditional immunity scheme that would result in impunity for serious human rights violations, the unilateral shutting down of avenues to justice for victims, and questions about the ability of the Independent Commission for Information Recovery to deliver outcomes that would meet human rights standards”.

It is clear that, even with the Government’s amendments, this Bill is not compliant with our international obligations. As has been said, it continues to be the case that nobody in Northern Ireland or elsewhere—apart from the Government, it seems—thinks that the Government’s amendments will fix the Bill.

As the Northern Ireland Human Rights Commission has said, the fundamental issue is that the ICRIR’s conditional immunity scheme is not, at its core, compliant with human rights. The noble Lord, Lord Dodds, has proposed Amendment 98A in this group. He said that it would be welcomed by those who have seen investigations completed and files just sitting there, waiting to be dealt with by the prosecutor of the Public Prosecution Service for Northern Ireland. The Kenova files have been waiting for up to four years. They include the Stakeknife files and the file that dealt with the terrible murders of three young constables on the Kinnego Embankment in Lurgan. All that will be lost. It will simply cease to operate unless the amendment in the name of the noble Lord, Lord Dodds, is accepted. I urge colleagues to think very seriously about the terrible injustice that would be done if we did not get that amendment through.

Despite all the amendments, the conditional immunity scheme remains in breach of our obligations. As we look at conditional immunity for murder, it must be more questionable—indeed, offensive—that immunity from prosecution will not be available for sexual offences but will be for the most heinous murders and tortures carried out by people like those who abducted and murdered Jean McConville, a mother of 10, in 1972; like those who planted the Enniskillen bomb; and like those who murdered people watching a football match in Loughinisland, as well as for all the other atrocities. Why? To know that your loved one was savagely murdered—even to witness it, as some did—is surely as egregious and terrible as any sexual offence.

Nobody in Northern Ireland wants these provisions. I urge noble Lords to support the amendments that seek to remove them, in particular Amendment 66 in the name of the noble Lord, Lord Murphy, to which I and the noble Baronesses, Lady Suttie and Lady Ritchie, have added our names.

Photo of Lord Blair of Boughton Lord Blair of Boughton Crossbench

My Lords, I will not detain the House much on this issue and Amendment 63, to which my name is attached, because I am really here to talk about Amendment 31, the Kenova amendment, which we will come to later on. I just want to remind noble Lords of the shocking effects of letters of comfort. We are about to repeat that same mistake if we continue with this process and do not do something to get Amendment 63 through the House on Monday.

Photo of Lord Morrow Lord Morrow DUP

My Lords, I will speak to Amendment 61A, tabled by me and my noble friends Lord Dodds and Lord Weir. My noble friend Lord Dodds has already spoken very eloquently on this, but I will add some comments.

Amendment 61A would require

“an individual to be disengaged from activity which would be reasonably regarded as precluding reconciliation in order to be eligible for immunity from prosecution”.

Earlier, I tried to push the Minister a little on this, because although reconciliation is laced through the Bill, its definition is anything but clear. I still feel strongly that the definition should be in the Bill. However, we are where we are.

Admittedly, the Government have brought forward new proposals allowing immunity to be revoked in incidents involving glorification of terror, as my noble friend Lord Dodds said. It is very disturbing when one watches our television screens or reads a newspaper to see leading, prominent politicians elegising the past—murder—and commemorating those who were intercepted by the security forces while carrying out murder, or who were blown up by their own bomb. In an age of reconciliation, how can this continue? Yet those same people tell us that they will be a First Minister for everybody.

That is the strangest way of setting out. If that is their idea of reconciliation, then I no longer understand plain English. Surely it is time for the Government to take a long hard look at this situation. As has already been said by others, this is not good legislation. It is bad legislation, and it has no support back in Northern Ireland from anyone who has spoken publicly about it. I have not read of support for this legislation, yet the Government are intent on pushing on and pushing it through. Those of us who have these great concerns are therefore making an honest attempt to make this less bad. That might not be good grammar, but it is the best way that I can say it.

