Northern Ireland Troubles (Legacy and Reconciliation) Bill

One of the functions of independence is securing public confidence in the operation of investigations; to do that, it is necessary for the investigations to be independent—and to be seen to be independent. The role of the Secretary of State in relation to the commission, as currently envisaged, has attracted criticism from all communities in Northern Ireland. The Government have assured us that the commission will have full operational independence; we are assured that that includes the establishment of terms of reference, the appointment of staff and the making of all decisions related to the conduct of investigations. Of course, the commission may appoint its own staff, but that will be done by the commissioners appointed by the Secretary of State. The commission may make decisions related to the conduct of investigations, but with the hand of the Secretary of State ever present and able either to block disclosure or to shut the body down altogether. The commission may make decisions related to immunity applications, but only if the salient question is whether the applicant is telling the truth to the best of their knowledge and belief, and they must take account of any guidance given by the Secretary of State about when that condition is met. It is difficult to consider that a genuine and objective decision at all.

Defending the system, the Government have cited the Northern Ireland Human Rights Commission and various independent public inquiries as precedents, suggesting that it is common practice for the Secretary of State to appoint commissioners or chairs to organisations which enjoy absolute operational independence. The problem is that that is not comparing like with like; there is no way that an individual inquiry or human rights body with limited powers is comparable with the amount of responsibility being placed on the commission by the Bill. That responsibility is to provide the sole route to justice for anyone who lost a loved one during the Troubles.

Noble Lords will have noticed that my amendment does not seek to address all the powers of the Secretary of State. Because of its probing nature, it concentrates, in this form, on only some of those powers, particularly as there is a genuinely independent alternative to the Secretary of State: the Northern Ireland Judicial Appointments Commission. Additionally, the commission’s functions include:

“To select and appoint and recommend for appointment, in respect of all listed judicial offices up to and including High Court Judge … To recommend applicants solely on the basis of merit … To engage in a Programme of Action to secure … that appointments to listed judicial offices are … reflective of the community in Northern Ireland.”

Again, that provides independence, but, crucially, it does so in a way which is transparent and will disarm those who may suggest that the commission is simply an arm of the UK Government in Northern Ireland. Why not forestall those criticisms and remove the Secretary of State from the area of appointments altogether? The NIJAC is accustomed to appointing those who fulfil statutory requirements and who are of good character and have integrity. Furthermore, the link between the commission and the judiciary is embedded in the Bill, as the chief commissioner must be a person who holds, or has held, high judicial office, and almost all those candidates have been appointed to their judicial role by NIJAC.

In addition to the issues with the composition of the commission, many noble Lords will be aware of an uneasiness about how this body will work, from where it will derive its legitimacy, what mechanisms exist for scrutiny, and, where necessary, how we can ensure that it is responsive to concerns in a way that is not simply subject to the fiat of whichever Secretary of State happens to be in post. Those issues speak to a wider systemic problem with the Bill.

The delegated powers memorandum contains a remarkable paragraph which encapsulates my concerns and those of other noble Lords:

“Legacy matters are highly controversial, politically charged and divisive in Northern Ireland. A vast number of issues remain unresolved as a result of political and societal impasse and there is no single accepted or agreed way to address them … There is a very real prospect that providing the Northern Ireland Assembly with the power of veto in relation to delegated powers could frustrate the purpose and application of the provisions in the Bill, which in the Government’s view is necessary to achieve progress and reconciliation in Northern Ireland.”

That is an explicit acknowledgment that the Government have decided to exclude the elected representatives of the people of Northern Ireland from important decisions for fear that they will not agree with the direction of travel determined from London. If we were to mould the Bill into a shape which will satisfy everyone in Northern Ireland and be seen as an attempt, in good faith, to further the course of reconciliation, the composition of the commission will need to be seen as independently determined.

Further, it will need to be seen as an avowedly apolitical body aimed at achieving a true incremental reconciliation woven from the skeins of public opinion in Northern Ireland, not a reconciliation based on our perceptions in London. I do not propose to put my amendments to a vote but urge the Government to engage with their provisions critically and take appropriate steps before Report.

I intend to dispose of Amendment 178 at the earliest possible opportunity. Consequently, with the leave of the Committee, I shall say no more about it. I beg to move.

The Judicial Appointments Commission comprises nine people, five of whom are judges and four of whom are not members of the legal profession at present. The requirement in the schedule on the Secretary of State to consult the relevant senior judge and such other persons as he or she considers appropriate will be indicative to many of those in Northern Ireland who want to see a truly independent commission of a total lack of independence. Noble Lords will know that perception is as important as reality in cases such as this. If the commission is to gain any credibility, it must above all be seen to be independent.

