In so many ways, the High Court ruling was to be expected. Since this legacy legislation was first tabled under Boris Johnson’s premiership, countless organisations, politicians and lawyers have warned that it was ill-advised and fundamentally flawed.
The main legal argument, alongside the moral and ethical challenges, was that the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 was incompatible with the European Convention on Human Rights (ECHR). Mr Justice Colton has confirmed that.
The controversial legislation and the associated operations of the Independent Commission for Reconciliation and Information Recovery (ICRIR) are likely to be dependent on an appeal hearing. It’s unclear where the ruling may ultimately leave inquests, due to end on May 1, once again leaving many families frustrated and angry.
The ramifications of the ruling are manifold. It places huge pressure on Sir Declan Morgan, who made it his mission to ensure the ICRIR’s processes were ECHR – and by extention Good Friday Agreement – compliant.
Compatibility with the convention was at the Agreement’s core, he told this newspaper in August last year, and that in its absence, the body he controversially chose to head up wouldn’t work.
In a brief response, the ICRIR effectively cherry-picked the ruling, highlighting that the judge had found it to be “properly and lawfully established” and capable of carrying out ECHR-compliant investigations.
It said it would study the judgment and reflect on its findings.
The Tories have always been brazen in their approach to this legislation, which was largely motivated by a desire to placate veterans who claimed to the subject of “vexatious” prosecutions. Secretary of State Chris Heaton-Harris sought to play down the implications of the judge’s conclusions but he must surely sense that the British government’s unilateral approach is running out of road.
His Labour counterpart Hilary Benn has rightly questioned how the ICRIR is sustainable under these circumstances, increasing the expectation that the Labour government will repeal the legislation once in power, as previously indicated by its leader.
Foreign Affairs Minister Micheál Martin, who previously said the Irish government had “reluctantly” challenged its nearest neighbour with an inter-state action, said he wasn’t surprised by the outcome, which he said “reflects and underpins” Dublin’s course of action.
It can be assumed that the Irish government would much rather see this issue resolved internally, rather than having to engage in an arduous action that could sour relations with Britain at a time when they are only beginning to recover from the Brexit fallout.
As for victims and survivors, they are yet again left in limbo, with neither action being taken that they oppose or processes they can support. It’s a disparate sector in which people from very different backgrounds and allegiances aim for a variety of often conflicting outcomes. However, they are united in their opposition to a process that effectively disregarded their desire for justice and instead seemingly sought foremost to protect the state.
Talk of the ICRIR’s demise may be premature but this is clearly a setback and an opportune time to recalibrate and refocus a process that, despite all the assurances, was never victim-centred.
Eames-Bradly and subsequently Stormont House set out templates for dealing with the past but for a variety of reasons never fulfilled their aim. If the Tories misguided endeavours of the past few years have taught us anything, it’s that widespread support and buy-in is necessary if a process is to succeed. Regrettably, those prerequisites are arguably as elusive as truth itself.
