Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (Remedial) Order 2024
Baroness O'Loan
That this House regrets that the proposed Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (Remedial) Order 2024 does not address all areas of the 2023 Act identified by the courts as being incompatible with the United Kingdom’s obligations under the European Convention on Human Rights.
Baroness O'Loan (CB)
My Lords, I express my appreciation to the Minister for meeting me to discuss these matters. I hope that we will be able to continue that dialogue in the future.
The passage of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 through your Lordships’ House was marked by the then Government’s refusal to accept that much of its content was in breach of existing legal obligations. The High Court and the Court of Appeal in the Dillon cases confirmed this. There was some transient comfort in the fact that the Government declared their intention to repeal the Act. That comfort disappeared, however, when it became clear that the Government were determined to amend the Act rather than repeal it, and to keep the ICRIR, which lies at the heart of the Act.
The proposed remedial order addresses only four of the eight specific issues declared to be incompatible with the ECHR after the hearings in the Dillon case. Of course, a limited number of issues were selected by the judge in Dillon; other problems with the Act are not affected by the draft remedial order. It is for this reason that I have tabled this regret Motion.
By this Act, the Conservative Government withdrew from citizens across the UK—whether from Birmingham, Belfast, Brighton, Ballygawley, Enniskillen, Manchester, Warrenpoint or Warrington—who have been affected by Troubles-related crimes between 1966 and 1998 the right to access criminal investigations, legal proceedings, inquests and police complaints processes. People who suffered Troubles-related atrocities before and after the relevant period continue to have access to all legal routes available in the United Kingdom.
It is important to say that this regret Motion is not about the coroner’s report findings in the Clonoe case, which was the subject of a recent Question in your Lordships’ House. Equally, it is not about whether Gerry Adams and other IRA members should receive compensation because they were unlawfully detained in 1970s. The reality is that many of those interned in the 1970s were simply scooped up because they lived in particular areas and belonged to particular communities. Some of them were still children. They were arrested and detained for a period of years in some cases, although there was no evidence produced against them. The IRA and the Real IRA committed the most appalling atrocities and murdered indiscriminately, as did the UVF, the UDA and all the other paramilitary groups. But this is not about whether Gerry Adams should receive compensation.
The four measures repealed under the draft remedial order include Section 8, which prohibited the admissibility of evidence gathered by the ICRIR in civil actions, inquests and inquiries under the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016, and the exceptional powers conferred on the Secretary of State in Schedule 9. That is good. Also repealed are Sections 46 and 47, which prevented any person who was interned under an interim custody order authorised by a Minister of the Crown, rather than the Secretary of State as required—or anyone whose subsequent conviction was quashed as a consequence of detention authorised by a Minister of State rather than the Secretary of State—bringing civil proceedings for damages. The proposed remedial order removes all the provisions on the matters relating to the granting of immunity from prosecution and associated issues that were included in the Act. That is good. Section 43, which prohibited continuing civil proceedings issued on or after 17 May 2022 and the commencement of new civil proceedings after 18 November 2023, and Schedules 9 and 10, will be repealed. That is good.
However, four matters are not addressed by the draft remedial order. Section 44 terminated inquests started before 1 May 2024 unless they had reached final determination, verdict et cetera, and prohibited the holding of any new inquest into a Troubles-related death after 1 May 2024. The associated Court of Appeal findings in the Dillon case stated that the ICRIR could not conduct investigations that were compatible with the UK’s ECHR obligations in inquest cases because of the failure to provide properly for involvement of next of kin in such investigations, and because of the power of the Secretary of State to veto the disclosure of material to and held by the ICRIR. Schedule 11 relating to these matters is also untouched by the proposed remedial order. I acknowledge that the Government are appealing these matters to the Supreme Court—but why? Why put the families through this when the findings are so clear?
These issues are at the core of how we provide proper process to deal with the past. The previous Government proclaimed their wish to bring closure by providing much more information to the victims than had hitherto been available. They said the ICRIR would be granted unparalleled access. They then legislated to ensure that the ICRIR would not even have the powers previously held to access information from the police, let alone from the security services and the MoD, and brought these appeals to restrict disclosure.
What is really at stake here, I am afraid, is the control of information held by MI5, the MoD and the PSNI. A post-conflict society must be built on the rule of law. People distrust institutions perceived to be biased or controlled by the Government, particularly by individuals from the security services, I am afraid— I acknowledge that the security services do a huge amount of good for our country, but there is a problem in this context. If people repeatedly find out, as has been the case, that information is being withheld or distorted, they will know that they are not being allowed to know, and trust will not grow.
A number of cases illustrate the consequences of withholding information. In 1981, 15 year-old Paul Whitters was killed by an RUC plastic bullet in Derry. He was throwing stones at a bakery. Ninety-three pages of his file will not be made available until 2084, over 100 years after his death. I have read those files. There is no justification for withholding them. Also in 1981, 14 year-old Julie Livingstone was shot in the head by a plastic bullet fired from an Army Land Rover. Her files are closed until 2054. Why?
It may be said that the contents would be distressing for the families. But there is nothing more distressing than losing a loved one, especially a child, to a violent death. Will His Majesty’s Government appoint an independent commission to re-examine these locked files and determine whether there is any real national security reason to withhold them from the families?
Two cases currently before the courts are most important. Sean Brown, described by the coroner Justice Kinney as “an entirely innocent man”, was the subject of a planned execution by LVF gunmen in 1997. That case is now before the Northern Ireland Court of Appeal. For a long time, the coroner sought disclosure of information which he needed. Eventually, information relating to 25 individuals linked to the murder was disclosed. Further information was withheld on grounds of national security. Unable to continue the inquest, the coroner called for a public inquiry. The Secretary of State refused a public inquiry and told the Brown family to go to the ICRIR. The Brown family brought proceedings in the High Court, which ordered the Secretary of State to establish a public inquiry. The Secretary of State has appealed this ruling, and the Court of Appeal began hearing the case on 16 January 2025. For the 57th time, Mr Brown’s family attended court. That matter continues. This should not be happening, nearly 28 years on. There should be a public inquiry.
In another inquest case, that of Liam Paul Thompson, 25, who died in 1994 after being shot by loyalists in Belfast, the coroner, Louisa Fee, decided in 2024 to disclose a summary or “gist” of the evidence contained in a sensitive security forces file. The gist had been prepared by the chief constable of the PSNI, and he was satisfied that the disclosure of the information would involve no breaches of national security.
The Secretary of State judicially reviewed the coroner, asking, in effect, whether it was lawful for her to release a gist of sensitive information, having conducted a comprehensive PII exercise. The High Court upheld the coroner’s decision. The Secretary of State appealed. The Appeal Court dismissed the appeal, and the Secretary of State has appealed again to the Supreme Court. It is anticipated that the current chief constable of the PSNI will give evidence in June 2025 as to why there is nothing unlawful in the proposed disclosure.
Finally, in the Kenova cases, the current chief constable of the PSNI presented an interim report a year ago on a number of cases arising inter alia from the activities of the British agent known as Stakeknife. Twenty-six bereaved families affected by these activities have been due to receive an individual report on those cases. Those individual reports were sent to MI5 in August last year. Nothing has emerged from MI5, and there has been no explanation as to why the families cannot have their reports, which were very carefully drafted.
The Deputy Speaker (Baroness Finlay of Llandaff) (CB)
My Lords, the noble Lord, Lord Weir of Ballyholme, is contributing remotely.
Lord Weir of Ballyholme (DUP) [V]
My Lords, in dealing with the very difficult subject of legacy in Northern Ireland, there is always the risk of dangerous and lazy myths distorting our thinking on the subject, which can then be exploited by the men of violence. At the heart of that are wrong assumptions. The first is that, in looking back at the Troubles, everyone in Northern Ireland was in some way responsible—that we were, in effect, all perpetrators. The second lie is that everyone in Northern Ireland and beyond was a victim. Worse than that, we have seen those two concepts conflated, so that, in the worst possible cases, perpetrators are sometimes presented as victims and, latterly, in a rewriting of history, some are portrayed as community defenders, heroes and examples for our young people. Nothing can be further from the truth. Let me try to deal with some of those myths.