It seems to me that, were the House to agree the noble Lord’s amendments—which he has just said he will withdraw but which I may well retable on Report because they are so important—the Minister’s Amendments 14 and 15 would be unnecessary. In any event, they would not meet the requirement for an independent appointment. The appointment of a person who has gained experience outside the UK, as provided for in Amendment 14, may be an asset, but it could occur in any case, and it seems to me superfluous.

The one thing that emerges from a study of this Bill is that the ICRIR will not be enabled to be independent by its provisions. Rather, it is clear that so much power is reserved to the Secretary of State that it cannot be independent. There is no legislative consent Motion in support of this Bill and no support for it. We are talking about the past and future of the people of Northern Ireland. Independence is critical for this commission.

While the proposed government amendments to Schedule 1 seek to provide that the Secretary of State consults relevant figures, they are unspecified. In advance of appointments, the wide discretion given to the Secretary of State in Northern Ireland over appointments to the ICRIR remains. Furthermore, requiring the Secretary of State to ensure, as far as practicable, that there is a commissioner with international experience is a weak substitute for an independent, international individual or group of individuals. I sincerely endorse the views of my noble friend Lord Browne and ask the Minister to go back and look at this issue.

The submissions given to us are quite clear. Liberty says that

“While this may be a ‘Northern Ireland Bill’ in title and in focus, it is explicitly one that is directed by Westminster. This is not just true in the exclusion of stakeholders in Northern Ireland and Ireland alike in the introduction of the Bill, but in the deep vein of political interference that runs through the legislation”,

and that the ICRIR

“stands a chance of working only if it is seen to be independent in its operation.”

Yet the hand of the Secretary of State looms large throughout all aspects of its function.

A similar view is expressed by Amnesty, which quite clearly states that the ICRIR does not meet ECHR procedural requirements, and that the Secretary of State retains control over the appointments, the resources and caseload of the ICRIR as well as the powers to terminate its work at any point. In view of that, it is quite clear that the ICRIR will not be independent and I would like the Minister to outline to the House how he and the Government will address that issue, and how he will toughen up the legislation by amendments on Report to ensure independence. If the needs and requirements of victims and survivors are to be placed at the centre of the Bill, this is an urgent priority and I urge the Minister to do that and to use the Judicial Appointments Commission to fulfil the requirements of the ICRIR in achieving independence.

We need to know some of these things so that the appointment does not get decided with us and the victims not knowing exactly how that person will be put there. Without the benefit of my amendment, the Minister’s Amendment 14 leaves open the possibility of appointing an individual who not only has no experience of UK policing but has never even set foot in Northern Ireland or gained any relevant experience there. Of course we must remember that, once they are appointed, they take on the considerable powers of a constable. That is exceptionally important. Noble Lords should require assurance on this; their acceptance of my amendment would provide that.

On Amendment 12 and the other amendments in the name of the noble Lord, Lord Browne, I am not entirely convinced by the arguments that have been put forward. We have to remember that the commission and the commissioners, as has been said, will have the power of a constable. They will play more than just a judicial or quasi-judicial role; they will also have investigatory powers, they will be carrying out reviews and so on, so it is much wider than just a judicial-type role. Fundamentally, it gives more accountability if a Secretary of State, accountable to Parliament, is responsible for this, rather than a judicial appointments commission, whose appointments we really cannot question. Given the role of the judicial appointments commission in Northern Ireland and the fact that, throughout all the period of the Troubles, it has been above party politics and has never been dragged into any real controversy, here we are putting it into a position where it will be responsible for making what will be controversial appointments that could be the object of some criticism, in terms of balance and so on. I am not sure that that is a healthy or sensible position in which to place it.

Fundamentally, we come back to the point that was emphasised and re-emphasised to me at our meeting last night with the victims: whether the commissioners are appointed by the Secretary of State or a judicial appointments committee or whoever, fundamentally, they do not have the confidence and will not have the confidence of the victims. Therefore, all this is very interesting and important—absolutely—but it does not actually deal with the real fundamental flaw at the heart of this legislation.

Given the complexities and the history involved, it is not always going to be the case that someone from outside Northern Ireland will automatically understand the Northern Ireland context. But, in the history of the peace process, external people have often played an extremely valuable role, and for that reason I cannot support the position taken by the noble Baroness, Lady Hoey, in Amendment 14A. It would, however, be useful to hear from the Minister what sort of people he has in mind—although obviously he cannot name them, because that would be inappropriate in terms of due process. I would also be interested to know if the phrase

“as far as it is practicable”

in his amendment is intended as a sort of get-out clause if no sufficiently qualified people put their name forward.

Finally—I gave earlier notice of this question—is this going to be a proactive process of recruitment, where the Secretary of State for Northern Ireland and others go out and try to find international experts, or will it be more of a sort of passive process? I would be interested to hear how the Minister views this being introduced in reality.