Chris Heaton-Harris – 2023 Statement on the Northern Ireland Troubles (Legacy and Reconciliation) Bill

The statement made by Chris Heaton-Harris, the Secretary of State for Northern Ireland, in the House of Commons on 18 July 2023.

I am delighted to speak to this Bill following its year-long passage through the other place. I pay tribute to Lord Caine for his expert stewardship of the Bill in that place, as well as to all the Opposition spokespeople for their patience and engagement on the Bill.

Hon. and right hon. Members will know all too well that the legacy of the troubles remains one of the outstanding issues since the Belfast/Good Friday agreement was reached in 1998. As a Government, we have sought to make a realistic assessment of what we can do to best deliver for those affected by the troubles over a quarter of a century after that agreement and well over 50 years since the troubles began. I recognise, and I know the House recognises, that this is a hugely difficult task. That is reflected in the many valiant attempts made to address this issue since the signing of the Belfast/Good Friday agreement all those years ago. It is also incumbent on us to ensure that any process for dealing with the past focuses on measures that can deliver positive outcomes for as many of those directly affected by the troubles as possible, as well as for society in Northern Ireland as a whole. We maintain that the Bill before us is the best way of doing that.

The Bill contains finely balanced political and moral choices that are uncomfortable for many, but we should be honest about what we can realistically deliver for people in Northern Ireland, in circumstances where the prospects of achieving justice in the traditional sense are so vanishingly small. The Bill seeks to deliver an approach that focuses on what can practically be achieved to deliver better outcomes for all those who suffered, including those who served, and it aims to help society look forward together to a more shared future.

The Bill left the House of Commons over a year ago. In that time, my ministerial colleagues and I have held more than 100 meetings with victims groups, veterans groups, Northern Ireland political parties, the Opposition, the Irish Government, academics, US interlocutors and Members of both Houses, in an effort to make meaningful changes to improve the Bill. As a result of that extensive engagement, the Government have brought forward a significant package of amendments that provide greater assurance regarding compliance with our international obligations; enhance the independence of the new Independent Commission for Reconciliation and Information Recovery—I will call that by its catchy nickname, ICRIR, from here on—provide a much greater focus on the interests of victims and families; and strengthen provisions related to the process of granting immunity from prosecution to those who engage meaningfully with the commission, while keeping open the possibility of prosecution for those who fail to do so.

Let me run through the Government’s Lord amendments thematically, as well as our responses to Lords amendments 20 and 44. First there is conditional immunity and incentives to co-operate with the ICRIR. As I said from the outset, the aim of the Bill is to provide more information to more people than is possible under current mechanisms, and we will do that by creating an effective information recovery process. The commission will conduct reviews with the primary purpose of providing answers to those who want them, and will grant immunity from prosecution only if individuals provide an account that is true to the best of their knowledge and belief.

I know that is challenging for many, but conditional immunity is a crucial aspect of the information recovery process. The Government believe it is the best mechanism by which we can generate the greatest volume of information in the quickest possible time, to pass on to families and victims who have been waiting for so long. That is why the Government cannot accept Lords amendment 44, which seeks to remove clause 18 and conditional immunity from the Bill.

As many Members of the House will know, there is a significant precedent regarding limited immunities and amnesties in Northern Ireland and in the Republic of Ireland, following periods of violence. That includes, following the Belfast/Good Friday agreement, an amnesty for the decommissioning of paramilitary weapons, and limited immunity for individuals who share information about the location of victims’ remains. If we look back further, the newly created Irish state legislated three times between 1923 and 1924 for amnesties, dispensing with civil and criminal liability for violence for UK state forces, republicans and Free State forces.

Through Government amendments, we are making the conditional immunity process more robust. That includes amendments to clause 18 in my name, which were agreed in the other place but fell when the clause was removed from the Bill. The commission is already required to consider all relevant information that it holds when forming a view on the truth of a person’s account, as part of their application for immunity, including information obtained through a related review. Through Lords amendment 49, we are strengthening that provision by placing the commission under a positive duty, requiring it to take “reasonable steps” to secure information relevant to that assessment.