Not everyone in Northern Ireland was a perpetrator. The vast majority of people opposed violence throughout. Indeed, every Northern Ireland Member of this House has a proud record of opposing that violence.
Not everyone in Northern Ireland is a victim. There are Members of this House who have suffered directly as a result of the Troubles—I think of those who have been targeted, or whose families have been targeted, by terrorist actions: people such as the noble Lords, Lord McRae and Lord Dodds, and the noble Baroness, Lady Foster, to name just three.
I am fortunate enough that I am not a victim of the Troubles. My family went through them unscathed, and I was able, as much as possible, to grow up with a relatively normal childhood in Northern Ireland. I was able to do so by way of the protection provided to me by the security services—and, indeed, the security services providing that protection to all the citizens of Northern Ireland. They stood as the great defenders of democracy and peace at a time when people in both republican and loyalist circles were intent on inflicting violence.
Not being a victim is one of the reasons why I believe that the legacy Act put through in the last mandate was the wrong way forward. While it is difficult for many of those who have suffered as victims of terrorism to achieve justice, in particular from a long time ago, there was a perception that in trying to draw the line over what had happened in the Troubles, we were snuffing out the opportunities for any innocent victim, the survivors of the Troubles and their families to achieve justice. That is fundamentally wrong.
To that extent, the action the Government are taking in providing a remedial order is at least a partial step in the right direction by moving away from that situation, but for very different reasons from those outlined by the noble Baroness, Lady O’Loan, I think that it does not go far enough. Some of the concerns raised by the noble Baroness, while genuine in concept, run the risk of taking us in the wrong direction. We must look first at the bigger picture and ensure there is genuine equality in the law for everyone.
The stark reality when looking at the legacy of the Troubles is that over 90% of the victims were killed by republican and loyalist terrorists. Around 10% of the deaths were caused by members of the security forces. Within that, on many occasions, the deaths that were as a result of the actions of the security forces were justifiable in preventing further loss of life. One thinks, for example, of the intervention of the security forces at Loughgall or, more recently and as has been highlighted in the news, at Clonoe, where it was not the security forces acting beyond their remit but intercepting active terrorist units and preventing them inflicting further death and misery on the civilians of Northern Ireland.
Some 90% of the Troubles deaths were caused by paramilitaries and terrorists, yet an outside observer looking at Northern Ireland today could be forgiven for not realising that. That is because, clearly, the concentration of inquests and court cases has had an overwhelming focus on the role of the state and individual members of the security services, to the extent that, for a lot of people in Northern Ireland from both sides of the community, there is a concern that, in looking at the past, we are seeing a very one-sided process.
What is the impact of that? First, it creates a sense of false equivalence: that the security services were simply one other player in a multifaceted war between different factions—that must be nailed down as a lie. The security services did all they could to protect all sections of the community all the time. We know that there were occasions when individual members of the security services overstepped the mark and engaged in criminal behaviour. I have no hesitation in saying that anyone who was engaged in criminal murder, from whatever source, deserves to face that, but if we are to try to persecute and to blame, for example, the Army in relation to an event such as Clonoe, I think that we have got something fundamentally wrong.
Even worse than that false equivalence between the forces of law and order and those who sought to inflict death and injury throughout the community in Northern Ireland—be they loyalist or republican—there is a greater and more dangerous myth now beginning to persist. There are those within our society who would seek to rewrite history to present the security forces not simply as being on a par with paramilitary organisations but as the source of the Troubles and to suggest that those involved, particularly in republican organisations, were really there simply to defend their community; they were the people who took up the shield on behalf of their community.
A narrative has been put about, particularly by republicans, that in some way tries to rewrite this history. We have seen that in a very stark way, over the last week or two, since the death of the IRA commander Bik McFarlane, who was directly involved in committing five murders of innocent civilians. Indeed, it was highlighted by the Taoiseach, in the last day or two, that he was also involved with the murders of Garda and state forces within the Republic of Ireland. Yet this individual is now eulogised; the words of the leader of Sinn Féin throughout Ireland were that he was a “great patriot”.
That is the danger we have with the rewriting of history. If we go down a route that provides that level of imbalance—that does not focus on the role of paramilitaries but, instead, concentrates almost exclusively on the actions of the security forces and digs deeper into what it can find out about them and blame them for—we are reinforcing a false narrative. That is both damaging to the perception of the past and deeply insulting to innocent victims and survivors of the Troubles and their families. It is not simply an attempt to rewrite the past; it has grave dangers for the present and future, because it provides for those on the republican or loyalist side who are still committed to seeing violence in any shape or form both to excuse what has happened in the past and potentially to act, particularly for dissident republicans, as a form of recruiter.
I think that is very dangerous, and that is why I would be in favour of, for example, the Private Member’s Bill that the noble Baroness, Lady Foster, is currently talking about, which would make the glorification of terrorism a criminal offence. When we look to remedies on legacy, not only must we be careful to provide the opportunity for everyone to achieve justice but there must be a level playing field. To scapegoat the security forces will take us in completely the wrong direction. While I believe that the regret Motion from the noble Baroness, Lady O’Loan, comes from the best of motivations, there is a danger of it taking us in the wrong direction. I will therefore oppose it today.
Baroness Ritchie of Downpatrick (Lab)
My Lords, I commend the noble Baroness, Lady O’Loan, for bringing forward this regret Motion. She and I have had meetings with my noble friend the Minister, the Secretary of State and the Attorney-General on the issue of legacy and on the issue of what is and is not contained in the remedial order.
The previous legislation was brought forward by the noble Lord, Lord Caine, when he led for the then Government under their mandate. My belief is that we have not yet reached a human rights-compliant place on legacy to address the needs of victims and survivors. The current legacy Act does not do it and, while the remedial order has some welcome developments, there is a need to build on it as a matter of urgency. It is my clear understanding that that should and, I hope, will be built on in the repealing legislation. Can my noble friend outline the exact process that will be involved?
The noble Baroness, Lady O’Loan, spoke clearly about the vast majority of people in Northern Ireland; I grew up and went to school and university during the Troubles, and none of my contemporaries was ever involved in violence. As democratic Irish nationalists, we abhorred the use of violence for political means, because nothing could ever be achieved through that. That was proven to be the case through the negotiations that led to the Good Friday agreement. Only dialogue, negotiations and peaceful compromise achieve any political development in Northern Ireland. Many people have been killed over the years by paramilitaries, both IRA and loyalist, and there has been some state violence—you have only to look at Bloody Sunday in Derry—but raking over those coals does not achieve political progress. We have to move on.
As I have referred to, there are some welcome developments in the remedial order. It will repeal the relevant provisions on immunity from prosecution already disapplied under the Windsor Framework by the High Court and the relevant provisions relating to the termination of civil claims. These are very welcome developments. However, the remedial order does not address the Court of Appeal’s declaration of incompatibility in respect of Section 45 of the Act, which precludes complaints about police conduct from being progressed. The incompatibilities relating to ICRIR’s role in replacing inquests in respect of victim participation and the role of the Secretary of State for Northern Ireland in disclosure of sensitive information are also not addressed. The Secretary of State seeks to appeal these findings in the UK Supreme Court, as has been addressed by the noble Baroness, Lady O’Loan. The incompatibility arising from Section 44 on the restriction of legacy inquests is also not addressed in the order.
