At the outset, may I put on record that I think we can all be here in support of UK armed forces but have a different opinion on what is the right thing to do in terms of the legislation? I stand here as someone who wants to restate my support for the work that the armed forces have done in Northern Ireland in the past, where they served with great honour, distinction, integrity and sacrifice, and for the work they are doing in places right around the world at present. All of us are very clearly aware of the huge threats that exist in the international space at present. I want to pass on my thanks and appreciation personally to the hon. Member for Wolverhampton South West (Stuart Anderson) and his colleagues for their service.
Our difficulty is that this debate is based around a false narrative of vexatious investigations and prosecutions that simply does not stack up under scrutiny. As a consequence, we are seeing the production of bad law—indeed, law that will prove to be utterly unworkable in the situation of Northern Ireland. Legacy is by far the most sensitive issue in our political space. There is a real prospect that what is happening with this Bill, including the manner in which it has been handled, will end up retraumatising victims, because no preparation has been done for what is coming down the tracks. People are seeing the potential prospect—slim though that may be—of justice being snuffed out over their heads. That cuts really deep, to their very sense of being and the slim hope that they have been holding on to.
Of course, the legacy process in Northern Ireland is fragmented and piecemeal. Outcomes are poor, in terms of justice and reconciliation. There have been some notable exceptions where results have been delivered, not least in some of the recent inquests. However, we have the legacy investigations branch of the PSNI, the Police Ombudsman for Northern Ireland, inquests and civil cases, so the need for a comprehensive approach to
legacy is clear. The Bill does not represent that solution. It is unworkable and incompatible with the principles of justice, the rule of law and reconciliation, and it is not compatible with international human rights standards either.
The Stormont House agreement of 2014 represented an agreement between the UK and Irish Governments and most of the Northern Ireland parties. It also has the support of most victims’ groups and other stakeholders, but it has never been implemented. It was never even given a chance. When people ask us, “What is the alternative?”, the answer is clearly “Stormont House—return to it and give it a chance before you move on to something else.”
The Bill is not even consistent with the principles of the Stormont House agreement. Furthermore, it is even a breach of the New Decade, New Approach agreement from as recently as January 2020 under the current Prime Minister. That agreement recommitted the Government to Stormont House—not to a different process. It is there in black and white.
The Bill is not compatible with the UK’s obligations under article 2 of the European convention on human rights. There is already very significant case law on requirements around the nature of investigations. The processes set out in the Bill do not, and cannot, provide the necessary independence, effectiveness or rigour, in terms of the interrogation of evidence, to be compliant with article 2. We have had an interesting debate about how that can potentially be addressed. We would have to recognise that a whole range of references to “review” in the Bill need to be stripped out and replaced with “investigation.” We are talking about surgery in which, essentially, we would have to select all and replace all, with “review” coming out for “investigation”.
I want to reiterate the following point: although we have to keep on the table the prospect of prosecutions happening in what may well be a small minority of cases—people will cling on to that hope—the important point about investigations relates to the rigour of the investigation, the interrogation of evidence and the challenge that actually provides answers for people. That is what they have been looking for, and that is the type of process that has reached results in limited cases so far. That is what an inquest does, for example. However, on paper in this Bill, we do not have that interrogative approach—it is very far away from that. Indeed, given the Bill’s failure to uphold the European convention on human rights, we could argue that it breaches the Good Friday agreement.
The Operation Kenova model negates the Government’s argument that investigations with full investigatory powers are not viable. Although there have not been any prosecutions, my understanding is that substantial files have been referred to the Public Prosecution Service in relation to that. Again, what is in the Bill is nothing close to what was included in Operation Kenova.
The process around the Bill has been flawed. It is a top-down imposition that does not reflect co-design with the key stakeholders. Indeed, there was no meaningful engagement with Northern Ireland political parties or other stakeholders on the Bill. That includes the Northern Ireland Human Rights Commission.
The Bill is driven by a narrative from the Government, and the Conservative party more widely, based on vexatious claims and investigations against veterans. That does
not stack up. Ministers cannot, and will not, cite examples of what they mean by “vexatious”; they have had plenty of opportunity to do so but they have never taken that up. Indeed, the Northern Ireland criminal justice system is rigorous. It has a high bar for what is pursued through the courts and it self-polices any vexatious cases. Anyone who claims that there are vexatious claims in the system is attacking and undermining the existing criminal justice system.
