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

Motion to Regret

21:34:00

Moved by

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. 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.

21:45:00

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, the noble Lord, Lord Weir of Ballyholme, is contributing remotely.

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. 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.

22:00:00

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. 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.

My Lords, this Motion of regret tabled by the noble Baroness, Lady O’Loan, asserts that the Government have failed to take account in their remedial order of every aspect of the Belfast court judgments, which effectively gutted the legacy Act. What was the government crime? The legacy Act apparently contravened Article 2 of the European Convention on Human Rights as well as Article 2 in the Northern Ireland Protocol or Windsor Framework. In a way, this is a needless and premature discussion, because the remedial order has been laid in draft form for consultation and will be retabled, with or without improvements, for parliamentary decision in, I think, May. No doubt we will then have to repeat this debate—I hope it will not be as late starting. However, this serves a useful opportunity to spell out exactly what the rulings have brought about. In my view, there are only three outstanding items from the judges’ findings of ECHR breaches which are not covered by the remedial order or by an NIO appeal. The major one for me is the required reintroduction of inquests, which the Secretary of State, Hilary Benn, has indicated may be passed to the new information recovery body, the ICRIR, under Sir Declan Morgan. We await the proposals in the forthcoming legacy Act replacement, though who knows when in the future we might get that to look at. There are two other minor aspects that I know have probably been particularly close to the noble Baroness’s heart, since they relate to her previous work as the Police Ombudsman and a member of Kenova’s advisory panel. They concern the absence from the ICRIR’s remit of historic police misconduct, which she referred to, and which was in the Stormont House agreement Bill, and offences such as misconduct in public office and conspiracy to pervert the course of justice. Ironically, the 10,000 Troubles bomb attacks are another omission, but that did not seem to concern the judges. If the ICRIR was to extend its remit to all these lesser offences, its budget would need a mammoth increase beyond its current £250 million. We know from the recent Policy Exchange report on the price of legacy that past and future compensation payments and reinvestigations are getting close to £3 billion. The Government need to produce their statistics, to show whether they dispute the Policy Exchange figures. I hope the Minister can respond on that specifically. The remedial order was first laid in December and it is immensely long. It runs to 24 pages, and involves 29 sections and seven schedules of the legacy Act having to be amended or removed. Such orders are rare, and never before has there been one quite so lengthy. Its size proves the point that overturning the Act should be done by primary legislation and not by remedial order, which, as I understand it, the Attorney-General advised in July 2024, which was when the Northern Ireland Office decided not to appeal most of the ECHR incompatibilities found by Judge Colton in the Belfast High Court. I am very disappointed that the Attorney-General is not here to listen to this debate. Did the noble and learned Lord, Lord Hermer, participate in a decision in July to abandon the Colton appeal? If he did, whether he knew that at the time or not, it was obviously a huge conflict of interest, because a key part of the Colton judgment was the removal of Sections 46 and 47 of the Act, which had reversed the bizarre decision—I think that was how we all felt when it was discussed here—by Lord Kerr in the Supreme Court that custody orders in the 1970s were signed by the wrong Northern Ireland Office Minister. This second reversal will lead to compensation claimed by Gerry Adams, and hundreds of other internees who have lodged civil suits, being paid. Have the Government found a way yet of getting round this? Can we be sure that, in any advice that is happening on this, the Attorney-General is not involved, because he represented the same Gerry Adams in a compensation case where he was being sued by victims of the IRA murdered in London bombs? As we all know, Adams was for years a member of the IRA Army Council, although he rather unconvincingly denies that. He certainly was brought over by Her Majesty’s Government to negotiate as a member of the IRA with the British Government at Cheyne Walk in July 1972. The Attorney-General must explain whether he did advise or not, otherwise the rumours will continue to register, and it is not a very sensible situation. We have two bites at repealing and replacing the 2023 Act. The first, we are told, is required by the Colton judgment, followed by Lady Chief Justice Keegan’s concurring judgment on appeal. But that does not have to happen. Your Lordships should know that the Belfast courts increasingly see themselves as an adjunct to the European judicial system, be it the European Court of Human Rights in Strasbourg or the EU court in Luxembourg, so they have disapplied large parts of the legacy Act. Governments are not obliged to act as a consequence of this. They could leave well alone, even if it means facing down the well-funded, very well-organised human rights industry that we have in Northern Ireland, in particular—some of it, of course, paid for by the Government.

22:15:00

The issue of the Northern Ireland judiciary seceding from the UK system will be addressed by the Supreme Court in the NIO’s appeal on the parts of Judge Colton’s ruling that relate to national security and the Windsor Framework’s supposed human rights role. But tonight, we can also consider the broad thrust of the Government’s legacy policy and its working out in practice in the courts—something which dominates the headlines in the newspapers in Northern Ireland practically daily. Lawfare has replaced warfare, which is an improvement in one sense, but the cost is very high in expenditure and in the damage to community relations.

I have to tell fellow Peers that reconciliation is still a long way off in Northern Ireland. Rage levels are rising, especially among nationalist youths, who are being fed a relentless diet by the media of the crimes of the security forces and the police, many years ago, as court case after court case involving police and Army veterans unfolds. We saw on Tuesday, at the funeral of Brendan McFarlane, already mentioned, a top IRA operative and convicted murderer of five Protestants and two Irish army servicemen, that a eulogy was given by Gerry Kelly. His history of bombings and other terrorist activities, including the Old Bailey bombing, is well documented, yet he is now a member of the Northern Ireland Policing Board, responsible for the PSNI. It just would not happen in any other part of the United Kingdom. And he has never condemned IRA terrorism.

Your Lordships will therefore appreciate that feelings are also running high among the pro-union community in Northern Ireland. The Clonoe inquest is just another recent example, with the disputed findings of Judge Michael Humphreys, the coroner. The rage in this case is mostly felt by those long-serving, decent veterans who did so much to protect people, from whichever community they came.

This was a reopened inquest into the deaths of four IRA men shot by the Army in 1992, just after they had attacked a police barracks using a Russian machine-gun mounted on a lorry. I could go into the whole detail of it, but I will not. Basically, soldiers could hear the gunfire from the attack on the police station and see the tracers. The intelligence received was that the IRA was going to gather at the car park before an attack. In fact, they terminated there. Two who were killed had dismounted from the lorry with their rifles, while three escaped across the border—and were not extradited, of course, because the Irish Government, which we never seem to take into account, did their utmost to stop extraditing anyone back to the United Kingdom.

Regardless of all this that went on that cold February night, the coroner said:

“It should have been obvious to him”—

Soldier A—

“as the ground commander, that the PIRA unit would have to dismount”

the machine gun

“from the lorry and place it into another vehicle in order to secure it and move it away from the scene. He could therefore have ordered his men to wait until these steps were being taken, which would have reflected the intention of the original plan. Instead, he and others stood up and opened fire on the lorry.”

His final judgment was that

“in each case, the use of lethal force was not justified … the soldiers did not haye an honest belief that it was necessary in order to prevent loss of life and the use of force by the soldiers was, in the circumstances they believed them to be, not reasonable.”

How dare any judge guess what soldiers were thinking on that cold February night, in a such dangerous situation? I ask any of your Lordships: would you, if you had been a soldier, have stood up and asked the 10-man IRA unit to desist from disassembling the machine gun and then arrested them? I do not expect the coroner would either.

The Public Prosecution Service for Northern Ireland has now been asked by Judge Humphreys to considering charging the soldiers, presumably with murder, 33 years on. Many veterans believe that there is a deliberate strategy by the republican movement to use the legal system to demonise the security forces.

