That this House regrets that the proposed Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (Remedial) Order 2024 does not address all areas of the 2023 Act identified by the courts as being incompatible with the United Kingdom’s obligations under the European Convention on Human Rights.
My Lords, I express my appreciation to the Minister for meeting me to discuss these matters. I hope that we will be able to continue that dialogue in the future.
The passage of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 through your Lordships’ House was marked by the then Government’s refusal to accept that much of its content was in breach of existing legal obligations. The High Court and the Court of Appeal in the Dillon cases confirmed this. There was some transient comfort in the fact that the Government declared their intention to repeal the Act. That comfort disappeared, however, when it became clear that the Government were determined to amend the Act rather than repeal it, and to keep the ICRIR, which lies at the heart of the Act.
The proposed remedial order addresses only four of the eight specific issues declared to be incompatible with the ECHR after the hearings in the Dillon case. Of course, a limited number of issues were selected by the judge in Dillon; other problems with the Act are not affected by the draft remedial order. It is for this reason that I have tabled this regret Motion.
By this Act, the Conservative Government withdrew from citizens across the UK—whether from Birmingham, Belfast, Brighton, Ballygawley, Enniskillen, Manchester, Warrenpoint or Warrington—who have been affected by Troubles-related crimes between 1966 and 1998 the right to access criminal investigations, legal proceedings, inquests and police complaints processes. People who suffered Troubles-related atrocities before and after the relevant period continue to have access to all legal routes available in the United Kingdom.
It is important to say that this regret Motion is not about the coroner’s report findings in the Clonoe case, which was the subject of a recent Question in your Lordships’ House. Equally, it is not about whether Gerry Adams and other IRA members should receive compensation because they were unlawfully detained in 1970s. The reality is that many of those interned in the 1970s were simply scooped up because they lived in particular areas and belonged to particular communities. Some of them were still children. They were arrested and detained for a period of years in some cases, although there was no evidence produced against them. The IRA and the Real IRA committed the most appalling atrocities and murdered indiscriminately, as did the UVF, the UDA and all the other paramilitary groups. But this is not about whether Gerry Adams should receive compensation.
The four measures repealed under the draft remedial order include Section 8, which prohibited the admissibility of evidence gathered by the ICRIR in civil actions, inquests and inquiries under the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016, and the exceptional powers conferred on the Secretary of State in Schedule 9. That is good. Also repealed are Sections 46 and 47, which prevented any person who was interned under an interim custody order authorised by a Minister of the Crown, rather than the Secretary of State as required—or anyone whose subsequent conviction was quashed as a consequence of detention authorised by a Minister of State rather than the Secretary of State—bringing civil proceedings for damages. The proposed remedial order removes all the provisions on the matters relating to the granting of immunity from prosecution and associated issues that were included in the Act. That is good. Section 43, which prohibited continuing civil proceedings issued on or after 17 May 2022 and the commencement of new civil proceedings after 18 November 2023, and Schedules 9 and 10, will be repealed. That is good.
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As we look at these cases, there is a clear picture of a determination to control robustly the possibility of the emergence of material damaging to the UK. It is suspected, because it has been proved to be the case in the past, that this evidence may include warnings not issued, police investigations being obstructed, and murderers, particularly state agents, being permitted to carry on murdering, even when they had confessed to their crimes.
These cases are over 25 years old. Sean Brown and Liam Paul Thompson were shot dead by loyalists; the Kenova victims were murdered by the IRA. The families want to see the information held by the state in relation to these murders. In each case the Government, through their agencies, are refusing to release the material. The question for the people of Northern Ireland is: why are the Government withholding the information, even in gisted form?
Obviously, the Government rely on the protection of national security—protecting the identities of individuals who may be dead—and national security processes or techniques which may very well now be obsolete and are certainly widely known. Many people think that the Government will not allow the release of the information, even in gisted form, because it would reveal the involvement of agents of the state in some of these murders and/or the protection of agents from being made accountable for murders.
