Benn in trouble over Northern Ireland legacy and reconciliation

The Northern Ireland Secretary announced changes to widely unpopular legislation granting immunity for violence during the Troubles, but not everyone is satisfied

The Labour Party’s election manifesto made very specific promises on the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023, pledging to “repeal and replace it, by returning to the principles of the Stormont House Agreement, and seeking support from all communities in Northern Ireland”. I explored Sir Keir Starmer’s attitude towards Northern Ireland and the Union in an essay just after the election, noting that, while his policy was to repeal the act, there were indications that he and his team might want to retain the Independent Commission for Reconciliation and Information Recovery, chaired by former Lord Chief Justice of Northern Ireland Sir Declan Morgan, which the legislation had created.

I won’t rehash the genesis and evolution of the act which the previous government introduced. Suffice to say that the legislation effectively drew a line under investigations into deaths during the Troubles and provided conditional immunity, including for British soldiers and members of paramilitary groups. Instead, any inquiries would be conducted by the ICRIR, while there would also be “a programme of memorialisation work, including an oral history initiative”. Some Conservative Members of Parliament strongly supported the idea of stopping any further prosecutions of soldiers, but otherwise the act achieved the seemingly impossible of uniting the parties of Northern Ireland, from the Democratic Unionist Party to Sinn Féin, as well as the Irish government—in opposition to its provisions.

In February, the King’s Bench Division of the High Court of Justice in Northern Ireland ruled that the provisions of the Legacy Act which allowed immunity from prosecution were incompatible with articles 2 and 3 of the European Convention on Human Rights and article 2 of the Windsor Framework, and, along with various other provisions also in breach, should be disapplied. In September, the Court of Appeal in Northern Ireland affirmed the judgement of the High Court. In addition to this, in January, the Irish government had lodged an inter-State application against the United Kingdom with the European Court of Human Rights, arguing similarly that the Legacy Act was not compatible with the ECHR. In short, it was a legal mess.

It was hardly a surprise, therefore, that Labour intended to repeal the act, if its only cheerleaders, the Conservative government, had been voted out of office. On Wednesday 4 December, the Northern Ireland Secretary, Hilary Benn, made a statement in the House of Commons outlining the government’s plans. As a first step, he laid a remedial order pursuant to paragraph 3(1) of Schedule 2 to the Human Rights Act 1998 which would remove from the Legacy Act all provisions relating to immunity from prosecution, thereby addressing the judgements of the High Court and Court of Appeal in Northern Ireland, as well as enabling civil proceedings which the act had prohibited to proceed.

A remedial order is a rare beast in the Westminster ecosystem, to the extent that only 14 have been made since the procedure was established 26 years ago. Created by the Human Rights Act 1998, it is a statutory instrument which removes from existing primary legislation provisions which have been declared incompatible with the European Convention on Human Rights (amusingly, one of the 14 remedial orders so far made was to the Human Rights Act itself).

The procedure is as follows: the government lays before Parliament a proposal for a draft remedial order (which is what it did on Wednesday), beginning a 60-day period in which Parliament can consider the proposal. It will also be examined by the Joint Committee on Human Rights. At the end of the 60-day period, the minister can then lay a draft remedial order, but he is required to inform Parliament of the details of any representations made during the scrutiny period and any changes made. There is then another 60-day period during which the JCHR must report on whether the draft order should be approved. Once both Houses have approved the draft remedial order, the minister can then sign it into law.

This may all seem legalistic and cumbersome, but, well, the legislative process is and should be. Remedial orders may seem and in some ways be very minor matters, but they are making changes to primary legislation, so it is appropriate that there is a high level of scrutiny, or at least the mechanism for a high level of scrutiny.

Benn also promised, “when parliamentary time allows”, to introduce primary legislation to restore inquests and “amend the disclosure regime so that it is fair, transparent and, crucially, allows for the greatest possible disclosure of information”. If cases were unable to proceed at an inquest, the legislation would also allow the ICRIR to hold public hearings, take sworn evidence and give families effective representation.

The drawback with all of this will not have escaped you. The government is not “repealing” the Legacy Act in the straightforward and conventional sense of removing it from the statute book as a bad job. Rather, it is amending it to remove the parts which seem most objectionable and legally deficient, while seeking to retain the independent commission and make it a more efficient and effective body.

This has not been well received. The Shadow Northern Ireland Secretary, Alex Burghart—perceiving, I suspect, that there is no gain for the Opposition in prolonging this matter—acknowledged that the government had “a mandate to make the changes it wants to make”, but as a parting shot reminded the House that the previous government had legislated as it did in order “to try and protect some elderly people, including servicemen, who were being brought before inquests to discuss events that may or may not have happened very many years before”. He pointed out that inquests and inquiries into the past with a view to bringing prosecutions were weighted against the security forces “who kept records and whose servicemen were easily locatable and contactable”. Nevertheless he conceded that the government was perfectly entitled to take a different approach.