The Government are further strengthening the immunity provisions by introducing circumstances under which immunity may be revoked, or may not be granted. I have restored Lords amendment 60, which makes it clear that where a person applying for immunity is subject to an ongoing prosecution, immunity may not be granted if there is a risk that it might prejudice that ongoing prosecution. Through Lords amendment 63 we are creating a new criminal offence for those who wilfully or recklessly choose to mislead the commission when providing information. Individuals who are granted immunity will automatically lose it if they are convicted of such an offence.

Ian Paisley (North Antrim) (DUP)

Can the Secretary of State confirm to the House how many ongoing IRA trials are taking place vis-à-vis how many ongoing trials against members of the security services are taking place?

Chris Heaton-Harris

I do not have those figures with me, but I will get them from my officials and give them to the hon. Gentleman when, with the leave of the House, I reply to the debate later.

Building on what I was just outlining, Lords amendment 62 ensures that a grant of immunity must be revoked if an individual is subsequently convicted of terrorism offences or offences connected to terrorism committed after the immunity has been granted. That includes offences relating to fundraising, involvement in terrorist fundraising arrangements and the encouragement of terrorism and dissemination of terrorist publications. The offender will also be precluded from obtaining immunity for offences within the scope of the revoked grant.

We are also disapplying the Northern Ireland (Sentences) Act 1998 for future convictions. That means that individuals who choose not to engage fully with the commission and are not granted immunity, but who are subsequently convicted of an offence, will not be able to apply for early release and will be liable to serve a full sentence. I thank my right hon. Friend the Member for Chingford and Woodford Green (Sir Iain Duncan Smith) for raising that issue before the Bill left the Commons this time last year. Alongside that, having listened to suggestions in the debates in this House, we are increasing the financial penalty for non-compliance with the commission from up to £1,000 to up to £5,000, which is in line with the asks during this Bill’s passage.

Mr Mark Francois (Rayleigh and Wickford) (Con)

The Secretary of State said that it has taken a year for the Bill to go through the House of Lords—I and others campaigned for four years for the Bill even to be introduced in the first place. I fear that some of the Government’s own amendments introduced in the other place have had the effect of swinging the pendulum too far—I admit it is a delicate balance—against our veterans who served in Operation Banner in Northern Ireland. Specifically, the Bill now gives the independent commission extremely wide and latitudinal powers to decide whether a veteran should still be investigated, even despite the Bill’s so-called double-jeopardy provisions. The decision still ultimately lies with the commission. It also has great latitude in deciding whether a veteran has complied with an investigation, which would then allow them immunity. They would not get it if the commission ruled they had not complied. Can the Secretary of State absolutely assure me in his heart of hearts that we are not institutionalising the mechanism for a republican lawyer fest, which would be totally contrary to the whole point of bringing in the Bill in the first place?

Chris Heaton-Harris

I am a great believer in short and honest answers to such questions, and the answer is yes.

I now turn to the conduct of reviews by the commission and, in particular, Lords amendment 20, which establishes minimum standards for reviews conducted by the ICRIR to ensure that conduct is investigated to criminal justice standards, along the lines of Operation Kenova.

Mr Francois

Will the Secretary of State give way?

Mr Deputy Speaker (Mr Nigel Evans)

The right hon. Gentleman really does have to be pithier than he was in his last intervention. By their very nature, interventions should be short.

Mr Francois

I thank the Secretary of State for that clear answer, but could he just with a couple of sentences pithily explain why he is so confident that he is right?

Chris Heaton-Harris

I will turn to elements of this later in my speech, but I referred earlier to the importance of the conditional immunity clause. I think what my right hon. Friend will hear in the course of this debate is how many people think the pendulum has swung in this delicate balance, as he has put it, too far in the opposite direction to the way he believes it has swung.

Sir Julian Lewis (New Forest East) (Con)

The Secretary of State will be aware that it was back in April 2017 that the then Defence Committee first recommended drawing a line with a statute of limitations coupled with a truth recovery process. We recognised that the process had to be for everyone or for no one. Does he accept that there is a risk of having overcomplicated the process, and is any remedy likely to be available if, in putting this into practice, it is found that service personnel are not being sufficiently protected for ongoing prosecutions?

