Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Howell of Guildford Excerpts

Committee stage
Thursday 11th May 2023 Lords Chamber

[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.

[Baroness O'Loan (CB)]

My Lords, the discussion on Amendment 154A shows the importance of getting legislation right in the first instance. I speak in support of Amendment 146 to Clause 34, to which I have put my name. This amendment and Amendment 152 will remove the provision that all existing investigations must transfer from the existing investigation body to the ICRIR. Chief officers of police have to notify the Secretary of State of all criminal investigations of Troubles-related matters. The only exception to this under the Bill arises when a prosecution is under way and the investigation is pursuant to the prosecution.

Northern Ireland Troubles (Legacy and Reconciliation) Bill

Lord Howell of Guildford Excerpts

Report stage
Monday 26th June 2023 Lords Chamber

For these two reasons, this is a very important amendment, and I am glad to hear that the Government are now sympathetic to its purpose.

[Lord Howell of Guildford (Con)]

My Lords, I, too, support this amendment, so powerfully moved by the noble Lord, Lord Faulks, and supported by the noble Lord, Lord Butler. I realise that behind the amendment is the wider concern of protecting the Carltona principle from being undermined—and I shall come to that a bit more in a moment.

It may help your Lordships if I explain some of the detailed background of how we operated during this period in Northern Ireland and Belfast after the fall of Stormont in 1972. In doing so, I draw from extensive personal notes that I made of almost every occasion during the two or three years I served there, and what they emphasise and remind me of. I will share with the House a brief picture of how we worked and the plan that we had to devise in order to operate in a very violent, dangerous and fast-moving situation.

There was the Secretary of State, the late Lord Whitelaw, and three Ministers with him, of whom I was one, with about 12 or 13 departments that we had to take over between us in the Northern Ireland Government. We each had quite a lot of departments to cover. The plan was always to have one duty Minister at Stormont right through the weekend at all times. During the week, there was one Minister usually out in the field, visiting hospitals, victims, violent situations and communities, doing the work of their departments. We tried to keep one Minister at Westminster, constantly accountable and ready to meet Members of Parliament and Members of your Lordships’ House, answer PNQs and so on.

This was a very dangerous moment; the violence was very great indeed, and people were being killed all the time. At all times, the four of us—the Secretary of State and the three Ministers—kept in very close contact with each other; my notes refer to a lot of telephone calls that we had with each other and our constant movements. One moment the Secretary of State would need to be in the Cabinet and the next moment he would have to fly back to Belfast—then the next moment he would be in his own constituency. The same applied to the two others of us as well. Of course, Lord Windlesham was a Member of this House at the time.

This is a recorded picture of an extraordinary situation, which I do not believe has ever been repeated, for British Ministers or a department of government. Just to give an example, I see that I noted in my memoirs that one week I crossed the Irish Sea five times—and I am sure that my fellow Ministers were having the same experience of constant movement, all the more so as the Government at the time had quite a narrow majority and the Whips were saying, “Why aren’t you here instead of in Belfast?” You had to be in two places at once.

Throughout all of this, dependence on the Carltona principle and being able to conduct matters in accordance with that principle was absolute and unquestioned. We could not possibly have managed without that principle operating. It was for that reason—and this has possibly been missed by some commentators—that, when we put the provisions about Carltona in the Detention of Terrorists (Northern Ireland) Order 1972, we strengthened it—it is a strengthened principle there, because it limits the permission to sign to Ministers rather than to officials, referring specifically to Ministers and Under-Secretaries of State. The provision is absolutely crystal clear; it is in print and a parliamentary clear wish, passed without any opposition at all and applied in good faith, because we knew that that was the law and the wish of Parliament.

I have no doubt, as the noble Lord, Lord Butler, has wisely reminded us, that, if the judgment is allowed to stand unreversed, it would severely constrain normal government operations. Looking backwards in the rear-view mirror, as it were, it would have made our work in Northern Ireland absolutely impossible, as we moved towards the power-sharing agreement of 1973, which is said to have been the foundation for the Good Friday agreement some 20 years later. We could not have conducted affairs in that atmosphere of violence and killing—indeed, the IRA called it a war, although we did not—without the Carltona principle being applied. Of course, the judgment opens the door to all sorts of meritless litigation and unreserved compensation, which would be completely wrong.

I am astonished, frankly, that such a legal error could have been made. If the Government are not able to meet this—as I hope that they are, from indications by the noble Lord, Lord Faulks—and are not able to respond in a positive way, I shall be even more astonished that such an error could be perpetuated.

[Baroness Hoey (Non-Afl)]

My Lords, when I asked a question about this some six months ago I was assured that something would be done to sort it—I think that was the word used—so I am very pleased to support the amendment in the name of the noble Lords, Lord Faulks and Lord Godson. I am pleased and waiting to hear what the Minister will say, because I am very hopeful now that this will get sorted and that we will not have to have a vote on it. It would be good if he were able to make it very clear that the legislation will definitely be amended, so that we get the result before Third Reading. I think it is useful to remind noble Lords; the noble Lord, Lord Howell, gave a very clear view of what things were like back in 1972.

In the judgment, Lord Kerr said that the law said that it had “to appear” to the Secretary of State that the person in question was suspected of organising terrorism. Ironically, the case of Gerry Adams was one where it could unquestionably have appeared to Mr Whitelaw that a custody order was appropriate; his personal consideration was just not recorded in the archives. I am sure that the Secretary of State knew, rather than suspected, that Adams was a key figure, because he had him flown over for negotiations with the IRA at Cheyne Walk in 1972, a year earlier. Lord Kerr also said that Mr Whitelaw should have been able to sign all such custody orders, as

“there was no evidence that this would place an impossible burden”

on him or be “unduly onerous”, given that Merlyn Rees, his Labour successor from March 1974, managed to.

I think this is a reflection of an unhistoric assertion lacking context, given the terrible violence outlined by the noble Lord, Lord Howell, of 1972 and 1973, let alone the logistics involving Ministers, one of whom had to be in England and one in Belfast. Furthermore, it took no account of the differing political circumstances involving Secretary of State Merlyn Rees, who was very keen to end internment and sought to minimise the number of orders being placed in front of him. In fact, internment ended a year later.

Noble Lords should also remember that the Supreme Court President, Lord Reed of Allermuir, in effect supported a correction when he spoke to the House’s Constitution Committee in March 2021. There he said, in response to the noble Lord, Lord Howell:

“I cannot say very much about the particular case because I did not sit on it myself. Lord Kerr wrote the judgment. The Lord Chief Justice and some other justices were sitting with him. I am well aware that it is a controversial judgment ... I really cannot remember the details of the case. From what you say, it sounds like a wayward judgment, in which case it will be put right in another case”.


I believe that this amendment and what the Government are now going to do are a valuable substitute for such another case at the Supreme Court, which could otherwise take years to appear.