The Labour Government comes into office seeking to indicate, as a priority, that it is making a break from its predecessors. That much is central to a manifesto simply entitled Change. Prominent within this agenda is an effort to reset relations with the Irish Government and attempt to restore a partnership around Northern Ireland affairs. This relationship, already strained by years of fraught Brexit negotiations, was upended when the Conservative Government pushed through the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (‘the Legacy Act’) in an effort to draw a line under legal actions relating to the conflict in Northern Ireland. 

This legislation was enacted notwithstanding broad opposition across political opinion in Northern Ireland to its sweeping amnesty provisions, and to the limited nature of the truth recovery processes available to the Independent Commission for Reconciliation and Information Recovery (ICRIR) which it established. In its first King’s Speech, reflecting a manifesto commitment, the new government has promised to “repeal and replace” this legislation. This was not a commitment that could ever be kicked into the long grass. The legal challenges to the Legacy Act, both before the domestic courts and in an interstate action launched by Ireland before the European Court of Human Rights, flag pressing problems with the legislation. These challenges can only be seen off through rapid action.

Labour’s proposal is thus a significant commitment and a necessary element of returning progress on the peace process to a basis of broad consent based on careful consultation. In that regard, it pays to recall that there was a broadly supported proposal to address the legacy of the Northern Ireland conflict a decade ago – the Stormont House Agreement (SHA) reached in 2014. Additionally, there were two Draft Bills published which provided different options for giving effect to the SHA. One of these Bills came from the UK Government (‘the Government Bill’), while the other Bill (‘the Model Bill’) came from a group of academics and human rights activists working on aspects of the legacy of the Northern Ireland conflict. The explicit commitment to return to the principles of the SHA in the Labour manifesto and in relation to the King’s Speech is therefore welcome. 

Labour’s  efforts towards repeal and replace, however, appear to be an attempt to salvage much of the architecture of the Legacy Act (including retaining the ICRIR), shorn of some of its most egregious elements and recast in line with the Stormont House principles. This may be easier said than done. The credibility of the existing institutions and actors involved is tarnished, in the eyes of many victims, by their willingness to try to make such a compromised system work. Moreover, the time-limited work of the ICRIR is effectively stalled for as long as changes are contemplated. We therefore attempt to highlight some of the main changes necessary to address some of the most prominent concerns regarding the current arrangements and the challenges to making these workable as adaptations to the existing framework. We draw on both the Draft Bills (the Model Bill and Government Bill) to inform our analysis.
 
1. The conditional amnesty
 
The SHA, reached in December 2014 after protracted talks between the UK and Irish Governments and Northern Ireland’s major parties, included significant commitments to a legacy process which was ‘human rights compliant’. As the Northern Ireland High Court found earlier this year in Dillon and others, the conditional amnesty provided in the Legacy Act is antithetical to human rights compliance, breaching the European Convention on Human Rights (ECHR), and the Victims’ Directive and the Charter of Fundamental Rights (which are aspects of EU law which remain applicable to Northern Ireland after Brexit as a result of the terms of the Withdrawal Agreement). 

Thus, the conditional amnesty must be completely repealed to remove this source of incompatibility. It is notable that the Draft Government Bill explicitly stated that the provision of information to a new investigatory body would not provide for any form of amnesty from criminal prosecution (cl. 45(2)). It would be advisable to likewise clarify, on the face of a Bill reworking the Legacy Act, that the provision of information in the course of an investigation would not immunise the provider from the risk of being prosecuted for a criminal offence. Indeed, this element of the legacy process has become so controversial that any form of criminal amnesty is sure to be subject to further litigation if it is not removed.

Now, one might understandably ask: if there is no incentive to provide potentially incriminatory information, why would anyone come forward in the first place? The provision of information on the presumption of confidentiality, only for the police to subsequently try to obtain that information for criminal investigations has in one case led to long drawn-out legal proceedings. The Draft Bills are very different in this regard. The Government Bill proposed a bar on the general use of information in legal proceedings (cl. 45(3)) whereas the Model Bill contained no such bar but adopted the opposite approach to the Government Bill: instead of incentivising the provision of information, the Model Bill penalised (cl. 24(1)) non-cooperation (including through failing to provide information relevant to an investigation). Any effort to repackage the extensive amnesty arrangements under criminal law will be unable to escape the impact of the EU Victims’ Directive’s requirement that victims must be able to challenge refusals to prosecute, which Colton J found in Dillon ‘may not be taken away by domestic law’. 

