HANSARD
Northern Ireland Troubles (Legacy and Reconciliation) Bill
- Committee (1st Day) (Continued)
- 8:37 pm
- Amendment 5
- 5: Clause 2, page 3, line 18, at end insert “unless an investigation is one to which subsections (2) and (3) of section 17 apply” Member’s explanatory statement This amendment removes the duty to produce a report on the finding of any investigation until the matter under investigation has been dealt with by the Prosecutor.
- My Lords, these amendments relate to the reporting functions of the commission that will be established by the Bill. Noble Lords will know that the process of reporting and producing a report for public consumption is enormously important because it complies with the requirements to be open and transparent about the work that has been done.At the same time, those who report must rightly engage in a complex but necessary fairness process—a process in which one has to consider all one’s obligations to all the various actors mentioned in the report. I did so most recently in June 2021, when I reported on my work for the Home Secretary in relation to the Metropolitan Police Service’s handling of the case of Daniel Morgan. The fairness process at the end of that report lasted months and months, because it was so important to ensure that letters went to everyone who might be mentioned and even very faintly criticised in the report, to receive their responses and then to produce a report that reflected precisely what we wanted to say. I am very much aware, as I am sure noble Lords are, of the difficulties attached to this reporting process.These amendments apply to the reporting process following review or investigation because of the other amendments I have tabled. Amendment 5 in my name removes the requirement to produce a final report on an investigation if that investigation has been subject to a referral to the prosecutor under Clause 23 and the prosecutor has yet to make a prosecutorial decision or a prosecution has not occurred. This is an amendment to Clause 2, so it is the first time the Bill is introducing the functions of the commission, and one of those functions is to report. The amendment says simply that you do not have to do so if there has been a referral to the prosecutor and it is not resolved. I want to put that in the Bill to prevent any expectation that there is an obligation to report in these circumstances. I think that expectation would exist but for this amendment.
- 8:45 pm
- Similarly, if a person has been, for example, a counsellor for a rape or murder victim’s family in a case covered by the Bill, they would have an obligation of confidentiality to that person. However, it may be that the person to whom the obligation is owed would be content to release the counsellor from the obligation. It is also the case that confidential marking in post by an organ of a state other than, for example, the police could be amended to reflect the marking which should have occurred originally. Really, the purpose of these amendments is to enable the placing of as much information as possible in the public domain and on the historical record. I think that is what is intended by the Minister.
- Finally, I move to Amendment 136, which requires the provision of adequate resources for the commission. The cases arising in 1966 to 1998, as defined in the Bill, occurred very significantly during the period when Northern Ireland was subject to direct rule. We did not have our own Assembly and the UK Government were running the show: things happened on their watch. It is therefore incumbent on the Government to ensure that the resources are provided and not require those resources to be provided by the current Government of Northern Ireland out of their current budget. These events were all under the watch of the Government and it would be appropriate for the ICRIR to be appropriately resourced to enable it to conduct the work it must conduct. I beg to move.
- My Lords, I will speak to Amendments 99 and 101 in this group, which are in my name and those of the noble Baroness, Lady Hoey, and the noble Lords, Lord Empey and Lord Godson. As we have just heard from the noble Baroness, Lady O’Loan, the amendments are designed to focus on the possible functioning of the commission, the ICRIR. I think I will say “the commission” and follow the Minister’s advice on that: I do not want to struggle late at night with that mouthful of letters.I say first to the Minister that it has been a hard day’s work. He has all my sympathy and is entitled to feel, given the amount of work and effort he has put into this Bill, that he has also somebody who supports the Bill, albeit somebody who is coming up and raising difficulties, although I hope of a containable sort. That might be a little bit more than flesh can bear at this stage in the proceedings.I want to address an issue that has been at the centre of discussion during the week in Belfast: the article by Neil Faris in the Belfast News Letter—three articles in fact—about the possible functioning or the future functioning of the commission. It is perfectly possible that some of the concerns that exist and are expressed in those articles may be overstating and the Minister can allay them. But essentially my two amendments are both directed in that respect. They seek to balance the rights of those who may be named in reports with the rights of those requesting reviews, and particularly (6A)(a), (b) and (c) in my amendment are designed to achieve that end.In the case of Amendment 101, it is a linguistic change, again with the same objective of balancing the rights of those who are at the other side of this process with those actually carrying out any review. One key point I want to make is quite simply that we have talked a lot already about what is or is not Article 2 compliant. But the UK Government also have a responsibility with respect to Article 8, respect for private and family life, and Article 10, freedom of expression, and both these rights also must be respected.
