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

Lord Caine Excerpts

Wednesday 26th February 2025 Lords Chamber

Like the noble Baroness, Lady Hoey, I think this debate is somewhat premature in parliamentary terms because we have not yet seen the primary legislation and do not yet know what it will look like. When we eventually see it, we will again have the opportunity to debate it line by line. For that reason, I am afraid that I do not support this regret Motion, although I welcome this useful and extremely wide-ranging debate on legacy issues.

[Lord Caine (Con)]

My Lords, as a Minister I spent some 28 hours in your Lordships’ House debating the legislation that is the subject of this draft remedial order and the Motion in the name of the noble Baroness, Lady O’Loan. In addition, I held somewhere in the region of 80 meetings on this subject between summer 2022 and September 2023. I hope noble Lords will therefore be relieved to hear that I have absolutely no intention of going over the same old ground on what became the Northern Ireland Troubles (Legacy and Reconciliation) Act, not least given the lateness of the hour.

All I will say is that in our view the Act represented a realistic assessment of what could be delivered for victims and survivors of the Troubles, over half a century after they began and over a quarter of a century since the Belfast agreement of 1998 effectively brought them to an end, in the context of the prospect of prosecutions and successful convictions being vanishingly rare, as my noble friend Lord Godson pointed out. I also fully appreciate that, for many people, some aspects of the legislation were extremely challenging—that has been brought out again in this debate—as they were for me, as I made clear at Second Reading in November 2022. That was why I made more than 100 amendments to the legislation as it passed through your Lordships’ House in an attempt to improve and strengthen it.

I still believe that the independent commission has the capacity to deliver better outcomes for victims and survivors of the Troubles than established processes that work for only a small minority of those who suffered and offer virtually nothing for those who suffered at the hands of terrorism. I repeat our welcome for the fact that the Government intend to keep the commission, which has the powers to compel witnesses with penalties for non-co-operation.

The Government set out in their Statement on 5 December how they intended to respond in those areas where the courts in Belfast found the legislation to be incompatible with provisions of the European convention. Of course, we set out our views accordingly. While we do not agree with the provisions of the draft remedial order concerning conditional immunity and civil cases, we respect the right of the Government to bring them forward given the strength of their opposition to them as the legislation was going through your Lordships’ House. But we fear that there is a real danger that the changes they are proposing will return us to a fragmented and incoherent approach to legacy issues and cases, which our legislation sought to address. It will result in a hierarchy of investigations, lead to the very real prospect of elderly veterans being dragged back once again before the courts and facilitate, unwittingly or otherwise, those who seek to rewrite history.

We remain puzzled over the rash decision in July to drop the appeal against the High Court judgment in respect of Sections 46 and 47 of the Act, which deal with interim custody orders, the provisions for which I inserted at Third Reading in your Lordships’ House, following extensive discussions with the noble Lord, Lord Faulks, and my noble friend Lord Godson. At the time, this was supported by the then Opposition. I commend the speeches of my noble friend and the noble Lord, Lord Faulks. I also commend the brilliant Policy Exchange paper by Sir Stephen Laws and Professor Richard Ekins on this subject.

As a result of the remedial order, Sections 46 and 47 will be removed from the Act, reopening the door to significant claims for compensation from those who argue successfully that they were unlawfully detained in the 1970s. Taken with the reopening of inquests and the resumption of civil cases, the burden on the PSNI and the court service risks becoming absolutely huge, with costs running into the tens of millions, if not more.

The noble Lord, Lord Bew, in a customarily erudite and eloquent speech, reminded us of some of the costs associated with public inquiries, including the Bloody Sunday inquiry with which he was so closely associated. What assessment have His Majesty’s Government made of the resource implications of the changes they are proposing? Where exactly will that money come from? Will it come from the £250 million pot from the Stormont House New Decade, New Approach agreement, which is intended to fund legacy issues?

The Prime Minister promised on 15 January:

“we will look at every conceivable way to prevent these types of cases from claiming damages”.—[Official Report, Commons, 15/1/25; col. 324.]

But surely, as my noble friend Lord Godson argued, the best way to achieve this would be to withdraw Sections 46 and 47 from the remedial order. We hope that, by the time the Government come to publishing the final order, they might think again on this particular matter.

Where we do agree with the Government is in continuing to appeal the court’s rulings in respect of the Windsor Framework and on the powers of the Secretary of State to preclude the disclosure of sensitive information that could put individuals at risk and make people less secure. As a result, these form no part of the remedial order, and that is something that the Opposition welcome. It follows, therefore, that the Opposition do not support the regret Motion in the name of the noble Baroness, Lady O’Loan.

While I respectfully disagree with the noble Baroness, I can understand some of her frustration, given her forthright and principled opposition to the legislation that I took through this House. The current Government came to power with a pledge to reform and repeal the legacy legislation, yet it is clear that the bulk of it will remain, including the independent commission to which the noble Baroness objected so strongly, so I understand some of her personal frustrations.