It is also worth bearing in mind that the Bill is opposed by virtually every victims’ group in Northern Ireland, which raises the question: on whose behalf is it being passed? The groups opposing the Bill include Amnesty International, the Committee on the Administration of Justice, Relatives for Justice, South East Fermanagh Foundation, the Pat Finucane Centre, WAVE and the Commission for Victims and Survivors for Northern Ireland. The Northern Ireland Human Rights Commission says that
“this Bill is substantially, in fact almost certainly fatally, flawed.”
The Irish Government are supposed to be a partner in the process and in managing the Good Friday agreement, but have not been part of this phase of the legacy deliberations. They, too, see the Bill as unworkable and as incompatible with article 2 of the convention.
Furthermore, much of the Bill relates to matters that are essentially in the devolved space of Northern Ireland. The original understanding behind Stormont House was that the UK Parliament would pass legislation covering both UK responsibilities and Northern Ireland responsibilities on a hybrid basis, with the active consent of the Assembly; that was the only tactical way of getting the comprehensive package through. As things stand, however, the Government are openly working outside the Sewel convention on this most sensitive area.
Contrary to the dominant narrative that veterans support the Bill, it is important that we recognise that views are at least mixed, particularly among former Army and police personnel based in Northern Ireland. The vast majority believe in the primacy of the rule of law; they believe that the very small minority of their colleagues who have potentially broken the law should be held accountable. The Bill risks drawing a false equivalence between them and the terrorists, with special measures having to be put in place when there is no need for any protection to be given that sullies anyone’s service. For someone who may have invested 30 or 40 years of their life in protecting the community, that twisting of the narrative behind the nature of their service will cut very deep.
The Bill will grant the Secretary of State direct control over the establishment and operation of all the proposed mechanisms, undermining the independence of actors. That is particularly problematic when the state is one of those actors. The powers to compel testimony are weak, suggesting that there will not be the capacity to conduct effective investigations. The functions are weighted towards reviews rather than investigations, the bar for re-examining previous investigations is high, and the conditional immunity approach amounts to a de facto amnesty.
A false equivalence has been drawn with what happened with the early release of prisoners, with decommissioning and with victims’ remains. I was deeply uncomfortable with the early release of prisoners, which was a part of the agreement that I did not find particularly tasteful, but it is important to recognise that anyone subject to
early release was out on licence and could be recalled in the event of another offence. With victims’ remains and decommissioning, there was immunity only where evidence led to the discovery of remains or the handover of guns; there was no broad immunity for the people responsible. It is important to set out that context.
In the rare cases where immunity is not granted—I stress that it is a very subjective process—there is still only a technical risk of prosecution, because who else will do the investigation? All other routes are being shut down. There is a very real danger that people will simply choose to wait out the conclusion of the new body’s work, so there will be a blanket amnesty by default.
Amnesties are increasingly regarded as problematic in post-conflict situations around the world, so the Government are going against the trend. Amnesties are particularly problematic in the context of the ECHR framework; the Marguš v. Croatia case is especially relevant in that regard. The lessons are very clear: for any amnesty to be even remotely tenable, it would need either to be part of the peace agreement itself or to be agreed across the political parties. Neither of those tests has been met.
I am conscious that I am running out of time, but I make a couple more comments in conclusion. There are major concerns about shutting down civil cases and inquests, particularly as the last Lord Chief Justice and the present Lady Chief Justice have been working through a programme in which different inquests have been scheduled in a different order, so there is a risk that inquests will be completed for certain families but snuffed out for others.
The proposals relating to oral history, memorials and academic research are also centrally controlled, and are being used to give a reconciliation veneer to what is actually being done. Reconciliation is at the heart of the DNA of my party, but it cannot be done from the top down: people cannot be told to reconcile. It has to be done in an organic way, but that is not going to happen.
Let me make a final comment about process. I believe that the Bill is irredeemable and fatally flawed, which is why I will be opposing it. However, even if the Government offer to amend it, a Committee of the whole House over two days will not give us enough space for proper consideration of any amendments. That belies any genuine attempt to fix any of the problems.
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