This and similar judicial decisions need a separate debate in this House, but I want to endorse the call by the noble Baroness, Lady Foster, for the Ministry of Defence—which had nine barristers at the three weeks of hearings—to seek a judicial review of the findings, which were, again, hinged to a ruling by the European Court of Human Rights. Doug Beattie, the former leader of the Ulster Unionist Party, explained on the BBC’s “The Nolan Show” what military training requires of soldiers when lives are threatened: “to eliminate the threat”. The judge failed to take any of that into consideration.

We have had the same issue of police responses to terrorism in London. The Metropolitan Police have a policy, first enunciated by Sir John Stevens, now the noble Lord, Lord Stevens of Kirkwhelpington, that armed officers must shoot to kill if they believe that someone is trying to detonate explosives on their body or in a vehicle. I know that this can lead to horrible mistakes, as with Jean Charles de Menezes, a Brazilian electrician mistaken for a suspected Islamist terrorist, who was shot dead by armed police officers on a tube train at Stockwell station in my former constituency. That was a terrible tragedy. None the less, there was never a suggestion that the officers concerned or the commanders—who included, ironically, Jon Boutcher, now the chief constable of the PSNI—should be charged with murder. Will the Minister insist on, and will His Majesty’s Government assist in, a judicial review of this judge’s shocking decision, as a matter of urgency?

Finally, it is very sad that this kind of thing is on social media, but there is a meme doing the rounds that depicts Sir Keir Starmer speaking to British troops as they board an aircraft. He says to them, “I need you to get on this plane and go to Ukraine to fight. If you live and come back, I will make sure you are jailed for war crimes. Just like we do in Northern Ireland, we will hunt you down”. Is that really what we want to do to our brave soldiers? Because that is what will happen. It will not be IRA killers who took part in bombings who will face this—many have had their get-out-of-jail cards and royal pardons and gone off to America; it will be the soldiers and police who did their best under incredibly difficult circumstances.

That is why I agree with the noble Lord, Lord Weir, that the history of the Troubles is being rewritten—or attempts are being made to rewrite it. It is almost impossible now for a terrorist to be convicted. We do not want the next 20 years to be full of inquest after inquest, furthered by lawyers making probably quite a lot of money, thinking, I am sure, that they are doing it for all the right reasons. If we continue with this, all that will happen is that reconciling people in Northern Ireland will be further away than ever. If the noble Baroness pushes this to a vote tonight, I will certainly oppose it.

My Lords, I will not speak in the detail that the noble Baroness, Lady Hoey, and others have done, and I do not have the knowledge of Northern Ireland that various noble Lords have, on both the republican side and the unionist side, but I would like to say a few words on behalf of the soldiers who are currently under threat, be it from Clonoe or elsewhere. I am afraid to say that I know some of them, from past lives. Indeed, I was talking to one last week or the week before about exactly this, because he is under threat of being prosecuted for something that happened nearly 40 years ago. We have to ask: is that right? This Parliament—every person in this Chamber—is responsible for sending troops to war and for the officers in the Metropolitan Police, including the poor chap, whose name I cannot remember, who shot Mr Kaba in the street. These people go out armed with weapons that are designed to be used. They are not meant to use them, but they do so if they are threatened—that is why they use them. I will defend all officers, including those in the British Army, the PSNI and the Metropolitan Police, if they behaved reasonably—I am not talking about murder. If they behaved reasonably, they should be given the benefit of the doubt by this Parliament, which sent them out to do that work. The Army and the police keep records. Funnily enough, the IRA do not. I do not know whether anyone has noticed that. The Human Rights Act refers to records, but the IRA does not have any, so it cannot refer to them. I know far too many dead soldiers. We heard from the noble Baroness, Lady O’Loan, about people’s lives. She is right. I think of Simon Ware, one of my young corporals, who was murdered in 1991 somewhere in South Armagh. I think of Robert Nairac, who I knew quite well in the 1970s before he was taken away and murdered. I think of Andrew Green, a staff college student who was murdered somewhere in in the south—I cannot remember exactly where. I think of all those soldiers who were killed, including the Queen’s Own Highlanders who were killed along the coast in 1979. Guess what? There is no evidence. We heard earlier that there must be evidence. But where will the evidence come from? It comes from forensic evidence, if you can get it, or from people’s witnesses. But guess what? If you are a witness to an IRA killing, you do not say anything because you will end up with your throat cut. It is quite straightforward. I should also mention Jean McConville, because her case came up as an issue when I was working in the Northern Ireland Office. I spent only a year working in the streets of Northern Ireland; it was quite long enough, walking the streets of west Belfast. I spent about a year in the Northern Ireland Office as well. Jean McConville’s case came up. For those who do not know, I will briefly recount it. She was married to a nationalist and lived in the Divis flats. He died, and she was left with their 10 children. She went out and gave a blanket to a soldier who had been shot. The next day, the IRA came knocking on the door and dragged her away from her children. Her body was found some years later, buried on a beach in the south. Jean McConville was murdered by the IRA. Now, who was the leader of the IRA at that time? I cannot say because I was not there, but the dogs in the streets of Northern Ireland will tell you that Gerry Adams was most certainly on the army command council at the time. In fact, if I were to say that outside this place, he would probably try to sue me; but luckily, in here I can get away with it—I hope. He was certainly there. He was a member of the IRA, responsible for murder, and yet he is still living. Should this measure go through, he might get financial compensation from the British Government for all the harm he did. This is outrageous. Do we, as a Parliament, want to be able to send our soldiers out to fight, as the noble Baroness, Lady Hoey, has just said? Do we want them to go and protect our interests—not just one interest from time to time, but our national interests? Do we want to send them out to fight, or are we going to say, “Under the Human Rights Act, you’d better be very careful what you do. You’d better take the bullets out of your magazine”? This is just nonsense. I suggest that everybody in this House, when it comes to it, would say that it is more important that we defend our public servants. If soldiers misbehave, yes, let them be prosecuted, but we defend our public servants. What really upsets me more than anything else—I will say this before I sit down—is this: do we wish to see the IRA win the Troubles that have taken place over the last 50 years?

My Lords, the issues tonight need to be addressed collectively. Any primary legislation ought to take a broad, forward-facing approach, rather than narrowly focusing on the discrete issues raised either in the legacy Act or by the Court of Appeal. For much of the past 28 years, there has been an erosion of justice when it comes to dealing with the troubled past in Northern Ireland. For many victims of terror in Northern Ireland, there has been a hope of justice. But for many, justice has only been a repeated word and results have not been delivered. We have witnessed a process whereby terrorists were released from prison. It was then followed by comfort letters that certainly offered no comfort to the innocent victims of terror. Across Northern Ireland, many people realistically accept that there is a limited possibility of successful prosecution and meaningful jail terms for those who carried out atrocities against innocent victims. Much of the focus around the Independent Commission for Reconciliation and Information Recovery has been on issues of independence and, specifically, concerns expressed by those who feel that the state holds vital information on the circumstances of their loved one’s death. The ICRIR has limited influence when it comes to requiring or disclosing that information to families, yet the stark reality is that it remains a far more significant inducer of information from the state than from the terrorist. Little in the way of attention has been paid to how the ICRIR can provide answers for those families who are met with a wall of silence by terrorist organisations responsible for murder and bloodshed. Why should the family of a terrorist atrocity be left bereft of disclosure when the family of an act involving the state receives answers? There ought to be an acceptance that the primacy of the European Convention on Human Rights in our statute books and the courts is not just facilitating but accelerating that double standard in justice outcomes for victims of the Troubles.

22:30:00

I welcome that Sir Declan Morgan, who is in charge of the ICRIR, has declared that there is no balance between terrorists and the security forces. However, the statistics show that attention is biased towards the forces of law and order. Any legacy policy that rewrites the definition of justice and fails to truly define the victim will make reconciliation much more difficult.

When considering future primary legislation, the Government must recognise that the intended interlocking nature of the arrangements of the former legacy Act poses problems if immunity is removed but the ICRIR remains. Conditional immunity was morally repugnant and must be dealt with—I do not think anyone disputes that. However, we also recognise that the inducement it was intended to provide to those responsible for wrongdoing to come forward and provide answers is not easily replaced.

