On 16th January, in this column, I raised the danger that taxpayers may have to pay compensation to Gerry Adams as a consequence of the Government’s decision to repeal the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023.
On Wednesday I asked the Prime Minister about it. He had just previously answered a question about it from his own backbenches, in which he explained that the Government was bound to proceed with repealing the Act because the courts had struck down it down as being unlawful.
When I put my question, I pointed out that he was quite wrong to state that it had been ‘struck down’, nevertheless he repeated those word for a second time in his answer to me.
I don’t believe the PM would deliberately mislead the House of Commons, but it is very odd that such a senior and experienced lawyer should describe the outcome of the legal process so incorrectly: No court can strike down an act of Parliament, the courts enjoy no such power: The ‘High Court of Parliament’ is our supreme law-making body: No court trumps it
[To be fair, there was a time when the PM’s terminology occasionally would accurately describe events: For the 48 years between the enactment of the European Communities Act 1972 until its repeal on 21 January 2020. During those years the courts were empowered to disapply an Act of Parliament if it was found to contravene European Law (and they did so in the Factortame case when the 1988 Maritime Shipping Act -designed to protect our fisheries -was overturned). That constitutional abomination is ended however, as the supremacy of Parliament was restored by BREXIT.]
I believe the PM’s confusion arises from his imperfect understanding of the Human Rights Act 1998. That Act makes provision for the courts, when they encounter an act of Parliament that breaches human rights protected by the 1998 Act, to issue a ‘declaration of incompatibility’.
But it is only a declaration. It does not disapply the ‘offending’ law, it certainly doesn’t strike it down. It merely declares that, in the opinion of the court, that it compromises a European Convention right. The declaration does not alter the law passed by Parliament.
Of course, Parliament may choose to address the incompatibility identified by the court and amend the law, but there is no obligation, or even expectation, that it should do so.
The situation is that the Government has chosen to repeal the Northern Ireland Legacy Act and it should not seek to transfer the blame to a decision by a court. The Government must take responsibility for its own choices, particularly when the choice it has made, opens the door to the grotesque possibility of compensation paid to terrorists, whilst placing aging former British soldiers back in the dock for actions they took to defend the public from those very terrorists.
It’s nothing short of diabolical.