My Lords, I support Amendment 2, which has been so ably moved by the noble Baroness, Lady O’Loan. I shall speak specifically to Amendment 72 standing in my name and those of the noble Baronesses, Lady Suttie and Lady Ritchie, and the noble Lord, Lord Cormack. I am grateful for their support and for the backing that these amendments have had from victims’ groups in Northern Ireland, especially the WAVE Trauma group, which, notably, represents victims from all parts of the community. That breadth of support is also the case for Amendments 112 and 124, which are also in our names.
Amendments 72, 112 and 124 form a coherent whole and a coherent alternative to this most objectionable Bill by putting on a statutory basis a process for addressing the legacy of the Troubles that will command cross-community, cross-party and cross-victim-group support where this Bill, with or without the government amendments tabled by the Minister, most certainly does not. With or without those government amendments, the Bill remains totally toxic. Our amendments would transform the Bill into a consensual one, and I very much hope that the Minister will be able to persuade the Defence Secretary and the Northern Ireland Secretary to support them, because if not then we will need to divide the House on them.
I come to this issue of legacy not from a legal or policing perspective; there are other noble Lords who have that experience, and no doubt they will speak to these amendments and others, drawing on their expertise. I come to it, as I know others will, with a degree of humility, trying to put myself in the shoes of those who are looking to us—looking specifically to your Lordships’ House to do this in a way that the Commons
so palpably failed to do—to help them to try to address issues that have scarred them emotionally and psychologically, and in some cases physically, for decades. As I made clear at Second Reading and in the debates on the committal Motion, I do not think that the Bill as drafted does that in any way. Indeed, I think that for many it will have the most devastatingly adverse impact. I have proposed amendments that would turn a terrible Bill into one that could command acceptance.
As I have said before, I do not envy the noble Lord, Lord Caine, his task of taking this legislation through the House. Given his long experience in Northern Ireland and the great respect in which the whole House holds him for his knowledge and care for Northern Ireland, I doubt very much that, had he been asked to frame legislation to try to deal with the pain and trauma of Northern Ireland’s horrifically violent past, he would have come up with the Bill before us or indeed the amendments that he has tabled on behalf of the Government to try to remedy its most awful features. Bluntly, his tweaks here and there do not fix this fundamentally flawed Bill.
With his customary courtesy, the Minister wrote to Peers in advance of Committee, and I thank him for that, as I do for the meetings that he has readily offered to me and others to discuss the matter. In that letter, the Minister writes that he understands that
“for many in Northern Ireland the legislation is extremely challenging”.
I am afraid to say that in this context the Civil Service word “challenging”—I recognise it from my ministerial experience—must enter the lexicon of ironic political euphemism. To the victims and survivors of the Troubles, who should be at the heart of what we are trying to do, this is not challenging; it is devastating.
We have been told that the Government has been engaging with key stakeholders since Second Reading. Government Ministers and officials may well have heard what victims and survivors have had to tell them, but I am afraid they have not listened. They still seem intent on seeing though a kind of Faustian pact between the state and those who brought injury, death and destruction to thousands of our citizens. Putting the interests of perpetrators though a low-bar immunity process over the needs of victims is not only morally corrupt; it is politically disastrous.
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Have the Government considered why every political party in Northern Ireland, every victim group, the Commissioner for Victims and Survivors in Northern Ireland and the Northern Ireland Human Rights Commission oppose the Bill? Have they considered why the leaders of the main churches in Northern Ireland have come together to oppose it, or why it is opposed by the Irish Government and the US Administration? How can a Government who face that kind of opposition from the very people to whom they purport to be trying to bring some kind of resolution even contemplate forcing this legislation through, with or without the amendments so far tabled by the Minister? Far from helping reconciliation and healing, which all of us want on all sides of the House, it will perpetuate the running sore of unresolved legacy issues for years to come—the dark shadow that hangs over Northern Ireland and has done for generations.
The Government’s amendments that we are discussing later do not turn a bad Bill into an acceptable one. I urge noble Lords not to see them as evidence that the Government have listened to reasoned arguments and come up with solutions that can be nodded through. I hope, by the way, that they will not be nodded through in Committee. The current legislation refers throughout to a “review”, and I do not think the government amendments change that position. I am afraid I do not see the amendments as evidence that the Government have listened to reasoned arguments or come up with solutions that can seriously address them.
