Lord Faulks (Non-Afl)

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.