Supreme Court Dillon Judgment

My Lords, I am grateful to the Minister for making herself available today to take this Statement and answer questions on the important Supreme Court judgment; I appreciate that she has a very busy portfolio, so I am grateful. Can the Minister tell the House what the urgency was that required the Secretary of State to make his Statement in the other place last Thursday when many of Northern Ireland’s MPs, along with members of the Northern Ireland Select Committee, were attending the Balmoral agricultural show? One can only speculate as to what would motivate the Government to make a Statement on a day when they would have known that a significant number of interested MPs would be unable to attend. Turning to the judgment, the Opposition welcome that the court found in favour of the Government in respect of article 2 of the Windsor Framework. I remind the House that this relates to measures introduced by the previous Government, of which I was a member. The appeal in this area is a continuation of the one we lodged following the High Court judgment of February 2024. We were always very clear that the human rights protections in the Windsor Framework were intended to cover those specific to Northern Ireland, as set out in the rights, safeguards and equality of opportunity section of the Belfast agreement 1998. It was never our intention that article 2 of the framework should apply more broadly than that and enable the courts to disapply primary legislation where they believe it engages provisions of EU law that no longer apply in Northern Ireland. However, as the Statement points out, the judgments in both the High Court and the Court of Appeal had implications for the effective implementation of government legislation on a UK-wide basis, not just in areas of national security as the Statement refers to but also, for example, in tackling illegal migration. We are naturally pleased, therefore, that the position we took has now been vindicated. Turning to the issue of conditional immunity, I regret that the Statement continues the current Government’s wilful mischaracterisation of what is contained in the 2023 Act. There was never a general immunity—to which I would emphatically have never agreed—but a conditional scheme in relation to specific cases where an individual co-operates fully with the commission, with tough sanctions including revocation, fines and possible prosecution where somebody knowingly sought to mislead or hide the truth. The effects would have been to facilitate information recovery, helping to provide answers to victims and survivors while ensuring that individuals, including veterans, could speak freely without fear of further consequences. Notwithstanding what it says about ECHR compatibility, which is more nuanced than the Statement implies, the court’s judgment is also clear that the immunity provisions in the 2023 Act do not breach article 2 of the Windsor Framework and therefore do not need to be disapplied. Can the Minister confirm this is the case and that, as the law currently stands, any veteran engaging fully with the commission could apply for conditional immunity and this could be granted? Does it not also follow that the decision by the Government to use the Human Rights Act to remove these provisions is a political choice, rather than a legal requirement, and one that will once again lead to the prospect of investigations and prosecutions? It is a political choice that will not be lost on so many of those who served to keep people safe and secure from terrorism during 30 years of Operation Banner. The court also ruled that the current commission can carry out investigations to an article 2 and 3 standard and can operate independently of the Secretary of State—not least in part thanks to the amendments passed in your Lordships’ House. Does this not render the sweeping changes in the Government’s own Northern Ireland Troubles Bill, which had its Second Reading in the other place as far back as November and has not yet had its Committee stage, almost completely unnecessary? We all know that the reason for the delay has been an impasse between the Northern Ireland Office and the Ministry of Defence over additional protections for veterans after the ones announced last September were shown to be wholly inadequate, with all but one applying in equal measure to paramilitaries. Can the Minister tell the House whether these new protections have now been agreed and, if so, when they will be published? Have they been backed by the Dublin Government, who have been seen by many as driving this process, over which they have effectively given themselves a veto? The commission that was established in 2024 has, from a standing start, so far received requests from 290 individuals from all parts of the community. It is conducting 123 live investigations, involving approximately 200 deaths, with its first reports expected imminently. Rather than burdening this House with yet more unnecessary legislation, the Government should get behind the commission and ensure that it has the tools to do its job. Instead, they have made the political choice to embark on a course that will once again leave veterans exposed, facilitate the republican rewrite of history and, regrettably, only delay the provision of answers for so many victims and survivors of the Troubles.