On the other hand, the intention is to restore civil cases and inquests, which will resume the drip feed of reports and findings focused on evidence presented solely by the state. Do the Government not see the corrosive impact on how the past is perceived by future generations and indeed history? I believe it is essential and vital that the Secretary of State consults widely, including with veterans, victims, survivors and their families, as well as political parties, on a practical way forward that can command the broadest support. Any step changes towards legacy must include a pathway to truth and justice.

Regarding the role of the Irish Government and Garda during the Troubles, particularly in the context of heinous IRA atrocities, the Irish Government cannot be a bystander. This Government need to succeed where previous Administrations have failed and ensure that there are no double standards in how allegations are investigated on either side of the border.

Time is not on our side. We all have a duty to seek justice for victims. I cannot support the regret Motion before the House tonight.

My Lords, Northern Ireland has a unique past, and we cannot ignore the contemporary importance of that when we seek to provide reconciliation and justice to the bereaved, the injured and the deceased. We in the DUP have an approach to dealing with the past that includes our test for future proposals. First, there can be no amnesty for wrongdoing or wrongdoers; secondly, there should never be any equivalence between the innocent victim of terrorism and the perpetrator; and, thirdly, the door to justice must remain open through a system of investigations that is fair and reflects the fact that paramilitary and terrorist organisations were responsible for the vast majority of deaths during the Troubles. If anyone wants to look at the figures they will come up with a figure like 90%, but the 90% are seldom talked about. It is always the 1% or 2% of the security forces who seem to get all the attention, for reasons that are right out over my head. Every family deserves a fair and full investigation into the death of their loved one. Equally, vexatious investigations into former soldiers and members of the security forces are unjustified and must stop. It is difficult to consider justice in respect of Northern Ireland when, still to this very day, one of the leading parties that occupy the post of First Minister continues to perpetuate the invalidation of the justice process. We recently saw myriad tributes from Sinn Féin for the Irish republican killer Bik McFarlane. We watched as John Finucane, Gerry Adams and Gerry Kelly gathered in Belfast to remember a man who Mary Lou McDonald said had “lived his life in pursuit of freedom, peace and equality”. If anything was a misquote, that certainly was it. She ought to bow her head in shame and she needs to be called out on it. He “lived his life in pursuit of freedom, peace and equality”, but he did not give the same right to his victims—not a chance. No noble Lord would be so deceived as to believe that the murder of five people, including a 17 year-old girl, and the murdering of a great many others, were done in the pursuit of freedom, peace and equality. That is why we must always call out the glorification of terrorism as we seek to bring justice to the bereaved. The Government’s proposed remedial order rightly negates the abhorrent immunity provisions legislated for by the last Government, and we wholeheartedly support that. Likewise, we welcome the fact that the Secretary of State has acted out of the moral imperative that the Government have to protect the memory of innocent victims rather than out of acceptance of the Court of Appeal’s interpretation of Article 2 of the Windsor Framework. It is apparent that the courts and statutory rights bodies have wrongly taken an expansive approach to interpreting Article 2 of the protocol, which deals with “no diminution of rights”. This has constrained the UK Government in legislating for Northern Ireland as in the rest of the UK on fundamental issues such as immigration. To accept the Court of Appeal’s specific finding on this would open the door to the further erosion of the principles that underpin our constitutional position within the United Kingdom and the sovereignty of our national parliament in reserved matters. For exactly the same reason, we support the Government’s appeal in respect of the Court of Appeal’s finding with regard to non-disclosure on national security grounds and the involvement of next of kin in inquests or investigations. The Government’s remedial order does not seek to abolish the Independent Commission for Reconciliation and Information Recovery. In fact, the Secretary of State has indicated an intention to bring forward reforms aimed at improving the independence and operation of the body. We will wait and see. This begs a question. If the Government believe that the ICRIR remains capable of providing human rights-compliant investigations into Troubles deaths, why was it not deemed appropriate for the Finucane family? Ultimately, there can be no hierarchy of victims—except in the case of the Finucane family. The noble Baroness, Lady O’Loan, has highlighted that the proposed remedial order does not address all issues of incompatibility with the ECHR, as determined by the Court of Appeal. In some respects, that is true. However, the Government have committed to separately bringing forward primary legislation to deal with a number of elements, in addition to appealing specific findings on disclosure and the Windsor Framework. This is an ongoing process. The question we politely pose to the noble Baroness is why she believes the process should be rushed. As a party, we would be deeply concerned with any legislative intent to restore provision for inquests—particularly beyond those that had already commenced prior to the implementation of the current Act—without a fundamental reappraisal of how the coronial system in Northern Ireland approaches Troubles-related cases and, specifically, the actions of members of the security forces. The Clonoe inquest findings have reignited an anger and alienation among veterans, innocent victims and the wider community in Northern Ireland. There is a disbelief that the actions of the SAS that day could be construed as anything other than a reasonable and justified response to the threat to life posed by heavily armed PIRA terrorists. Moreover, it seems that the wider context in which the security forces were operating at that time, as well as the prior actions of the deceased men just moments prior to their deaths, were not given fulsome consideration as part of the inquest process. That, to our mind, demonstrates a fundamental weakness in the coronial process which ought to be addressed, substantively, prior to giving consideration to restoring inquests. This simply does not add up when we consider the ruling handed out last April by the coroner in respect of the Coagh murders of June 1991. The ruling heard that the SAS soldiers were justified in their use of lethal force because: “The use of force by the soldiers was, in the circumstances they believed them to be, reasonable”. It was believed that these three men—all members of the murderous East Tyrone Brigade of the IRA—were en route to murder a member of the security forces. Yet in respect of Clonoe, we are seeing a blatant attempt to rewrite the historical narrative. This is retraumatising our veterans of the security forces, who put their lives on the line against a terrorist cabal. Now they watch in horror as they are being prosecuted for the actions they took to protect their fellow servicemen and their country. Similarly, in respect of police complaints, the apparent chasm in accountability for the failings of the current Police Ombudsman for Northern Ireland—who has been found by the courts to have overstepped the mark in alleging “collusive behaviour” against RUC officers in recent times—must not be ignored by the Government if real progress is to be made in ensuring that legacy investigations do not vexatiously target former police officers or soldiers or otherwise retrofit the events of the past to suit a particular political narrative. We must ensure that there is never a targeted nor a mendacious approach to legacy issues in Northern Ireland which indiscriminately blames the security forces. Those brave people valiantly gave their lives for the safety of our communities. We must turn our attention to the likes of Bik McFarlane, who is so glorified and extolled by Sinn Féin. There are many families in Northern Ireland who every day wake up without someone who should have been with them today; instead, they were murdered by terrorists—who still have not been brought to justice. The Dublin Government need to stand up and take their responsibility. We have an inquiry in Omagh; the bomb that killed all those people in Omagh was manufactured in the Irish Republic and transported from the Irish Republic, yet the Government of the Irish Republic say they have nothing to answer for. Not half they haven’t. There is not a soul in Northern Ireland, or the whole of Ireland for that matter, who believes that. They need to stand up and accept their responsibilities.

My Lords, there are two points I want to make this evening. The first concerns the fact that in December 2023, the Government of Ireland decided to take action against the United Kingdom Government over the offer of immunity for Troubles-related crimes. Of course, there was opposition in Northern Ireland from political parties to the immunity side of the legacy proposals, albeit other parts of the legislation were deemed acceptable by quite a number of people.

