The Northern Ireland Troubles (Legacy and Reconciliation) Act

The King's Speech on 17 July 2024 announced 40 bills in opening the new session of Parliament. One of these was that, “in consultation with all parties, measures will be brought forward to begin the process of repealing and replacing the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023” (the “Legacy Act”)

The Legacy Act

The Legacy Act became law in September 2023. Aimed at addressing the legacy of the Troubles and promoting reconciliation, its main effects were to:

• As of 1 May 2024, halt all Troubles-related:
  • criminal investigations into serious offences (unless there had already been a decision to prosecute);
  • civil damages claims; and 
  • inquests (unless all that was left was for the Coroner to deliver their findings).
• Instead, establish the Independent Commission for Reconciliation and Information Recovery (ICRIR), whose functions are to carry out reviews of deaths or other harmful conduct, produce reports, produce a historical record of deaths, and refer cases to prosecutors.

Most controversially, the ICRIR had the power to grant immunity from prosecution upon the application of those whose conduct might tend to expose them to a criminal investigation or prosecution provided the ICRIR was satisfied that their account of their conduct was true to the best of the applicant's knowledge and belief. 

The Act was the subject of much criticism, including by all parties in Northern Ireland and the Labour Party. Families of individuals who died during the Troubles brought judicial review proceedings in the High Court in Belfast. On 28 February 2024, Mrs Justice Colton delivered a judgment declaring that some of the provisions of the Act were incompatible with the European Convention on Human Rights and should be disapplied. In particular, the immunity from prosecution provisions were incompatible with the state's investigative duties under Articles 2 and 3 of the ECHR (being the right to life and the prohibition from torture or inhuman or degrading treatment).

The Government appealed the ruling and judgment was due in the autumn. However, Secretary of State for Northern Ireland Hilary Benn confirmed recently that the Government had formally abandoned all of its grounds of appeal.

Labour's policies

Labour's manifesto committed to repealing and replacing the Act, “by returning to the principles of the Stormont House Agreement, and seeking support from all communities in Northern Ireland”.

The briefing notes to the King's speech add that:

• the Act would not be repealed in its entirety without anything to replace it;
• prematurely halted inquests will resume; 
• civil claims will no longer be prohibited;
• the conditional immunity scheme would be repealed;
• the Government would explore options to strengthen the independence of the ICRIR (and the Secretary of State has said that he had no plans to scrap the ICRIR but would reform it to allay families' concerns as to its governance and process);  and
• further legislation would follow after consultation with the Irish government and all communities and political parties in Northern Ireland.

All change?

After years of uncertainty for all of those involved in legacy inquests as to whether the Legacy Act would pass, in what form, and which parts of it would be subject to or survive legal challenge, the position is again uncertain. It seems that many aspects will revert to the position before the Legacy Act. 

Two and a half months after they stopped, it has been confirmed that “prematurely halted inquests will resume”. This likely refers to the long list of inquests that had been opened by Coroners in Northern Ireland but had to stop, though it is less clear whether inquests that had not yet been opened, or indeed decided to be held, will be allowed to start. 

It is also unclear what role the ICRIR is expected to have in this new landscape. A reformed version may remain the main investigatory body making referrals for prosecution. The government will have a difficult task achieving its stated aim of gaining support from all communities, as it is impossible to take politics out of these matters.

Importantly, families will still seek prosecutions, and no immunity will apply. It is of the utmost importance for anyone who is approached as a potential witness to any legacy incident to seek independent legal advice before potentially creating evidence that may be admissible in criminal proceedings and used against them. 

We have for decades guided our clients through legacy inquests, investigations and prosecutions, including by advising them where appropriate to assert their privilege against self-incrimination in order to minimise risk. This advice remains as relevant as ever.