My Lords, I too thank the Minister for dealing with questions following last Thursday’s Statement from the Secretary of State for Northern Ireland. The judgment is undoubtedly a complex one, but we believe it firmly vindicates the many concerns that were raised during the passage of the previous Conservative Government’s Bill in your Lordships’ House, as well as elsewhere, about the immunity provisions contained in the 2023 Act. From these Benches, we consistently opposed the unacceptable equivalence that the immunity provisions made between terrorists and those who had served the Crown in Northern Ireland. It was this position of equivalence that led to all political parties in Northern Ireland—we should not forget—victims and survivors’ groups, as well as many veterans in Northern Ireland, opposing it. Although those provisions never came into force and were not before the Supreme Court in this case, I know that the Minister is all too aware that there remain many concerns about both the remedial order and the Troubles Bill among veterans’ organisations. The Supreme Court’s ruling makes getting those protections right more urgent, not less. The court confirmed that the ICRIR’s design is not fatally flawed in principle, but only by deferring key questions to be resolved case by case. That approach creates precisely the uncertainty that veterans fear most of all, particularly given the inherent evidential disadvantage they face. Dillon has not resolved these questions; it has simply postponed them. We believe that that makes it even more important that the protections built into the Troubles Bill are robust and clearly defined from the outset. Last week, the Secretary of State for Northern Ireland said that protections for veterans “will be published in advance of Committee ”—[Official Report, Commons, 14/5/26; col. 146.] in the House of Commons. Can the Minister confirm that these provisions to protect our veterans will also be shared with noble Lords, and that our views and concerns will also be taken into consideration? Can the Minister also confirm that these will be real and substantial protections that recognise that there is not, and never should be, equivalence between those who serve our country and those who have committed terrorist atrocities? The judgment clearly has consequences beyond this case alone. Can the Minister say what she believes the wider implications of the Supreme Court’s ruling on article 2 of the Windsor Framework will be for both Northern Ireland and the Government’s ability to legislate going forward? Finally, does the Minister agree that, in all the heat and fury surrounding these issues, it is vital not to forget the families, victims and survivors, who simply want to know the truth of what happened to their loved ones and to have some prospect of justice? I had the privilege of visiting the Wave Trauma Centre in Belfast recently. Speaking to a small group of victims and survivors was deeply moving. They just want to have hope that, after all these years of waiting, they might have answers and some sense of closure. Does the Minister also agree that it is equally important that this process does not lose sight of the objective of long-term reconciliation, including measures to promote genuine cross-country understanding, such as measures to advance integrated education?

