22 September 2023

Contentious Legacy Bill Becomes Law

On Monday 18 September 2023, the Northern Ireland Troubles (Legacy and Reconciliation) Bill – first introduced in July 2021 by the Conservative Party – received Royal Assent and has therefore become an Act of law. 

This is despite the anger and pain that has been expressed by victims and survivors regarding the legislation, and who now face uncertainty over what comes next in terms of truth-seeking and justice. The Act establishes grounds for the creation of a new recovery body, the Independent Commission for Reconciliation and Information Recovery (ICRIR), which will be led by Sir Declan Morgan and will take requests for information for five years beginning May 2024.  

The Act will shut down proven avenues of legal recourse for victims and survivors who are in pursuit of truth and justice, including inquests and court prosecutions for perpetrators of Troubles-related violence. 

As it stands, any inquests into Troubles-related incidents that are not concluded by May of 2024 will transfer to the caseload of the ICRIR with immediate effect. These inquests have been hard fought for by victims of the Troubles and their families, many having campaigned for decades. 

Despite attempts in the House of Lords to remedy the Conservative proposal for a conditional immunity from prosecution, the final iteration of the Act removes victims and survivors’ right to seek justice. Many experts believe this is at direct odds with the European Convention for Human Rights, namely Article 2, Right to Life. The UK has these convention rights incorporated into its domestic law and Article 2 outlines that where the Right to Life has been deprived, there should an effective criminal justice system and independent inquiries into killings.  

The proposed conditional amnesty is on the basis that those who come forward and engage with the Independent Commission for Reconciliation and Information Recovery, provide truthful accounts to the best of their knowledge of the incident(s) in question. The effectiveness of this form of truth-seeking has been questioned, as perpetrators have less incentive to testify truthfully in exchange for immunity from prosecution. 

As the legislation passed through Parliament, it was met with controversy and criticism. Hilary Benn MP, the recently appointed Shadow Secretary of State for Northern Ireland, condemned it in its final reading in the House of Commons. The United Nations followed suit, as has Taoiseach Leo Varadkar, who has spoken openly about seeking legal advice to challenge the  Act.  

The Act has widely been regarded as an attempt to draw a line under the past and some victims have started the process of taking legal action against the UK Government. For victims to be put in such a position risks the re-traumatisation of many, and despite the Act’s misleading name, will impede reconciliation efforts.  

Many victims and survivors, and victims-funded organisations, see the Legacy Act and the creation of the ICRIR as the opposite of a victim-centred approach, rather that these measures protect perpetrators and ignore the need for accountability, acknowledgement and justice.  

There is no certainty that the legal challenges will reach any satisfactory conclusion in the near future. Some legal minds have said it could take six years to resolve while others are more optimistic. The reality is that while these legal challenges will continue, the ICRIR will be up and running and all other opportunities for victims and survivors to seek truth and justice will be closed down.   

Recognising this the Commission must elevate their voices and ensure their needs come first in shaping policy and practice around these structures.  

In recent months, Commissioner Ian Jeffers and the Victims and Survivors Forum have met with a range of stakeholders in relation to the Bill and Act, including the Secretary of State for Northern Ireland, the Shadow Secretary, key figures in the Houses of Lords and Commons, and Sir Declan Morgan to convey their concerns.  

We will continue dialogue with the structures and institutions coming out of this legislation, ensuring the voices of victims and survivors are heard as a new truth-recovery body and work around oral histories and memorialisation begin to take shape.  

“I have been clear on my objections to the Bill from the start of the process,” states the Commissioner, “but I have also been open about seeking changes to it as it made its progress through Parliament and will continue to put pressure on government and policy makers in seeking further changes.” 

“Notwithstanding our overall objections, we will be carefully watching how work around information recovery, oral histories and memorialisation begins to take shape; trying to influence the operational outworkings in a way that is least harmful to those victims and survivors who chose to engage. 

Key to this within the ICRIR, will be how Sir Declan Morgan and his team apply their interpretation of the Act as they develop their processes.  

I will be heavily urging them to recognise the suffering of victims in the wake of the Legacy Act, and to take all steps within their means to deliver in their interests. Prioritising the needs of victims and survivors and having them in mind in all forms of engagement is the clearest path to reconciliation. It prevents future generations from having to live with the burden of a past unresolved.” 

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