It is a regrettable consequence of the Secretary of State’s plan to appeal that it precludes the use of Section 10 of the Human Rights Act to restore inquests in response to the NICA declaration of incompatibility in respect of Section 44 of the Act, despite the SOSNI’s claimed commitment to this outcome. There is a fear in Northern Ireland that the qualifications in the draft remedial order to end inquests infers an aim to limit their availability. I suppose tonight I am looking to hear from my noble friend the Minister what the exact position is in this case. Will all these issues be covered in the proposed repealing legislation? What is the timeframe for such legislation?
The noble Baroness, Lady O’Loan, has already referred to the impact of the existing legislation on legacy that was brought forward by the previous Government and the impact that has had politically in Northern Ireland in terms of the rule of law and policing, and particularly in reference to recruitment to the Police Service of Northern Ireland. I support the PSNI, and I want to see young Catholics, both men and women, joining the PSNI and to reach the levels when we had 50:50 recruitment. I believe that, in order to redress that imbalance in recruitment, we need to go back to 50:50 recruitment. I heard last week the leader of the DUP saying that this was some form of wokeism. It is not; it is simply about trying to redress an imbalance to adhere to the rule of law and ensure there is fairness and equality. I would like to see that happening. However, the lack of young Catholics joining the PSNI can be directly correlated to the provisions in the legacy Act and the decisions on some of the potential areas for public inquiry which have been rejected, particularly with reference to the sad case of Sean Brown from County Derry who was killed in 1997.
I urge my noble friend the Minister to ensure that she is able tonight to provide us with a timeframe for the proposed repealing legislation. What will be in that repealing legislation? I know those areas may be difficult for my noble friend at this time, but I want her to provide those assurances or at least tell us that there will be a timeline that will lead to the eventual repealing of the iniquitous legacy legislation. I say “iniquitous” because that is how it is viewed in Northern Ireland; it is viewed as not the way forward. I hope that we can see the issues to do with police recruitment addressed and that we can have a police service in Northern Ireland that is capable of implementing the rule of law in a fair and impartial way—one that I want to see young people, particularly young Catholics, join.
Baroness Hoey (Non-Afl)
My Lords, this Motion of regret tabled by the noble Baroness, Lady O’Loan, asserts that the Government have failed to take account in their remedial order of every aspect of the Belfast court judgments, which effectively gutted the legacy Act. What was the government crime? The legacy Act apparently contravened Article 2 of the European Convention on Human Rights as well as Article 2 in the Northern Ireland Protocol or Windsor Framework.
In a way, this is a needless and premature discussion, because the remedial order has been laid in draft form for consultation and will be retabled, with or without improvements, for parliamentary decision in, I think, May. No doubt we will then have to repeat this debate—I hope it will not be as late starting. However, this serves a useful opportunity to spell out exactly what the rulings have brought about.
In my view, there are only three outstanding items from the judges’ findings of ECHR breaches which are not covered by the remedial order or by an NIO appeal. The major one for me is the required reintroduction of inquests, which the Secretary of State, Hilary Benn, has indicated may be passed to the new information recovery body, the ICRIR, under Sir Declan Morgan. We await the proposals in the forthcoming legacy Act replacement, though who knows when in the future we might get that to look at.
There are two other minor aspects that I know have probably been particularly close to the noble Baroness’s heart, since they relate to her previous work as the Police Ombudsman and a member of Kenova’s advisory panel. They concern the absence from the ICRIR’s remit of historic police misconduct, which she referred to, and which was in the Stormont House agreement Bill, and offences such as misconduct in public office and conspiracy to pervert the course of justice. Ironically, the 10,000 Troubles bomb attacks are another omission, but that did not seem to concern the judges.
If the ICRIR was to extend its remit to all these lesser offences, its budget would need a mammoth increase beyond its current £250 million. We know from the recent Policy Exchange report on the price of legacy that past and future compensation payments and reinvestigations are getting close to £3 billion. The Government need to produce their statistics, to show whether they dispute the Policy Exchange figures. I hope the Minister can respond on that specifically.
The remedial order was first laid in December and it is immensely long. It runs to 24 pages, and involves 29 sections and seven schedules of the legacy Act having to be amended or removed. Such orders are rare, and never before has there been one quite so lengthy. Its size proves the point that overturning the Act should be done by primary legislation and not by remedial order, which, as I understand it, the Attorney-General advised in July 2024, which was when the Northern Ireland Office decided not to appeal most of the ECHR incompatibilities found by Judge Colton in the Belfast High Court.
I am very disappointed that the Attorney-General is not here to listen to this debate. Did the noble and learned Lord, Lord Hermer, participate in a decision in July to abandon the Colton appeal? If he did, whether he knew that at the time or not, it was obviously a huge conflict of interest, because a key part of the Colton judgment was the removal of Sections 46 and 47 of the Act, which had reversed the bizarre decision—I think that was how we all felt when it was discussed here—by Lord Kerr in the Supreme Court that custody orders in the 1970s were signed by the wrong Northern Ireland Office Minister.
This second reversal will lead to compensation claimed by Gerry Adams, and hundreds of other internees who have lodged civil suits, being paid. Have the Government found a way yet of getting round this? Can we be sure that, in any advice that is happening on this, the Attorney-General is not involved, because he represented the same Gerry Adams in a compensation case where he was being sued by victims of the IRA murdered in London bombs? As we all know, Adams was for years a member of the IRA Army Council, although he rather unconvincingly denies that. He certainly was brought over by Her Majesty’s Government to negotiate as a member of the IRA with the British Government at Cheyne Walk in July 1972. The Attorney-General must explain whether he did advise or not, otherwise the rumours will continue to register, and it is not a very sensible situation.
We have two bites at repealing and replacing the 2023 Act. The first, we are told, is required by the Colton judgment, followed by Lady Chief Justice Keegan’s concurring judgment on appeal. But that does not have to happen. Your Lordships should know that the Belfast courts increasingly see themselves as an adjunct to the European judicial system, be it the European Court of Human Rights in Strasbourg or the EU court in Luxembourg, so they have disapplied large parts of the legacy Act. Governments are not obliged to act as a consequence of this. They could leave well alone, even if it means facing down the well-funded, very well-organised human rights industry that we have in Northern Ireland, in particular—some of it, of course, paid for by the Government.
Lord Robathan (Con)
My Lords, I will not speak in the detail that the noble Baroness, Lady Hoey, and others have done, and I do not have the knowledge of Northern Ireland that various noble Lords have, on both the republican side and the unionist side, but I would like to say a few words on behalf of the soldiers who are currently under threat, be it from Clonoe or elsewhere. I am afraid to say that I know some of them, from past lives. Indeed, I was talking to one last week or the week before about exactly this, because he is under threat of being prosecuted for something that happened nearly 40 years ago. We have to ask: is that right?
This Parliament—every person in this Chamber—is responsible for sending troops to war and for the officers in the Metropolitan Police, including the poor chap, whose name I cannot remember, who shot Mr Kaba in the street. These people go out armed with weapons that are designed to be used. They are not meant to use them, but they do so if they are threatened—that is why they use them. I will defend all officers, including those in the British Army, the PSNI and the Metropolitan Police, if they behaved reasonably—I am not talking about murder. If they behaved reasonably, they should be given the benefit of the doubt by this Parliament, which sent them out to do that work.
The Army and the police keep records. Funnily enough, the IRA do not. I do not know whether anyone has noticed that. The Human Rights Act refers to records, but the IRA does not have any, so it cannot refer to them. I know far too many dead soldiers. We heard from the noble Baroness, Lady O’Loan, about people’s lives. She is right. I think of Simon Ware, one of my young corporals, who was murdered in 1991 somewhere in South Armagh. I think of Robert Nairac, who I knew quite well in the 1970s before he was taken away and murdered. I think of Andrew Green, a staff college student who was murdered somewhere in in the south—I cannot remember exactly where. I think of all those soldiers who were killed, including the Queen’s Own Highlanders who were killed along the coast in 1979.