The Government have said that the ICRIR will have unparalleled access to information. However, given the findings in Dillon, Brown, Thompson and the Kenova cases, and the ongoing Supreme Court cases, all of which are focused on protecting information, it is not surprising that people are rejecting the ICRIR as an agency capable of dealing with their cases, actually finding out what happened and reporting on it. People think that the courts have got it right in these cases, not the Government. Why would the Government release information to the ICRIR which they are fighting in the Supreme Court to withhold from the coroner?
By not repealing Section 44, the Government are confirming the suspicions of many about why the people of Northern Ireland are no longer permitted to have inquests. This then plays into trust in the new policing arrangements, which are seriously underfunded and require an immediate injection of ring-fenced money by the Government to enable recruitment and the delivery of the service. I think it has also played into the reluctance of young Catholics to apply to join the PSNI, despite the best efforts of that organisation. Despite this, the Supreme Court will be asked by the Government to overturn the decisions of the coroner, the High Court and the Northern Ireland Court of Appeal about the disclosure of gisted material.
There is also Section 45 of the Act, which prohibits the Police Ombudsman for Northern Ireland and the police from investigating alleged offences involving, for example, inexplicable failures to investigate a murder, unexplained loss of critical forensic evidence, failure to comply with investigative procedures, and many similar matters which have been identified during the course of investigations about police conduct, and which were previously investigated under the police Act. No further prosecutions can be initiated for such offences. These provisions apply to matters such as misconduct in public office, conspiracy to pervert the course of justice and other crimes which allegedly occurred in the context of Troubles-related offences. Section 45 is not covered by the proposed remedial order and the Government have not appealed this finding.
There are a number of areas in which incompatibility with legal obligations has been found which are not covered by the draft remedial order. The Government have said that they will legislate but have reneged on their manifesto commitment to repeal the Act. There is no obvious formal process of consultation under way. It is a real mess—a mess not of this Government’s making initially, I concede, but His Majesty’s Government will have to make it good.
The remedial order goes some way but it is inadequate, for the reasons I have described. Can the Minister tell us when a Bill to address the outstanding matters will be tabled, what will be in that Bill and whether it will remedy the other fundamental defects of the legacy Act? These are people’s lives; these cases involve so many deaths and so much pain. The Government must have the courage to face the past and acknowledge the terrible failings and wrongdoings of agents of the state, as well as the murderous atrocities perpetrated by loyalist and republican terrorists. I beg to move.
My Lords, in dealing with the very difficult subject of legacy in Northern Ireland, there is always the risk of dangerous and lazy myths distorting our thinking on the subject, which can then be exploited by the men of violence. At the heart of that are wrong assumptions. The first is that, in looking back at the Troubles, everyone in Northern Ireland was in some way responsible—that we were, in effect, all perpetrators. The second lie is that everyone in Northern Ireland and beyond was a victim. Worse than that, we have seen those two concepts conflated, so that, in the worst possible cases, perpetrators are sometimes presented as victims and, latterly, in a rewriting of history, some are portrayed as community defenders, heroes and examples for our young people. Nothing can be further from the truth. Let me try to deal with some of those myths.
Not everyone in Northern Ireland was a perpetrator. The vast majority of people opposed violence throughout. Indeed, every Northern Ireland Member of this House has a proud record of opposing that violence.
Not everyone in Northern Ireland is a victim. There are Members of this House who have suffered directly as a result of the Troubles—I think of those who have been targeted, or whose families have been targeted, by terrorist actions: people such as the noble Lords, Lord McRae and Lord Dodds, and the noble Baroness, Lady Foster, to name just three.
I am fortunate enough that I am not a victim of the Troubles. My family went through them unscathed, and I was able, as much as possible, to grow up with a relatively normal childhood in Northern Ireland. I was able to do so by way of the protection provided to me by the security services—and, indeed, the security services providing that protection to all the citizens of Northern Ireland. They stood as the great defenders of democracy and peace at a time when people in both republican and loyalist circles were intent on inflicting violence.
My Lords, I commend the noble Baroness, Lady O’Loan, for bringing forward this regret Motion. She and I have had meetings with my noble friend the Minister, the Secretary of State and the Attorney-General on the issue of legacy and on the issue of what is and is not contained in the remedial order.