Chris Heaton-Harris

There is obviously no statute of limitations. The Bill has moved on and, as I said, I would like to think it has been improved a great deal. But it will be an independent body that allows for these things to happen. That is vital both in dealing with the issues of the past, as my right hon. Friend outlined, and in helping all victims perhaps to get some information about the circumstances by which they lost loved ones or others.

Mrs Natalie Elphicke (Dover) (Con)

We recently held the memorial concert for the Deal marine musicians who were murdered by the IRA bomb in Deal in 1989. No one has ever been brought to justice for that. Will my right hon. Friend confirm that the process will apply across the whole of the United Kingdom? What information can we hope might come forward that has not already done so in more than 30 years?

Chris Heaton-Harris

In answer to my hon. Friend’s first question, I confirm the geographical jurisdiction. On her second question, it rather depends on the evidence that might be held by individuals or organisations. I know that the case she raised has been subject to a number of past investigations, and there is limited information in the public domain.

Jim Shannon (Strangford) (DUP)

The Secretary of State mentioned the issue of all the victims. The justice that many victims want is quite clear to me and to others on the Opposition side of the Chamber. I think my hon. Friend the Member for East Londonderry (Mr Campbell) has said that even if there was only a candle of light of a possibility for justice some day, we would all want to see that—I want to see that for all the people I know. The Secretary of State will remember how, last time we spoke on this, I named every one of those people who we really feel justice is not there for. Whenever he talks about justice for all, I do not see it, and my people do not see it. Where is it?

Chris Heaton-Harris

It is contained within the Bill and within the independence of the commission, which will be able to conduct criminal investigations when the families ask it to do so. I have met numerous families in my time as Secretary of State for Northern Ireland, and there is a complete range of views as to what people want when it comes to seeking information about what happened to their loved ones. I know, as I mentioned at the top of my speech, that the Bill will not satisfy everybody. However, lots of time has passed—the hon. Gentleman will know that better than most—and there is now a dwindling opportunity for investigations leading to criminal prosecutions. People do need to have information, if it can possibly be found.

Jim Shannon

Fifty-one years ago, my cousin Kenneth Smyth was murdered—[Interruption.] Kenneth Smyth was murdered. His friend Daniel McCormick, a Roman Catholic, was also murdered. Fifty-one years later, there is no justice for my family and no justice for Daniel McCormick’s family. And there is no justice for the four Ulster Defence Regiment men murdered in Ballydugan, or for the young lad Stuart Montgomery, also murdered. Our pain is still here; our pain is still raw. Our people grieve; my constituents grieve. The Secretary of State says that they will have justice, but we cannot see justice.

The people who killed my cousin—three of them—ran across the border and got sanctuary in the Republic of Ireland. Two of them are dead and one is still living. There was no justice. Nine people were involved in the murder of those four UDR men, and one of them is dead today—it was in the paper this week—Colum Marks, an IRA commander. He is in hell, burning—the best place for him. Where is the justice for my family and for my constituents? I do not see it. The Secretary of State says we are going to have it. No, we are not. I do not see it at all.

Chris Heaton-Harris

First, I completely recognise the emotion with which the hon. Gentleman has expressed his views. He knows that I have met a huge number of people who have reflected with passion on the people they have lost. I cannot put myself in the hon. Gentleman’s shoes—I would not try to—and nor can I right the wrongs of something that happened 51 years ago. The hon. Gentleman’s family have gone without justice or much information for 51 years. He knows that, unlike him, there are families across the piece, some of whom are his constituents, who have not had any information about the circumstances in which they lost loved ones during the course of the troubles.

This Bill is definitely not perfect. But after 51 years, should people choose to use the powers of the independent commission in this legislation, they might just able to get some information that allows them to remember their loved ones in the appropriate way. My heart goes out to the hon. Gentleman. I know that this is an imperfect Bill for him, but it might just work for some others. This piece of legislation is a difficult balancing act.

I was talking about Lords amendment 20, which raises a number of important issues that have been addressed by Government amendments tabled in the other place and for Commons consideration. We cannot accept any amendment that seeks to make every review a criminal investigation. The legislation rightly ensures that the independent commission, via the commissioner for investigations, has the flexibility to determine if and when it is appropriate to utilise police powers during the course of its review.