Guess what? There is no evidence. We heard earlier that there must be evidence. But where will the evidence come from? It comes from forensic evidence, if you can get it, or from people’s witnesses. But guess what? If you are a witness to an IRA killing, you do not say anything because you will end up with your throat cut. It is quite straightforward. I should also mention Jean McConville, because her case came up as an issue when I was working in the Northern Ireland Office. I spent only a year working in the streets of Northern Ireland; it was quite long enough, walking the streets of west Belfast. I spent about a year in the Northern Ireland Office as well. Jean McConville’s case came up. For those who do not know, I will briefly recount it. She was married to a nationalist and lived in the Divis flats. He died, and she was left with their 10 children. She went out and gave a blanket to a soldier who had been shot. The next day, the IRA came knocking on the door and dragged her away from her children. Her body was found some years later, buried on a beach in the south. Jean McConville was murdered by the IRA.
Now, who was the leader of the IRA at that time? I cannot say because I was not there, but the dogs in the streets of Northern Ireland will tell you that Gerry Adams was most certainly on the army command council at the time. In fact, if I were to say that outside this place, he would probably try to sue me; but luckily, in here I can get away with it—I hope. He was certainly there. He was a member of the IRA, responsible for murder, and yet he is still living. Should this measure go through, he might get financial compensation from the British Government for all the harm he did. This is outrageous.
Do we, as a Parliament, want to be able to send our soldiers out to fight, as the noble Baroness, Lady Hoey, has just said? Do we want them to go and protect our interests—not just one interest from time to time, but our national interests? Do we want to send them out to fight, or are we going to say, “Under the Human Rights Act, you’d better be very careful what you do. You’d better take the bullets out of your magazine”? This is just nonsense.
I suggest that everybody in this House, when it comes to it, would say that it is more important that we defend our public servants. If soldiers misbehave, yes, let them be prosecuted, but we defend our public servants. What really upsets me more than anything else—I will say this before I sit down—is this: do we wish to see the IRA win the Troubles that have taken place over the last 50 years?
Lord Browne of Belmont (DUP)
My Lords, the issues tonight need to be addressed collectively. Any primary legislation ought to take a broad, forward-facing approach, rather than narrowly focusing on the discrete issues raised either in the legacy Act or by the Court of Appeal. For much of the past 28 years, there has been an erosion of justice when it comes to dealing with the troubled past in Northern Ireland. For many victims of terror in Northern Ireland, there has been a hope of justice. But for many, justice has only been a repeated word and results have not been delivered. We have witnessed a process whereby terrorists were released from prison. It was then followed by comfort letters that certainly offered no comfort to the innocent victims of terror.
Across Northern Ireland, many people realistically accept that there is a limited possibility of successful prosecution and meaningful jail terms for those who carried out atrocities against innocent victims. Much of the focus around the Independent Commission for Reconciliation and Information Recovery has been on issues of independence and, specifically, concerns expressed by those who feel that the state holds vital information on the circumstances of their loved one’s death. The ICRIR has limited influence when it comes to requiring or disclosing that information to families, yet the stark reality is that it remains a far more significant inducer of information from the state than from the terrorist.
Little in the way of attention has been paid to how the ICRIR can provide answers for those families who are met with a wall of silence by terrorist organisations responsible for murder and bloodshed. Why should the family of a terrorist atrocity be left bereft of disclosure when the family of an act involving the state receives answers? There ought to be an acceptance that the primacy of the European Convention on Human Rights in our statute books and the courts is not just facilitating but accelerating that double standard in justice outcomes for victims of the Troubles.
Lord Morrow (DUP)
My Lords, Northern Ireland has a unique past, and we cannot ignore the contemporary importance of that when we seek to provide reconciliation and justice to the bereaved, the injured and the deceased. We in the DUP have an approach to dealing with the past that includes our test for future proposals. First, there can be no amnesty for wrongdoing or wrongdoers; secondly, there should never be any equivalence between the innocent victim of terrorism and the perpetrator; and, thirdly, the door to justice must remain open through a system of investigations that is fair and reflects the fact that paramilitary and terrorist organisations were responsible for the vast majority of deaths during the Troubles. If anyone wants to look at the figures they will come up with a figure like 90%, but the 90% are seldom talked about. It is always the 1% or 2% of the security forces who seem to get all the attention, for reasons that are right out over my head.
Every family deserves a fair and full investigation into the death of their loved one. Equally, vexatious investigations into former soldiers and members of the security forces are unjustified and must stop. It is difficult to consider justice in respect of Northern Ireland when, still to this very day, one of the leading parties that occupy the post of First Minister continues to perpetuate the invalidation of the justice process. We recently saw myriad tributes from Sinn Féin for the Irish republican killer Bik McFarlane. We watched as John Finucane, Gerry Adams and Gerry Kelly gathered in Belfast to remember a man who Mary Lou McDonald said had
“lived his life in pursuit of freedom, peace and equality”.
If anything was a misquote, that certainly was it. She ought to bow her head in shame and she needs to be called out on it. He
“lived his life in pursuit of freedom, peace and equality”,
but he did not give the same right to his victims—not a chance. No noble Lord would be so deceived as to believe that the murder of five people, including a 17 year-old girl, and the murdering of a great many others, were done in the pursuit of freedom, peace and equality. That is why we must always call out the glorification of terrorism as we seek to bring justice to the bereaved.
The Government’s proposed remedial order rightly negates the abhorrent immunity provisions legislated for by the last Government, and we wholeheartedly support that. Likewise, we welcome the fact that the Secretary of State has acted out of the moral imperative that the Government have to protect the memory of innocent victims rather than out of acceptance of the Court of Appeal’s interpretation of Article 2 of the Windsor Framework.
It is apparent that the courts and statutory rights bodies have wrongly taken an expansive approach to interpreting Article 2 of the protocol, which deals with “no diminution of rights”. This has constrained the UK Government in legislating for Northern Ireland as in the rest of the UK on fundamental issues such as immigration. To accept the Court of Appeal’s specific finding on this would open the door to the further erosion of the principles that underpin our constitutional position within the United Kingdom and the sovereignty of our national parliament in reserved matters. For exactly the same reason, we support the Government’s appeal in respect of the Court of Appeal’s finding with regard to non-disclosure on national security grounds and the involvement of next of kin in inquests or investigations.
The Government’s remedial order does not seek to abolish the Independent Commission for Reconciliation and Information Recovery. In fact, the Secretary of State has indicated an intention to bring forward reforms aimed at improving the independence and operation of the body. We will wait and see. This begs a question. If the Government believe that the ICRIR remains capable of providing human rights-compliant investigations into Troubles deaths, why was it not deemed appropriate for the Finucane family? Ultimately, there can be no hierarchy of victims—except in the case of the Finucane family.
The noble Baroness, Lady O’Loan, has highlighted that the proposed remedial order does not address all issues of incompatibility with the ECHR, as determined by the Court of Appeal. In some respects, that is true. However, the Government have committed to separately bringing forward primary legislation to deal with a number of elements, in addition to appealing specific findings on disclosure and the Windsor Framework. This is an ongoing process. The question we politely pose to the noble Baroness is why she believes the process should be rushed. As a party, we would be deeply concerned with any legislative intent to restore provision for inquests—particularly beyond those that had already commenced prior to the implementation of the current Act—without a fundamental reappraisal of how the coronial system in Northern Ireland approaches Troubles-related cases and, specifically, the actions of members of the security forces.
The Clonoe inquest findings have reignited an anger and alienation among veterans, innocent victims and the wider community in Northern Ireland. There is a disbelief that the actions of the SAS that day could be construed as anything other than a reasonable and justified response to the threat to life posed by heavily armed PIRA terrorists. Moreover, it seems that the wider context in which the security forces were operating at that time, as well as the prior actions of the deceased men just moments prior to their deaths, were not given fulsome consideration as part of the inquest process. That, to our mind, demonstrates a fundamental weakness in the coronial process which ought to be addressed, substantively, prior to giving consideration to restoring inquests.
