Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (Remedial) Order 2024

Baroness Hoey Excerpts

Wednesday 26th February 2025 Lords Chamber

[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.