We want the Government to stop and think. Admittedly, they brought forward new proposals allowing immunity to be revoked for the glorification of terror, but this does not go far enough in capturing activities that do not necessarily constitute offending, but which will cause deep harm to victims, survivors and their families. If this Bill is about reconciliation, it must take into account the hurt caused not only 30 years ago but right up to recent times. Some tell us that we have every right to remember our dead, and maybe that is true, but we have absolutely no moral right to glorify those who carried out these evil deeds of terror. “Reconciliation” is in the title of the Bill, but that seems to be as far as the Government are willing to go.

The ICRIR will be statutorily required to oversee an amnesty process which runs contrary to reconciliation and which is opposed almost unilaterally by victims. Any sense that the ICRIR can deliver on its primary objective is diminished from the word go. It should be made clear in Clause 18 that one condition for immunity, applied not just at the point of application but thereafter, is that an individual is not engaged in activity which can reasonably be regarded as precluding reconciliation by glorifying terror and violence, eroding support for the rule of the law or traumatising victims yet again.

Amendment 86A would insert a new clause that

“requires the permanent revocation of immunity granted under the Bill in the event that the immunity requests panel or the Secretary of State is satisfied that an individual has engaged in activity that precludes reconciliation”.

Where an individual benefiting from immunity engages in activity that is deemed to preclude reconciliation, for this or other crimes, there must be operable provisions to ensure that immunity is revoked. This, presumably, would place the burden on a victim’s family or a member of the public, rather than making it a positive obligation on the ICRIR—or in its absence, the Secretary of State—to act swiftly based on evidence received and revoke immunity.

Amendment 93A would

“allow the offences for which immunity has been granted to be taken into account in sentencing for post-Troubles offences”.

It is accepted that when a court is sentencing an individual, it can have recourse to consider all relevant offending and conduct by that individual, including in the past. A lack of rehabilitation or character reform would often lead to greater tariffs. That principle must be embedded here too.

Amendment 89A

“is intended to probe the omission of offences under section 13 of the Terrorism Act 2000 … from the proposed new Clause on Subsequent convictions: revocation of immunity in Lord Caine’s name”.

The Government’s new clause on revocation of immunity for subsequent convictions is based on Schedule 1A to the Counter-Terrorism Act 2008. The schedule helpfully covers offences in Section 1 of the Terrorism Act 2006, on “Encouragement of Terrorism”, which was the focus of our proposed offence in Committee, and in Sections 11 and 12 of the Terrorism Act 2000, on membership and support for proscribed groups or organisations.

There needs to be recourse to revocation of immunity for the full range of activities that constitute the glorification of terrorism. It is wrong that, while someone in receipt of immunity would be banned from addressing an event that encourages support for a proscribed group under the Government’s amendment, in theory they could lawfully attend such an event wearing terrorist regalia. The noble Baroness, Lady O’Loan, made the point strongly about this amendment and glorification. I urge the House to support it; it would be a big miss if the House does not.

Amendment 114A

“is intended to ensure that designated persons responsible for making recommendations about the initiation and carrying out of relevant memorialisation activities are under a duty to prevent the glorification of Troubles-related offences”.

Clause 48 tells us that designated persons carrying out the Troubles-related work programme

“must have regard to the need to ensure that— (a) there is support from different communities in Northern Ireland for the way in which that programme is carried out, and (b) a variety of views of the Troubles is taken into account in carrying out that programme”.

Photo of Lord Browne of Ladyton Lord Browne of Ladyton Labour 7:15, 21 June 2023

My Lords, I will speak to Amendments 71, 72, 73 and 74 in my name, which are amendments to Amendment 70, tabled by the Minister, who has continued diligently to engage with all shades of opinion in your Lordships’ House. Like other noble Lords, I thank him for that.

