On Wednesday, the Secretary of State for Northern Ireland (SoSNI) released the government’s proposed Remedial Order to amend the Northern Ireland Troubles (Legacy and Reconciliation Act) 2023 (the Legacy Act). But the Order falls short of the root-and-branch reform RSI, other civil liberties organisations, victims and survivors have been calling for. To respect people’s human rights and promote the justice that is vital to peacebuilding, the government needs to go further, scrapping the Independent Commission for Reconciliation and Information Recovery (ICRIR) and returning to the principles agreed in the Stormont House Agreement.
We are concerned that the SoSNI plans to maintain the ICRIR, the investigative body created by the Legacy Act. Since the ICRIR’s inception, RSI has called for the government to scrap the body because it lacks sufficient powers to provide truth and justice to families, lacks independence from the government, and only has limited accountability mechanisms. Unless the ICRIR is replaced and a new body created in line with the principles agreed in the Stormont House Agreement, it will not obtain the confidence of victims, survivors and families.
The government uses remedial orders to amend laws that courts have concluded are in breach of the European Convention on Human Rights (ECHR). The Northern Ireland High Court in February 2024, and the Court of Appeal in September 2024, ruled (in the Dillon and Others case) that the Legacy Act breached the ECHR and the post-Brexit Windsor Framework, which prevents the non-diminution of human rights standards in Northern Ireland. These courts gave those rulings because, they said, the Legacy Act provisions creating immunity from prosecution – even for alleged crimes as serious as killings and torture – are incompatible with Article 2 of the Windsor Framework; they also found the ban on civil cases to be unlawful, and said the ICRIR is not capable of conducting ECHR-compatible investigations. (In particular, they focused on the ways in which the ICRIR’s power are not like an inquest, especially regarding its lack of independence in terms of its ability to produce its own findings; UK government ministers would have a ‘national security veto’ that the courts found to be unlawful). The Court of Appeal found that the ICRIR also could not meet the requirement of next-of-kin participation and said the aim of promoting peace and reconciliation required consultation and buy-in from all those affected.
This week’s Remedial Order proposes removing the sections of the Legacy Act that create the ‘conditional immunity’ scheme and reinstating Troubles-related civil proceedings that the Legacy Act has halted. However, in RSI’s view, the government’s proposals fall short of the reform needed to comply with the ECHR. The SoSNI has committed to introducing primary legislation to restore the Troubles-related inquests process, but only ‘when parliamentary time allows.’ Victims, survivors and their families have already been waiting decades for truth and justice – and further delaying the restoration of the vital inquests process is an affront to their decades of waiting and campaigning.
On Wednesday, the SoSNI also confirmed that the government will appeal aspects of the Court of Appeal’s judgment in Dillon. The SoSNI is appealing the Court of Appeal’s decision on several grounds, including regarding the illegality of the ‘national security veto’. RSI remains concerned that such a veto will prevent the ICRIR from effectively investigating the cases before it, because it allows the government to refuse to disclose vital information. In comparison, there was no ministerial ‘national security veto’ over disclosure for other Troubles-related investigations, including police investigations such as Operation Kenova, cases before the Police Service of Northern Ireland’s Legacy Investigations Branch or the Police Ombudsman, or as part of inquests. The government has not convincingly explained why it needs a ‘national security veto’ now.
The SoSNI also intends to challenge the Court of Appeal’s finding that the Legacy Act is unlawful due to a lack of effective next-of-kin participation in the ICRIR’s processes. Under the ECHR, an ‘effective’ investigation is one in which the next-of-kin can participate. The government’s decision to appeal this aspect of the Court of Appeal’s judgment appears insensitive to the needs of victims, survivors and their families, who have suffered greatly during their decades of unanswered questions and delayed justice. RSI continues to call on the government to scrap the entirety of the Legacy Act, including the ICRIR, and return to the principles of the Stormont House Agreement. Anything less will be a failure to fulfil the government’s manifesto commitment to victims, survivors and their families.
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