A new truth recovery body is currently not capable of carrying out human rights-compliant investigations into Troubles-era murders in Northern Ireland, the Court of Appeal has ruled.
Senior judges held that the Independent Commissions for Reconciliation and Information Recovery (ICRIR) set up to replace inquests cannot ensure effective participation for next of kin.
Government powers to veto the disclosure of sensitive material were also declared to be unlawful.
Lady Chief Justice Dame Siobhan Keegan said: “We find that this regime offends against the proper aim of the ICRIR expressed in its written submissions that “the organisation is made up of personnel that are able to conduct their work free of state interference.”
The verdict was reached in a legal battle over the previous UK government’s controversial Northern Ireland Troubles (Legacy and Reconciliation) Act 2023, which introduced a ban on conflict-related inquests and civil actions.
It also offered potential amnesty to self-confessed perpetrators of Troubles crimes in exchange for full cooperation with the Commission.
Earlier this year, a High Court judge found parts of the legislation were incompatible with the European Convention on Human Rights (ECHR) and the post-Brexit Windsor Framework.
But he determined that ICRIR has sufficient independence and powers of disclosure to enable effective investigations.
Even though the new Labour administration confirmed an intention to repeal some of the Act’s most contentious provisions, including the conditional immunity clause, it pledged to retain the ICRIR.
The commission, set up in May and headed by former Northern Ireland Lord Chief Justice Sir Declan Morgan, is aimed at providing information to those who lost loved ones during decades of sectarian violence in Northern Ireland.
Some bereaved victims claim those arrangements will not deliver the truth and justice they seek.
Their lawyers argued on appeal that the new body was wrongly found to be capable of meeting Article 2 ECHR obligations.
Backing those submissions, Dame Siobhan identified difficulties in the Commission’s ability to ensure effective participation by victims’ relatives.
Issues were raised about the capacity to replicate the role of inquests in complicated historical cases which require oral evidence, the examination of witnesses, an in-depth focus on disclosure and expert legal representation.
“The 2023 Act militates against the necessary effectiveness requirements for the ICRIR at present in conducting some investigations and replacing inquests as there is no provision requiring disclosure of materials to the next of kin during the review process, nor a formal role for questioning on behalf of the next of kin.” the Lady Chief Justice said.
Further significant concerns centred on the Secretary of State’s power of veto over disclosing sensitive material.
“That is something which is outside the control of the Chief Commissioner of the ICRIR,” Dame Siobhan pointed out.
“The Secretary of State can prohibit the ICRIR from sharing sensitive information… with the next of kin and others in a final report.”
Allowing the victims’ appeal, the Lady Chief Justice confirmed: “We consider that declaratory relief should be granted in relation to participation of the next of kin and a declaration of incompatibility should be made pursuant to (human rights legislation) in relation to the disclosure provision.”
The Court of Appeal also held that a restriction on civil actions under the Act amounted to a breach of the Convention.
The legislation as it currently stands provides a blanket prohibition on civil claims which was described as neither proportionate nor justifiable.
According to Dame Siobhan it would be “invidious and unfair” if the hundreds of civil claims already before the courts were to be barred under the legislative provisions.
Judgment was given in the latest stage in a legal battle which could ultimately reach the Supreme Court.
Amid fierce opposition to the Legacy Act from victims’ organisations, political parties and the Irish Government, proceedings issued by Martina Dillon were among the lead cases.
Ms Dillon’s 45-year-old husband, Seamus, was shot dead in a loyalist attack at the Glengannon Hotel in Dungannon, County Tyrone, in 1997.
The High Court had ruled that the immunity clause was incompatible with both the ECHR and the post-Brexit Windsor Framework and should be disapplied.
Although the Conservative government appealed that outcome, challenges to the unlawfulness of the amnesty provisions were abandoned after Labour came into office.
However, part of the appeal was continued in an attempt to obtain clarity about the Windsor Framework’s impact on rights protected by the Good Friday Agreement.
During the hearing lawyers representing bereaved relatives described the legislation as an unlawful attempt to “dismantle” the justice system in Northern Ireland.
Ruling on the appeals, the Lady Chief Justice recognised the hurt and trauma bereaved families have experienced over many years.
She acknowledged both the “delicate and emotive human side to the case” and the possible political ramifications.
Broadly agreeing with the High Court’s findings on the Act being incompatible with the Windsor Framework, she confirmed that disapplication was the correct remedy on the basis of the Victims Directive.
Dealing with the abandoned challenge to the immunity clause, she added: “We are confident that the European Court of Human Rights has set its face against amnesties and immunity in a fashion which would result in the 2023 Act being held to be incompatible with the Convention.”