- My Lords, in speaking—briefly, the Committee may be pleased to hear—to Amendment 136, I again thank the noble Lords, Lord Hogan-Howe and Lord Blair, and the noble Baroness, Lady O’Loan, for adding their considerable names. I am indebted to the noble Baroness for her forensic analysis and for bringing her long experience into the debate through her amendments.We all understand that, due to the age and complexity of legacy cases, prosecutions will be rare—very rare—but it is important that the Public Prosecution Service for Northern Ireland is sufficiently resourced, with appropriately skilled and experienced lawyers, to promptly review cases referred to it by the commissioner of investigations of the ICRIR, and that is not happening at the moment in respect of the Kenova model. Families have been waiting many years to understand what happened to their loved ones. Delays in prosecution decisions must not be allowed to prolong the wait still further.Currently, legacy cases are glacially slow, to be decided upon by the PPS Northern Ireland, and, when a decision to prosecute does result, those cases can be expected to take five or more years to come to a conclusion. These cases involve recurring legacy issues and present specific legal challenges, such as the admissibility of evidence, hearsay and the continuity of exhibits. They need to be dealt with by lawyers with experience and expertise in these matters. As an example, Operation Kenova now has 33 files with the PPS Northern Ireland for consideration. The first tranche of files was submitted in October 2019, over two years ago. For most of these cases, families have been waiting for more than 25 years, and in some cases almost 50 years.The PPS Northern Ireland prioritisation criteria mean that legacy files are effectively put in a queue for examination, as resourcing and demand allow. Understandably, perhaps, given the resources available, priority is given to cases relating to current offences, so the review of legacy cases slips further and further backwards, to the frustration and unnecessary additional traumatisation of the families concerned. The Bill claims to be victim-focused, but it is time that legacy legislation actually demonstrated such an intention because, as currently drafted, it does not do so.
- My Lords, I speak for the first time on this legislation. During Second Reading, I was in the south Atlantic on the 40th anniversary of the liberation of the Falklands. Having expected to be fully part of the legislation, I have not been so far. I speak with a fair degree of trepidation because there are clearly so many experts and former Secretaries of State. When I speak on my normal portfolio, I feel as if I am probably just about pitching things right, and I hope this evening I manage to get the tone right.First, I join the noble Lord, Lord Hain, in pointing out that we are indebted to the noble Baroness, Lady O’Loan. So many of the amendments on this Bill have been framed by the noble Baroness, who has reviewed the Bill forensically as far as anybody can tell. She has certainly caused these Benches to look at and think about some of the issues that have been raised.In reporting, there is always a balance between needing to have appropriate reporting and putting too many requirements on to Ministers, officials and others. It is a tendency for opposition parliamentarians when amending legislation to say, “We’d like the Government to report on something.” Amendment 5 makes a lot of sense; we should not have excessive reporting expectations.I have a few questions about the extent of the pressure we are putting on officials. Would we be able to deliver some of the amendments being proposed? Also, one of the issues that has come up across this group seems to be about resources. One of the issues for your Lordships’ House is that, if something is deemed to be a finance Bill—if we say there needs to be resources—at some point the other place might say “That is not your remit.”One of the things I want to ask the Minister is the extent to which he envisages it being possible for the Government to look at the appropriate resource to enable the aims and ambitions of the Bill to be fulfilled. As the noble Lord, Lord Hain, pointed out, there is not a great deal of point in pushing through legislation, which in itself is disputed and contested by so many, if, in the end, victims feel that their cases are not being looked at adequately. Can the Minister either tell the House or undertake to go away and consider whether it is realistic to be thinking about resources to ensure that His Majesty’s Government will provide additional funding to investigate legacy cases, so that those do not fall on the budget of the current Government of Northern Ireland? That seems to be something which we ought to look into.