For the reasons given, I support the amendments in the name of my noble friends Lord Hain and Lord Murphy of Torfaen. At this stage, I feel no need to go over those reasons again. In proposing these amendments, I am conscious that, when juxtaposed with the larger issue of immunity itself, they are confessedly procedural and administrative in their scope. But they do seek to do something in the province of responsible legislation: they anticipate that which can be anticipated, minimise the effect of contingency and, in this particular case, ensure that, if the chief commissioner is unable to consider requests for immunity—whether for reasons of misadventure or owing to a potential or perceived conflict of interest, or for any number of reasons—there is a person empowered to do so. To some extent, this has been anticipated by Amendment 70 in the name of the Minister.

While the government amendment is welcome, the amendments I have tabled seek to do three specific things. Amendments 71, 72 and 73 mandate the appointment of a deputy for the chief commissioner. This deputy would be appointed by the Chief Commissioner immediately upon their own appointment and would be empowered to exercise some or all of the immunity functions if the chief commissioner were absent or otherwise unable to do so. I believe that the mandatory appointment of such a deputy would better ensure a consistency of approach, strengthen institutional memory in respect of such decisions and place a further brick in the wall dividing the Secretary of State—mindful as I am of new subsection (7B) in Amendment 70—from the fraught question of immunity.

Where Amendment 70 seeks to engage that eventuality by recourse first to a rapid nomination by the chief commissioner and, if that is not possible, through an ad hoc appointment by the Secretary of State, my amendments would see such a person already in place. This person would be fully briefed on these issues and placed in their position by the chief commissioner at the start of their term.

Given that new subsection (7C) in Amendment 70 quite rightly mandates that a stand-in for the chief commissioner must have held high judicial office, it is evident that one of the qualities such a person must possess is impartiality. Surely, being appointed by the Commissioner rather than by an active politician in the shape of the Secretary of State would strengthen claims to judicial objectivity rather than the reverse. Moreover, having a named deputy in place from the beginning of the chief commissioner’s term will provide confidence that, where decisions must be made in his absence, they will conform with the standards set by the chief commissioner and follow the tramlines of decision-making in a manner that is consistent across all cases. I beg to move.

Photo of Viscount Brookeborough Viscount Brookeborough Crossbench

My Lords, I have listened to everything. I have not bothered to intervene because I basically agree that this is not a great Bill and that all we can hope to do is make it less damaging to what is happening in Northern Ireland.

The one thing that strikes me is that reconciliation is on the face of the Bill. I have been struggling with that and with the definition of “reconciliation”. I decided to look it up on my phone. It is on the face of the Bill: therefore, it is the number one objective of the Bill. If we had reconciliation, we would not be worried about the other things. “Reconciliation” is defined as

“the restoration of friendly relations” and

“the action of making one view or belief compatible with another”.

The definition goes on to say

“an act of reconciling, as when former enemies agree to an amicable truce”.

The problem is that we know that there is not an amicable truce. We know from the glorification of terrorism and lots of other parts of what we have been discussing that that is not there. Yet it is on the face of the Bill as being the number one objective.

What troubles so many of us in Northern Ireland, whether our families have directly suffered a death, or for all the people we k now who have suffered and their families—one family has been mentioned; three of my soldiers were killed, one after the other, and a sister was mown down on a checkpoint for serving in the security forces—is that the people in Northern Ireland see the Bill coming and would love to have reconciliation but the Government are not giving one little inch to assuaging their lives and their fears. I know that there have been amendments, and everybody is very grateful for that, but, if people are to accept this and if it is to work, there has to be something significant, so they actually feel that it was made for them.

All I plead is this: we really hope that the Government accept some of these amendments, which will enable people to say “Yes, but they have done this and they have worked towards us, and we want to make it work”. We know that at the moment virtually nobody in Northern Ireland is saying that.

