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

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.

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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.