- 9:00 pm
- I have a couple of other questions relating to Amendment 98, in the name of the noble Baroness, Lady O’Loan. There was talk about a Maxwellisation process; is that realistic? Does the Minister think that offering somebody the opportunity to comment on some aspects of a report about themselves, and not the whole report, is a viable approach? Or when the report comes out, is somebody likely to say, “That doesn’t reflect what I said”? I have some concerns about that.
- Similarly with the amendments put forward by the noble Lord, Lord Bew, the first part of Amendment 99 appears very sensible and to be fairly well delimited. But on the second part, proposed new subsection (6B), one concern is whether it would be proportionate if we are suggesting that
- “the Chief Commissioner has used his or her best endeavours to locate a close family member”
- and so on. If the Minister were minded to accept this amendment or something like it, would it be possible or desirable to define a little better what could be meant by “best endeavours”? Again, we could be looking at putting a lot of resource into some activity that might be really difficult. All these amendments have some merit, but with Amendment 99 there are some questions about its proportionality.
- I think the amendments are very sensible, they come from sensible people and the Minister should take them very seriously. They improve a Bill which we do not like, as we are again in this dilemma. Nevertheless, the amendments of the noble Baroness, Lady O’Loan, and the noble Lord, Lord Bew, really are worth investigating and we would support them.My noble friend Lord Hain again has made an extremely sensible suggestion that we need to look at the resourcing. In the case of his amendment, that is with regard to prosecution, but the noble Baroness, Lady Smith, has made the very valid point that the whole apparatus that is to be set up by the Bill needs to be resourced. We are not in good financial times, so I am assuming that the Government have costed what all this will take and that it will be put into a Budget. We will have the Budget in a week or two’s time, so it is probably too early yet for the establishment of these institutions. Nevertheless, these are hugely important issues, not the least of which is linked to time. People should not have to wait a long time to have their case heard because there are no resources for it. We look forward to the Minister’s reply.
- I am grateful to the noble Lord, Lord Murphy of Torfaen, and will, as ever, seek to deliver a sensible reply. My friend the noble Lord, Lord Bew, referred to this having already been a hard day’s work. I trust that it will not turn into a hard day’s night—but enough song references for this evening.I turn to the amendments introduced by the noble Baroness, Lady O’Loan. Clause 15 places a duty on the chief commissioner to produce a final report on the findings of each review that the commission has carried out, as soon as is practicable once the review has concluded. This, as noble Lords will recognise, is designed to support information recovery.However, where the commissioner for investigations has referred a case to prosecutors for possible prosecution, Clause 17(2) and (3) already require the chief commissioner to postpone publication of the final report pending a decision by the prosecutor, or the outcome of any criminal proceedings which might flow from that decision. In the Government’s view, therefore, Amendments 5 and 89 are not needed as the Bill already achieves their purpose.I note the noble Baroness’s comments on sharing reports, which I take seriously. The commissioner will of course be subject to the safeguards set out in Clause 4, but I am happy to sit down with her and the noble Baroness, Lady Smith of Newnham, whom I welcome to our debates, to discuss the matter further. Where the legislation makes reference to “material” criticising an individual under Clause 15, it means“material which, in the Chief Commissioner’s view, constitutes significant criticism of a living individual who was involved in the conduct forming part of the Troubles, or other harmful conduct … to which a review relates”.I am advised that language in that space is aligned with the Inquiries Act, but, as I have said, I am very happy, between now and the next stage, to sit down with the two noble Baronesses to discuss those matters further.