22:45:00

At the time of this action being taken, the then Secretary of State, Chris Heaton-Harris, said that the Irish Government’s decision was

“inconsistent and hard to reconcile with its own record”

on dealing with legacy matters. What is that record? There is no source that I can quote other than the former Attorney-General of the Republic of Ireland, Michael McDowell. He made it clear—I quote what he said at the time, in 2021—that

“a de facto moratorium on investigation and prosecution of IRA members (other than those described as dissidents) came into operation. This was demanded by”

the IRA terrorist leaders

“Gerry Adams and Martin McGuinness, the leaders of Sinn Féin at the time. And it was conceded”.

So here we have the former Attorney-General—he was, I believe, also a Justice Minister at some stage—saying, when still a Member of the Irish Senate, that there was a de facto moratorium on investigation and prosecution of certain types of IRA terrorists: only those deemed to be supporters of Gerry Adams and Martin McGuinness.

This de facto moratorium did not apply to those who were described as dissidents. That same Government then have the brass neck to come and attempt to take legal action against our own Government. I ask the Minister: what steps are she and her colleagues taking to get this ridiculous case taken off the books? The hypocrisy of pursuing a moratorium on investigation and prosecution for over a quarter of a century, then taking the United Kingdom to court, is outrageous. It must be addressed but it is not being addressed.

It does not stop there, if you look at the history of all of this. Last week, my colleagues and I brought to people’s attention the fact that there were about 117 attempts by the United Kingdom Government to have terrorists extradited from the Republic but only eight successful extraditions over the whole period of the Troubles; in other words, people got off because the court said, “Oh, it was political”. Well, well, well—so, if it is political, you can go and murder a fellow Irishman or Irishwoman and it is fine. I do not understand why our Government get like a rabbit caught in the headlights and become paralysed whenever they get abuse from the Republic. They are hypocrites on this issue, and they should be rigorously pursued. If we want honesty about things, this is a good place to start.

There are a whole lot of other things that I would like to mention but, because of the lateness of the hour, I shall mention only one thing that concerns me very much—it was partly referred to by the noble Baroness, Lady Hoey, and others—which is the general direction of our legal establishment. The European convention has many admirable qualities. When we were negotiating the Belfast agreement, it was deemed that a number of the provisions would be incorporated in it as part of how we would like to see things develop. However, it seems to me that, if we look at the way the convention is being applied to migration issues in this country, how have we got to this situation? I know that cases are complicated and that this is only one snippet, but how can it possibly be reasonable or sensible for a person who opposes a plan to deport them from the United Kingdom to use the quality of chicken nuggets in another country as a reason for not deporting them? It is barking mad. Have we lost the plot in this country completely? I just think that most people are aghast.

The problem is that there are good things about the convention but it is being distorted. In fact, it is more than that: it is being corrupted by the way things have been developing. If we are not careful, we are going to do the same thing to the convention that we did when Whitehall gold-plated regulations that came from Brussels over the years and turned many people in this country against the European Union. In my view, we are going to do the same thing with the European convention, so the Government have to take seriously what their intentions should be.

I conclude by coming back to the point I made to the noble Baroness. We cannot ignore that the Republic of Ireland and its political establishment was directly involved in the formation and operation of the Irish Republican Army in the early days of the Troubles. Barracks were used for training, and senior Cabinet members were involved—can you imagine if that had happened here? It did happen there, and there is not a word about it—keep it quiet; do not rock the boat. If people are not prepared to draw a line, and they are prepared to keep stirring and stirring for the next 20 years, let us stir. Let us get back to the very first ingredient that was put in the pot. The Irish Republic is, in my opinion, seriously guilty in involving itself in the formation of that organisation which did so much damage and caused so much trauma.

If 70% of nationalists and young people are told—or believe—that there was no alternative to killing their fellow Irishmen in the cause of Irish unity, and if that is perpetuated by the First Minister of Northern Ireland, we have to start to realise the extent of the challenge that we have. I ask the noble Baroness to address those issues when she sums up.

My Lords, the real backcloth to this debate is that 58% of all murders were perpetrated by republicans and 29.2%, we are told, were carried out by loyalists. We are told that 10% were at the hands of security forces. Whenever you drill down into that figure, however, you will find that the real figure is 0.5% to 1%, because the vast majority of those attributed to the security forces were cases when terrorists were on their mission to murder but were thankfully intercepted by the security forces, preserving the lives of innocent, law-abiding people in Northern Ireland. We must also remember that thousands were injured, and billions of pounds of damage was done not only to property but to the fabric of our society. One has to ask the question: why did successive Governments fail to protect the innocent people of the Province and allow the IRA to rain such terror on Northern Ireland for 30 years? The IRA sought to make Northern Ireland ungovernable and drive it into civil war. The IRA tried hard to turn not only south Armagh but Northern Ireland into bandit country, but, even after all their years of murder and mayhem, they failed. Sadly, because of decisions recently made by this Government, the republican agitators are using legacy to fight old battles, rewrite the narrative of the history of their murderous deeds, sanitise their evil actions and of course keep the pot stirred to cause division, from which they in the past have gained oxygen and electoral success. There are those in Northern Ireland who are greatly exercised about having inquiries into the actions of the security forces alone, but they do not have the same urgency when it comes to recalling that most of the IRA victims were gallant members of our security forces or members of the isolated Protestant communities along the border areas. Let me make it clear. I stand tonight to salute the bravery and professionalism of our security personnel during the years of republican terror. They faced a merciless foe that usually hid behind their hedges, waiting to carry out their acts of murder, whether it was of one of our young British soldiers, or members of the RUC/RUCR GC or the UDR—or indeed by planting bombs under the vehicles of their Protestant neighbours. I remember when I was in the other House, holding a wedding photograph of a young Castlederg couple. It was the happiest day of their lives. In July 1984, a 20 year-old UDR woman, Heather Kerrigan, and her colleague Norman McKinley were murdered when an IRA landmine exploded while they were on a UDR foot patrol. Heather’s brother was injured in that attack and left to lie in his sister’s blood. Previously, in March 1984, Heather’s brother-in-law, Thomas Loughlin, the groom, was also murdered while off duty. Let me remind the House of what I am recalling. The photograph that I held that day had four persons in it—a groom, a bride, a bridesmaid and a best man. The groom, the bridesmaid and the best man were all murdered by the IRA and the only one left was the bride, left to journey through life alone. I wonder how many remember that and how many really care. Out of the 29 people from Castlederg murdered by the IRA, 93% of those cases remain unresolved and their families have no closure nor hope of closure. The loss, the hurt, the injustice and grief that they feel to this very day have been carried with great dignity, but in many ways, they feel abandoned by successive Governments. Like so many families, I understand their hurt, for no one has been brought to justice for the murder of my loved ones; nor is there any hope of them being brought to justice. Nor is there any hope for justice for the eight workmen murdered along the roadside at Teebane, outside Cookstown; nor for the 10 men who were ordered out of the bus at Kingsmill and massacred—although at the inquest, the families were told that one of the suspects had been linked to almost 50 murders; nor for the 11 innocent people brutally murdered at the Enniskillen Remembrance Day service on 8 November 1987. Some 63 people were injured that day as a bomb ripped the Fermanagh town, and Ronnie Hill, a school principal, spent 13 years in a coma afterwards, dying in 2000, aged 68. The list goes on. Why do I mention these? Most of them, the media will not mention. They have been long forgotten. Indeed, their names seldom, if ever, appear in news headlines. However, republicans parade their dead and the media will readily present the anger and the tears of their families, forgetting to remind especially the international world that it was the IRA which commenced and deliberately carried on this campaign of slaughter. The security forces could have stopped this carnage years ago, but their hands were tied by successive appeasing Governments who were more concerned about international opinion than the safety and protection of their citizens. The southern Government also stands condemned, because, let us remember, it was the Haughey Government who first armed the IRA, and their territory was used by the IRA for years as the safe haven to run to after carrying out their evil and murderous deeds.

