Northern Ireland

Legacy commission chair Sir Declan Morgan remains determined in the face of criticism

Sir Declan Morgan is positive about implementing a key element of the British government's controversial legacy policy. He tells Political Correspondent John Manley that it is essential his work is human rights compliant and in the spirit of the Good Friday Agreement...  

Sir Declan Morgan
Sir Declan Morgan

Sir Declan Morgan believes at the time of the 1998 Agreement, legacy was placed in the "too difficult box" and that it's something few politicians have wanted to reopen since.

He cites the various efforts to deal with the past – the Historical Enquiries Team, Eames-Bradley and the Stormont House Agreement – but laments the fact that 25 years on , any resolution of the issue, along with the associated prospect for reconciliation, remains elusive.

The Derry-born former Lord Chief Justice, now 71, acknowledges that his role as the recently appointed chair of the Independent Commission for Reconciliation and Information Recovery (ICRIR) has attracted criticism, and that the British government legislation underwriting the commission is deeply unpopular.

Every major party in the north is opposed to the Northern Ireland Troubles (Legacy & Reconciliation) Bill, as is the Irish government and the Ad Hoc Committee to Protect the Good Friday Agreement in the US, which this week wrote to Prime Minister Rishi Sunak warning that it would "provoke a decade of unproductive litigation".

Yet Sir Declan is unapologetic and brushes off the calls for his resignation that immediately followed his appointment by Secretary of State Chris Heaton-Harris in May.

He has previously argued that the best way for the politicians to thwart the bill, introduced last year by Brandon Lewis while Boris Johnson was in Downing Street, is to implement 2014's Stormont House Agreement.

"People talk about the Stormont House Agreement as the way forward but they've had nine years and it hasn't been implemented," he says.

"The reason is that the political parties in Northern Ireland have not been able to agree on it – that's not a criticism of the political parties, but it is a reality against which you have to make a judgement."

Read more: Troubles commission offers real opportunity for answers, says Sir Declan Morgan

Criticism as former Lord Chief Justice Sir Declan Morgan appointed to head legacy body before controversial changes even become law

The retired judge's professional interest in dealing with the past includes overseeing the 2009 Omagh bomb civil case and the establishment of the Legacy Inquest Unit.

The British government's bill, he says, "throws everything with that legacy label, as it were, into this commission". He voluntarily concedes that the immunity provisions in the legislation "have literally no support in Northern Ireland" and believes "people are understandably uneasy" about halting legacy inquests and the opportunity for civil actions. However, he suggests critics of the bill are "never getting beyond the front door to start looking what's inside".

"There are issues about all of those things and the government may have reached a policy view about it but the question as to whether or not any of those things are ECHR (European Convention on Human Rights) compliant will be a matter for the courts," he says.

Sir Declan says that he has stressed to everybody he's engaged with so far that his work is guided by three underlying principles – that the ICRIR must "deliver" for everybody; that it is "consistent with the spirit of the Good Friday Agreement"; and that it must comply with the ECHR. The latter is arguably the condition most open to direct challenge, with a number of legal assessments already highlighting its incompatibility.

"If you don't tick all of those boxes, people will not have confidence in it – it might be some people, but enough people won't have confidence in it for it not to be something that will actually add to reconciliation," he says. 

"The danger is that if you put up something that a lot of people don't have confidence in, then it can actually become more divisive than healing."

His logic extends to welcoming expected legal challenges testing the legislation's ECHR compatibility and he contends that the courts "have a role in relation to the protection of the values of the Good Friday Agreement".

"It's clear that there are going to be legal proceedings in relation to the compatibility of this legislation with the convention almost immediately,  as soon as we're legally established and I think that will be some time towards the end of this year," he says. 

"I welcome that, because I think it is important that we get that cleared as it were, and that we have those issues dealt with."

Sir Declan has even gone as far as asking the LCJ that priority be given to hearing the challenges and that any appeal is heard before the end of 2024.

The reason he hasn't yet expressed a view on the bill's ECHR compatibility is that his opinion would likely become part of any legal submissions.

"Whatever view I have about it is mine, and it's not going to go anywhere else, and nobody else is going to be aware of it," he says.

He says that if elements of the legislation turn out not to be convention compatible "then they will have to be changed". 

"As far as I'm concerned, that is not just because they're contrary to convention but if you look at the Northern Ireland settlement and the Good Friday Agreement, it's based on convention compatibility as a core value," he says.

"Anything that's put forward that doesn't actually meet that core value is not going to work." 

He describes his three core values as "red lines" and insists they cannot be crossed if the commission is to succeed. He advocates that the commission adopt the values "as guiding principles".

Secretary of State Chris Heaton-Harris appointed Sir Declan Morgan as chair of the ICRIR in May. Picture by Liam McBurney/PA
Secretary of State Chris Heaton-Harris appointed Sir Declan Morgan as chair of the ICRIR in May. Picture by Liam McBurney/PA

"Unless those features are recognised, I can't see that the commission can actually do what it needs to do," he says. Nor will it work "if the secretary of state decides to intervene in some way, because that's going to destroy trust in the commission". 

"Whether you treat it as a matter of politics or as a matter of judgment, it makes no sense for the secretary of state to do anything that would completely undermine confidence in the commission." 

Sir Declan also intends to look at the final statute to establish which aspects "either are or might be ECHR compatible". He says the halting of civil actions is "outside my remit completely", while there is only a "limited amount" he can do in relation to the bill's immunity provisions. In terms of inquests, he's more optimistic.

"It's not that I feel an obligation but I have to look at the statute to see to what extent the arrangements that we put in place for the legacy inquests can be mirrored in this new organisation," he says.

"I understand the degree of upset and nervousness there is among those who still have inquests outstanding, because they're bound to wonder whether they'll get a second-class service."

He argues that the commission can replicate "huge elements of the inquest process", including powers to obtain information. The former judge suggests there's latitude in the commission's methods that people will find it "surprisingly helpful and reassuring". 

"The commission has an obligation to deal with these cases and produce a final report at the end of the process but what you do in between,... is very open – there are very few constraints in the way in which you can do it," he says.