This simply does not add up when we consider the ruling handed out last April by the coroner in respect of the Coagh murders of June 1991. The ruling heard that the SAS soldiers were justified in their use of lethal force because:
“The use of force by the soldiers was, in the circumstances they believed them to be, reasonable”.
It was believed that these three men—all members of the murderous East Tyrone Brigade of the IRA—were en route to murder a member of the security forces. Yet in respect of Clonoe, we are seeing a blatant attempt to rewrite the historical narrative. This is retraumatising our veterans of the security forces, who put their lives on the line against a terrorist cabal. Now they watch in horror as they are being prosecuted for the actions they took to protect their fellow servicemen and their country.
Similarly, in respect of police complaints, the apparent chasm in accountability for the failings of the current Police Ombudsman for Northern Ireland—who has been found by the courts to have overstepped the mark in alleging “collusive behaviour” against RUC officers in recent times—must not be ignored by the Government if real progress is to be made in ensuring that legacy investigations do not vexatiously target former police officers or soldiers or otherwise retrofit the events of the past to suit a particular political narrative.
We must ensure that there is never a targeted nor a mendacious approach to legacy issues in Northern Ireland which indiscriminately blames the security forces. Those brave people valiantly gave their lives for the safety of our communities. We must turn our attention to the likes of Bik McFarlane, who is so glorified and extolled by Sinn Féin. There are many families in Northern Ireland who every day wake up without someone who should have been with them today; instead, they were murdered by terrorists—who still have not been brought to justice.
The Dublin Government need to stand up and take their responsibility. We have an inquiry in Omagh; the bomb that killed all those people in Omagh was manufactured in the Irish Republic and transported from the Irish Republic, yet the Government of the Irish Republic say they have nothing to answer for. Not half they haven’t. There is not a soul in Northern Ireland, or the whole of Ireland for that matter, who believes that. They need to stand up and accept their responsibilities.
Lord Empey (UUP)
My Lords, there are two points I want to make this evening. The first concerns the fact that in December 2023, the Government of Ireland decided to take action against the United Kingdom Government over the offer of immunity for Troubles-related crimes. Of course, there was opposition in Northern Ireland from political parties to the immunity side of the legacy proposals, albeit other parts of the legislation were deemed acceptable by quite a number of people.
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, the real backcloth to this debate is that 58% of all murders were perpetrated by republicans and 29.2%, we are told, were carried out by loyalists. We are told that 10% were at the hands of security forces. Whenever you drill down into that figure, however, you will find that the real figure is 0.5% to 1%, because the vast majority of those attributed to the security forces were cases when terrorists were on their mission to murder but were thankfully intercepted by the security forces, preserving the lives of innocent, law-abiding people in Northern Ireland. We must also remember that thousands were injured, and billions of pounds of damage was done not only to property but to the fabric of our society.
One has to ask the question: why did successive Governments fail to protect the innocent people of the Province and allow the IRA to rain such terror on Northern Ireland for 30 years? The IRA sought to make Northern Ireland ungovernable and drive it into civil war. The IRA tried hard to turn not only south Armagh but Northern Ireland into bandit country, but, even after all their years of murder and mayhem, they failed. Sadly, because of decisions recently made by this Government, the republican agitators are using legacy to fight old battles, rewrite the narrative of the history of their murderous deeds, sanitise their evil actions and of course keep the pot stirred to cause division, from which they in the past have gained oxygen and electoral success.
There are those in Northern Ireland who are greatly exercised about having inquiries into the actions of the security forces alone, but they do not have the same urgency when it comes to recalling that most of the IRA victims were gallant members of our security forces or members of the isolated Protestant communities along the border areas.
Let me make it clear. I stand tonight to salute the bravery and professionalism of our security personnel during the years of republican terror. They faced a merciless foe that usually hid behind their hedges, waiting to carry out their acts of murder, whether it was of one of our young British soldiers, or members of the RUC/RUCR GC or the UDR—or indeed by planting bombs under the vehicles of their Protestant neighbours.
I remember when I was in the other House, holding a wedding photograph of a young Castlederg couple. It was the happiest day of their lives. In July 1984, a 20 year-old UDR woman, Heather Kerrigan, and her colleague Norman McKinley were murdered when an IRA landmine exploded while they were on a UDR foot patrol. Heather’s brother was injured in that attack and left to lie in his sister’s blood. Previously, in March 1984, Heather’s brother-in-law, Thomas Loughlin, the groom, was also murdered while off duty.
Let me remind the House of what I am recalling. The photograph that I held that day had four persons in it—a groom, a bride, a bridesmaid and a best man. The groom, the bridesmaid and the best man were all murdered by the IRA and the only one left was the bride, left to journey through life alone. I wonder how many remember that and how many really care.
Out of the 29 people from Castlederg murdered by the IRA, 93% of those cases remain unresolved and their families have no closure nor hope of closure. The loss, the hurt, the injustice and grief that they feel to this very day have been carried with great dignity, but in many ways, they feel abandoned by successive Governments. Like so many families, I understand their hurt, for no one has been brought to justice for the murder of my loved ones; nor is there any hope of them being brought to justice. Nor is there any hope for justice for the eight workmen murdered along the roadside at Teebane, outside Cookstown; nor for the 10 men who were ordered out of the bus at Kingsmill and massacred—although at the inquest, the families were told that one of the suspects had been linked to almost 50 murders; nor for the 11 innocent people brutally murdered at the Enniskillen Remembrance Day service on 8 November 1987. Some 63 people were injured that day as a bomb ripped the Fermanagh town, and Ronnie Hill, a school principal, spent 13 years in a coma afterwards, dying in 2000, aged 68. The list goes on.
Why do I mention these? Most of them, the media will not mention. They have been long forgotten. Indeed, their names seldom, if ever, appear in news headlines. However, republicans parade their dead and the media will readily present the anger and the tears of their families, forgetting to remind especially the international world that it was the IRA which commenced and deliberately carried on this campaign of slaughter.
The security forces could have stopped this carnage years ago, but their hands were tied by successive appeasing Governments who were more concerned about international opinion than the safety and protection of their citizens. The southern Government also stands condemned, because, let us remember, it was the Haughey Government who first armed the IRA, and their territory was used by the IRA for years as the safe haven to run to after carrying out their evil and murderous deeds.
Lord Godson (Con)
My Lords, the much-maligned legacy Act of the last Parliament, so ably taken through this House by my noble friend Lord Caine, sought to draw a line under the Troubles and encourage the people of these islands—all of us in our own ways—to opt for a different, better way of addressing these historical matters of the utmost importance.
However, with this remedial order, the Government now propose to return to dealing with legacy questions with tried and, I am afraid to say, failed methods by seeking prosecutions and convictions that are increasingly unlikely to happen. It is a fact that, as we all know, prosecutions of Troubles-era offences conducted by paramilitaries of all parties and sectarian affiliations are less and less likely to happen because of a lack of admissible evidence. As other noble Lords have pointed out, the Government’s decision to gut the legacy Act of the previous Parliament will result in a disproportionate and unfair prosecutorial focus on the security forces, which had to work under infernally difficult circumstances throughout much of the Troubles.
To my mind, what is worse here is that the Government propose to do all of this in response to a High Court judgment that is open to very serious question indeed. Despite what the Lady Chief Justice appeared to say in her press conference last week—and indeed seemed to walk back from in her testimony today before the Constitution Committee—it is vital that we in this House and in the other House on all sides of the divide, Prime Minister and Leader of the Opposition alike downwards, be able to continue to scrutinise the actions and the judgments of those courts.