23:00:00

Over 1,000 members of our security forces were murdered by the those who were happy to declare themselves Irish Republican Army members during the Troubles. But they always cried foul when they faced the British Army. Republican elected leaders have no compunction in glorifying the vile acts of these terrorists and excusing them by telling us—as the First Minister in Northern Ireland said—that they had no alternative.

For example, on 13 August 1975, under the cover of darkness, three cowardly terrorists led by Brendan McFarlane set out to murder and maim their Protestant neighbours. They arrived at a packed bar to shoot indiscriminately and plant a bomb at the entrance to ensure maximum casualties to innocent men, women and young people, the youngest fatality being a young woman of 17 years of age. Five people were murdered that day and 50 were injured. As the terrorists were escaping from the bar, they machine-gunned a group of women and children who were waiting at a taxi rank. Of course, that is the brave terrorist of the IRA.

In 1983, McFarlane led the Maze Prison escape of 38 IRA inmates, during which an innocent prison officer died. He went on the run, but he recently ran out of road and now faces the justice of God. Yet, at his funeral, Sinn Féin leaders eulogised McFarlane without one scintilla of remorse, as if he were a hero of republicanism. Gerry “never in the IRA” Adams helped to carry the coffin at the funeral, which was also attended by the Sinn Féin North Belfast MP, John Finucane, who in the past often claimed to have a concern to get justice for innocent victims of terrorism; his presence at McFarlane’s funeral was a strange way of showing his concern for the innocent victims of terror on the Shankill Road. Of course, the victims were only Protestant.

In fact, Sinn Féin’s president, Mary Lou McDonald, described McFarlane not as a murderer but as a “giant of Irish Republicanism”. As my noble friend said, she had the audacity to claim that he had

“lived his life in pursuit of freedom, peace and equality”

and unity. Then, she said something else:

“It was a life well lived, a life that shaped a legacy that will inspire generations to come”.

What sickening trash.

The First Minister of Northern Ireland also laid a wreath to mark the deaths of three IRA men killed by their own bomb while on a murder mission in my hometown of Magherafelt some 53 years ago. The IRA stated they were on active service at the time, but that night, by their own hands, their active service ended. With such glorification of terrorism, how can our community move forward to the peace and prosperity for which our hearts crave? What message does that give to our young people, over which these elected leaders have influence? No wonder young people are happy to shout “Up the Ra”. Indeed, the Celtic supporters unveiled a tribute to McFarlane during the Celtic v Aberdeen match last night in the Scottish Premier League.

In conclusion, the facts are these: the vast majority of IRA murderers have never faced prosecution or justice, and yet there are those who wish to haul elderly former members of the security forces before the courts. All republicanism wants is to milk the British state for millions of pounds—they have already done so, and they continue to do so—and our Government are foolish and gullible enough to pay. Even Adams is now permitted to get in on the act and intends to fill his pockets with British money. Every penny given to such republicans is another slap in the face to innocent victims.

Let me make it clear: I will not accept any legislation that does not protect those who served our country proudly in the security forces from vexatious investigations or criminal proceedings. It is for those reasons that we as a party will not be supporting the regret Motion tabled by the noble Baroness, Lady O’Loan.

My Lords, the much-maligned legacy Act of the last Parliament, so ably taken through this House by my noble friend Lord Caine, sought to draw a line under the Troubles and encourage the people of these islands—all of us in our own ways—to opt for a different, better way of addressing these historical matters of the utmost importance. However, with this remedial order, the Government now propose to return to dealing with legacy questions with tried and, I am afraid to say, failed methods by seeking prosecutions and convictions that are increasingly unlikely to happen. It is a fact that, as we all know, prosecutions of Troubles-era offences conducted by paramilitaries of all parties and sectarian affiliations are less and less likely to happen because of a lack of admissible evidence. As other noble Lords have pointed out, the Government’s decision to gut the legacy Act of the previous Parliament will result in a disproportionate and unfair prosecutorial focus on the security forces, which had to work under infernally difficult circumstances throughout much of the Troubles. To my mind, what is worse here is that the Government propose to do all of this in response to a High Court judgment that is open to very serious question indeed. Despite what the Lady Chief Justice appeared to say in her press conference last week—and indeed seemed to walk back from in her testimony today before the Constitution Committee—it is vital that we in this House and in the other House on all sides of the divide, Prime Minister and Leader of the Opposition alike downwards, be able to continue to scrutinise the actions and the judgments of those courts. The 2023 legacy Act extends constitutional immunity to those who give information to the Independent Commission for Reconciliation and Information Recovery. The High Court and now the Government are treating these provisions as if they were somehow unprecedented. But as I and others pointed out in this place during the Second Reading debate on the legacy Act, immunity provisions have featured extensively in the peace process throughout the last 25 years. Immunity has already been widely granted to terrorists through the early release scheme for prisoners which, as we all know, was a key element of the Belfast/Good Friday agreement of 1998 and was implemented furthermore in the Northern Ireland (Sentences) Act 1998. Immunity provisions were also part of the decommissioning process—a prolonged process, as we all know—and the search for the location of the victims’ remains was another aspect of that process. Repealing these conditional immunity provisions means making it much more difficult now to establish the truth about many unresolved cases—cases which, as I have already said, are increasingly unlikely to result in prosecutions or convictions. Parliament is not required simply to agree with the High Court, but policy choices in the legacy Act, including using conditional immunity in exchange for information, are beyond the pale. I recognise that conditional immunity provisions are highly controversial, and that many in this place will, as I pointed out, now welcome their repeal. The same cannot so easily be said for Sections 46 and 47 of the legacy Act, which should not have been included in the remedial order and should not now be repealed at all. Many noble Lords will remember that the noble Lord, Lord Faulks, and others, including me, tabled an amendment that led to these sections being adopted in order to reverse the legal effects of the Supreme Court’s extreme judgement in the Adams case. The intention behind the legislation was twofold. The first purpose was to restore the Carltona principle, which is so important to the day-to-day conduct of government business, as has been pointed out by the noble Lord, Lord Butler of Brockwell. The other purpose was to prevent windfall compensation becoming payable to those whom, on a correct understanding of the law, had been lawfully detained for suspected involvement in terrorism. Any such payment would be unjust and a complete waste of taxpayer money. It would also be received with understandable horror by many in the Province, and indeed in all these islands, including Great Britain. As someone pointed out, one of the unknown heroes of the Northern Ireland Troubles was the Great British taxpayer. While the Government have now signalled their opposition to Gerry Adams and others receiving compensation, I should like to take this opportunity to remind the House that this Government freely chose not to appeal the High Court declaration that Sections 46 and 47 were incompatible with the European Convention on Human Rights. I must declare an interest as the director of Policy Exchange. For the reasons set out at length in a recent Policy Exchange paper written by Professor Richard Ekins and Sir Stephen Laws, a former First Parliamentary Counsel, and backed by many noble Peers here, the High Court’s analysis seems to many to have been plainly wrong, and it is inexplicable that the Government have chosen not to appeal it. There is no good reason for the Government to have included repeal of these sections in the remedial order. They are clearly severable from the controversy that exists in relation to other provisions of the 2023 legacy Act, which the Government have consistently opposed. The Prime Minister himself has told Parliament that he will look at every conceivable way to avoid paying compensation in these cases. He is right to do so. The obvious way to achieve this end is to withdraw the remedial order and maintain Sections 46 and 47 in force.