Photo of Lord McCrea of Magherafelt and Cookstown Lord McCrea of Magherafelt and Cookstown DUP

My Lords, Amendment 61A stands in the name of my noble friends Lord Dodds, Lord Weir and Lord Morrow. The explanatory statement says:

“This amendment would require an individual to be disengaged from activity which would be reasonably regarded as precluding reconciliation in order to be eligible for immunity from prosecution”.

There is another amendment in the name of my noble friends that is in a similar vein.

I draw attention to something that my noble friend Lord Dodds has already mentioned. There is a question in my mind concerning the legislation as it stands. My noble friend mentioned the late Joe Clarke, one of the hooded men who received an apology on his deathbed from the chief constable of the PSNI over his treatment while he was interned in 1971. He was one of 14 men who claimed that they were subjected to state-sanctioned torture. They all claim innocence. However, at his funeral the other day, Mr Clarke was buried with what appeared to be full so-called IRA military honours: his coffin was draped in the tricolour and he was escorted by men and women in some sort of uniform—white gloves, black ties and white shirts. I believe that this is reserved for members of the IRA, particularly those who have carried out what is known as IRA active service—and we know what that really means.

To deepen the plot, one of those carrying Clarke’s coffin in that military-style uniform was none other than a man who had been arrested and imprisoned over the murder of two soldiers at the Massereene barracks in Antrim during the time when I was the local Member of Parliament for that constituency. That person and his doctors told the court that he had only three to four years to live at most. Strangely, 14 years later, he is the picture of health, miraculously cured and carrying an IRA man’s coffin. Actually, that person is a neighbour of mine. I ask the Minister this: would the likes of Mr Shivers receive immunity or an amnesty under the present legislation as it stands, without the amendments suggested by my noble friends Lord Dodds, Lord Weir and Lord Morrow?

Photo of Baroness Suttie Baroness Suttie Liberal Democrat Lords Spokesperson (Northern Ireland)

My Lords, the sheer number and scope of amendments in this group should serve as a clear indication to the Government that there continue to be grave concerns about the proposals for immunity set out in Clause 18. I have added my name on behalf of these Benches to Amendment 66, tabled by the noble Lord, Lord Murphy, and also signed by the noble Baronesses, Lady O’Loan and Lady Ritchie, which would remove Clause 18.

Although there are important amendments in this group, including Amendment 9 tabled by the noble and right reverend Lord, Lord Eames, and the noble Baroness, Lady Hoey, and we have heard some very powerful speeches in their favour, these Benches would prefer to see Clause 18 removed altogether. Indeed, I remain unconvinced that it is possible to amend Clause 18. I think it would be better to remove it and start again.

A great many points have already been made by noble Lords which I will not repeat, but I will summarise our concerns on three points. The first point is devolution. I strongly believe in devolution, and even given that, very sadly, there remains no functioning Assembly or Executive in Northern Ireland, I have to ask the Minister whether it is ever right to push ahead with something so strongly opposed by all political parties in Northern Ireland. The noble Lord, Lord Dodds, who is not in his place, made a very powerful speech in that regard.

The second point, which has been raised by lots of noble Lords, is human rights and compliance with Article 2 and the right to justice. It is of great concern that the proposals in Clause 18 continue to be so strongly opposed by so many key human rights organisations at NI, UK and international level.

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

Photo of Lord Murphy of Torfaen Lord Murphy of Torfaen Labour 7:30, 21 June 2023

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

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

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

It is as clear and simple as that.

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

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

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

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

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

Photo of Lord Caine Lord Caine Parliamentary Under-Secretary (Northern Ireland Office), Lord in Waiting (HM Household) (Whip)

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

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

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

Photo of Lord Murphy of Torfaen Lord Murphy of Torfaen Labour

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

Photo of Lord Caine Lord Caine Parliamentary Under-Secretary (Northern Ireland Office), Lord in Waiting (HM Household) (Whip)

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

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

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

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

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

Photo of Baroness O'Loan Baroness O'Loan Crossbench

Could the Minister explain to us how they are compatible?