The provision of potentially incriminatory information is one of the ways in which an investigation into conflict-related events can succeed, especially given the age of some such events. It is therefore tempting to err on the side of caution and incentivise the provision of such information. At the same time, many notable investigations into conflict-related offences have been and are being conducted without any such incentives. And it is worth remembering that there is a right against self-incrimination at common law, under the ECHR and relevant statutes. In Dillon, Colton J found that the Legacy Act’s bar against the use of information in criminal proceedings against the provider of that information was generally consistent with the right against self-incrimination. (The application of the bar in relation to the conditional amnesty, however, was disapplied). We would however suggest that the bar on the use of information in civil proceedings and inquests is disproportionately wide. The right not to be compelled to incriminate oneself does not include the right not to be found liable on the balance of probabilities or to be criticised by a coroner.
 
2. The extinguishment of civil actions and inquests
 
The way in which the Legacy Act barred civil actions – extinguishing them from the date of the Legacy Bill’s introduction in the House of Commons and thus contradicting the Northern Ireland Office’s own press release only hours before the Bill’s introduction – was a particularly egregious breach of legal certainty. The High Court in Dillon also subsequently held the bar’s retrospective effect was a breach of the ECHR and EU law under Article 2 of the Windsor Framework. The rationale for the bar was the claim – repeated in the Legacy White Paper and in Parliament – that civil actions and inquests brought limited or no answers to victims or their families. This claim has gone entirely unevidenced and contradicts accounts from victims and legal practitioners in this field. This claim also fails to address the UK Government’s concerted efforts to thwart information release through these mechanisms.

But a mere repeal of the offending provisions in the Legacy Act, so that civil actions can be brought and stalled (and future) inquests may restart, is insufficient in this regard. Apart from technical matters such as ensuring that the period between the bar on new civil proceedings and its repeal would not count towards any relevant limitation period(s), restoring the confidence of victims requires a careful and holistic approach to the problems faced in legal proceedings. Among the biggest such problems is disclosure – mired in inflexible approaches to sensitive information and an infrastructure around that information (such as facilities for Special Advocates to review sensitive information) which is practically non-existent. (Despite the volume of closed proceedings to review sensitive disclosure in legacy cases, the Special Advocates Support Office has no premises in Northern Ireland, as noted in the Ousley Report, pp 116-117). This is a longer-term project than the enactment of legislation, but we strongly encourage the government to make a start as soon as possible and make progress on these matters in parallel with its repeal efforts.  

In tandem with a fresh and holistic approach to disclosure, the infrastructure to deal with legacy inquests must be adequately resourced. A 2016 plan to properly resource legacy inquests – by former Lord Chief Justice and current Chief Commissioner of the ICRIR Sir Declan Morgan – was put in place in 2019. Simply repealing the bar on inquests will not necessarily ensure their proper funding and support.
 
3. Informational opacity, control and silence
 
One of the most corrosive features of legacy processes for victims and families closely relates to the disclosure difficulties highlighted earlier – the control over information exercised by governments and officialdom. In the Legacy Act, the Secretary of State is empowered to give guidance to the ICRIR in matters relating to sensitive information and the exercise of its functions subject to restrictions around prejudicing or risking the prejudice of national security. The ICRIR, in turn is obligated to have regard to this guidance. Disclosure of information by the ICRIR to anyone is absolutely prohibited if it would prejudice or if it would risk prejudicing national security. Outside of this prohibition, the Secretary of State is empowered to refuse disclosure if, in the view of the Secretary of State, such disclosure would prejudice or risk prejudicing national security. The scope for judicial scrutiny and intervention in this layered set of protections is extremely limited. The Legacy Act’s aim of reconciliation is, in light of this unsatisfactory state of affairs, questionable.