My Lords, I thank my noble friend Lady O’Loan for her important speech this evening. She is one of the victims of the Troubles, and it is important to pay attention to everything that she has said tonight. I think that the outstanding issues in her speech will be resolved either by the Government taking actions to improve the workings of the ICRIR or by subsequent cases in the courts. That is the likely future for the issues she raised. If I have gathered correctly, my noble friend is a critic of the ICRIR in principle, and I approach this problem from a very different angle. I am not a critic of the ICRIR project. I admire enormously the way that Sir Declan Morgan has led it through very difficult times in the last few months. I therefore have a very different angle of vision from that of my noble friend. This week, the Prime Minister, in his very important speech on defence, said that in 1989 he could not have envisaged a situation in Europe where the Ukraine war was happening and there was an invasion of boundaries and so on. At a moment of great hope with the collapse of communism, he could not have envisaged this. It provoked a thought in me: at the time of the Good Friday agreement, I could not have envisaged that, more than a quarter of a century later, we would be sitting in this House debating legacy cases and how legacy cases have been carried on. If you look at the language in the Good Friday agreement itself, you could reasonably argue that it is somewhat curt on legacy victims. They are advised to take pleasure in the fact that we had negotiated peace. You would not gather from the Good Friday agreement that we would have this long, traipsing agony continuing through the courts this week—and which is likely to continue ad infinitum, unless something like the ICRIR works. It is the most important part of the 2023 Act, which I supported almost in its entirety. The ICRIR remains, and without it, we would have a future where these cases straggle on and on.

23:15:00

Shortly after the Good Friday agreement, I was asked to be one of the historical advisers on the Bloody Sunday tribunal. I was happy to accept that. You could take the view that such an iconic case, where it appeared that the British Army had had a very bad day and behaved badly, required that inquiry. Indeed, you could also argue that the speech of the then Prime Minister—the noble Lord, Lord Cameron of Chipping Norton—at the time, which I think reflected the influence of the noble Lord, Lord Caine, was a relatively dignified way of bringing closure to a horrible human tragedy. However, when we agreed to have the Bloody Sunday inquiry, Parliament voted to provide £11.5 million; that was what Parliament’s vote was for. In the end, it was actually £191 million; that was the official figure given. Important newspaper discussions happened at the time arguing that the real figure was £220 million.

I do not want to be seen as taking a Dickensian view of lawyers, but I have to say this as an historical adviser: a lot of the Bloody Sunday inquiry was largely performative, to use the vogue word at present. For example, the papers sent to me showed, beyond any doubt, precisely what Edward Heath’s role was; there was absolutely no question. It showed everything he ever thought or said about the situation in Northern Ireland and in Derry leading up to Bloody Sunday; it is perfectly clear what he thought about it. There was no need for him to be badgered by famous Northern Irish QCs and courts for days and no need for that high drama; it was entirely performative. I am certain that that was not cheap and that it cost money. There is a real problem with our way of carrying out inquiries in general.

The noble Baroness, Lady O’Loan, was right about the documents she gave as examples: it seems very strange that some of them have been withheld for this length of time. It is hard to see what could be at stake in these documents—I am glad to see her nod in agreement—and I agree with her completely on that. By the way, I do not think that any documents were withheld from me, and no evidence has shown that. Trucks arrived at my house and my garage is still full of these papers. They include intelligence reports; documents showing what the senior Army commanders, other members of the Cabinet and members of the then Northern Ireland Government were thinking; intelligence reports coming out of Bogside at the time; and an informant’s report featuring a long conversation with Martin McGuinness, in which he claimed to have felt a degree of guilt over what happened on Bloody Sunday. I see no evidence that anything was withheld.

There was one very striking thing. When the British Army senior command received the Widgery report, which is often referred to as a whitewash, they said, “Oh my gosh, we killed eight innocent people on the day”—that was their reaction. They were not delighted at a good ending; they said that they had actually killed eight innocent people. The only reason I did not say that 13 people were killed is because the forensics that the Widgery report relied on were then changed as a result of further work on Bloody Sunday.

By the way, I am not suggesting that all you need to do is to let some academics rummage through documents. I am saying that there is a role aside from the unnecessarily performative and combative style of lawyers. Lots of other things had to be done on Bloody Sunday: examining the velocities of the weapons, which were the British Army’s, or possibility not the British Army’s, and so on. That all required extra work, which was expensive. My point is: was it £200 million-worth of extra work at those prices? This is the defence of the ICRIR.

The Secretary of State has spoken, for example, of his hopes regarding inquests. The Clonoe case has been talked about tonight, and it is very controversial. Again, nine silks and another 10 barristers were there for three weeks. They are not cheap. I am not talking about the rights and wrongs, but about the costs. I am not surprised that the Secretary of State allows himself to talk in public about these things maybe being folded into the ICRIR, because frankly, if not, this is going to go on ad infinitum, and we will be having this debate in 2040.

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?

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.

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?

My Lords, given the lateness of the hour, I shall endeavour to be extremely brief and will concentrate primarily on the parliamentary process. I thank the noble Baroness, Lady O’Loan, for tabling this regret Motion and allowing us to have this thought-provoking and wide-ranging debate, which has perhaps been more about legacy issues in general than specifically this order. She raised a number of extremely important points and spelled out some of the positives in this order. I recall, as she did, that during the debates we had on the previous Government’s legacy Act, all political parties in Northern Ireland were absolutely united in opposing the immunity provisions. For that reason alone, we on these Benches support this draft order.

23:30:00

I understand that the Joint Committee on Human Rights will publish its report into this draft remedial order this Friday. I hope the Government will pay due attention to its findings. Can the Minister say a little about that in her concluding remarks? This draft order also goes a considerable way to dealing with the ECHR issues highlighted by the Northern Ireland High Court ruling in February, as well as one highlighted by the Northern Ireland Court of Appeal in September. As I understand it, the remaining issues, including next of kin participation in investigations and disclosure of sensitive information, will be dealt with in forthcoming primary legislation. I hope the Minister can confirm that this is the case.

As the Minister knows, I have pressed many times on the timing of the publication of the new primary legislation because, as I am sure she agrees, having legal certainty on these issues is in everyone’s best interests. Perhaps it is the legal limbo or vacuum that we currently face—knowing that the legacy Act will be repealed but not yet knowing what the Labour Government will propose in its stead—that is resulting in important but slightly difficult debates such as we have had this evening. No doubt she will reply “When parliamentary time allows”, as she usually does, but I encourage the Government again to ensure that they consult widely and publish the draft legislation as soon as possible—hopefully by Easter Recess—so that we can all begin to look at it.

Like the noble Baroness, Lady Hoey, I think this debate is somewhat premature in parliamentary terms because we have not yet seen the primary legislation and do not yet know what it will look like. When we eventually see it, we will again have the opportunity to debate it line by line. For that reason, I am afraid that I do not support this regret Motion, although I welcome this useful and extremely wide-ranging debate on legacy issues.