Photo of Lord Caine Lord Caine Parliamentary Under-Secretary (Northern Ireland Office), Lord in Waiting (HM Household) (Whip)

I explained that at length in Committee. They allow for investigations to an Article 2-compliant criminal standard, they allow for prosecutions in cases where people do not co-operate with the commission, and they allow for revocation.

Photo of Baroness O'Loan Baroness O'Loan Crossbench

Possibly my question was not properly phrased. Could the Minister explain how an immunity provision such as this is compliant with our obligations?

Photo of Lord Caine Lord Caine Parliamentary Under-Secretary (Northern Ireland Office), Lord in Waiting (HM Household) (Whip)

There are circumstances where setting aside the prospect of a prosecution, if it is for the greater good of providing more information to victims and survivors that will help society to move on, can be justified.

On the noble Baroness’s other point, I think she referred—I hope she will forgive me if I did not hear her quite right—to recourse to human rights remedies. The Bill does not remove the right of individuals to bring challenges under the Human Rights Act 1998, and that could include judicial review of decisions taken by the ICRIR in relation to the conduct of reviews. As a public authority, the ICRIR is under a duty to act compatibly with human rights obligations, something that we will probably talk about more in the next group of amendments.

I recognise that this is a hugely challenging and difficult area. I suggest that we have to step back and make a realistic assessment of what we can achieve. It is 25 years since the Good Friday/Belfast agreement was reached, it is 29 years this year since the first ceasefires, and of course it is well over 50 years since the start of the Troubles themselves. We must be honest about what we can realistically achieve for people in circumstances where the prospects of prosecutions and convictions are vanishingly small. To quote again from the letter that the noble Lord, Lord Murphy, signed back in 2018,

“experience suggests that it would be a mistake to expect that judicial outcome in any but a tiny percentage of the crimes that have not already been dealt with. Most of the cases were not easy to investigate immediately after they were committed and the passage of time—up to 50 years—has only made the chances of a successful outcome much less likely”.

For many, unfortunately, that is the uncomfortable reality of the situation in which we find ourselves.

In those circumstances, the Government’s objective is to provide greater information, accountability and acknowledgment to victims and families in a more timely manner and to more people—I emphasise “more people”—than is possible under current mechanisms. The way that we do that is by creating an effective information recovery process. The ICRIR will conduct reviews for the primary purpose of providing answers for those who want them, and will grant immunity from prosecution only if individuals provide an account that is true to the best of their knowledge and belief. This is difficult, but it is a crucial aspect of the information recovery process. It is why Clause 18 and conditional immunity are central to this legislation and, in the Government’s view, should not be removed.

Given the range of issues discussed in this group, I will unfortunately have to contradict my earlier comments about being brief and make a slightly longer speech on a group of amendments that took well over an hour to debate. However, I will try to be as brief as possible and respond thematically while setting out the changes that we have brought forward to strengthen the immunity process.

On Clause 21, the commission is already under a duty to consider all relevant information that it holds when forming a view on the truth of a person’s account as part of their application for immunity, including information obtained through a related review. I am going further by tabling Amendments 76, 77 and 78. They will remove Clause 21(4) from the Bill, which many interested parties asked me explicitly to do, and introduce a new duty to require the commission to take reasonable steps to secure information relevant to the truthfulness of an individual’s account when applying for immunity.

I am further strengthening immunity provisions by introducing circumstances in which immunity may be revoked, something that was not in the original version of the Bill. I have therefore brought back Amendments 16, 17, 90 and 167, creating a new offence for those who choose wilfully or recklessly to mislead the commission when providing information. Individuals who are granted immunity will automatically lose it if they are convicted of wilfully or recklessly misleading the commission as part of their application. People convicted of this offence could also go to prison for up to two years and face an unlimited fine.

