CAJ submission to the UK government’s Joint Committee on Human Rights’ inquiry into the Northern Ireland Legacy Remedial Order.
Published:
February 6, 2025
Policy Area(s):Legacy of the Past
Keywords:Impunity
The Northern Ireland Office published a proposal for a Remedial Order to amend the Legacy Act on the 4 December 2024. This follows the declarations of ECHR incompatibility in challenges to the Legacy Act in the Hight Court in Re Dillon and Others [2024] NIKB 11 (February 2024) and Court of Appeal [2024] NICA 59 (September 2024). This is a response to the Joint Committee on Human Rights (JCHR) call for evidence on the proposed Remedial Order.
Summary
- The Proposed Remedial Order would remove the Legacy Act’s ban on Troubles-related civil cases and remove provisions relating to the ‘conditional immunities scheme’ (the Legacy Acts’ amnesty provisions) the latter of which had been disapplied by the Courts and not become operational.
- The Proposed Remedial Order does not however deal with the Declaration of Incompatibility over s44 of the Legacy Act, which prohibits Troubles-related Inquests, instead Government is seeking to revive and legislate for an ICRIR proposal for pseudo-Inquests. This would set a concerning precedent for rolling back long-standing legal safeguards and procedures for inquests that have long been a cornerstone of the UK legal system. The ICRIR had proposed a model of ‘Enhanced Inquisitorial Proceedings’ whereby the ICRIR purported it could emulate inquests, although there would be no independent judge, no court, families would not have their own lawyers or rights to receive disclosure and the Executive branch of Government would be able to redact the ‘judgment’. The Court of Appeal found this to be incompatible with the ECHR. Government’s approach is to appeal and seek attempt to revive the ICRIR ‘Enhanced Inquisitorial Proceedings’ process, presumably through seeking to establish them on a legislative basis. Such a precedent could ultimately lead to the rollback of inquests and their replacement with ‘pseudo-inquests’ in other scenarios.
- Related to the above context of inquests were a series of findings in the Court of Appeal that the ICRIR could not conduct ECHR compatible investigations in such cases. This finding related both to next of kin participation and the provisions commonly known as the Ministerial ‘National Security Veto’ over ICRIR reports. The findings recently repeated on the 17 December 2024 in the High Court in Northern Ireland in the specific case of Brown [2024] NIKB 109. Rather than remedying the incompatibility through the Proposed Remedial Order, the Government is appealing these findings. This leaves a situation whereby there is at present no mechanism, bar a public inquiry, that can meet ECHR obligations in such cases.
- The Proposed Remedial Order also does not deal with the declaration of incompatibility made by the Court of Appeal Order in Dillon relating to provisions of Section 45 of the Legacy Act which preclude complaints of police misconduct being progressed to misconduct or criminal charges. This declaration does not form part of the Government’s Appeal in Dillon, nor the Proposed Remedial Order.
- In relation to the impact on the McKerr Group of cases, the Proposed Remedial Order will address the Council of Europe Committee of Ministers (CM) concerns regarding the conditional immunities scheme. It will not address the CM concerns regarding the closure of legacy inquests, or the CM’s ECHR compatibility concerns relating to the ICRIR.
To read our submission, click here.