The previous legislation was brought forward by the noble Lord, Lord Caine, when he led for the then Government under their mandate. My belief is that we have not yet reached a human rights-compliant place on legacy to address the needs of victims and survivors. The current legacy Act does not do it and, while the remedial order has some welcome developments, there is a need to build on it as a matter of urgency. It is my clear understanding that that should and, I hope, will be built on in the repealing legislation. Can my noble friend outline the exact process that will be involved?
The noble Baroness, Lady O’Loan, spoke clearly about the vast majority of people in Northern Ireland; I grew up and went to school and university during the Troubles, and none of my contemporaries was ever involved in violence. As democratic Irish nationalists, we abhorred the use of violence for political means, because nothing could ever be achieved through that. That was proven to be the case through the negotiations that led to the Good Friday agreement. Only dialogue, negotiations and peaceful compromise achieve any political development in Northern Ireland. Many people have been killed over the years by paramilitaries, both IRA and loyalist, and there has been some state violence—you have only to look at Bloody Sunday in Derry—but raking over those coals does not achieve political progress. We have to move on.
As I have referred to, there are some welcome developments in the remedial order. It will repeal the relevant provisions on immunity from prosecution already disapplied under the Windsor Framework by the High Court and the relevant provisions relating to the termination of civil claims. These are very welcome developments. However, the remedial order does not address the Court of Appeal’s declaration of incompatibility in respect of Section 45 of the Act, which precludes complaints about police conduct from being progressed. The incompatibilities relating to ICRIR’s role in replacing inquests in respect of victim participation and the role of the Secretary of State for Northern Ireland in disclosure of sensitive information are also not addressed. The Secretary of State seeks to appeal these findings in the UK Supreme Court, as has been addressed by the noble Baroness, Lady O’Loan. The incompatibility arising from Section 44 on the restriction of legacy inquests is also not addressed in the order.
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However, four matters are not addressed by the draft remedial order. Section 44 terminated inquests started before 1 May 2024 unless they had reached final determination, verdict et cetera, and prohibited the holding of any new inquest into a Troubles-related death after 1 May 2024. The associated Court of Appeal findings in the Dillon case stated that the ICRIR could not conduct investigations that were compatible with the UK’s ECHR obligations in inquest cases because of the failure to provide properly for involvement of next of kin in such investigations, and because of the power of the Secretary of State to veto the disclosure of material to and held by the ICRIR. Schedule 11 relating to these matters is also untouched by the proposed remedial order. I acknowledge that the Government are appealing these matters to the Supreme Court—but why? Why put the families through this when the findings are so clear?
These issues are at the core of how we provide proper process to deal with the past. The previous Government proclaimed their wish to bring closure by providing much more information to the victims than had hitherto been available. They said the ICRIR would be granted unparalleled access. They then legislated to ensure that the ICRIR would not even have the powers previously held to access information from the police, let alone from the security services and the MoD, and brought these appeals to restrict disclosure.
What is really at stake here, I am afraid, is the control of information held by MI5, the MoD and the PSNI. A post-conflict society must be built on the rule of law. People distrust institutions perceived to be biased or controlled by the Government, particularly by individuals from the security services, I am afraid— I acknowledge that the security services do a huge amount of good for our country, but there is a problem in this context. If people repeatedly find out, as has been the case, that information is being withheld or distorted, they will know that they are not being allowed to know, and trust will not grow.
A number of cases illustrate the consequences of withholding information. In 1981, 15 year-old Paul Whitters was killed by an RUC plastic bullet in Derry. He was throwing stones at a bakery. Ninety-three pages of his file will not be made available until 2084, over 100 years after his death. I have read those files. There is no justification for withholding them. Also in 1981, 14 year-old Julie Livingstone was shot in the head by a plastic bullet fired from an Army Land Rover. Her files are closed until 2054. Why?
It may be said that the contents would be distressing for the families. But there is nothing more distressing than losing a loved one, especially a child, to a violent death. Will His Majesty’s Government appoint an independent commission to re-examine these locked files and determine whether there is any real national security reason to withhold them from the families?