Importantly, the need to protect information in limited circumstances – such as a risk to life – is uncontroversial in human rights law. The Draft Bills diverged in their approach to this issue. On the one hand, the Government Bill allowed an aggrieved party to appeal a refusal to disclose sensitive information (by the Secretary of State) to the courts (cl. 21). But, instead of this being an appeal on the merits of the decision to refuse disclosure, the Government Bill directed the courts to determine the appeal using principles of judicial review – and that too under the strictures of the closed material procedure. Consequently, opacity was a feature of this process. On the other hand, the Model Bill permitted the omission of information – to victims’ families or the public at large – where such information would risk an individual’s life (cl. 19(2)). Though the Model Bill was silent on the scope for judicial scrutiny of any such omission, the narrow ground on which such an omission could be justified contrasts with the broader approach of the Government Bill. Both Draft Bills, moreover, provided for extensive oversight and inspection mechanisms – including by the Northern Ireland Policing Board, the Police Ombudsman for Northern Ireland and the Criminal Justice Inspectorate Northern Ireland. Of these, the Legacy Act permits the Police Ombudsman to hear and determine complaints by arrangement with the ICRIR or by order of the Secretary of State.

The scope of any national security-related informational opacity or omission should, by nature, be narrow and limited. Earlier this year, both the Northern Ireland High Court and Court of Appeal highlighted the importance of disclosure in the teeth of national security concerns by the Secretary of State, with the Court of Appeal additionally highlighting the importance of disclosure in maintaining public trust and confidence in the legal system.
 
4. The HIU-ification of the ICRIR
 
The SHA made provision for a new investigatory body – the Historical Investigations Unit (HIU) – to take over the conflict-related investigatory work of the police and the Police Ombudsman. It would have a ‘victim-centred’ approach, with inquests, criminal prosecutions and civil actions continuing as normal. The HIU was to be the answer to the pattern of delays, frustrations and failings which had come to characterise investigations into conflict-related matters at the time. Both Draft Bills contained guarantees of independence for the HIU, both from outside influences and from any conflicts of interest within its investigatory staff which might compromise its investigations. The Model Bill went further than the Government Bill, in penalising failure to cooperate with the HIU in relation to the provision of information or access to information.
The Legacy Act contains an almost exact reproduction of a provision of the Government Bill – the duty on state actors to provide relevant information to the HIU (cl. 25) – but it does not go as far as the Model Bill in ensuring that the ICRIR would have access to all the relevant information it needs. In the Model Bill, the combination of an extensive guarantee of structural and operational independence, the narrowing of any informational opacity in public disclosure and the architecture around ensuring access to information made its HIU considerably more powerful, and more capable, than the avatar in the Government Bill. The Model Bill balanced such power with extensive oversight and inspection provisions (as above). Such balance is key when ensuring the legitimacy of any new investigatory body dealing with conflict-related matters.
Regrettably, the SHA and the Legacy Act do not mark the only attempts at reforming the Legacy investigatory infrastructure. The history of such infrastructure has been marked by an ad hoc approach which leaves victims and their families unsatisfied before being severely criticised by various oversight bodies and the courts for its legally deficient – or even seriously concerning – approach to investigating some of the most brutal events in our history. Having repeated itself for over two decades, this cycle needs to stop. 

Before the Legacy Act forced most inquests to close earlier this year, the inquest system had started to regain its credibility. The Northern Ireland High Court has also adopted some innovative approaches to manage civil actions relating to the legacy of the conflict more efficiently. Cohorts of cases had formed around key issues, united through relevant events, the use of certain weaponry and the similarity in the pleaded allegations. The Court would try these key issues preliminarily, with its findings usable across the relevant cohort. 

Such is the scale of the credibility problem facing the ICRIR that its website prominently features a ‘myth-busting’ infographic – an inauspicious (yet seemingly necessary) baseline for a body which is apparently yet to start any investigations. In the face of such concerns, it is vital that the UK Government revisits the SHA, and more particularly the balance of investigatory power and strong independent oversight provided by the Model Bill, as a useful starting point for refashioning the ICRIR into an effective and independent investigatory body.
 
