Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Macdonald of River Glaven Excerpts

Committee stage
Thursday 11th May 2023 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, I support the amendment in the names of the noble Lords, Lord Godson and Lord Faulks. The principal point I want to make is that this amendment is not about the justice of internment as a general principle or the justice of the internment of a particular individual. It is purely about whether an individual should receive compensation because there was found to be a glitch in the procedure in ordering the internment because the Secretary of State did not personally consider it.

As has been said, such orders were signed by Ministers acting under the authority of the Secretary of State in accordance with the very well-established Carltona principle. That was certainly something that has always been understood by the Civil Service, and the reversal of it would have quite serious consequences for government. But whether or not there was a procedural glitch, the issue in my mind is whether compensation should be paid, not for an injustice but for such an error in procedure. I submit that the Government are entitled to protect themselves from having to pay compensation from the public purse for what is not an injustice but a procedural glitch. On those grounds, I support Amendment 154A.

[Lord Macdonald of River Glaven (CB)]

My Lords, I want to briefly offer some words of support for that amendment. In their paper, Professor Ekins and Sir Stephen Laws, the former First Parliamentary Counsel, make a compelling argument that the United Kingdom Supreme Court judgment was wrong. I will not address that, because it is not important for the purposes of the amendment. What is important is that they also make a compelling argument for the deleterious practical consequences that are likely to flow from Adams because of the importance of the Carltona principle to the good and smooth running of government. That is beyond argument, and the risk here is that that principle has been in some way undermined.

Let me give an analogy. As your Lordships will be aware, a number of the most serious and sensitive criminal cases require the consent of the DPP before they may proceed. But the system has always been that the Director of Public Prosecutions designates a small number of his or her most senior prosecutors to exercise this consent function on the DPP’s behalf. Of course, if the DPP wishes to call in a particular case to consider himself or herself, that will and does happen. But if it were ever to be the case that every file requiring DPP consent had to be placed before the DPP in person, the system would swiftly grind to a halt; or, the DPP would exercise that consent allegedly personally but really and practically on the basis of advice that he or she had received elsewhere. So the present system is the more honest. The individual giving the consent, exercising the consent function, is the individual who has actually read and considered the papers. To the extent that this amendment will protect and fortify the Carltona principle, it has my full support.

[Lord Howell of Guildford (Con)]

My Lords, I strenuously support this amendment spoken to by my noble friend Lord Faulks, supported by my noble friend Lord Godson, and for two specific and extremely important reasons.

The first is simply this. If your Lordships go back to the 1972 detention of terrorists order passed through the House of Commons and this House, they will find specific provision in the text of that order for 28-day and night ICOs to be signed by Ministers of State, junior Ministers or other officials. We were doing that—I had the privilege of being involved in taking it through the House of Commons at the time—not just to reinforce the eminently sensible Carltona principle but for the most practical, hard-headed considerations of the circumstances in which these matters would have to be handled.

What we were dealing with seems to have fallen out of the memory of many people. Although we said that it was not a war, the Provisional IRA said it was, and indeed there was talk from Dublin of the same thing. We were having to deal with war conditions, whether or not we accepted that a war was being waged against the United Kingdom. The practicality of that was that the Secretary of State—Mr William Whitelaw at the time, under whom I served—was having to move very quickly between Belfast and the Cabinet, handling the situation in the Houses of Parliament and a variety of other commitments as well. It was perfectly obvious that, for the smooth working of the procedures and the empowerment of the detention of terrorists order and many other pieces of legislation, he would need support of all kinds in handling these matters—in particular, in accordance with the detention of terrorists order and Carltona.

Much of the discussion since has been detached from the context and intense pressures in which we were working after the fall of Stormont and the arrival of the Whitelaw mission in Northern Ireland. Incidentally, this had the support of the whole House. The House of Commons supported it unanimously; there were maybe one or two queries but no amendments at all.

The second reason for my support for this amendment is that, while I do not wish to criticise the courts in anyway—I would not dare do so—I am absolutely baffled that legal and court procedures in a complex matter of this kind, going back in history, did not involve calling any witness of any kind to corroborate what actually happened and what went on in Stormont and in the procedures we are discussing. Ministers should have been called in those proceedings. It happens that I am the only Minister left from the Whitelaw team who is still alive, and I should have expected to be asked exactly how these things went on. What happened when one was asked on a Sunday night to sign an ICO? Who was consulted? To what extent did one talk to the Secretary of State beforehand, or to other Ministers of State or important witnesses from the police and other authorities? This was extensive but none of it was ever discussed.

It is utterly bizarre that somehow the court procedures should ignore what was specifically provided for in the original order. This seems to be almost incomprehensible. I therefore ask strongly that the Government reconsider what my noble friend Lord Faulks has put so eloquently and the point that the noble Lord, Lord Butler, has rightly argued about the procedure. Was there really a procedural glitch? No one knows; it was never discussed, and yet here we are with the prospect of millions of pounds being claimed on the basis of a judgment that appears to be based on sand—on nothing.