Two cases currently before the courts are most important. Sean Brown, described by the coroner Justice Kinney as “an entirely innocent man”, was the subject of a planned execution by LVF gunmen in 1997. That case is now before the Northern Ireland Court of Appeal. For a long time, the coroner sought disclosure of information which he needed. Eventually, information relating to 25 individuals linked to the murder was disclosed. Further information was withheld on grounds of national security. Unable to continue the inquest, the coroner called for a public inquiry. The Secretary of State refused a public inquiry and told the Brown family to go to the ICRIR. The Brown family brought proceedings in the High Court, which ordered the Secretary of State to establish a public inquiry. The Secretary of State has appealed this ruling, and the Court of Appeal began hearing the case on 16 January 2025. For the 57th time, Mr Brown’s family attended court. That matter continues. This should not be happening, nearly 28 years on. There should be a public inquiry.
In another inquest case, that of Liam Paul Thompson, 25, who died in 1994 after being shot by loyalists in Belfast, the coroner, Louisa Fee, decided in 2024 to disclose a summary or “gist” of the evidence contained in a sensitive security forces file. The gist had been prepared by the chief constable of the PSNI, and he was satisfied that the disclosure of the information would involve no breaches of national security.
The Secretary of State judicially reviewed the coroner, asking, in effect, whether it was lawful for her to release a gist of sensitive information, having conducted a comprehensive PII exercise. The High Court upheld the coroner’s decision. The Secretary of State appealed. The Appeal Court dismissed the appeal, and the Secretary of State has appealed again to the Supreme Court. It is anticipated that the current chief constable of the PSNI will give evidence in June 2025 as to why there is nothing unlawful in the proposed disclosure.
Finally, in the Kenova cases, the current chief constable of the PSNI presented an interim report a year ago on a number of cases arising inter alia from the activities of the British agent known as Stakeknife. Twenty-six bereaved families affected by these activities have been due to receive an individual report on those cases. Those individual reports were sent to MI5 in August last year. Nothing has emerged from MI5, and there has been no explanation as to why the families cannot have their reports, which were very carefully drafted.
Not being a victim is one of the reasons why I believe that the legacy Act put through in the last mandate was the wrong way forward. While it is difficult for many of those who have suffered as victims of terrorism to achieve justice, in particular from a long time ago, there was a perception that in trying to draw the line over what had happened in the Troubles, we were snuffing out the opportunities for any innocent victim, the survivors of the Troubles and their families to achieve justice. That is fundamentally wrong.
To that extent, the action the Government are taking in providing a remedial order is at least a partial step in the right direction by moving away from that situation, but for very different reasons from those outlined by the noble Baroness, Lady O’Loan, I think that it does not go far enough. Some of the concerns raised by the noble Baroness, while genuine in concept, run the risk of taking us in the wrong direction. We must look first at the bigger picture and ensure there is genuine equality in the law for everyone.
The stark reality when looking at the legacy of the Troubles is that over 90% of the victims were killed by republican and loyalist terrorists. Around 10% of the deaths were caused by members of the security forces. Within that, on many occasions, the deaths that were as a result of the actions of the security forces were justifiable in preventing further loss of life. One thinks, for example, of the intervention of the security forces at Loughgall or, more recently and as has been highlighted in the news, at Clonoe, where it was not the security forces acting beyond their remit but intercepting active terrorist units and preventing them inflicting further death and misery on the civilians of Northern Ireland.
Some 90% of the Troubles deaths were caused by paramilitaries and terrorists, yet an outside observer looking at Northern Ireland today could be forgiven for not realising that. That is because, clearly, the concentration of inquests and court cases has had an overwhelming focus on the role of the state and individual members of the security services, to the extent that, for a lot of people in Northern Ireland from both sides of the community, there is a concern that, in looking at the past, we are seeing a very one-sided process.
What is the impact of that? First, it creates a sense of false equivalence: that the security services were simply one other player in a multifaceted war between different factions—that must be nailed down as a lie. The security services did all they could to protect all sections of the community all the time. We know that there were occasions when individual members of the security services overstepped the mark and engaged in criminal behaviour. I have no hesitation in saying that anyone who was engaged in criminal murder, from whatever source, deserves to face that, but if we are to try to persecute and to blame, for example, the Army in relation to an event such as Clonoe, I think that we have got something fundamentally wrong.