A one-size-fits-all approach requiring criminal investigation in all cases would remove such flexibility and significantly increase the likely time to complete reviews, further delaying the provision of information for many families. I point to a case raised with me in oral questions only a few weeks ago by my hon. Friend the Member for Wrexham (Sarah Atherton), should anyone not believe that such investigation is useful. Further, in cases where the investigative duty under article 2 or 3 of the convention applies, a criminal investigation may not be sufficient means of discharging that duty. That is because there may have been failings by the state that contributed to a death, but which were not themselves criminal in nature.

Lords amendment 20 also seeks to introduce a reference to compliance with the European convention on human rights. As a public authority, for the purposes of section 6 of the Human Rights Act 1998, the ICRIR and its commissioners are required to be compatible with convention rights within the meaning of the Act when exercising their functions under the Bill. Government Lords amendments 19 and 22 expressly confirm that the commissioner for investigations must comply with obligations imposed by the Human Rights Act when exercising operational control over the conduct of reviews and others functions,.

Lords amendment 20 references gathering as much information as possible and exploring all evidential opportunities. The commissioner for investigations is required to ensure not only that a review is carried out when a valid request is received, but that each review looks into all the circumstances of the death or incident -in question, including but not limited to criminal activity. Furthermore, as I set out, Lords amendment 49 will place the commission under a positive duty to take reasonable steps to secure information for that assessment.

To strengthen further our commitment around the conducting of reviews, I have tabled amendments in lieu of Lords amendment 20, which seek to clarify that the duties of the commissioner for investigations when looking into the circumstances of a death or serious injury apply regardless of whether a criminal investigation forms part of the review. They also place a duty on the chief commissioner to provide, where possible, answers to questions posed as part of a request for a review.

Mr Francois

Sinn Féin has always argued that, because in the early years of the troubles fatal shootings by armed forces personnel were investigated by the Royal Military Police, and only after a few years was that transferred to the RUC, those investigations were not article 2 compliant. As the Government have deliberately strengthened the role of article 2, via their own amendments, does that mean in practice that every single fatality prior to 1972 is likely to be reinvestigated in order to be article 2 compliant?

Chris Heaton-Harris

No.

Turning now to the role of victims and families—

Mr Francois

Sorry, does the Minister want to explain that?

Chris Heaton-Harris

I will happily explain a bit later, when I have finished what I am saying.

Turning now to the role of victims and families, through our extensive engagement with stakeholders we have sought to make the Bill more victims-centred. To achieve that, I am placing the commission, when exercising its functions, under a duty to have regard to the general interests of persons affected by troubles-related deaths and serious injury. The Bill will also make it clear that in exercising its functions, the commission’s principal objective is to promote reconciliation. That is a crucial overarching principle that will embed the need to promote reconciliation in everything the ICRIR does when carrying out its work.

The commission will also be placed under a new duty to offer victims and their families the opportunity to submit personal impact statements, setting out how they have been affected by a troubles-related death or serious injury. The statements must be published if the person making the statement so wishes, subject to limited exceptions that ensure no individuals are put at risk and that the Government’s duty to keep people safe and secure is upheld. We tabled the amendment as a direct result of engagement with the Commissioner for Victims and Survivors in Northern Ireland, who maintained it was crucial that victims had a voice in this process. We agree.

The Government fully recognise the need for the commission to have credibility, expertise and legitimacy so that effective investigations can be carried out and information provided to families as soon as possible. On 11 May, I announced the intended appointment of the former Lord Chief Justice of Northern Ireland, Sir Declan Morgan KC, as chief commissioner-designate, having obtained input from the Lord Chief Justices of Northern Ireland, and England and Wales, and the Lord President of the Court of Session in Scotland, all of whom I would like to thank publicly. To allay further concerns around the integrity and independence of the immunity process, the Government’s Lords amendments place a duty on the commission to produce guidance that is related to determining a request for immunity. That will replace the power that previously rested with the Secretary of State for Northern Ireland.