The Government say that they are seeking consensus on legacy proposals, which is commendable. However, tonight’s debate has demonstrated clearly just how difficult that might be, as it was for all their predecessors since 1998—and the noble Lord, Lord Elliott of Ballinamallard, alluded to that in his comments.

On one final point, my noble friend Lord Empey spoke of the role of the Irish Government in respect of legacy cases and the comments of the former Justice Minister and former Attorney-General Michael McDowell, who, he will not be surprised to hear, was one of the 80 meetings I had between 2022 and 2023. It is clear that the Irish Government have questions to answer about their handling of legacy issues within their own jurisdiction. At two successive meetings of the British-Irish Intergovernmental Conference, in November 2023 and April 2024, I raised these matters, and individual cases, directly with the then Foreign Minister, now the Taoiseach, Micheál Martin. I seek an assurance from the Minister that the current Government will continue to raise the issues of Omagh, the Ian Sproule case and the inter-state case, which is totally unjustified, with the Irish Government at future meetings of BIIGC.

We will of course return to all these matters in detail when the Government finally reveal their proposals. For now, given the lateness of the hour, I look forward to the Minister’s reply.

--- Later in debate ---

I know that there has been a lot of controversy, as highlighted by the noble Lords, Lord Godson, Lord Faulks and Lord Caine, surrounding the proposed removal of Sections 46 and 47, on interim custody orders, from the legacy Act via remedial order. I will address that issue directly. The previous Government failed to address it adequately following the 2020 Supreme Court judgment in R v Adams. The Government’s belated attempt to do so via an amendment to the legacy Act in this House, in the name of the noble Lord, Lord Faulks, three full years after the judgment in R v Adams, has been found by the Northern Ireland courts to be unlawful.

[Lord Caine (Con)]

I am sorry to interrupt. To clarify, the amendments that found their way on to the statute book were government amendments that I moved at Third Reading of the legacy Act. They were not amendments in the names of the noble Lords, Lord Faulks and Lord Godson.

[Baroness Anderson of Stoke-on-Trent (Lab)]

I apologise, and stand corrected on the record.

This Government take their human rights obligations extremely seriously, and the provisions therefore need to be repealed. The Government are carefully exploring how to lawfully address this complex issue alongside our clear commitment to implement legacy mechanisms that are fully compliant with human rights.

For clarity, although we did not proceed with an appeal on this issue to the Court of Appeal, the Court of Appeal commented on the issue, saying that

“it will rarely be permissible in Convention terms”

to make the changes “with retrospective effect”, which fed into our decision-making. I will revert to some of the other points associated with this later in my speech.

I also recognise that a number of submissions from individuals and organisations say that the draft remedial order could or should do more, and some state that it is entirely the wrong legislative vehicle to use. I reiterate that the JCHR will very shortly publish its report, and the Government will carefully consider any recommendations made, as well as the written submissions, before coming back to Parliament to lay the remedial order for a further 60 days.

On the questions from the noble Baroness, Lady O’Loan, on the Dillon appeal, the steps outlined in the Secretary of State’s oral statement make it clear that the Government will respond directly to recent court judgments, including by bringing forward measures to create a fairer and more balanced disclosure regime, fulfilling the Government’s promises to allow inquests previously halted to proceed and to remove the bar on civil proceedings.

However, the Court of Appeal’s finding in relation to disclosure and effective next of kin participation raises issues that could reach far beyond the scope of the legacy Act, including on the state’s ability to keep people safe. Our approach to repealing Article 2 of the Windsor Framework’s grounds is framed by the importance of maintaining a clear human rights framework in Northern Ireland and across the UK.

The noble Baroness also mentioned the current Brown legal proceedings. She will appreciate that, given their ongoing nature, I cannot comment.

Many noble Lords rightly raised the current, pervading issue of the rewriting of history. I have been clear from this Dispatch Box historically, and will continue to be, that I and this Government do not and will not support the rewriting of history. I reassure noble Lords on that matter, and thank the noble Lord, Lord Weir, for being the first Peer to raise it this evening.

With regard to the issues pertaining to the Irish Government, as raised by the noble Lords, Lord Browne, Lord Morrow, Lord Empey and Lord Caine, the Government will continue detailed discussions with the Irish Government on a way forward. The Government consider the Irish Government an essential partner in this process. It is important that the UK and Irish Governments seek to agree a way forward that helps provide victims and families with as much information as possible, and to do so in a way that is underpinned by the principles set out in the Stormont House agreement.

However, the process of discussion cannot be unending. Time is passing and, as families get older, they must be afforded ways to obtain the information, accountability and acknowledgement that they have long sought. This evening, the Secretary of State was going to come and join us, but he is with the Tánaiste. They have been discussing issues between the two Governments in seeking an approach to addressing the legacy of the past in Northern Ireland in which all communities can have confidence.

On the inter-state case raised by noble Lords, of course I hope that one of the consequences of our promised legacy reform will be the withdrawal of that case, although that is a matter for the Irish Government.