I understand the concerns about the glorification of terrorism and that those granted immunity could go on to encourage or glorify terrorism in their communities. In respect of glorification, the noble Lords behind me will have heard my comments about the Member for North Belfast and his attendance at a particular event in south Armagh the weekend before last, which are a matter of record.

Responding to the amendments tabled by the noble Lord, Lord Dodds, on this matter in Committee, I have brought forward Amendments 64, 65 and 89 to ensure that a grant of immunity must be revoked if an individual is subsequently convicted of terrorism offences or offences connected to terrorism committed after immunity was granted. The offender will also be precluded from reobtaining immunity for offences within the scope of the revoked grant. This seeks to address a number of concerns raised by Amendment 63 in the name of the noble Lord, Lord Hain—I do not know the reason for the noble Lord’s absence today but, whatever it is, I wish him a speedy return to your Lordships’ House. I am generally sympathetic to the noble Lord’s amendment, which would introduce licence conditions on those granted immunity. I would go so far as to suggest that the Government’s amendments share a similar objective and send a clear message that, once immunity is granted, individuals who are convicted of offences that could impede reconciliation will lose their immunity.

In terms of the conditions set out under proposed new subsection (14B) of Clause 18, there is a degree of overlap with my Amendments 64, 65 and 88. Offences covered by this amendment include those listed in Schedule 1A to the Counter-Terrorism Act 2008, as well as other offences determined by a sentencing court to have a terrorist connection. Offences listed in Schedule 1A to the 2008 Act include a wide range of offences under the Terrorism Act 2000 and the Terrorism Act 2006, as well as other related offences. These include offences relating to fundraising, involvement in terrorist funding arrangements, the encouragement of terrorism and disseminating terrorist publications. It also includes some offences that are similar to those in Section 13 of the Terrorism Act 2000, which was referred to by noble Lords behind me, such as membership of a proscribed organisation, inviting or expressing support for a proscribed organisation, and encouraging terrorism.

Through Amendment 88, I have also clarified that the commissioner is able to refer for possible prosecution conduct which constitutes “connected” offences within the meaning of the Bill. These are offences which do not themselves meet the Bill’s definition of “serious offence” but are nevertheless factually connected to such offences, for example because they form part of the same incident. This would allow the commission to refer evidence of sexual offences which were connected to a death or serious injury to prosecutors, if that came to light during an investigation into a death or serious injury.

As a reminder to your Lordships, I am intending to oppose the question that Clause 19 stand part of the Bill. This is because I propose moving provisions made by Clause 19 to the new schedule titled “No immunity in certain circumstances”, introduced by Amendment 65. This schedule will bring together these provisions and those relating to the revocation of immunity mentioned before. Moving Clause 19 into the schedule is intended to make this already complex legislation easier to follow, by bringing exceptions to the duty to grant immunity together into one place.

Amendment 60 makes it clear that where a person applying for immunity is subject to an ongoing prosecution, immunity may not be granted if there is a risk that it might prejudice that ongoing prosecution.

I turn next to the notion of incentives for engaging with the commission. I have therefore retabled Amendments 159, 160 and 161 to disapply the Northern Ireland (Sentences) Act 1998 for future convictions. This means that individuals who choose not to engage with the commission and are subsequently convicted of an offence will not be able to apply for early release; they will be liable to serve a full sentence. I know the noble Baroness, Lady Hoey, referred to this in her comments but, with respect, I think she was referring to the Bill as currently drafted and not as amended. My amendment makes it very clear that anybody who is convicted of an offence and has not been granted immunity under this process will be subject to a full sentence, which, given the nature of the incidents that we are looking at, could mean a very long time in prison.

This approach, in our view, gives us a better chance of maximising the amount of information we can obtain from people who engage with the commission, through ensuring that those who choose not to engage and are subsequently convicted will be liable to that full sentence. Alongside this, I have retabled Amendment 146 to increase the financial penalty for non-compliance with the commission from up to £1,000 to up to £5,000.