There are also amendments relating to oral history and memorialisation. We are, I am afraid, never going to agree in Northern Ireland on a common narrative about the past, but we can aim to put in place structures to help all in society, including future generations, have a better understanding of the past, with the overarching aim of enabling people to move forwards. Therefore, our memorialisation strategy will seek to build consensus around inclusive new initiatives to commemorate those lost in the troubles and seek to ensure that lessons of the past are not forgotten. I fully understand concerns raised regarding the need to prevent the glorification of terrorism in relation to the memorialisation strategy and other measures in part 4. As a result, we have added an overarching requirement to clause 48 so that designated persons must have regard to the need to ensure that the way in which the troubles-related work programme is carried out promotes reconciliation, anti-sectarianism and non-recurrence.

We also amended the Bill to broaden the requirement to consult the First Minister and Deputy First Minister with a duty to consult organisations that are experienced in reconciliation and anti-sectarianism, and to consult relevant Northern Ireland Departments before deciding on a response to each recommendation in the memorialisation strategy. We added an additional requirement in clause 50 that the Secretary of State must consult organisations that have an expertise in reconciliation and anti-sectarianism before designating persons for the purposes of this part of the Bill.

There are also Government amendments relating to interim custody orders. We have made the amendments in response to concerns raised by Members of both Houses over the 2020 Supreme Court ruling concerning the validity of the interim custody orders made under the troubles-era internment legislation. To be clear, it has always been the Government’s understanding that interim custody orders made by Ministers of the Crown under powers conferred on the Secretary of State were perfectly valid. In order to restore clarity around the legal position and to make sure that no one is inappropriately advantaged by a different interpretation of the law on a technicality, the Government tabled amendments that retrospectively validate all interim custody orders made under article 4 of the Detention of Terrorists (Northern Ireland) Order 1972, as well as paragraph 11 of section 1 of the Northern Ireland (Emergency Provisions) Act 1973. That has the effect of confirming that a person’s detention under an ICO was not unlawful simply because it had been authorised by a junior Minister rather than by the Secretary of State personally.

Gavin Robinson (Belfast East) (DUP)

The Secretary of State has made an important point about the R v. Adams case and the disregarding of the Carltona principle by the Supreme Court in 2020, and he is right to affirm the Government’s view that the signing of warrants by a Minister of the Crown was always a lawful act, but why has this taken three years, and why did the amendments originate from the Back Benches rather than the Government? Is the Secretary of State right to describe them as Government amendments? For a great many people in Northern Ireland who thought that this was a welcome step during Bill’s passage, it came rather late.

Chris Heaton-Harris

Well, perhaps it is a case of better late than never. These are Government amendments, but I am the first to admit that amazingly good ideas sometimes emerge from the Back Benches of both Houses of Parliament.

The amendments could also prohibit certain types of legal proceedings—including civil cases, applications for compensation as a result of miscarriages of justice and appeals against conviction, which rely on the 2020 ruling—from being brought or continued. To align with the other prohibitions in the Bill, the continuation of pending claims and appeals in scope would be prohibited immediately from commencement. There is a specific exemption in the Bill for certain types of ongoing criminal appeals, where leave to appeal has already been granted or where there has been a referral by the Criminal Cases Review Commission by the time of the Bill’s commencement. The exception would not allow for the payment of compensation flowing from the reversal of such convictions, and I want to make it clear that the amendment would not lead to the reinstatement of convictions that had already been reversed.

There are other amendments relating to criminal justice outcomes. The Government’s primary focus has always been on establishing one effective legacy body seeking to provide better outcomes for families. We also want to ensure that organisations such as the Police Service of Northern Ireland, the Police Ombudsman for Northern Ireland and the judiciary are able to concentrate their capabilities on more present-day issues.

It remains our view that the independent commission, when established, should be the sole body responsible for troubles-related cases, but we are also mindful of the concerns raised about the ending of the ongoing processes, especially given the current legislative timetable and the expected timeframe for the commission’s becoming fully operational. Our amendments would therefore ensure that ongoing criminal investigations, ombudsman investigations, the consideration of prosecution decisions, coronial inquests, and the publication of reports will continue until 1 May 2024, when the commission will become fully operational. We hope that the additional time provided will allow such cases to conclude their work, while ensuring a smooth transition between the ending of the current mechanisms and the commission’s taking on full responsibility for outstanding legacy cases.

