My Lords, I, too, support this amendment, so powerfully moved by the noble Lord, Lord Faulks, and supported by the noble Lord, Lord Butler. I realise that behind the amendment is the wider concern of protecting the Carltona principle from being undermined—and I shall come to that a bit more in a moment.
It may help your Lordships if I explain some of the detailed background of how we operated during this period in Northern Ireland and Belfast after the fall of Stormont in 1972. In doing so, I draw from extensive personal notes that I made of almost every occasion during the two or three years I served there, and what they emphasise and remind me of. I will share with the House a brief picture of how we worked and the plan that we had to devise in order to operate in a very violent, dangerous and fast-moving situation.
There was the Secretary of State, the late Lord Whitelaw, and three Ministers with him, of whom I was one, with about 12 or 13 departments that we had to take over between us in the Northern Ireland Government. We each had quite a lot of departments to cover. The plan was always to have one duty Minister at Stormont right through the weekend at all times. During the week, there was one Minister usually out in the field, visiting hospitals, victims, violent situations and communities, doing the work of their departments. We tried to keep one Minister at Westminster, constantly accountable and ready to meet Members of Parliament and Members of your Lordships’ House, answer PNQs and so on.
This was a very dangerous moment; the violence was very great indeed, and people were being killed all the time. At all times, the four of us—the Secretary of State and the three Ministers—kept in very close contact with each other; my notes refer to a lot of telephone calls that we had with each other and our constant movements. One moment the Secretary of State would need to be in the Cabinet and the next moment he would have to fly back to Belfast—then the next moment he would be in his own constituency. The same applied to the two others of us as well. Of course, Lord Windlesham was a Member of this House at the time.
This is a recorded picture of an extraordinary situation, which I do not believe has ever been repeated, for British Ministers or a department of government. Just to give an example, I see that I noted in my memoirs that one week I crossed the Irish Sea five times—and I am sure that my fellow Ministers were having the same experience of constant movement, all the more so as the Government at the time had quite a narrow majority and the Whips were saying, “Why aren’t you here instead of in Belfast?” You had to be in two places at once.
Throughout all of this, dependence on the Carltona principle and being able to conduct matters in accordance with that principle was absolute and unquestioned. We could not possibly have managed without that principle operating. It was for that reason—and this has possibly been missed by some commentators—that, when we put the provisions about Carltona in the Detention of Terrorists (Northern Ireland) Order 1972, we strengthened it—it is a strengthened principle there, because it limits the permission to sign to Ministers rather than to officials, referring specifically to Ministers and Under-Secretaries of State. The provision is absolutely crystal clear; it is in print and a parliamentary clear wish, passed without any opposition at all and applied in good faith, because we knew that that was the law and the wish of Parliament.
I have no doubt, as the noble Lord, Lord Butler, has wisely reminded us, that, if the judgment is allowed to stand unreversed, it would severely constrain normal government operations. Looking backwards in the rear-view mirror, as it were, it would have made our work in Northern Ireland absolutely impossible, as we moved towards the power-sharing agreement of 1973, which is said to have been the foundation for the Good Friday agreement some 20 years later. We could not have conducted affairs in that atmosphere of violence and killing—indeed, the IRA called it a war, although we did not—without the Carltona principle being applied. Of course, the judgment opens the door to all sorts of meritless litigation and unreserved compensation, which would be completely wrong.
I am astonished, frankly, that such a legal error could have been made. If the Government are not able to meet this—as I hope that they are, from indications by the noble Lord, Lord Faulks—and are not able to respond in a positive way, I shall be even more astonished that such an error could be perpetuated.