My Lords, I thank both the noble Lord, Lord Caine, and the noble Baroness, Lady Suttie, for their contributions. I will attempt to address their questions and concerns, considering both the time available to us and the complex nature of this judgment, which I am sure that both noble and noble and learned Lords will be taking time to digest. I will also reflect on Hansard and, if I have missed any of the specific questions raised, I will write. I start with the final comment made by the noble Baroness, Lady Suttie, about the victims. The noble Lord, Lord Caine, advised me when I took on this role that, every time I speak at the Dispatch Box, I should check the anniversary dates. That should remind all of us of the actual consequences of what we are dealing with and why we are doing this work. On 17 May 1973, five British soldiers were killed by the Provisional IRA in Omagh. On 17 May 1974, the Dublin and Monaghan bombings by the UVF occurred, and 33 people were killed. On 15 May 1977, Captain Robert Nairac, known to Members of your Lordships’ House, was disappeared. On 19 May 1981, five British soldiers were killed at Bessbrook by the Provisional IRA. On 18 May 1984, three soldiers were murdered at Enniskillen and two soldiers were murdered at Camlough by the Provisional IRA. On 20 May 1985, four members of the RUC were murdered near Killeen by the IRA. This is within a week in the history of the Troubles. However, there is always hope: on 22 May 1998, we had the referendum on the Belfast/Good Friday agreement, in which 71.2% of the residents of Northern Ireland voted for peace to take us forward. Everything we do has to be within the spirit of the Belfast/Good Friday agreement and of the Stormont House agreement to take us from where we were to where we are. There are Members on all sides of your Lordships’ House who lived and breathed the reality of the Troubles and, for every murder I have just referenced, dozens of people were hurt and still live with the consequences today. So, as we talk about these issues, people are still grieving every single day and do not have answers. I have been privileged in my role to meet many of the families, victims and veterans’ groups who served and are still dealing with the consequences. I turn to some of the specific questions. I commend, as my right honourable friend the Secretary of State for Northern Ireland did, the families who brought the case against the legacy Act. They were utterly opposed to the Act and, most notably, to the provision it made for a conditional immunity scheme, which would have offered immunity to terrorists who perpetuated horrific acts of violence against our service personnel, as well as our service personnel—an immunity that has never been put into law. The action they took resulted in the conditional immunity scheme and several other provisions of the legacy Act being found by the High Court, and then again by the Court of Appeal, to be incompatible with our obligations under Articles 2 and 3 of the European Convention on Human Rights. This Government have and are opposed to the immunity scheme. It was wrong in principle and had no support in Northern Ireland, which is why we dropped the appeal on immunity. On the specific points raised by the noble Lord, Lord Caine, although I am not as noble and learned as my mother had always wished I might be, there was one key paragraph in the finding: “In our view it cannot be said that the Strasbourg court has established a principle in its case law that there is a reconciliation exception to the general ban on amnesties for grave breaches of fundamental rights or that the question has not come before that court. Absent such a ruling, there is nothing to which the mirror principle can be applied by the United Kingdom courts through incremental development to the circumstances in Northern Ireland”. As I said, I am definitely not learned, unfortunately, but my understanding, and my briefing, is that that is clear, in legal language, that amnesty would not be found to be legal. I turn to the remedial order. This point is particularly important to note. I know that some in this House have shared the view that the Government did not have the grounds on which to bring forward the remedial order, which would finally strike the immunity provisions from the statute book. As noble Lords will be well aware, the conditions for laying an RO under the Human Rights Act are that “an appeal brought within that time has been determined or abandoned”. The Supreme Court recognised this, and therefore immunity was not an issue before it. However, it stated very clearly that no exemptions in case law exist to justify the granting of immunity for breaches of Articles 2 or 3 of the ECHR. As such, the Government will move forward with the remedial order as soon as parliamentary time allows, and I look forward to discussing the detail of the remedial order with Members of your Lordships’ House at that point, in what I am sure will be an interesting discussion. I turn to Article 2 of the Windsor Framework. The Supreme Court has provided important clarity on how this should be interpreted and applied in future. It has confirmed the Government’s long-standing position that the rights protected by Article 2 of the Windsor Framework are those concerned with the cessation of the sectarian conflict in Northern Ireland, and that specifically. While reaffirming the Government’s position on this, the Supreme Court found that the relevant provisions of the legacy Act should not have been disapplied by Article 2 of the Windsor Framework. For absolute clarity, this does not equate to endorsement of the immunity scheme, as has been suggested by some. I turn to the Troubles Bill that is before the other place. As my right honourable friend the Secretary of State for Northern Ireland set out, the Troubles Bill is now the only viable way to generate confidence across communities, enable information sharing by the Irish authorities and put in place the necessary safeguards for our future service personnel. We have been listening to victims, families and our brave veterans and service personnel in developing this legislation. I have met numerous victims and veterans’ groups and have heard first hand of the violence—the Troubles continue to impact their lives today. It is for them we are seeking to act. This is why the Government are committed to progressing this legislation as soon as possible, while balancing that against the need to get this right. The Government will be tabling a series of amendments to the Bill in due course, which we hope will give all communities confidence in legacy processes and ensure that our veterans are treated fairly and with the respect and dignity they deserve. In answer to the noble Baroness, Lady Suttie, yes, absolutely, I am more than happy to share them with Members of your Lordships’ House. As and when the legislation gets to our end of the building, however, I am convinced that we will be discussing specifically those parts of the legislation for many hours. One of the other issues, and why we need the legislation to come forward, is tackling interim custody orders. That was not referenced by either the noble Lord or the noble Baroness, but we do need to deal with this issue, and we will do so within the legislation as it comes forward. The noble Lord, Lord Caine, also touched on immigration. He is absolutely right that there are impacts of this judgment across Whitehall as well as across Northern Ireland departments. It is a very complicated judgment, so we are reflecting on what it means in the round, but the Government were successful in our appeal, so we look forward to moving forward. On the other issues, I put on record my support for WAVE. It is an extraordinary organisation, and it is not the only one. We work closely with many others across the piece, whether they are smaller groups such as MAPS or SEFF—which is not a small group at all—or WAVE. Noble Lords who have been touched by this issue will be aware that veterans in Northern Ireland require different types of support than other members of the community do. It would it be impossible for a member of the unionist community to access certain services if they did not know who would be there too, and vice versa, so making sure that there is a range of organisations is key, and it is my privilege to get to work with them.

My Lords, we now move on to up to 20 minutes of Back-Bench questions. To get in as many questions as possible from all sides of the House, we need questions, not speeches. The first question will come from the Conservative Benches and we will then go to the Cross Benches.

My Lords, I commend to the Minister the Amnesty Act 1924, which she will know was passed by the Irish Government at the conclusion of the civil war. It was a very useful precedent, and I commend it to the House as a very sensible way forward.

My Lords, the noble Viscount makes an important and interesting intervention, but there are so many people who are still in such pain and who made huge compromises and sacrifices in order to deliver the Belfast/Good Friday agreement. While I appreciate that the concept of amnesty could be appealing, and there are other mechanisms that could be as appealing, there are those, including me, who want to see as many paramilitaries prosecuted as we can.

My Lords, in thanking the Minister for the way she introduced her response to the Statement this afternoon, I link that with thanks to the Secretary of State, Hilary Benn MP, for the way they both engaged with the Joint Committee on Human Rights on the remedial order and the Troubles Bill. Given that scrutiny on those things continues, can she promise us, given that the remedial order was agreed by the committee on the basis of urgency, that it will be expedited and brought forward without any further delay, and that the new amendments, a tranche of which she alluded to in her remarks, will also be brought to the committee to see before it publishes its report on the Bill? Lastly, in the light of Peter May’s recent report raising concerns about the corporate effectiveness and cultural health of the Independent Commission for Reconciliation and Information Recovery, will the Government use the forthcoming Bill to address any of the issues identified in the report, enabling the commission to deliver high-quality Article 2-compliant resolutions?