Northern Ireland Legacy Remedial Order

The Government should amend the Proposed Order so that, when laid in draft, it cites in the preamble which one of the conditions in section 10(1) (a) HRA is met in respect of the declaration of incompatibility made by the Court of Appeal in Northern Ireland. (Recommendation, Paragraph 78)

Particularly given the subjective nature of the test, it is likely that the reasons relied on by the Minister are sufficiently compelling for proceeding by way of remedial order for the purposes of s.10(2) HRA. However, our Committee will have to report at the second stage of the remedial order process whether Parliament should approve it, and Parliament will have to decide whether to approve it. In our view, both our Committee and Parliament would benefit from the Government setting out why it believes the ‘compelling reasons’ test is satisfied in greater detail. (Conclusion, Paragraph 86)

We recommend that the Government sets out its ‘compelling reasons’ for proceeding by way of remedial order in greater detail when it lays its further draft order. (Recommendation, Paragraph 87)

We are satisfied that the use of the non-urgent procedure rather than the urgent procedure is appropriate in this case. (Conclusion, Paragraph 89)

The Government should correct the minor drafting errors we have identified in the Proposed Order and listed in the Appendix to this report before laying a further draft order. (Recommendation, Paragraph 92) Remedying the incompatibility

We are unclear why the declaration of incompatibility in relation to section 45 is not addressed by the Proposed Order. (Conclusion, Paragraph 102)

The Government should clarify why it has chosen not to address the incompatibility of section 45 via the Proposed Order and whether the declaration of incompatibility in relation to that section is subject to appeal 43 to the Supreme Court. If it is not being appealed, it may be appropriate for the forthcoming draft remedial order to be amended to repeal the relevant aspects of section 45, in accordance with the Government’s approach to section 41. (Recommendation, Paragraph 103)

Alongside repeal of provisions like section 43 of the Legacy Act by the Proposed Order, the Government should set out its future plans for how legacy cases will be dealt with in a timely fashion going forward, as well as what resources it believes will need to be made available to ensure that this is possible. (Recommendation, Paragraph 108)

We note that the Government is not seeking to rectify all of the declarations of incompatibility issued by the Court of Appeal in Re Dillon, due in large part to its pending Supreme Court appeal. We are broadly satisfied that the Proposed Order would correct the incompatibilities which the Government has stated that it is seeking to rectify, namely all those issued by the High Court and one of those issued by the Court of Appeal. (Conclusion, Paragraph 119)

However, we are unclear how the Government is intending to proceed on the declaration of incompatibility regarding section 45 of the Legacy Act. The Government should explain whether it deliberately excluded section 45 from the Proposed Order and, if so, why it made that choice. (Conclusion, Paragraph 120) Other matters arising

Victims, their families, and all the communities affected by the Troubles deserve greater clarity about the timetable of the Government’s plans to finally address Legacy issues. We agree that the Government is right to consult with the affected parties. However, the Government’s undertaking to bring forward primary legislation “when parliamentary time allows” is vague and does not reflect the anxiety felt by communities which have been left in limbo by the Legacy Act and the subsequent court cases. This is especially the case for policy decisions which have already been made but will need to be implemented by the primary legislation, such as the decision to restart Legacy inquests. (Conclusion, Paragraph 125)

We recommend that the Government is clearer about its timetable for consultation and bringing forward primary legislation to resolve the remaining matters arising from the Re Dillon case and fulfilling its other pledges on Northern Ireland Legacy, including the restarting of Legacy inquests. As a minimum, we recommend that the Government firmly commits to bringing forward the primary legislation within this Parliament. (Recommendation, Paragraph 126) 44

It is of course open to either or both Houses of Parliament to refuse to approve the draft remedial order. However, we do not think there are any legal or constitutional reasons why the Government should not proceed by way of remedial order in this case. (Conclusion, Paragraph 130)

Over twenty years on from some of the judgments, it is deeply regrettable that the full implementation of the judgments in the McKerr group of cases has still not taken place. The repeal and replacement of the Legacy Act is an important step in the right direction for implementation. These cases underscore the vital importance of the Government restarting Legacy inquests as soon as possible. (Conclusion, Paragraph 138)

The Government should use the opportunity provided by the forthcoming primary legislation to finally resolve all the outstanding issues in the McKerr group of cases. (Recommendation, Paragraph 139) 45

We remind the Northern Ireland Office that Parliament expects the Government to respond to a committee report within two months. If the Department is not able to provide a response within two months, it must write to the committee to explain the delay. (Conclusion, Paragraph 19) Procedural requirements

We are satisfied that the Government has complied with the procedural requirement to summarise the representations it has received and to detail any changes it has made to the Draft Remedial Order as a result. (Conclusion, Paragraph 76)

We therefore conclude, in these exceptional and unusual circumstances, that the Government has sufficiently compelling reasons to proceed by way of remedial order. However, this should not be taken as a precedent by other Departments in the future: if a Bill is either before Parliament or about to be laid before Parliament concerning a particular policy area, absent some similarly weighty reasons, the Government must use that Bill to make changes to primary legislation, not a remedial order. (Conclusion, Paragraph 91)

We are satisfied that the use of the non-urgent procedure remains appropriate. (Conclusion, Paragraph 94)

We are satisfied that the Government has corrected the drafting errors we identified in the Proposed Order. There are no other matters which should be drawn to the attention of either House on JCSI grounds. (Conclusion, Paragraph 97) 43 Remedying the incompatibility

We welcome the amendments the Government has made to the drafting of the Draft Remedial Order in response to our recommendations. (Conclusion, Paragraph 99)

We remain concerned about the resourcing of legacy cases. Our Committee may well revisit this issue if the lack of adequate funding affects the right of access to the courts. (Conclusion, Paragraph 115)

The Draft Remedial Order would successfully rectify the incompatibilities the Government is seeking to use the remedial order to rectify. (Conclusion, Paragraph 118)

We therefore recommend that the Draft Remedial Order should be approved by both Houses of Parliament. (Recommendation, Paragraph 119) 44