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

Baroness O'Loan Excerpts

Wednesday 26th February 2025 Lords Chamber

Moved by

[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.

--- Later in debate ---

While I respect and understand the tabling of this regret Motion, I urge colleagues to recognise that this Government are committed to delivering legacy mechanisms that meet our human rights obligations while enabling society in Northern Ireland, which has come on such a long way since 1998, to begin to heal the terrible wounds of the past and look to a better future. We must take measured, thoughtful and appropriate steps to achieve this goal, and I look forward to continuing discussions with all noble Lords as we develop and introduce our legislative proposals. I therefore respectfully ask that the House acknowledges the progress being made and supports the Government’s ongoing efforts in this regard.

[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.

Motion withdrawn.