My Lords, as a Minister I spent some 28 hours in your Lordships’ House debating the legislation that is the subject of this draft remedial order and the Motion in the name of the noble Baroness, Lady O’Loan. In addition, I held somewhere in the region of 80 meetings on this subject between summer 2022 and September 2023. I hope noble Lords will therefore be relieved to hear that I have absolutely no intention of going over the same old ground on what became the Northern Ireland Troubles (Legacy and Reconciliation) Act, not least given the lateness of the hour. All I will say is that in our view the Act represented a realistic assessment of what could be delivered for victims and survivors of the Troubles, over half a century after they began and over a quarter of a century since the Belfast agreement of 1998 effectively brought them to an end, in the context of the prospect of prosecutions and successful convictions being vanishingly rare, as my noble friend Lord Godson pointed out. I also fully appreciate that, for many people, some aspects of the legislation were extremely challenging—that has been brought out again in this debate—as they were for me, as I made clear at Second Reading in November 2022. That was why I made more than 100 amendments to the legislation as it passed through your Lordships’ House in an attempt to improve and strengthen it. I still believe that the independent commission has the capacity to deliver better outcomes for victims and survivors of the Troubles than established processes that work for only a small minority of those who suffered and offer virtually nothing for those who suffered at the hands of terrorism. I repeat our welcome for the fact that the Government intend to keep the commission, which has the powers to compel witnesses with penalties for non-co-operation. The Government set out in their Statement on 5 December how they intended to respond in those areas where the courts in Belfast found the legislation to be incompatible with provisions of the European convention. Of course, we set out our views accordingly. While we do not agree with the provisions of the draft remedial order concerning conditional immunity and civil cases, we respect the right of the Government to bring them forward given the strength of their opposition to them as the legislation was going through your Lordships’ House. But we fear that there is a real danger that the changes they are proposing will return us to a fragmented and incoherent approach to legacy issues and cases, which our legislation sought to address. It will result in a hierarchy of investigations, lead to the very real prospect of elderly veterans being dragged back once again before the courts and facilitate, unwittingly or otherwise, those who seek to rewrite history. We remain puzzled over the rash decision in July to drop the appeal against the High Court judgment in respect of Sections 46 and 47 of the Act, which deal with interim custody orders, the provisions for which I inserted at Third Reading in your Lordships’ House, following extensive discussions with the noble Lord, Lord Faulks, and my noble friend Lord Godson. At the time, this was supported by the then Opposition. I commend the speeches of my noble friend and the noble Lord, Lord Faulks. I also commend the brilliant Policy Exchange paper by Sir Stephen Laws and Professor Richard Ekins on this subject. As a result of the remedial order, Sections 46 and 47 will be removed from the Act, reopening the door to significant claims for compensation from those who argue successfully that they were unlawfully detained in the 1970s. Taken with the reopening of inquests and the resumption of civil cases, the burden on the PSNI and the court service risks becoming absolutely huge, with costs running into the tens of millions, if not more. The noble Lord, Lord Bew, in a customarily erudite and eloquent speech, reminded us of some of the costs associated with public inquiries, including the Bloody Sunday inquiry with which he was so closely associated. What assessment have His Majesty’s Government made of the resource implications of the changes they are proposing? Where exactly will that money come from? Will it come from the £250 million pot from the Stormont House New Decade, New Approach agreement, which is intended to fund legacy issues? The Prime Minister promised on 15 January: “we will look at every conceivable way to prevent these types of cases from claiming damages”.—[Official Report, Commons, 15/1/25; col. 324.] But surely, as my noble friend Lord Godson argued, the best way to achieve this would be to withdraw Sections 46 and 47 from the remedial order. We hope that, by the time the Government come to publishing the final order, they might think again on this particular matter. Where we do agree with the Government is in continuing to appeal the court’s rulings in respect of the Windsor Framework and on the powers of the Secretary of State to preclude the disclosure of sensitive information that could put individuals at risk and make people less secure. As a result, these form no part of the remedial order, and that is something that the Opposition welcome. It follows, therefore, that the Opposition do not support the regret Motion in the name of the noble Baroness, Lady O’Loan. While I respectfully disagree with the noble Baroness, I can understand some of her frustration, given her forthright and principled opposition to the legislation that I took through this House. The current Government came to power with a pledge to reform and repeal the legacy legislation, yet it is clear that the bulk of it will remain, including the independent commission to which the noble Baroness objected so strongly, so I understand some of her personal frustrations. The Government say that they are seeking consensus on legacy proposals, which is commendable. However, tonight’s debate has demonstrated clearly just how difficult that might be, as it was for all their predecessors since 1998—and the noble Lord, Lord Elliott of Ballinamallard, alluded to that in his comments. On one final point, my noble friend Lord Empey spoke of the role of the Irish Government in respect of legacy cases and the comments of the former Justice Minister and former Attorney-General Michael McDowell, who, he will not be surprised to hear, was one of the 80 meetings I had between 2022 and 2023. It is clear that the Irish Government have questions to answer about their handling of legacy issues within their own jurisdiction. At two successive meetings of the British-Irish Intergovernmental Conference, in November 2023 and April 2024, I raised these matters, and individual cases, directly with the then Foreign Minister, now the Taoiseach, Micheál Martin. I seek an assurance from the Minister that the current Government will continue to raise the issues of Omagh, the Ian Sproule case and the inter-state case, which is totally unjustified, with the Irish Government at future meetings of BIIGC. We will of course return to all these matters in detail when the Government finally reveal their proposals. For now, given the lateness of the hour, I look forward to the Minister’s reply.

My Lords, I will respond to the regret Motion tabled by the noble Baroness, Lady O’Loan, regarding the scope of the proposed draft remedial order which addresses various incompatibilities found by the Northern Ireland courts in respect of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023. I acknowledge and welcome the sincerity of her concerns, and the importance of ensuring that future mechanisms for addressing Northern Ireland’s legacy issues fully comply with our human rights obligations and are capable of commanding public confidence. Before I move on to the substance of the debate, I thank all noble Lords for their contributions. There is no more emotive or long-standing issue for us to discuss in your Lordships’ House than the legacy of the Troubles, and the real and tangible impact that this has had on too many families. I put on record my sincere thanks to everybody present who has worked tirelessly to try to deliver a level of peace and justice for those affected by the brutal and horrific acts of terror perpetuated during one of the most painful periods of British history. I want to especially thank the noble Lord, Lord McCrea, for his contribution this evening. His speech demonstrated for me the sheer scale of the trauma of the Troubles, and the reality of the horror and evil of paramilitary terrorism. Last week, I had the honour of spending some time in Northern Ireland, meeting some of the groups that work with and support those affected by the Troubles. I am in awe of the people I met; their determination was inspiring and their stories were devastating. I thank each and every one of them—people who were prepared to share the terrible traumas that they experienced during the Troubles, including in the line of duty. I cannot comprehend the scale of the pain they continue to experience, and it is something that I will always remember.

23:45:00

The other thing that was clear during my discussions was just how complicated the legacy of the Troubles is. There are no clear lines of agreement between communities, within communities or even, it seemed to me, within the support groups that I met. We must remember that each person has had different experiences and wants their own truth and their own outcome. For some, it is as simple as knowing what happened in the final moments of their loved ones’ lives. For others, it is justice, and I cannot tell them what they need. This makes the job of finding a way forward extremely challenging, but this Government are up to the task because we have to be.

With that thought, let us turn to the substance of what is before us. The draft remedial order addresses the specific deficiencies identified by the Northern Ireland High Court and one deficiency identified by the Northern Ireland Court of Appeal. For a variety of reasons, it was not possible to include all the incompatibilities found by the Court of Appeal in the remedial order. The noble Baroness, Lady O’Loan, has mentioned specific concerns about the remedial order both in her written evidence to the Joint Committee on Human Rights and in the Chamber this evening. Other noble Lords have made other points, and I will address each in turn. However, this has been a long debate, and the day has been very long, so if I miss any specifics then I will review Hansard and respond in due course.

To be clear, what is before us is a draft proposed remedial order. I consider our debate this evening as a core part of the process of engagement for what happens next in terms of legacy, so I thank all noble Lords for their participation. I reassure noble Lords that much of what has been discussed this evening is out of the scope of the remedial order and will need to be addressed in primary legislation, which will be brought forward when parliamentary time allows—not to disappoint the noble Baroness, Lady Suttie. We need to be realistic. Even today demonstrates quite how challenging it is to get government time, but we will bring this forward when that allows.

I turn to the specifics on inquests, raised by the noble Baronesses, Lady O’Loan and Lady Hoey. While the coronial process is not without its challenges, as we have seen recently, including in relation to disclosure and its ability to take account of sensitive information, it is clear that it has helped to provide a number of victims and survivors with information and a sense of justice or accountability in some cases that they might not otherwise have been able to obtain. I am acutely aware of the distress caused to families due to the cessation of live inquests on 1 May last year. This Government are committed to ensuring that such cases are able to conclude satisfactorily through the coronial system, should that be the preference of the families involved.