I am sympathetic to the intention behind Amendment 18 in the name of the Baroness, Lady O’Loan, in seeking to leave out Clause 7 because, all things considered, we would want as much information obtained by the ICRIR as possible to be available in any future criminal proceedings. But it is important to the efficacy of the information recovery process that information cannot be used in criminal proceedings against those individuals who provide it as part of the immunity process or in response to a notice issued under Clause 14, relating to the supply of information. This is a crucial aspect of encouraging the provision of information and, in the case of supplying information under Clause 14, it provides an important legal safeguard of the right against self-incrimination—important because the clause contains a power to compel testimony, a power that police constables do not have.

To be absolutely clear, Clause 7 does not restrict the use of material in criminal proceedings against anyone other than the person who provided it; and where Clause 7 does not impose restrictions, normal rules on the admissibility of evidence in criminal proceedings would apply. In cases where people have not been granted immunity, because they have either refused to engage or not provided an account that the immunity requests panel determines is true to the best of their knowledge and belief, the ICRIR has the necessary policing powers, such as interviewing people under caution. Clause 7 would not prohibit the transcript of an interview under caution from being adduced as evidence against a defendant in the normal way.

It is worth reminding the House that this arrangement is not unique. The Attorney- General can give an undertaking that information collected during a public inquiry can be inadmissible in any subsequent criminal proceedings. This was the case during the Saville inquiry into the events of Bloody Sunday, as noble Lords will recall, and in the Stormont House agreement, which made it clear that any information provided to the then ICIR could not be used in criminal proceedings at all.

On a similar note, I turn to discussing Amendments 9, 29, 59, 61 and 62 in the name of the noble and right reverend Lord, Lord Eames, to whom I always listen with the greatest of respect and admiration. The Government’s view on his amendments can be summarised as follows: to get as much information to families as we possibly can, we need to ensure that the right incentives are in place for people to come forward. That is why we have developed a test for immunity, in which an individual must provide an account that is true to the best of their knowledge and belief. That account must be tested against any information that the ICRIR holds and, as a result of Amendment 76, which the Government are bringing forward, the ICRIR must take reasonable steps to secure information to test the truthfulness of any account. This is the most effective way to get as much information to families as possible about what happened to their loved ones. If an individual decides not to provide a truthful account that could be passed to families, or does not participate in the immunity process at all, immunity will not be granted and that individual will remain liable for prosecution should the evidence exist.

Touching briefly on the referral of conduct to prosecutors, I understand the rationale behind Amendment 59A in the name of the noble Lord, Lord Dodds of Duncairn, but it is not necessary. If an individual is not granted immunity because the account they have provided is not deemed to be true to the best of their knowledge and belief, and if there is sufficient evidence that an offence has been committed, we expect the commission to refer that case to prosecutors. However, given the age of some of these cases, and to ensure that we can manage the operational burden on prosecutors, it would not be proportionate to require a referral in every case.

Photo of Viscount Brookeborough Viscount Brookeborough Crossbench 7:45, 21 June 2023

I have just a quick point. When we talk about the individual giving all the relevant and truthful knowledge, to what extent will he be asked about the other people involved in the incident, whenever it was? If he fails to give information on them, does that mean that he has fallen short of what is required by the commission, because there is virtually no incident that did not involve a number—or in fact quite a lot—of people? If he gives information but the other people he has named do not come forward when asked to, will they then be open to prosecution using some of what that original person either said or failed to say as evidence?

Photo of Lord Caine Lord Caine Parliamentary Under-Secretary (Northern Ireland Office), Lord in Waiting (HM Household) (Whip)

I am grateful to the noble Viscount, Lord Brookeborough, for his intervention. Much of what he says will of course be dependent upon the way in which the criminal investigation, if there is one as part of a review, is carried out. But there is a duty to take reasonable steps to establish the truthfulness of an individual’s account by looking at all the relevant information that is available. If an individual’s account is deemed to be not truthful to the best of their ability, they will not qualify for immunity.