However, Sinn Féin has been less indulgent. John Finucane, MP for Belfast North, whose father Pat, a human rights lawyer, was murdered by the Ulster Defence Association in 1989, protested that the actions laid out by the Secretary of State did not match the promise made in the Labour Party’s manifesto and did not represent “repeal as people understood it”. The fact that Benn intended to consult before introducing new primary legislation meant that families of those killed in the Troubles “who have been waiting 50 years for an inquest… are hearing that ‘there needs to be further delay’”.

Sammy Wilson (DUP, East Antrim) took a jaundiced view of what the reforms and amendments would mean in practice.

On the decisions he has made on inquests, civil cases and disclosure, the Secretary of State has to be honest with this House: that is not going to result in terrorists being taken through the courts or through the process in Northern Ireland. It will result only in ageing members of the security forces being dragged once again through the courts and suffering as a result of the service they gave in Northern Ireland.

He was also stingingly critical of the Irish government for involving itself in the existing legislation “while doing nothing about the collusion and activities of the Irish state and Irish security forces in aiding and abetting the killing of soldiers and genocide along the border”.

The government is in something of a mess. Let us remember, the language of the party’s manifesto was clear and explicit, promising to “repeal and replace” the Legacy Act. That was a commitment made freely and in terms of Labour’s own choosing, presumably endorsed by Benn, who was then Shadow Northern Ireland Secretary. There was no sense in which the party was pressured or railroaded into that commitment, and its effect on the outcome of the election will have been virtually zero—not least because the Labour Party does not put up candidates in Northern Ireland, and indeed the Labour Party in Northern Ireland is not even a registered political party. Until 2003, voters in Northern Ireland were not allowed even to join the Labour Party, as it sought to protect its long-standing alliance with the nationalist Social Democratic and Labour Party.

Hilary Benn is an unusually scrupulous, meticulous and fair-minded politician and very few people doubt his fundamental good intentions. But his proposed course of action, laying a draft remedial order and introducing new primary legislation at some unspecified future date to make various changes to the ICRIR and the disclosure regime, do not equate to “repeal” of the Legacy Act. There is no sense, legally, linguistically or in intention, in which the two can be read as interchangeable. In at least a formal sense, the government is failing to honour a manifesto commitment.

Does this matter, if it is a semantic argument of minor importance? Yes and no. It may—may—be that the remedial order and subsequent legislation achieve outcomes which satisfy the majority of those who opposed the Legacy Act. They may achieve by a different route what would have been accomplished by repealing the act, although Sinn Féin, at any rate, may not be easily mollified. In that sense, it is not a stirring casus belli.

On the other hand, on yet another occasion, the government is failing to do what it said, of its own free will, it would do, refusing to recognise that there has been any such failure or change in approach, and maintaining a pose of high-minded rectitude. This is not an isolated occurrence: the Labour manifesto promised the party “will not increase taxes on working people” and “will not increase National Insurance”, yet it did both, then insisted, convincing no-one, there was some convoluted linguistic way in which the promise had not been broken. The Chancellor of the Exchequer, Rachel Reeves, even claimed in her Financial Statement on 30 October that the measures she had introduced kept “every single commitment that we made on tax in our manifesto”.

The manifesto also promised that Labour would defend the “sovereignty and right to self-determination” of “the British Overseas Territories and Crown Dependencies”. Yet without consultation, in October it concluded an agreement with the government of Mauritius to surrender the British Indian Ocean Territory, with a proviso that the United Kingdom would be “authorised to exercise with respect to Diego Garcia the sovereign rights and authorities of Mauritius” (whatever that means). Again, the two things are not compatible.

This is not an exercise in smearing ministers as inveterate liars. But there is a pattern discernible here, by which commitments in the party’s manifesto were worded with stark, unambiguous clarity, entirely through Labour’s own choosing, yet are now seen as somehow negotiable, or, worse, ministers cannot see that they are in breach of specific, explicit commitments. So much of the venom could have been drawn from these arguments if ministers could muster the sense and humility to admit that the transition from opposition to government is hard; that they had perhaps made hastily dogmatic pledges; and were, openly and frankly, having to modify them in very marginal and minor ways in the light of office. But that is an attitude which seems alien. Instead, as with the issue of ethics and propriety, Labour politicians set their standards extraordinarily high, and are frequently failing to meet them.

Ordinarily, I would not expect the government’s hand to be forced further on the reform of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023. By deciding against a straightforward repeal, ministers have chosen the more difficult path of shaping something new and more widely accepted out of what is already in statute. That said, repealing the act entirely would have sent them back to the beginning of a particularly knotty problem, so Benn’s attempt to find a compromise is understandable. Given that the Legacy Act was universally condemned in Northern Ireland, there is an extent to which the only way is up, and the DUP, in its own inimitable way, seems slightly mollified. How much of Sinn Féin’s dissatisfaction is real and how much is synthetic is a perennial puzzle in Northern Ireland politics.

For those who found the immunity from prosecution intolerable, that element of the act will soon be gone, and it was objectionable both to the DUP and Sinn Féin (for very different reasons). But if Benn really does hope to “seek agreement”, as he told the House last week, he is a wily enough operator to know that, in Northern Ireland, that is an elusive situation. More likely, he will have to devote considerable energy to persuading all parties that they have got on the one hand what they wanted, and on the other all they are likely to get. It has always been this way.