Northern Ireland Troubles (Legacy & Reconciliation) Act 2023
The Secretary of State for Northern Ireland provides an update to the House on the Government's approach to the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (‘the Act’).
I wish to provide an update to the House on the Government’s approach to the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (‘the Act’).
The Government has today written to the Northern Ireland Court of Appeal to formally abandon all its grounds of appeal against the section 4 Human Rights Act declarations of incompatibility made by the Northern Ireland High Court in relation to the Act. The declarations of incompatibility that the Government is no longer challenging include those relating to the conditional immunity provisions, which could - had they not been struck out by the High Court - have seen individuals being granted immunity from prosecution for providing information about Troubles-related deaths and serious injuries.
This is the first step in fulfilling the Government’s manifesto commitment to repeal and replace the Act. 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.
The action taken today to abandon the grounds of appeal against the section 4 Human Rights Act declarations of incompatibility demonstrates that this Government will take a different approach. 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.
The Government will now begin preparations to address the incompatibility findings of the High Court, which will include laying a draft remedial order under section 10 of the Human Rights Act 1998 to remove offending provisions from the statute book. The Northern Ireland Office has begun work on this, with a view to laying the draft order in Parliament as soon as parliamentary time allows.
The Government has also been clear that it would be irresponsible to repeal the Act in its entirety without anything to replace it. The High Court found the Independent Commission for Reconciliation and Information Recovery (‘the ICRIR’) to be independent and capable of conducting human rights compliant investigations. 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. Under the leadership of 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.
The Government has also committed to reverse the current prohibition on bringing new civil proceedings, and to propose measures to allow inquests previously halted to proceed. Both mechanisms, while not without their own challenges, have helped to provide many victims and survivors with information, and a sense of justice or accountability that they might not otherwise have obtained. 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.
Effectively addressing the legacy of the past is hugely important, not just for those victims and survivors who continue to pursue answers, but for society in Northern Ireland to be able to move forward. The Government recognises that achieving absolute consensus on these issues is immensely difficult. 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.
The Government will therefore now undertake a period of consultation with interested parties, including victims and survivors, to seek their views. 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. 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.
Article 2(1) of the Windsor Framework
In the course of its judgment, the High Court also found that, in relation to Article 2(1) of the Windsor Framework, primary legislation can be disapplied by the Courts where the Court considers that legislation engages provisions of EU law which no longer apply in Northern Ireland. 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. 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. This is a technical point of law which we hope will be clarified by an onward appeal, for the benefit of by ensuring legal certainty and in maintaining a clear human rights framework in Northern Ireland.
Annex: List of declarations of incompatibility
- A declaration that the immunity from prosecution provisions are incompatible with articles 2 and 3 of the European Convention on Human Rights (“ECHR”).
- A declaration that section 43(1) (Troubles-related civil actions brought on or after 17 May 2022 may not be continued on or after 18 November 2023) is incompatible with article 6 ECHR.
- A declaration that section 8 of the Act (exclusion of evidence in civil proceedings) is incompatible with articles 2, 3 and 6 ECHR.
- A declaration that section 41 of the Act (prohibition of criminal enforcement action for non-serious/connected Troubles-related offences) is incompatible with articles 2 and 3 ECHR.
- A declaration that parts of sections 46 and 47 (interim custody orders) are incompatible with article 6 and Article 1, Protocol 1 ECHR.