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

Lord Bew Excerpts

Wednesday 26th February 2025 Lords Chamber

[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.