The noble Lord, Lord Dodds, made a couple of points, one of which was about people coming back to the UK to live out their years. If there is an active prosecution for someone who has fled the UK, they will not be able to apply for immunity. If there is no active prosecution, they would be able to apply, but in the same way that anyone living in the UK would. They would have to provide an account that is true to the best of their knowledge and belief.

The noble Lord, Lord Dodds, also referred to sentencing for post-1998 crimes under Amendment 93A. This was subject to debate in the other place, as he mentioned. The Bill sets out that those who do not co-operate and who are consequently convicted will face a full sentence, as I have set out. Those who are granted immunity will, as a result of government amendments, be subject to clear consequences if they engage in criminal behaviour following a grant of immunity, as I think I made clear in response to earlier amendments.

I wish to clarify, in response to Amendments 20, 27 and 69 in the name of the noble and right reverend Lord, Lord Eames, that requesting a review is not a process for which legal representation is required. Family members can already obtain help or representation from whomever they wish when making a request for a review. I suggest that these amendments are therefore unnecessary.

I will touch very quickly on Amendments 71, 72, 73 and 74, tabled by the noble Lord, Lord Browne of Ladyton. I question the practicality of an immediate nomination by the chief commissioner of another person who is also judicially qualified to perform the same or all of the immunity functions, because there is no mechanism to appoint an additional judge. We have set out that the remaining commissioner roles are to be advertised and subject to open competition. This would not be workable if the field was restricted to the judiciary. We would also need to consider the right way to manage the risk that too early a nomination could mean that the person called upon to act may no longer be eligible or available. Our system ensures that an eligible and available person is identified.

Noble Lords will be relieved to know that I am nearly at the end of my speech. The ability of ICRIR officers to use their powers of arrest and detention as part of investigations is, with the greatest respect to the noble Baroness and others, key to ensuring compliance with our international obligations. I have therefore retabled Amendments 94 and 97 to remove any doubt as to the circumstances in which criminal enforcement action can be taken where immunity has not been granted and where a referral to a prosecutor has not yet been made.

In addition to allowing for the exercise of powers of arrest and detention, the amendment also ensures that the commission would be able to charge a person with an offence before a referral to a prosecutor has been made, as would be necessary in urgent cases. The amendment clarifies that those with existing powers of detention, such as the police, may continue to use those powers where they are being exercised in connection with the exercise of the commission’s functions. This would allow, for example, a police custody officer to detain a suspect at a police station for the purposes of questioning by commission officers.

I apologise to the House for speaking at such length on this group of amendments, but there are many and I think it only right that we do justice to the importance of this challenging debate. I hope that I have answered as many questions as possible and I ask the noble and right reverend Lord to withdraw his amendment.

Photo of Baroness O'Loan Baroness O'Loan Crossbench 8:00, 21 June 2023

My Lords, I would like to query what the Minister said about Amendments 94 and 97 and about me. I have never suggested that the officers of the ICRIR would not have the powers of a constable.

Photo of Baroness O'Loan Baroness O'Loan Crossbench

My Lords, I said that the Minister made some allusion to me in the context of Amendments 94 and 97 as he was concluding his remarks. I have never suggested that the officers of the ICRIR would not have the powers of a constable. I just want to place that on record.

Photo of Lord Caine Lord Caine Parliamentary Under-Secretary (Northern Ireland Office), Lord in Waiting (HM Household) (Whip)

I am grateful to the noble Baroness. I do not think I was in any way ascribing those opinions to her. If she thinks I was, then I apologise.

Photo of Lord Eames Lord Eames Crossbench

My Lords, I appreciate once more the manner in which the Minister has dealt with my amendments. I want to do everything I can to encourage him to take forward a little further the area I addressed. In light of what he has said, which does not surprise me, I beg leave to withdraw my amendment.

Amendment 9 withdrawn.

Clause 4: Actions of the ICRIR: safeguards