The 2023 legacy Act extends constitutional immunity to those who give information to the Independent Commission for Reconciliation and Information Recovery. The High Court and now the Government are treating these provisions as if they were somehow unprecedented. But as I and others pointed out in this place during the Second Reading debate on the legacy Act, immunity provisions have featured extensively in the peace process throughout the last 25 years. Immunity has already been widely granted to terrorists through the early release scheme for prisoners which, as we all know, was a key element of the Belfast/Good Friday agreement of 1998 and was implemented furthermore in the Northern Ireland (Sentences) Act 1998. Immunity provisions were also part of the decommissioning process—a prolonged process, as we all know—and the search for the location of the victims’ remains was another aspect of that process.
Repealing these conditional immunity provisions means making it much more difficult now to establish the truth about many unresolved cases—cases which, as I have already said, are increasingly unlikely to result in prosecutions or convictions. Parliament is not required simply to agree with the High Court, but policy choices in the legacy Act, including using conditional immunity in exchange for information, are beyond the pale. I recognise that conditional immunity provisions are highly controversial, and that many in this place will, as I pointed out, now welcome their repeal.
The same cannot so easily be said for Sections 46 and 47 of the legacy Act, which should not have been included in the remedial order and should not now be repealed at all. Many noble Lords will remember that the noble Lord, Lord Faulks, and others, including me, tabled an amendment that led to these sections being adopted in order to reverse the legal effects of the Supreme Court’s extreme judgement in the Adams case. The intention behind the legislation was twofold. The first purpose was to restore the Carltona principle, which is so important to the day-to-day conduct of government business, as has been pointed out by the noble Lord, Lord Butler of Brockwell. The other purpose was to prevent windfall compensation becoming payable to those whom, on a correct understanding of the law, had been lawfully detained for suspected involvement in terrorism.
Any such payment would be unjust and a complete waste of taxpayer money. It would also be received with understandable horror by many in the Province, and indeed in all these islands, including Great Britain. As someone pointed out, one of the unknown heroes of the Northern Ireland Troubles was the Great British taxpayer. While the Government have now signalled their opposition to Gerry Adams and others receiving compensation, I should like to take this opportunity to remind the House that this Government freely chose not to appeal the High Court declaration that Sections 46 and 47 were incompatible with the European Convention on Human Rights.
I must declare an interest as the director of Policy Exchange. For the reasons set out at length in a recent Policy Exchange paper written by Professor Richard Ekins and Sir Stephen Laws, a former First Parliamentary Counsel, and backed by many noble Peers here, the High Court’s analysis seems to many to have been plainly wrong, and it is inexplicable that the Government have chosen not to appeal it.
There is no good reason for the Government to have included repeal of these sections in the remedial order. They are clearly severable from the controversy that exists in relation to other provisions of the 2023 legacy Act, which the Government have consistently opposed. The Prime Minister himself has told Parliament that he will look at every conceivable way to avoid paying compensation in these cases. He is right to do so. The obvious way to achieve this end is to withdraw the remedial order and maintain Sections 46 and 47 in force.
Lord Bew (CB)
My Lords, I thank my noble friend Lady O’Loan for her important speech this evening. She is one of the victims of the Troubles, and it is important to pay attention to everything that she has said tonight. I think that the outstanding issues in her speech will be resolved either by the Government taking actions to improve the workings of the ICRIR or by subsequent cases in the courts. That is the likely future for the issues she raised.
If I have gathered correctly, my noble friend is a critic of the ICRIR in principle, and I approach this problem from a very different angle. I am not a critic of the ICRIR project. I admire enormously the way that Sir Declan Morgan has led it through very difficult times in the last few months. I therefore have a very different angle of vision from that of my noble friend.
This week, the Prime Minister, in his very important speech on defence, said that in 1989 he could not have envisaged a situation in Europe where the Ukraine war was happening and there was an invasion of boundaries and so on. At a moment of great hope with the collapse of communism, he could not have envisaged this. It provoked a thought in me: at the time of the Good Friday agreement, I could not have envisaged that, more than a quarter of a century later, we would be sitting in this House debating legacy cases and how legacy cases have been carried on.
If you look at the language in the Good Friday agreement itself, you could reasonably argue that it is somewhat curt on legacy victims. They are advised to take pleasure in the fact that we had negotiated peace. You would not gather from the Good Friday agreement that we would have this long, traipsing agony continuing through the courts this week—and which is likely to continue ad infinitum, unless something like the ICRIR works. It is the most important part of the 2023 Act, which I supported almost in its entirety. The ICRIR remains, and without it, we would have a future where these cases straggle on and on.
Lord Faulks (Non-Afl)
My Lords, I should declare an interest as a lawyer. They have not been getting a particularly good press during this debate although, having said that, I agree with many of the comments that have been made about their role. The great importance that seems to be attached to lawyers in this process is not always helpful.
I want to speak briefly about Sections 46 and 47, for the reasons that the noble Lord, Lord Godson, has given: namely, that I was one of those who put down an amendment which eventually resulted in those provisions finding their way into the legacy Act. I should remind noble Lords that the provisions were not in fact ultimately controversial. The current Government did not oppose the amendments, and I think all parties had some enthusiasm for them.
My interest in that area was that the decision of the Supreme Court in Adams in 2020 seemed to me, and to many lawyers, to be contrary to the Carltona principle and, effectively, to ride roughshod over a number of constitutional conventions. Of course, it produced what was, to many of us, the undesirable result that Gerry Adams and many others were going to be able to achieve compensation against the British Government for their wrongful detention. I say nothing about the internment policy. The Act was, in my view, perfectly clear that it was an authorised internment, signed by the right level of Minister.
However, we know that there was a First Instance judgment in Northern Ireland in the case of Fitzsimmons, which decided that these and a number of other provisions in the legacy Act contravened the European Convention on Human Rights, and therefore a declaration of incompatibility was appropriate. The previous Government were in the process of appealing that decision. When this Government came into power, they took a different view about, presumably, the correctness of that decision. It may be that the Minister can enlighten us, without breaching any convention, as to what the different construction that this Government placed on that decision was, as opposed to the lawyers who were advising the previous Government.
The Secretary of State for Northern Ireland has said that the remedial order will
“enable all civil proceedings that were prohibited by the legacy Act, including future cases, to proceed”.—[Official Report, Commons, 4/12/24; col. 418.]
However, in Question Time on 15 January, the Prime Minister said that he was anxious to prevent Gerry Adams obtaining compensation. Can the Minister clarify who is right and what the current position is? The declaration of incompatibility does not, of course, require the Government to amend legislation. It gives them a discretion. Why do they have to exercise that discretion in the way that they have?
Where an Act of Parliament has been passed, ultimately without controversy, to amend it by way of statutory instrument is a violation of proper constitutional practice —one that I know was deprecated by the current Attorney-General in a recent speech.
I respectfully ask the Minister to consider very carefully whether it is really appropriate to fly in the face of what Parliament decided was appropriate and yet to allow these compensation claims to proceed. They will amount to many, many pounds—we do not know how many. The noble Baroness, Lady Hoey, cited the figure given by Policy Exchange and the Minister is invited to say what her estimation is. I do not think the general public or the legislature will be happy with that situation.
Lord Elliott of Ballinamallard (UUP)
My Lords, I will speak very briefly. A lot has been said here tonight but the one thing we are absolutely sure of in Northern Ireland is that the vast majority of victims of the Troubles will never see an end or a resolution to their issue. That is the sad reality we live in.
My second point is that there will be no agreement as to the blame game there. What is turning out to be a one-sided process, where we are hauling the former security forces before the courts and inquests while the terrorists seem to be getting away without any retribution, is not right either.
Let us not forget that, over the last 25 years, a number of those in government in Northern Ireland have been former IRA terrorists. I hear all the stories that the only people who have the information are the security forces —that is not right. Some of those people in government, some of those people walking the streets of Northern Ireland, who were openly members of the IRA and other terrorist organisations, know what happened in many of those cases. They should be compelled to come forward and provide that information to the innocent victims of Northern Ireland. That is not happening. Why?