One of the genuine concerns of many victims and survivors is that the case of their loved one was never properly investigated in the first place, as I referred to earlier. In many cases at the height of the Troubles, there were understandable security reasons why proper investigations by the then RUC just were not possible, but those families still want to know that their loved one mattered. They know that the chances of getting justice in court are beyond remote. Out of the 2,000 cases investigated by the Historical Enquiries Team, just three resulted in prosecutions. The chances of these cases being resolved in the courts are minimal, but they want to know that their loved one’s case will now be properly investigated, notwithstanding the passage of time, and that all the information that can be recovered will be.
As I said, the current legislation refers throughout to a “review”. What many fear—and there are good grounds for that fear, as the noble Baroness, Lady O’Loan, touched on earlier—is that all that will happen will be a superficial look at existing police files, and no more than that, which will reveal very little. There is nothing in the legislation as currently drafted or in the government amendments that sets out the minimum standard that any family can expect from a review.
The Minister’s amendments, including those that we will debate later on in our proceedings, simply say that the investigations commissioner may conduct a criminal investigation as part of a review. That will not reassure those who have had so-called criminal investigations in the past that have not been effective. At the material time, much of the information that police needed to properly investigate murders was hidden in files that were not made available to them. To do this job properly—as Operation Kenova, on which we have explicitly based our Amendment 72, joined by Amendments 112 and 124, which are to be debated later, has shown—there must be unfettered access to those files. What is set out in the Government’s amendments does not achieve that.
Moreover, the Explanatory Notes refer to access to
“all relevant material that is reasonably required”.
That is not the kind of unfettered access that former chief constable Jon Boutcher, who leads the Kenova team and who is producing information and lines of inquiry never revealed before, says is essential for an information recovery process to be effective.
No one is more aware than Jon Boutcher of the need to ensure that an individual’s life is not put in danger by the release of sensitive information. No one is more aware of what “national security” means in the context of dealing with highly classified material
than I am as a former Secretary of State for Northern Ireland. But Operation Kenova has shown, and continues to show, that very effective work in this area can be carried out, and has been carried out, provided there is access to the files. That is the standard by which a legacy information recovery process should be judged.
We have a working example in Kenova and it is an example that should be followed. No doubt we will hear from the Government that to work to a Kenova model would be too expensive, and that the process would take many years to complete. Indeed, these points have been put to Jon Boutcher. His response is: “poppycock”. I urge noble Lords to read his evidence to the Northern Ireland Affairs Committee on 21 June 2022. Our amendments, which have cross-party support, address this issue and, again, I urge the Minister to accept these amendments or a technical tweak of them. If he does, every victims’ group and every political party will cheer him on. Victims and survivors, and indeed wider society in Northern Ireland and beyond, deserve far better than mere government tweaking of this terrible Bill.
Proposed new Section (3A)(a) in Amendment 72 seeks to establish
“minimum standards for a ‘review’ conducted by the ICRIR”—
the independent commission for reconciliation and information recovery. Families who engage with this process must have confidence that investigations into their legacy cases will be effective. Proposed new Section (3A)(b) requires that the ICRIR
“complies fully with obligations under the European Convention on Human Rights”.
The Bill as currently drafted would seem to fall well short of that—a point made compellingly by the noble Baroness, Lady O’Loan.
It is clear that there are particular problems in investigating historic cases that often go back several decades—we all know that. Operation Kenova has shown that many of those difficulties can be overcome and families who have been through investigations by the RUC, the PSNI, the police ombudsman or the Historical Enquiries Team in the past will confirm that the process led by Jon Boutcher works. We do not have to reinvent the wheel; we have a model with a proven track record of putting families first while carrying out robust investigations into Troubles-related deaths. The model works in the context of legacy cases precisely because the needs of victims and survivors are at the core of Kenova’s truth recovery work. That must be the case in any process that seeks to deal with legacy and to bring some degree of closure to those who have unanswered questions about the deaths of their loved ones.
That requirement is set out explicitly in proposed new Section (3A)(c). Crucially, if new evidential lines of inquiry emerge as a result, those could lead to a file being submitted to the Public Prosecution Service for consideration for prosecution, as in proposed new Section (3A)(d); in other words, there should be no amnesty—the law should follow its course.
Very often the answers to the questions families have lie in files that the original police investigation simple did not get access to even if the existence of them was known. Any legacy investigation process—any
credible one with integrity—must have unfettered access to those files, as Kenova has. Jon Boutcher has developed an excellent professional working relationship with all sections of the state’s security apparatus and that should be the model for any process that comes out of this legislation. Anything less will not be good enough and that is why the Kenova model must, in my submission, be adopted.
One of the sources of huge frustration for families dealing with these painful cases outside the Kenova process is that they have little or no contact with the investigations. They have no idea whether they are active or have been shelved. They have no updates, no reports. That is not how Kenova works: there is regular contact with the families and regular updates.