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.