Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Caine Excerpts

3rd reading
Tuesday 4th July 2023 Lords Chamber

Moved by

[Lord Caine]

That the Bill be now read a third time.

[The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)]

My Lords, before we begin Third Reading, I will make a statement on legislative consent.

The Government remain committed to delivering better outcomes for those most affected by the Troubles by providing more information in a more timely manner to more people than is possible under current mechanisms. We have, however, been unable to secure legislative consent from the Northern Ireland Assembly, which is of course not sitting currently. It is important to note that the Government are working tirelessly to see the return of effective, locally elected and accountable devolved government, which is the best way for Northern Ireland to be governed. However, I also acknowledge the possibility —if I can put it that way—that, even if an Assembly were sitting, it may have chosen not to provide legislative consent in this case.

The Government have also not secured legislative consent from the Scottish Government. We are therefore, regrettably, proceeding without consent, as this legislation requires a UK-wide approach. As the Government, we must make difficult and realistic decisions about how we can best deliver for families in Northern Ireland. I reassure noble Lords across the House that the Government will continue to engage with all Northern Ireland parties and the Scottish Government on this matter.

Clause 42: Tort, delict and fatal accident actions

Amendment 1

Moved by

[Lord Caine]

1: Clause 42, page 36, line 4, at end insert—
“(8A) This section does not apply to a relevant Troubles-related civil action if, or to the extent that, section (Interim custody orders: prohibition of proceedings and compensation)(1) applies to the action (prohibition of civil claims alleging invalidity of interim custody orders).”Member’s explanatory statement
This provides that Clause 42 does not apply to proceedings to which subsection (1) of Clause (Interim custody orders: prohibition of proceedings and compensation) applies.

[The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)]

My Lords, I committed to tabling an amendment at Third Reading in response to widespread concerns raised by the House over the 2020 Supreme Court ruling concerning the validity of interim custody orders made under Troubles-era internment legislation. We debated these issues at length during the amending stages, and I am grateful to the noble Lord, Lord Faulks, and my noble friend Lord Godson for raising these matters and for the constructive manner in which they engaged on the amendments that I tabled late last week.

To be clear, it has always been the Government’s understanding that interim custody orders, made by Ministers of the Crown under powers conferred on the Secretary of State, were perfectly valid. To restore clarity around the legal position and ensure that no one is inappropriately advantaged by a different interpretation of the law on a technicality, I have tabled amendments that retrospectively validate all interim custody orders made under Article 4 of the Detention of Terrorists (Northern Ireland) Order 1972, as well as paragraph 11 of Schedule 1 to the Northern Ireland (Emergency Provisions) Act 1973. This has the effect of confirming that a person’s detention under an interim custody order was not unlawful simply because it had been made by a junior Minister rather than by the Secretary of State personally, as was always the understanding of successive Governments.

The amendments would also prohibit certain types of legal proceedings, including civil cases, applications for compensation as a result of miscarriages of justice, and appeals against conviction which rely on the 2020 ruling from being brought or continued. To align with other prohibitions in the Bill, the continuation of pending claims and appeals in scope would be prohibited immediately from commencement.

There is a specific exemption in the Bill for certain types of ongoing criminal appeals, where leave to appeal has already been granted or where there has been a referral by the Criminal Cases Review Commission by the time of the Bill’s commencement. Importantly, this exception would not allow for the payment of compensation flowing from the reversal of such convictions. I make it clear that this amendment would not lead to convictions already reversed being reinstated. I hope the House will join me in welcoming the legal clarity that these amendments bring. I beg to move.

[Lord Faulks (Non-Afl)]

My Lords, I thank the Minister for tabling these amendments in response to amendments tabled by me and the noble Lord, Lord Godson, which were supported by the noble Baroness, Lady Hoey. I thank the Minister and his officials very much for the constructive way in which they engaged with us to produce this complex amendment in response to our simpler but plainly inadequate amendment. I also thank the noble Lord, Lord Butler, who is not in his place. He supported the amendment on the basis of the well-understood Carltona doctrine.

I have also been asked to mention the noble Lord, Lord Howell, who is in the interesting position of being the only living Minister who was in Northern Ireland at the time and directly involved with this and a number of other ICOs. I thank him and many other noble Lords for their help with these amendments. They will do a great deal to restore the Carltona principle to its proper place and it will put right a decision of the Supreme Court which was no doubt reached in good faith but which was, in retrospect, wrongly decided.

I have a couple of questions for the Minister, of which I have given him notice. The first is in relation to the commencement date for the two new clauses. They are described as coming into force two months after Royal Assent. I understand what he says about those extant criminal appeals. It seems that delaying this for two months risks there being some further appeals which will go forward on the rather unfortunate premise that the relevant ICOs were unlawfully entered into. Can he clarify that?

Secondly, the second proposed new clause contains an order-making power, for regulations under Section 55(2), which is consequential on the section and allows a Minister to amend this Act. They are subject to the affirmative procedure, but I am concerned, as the House always is, by powers of this scale. I seek an assurance from the Minister: although I know that the current Secretary of State will not be amending the Act to, in any way, take away with the left hand what it has given with the right, it would be useful to have on record the assurance that the Bill does not intend to amend its provisions in any substantial way, particularly those that are the subject of these amendments.

I welcome these amendments and thank the Government very much for their co-operation.

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[Lord Caine (Con)]

My Lords, I am as always very grateful to those who have contributed. In direct response to the noble Baroness, Lady Suttie, I can assure her that the DoJ in Northern Ireland was consulted on these amendments.

