Government veto on Troubles commission disclosure ruled unlawful

A Government veto power over what sensitive material can be disclosed to bereaved families by a new Troubles investigative commission is unlawful, the Court of Appeal has found.

The work of the Independent Commission for Reconciliation and Information Recovery (ICRIR) also does not provide victims and their next of kin adequate means to participate in its processes, the appeal court judges in Belfast ruled.

The Court of Appeal part allowed an appeal taken by several Troubles victims against the body created by the last government’s contentious Legacy Act.

Judgment was delivered at the Royal Courts of Justice on Friday by Northern Ireland’s Lady Chief Justice Dame Siobhan Keegan sitting with fellow appeal court judges Lord Justice Horner and Mr Justice Scoffield.

The appeal was mounted after a High Court judge ruled in February that the legislation underpinning the commission did not contravene human rights laws and the body could undertake effective investigations of Troubles murders.

The Court of Appeal judges dismissed some grounds of the appeal, such as the fact the commission is bound by a five-year time limit on accepting investigation requests.

They also rejected the contention that the operational structure of the ICRIR lacked independence, noting that Government involvement in the appointment of its commissioner or its funding arrangements was “not unlawful or unusual”.

But the judges allowed the appeal on other grounds. This included ruling that the commission is incompatible with the European Convention on Human Rights (ECHR) in relation to the power held by Northern Ireland Secretary Hilary Benn to withhold sensitive state files from bereaved families.

Dame Siobhan said the legislation gave the Northern Ireland Secretary a “greater role” in disclosure through the commission than existed in the previous inquest system.

She said the Government could stop the sharing of information with families without having to provide a reason and she also questioned the adequacy of routes to appeal such decisions.

The Lady Chief Justice said this risked creating an “unhelpful perception” among victims about the effectiveness of the commission and its work.

She said the “veto” power undermined the aim of the ICRIR to conduct its work free of state interference.

The judges also found that the commission’s processes did not allow for sufficient participation by relatives and their legal representatives.

Another appeal against a different element of the same February judgment – mounted by the Government – sought to clarify the legal implications of a commitment contained within the post-Brexit Windsor Framework.

The framework commits to protect the human rights entitlements provided for in Northern Ireland’s historic Good Friday peace agreement.

The High Court found that the Legacy Act breached that commitment.

The Appeal Court dismissed the Government appeal in relation to the Windsor Framework and upheld the original High Court judgment.

The ICRIR was set up in May under the Legacy Act.

Many families who lost loved ones during the conflict claim the commission lacks the teeth and independence to properly re-examine their cases.

One of the most controversial provisions of the Act was the offer of a form of conditional immunity to perpetrators of Troubles crimes who agreed to co-operate with the new truth recovery commission.

The Labour Government has already committed to repeal the immunity provision and also the Act’s ban on civil cases and inquests related to Troubles incidents.

It has however pledged to retain the ICRIR. In justifying the retention of the commission, the Government had cited February’s High Court judgment by Mr Justice Colton.

The Court of Appeal judgment, which has found the ICRIR to be incompatible with the ECHR on the key issue of disclosure, will undoubtedly intensify calls from some victims’ representatives for the commission to be scrapped.

The ICRIR’s chief commissioner is Northern Ireland’s former lord chief justice Sir Declan Morgan.

Outside court one of the bereaved relatives who mounted the appeal called on him to quit.

Martina Dillon, whose husband Seamus was shot dead by loyalists in Dungannon in 1997, told reporters: “Today was a brilliant day for victims. We’ve won. We’ve won what we wanted.”

Ms Dillon said Sir Declan should consider his position.

“We’re asking him now to step down,” she added.

Ms Dillon also called on the Government to restart the inquest into her husband’s murder. The coroner’s proceedings were axed when the Legacy Act came into effect.

“Let the victims speak, let us be heard, let the truth finally come out,” she said.

Solicitor Gavin Booth, who worked on the families’ appeal case, said it was time for the ICRIR to be wound up.

“There’s only so much you can put lipstick on a pig, it’s time for that body to go. It’s been defunct from the start,” he said.

“You know, there’s a lot of window dressing going on in terms of this body, but the reality is this body does not work, and it’s not capable of carrying out what our victims need in order to establish truth. There has been nothing wrong with the courts that we’ve had to date, and we want those days back.”

Grainne Teggart from Amnesty International added: “This is a great day for victims. The judges have spoken loud and clear today – the core parts of the ICRIR are unlawful. We call on the Secretary of State to follow through with their commitment to repeal the Troubles Act in full without qualification, and to give back victims the legacy processes that were in place prior.

“We also need, as a matter of urgency, new legislation to replace the Troubles Act that will finally vindicate their rights.”

Responding to the judgment, Sir Declan said: “I welcome the fact that the appeal court in the case of Dillon et al has agreed with the trial judge that the Commission is independent.

“The court recognised that the Commission has extensive powers in gathering information but needs additional powers in respect of disclosure of some of that information.

“It also determined that an accessible and foreseeable structure should be put in place for the participation of victims, survivors and families for some of our cases.

“It is a matter for the Secretary of State to respond to the judgment. The Commission has already welcomed his proposal to further enhance our independence and would welcome additional steps by him to address the issues identified by the court.

“I look forward to continuing the search for answers for victims, survivors and families.”

When Mr Justice Colton ruled in February that the commission was capable of independent investigations, he also declared several other elements of the Legacy Act incompatible with the ECHR.

Those elements included the offer of conditional immunity and the discontinuation of civil cases and inquests.

The Conservative government mounted an appeal against that aspect of the ruling, but the Labour Government subsequently dropped that argument.

Mr Justice Colton also found that the Legacy Act breached elements of the UK and EU’s post-Brexit arrangements for Northern Ireland – the Windsor Framework.

Article 2 (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.

The last government also appealed against the High Court judgment in relation to the finding on the Windsor Framework.

Labour decided to continue with that challenge.

That appeal was dismissed by the Court of Appeal on Friday.

Dame Siobhan said the Legacy Act did bring about a “diminution” of rights for victims and she suggested Parliament would not have been able to pass such a law if the UK had remained within the EU.

In response to the judgment, a UK Government spokeswoman said: “The Government is committed to addressing the legacy of the past in a way that can obtain the support of victims and survivors, and comply with our human rights obligations.

“We note the court’s ruling and will take the necessary time to consider our next steps on this complex judgment.”

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