High Court Says Immunity Element of Northern Ireland Troubles Legislation ‘Unlawful’

The High Court in Belfast has ruled a key part of the Northern Ireland Troubles Legacy Act is not compatible with the European Convention on Human Rights.
High Court Says Immunity Element of Northern Ireland Troubles Legislation ‘Unlawful’
A soldier stands in front of a devastated community centre after the IRA bombing of a Remembrance Day ceremony in the town of Enniskillen, County Fermanagh, on Nov. 9, 1987. PA Media
Chris Summers
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The government says it remains committed to the Northern Ireland Troubles (Legacy and Reconciliation) Act after the High Court in Belfast said it was “unlawful” for the legislation to promise conditional immunity.

Mr. Justice Colton said the Independent Commission for Reconciliation and Information Recovery (ICRIR) would not be entitled to offer conditional immunity from prosecution to those who may have committed crimes during The Troubles because that would not be compliant with the European Convention on Human Rights (ECHR).

Martina Dillon, whose husband Seamus was shot by loyalist paramilitaries in 1997, welcomed the judge’s ruling.

Speaking outside the Royal Courts of Justice on Wednesday, Ms. Dillon said: “I have not given up the fight. I have fought for 26 years and I will continue to fight on. I’ll fight until I get truth and justice.”

Danny Toland, whose father John was shot dead by loyalist paramilitaries in 1976, told The Epoch Times earlier this week he believed the ICRIR was a “waste of time and money.”

The Troubles lasted between 1969 and 1998 and more than 3,600 people were killed as a result of attacks by the Provisional IRA, other Irish republican groups, loyalist paramilitaries, and the actions of the security forces.

Although the Good Friday Agreement created a political settlement, it left open the question of how to deal with the many unsolved murders from The Troubles, not to mention controversial killings at the hands of the SAS, the army, and the Royal Ulster Constabulary, the predecessor of the Police Service of Northern Ireland (PSNI).

The Northern Ireland Troubles (Legacy and Reconciliation) Act was controversially passed by Parliament last year.

The act received royal assent in September despite opposition from political parties and campaigners in Northern Ireland, and comes into force on May 1.

It will introduce a guillotine that will prevent the conclusion of ongoing Troubles-related inquests and civil litigation.

The legislation was pushed through following a campaign by Tory MP and former soldier Johnny Mercer, who claimed “vexatious litigation” was harassing veterans who had served in Northern Ireland.

The legislation gives immunity to soldiers, police officers, and paramilitaries who may have committed crimes during The Troubles, on condition they tell the truth at hearings to be held by the ICRIR.

But in his 200-page judgment, Mr. Justice Colton wrote, “I am satisfied that the immunity from prosecution provisions under Section 19 of the Act are in breach of the lead applicant’s rights pursuant to Article 2 of the ECHR. I am also satisfied they are in breach of Article 3 of the ECHR.”

Judge: No Evidence Immunity Will ‘Contribute to Reconciliation’

He added, “There is no evidence that the granting of immunity under the Act will in any way contribute to reconciliation in Northern Ireland; indeed the evidence is to the contrary.”

But he said he had no reason to believe the ICRIR could not conduct investigations which would not be compliant with Articles 2 and 3 of the ECHR.

Article 2 of the ECHR enshrines the “right to life” while Article 3 says, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Mr. Justice Colton also ruled that a clause in the act that prevented any Troubles-related civil litigation after Nov. 18, 2023 was incompatible with human rights laws and should be “disapplied.”

On Monday the family of John Toland and another man, James Loughrey, agreed to an out-of-court settlement with the PSNI and the Ministry of Defence.

The families had claimed there had been collusion between the security forces and the Ulster Defence Association (UDA) paramilitaries but, in settling the case, the PSNI and MOD did not accept liability.

Undated image of John Toland, with his wife Marie, and their seven children, including Danny (second from left). Mr. Toland was murdered on Nov. 14, 1976 by the UDA in Greysteel, Northern Ireland. (Toland family/PA)
Undated image of John Toland, with his wife Marie, and their seven children, including Danny (second from left). Mr. Toland was murdered on Nov. 14, 1976 by the UDA in Greysteel, Northern Ireland. Toland family/PA

Northern Ireland Secretary Chris Heaton-Harris told the House of Commons on Wednesday, “We will consider Mr. Justice Colton’s findings very, very carefully, but we do remain committed to implementing the Legacy Act.”

Shadow Northern Ireland secretary Hilary Benn said, “What do ministers intend to do about this judgment and how can the commission become operational when one of its central powers has just been struck down?”

Mr. Heaton-Harris replied: “As I say, this is a very complex case. Over 200 pages which were just being reported on less than 90 minutes ago, and so it will take some time to consider. But we do remain committed to implementing the Legacy Act, including delivering the ICRIR.”

Irish Government ‘Not Surprised’ by Ruling

The deputy prime minister of the Republic of Ireland, Micheal Martin, said he was “not surprised” by the High Court ruling.

Mr. Martin said, “The Irish government has been consistent on this and and in fact the legal advice that we received and that I received was very clear that the Legacy Act was in breach of the European Convention of Human Rights and was not compliant with Article 2 in particular.”

“The High Court case reflects I think the legal advice that we received also,” he added.

The Irish government has launched a separate legal case against the British government over the Legacy Act, arguing it breaches human rights laws.

An ICRIR spokesperson said: “In its judgment, the court has confirmed that the commission is independent and is capable of carrying out investigations which are compliant with the European Convention on Human Rights. The commission is therefore properly and lawfully established.”

“We will study the court’s judgment in detail and seek to reflect this as we refine our proposals to carry out independent investigations from this summer,” the spokesperson added.

PA Media contributed to this report.
Chris Summers
Chris Summers
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Chris Summers is a UK-based journalist covering a wide range of national stories, with a particular interest in crime, policing and the law.
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