Government drops appeal against part of court ruling on Troubles immunity offer

The Labour Government has already vowed to repeal and replace the legislative provision introduced by the last Conservative government that offered a form of conditional immunity to perpetrators of crimes during the conflict.

Immunity was to be given to those individuals who cooperated with a new truth recovery mechanism designed to provide bereaved families answers about the circumstances of their loved ones’ deaths.

Labour has also committed to reversing the Legacy Act’s contentious ban on civil cases and inquests related to Troubles incidents.

In February, a High Court judge in Belfast declared several elements of the Act incompatible with the European Convention on Human Rights. The provisions included the offer of conditional immunity and the discontinuation of civil cases and inquests.

In June, the previous Government began a legal appeal against those findings.

On Monday, in a written statement to the House of Commons, Northern Ireland Secretary Hilary Benn confirmed his Government was dropping the appeal on the incompatibility with the ECHR.

“This is the first step in fulfilling the Government’s manifesto commitment to repeal and replace the Act,” he said.

“Victims and survivors have felt ignored by the previous Government’s approach to legacy, which has been clearly rejected across communities in Northern Ireland. The conditional immunity provisions, in particular, have been opposed by all of the Northern Ireland political parties and by many victims and survivors, as well as being found by the court to be unlawful.”

Mr Benn said the move was evidence that his Government would adopt a “different approach” to legacy.

“It underlines the Government’s absolute commitment to the Human Rights Act, and to establishing legacy mechanisms that are capable of commanding the confidence of communities and of victims and survivors,” he added.

Mr Benn said the Government would begin preparations to address the findings of the High Court, which will include laying a draft remedial order in Parliament under section 10 of the Human Rights Act 1998 to remove offending provisions from the statute book.

He said the draft order would be laid “as soon as parliamentary time allows”.

The court ruling in February also found that the Legacy Act breached elements of the post-Brexit arrangements for Northern Ireland – the Windsor Framework.

Article 29 (1) of the framework states that the Government must ensure that various rights entitlements in Northern Ireland, which were enshrined following the Good Friday Agreement of 1998, cannot be diminished as a result of the UK leaving the EU.

Mr Benn said the Government would continue its appeal against the judgment on this specific ground, citing the need for clarity in relation to how that ruling could potentially affect other Government legislation in the future.

“Whilst the Government is unwavering in its commitment to the obligations under Article 2(1) of the Windsor Framework, this judgment has potentially wide-ranging implications for other UK legislation which extends to Northern Ireland,” he said.

“Therefore, we have asked the court to continue with its consideration of the interpretation and effect of Article 2(1) given the profound constitutional and legal questions that have arisen from the ruling.”

Mr Benn said the ongoing appeal related to a “technical point of law” which he hoped could be clarified to ensure “legal certainty” around the human rights framework in Northern Ireland.

The Northern Ireland Troubles (Legacy and Reconciliation) Act passed into law last September.

From May 1 this year, all civil cases and inquests that were not at their findings stage were halted.

Responsibility for investigating all legacy cases was also transferred to a new truth recovery body, the Independent Commission for Reconciliation and Information Recovery (ICRIR).

The High Court judgment found that the ICRIR was both independent and capable of conducting human rights-compliant investigations. That aspect of the judgment has been appealed by the widow of a Troubles victim.

The Labour Government has indicated it will not scrap the commission and instead work to make changes to its structures.

Mr Benn said it would be “irresponsible” to repeal the entirety of the Legacy Act “without anything to replace it”.

“The success of the ICRIR will, ultimately, be determined by its ability to deliver justice, accountability, and information to victims and survivors of the Troubles,” he said.

“Under the leadership of (former Lord Chief Justice for Northern Ireland) Sir Declan Morgan as Chief Commissioner, the Government has confidence in its ability to do so.

“It is also clear, however, that to achieve these objectives, the ICRIR will need to gain the confidence of victims and survivors in its work.

“The Government will consult on measures to strengthen the ICRIR’s independence from Government and its powers.”

In regard to ending the ban on civil proceedings and inquests, Mr Benn added: “The Government is acutely aware of the distress that the cessation of live inquests in particular has caused those families, and will consider all possible options to ensure those cases can conclude satisfactorily.

“We will also consider the best way forward for those inquests involving a significant amount of sensitive information which were unable to conclude within the coronial system.”

Mr Benn stressed the importance of addressing the legacy of the past in Northern Ireland.

“The Government recognises that achieving absolute consensus on these issues is immensely difficult,” he said.

“That is demonstrated by the series of failed attempts since 1998 to implement effective legacy mechanisms.

“Indeed, even the Good Friday Agreement, which brought peace to Northern Ireland after decades of violence, was opposed by some due to the very challenging policy of releasing early from prison those individuals convicted for serious Troubles-related offences.”

Mr Benn said a consultation exercise would be undertaken to gauge the views of victims and survivors.

“This will, of course, include engagement with the Northern Ireland political parties and with the Irish Government, with whom the UK Government is committed to working in partnership in seeking a practical way forward that can command support across communities in Northern Ireland and beyond,” he said.

“This will include veterans, recognising the dedicated service of the vast majority of police officers, members of the armed forces, and the security services who did so much to keep people in Northern Ireland safe during the Troubles.

“The Government recognises that this process will involve difficult conversations, and that many stakeholders will hold different views regarding the best way forward.

“It is also clear that a resolution to addressing the legacy of Northern Ireland’s past will not be reached without a willingness, by all, to listen, to understand the perspectives of others, and to compromise.

“The Government welcomes the opportunity to have these conversations in the months ahead.”

Tanaiste Micheal Martin welcomed the statement.

“We will study the statement made by the British Government today and continue our close engagement with them on the detail of this vitally important issue,” he said.

“We owe it to victims, survivors and their loved ones to get this right.

“As we take this work forward, the needs of victims and the obligation to ensure a framework compatible with the European Convention of Human Rights, will remain central to this Government’s approach.”