Maybe some people are afraid that it will ruin the process we have. Maybe there is an approach to it almost of cowardice. You cannot continue to not face up to the reality that those people know what happened and should be bringing that information forward to give the loved ones of those innocent victims some degree of comfort that they do not have at the moment.
I noticed, quite recently, that the courts have also ruled on the issue of collusion and collusive behaviour, where the Northern Ireland Retired Police Officers Association had to take cases to stop the police ombudsman referring first to collusion and then to collusive behaviour. I welcome those judgments. But why is it that we continue to talk about the information that the Government hold but not talk about the information that those terrorists hold—we all know who they are, some are in government, many walk in the streets—and could give to help our loved ones?
Baroness Suttie (LD)
My Lords, given the lateness of the hour, I shall endeavour to be extremely brief and will concentrate primarily on the parliamentary process. I thank the noble Baroness, Lady O’Loan, for tabling this regret Motion and allowing us to have this thought-provoking and wide-ranging debate, which has perhaps been more about legacy issues in general than specifically this order. She raised a number of extremely important points and spelled out some of the positives in this order. I recall, as she did, that during the debates we had on the previous Government’s legacy Act, all political parties in Northern Ireland were absolutely united in opposing the immunity provisions. For that reason alone, we on these Benches support this draft order.
Lord Caine (Con)
My Lords, as a Minister I spent some 28 hours in your Lordships’ House debating the legislation that is the subject of this draft remedial order and the Motion in the name of the noble Baroness, Lady O’Loan. In addition, I held somewhere in the region of 80 meetings on this subject between summer 2022 and September 2023. I hope noble Lords will therefore be relieved to hear that I have absolutely no intention of going over the same old ground on what became the Northern Ireland Troubles (Legacy and Reconciliation) Act, not least given the lateness of the hour.
All I will say is that in our view the Act represented a realistic assessment of what could be delivered for victims and survivors of the Troubles, over half a century after they began and over a quarter of a century since the Belfast agreement of 1998 effectively brought them to an end, in the context of the prospect of prosecutions and successful convictions being vanishingly rare, as my noble friend Lord Godson pointed out. I also fully appreciate that, for many people, some aspects of the legislation were extremely challenging—that has been brought out again in this debate—as they were for me, as I made clear at Second Reading in November 2022. That was why I made more than 100 amendments to the legislation as it passed through your Lordships’ House in an attempt to improve and strengthen it.
I still believe that the independent commission has the capacity to deliver better outcomes for victims and survivors of the Troubles than established processes that work for only a small minority of those who suffered and offer virtually nothing for those who suffered at the hands of terrorism. I repeat our welcome for the fact that the Government intend to keep the commission, which has the powers to compel witnesses with penalties for non-co-operation.
The Government set out in their Statement on 5 December how they intended to respond in those areas where the courts in Belfast found the legislation to be incompatible with provisions of the European convention. Of course, we set out our views accordingly. While we do not agree with the provisions of the draft remedial order concerning conditional immunity and civil cases, we respect the right of the Government to bring them forward given the strength of their opposition to them as the legislation was going through your Lordships’ House. But we fear that there is a real danger that the changes they are proposing will return us to a fragmented and incoherent approach to legacy issues and cases, which our legislation sought to address. It will result in a hierarchy of investigations, lead to the very real prospect of elderly veterans being dragged back once again before the courts and facilitate, unwittingly or otherwise, those who seek to rewrite history.
We remain puzzled over the rash decision in July to drop the appeal against the High Court judgment in respect of Sections 46 and 47 of the Act, which deal with interim custody orders, the provisions for which I inserted at Third Reading in your Lordships’ House, following extensive discussions with the noble Lord, Lord Faulks, and my noble friend Lord Godson. At the time, this was supported by the then Opposition. I commend the speeches of my noble friend and the noble Lord, Lord Faulks. I also commend the brilliant Policy Exchange paper by Sir Stephen Laws and Professor Richard Ekins on this subject.
As a result of the remedial order, Sections 46 and 47 will be removed from the Act, reopening the door to significant claims for compensation from those who argue successfully that they were unlawfully detained in the 1970s. Taken with the reopening of inquests and the resumption of civil cases, the burden on the PSNI and the court service risks becoming absolutely huge, with costs running into the tens of millions, if not more.
The noble Lord, Lord Bew, in a customarily erudite and eloquent speech, reminded us of some of the costs associated with public inquiries, including the Bloody Sunday inquiry with which he was so closely associated. What assessment have His Majesty’s Government made of the resource implications of the changes they are proposing? Where exactly will that money come from? Will it come from the £250 million pot from the Stormont House New Decade, New Approach agreement, which is intended to fund legacy issues?
The Prime Minister promised on 15 January:
“we will look at every conceivable way to prevent these types of cases from claiming damages”.—[Official Report, Commons, 15/1/25; col. 324.]
But surely, as my noble friend Lord Godson argued, the best way to achieve this would be to withdraw Sections 46 and 47 from the remedial order. We hope that, by the time the Government come to publishing the final order, they might think again on this particular matter.
Where we do agree with the Government is in continuing to appeal the court’s rulings in respect of the Windsor Framework and on the powers of the Secretary of State to preclude the disclosure of sensitive information that could put individuals at risk and make people less secure. As a result, these form no part of the remedial order, and that is something that the Opposition welcome. It follows, therefore, that the Opposition do not support the regret Motion in the name of the noble Baroness, Lady O’Loan.
While I respectfully disagree with the noble Baroness, I can understand some of her frustration, given her forthright and principled opposition to the legislation that I took through this House. The current Government came to power with a pledge to reform and repeal the legacy legislation, yet it is clear that the bulk of it will remain, including the independent commission to which the noble Baroness objected so strongly, so I understand some of her personal frustrations.
The Government say that they are seeking consensus on legacy proposals, which is commendable. However, tonight’s debate has demonstrated clearly just how difficult that might be, as it was for all their predecessors since 1998—and the noble Lord, Lord Elliott of Ballinamallard, alluded to that in his comments.
On one final point, my noble friend Lord Empey spoke of the role of the Irish Government in respect of legacy cases and the comments of the former Justice Minister and former Attorney-General Michael McDowell, who, he will not be surprised to hear, was one of the 80 meetings I had between 2022 and 2023. It is clear that the Irish Government have questions to answer about their handling of legacy issues within their own jurisdiction. At two successive meetings of the British-Irish Intergovernmental Conference, in November 2023 and April 2024, I raised these matters, and individual cases, directly with the then Foreign Minister, now the Taoiseach, Micheál Martin. I seek an assurance from the Minister that the current Government will continue to raise the issues of Omagh, the Ian Sproule case and the inter-state case, which is totally unjustified, with the Irish Government at future meetings of BIIGC.
We will of course return to all these matters in detail when the Government finally reveal their proposals. For now, given the lateness of the hour, I look forward to the Minister’s reply.
Baroness in Waiting/Government Whip (Baroness Anderson of Stoke-on-Trent) (Lab)
My Lords, I will respond to the regret Motion tabled by the noble Baroness, Lady O’Loan, regarding the scope of the proposed draft remedial order which addresses various incompatibilities found by the Northern Ireland courts in respect of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023. I acknowledge and welcome the sincerity of her concerns, and the importance of ensuring that future mechanisms for addressing Northern Ireland’s legacy issues fully comply with our human rights obligations and are capable of commanding public confidence.