5. A cross-border effort
 
The Legacy Act refers to ‘protected international information’ – a term of art for information supplied by foreign governments or agencies which is relevant to investigations conducted by the ICRIR. The Act allows the Secretary of State to intervene to prevent releases of such material through ICRIR processes. Curiously, however, there is no mention – either on the face of the Act or in the White Paper – of any actual arrangements by which such information could be provided as part of information releases. This is not a surprise. Despite claiming to be ‘working closely’ with the Irish Government over the substance of what became the Legacy Act, the previous UK Government was in reality advancing a controversial programme unilaterally, largely in response to vocal proponents of UK Armed Forces veterans’ interests. Once the legislation was enacted, ministers were stung by the Irish Government’s condemnation of the Act and by the interstate case it subsequently brought before the Strasbourg Court. A bitter riposte from Whitehall followed, further demonstrating how empty claims of cooperation between London and Dublin over legacy processes had become.

UK-Ireland cooperation in this regard, however, is vital. But so too is the formalisation of information recovery withinIreland itself. The SHA had provided for an international body – the Independent Commission for Information Retrieval (ICIR) – to work towards this end. With the collapse of power sharing in Northern Ireland between early 2017 and 2020 and 2022 to 2024, and with seismic geopolitical events such as Brexit and the Covid-19 pandemic exhausting government capacity, the idea of the ICIR has been neglected. But it is time for a serious revival, especially in light of developments such as the Omagh Bombing Inquiry, and that, despite a suggestion from the Northern Ireland High Court in this regard, the Irish Government has not established any similar investigatory process of its own into this atrocity. 

Much as we have primarily addressed the actions of the UK Government in this post, given the scale of its task in undoing the damage done by the Legacy Act, the Irish Government could (and should) also play an active role in the reworking of legacy processes to instil confidence in the victims of the conflict. The Irish approach to accountability with regard to the conflict has exhibited the same ad hoc and overall unsatisfactory characteristics as that in the UK. But, with a new UK Government and Ireland itself expected to be going to the polls before March 2025, there should be renewed impetus towards a new, holistic and victim-centred approach to the legacy of the Northern Ireland conflict.
 
6. ‘Memorialising’ the conflict
 
The Legacy Act’s mandate regarding the preparation of an oral history and memorialisation efforts around the Northern Ireland conflict were born out of the previous UK Government’s pointed claims about the ‘rewriting’ of history. Alongside the Legacy Act, the Conservative Government established a panel of historians to set the terms by which a select group of academics will be able to access archives relating to the conflict which have not been made public. These efforts have come under scathing criticism from historians themselves. For as long as the problems with the Legacy Act are not rectified, it suffices for us to add that any wider “public history” project will be trapped in the gravity of the controversy surrounding the legislation. 

Anyone who has spent time researching or practicing in legacy matters will have instantly realised that the conflict has as many histories as there are people who experienced it. Any concerted effort by one state – which was also a party to the conflict – to set the terms of scholarship will, like efforts on the part of anyone else involved in the conflict, immediately suffer from perceptions of self-interest which will undermine its legitimacy within a post-conflict society. The fact that the UK Government has the resources and the power to attempt such a step should not be taken as a license for directing such efforts outwith the normal structures of publicly funded research. Any scheme for granting privileged access to papers on the Northern Ireland conflict cannot escape these perceptions over its operation unless it is genuinely grounded in co-operation between the UK and Ireland.
 
6. Conclusion
 
The election of a new government provides a significant opportunity to address the issue of legacy which has been allowed to fester, without any political will behind a solution, for so long. Allowing the truth about the conflict to be aired, insofar as it ever can be, provides a meaningful basis for societal reconciliation. But this can only happen if these arrangements are generally accepted, and it is a precursor to that that they are rights compliant. As the generations directly affected by the conflict age, this might be the last practical window in which to address these questions.
 

Anurag Deb is a PhD Candidate at Queen’s University Belfast.
Colin Murray is Professor of Law and Democracy at Newcastle University.

(Suggested citation: A. Deb and C. Murray, ‘An Unfortunate Legacy: Fixing the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023’, U.K. Const. L. Blog (29th July 2024) (available at https://ukconstitutionallaw.org/))