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

Lord Faulks Excerpts

Wednesday 26th February 2025 Lords Chamber

The world has changed this week. Nobody thought that the overseas aid budget could be slashed in a day. Why do we think that we are going to carry on paying out lawyers’ fees in this way, ad infinitum?

[Lord Faulks (Non-Afl)]

My Lords, I should declare an interest as a lawyer. They have not been getting a particularly good press during this debate although, having said that, I agree with many of the comments that have been made about their role. The great importance that seems to be attached to lawyers in this process is not always helpful.

I want to speak briefly about Sections 46 and 47, for the reasons that the noble Lord, Lord Godson, has given: namely, that I was one of those who put down an amendment which eventually resulted in those provisions finding their way into the legacy Act. I should remind noble Lords that the provisions were not in fact ultimately controversial. The current Government did not oppose the amendments, and I think all parties had some enthusiasm for them.

My interest in that area was that the decision of the Supreme Court in Adams in 2020 seemed to me, and to many lawyers, to be contrary to the Carltona principle and, effectively, to ride roughshod over a number of constitutional conventions. Of course, it produced what was, to many of us, the undesirable result that Gerry Adams and many others were going to be able to achieve compensation against the British Government for their wrongful detention. I say nothing about the internment policy. The Act was, in my view, perfectly clear that it was an authorised internment, signed by the right level of Minister.

However, we know that there was a First Instance judgment in Northern Ireland in the case of Fitzsimmons, which decided that these and a number of other provisions in the legacy Act contravened the European Convention on Human Rights, and therefore a declaration of incompatibility was appropriate. The previous Government were in the process of appealing that decision. When this Government came into power, they took a different view about, presumably, the correctness of that decision. It may be that the Minister can enlighten us, without breaching any convention, as to what the different construction that this Government placed on that decision was, as opposed to the lawyers who were advising the previous Government.

The Secretary of State for Northern Ireland has said that the remedial order will

“enable all civil proceedings that were prohibited by the legacy Act, including future cases, to proceed”.—[Official Report, Commons, 4/12/24; col. 418.]

However, in Question Time on 15 January, the Prime Minister said that he was anxious to prevent Gerry Adams obtaining compensation. Can the Minister clarify who is right and what the current position is? The declaration of incompatibility does not, of course, require the Government to amend legislation. It gives them a discretion. Why do they have to exercise that discretion in the way that they have?

Where an Act of Parliament has been passed, ultimately without controversy, to amend it by way of statutory instrument is a violation of proper constitutional practice —one that I know was deprecated by the current Attorney-General in a recent speech.

I respectfully ask the Minister to consider very carefully whether it is really appropriate to fly in the face of what Parliament decided was appropriate and yet to allow these compensation claims to proceed. They will amount to many, many pounds—we do not know how many. The noble Baroness, Lady Hoey, cited the figure given by Policy Exchange and the Minister is invited to say what her estimation is. I do not think the general public or the legislature will be happy with that situation.

[Lord Elliott of Ballinamallard (UUP)]

My Lords, I will speak very briefly. A lot has been said here tonight but the one thing we are absolutely sure of in Northern Ireland is that the vast majority of victims of the Troubles will never see an end or a resolution to their issue. That is the sad reality we live in.

My second point is that there will be no agreement as to the blame game there. What is turning out to be a one-sided process, where we are hauling the former security forces before the courts and inquests while the terrorists seem to be getting away without any retribution, is not right either.

Let us not forget that, over the last 25 years, a number of those in government in Northern Ireland have been former IRA terrorists. I hear all the stories that the only people who have the information are the security forces —that is not right. Some of those people in government, some of those people walking the streets of Northern Ireland, who were openly members of the IRA and other terrorist organisations, know what happened in many of those cases. They should be compelled to come forward and provide that information to the innocent victims of Northern Ireland. That is not happening. Why?

Maybe some people are afraid that it will ruin the process we have. Maybe there is an approach to it almost of cowardice. You cannot continue to not face up to the reality that those people know what happened and should be bringing that information forward to give the loved ones of those innocent victims some degree of comfort that they do not have at the moment.

I noticed, quite recently, that the courts have also ruled on the issue of collusion and collusive behaviour, where the Northern Ireland Retired Police Officers Association had to take cases to stop the police ombudsman referring first to collusion and then to collusive behaviour. I welcome those judgments. But why is it that we continue to talk about the information that the Government hold but not talk about the information that those terrorists hold—we all know who they are, some are in government, many walk in the streets—and could give to help our loved ones?

--- Later in debate ---

[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.

[Lord Faulks (Non-Afl)]

As the noble Baroness pauses, I wonder whether she could help me by just clarifying one thing. I think I heard her say that the Government have come to the clear conclusion that it would be contrary to the European Convention on Human Rights to allow someone in Gerry Adams’s position—or, rather, not to allow him—to proceed with his claim for damages because that would be against the convention. Is that the Government’s position?

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

That is absolutely not the Government’s position. The Government’s position is clear, and the Secretary of State and the Prime Minister have been clear: we will find a lawful way to move forward. We are still consulting with lawyers on what that should be. As a lawyer, the noble Lord will know that that is not something that can be done overnight.

The Clonoe inquest was raised by the noble Baroness, Lady Hoey, and the noble Lord, Lord Morrow. I very much appreciate the sensitivities of this inquest and its findings, as well as the anger that they have caused. The Government will come back in due course, as they are currently considering the details of the inquest.

We have discussed veterans and immunity provisions before. My position has not changed. This Government will do everything we can to support those who served—those who ran towards the fire and put themselves between terrorists and civilians in order to keep people safe.

I want to touch on the speech from the noble Lord, Lord Robathan. Unusually, I find myself agreeing with much of what he said—it had to happen once— including that people in uniform must operate within the law and that the overwhelming majority of those in Northern Ireland did exactly that. We owe them a debt of gratitude; I am grateful for their service. We will continue to work with them and with veterans groups to make sure that, as and when any support or legal advice is required, we are there with them.

The Policy Exchange funding was raised by several noble Lords. This Government do not recognise the basis of the figures for any future costs in this report; they are entirely speculative. The figures include estimates based on policies that are yet to be determined. Therefore, they are highly speculative—I make no comment to the noble Lord, Lord Godson. To touch on the future costs, obviously that will form part of our debate when we bring forward primary legislation.

There were comments this evening about the role of the Attorney-General. I want to be very clear and remind noble Lords that, due to precedent, neither we nor he can comment on the specifics of which cases he advised on, and noble Lords would not expect me to do so.