This is a very serious matter; it is a dangerous and costly matter. It may encourage many more difficult feelings at a time when—heaven knows—the whole balance and fragility of Northern Ireland is once again in question. It would be a great mistake not to accept the validity behind this clause, even if it needs amending in certain ways, and to pass it by or cast it aside on the grounds of matters settled. This is not settled; it is unsettled and most unsatisfactory. It needs very serious determination and consideration now.

Bloody Sunday Inquiry

Lord Macdonald of River Glaven Excerpts

Wednesday 13th October 2010 Lords Chamber

[Lord Macdonald of River Glaven]

My Lords, it is a great honour and a privilege to address your Lordships’ House for the first time. I do so with a sense of trepidation, in that I am following so many powerful speeches, and with a sense of privilege to be taking part in such an important debate. I am delighted to start by thanking all the staff in this building for the great kindness and patience they have shown towards me in the past few weeks. They have certainly needed their patience; I am conscious that I have asked the same questions many times over, usually regarding the directions to some place which I have already been to. Police and doorkeepers have made these rather strange first few days a great deal easier than they would otherwise have been.

Like my fellow new Members, I have been welcomed with great warmth and generosity by noble Lords from all sides of the House, and from all parties and none. Speaking of different parties, my supporters came, perhaps slightly unusually, from two: my noble friend Lady Scott of Needham Market, the president of the Liberal Democrats, acted as introducer and supporter to a number of new Liberal Democrat Peers, and in spite of heavy burdens elsewhere she did the same for me. The noble Baroness, Lady Kennedy of The Shaws, is not a Liberal Democrat but she was my pupil-mistress. Indeed, I was her first pupil when I was called first to the Bar. The noble Baroness will not thank me for mentioning that that was over 30 years ago. She has, however, remained an inspiration to me throughout my career in the law. I thank them both for their great kindness.

The spirit of this place is deeply impressive and I am delighted to be here. When the Deputy Prime Minister, as he then was not, first spoke to me last October about the possibility of my becoming a Liberal Democrat Peer, I naturally imagined that he was proposing that I should join a small, independently minded band of committed troublemakers. Instead, and much to my surprise, I find myself sitting on the government Benches. We shall see how much difference that makes to my noble friends—or, I suppose, in the end, to me.

The events that occurred on 30 January 1972 in the Bogside were of startling import to the United Kingdom. Twenty-six unarmed, mainly British, citizens were shot by soldiers of the British Army on the streets of a British city. Thirteen of those mainly British citizens, seven of whom were teenagers, died immediately or soon after, while another man died four and a half months later. At least five British soldiers fired shots at people they knew posed no threat at all, and five members of the public were wounded with shots to the back. Each killing, each wounding, was unjustified. Each was unjustifiable. No single victim had posed any threat of death or serious injury to any soldier.

The British Government have held two investigations into these momentous events. The Widgery tribunal was established in the immediate aftermath of the event. It largely cleared the soldiers and the British authorities of any blame, going no further than to describe the behaviour of some of the military as “bordering on the reckless”. That report was published in circumstances of great controversy at home and abroad, but its conclusions were accepted without hesitation by the then British Government. It seems to me that it is partly because it became so widely believed, not just throughout the United Kingdom but around the world, that Widgery had failed abjectly to uncover the truth of that day that the establishment of a second inquiry became inescapable.

No great country can knowingly allow a great injustice to lie. This is all the more so when that injustice involves the state’s own responsibility for the deaths of its innocent citizens, and particularly when that responsibility has previously been obscured by a failed inquiry headed by a then serving Lord Chief Justice. The wrong had to be righted.

This is not at all to say that the Saville inquiry was capable of righting all injustices in Northern Ireland. Of course it was not, and never could be; no one believed that to be its purpose. In particular, it has left quite untouched the terrible injustices that terrorism has wreaked upon the unionist communities over too many years. In the face of great cruelty, the resilience of the people of Northern Ireland has become a matter of historical record. Likewise, the courage of the overwhelming majority of British soldiers is overwhelmingly recognised and I pay tribute to it.

I spent five years of my life as Director of Public Prosecutions for England and Wales, much of which time was spent prosecuting terrorists of all hues and bringing them to justice. I therefore understand what terrorism represents and the great evil that it creates. I understand the misery that it brings, and the importance of destroying it utterly. But it is important to recognise the difference between illegal violence perpetrated by terrorist gangs on the one hand and illegal violence perpetrated by the state on the other. The state’s response to each category will necessarily differ. In the first case, the state has the duty to put it down; in the second, the state has an additional duty to put it right. This, I think, was the intention of Saville and, in so far as it ever could be, this intention has been realised. The inquiry took far too long and cost far too much but, when the report came, in its central findings it was exemplary. It is meticulous, it is scrupulous and, above all, it is fair.

It is said that when the Prime Minister received a first-draft response to Saville composed by his officials, he tore it up, sat down and wrote what he intended to say in his own hand. Well, good for him. Everyone wants justice; the thirst for justice is a critical marker of the human spirit, and I believe that we are all born with it. Through Saville, and through the Prime Minister’s eloquence in commending its ringing conclusions to Parliament last June, the British state has at long last delivered at least a measure of justice to all the victims of Bloody Sunday. I believe that in doing so, the state has strengthened itself.