I am grateful again to the noble Lord, Lord Faulks, for the very constructive way in which he has engaged on these matters. With respect to commencement, it is the Government’s intention that this should commence at the same time as the Clause 42 prohibition in the Bill relating to the ending of civil proceedings: that is, two months after Royal Assent, which is the normal commencement date. We believe that a consistent approach is important, particularly when bringing forward an amendment that is about ensuring legal clarity.

The Government believe that there is little or no prospect of compensation claims being hurried through in the two months between Royal Assent and commencement. To give an illustrative example of the pace of such claims, there has to date, to our knowledge, been no payment of compensation to anyone bringing a claim as a direct result of the Supreme Court judgment in 2020; nor are the Government aware of any of these cases being close to awarding compensation. This includes the significant cohort of civil claims in this area, which remain at a relatively early stage.

On the issue of consequential powers raised by the noble Lord and by the noble Baroness, Lady O’Loan, in her remarks, the power exists for the new provisions. I assure the House that this is solely for the purpose of consequential amendments and not to be used to alter fundamentally the policy intent of the provisions within the amendments, or their scope in bringing relevant proceedings to an end. It is intended to be very limited indeed.

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Moved by

[Lord Caine]

2: After Clause 44, insert the following new Clause—
“Interim custody orders: validity
(1) This section applies in relation to the functions conferred by—(a) Article 4(1) of the 1972 Order, and (b) paragraph 11(1) of Schedule 1 to the 1973 Act,(which enabled interim custody orders to be made, and which are referred to in this section as the “order-making functions”).(2) The order-making functions are to be treated as having always been exercisable by authorised Ministers of the Crown (as well as by the Secretary of State).(3) An interim custody order is not to be regarded as having ever been unlawful just because an authorised Minister of the Crown exercised any of the order-making functions in relation to the order.(4) The detention of a person under the authority of an interim custody order is not to be regarded as having ever been unlawful just because an authorised Minister of the Crown exercised any of the order-making functions in relation to the order.(5) Subsections (3) and (4) do not limit the effect of subsection (2).(6) This section and section (Interim custody orders: prohibition of proceedings and compensation) apply only in relation to an exercise of any of the order-making functions which was conduct forming part of the Troubles (see, in particular, section 1(2)); and for this purpose any exercise of any of the order-making functions must be assumed to have been conduct forming part of the Troubles unless the contrary is shown.(7) In this section and section (Interim custody orders: prohibition of proceedings and compensation)—“1972 Order” means the Detention of Terrorists (Northern Ireland) Order 1972 (S.I. 1972/1632 (N.I. 15));“1973 Act” means the Northern Ireland (Emergency Provisions) Act 1973;“authorised Minister of the Crown” means a Minister of the Crown authorised to sign interim custody orders—(a) by Article 4(2) of the 1972 Order (in the case of such orders under that Article), or(b) by paragraph 11(2) of Schedule 1 to the 1973 Act (in the case of such orders under that paragraph);“interim custody order” means an interim custody order under—(a) Article 4 of the 1972 Order, or(b) paragraph 11 of Schedule 1 to the 1973 Act;“order-making functions” has the meaning given in subsection (1).”Member’s explanatory statement
This provides for Article 4 of the Detention of Terrorists (Northern Ireland) Order 1972 and the corresponding provision in the Northern Ireland (Emergency Provisions) Act 1973 to be read as having allowed junior Ministers to make interim custody orders (which was understood to be their effect at the time when the powers were in force).

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Moved by

[Lord Caine]

4: Clause 56, page 48, line 16, at end insert—
“(4A) Where regulations under this Act are subject to made affirmative procedure, the statutory instrument containing them must be laid before Parliament after being made.(4B) Regulations contained in a statutory instrument laid before Parliament under subsection (4A) cease to have effect at the end of the period of 28 days beginning with the day on which the instrument is made unless, during that period, the instrument is approved by a resolution of each House of Parliament.(4C) In calculating the period of 28 days, no account is to be taken of any whole days that fall within a period during which—(a) Parliament is dissolved or prorogued, or(b) either House of Parliament is adjourned for more than four days.(4D) If regulations cease to have effect as a result of subsection (4B), that does not— (a) affect the validity of anything previously done under the regulations, or(b) prevent the making of new regulations.”Member’s explanatory statement
This sets out the made affirmative procedure for Parliamentary scrutiny of regulations under Clause 55 which make provision in consequence of Clause (Interim custody orders: validity) or (Interim custody orders: prohibition of proceedings and compensation).

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Moved by

[Lord Caine]

5: Clause 59, page 53, line 25, at end insert—
“(3A) Sections (Interim custody orders: validity) and (Interim custody orders: prohibition of proceedings and compensation) extend to Northern Ireland only.”Member’s explanatory statement
This provides for the two new Clauses in Lord Caine’s name to extend only to Northern Ireland (like the 1972 Order and 1973 Act, to which the new Clauses relate).

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Moved by

[Lord Caine]

6: Clause 60, page 53, line 31, at end insert—
“(aa) section (Interim custody orders: prohibition of proceedings and compensation)(5);”Member’s explanatory statement
This provides for subsection (5) of Clause (Interim custody orders: prohibition of proceedings and compensation) to come into force on royal assent (as it relates to the power to make consequential provision which comes into force then).

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Moved by

[Lord Caine]

9: In the Title, line 6, at end insert “, and to provide for the validity of interim custody orders.”
Member’s explanatory statement
This is consequential on Clauses (Interim custody orders: validity) and (Interim custody orders: prohibition of proceedings and compensation).

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Moved by

[Lord Caine]

That the Bill do now pass.

Bill passed.