Even worse than that false equivalence between the forces of law and order and those who sought to inflict death and injury throughout the community in Northern Ireland—be they loyalist or republican—there is a greater and more dangerous myth now beginning to persist. There are those within our society who would seek to rewrite history to present the security forces not simply as being on a par with paramilitary organisations but as the source of the Troubles and to suggest that those involved, particularly in republican organisations, were really there simply to defend their community; they were the people who took up the shield on behalf of their community.
A narrative has been put about, particularly by republicans, that in some way tries to rewrite this history. We have seen that in a very stark way, over the last week or two, since the death of the IRA commander Bik McFarlane, who was directly involved in committing five murders of innocent civilians. Indeed, it was highlighted by the Taoiseach, in the last day or two, that he was also involved with the murders of Garda and state forces within the Republic of Ireland. Yet this individual is now eulogised; the words of the leader of Sinn Féin throughout Ireland were that he was a “great patriot”.
That is the danger we have with the rewriting of history. If we go down a route that provides that level of imbalance—that does not focus on the role of paramilitaries but, instead, concentrates almost exclusively on the actions of the security forces and digs deeper into what it can find out about them and blame them for—we are reinforcing a false narrative. That is both damaging to the perception of the past and deeply insulting to innocent victims and survivors of the Troubles and their families. It is not simply an attempt to rewrite the past; it has grave dangers for the present and future, because it provides for those on the republican or loyalist side who are still committed to seeing violence in any shape or form both to excuse what has happened in the past and potentially to act, particularly for dissident republicans, as a form of recruiter.
I think that is very dangerous, and that is why I would be in favour of, for example, the Private Member’s Bill that the noble Baroness, Lady Foster, is currently talking about, which would make the glorification of terrorism a criminal offence. When we look to remedies on legacy, not only must we be careful to provide the opportunity for everyone to achieve justice but there must be a level playing field. To scapegoat the security forces will take us in completely the wrong direction. While I believe that the regret Motion from the noble Baroness, Lady O’Loan, comes from the best of motivations, there is a danger of it taking us in the wrong direction. I will therefore oppose it today.
It is a regrettable consequence of the Secretary of State’s plan to appeal that it precludes the use of Section 10 of the Human Rights Act to restore inquests in response to the NICA declaration of incompatibility in respect of Section 44 of the Act, despite the SOSNI’s claimed commitment to this outcome. There is a fear in Northern Ireland that the qualifications in the draft remedial order to end inquests infers an aim to limit their availability. I suppose tonight I am looking to hear from my noble friend the Minister what the exact position is in this case. Will all these issues be covered in the proposed repealing legislation? What is the timeframe for such legislation?
The noble Baroness, Lady O’Loan, has already referred to the impact of the existing legislation on legacy that was brought forward by the previous Government and the impact that has had politically in Northern Ireland in terms of the rule of law and policing, and particularly in reference to recruitment to the Police Service of Northern Ireland. I support the PSNI, and I want to see young Catholics, both men and women, joining the PSNI and to reach the levels when we had 50:50 recruitment. I believe that, in order to redress that imbalance in recruitment, we need to go back to 50:50 recruitment. I heard last week the leader of the DUP saying that this was some form of wokeism. It is not; it is simply about trying to redress an imbalance to adhere to the rule of law and ensure there is fairness and equality. I would like to see that happening. However, the lack of young Catholics joining the PSNI can be directly correlated to the provisions in the legacy Act and the decisions on some of the potential areas for public inquiry which have been rejected, particularly with reference to the sad case of Sean Brown from County Derry who was killed in 1997.
I urge my noble friend the Minister to ensure that she is able tonight to provide us with a timeframe for the proposed repealing legislation. What will be in that repealing legislation? I know those areas may be difficult for my noble friend at this time, but I want her to provide those assurances or at least tell us that there will be a timeline that will lead to the eventual repealing of the iniquitous legacy legislation. I say “iniquitous” because that is how it is viewed in Northern Ireland; it is viewed as not the way forward. I hope that we can see the issues to do with police recruitment addressed and that we can have a police service in Northern Ireland that is capable of implementing the rule of law in a fair and impartial way—one that I want to see young people, particularly young Catholics, join.
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