Before I move on to the substance of the debate, I thank all noble Lords for their contributions. There is no more emotive or long-standing issue for us to discuss in your Lordships’ House than the legacy of the Troubles, and the real and tangible impact that this has had on too many families. I put on record my sincere thanks to everybody present who has worked tirelessly to try to deliver a level of peace and justice for those affected by the brutal and horrific acts of terror perpetuated during one of the most painful periods of British history. I want to especially thank the noble Lord, Lord McCrea, for his contribution this evening. His speech demonstrated for me the sheer scale of the trauma of the Troubles, and the reality of the horror and evil of paramilitary terrorism.
Last week, I had the honour of spending some time in Northern Ireland, meeting some of the groups that work with and support those affected by the Troubles. I am in awe of the people I met; their determination was inspiring and their stories were devastating. I thank each and every one of them—people who were prepared to share the terrible traumas that they experienced during the Troubles, including in the line of duty. I cannot comprehend the scale of the pain they continue to experience, and it is something that I will always remember.
Lord Caine (Con)
I am sorry to interrupt. To clarify, the amendments that found their way on to the statute book were government amendments that I moved at Third Reading of the legacy Act. They were not amendments in the names of the noble Lords, Lord Faulks and Lord Godson.
Baroness Anderson of Stoke-on-Trent (Lab)
I apologise, and stand corrected on the record.
This Government take their human rights obligations extremely seriously, and the provisions therefore need to be repealed. The Government are carefully exploring how to lawfully address this complex issue alongside our clear commitment to implement legacy mechanisms that are fully compliant with human rights.
For clarity, although we did not proceed with an appeal on this issue to the Court of Appeal, the Court of Appeal commented on the issue, saying that
“it will rarely be permissible in Convention terms”
to make the changes “with retrospective effect”, which fed into our decision-making. I will revert to some of the other points associated with this later in my speech.
I also recognise that a number of submissions from individuals and organisations say that the draft remedial order could or should do more, and some state that it is entirely the wrong legislative vehicle to use. I reiterate that the JCHR will very shortly publish its report, and the Government will carefully consider any recommendations made, as well as the written submissions, before coming back to Parliament to lay the remedial order for a further 60 days.
On the questions from the noble Baroness, Lady O’Loan, on the Dillon appeal, the steps outlined in the Secretary of State’s oral statement make it clear that the Government will respond directly to recent court judgments, including by bringing forward measures to create a fairer and more balanced disclosure regime, fulfilling the Government’s promises to allow inquests previously halted to proceed and to remove the bar on civil proceedings.
However, the Court of Appeal’s finding in relation to disclosure and effective next of kin participation raises issues that could reach far beyond the scope of the legacy Act, including on the state’s ability to keep people safe. Our approach to repealing Article 2 of the Windsor Framework’s grounds is framed by the importance of maintaining a clear human rights framework in Northern Ireland and across the UK.
The noble Baroness also mentioned the current Brown legal proceedings. She will appreciate that, given their ongoing nature, I cannot comment.
Many noble Lords rightly raised the current, pervading issue of the rewriting of history. I have been clear from this Dispatch Box historically, and will continue to be, that I and this Government do not and will not support the rewriting of history. I reassure noble Lords on that matter, and thank the noble Lord, Lord Weir, for being the first Peer to raise it this evening.
With regard to the issues pertaining to the Irish Government, as raised by the noble Lords, Lord Browne, Lord Morrow, Lord Empey and Lord Caine, the Government will continue detailed discussions with the Irish Government on a way forward. The Government consider the Irish Government an essential partner in this process. It is important that the UK and Irish Governments seek to agree a way forward that helps provide victims and families with as much information as possible, and to do so in a way that is underpinned by the principles set out in the Stormont House agreement.
However, the process of discussion cannot be unending. Time is passing and, as families get older, they must be afforded ways to obtain the information, accountability and acknowledgement that they have long sought. This evening, the Secretary of State was going to come and join us, but he is with the Tánaiste. They have been discussing issues between the two Governments in seeking an approach to addressing the legacy of the past in Northern Ireland in which all communities can have confidence.
On the inter-state case raised by noble Lords, of course I hope that one of the consequences of our promised legacy reform will be the withdrawal of that case, although that is a matter for the Irish Government.
Lord Faulks (Non-Afl)
As the noble Baroness pauses, I wonder whether she could help me by just clarifying one thing. I think I heard her say that the Government have come to the clear conclusion that it would be contrary to the European Convention on Human Rights to allow someone in Gerry Adams’s position—or, rather, not to allow him—to proceed with his claim for damages because that would be against the convention. Is that the Government’s position?
Baroness Anderson of Stoke-on-Trent (Lab)
That is absolutely not the Government’s position. The Government’s position is clear, and the Secretary of State and the Prime Minister have been clear: we will find a lawful way to move forward. We are still consulting with lawyers on what that should be. As a lawyer, the noble Lord will know that that is not something that can be done overnight.
The Clonoe inquest was raised by the noble Baroness, Lady Hoey, and the noble Lord, Lord Morrow. I very much appreciate the sensitivities of this inquest and its findings, as well as the anger that they have caused. The Government will come back in due course, as they are currently considering the details of the inquest.
We have discussed veterans and immunity provisions before. My position has not changed. This Government will do everything we can to support those who served—those who ran towards the fire and put themselves between terrorists and civilians in order to keep people safe.
I want to touch on the speech from the noble Lord, Lord Robathan. Unusually, I find myself agreeing with much of what he said—it had to happen once— including that people in uniform must operate within the law and that the overwhelming majority of those in Northern Ireland did exactly that. We owe them a debt of gratitude; I am grateful for their service. We will continue to work with them and with veterans groups to make sure that, as and when any support or legal advice is required, we are there with them.
The Policy Exchange funding was raised by several noble Lords. This Government do not recognise the basis of the figures for any future costs in this report; they are entirely speculative. The figures include estimates based on policies that are yet to be determined. Therefore, they are highly speculative—I make no comment to the noble Lord, Lord Godson. To touch on the future costs, obviously that will form part of our debate when we bring forward primary legislation.
There were comments this evening about the role of the Attorney-General. I want to be very clear and remind noble Lords that, due to precedent, neither we nor he can comment on the specifics of which cases he advised on, and noble Lords would not expect me to do so.
Baroness O'Loan (CB)
My Lords, I thank all noble Lords who have taken part in the debate tonight. It has been wide-ranging, going way beyond the scope of the regret Motion that I tabled—I knew it would be thus.
I would like to correct one issue raised by the noble Lord, Lord Caine. For 20 years, I have called for the establishment of an independent body to deal with the past. My objection to the legislation about the ICRIR was the way in which it lacked independence and was to be so circumscribed and controlled by government.
What we are contemplating now is the future handling of the legacy of the past. Tonight’s debate has enabled wide-ranging discussion of the past. The multiple atrocities of the past have been well articulated here tonight. We should never forget. When I do this work, I am always catapulted back to the darkness, the terror and the pain of the bomb explosion in 1977, which took the life of my first baby as I was pregnant, and to the terrible attempted murder of one of my boys almost 20 years ago by loyalists. The IRA killed my first child; the loyalists tried to kill this child. They left him with life-changing injuries. There are many tears, my Lords—many, many tears.
For many decades I have worked also with victims. I remember the police widow who told me that she sat at her window in her lonely farmhouse for decades, waiting for the police officers, her husband’s colleagues, to come back and tell her what had happened—what they had found. But they never came. They were moved on to other cases. I remember the parents of the last soldier to die in Northern Ireland, Stephen Restorick, whose case I dealt with. I remember the children of Jean McConville and all the disappeared of the Troubles —disappeared by the IRA—with whom I have worked extensively, and I was thinking most recently of the victims of the Omagh bombing, whose stories have been told so graphically in the past weeks. So much pain—so much grief.
We must find a way to provide one system, accessible to all, which seeks to provide for the needs of all. It will be difficult but we must find a way. In that spirit of positivity I tabled this regret Motion. It is important to explore together as constructively as we can how we can care for all our people as we journey forward into the future. I beg leave to withdraw the Motion.