My Lords, I have amendments in this group. I say emphatically at the outset to the noble Lord, Lord Cormack, and other noble Lords that I am not in the business of silk purse manufacturing. But I do have amendments in this group and I will explain the purpose of them. My noble friend Lord Hain’s decades—in fact, lifetime—
of commitment to human rights issues, peace and reconciliation, and latterly, for decades, to the people of Northern Ireland, is to be commended. I do not believe that he is in that business either; he explained himself the purpose of these amendments. I say in support of him that, if his Kenova amendments were accepted, we would not be dealing with this Bill. It would fundamentally change the legislation we have before us and, in my view, open up lots of other opportunities. In terms of the support for reconciliation, it may be potentially more valuable than what we have here.
Amendments 113, 115 and 119 are in my name and supported by the noble Baroness, Lady O’Loan, for whose support I am once again extremely grateful. They are probing amendments with the effect of ensuring that the ICRIR—the commission—must consider whether granting immunity from prosecution would be compatible with convention rights and, as important, compliant with the constitutional principle of the rule of law, as well as satisfying the interests of justice. Amendment 115 is the active amendment, Amendment 113 is a paving amendment and Amendment 119 is consequential.
The other purpose of Amendment 115 is to create an opportunity for your Lordships’ House to explore the compatibility or otherwise of the immunity provisions of the Bill with our obligations under Article 2 of the European Convention on Human Rights and the constitutional principle of the rule of law. Also inherent in this question is the scope of the commission to deal with the question of immunities without the guiding hand of the Secretary of State, in a way that is truly and avowedly independent—a point I made in the earlier debate.
To deal briefly with that second question first—and to repeat myself in a sense, if I may—the Bill does empower the commission to make decisions relating to immunity applications. But if the only salient question precedent to the exercise of this power is whether the applicant is telling the truth “to the best of” their “knowledge and belief”, and at the same time it
“must take account of any guidance given by the Secretary of State”
about when this condition is met, it is very difficult to consider this as any genuinely independent decision at all. I ask the Minister to consider the language of the Bill here. “Take account of” could imply various widely divergent systems in practice. Does it imply oversight, indifference or interference? Given the importance of independence and the appearance of independence in the conduct of reviews and investigations, I would welcome guidance from the Minister here in clarifying what this would look like in practice.
Turning to the wider question of compatibility, I read the Government’s ECHR memorandum issued by the Northern Ireland Office with great interest. It acknowledges candidly that the Bill will
“restrict or prohibit the investigation and prosecution of offences arising out of Troubles-era deaths”
and will
“therefore engage the UK’s obligations under Article 2 of the Convention.”
But there are certain minimum requirements that investigations must meet for the state to be conforming with its duties to protect the right to life as defined by
its obligations. Investigations must be independent—as we debated earlier—effective, prompt and open to public scrutiny and must involve the next of kin.
Noble Lords have considered and are considering the questions of independence and transparency elsewhere, and we may come back to them on Report. But, speaking to the questions on the involvement of the next of kin and effectiveness, I would observe that, while the involvement of the next of kin is mandated, the European court previously has ruled that the state cannot rely solely on the next of kin, but rather that
“authorities must act of their own motion, once the matter has come to their attention.”
However, the Explanatory Notes to the Bill suggest that reviews primarily will be instigated by the next of kin rather than by the state. I hope the Minister will help me to square that circle in his response.
Most of all, it is unclear just how “effective” a commission review can be said to be, considering the weakness of the body’s powers and the immunity provisions in the Bill, to which I now turn. In their ECHR memorandum, the Government argue that the conditional immunity scheme can be justified as
“a proportionate means of achieving and facilitating truth recovery and reconciliation in Northern Ireland”.
In interrogating this assertion, we must ask two questions. First, will the immunity scheme prove an effective and proportionate means of achieving reconciliation? Secondly, may amnesties be accepted at all under the European convention?
Under the Bill’s provisions, to receive immunity, a person must just offer an account of their behaviour that is
“true to the best of”
their “knowledge and belief”, even if this account is already entirely in the public domain. This contrasts with the South African Truth and Reconciliation Commission, which demanded
“full disclosure of all the relevant facts”
as a precondition of amnesty. What fresh truths could one expect to uncover given this somewhat anaemic provision? It is hard to see how the cause of reconciliation is furthered by the spectacle of killers being granted immunity in return for partial and self-serving recollections.
Even if it were effective, it is far from clear that amnesties might be accepted at all under the ECHR. The Government acknowledge that previous amnesty schemes launched without reconciliation processes have been found to undermine Article 2, citing the case of Ould Dah v France and the court’s finding that
“an amnesty is generally incompatible with the duty incumbent on the States to investigate such acts.”
Yet the Government suggest that it is unclear in case law whether amnesties will be incompatible in all cases. The ECHR memorandum reads—this is crucial, because this is the basis of the Government’s immunity and amnesty—that the European Court of Human Rights
“has countenanced the possibility of an amnesty being compatible with Article 2 in some particular circumstances, including where a reconciliation process is in existence”.
The Government specifically cite the case of Marguš v Croatia. They go on:
“It is therefore an open question as to whether the Court would find an amnesty to be compatible with the Article 2 procedural obligation where there are alternative procedures that allow for investigation, information recovery and reconciliation.”
An “open question” where a “possibility” has been “countenanced”. This is hardly an endorsement of the Government’s legal position.
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In Marguš v Croatia and in the Government’s response to questions from the Committee of Ministers, it appears that the Government are building their case on this paragraph from the Court’s conclusion, which says:
“A growing tendency in international law is to see such amnesties as unacceptable because they are incompatible with the unanimously recognised obligation of States to prosecute and punish grave breaches of fundamental human rights.”
That is pretty clear. But this is the sentence that matters to the Government:
“Even if it were to be accepted that amnesties are possible where there are some particular circumstances, such as a reconciliation process and/or a form of compensation to the victims, the amnesty granted to the applicant in the instant case would still not be acceptable since there is nothing to indicate that there were any such circumstances.”
The active part of this judgment is a commentary, and I repeat it because it is crucial:
“Even if it were to be accepted that amnesties are possible where there are some particular circumstances, such as a reconciliation process”.
This daisy chain of conditionality is extremely shaky ground on which to overhaul a country’s entire system of justice relating to a several-decades long conflict. The Bill, if passed, will be challenged in the courts. To base such a radical and controversial shift on a hypothetical statement, deemed irrelevant to its own case, is an adventurous act in a process that is supposedly about reconciliation.