Stephen Farry (North Down) (Alliance)

Does the Secretary of State recognise the huge concern felt by families who do not think it is practical to expect all inquests to be completed by next spring? Some have not even begun, and it is feared that a two-tier approach will emerge. Owing to a number of factors, some cases scheduled by the former Lord Chief Justice will have started and may well finish, while others have not even had a chance to start. Notwithstanding what the Secretary of State has said, people do not believe that the new process will have the rigour of an inquest.

Chris Heaton-Harris

Our amendment provides until 1 May 2024 for inquests to conclude. Since the Bill’s introduction, expeditious case management of inquests in order to reach “an advanced stage” has resulted in the overloading of a system that was already struggling under incredible pressure, causing delay and frustration. We hope that the amendment will ensure that resources will now be focused on completing those inquests that have a realistic prospect of conclusion in the next year. The Government expect troubles-related cases that do not conclude via the coronial process by 1 May 2024 to be transferred to the fully operational ICRIR, led by Sir Declan Morgan as chief commissioner-designate, through the use of provisions already contained in the Bill, and I believe that those provisions will allow him to maintain the relevant level of investigation.

Ian Paisley

The Secretary of State is very kind and generous to give way. Before he concludes, would he care to mention any response to the Irish Government threat that they intend to take His Majesty’s Government to court on these matters? How does he view that threat, and what has been the response back to the Irish Government, given their own dire record of dealing with legacy?

Chris Heaton-Harris

I thank the hon. Gentleman for his question. There have been a number of quite forthright conversations between the Taoiseach, the Tanaiste and myself on this matter. Obviously anything could be tested in legal action as we move forward, but I believe that the Bill is article 2-compliant. I do not see that as negative, because there are five elements to article 2 compliance—independence, capability of leading to the identification and punishment of perpetrators, prompt and reasonably expeditious, involvement of next of kin, and a degree of public scrutiny, which I think are all included in this. So I think we are in a strong place to resist any such potential charges, and I would like to think that means that we can happily move on together.

Mr Francois

I have been waiting patiently for the Secretary of State to answer the question that I asked him earlier about the interrelationship between article 2 and pre-1972 investigations. I am sure he meant to answer the question before he sat down. He has very few bits of paper left. Could he now please give a direct answer to my question about the interrelationship between the two?

Chris Heaton-Harris

I think my hon. Friend will remember that I gave him a direct answer and he wanted something that was a bit longer. I have just given him something that is a bit longer that identified why there is article 2 compliance, and we believe—[Interruption.] I did directly, which I think is the best way of dealing with this.

Mr Francois

It does not answer my question.

Mr Deputy Speaker (Mr Nigel Evans)

Order.

Chris Heaton-Harris

The ICRIR has always, as a public body, needed to comply with all its duties under the Human Rights Act. We have made it clearer, on the face of the Bill, that the commissioner for investigations must comply with those duties when carrying out their reviews. It is a very straightforward—it generally is a straightforward—answer to a straightforward question, and I hope that my hon. Friend, when he reads Hansard, will see that his questions have been answered threefold in what I have said.

Mr Francois

No they have not.

Chris Heaton-Harris

There you go; we beg to differ.

Finally, through these amendments the term “the relevant day” has been removed from the Bill, so a consequential amendment (a) to Lords amendment 119 in my name simply seeks to remove the power to define the relevant date.

I am very confident that the Government’s legacy Bill provides the framework that will enable the independent commission, established by the Bill, to deliver effective legacy mechanisms for families and victims, whilst complying with our international obligations. When the Bill becomes law the delivery of those mechanisms will be led by Sir Declan Morgan KC, currently chief commissioner-designate of the independent commission. Sir Declan is also an individual of the highest calibre, with a track record of delivery on legacy issues, and I know that he will approach the task with the rigour, integrity and professionalism required.

The challenge before us is immensely difficult, but it is also clear. If we are to place the legacy of the troubles in the rear-view mirror and to help all in society to move forward in a spirit of reconciliation, we must try to do things differently.