Rule of Law

Baroness O'Loan Excerpts

Tuesday 26th November 2024 Lords Chamber

[Baroness O'Loan (CB)]

My Lords, the rule of law is a pillar of our constitution, proudly proclaimed and promoted across the world. We criticise autocracies and dictatorships which deprive people of that due process which enables them to access their rights, yet we have problems. I was very reassured by the commitments made by the Minister in her excellent speech. I congratulate her and the noble Baroness, Lady Laing, on their maiden speeches.

In 2010, Lord Bingham said:

“Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably”.


In 2022, your Lordships’ Constitution Committee described the rule of law as

“vitally important to the health of our democracy”,

saying that it was “critical” that Ministers understood the rule of law’s key principles and considered these to have primacy over political expediency.

I am not sure that we have a mechanism for ensuring that all Ministers understand the primacy of the rule of law. We do not have a requirement to consider whether a proposed law is compliant with the rule of law. Would it be desirable to introduce such a requirement? Even the requirement to ensure compliance with our obligations under the ECHR does not seem to work. In 2023, Justice reported, correctly, that there had been

“a growing legislative disregard for human rights … Laws like the Public Order Act 2023 could have a chilling effect on our rights to freedom of thought, expression, and peaceful assembly”.

It cited the excessive use of Henry VIII powers, saying that this was evident, for example, in the European Union (Withdrawal) Act 2018, in which

“power is bounded by whether the minister thinks its exercise is ‘appropriate’, rather than it being objectively ‘necessary’”.

In 2022, the much-missed Lord Judge, speaking of the extensive use of secondary legislation under the Public Health (Control of Disease) Act 1984 during the coronavirus epidemic, observed that of the 582 measures passed under that Act, 537 were made by negative resolution and 66 came into effect before the statutory instrument was laid before Parliament. He spoke graphically of the nature of those measures, which had the effect of interfering with our right to live our lives, carry on business and try to conserve the economy. Breach of the Covid-19 regulations was a criminal offence, and almost 120,000 fines were issued over the two years. It now appears that many of those restrictions were not necessary, effective or proportionate.

Most regrettably, the UK has recently seen a number of very questionable Acts and statutory instruments forced through Parliament. The Illegal Migration Act, referred to at length by the noble Lord, Lord Thomas of Gresford, required the detention and removal of individuals arriving in the UK without a visa, either to Rwanda or another safe third country, with no consideration of the asylum or human rights of any asylum seeker, who could be detained with no access to judicial review or immigration bail for the first 28 days. In November 2023, the UK Supreme Court unanimously found the Government’s policy of sending asylum seekers to Rwanda unlawful, because it is not currently a safe country. Government then entered into the Rwanda treaty, forcing through the Safety of Rwanda (Asylum and Immigration) Act 2024, which states that courts, tribunals, the Home Secretary and others, when deciding on the removal of a person to Rwanda, must conclusively treat Rwanda as a safe country. Passing a law saying that Rwanda is a safe country did not make it one.

We also saw the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 come into effect in May this year. Under that Act, bereaved families of Troubles bombings and other murders, no matter where those atrocities occurred, were deprived of the ancient legal processes of inquests and civil actions. In many cases, the prospect of prosecution even for murder was removed as a consequence of giving immunity to those who provided an account to the ICRIR describing their Troubles-related conduct.

This May, inquests in progress, which had not reached the point of final determination, ceased. In Belfast 38 inquests involving 70 individuals stopped: a small number for the coronial system, yet of massive importance to the families who sought those inquests. Many inquests involve allegations by families that state agents, from both republican and loyalist paramilitary groupings, working for or employed, assisted or enabled by the state, were involved in murders and other serious crime during the Troubles.

In April this year, the Court of Appeal rejected a claim that a coroner’s decision that a limited summary of some material should be released to the family of Paul Thompson would cause too much damage to national security. The Lord Chief Justice of Northern Ireland, Dame Siobhan Keegan, said:

“We are not convinced that disclosure of the information would breach or depart from the (Government’s) NCND … policy”.


Similar issues apply in a number of other cases, and the Secretary of State immediately announced plans to appeal the ruling to the Supreme Court.

In other cases, coroners declared their inability to continue inquests because they cannot hear evidence in closed session and called for public inquiries. Sixty year-old Sean Brown was abducted in 1997, driven some six miles in the boot of his car and shot dead. His inquest began in 1997; the first hearing was in 2023. There were 40 hearings to discuss disclosure of sensitive material, which was opposed on grounds of national security. In February this year, it emerged that more than 25 people, including state agents, have been linked by intelligence to his murder. The inquest concluded in March because the coroner would have had to use intelligence material to answer the questions that he must by law answer. Mr Justice Kinney said that a public inquiry was

“the appropriate way to consider the circumstances of Mr Brown’s murder”.

The Secretary of State rejected this and has said that the Brown family should go to the ICRIR, yet it has been criticised by the Court of Appeal because the Secretary of State can restrict access to precisely the information with which the coroner could not deal. I understand that the Brown family are now engaged in judicial review of the Secretary of State’s decision not to grant an inquiry.

Following a Northern Ireland High Court decision about the Troubles Act, the Secretary of State appealed, as did some of the families. The Court of Appeal ruled two months ago and said that Article 2(1) of the Windsor Framework imposes an obligation on the UK

“to ensure that no diminution of rights, safeguards or equality of opportunity”

arises for individuals who are resident in Northern Ireland as a result of the UK’s withdrawal from the EU, that this provision is “directly effective”, and that relevant civil rights were engaged, including certain rights under the EU victims directive.

The court said that the legacy Act had resulted in a diminution of the rights of the applicants, who have been

“deprived of access to inquests, police and Police Ombudsman investigations”,

the potential of criminal investigations of offenders and civil remedies against alleged perpetrators. All those constraints were “incompatible with the Directive”. The court concluded that by virtue of Article 2(1) of the Windsor Framework, the UK-EU withdrawal agreement and the European Union (Withdrawal) Act, the correct remedy was disapplication of the legacy Act

“to the extent of the incompatibility”.

There may yet be appeal to the Supreme Court. The Government have lodged notice of appeal but have yet to decide whether to proceed.

Before the election, the Labour Party stated that the Troubles Act would be repealed. The Secretary of State has repeatedly said that he will do so—nothing has happened yet. There has been international condemnation of the UK’s passing of the Act. Ireland is bringing proceedings against the UK in the European Court of Human Rights. More importantly, people whose loved ones died or who were seriously injured over 30 years throughout the United Kingdom have been deprived of the legal remedies that are available to all other people in the UK in cases of non-Troubles-related injuries and deaths, and their pain and suffering has been enormously exacerbated.

Trust in the rule of law and in the integrity of successive British Governments has been seriously eroded as a consequence of what has happened. It is to be hoped that His Majesty’s Government will honour their repeated promises to repeal the Troubles Act. What is required is a system that does not limit investigation, and that enables the operation of the rule of law in the context of the ongoing resolution of these matters.