However, remedial orders can be used to remedy legislation only where there is no appeal against ECHR findings. In the case of restoring inquests, while we agree entirely with the sentiment expressed by the noble Baroness, Lady O’Loan, the final order from the Court of Appeal in Dillon referred to a narrow set of cases that were formerly inquests. Since the appeal to the Supreme Court includes the aforementioned issues directly related to inquests, our assessment was that it was not appropriate to use the remedial order to restore them. However, as the noble Baroness, Lady Suttie, mentioned, the JCHR is due to report shortly and we will consider its recommendations in due course.

On disclosure and next of kin, as raised by the noble Lord, Lord Morrow, and the noble Baroness, Lady Suttie, the Court of Appeal was clear that ICRIR has the capability to replicate investigations that were previously with the police and the ombudsman, and to fulfil human rights obligations in those cases. The Court of Appeal also explicitly recognised the wide powers of ICRIR, including its unfettered access to all information, documents and materials as it reasonably requires in connection with the review, stating that these powers should not be underestimated.

The Court of Appeal’s findings in relation to disclosure and effective next-of-kin participation in cases that would otherwise have been inquests raise issues that could reach far beyond the scope of the legacy Act, including on the state’s ability to keep people safe. For that reason, the Government have sought permission to appeal to the Supreme Court, and that means the remedial order cannot be used to address these issues. However, when parliamentary time allows, the Government will bring forward a Bill that will implement a disclosure regime that is fair and transparent and, crucially, allows the greatest possible disclosure of information while ensuring that proportionate safeguards remain in place to protect the security of the state. That legislation will also ensure that in specific circumstances the independent commission is able to hold public hearings, take sworn evidence from individuals and allow families to have effective representation. I hope that provides assurances to the noble Baroness and others who have raised this issue that we are committed to addressing the legacy of the past in a legally compliant way.

On police misconduct, I recognise that this is a very sensitive issue, and one in which the noble Baroness has a keen interest and extensive experience of. Section 45 of the legacy Act deals with complaints relating to police conduct forming part of the Troubles. Specifically, this provision brought an end to Police Ombudsman for Northern Ireland investigations and prevented new ones being commenced. The Court of Appeal found Section 45 to be incompatible with Articles 2 and 3, and this issue is not the subject of an appeal from the UK Government. On that basis, it would have been permissible to repeal or amend Article 45 in the draft remedial order. However, this issue requires engagement with the police and police oversight bodies, and there was limited time to do this between the final court order being agreed on 18 October and the laying of a proposed draft remedial order on 4 December.

However, I remind the House that the proposed draft remedial order is exactly that: a draft. Should the JCHR, on the basis of representations made, recommend that the Government widen the remedial order to include the repeal of Section 45, we will of course consider that carefully. I reiterate that the Government are committed to ensuring that the legacy mechanisms are fully compliant with the ECHR. The remedial order is just the first step in fulfilling that commitment.

On Section 38 of the legacy Act, which prevents criminal investigations of any Troubles-related offence being continued or begun, this provision was not found to be incompatible with the ECHR and therefore cannot be removed from the Act using this remedial order. Section 41, which prohibits criminal enforcement action in relation to a Troubles-related offence that does not fall under the remit of ICRIR, was found to be incompatible with the ECHR. This section is being removed from the Act by Article 2 of the draft remedial order.

I turn to one of the most controversial aspects that we have discussed this evening. I take the opportunity to thank everyone who has responded to the call for evidence launched by the JCHR on the proposed draft remedial order. The Government welcome scrutiny and will carefully consider the written evidence when it is published, and the JCHR report, before returning with the draft remedial order to this House and the other place.

I know that there has been a lot of controversy, as highlighted by the noble Lords, Lord Godson, Lord Faulks and Lord Caine, surrounding the proposed removal of Sections 46 and 47, on interim custody orders, from the legacy Act via remedial order. I will address that issue directly. The previous Government failed to address it adequately following the 2020 Supreme Court judgment in R v Adams. The Government’s belated attempt to do so via an amendment to the legacy Act in this House, in the name of the noble Lord, Lord Faulks, three full years after the judgment in R v Adams, has been found by the Northern Ireland courts to be unlawful.

I am sorry to interrupt. To clarify, the amendments that found their way on to the statute book were government amendments that I moved at Third Reading of the legacy Act. They were not amendments in the names of the noble Lords, Lord Faulks and Lord Godson.

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.

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?

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.

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I thank the noble Lord, Lord Bew, as ever, for all his work on the tribunal as well as for his measured and engaging approach tonight to these challenging and heart-wrenching issues. These are not straightforward and none of this is easy. When we are discussing them, we need to be careful of our language, and I thank him as always for providing that level of support.

When I was in Belfast last week, I met the group Healing Through Remembering, which advised me that there is not a single day in our calendar, including 29 February, when a family is not grieving the loss of someone who died in the Troubles on that day. That fact alone is a reminder of the scale of the human tragedy that we face when we stand here to discuss the Troubles.

I assure the noble Baroness, Lady O’Loan, and all Members of your Lordships’ House that the Government are not complacent about the concerns raised, either in this Chamber this evening or in submissions to the JCHR during its call for evidence on the remedial order. We are actively engaging with stakeholders, including families, victims and survivors groups, Northern Ireland parties, civil society, the veterans community and the Irish Government, to refine and strengthen our approach. As we have set out, the draft remedial order laid on 4 December is the first step to repealing and replacing the legacy Act. Our approach, which will also include primary legislation, seeks to balance the need for truth, justice and reconciliation while ensuring legal and operational viability.

While I respect and understand the tabling of this regret Motion, I urge colleagues to recognise that this Government are committed to delivering legacy mechanisms that meet our human rights obligations while enabling society in Northern Ireland, which has come on such a long way since 1998, to begin to heal the terrible wounds of the past and look to a better future. We must take measured, thoughtful and appropriate steps to achieve this goal, and I look forward to continuing discussions with all noble Lords as we develop and introduce our legislative proposals. I therefore respectfully ask that the House acknowledges the progress being made and supports the Government’s ongoing efforts in this regard.

My Lords, I thank all noble Lords who have taken part in the debate tonight. It has been wide-ranging, going way beyond the scope of the regret Motion that I tabled—I knew it would be thus. I would like to correct one issue raised by the noble Lord, Lord Caine. For 20 years, I have called for the establishment of an independent body to deal with the past. My objection to the legislation about the ICRIR was the way in which it lacked independence and was to be so circumscribed and controlled by government. What we are contemplating now is the future handling of the legacy of the past. Tonight’s debate has enabled wide-ranging discussion of the past. The multiple atrocities of the past have been well articulated here tonight. We should never forget. When I do this work, I am always catapulted back to the darkness, the terror and the pain of the bomb explosion in 1977, which took the life of my first baby as I was pregnant, and to the terrible attempted murder of one of my boys almost 20 years ago by loyalists. The IRA killed my first child; the loyalists tried to kill this child. They left him with life-changing injuries. There are many tears, my Lords—many, many tears. For many decades I have worked also with victims. I remember the police widow who told me that she sat at her window in her lonely farmhouse for decades, waiting for the police officers, her husband’s colleagues, to come back and tell her what had happened—what they had found. But they never came. They were moved on to other cases. I remember the parents of the last soldier to die in Northern Ireland, Stephen Restorick, whose case I dealt with. I remember the children of Jean McConville and all the disappeared of the Troubles —disappeared by the IRA—with whom I have worked extensively, and I was thinking most recently of the victims of the Omagh bombing, whose stories have been told so graphically in the past weeks. So much pain—so much grief. We must find a way to provide one system, accessible to all, which seeks to provide for the needs of all. It will be difficult but we must find a way. In that spirit of positivity I tabled this regret Motion. It is important to explore together as constructively as we can how we can care for all our people as we journey forward into the future. I beg leave to withdraw the Motion.

Motion withdrawn.

House adjourned at 12.05 am.