The Courts and the PSNI are challenging the UK Government on national security. Victims groups should give the Legacy Commssion a chance

Chief ICRIR Commissioner Sir Declan Morgan, former Lord Chief Justice 

We have just reached a watershed in investigating the Troubles. In a momentous and  highly controversial  development the cumbersomely named Independent Commission on Reconciliation and Information Retrieval (ICRIR) – which I prefer to call the Legacy Commission-  replaces the open court system from today. The impact is huge whether the Commission gets off the ground or not.

More than 330 Troubles- related Police Ombudsman cases will not be  go forward. But the  judicial system isn’t going quietly as the Irish Times reports. It ends with the courts and the chief constable at loggerheads with the secretary of state on the vital matter of official disclosure.

A total of 36 inquests involving the deaths of 74 people during the Northern Ireland Troubles will not go ahead after the UK government’s controversial Legacy Act came into effect at midnight on Tuesday…

Legacy inquests sat right until the close of business on Tuesday, with coroners expressing their disappointment the legislation had prevented them from completing their work.

A special sitting on Saturday enabled the inquest into the deaths of five people killed by the British army in the Springhill/Westrock area of west Belfast in 1972 to complete hearing evidence hours before the legislation came into effect.

On Tuesday the attorney general ordered a fresh inquest into the killing of Billy McGreanery in Derry in 1971, one of several new inquiries she has ordered in recent days which have no prospect of being heard under the new legislation.

According to figures provided to The Irish Times by the Lady Chief Justice’s office, it is one of 18 new inquest referrals relating to the deaths of 36 people that will not proceed because of the Act.

Fourteen inquests into the deaths of 33 people, which had commenced but which did not reach the findings stage before the May 1st deadline have been cut short, as well as four inquests involving five deaths which had not yet been allocated to a coroner.

The solicitor for the McGreanery family, Gary Duffy of KRW Law, said the attorney general’s decision less than 24 hours before the Act cut-off date was an example of how such investigative processes “can and do work” for families, whereas the new legislation “puts us into a conflict-resolution dark era”.

Chief Constable Jon Boutcher said the Police Service of Northern Ireland would ensure the ICRIR was given “unfettered access to all of our material” relating to its cases.

Where inquests had run out of time or been stopped, said Mr Boutcher, he wanted to stress to families that if they choose to approach the ICRIR “we will provide any and all material requested by the commission without condition and without redaction”.

A new “ICRIR hub” has been created to process any such requests for information held by the police, said the Chief Constable.

Northern Secretary Chris Heaton-Harris said he encouraged “all those who continue to seek information, accountability and acknowledgment regarding what happened to them or their loved ones to engage wholeheartedly with the ICRIR.

“If the independent commission is given an opportunity to demonstrate its effectiveness, I am confident that it will deliver results,” he said.

Ulster Human Rights Watch, which represents several families bereaved during the Troubles, said it was “prepared to engage with the commission and we will judge it on its results and how effective it is in achieving its objectives”.

 

The courts  led by the Lady Chief Justice are challenging the Secretary of State, not on the  MI5 inspired practice of Neither  Confirm Nor Deny (NCND) but  on his refusal to supply “the gist” of essential information.  To the  government’s many critics  this simply confirms their belief that the entire Legacy Act is really about covering up state crimes.  The government’s  protestations  of being prepared  to allow  the fullest possible disclosure have always been received with scepticism .  In their last acts under due legal process, the courts are challenging this stance.  The range and application of  “national security” has been exposed and will be tested all the way to the Supreme Court.

Senior judges rejected claims the coroner’s decision that a limited summary of some material should be released to the family of Paul Thompson would cause too much damage to national security.

 

Lady Chief Justice Dame Siobhan Keegan said: “We are not convinced that disclosure of the information would breach or depart from the (Government’s) NCND (Neither Confirm Nor Deny) policy.”

With similar issues at stake in other cases, lawyers for the Secretary of State immediately announced plans to appeal the ruling at the Supreme Court.

With similar issues at stake in other cases, lawyers for the Secretary of State immediately announced plans to appeal the ruling at the Supreme Court.

 

   Mr Thompson, 25, was shot dead by the Ulster Freedom Fighters at Springfield Park while being given a lift in a taxi in April 1994.

At the long-delayed inquest into the killing the PSNI and Ministry of Defence requested Public Interest Immunity (PII) for a number of documents which would otherwise be disclosed.

Last month Coroner Louisa Fee granted PII for nearly all of the material, but concluded that a gist of information contained in one of seven PSNI folders was highly relevant and should be provided.

She determined the risk to national security was not at the level asserted, but also ruled that names, dates and intelligence were to be redacted to mitigate against any real risk of serious harm.

Although the PSNI and Government both initially challenged her plans, Chief Constable Jon Boutcher proposed a second version of the gist which could be released.

As tensions developed, the court heard the Secretary of State wrote to Mr Boutcher last month expressing “deep concern” at a “developing trend” towards departures from the NCND policy in legacy inquests.

In his reply, the Chief Constable denied taking any action to depart from the NCND policy.

He confirmed he had no intention of allowing the disclosure of information which would cause serious harm or real damage to national security or the public interest.

Following two failed judicial reviews, the Secretary of State mounted a further challenge at the Court of Appeal.

But by a two-one verdict, judges rejected claims that the coroner’s decision was irrational and involved an error of law.

“There’s a strong element of the need to facilitate open justice,” Dame Siobhan said.

On top of this, with the Irish Government  taking the UK Government to  Strasbourg  over the end of due process and challenges  being made over the scope of legal immunity for participants,  what are the chances of the Legacy Commission making any sort of impact?

At least no significant  group  has called for a boycott.  Labour are pledged to repeal the Act but have not decided to scrap the Commission immediately. It should be given a chance says the shadow NI Secretary, the heavy  hitter Hilary Benn. 

I have said, first of all, we would remove the immunity provisions in the act,” he said.

“Now, they of course have already been struck down in the Belfast High Court because they were declared incompatible with the European convention.

“But, they were also struck down on the basis of the Northern Ireland Protocol and Windsor Framework.

“So, they currently don’t operate and what happens next is going to depend on what happens in the appeal hearing, which I think is due to take place in June in Belfast.”

“Secondly, we have said that we will restore civil cases, how can you have a part of the United Kingdom where British citizens cannot bring a civil action related to what has happened to their loved ones,” he said.

“And, thirdly, we would restore inquests, and that would allow inquests that have stopped to resume if that’s what people want, although we don’t know how long the time will be between (today) and when the election is, when legislation can be passed and so on.”

Mr Benn said he hoped to return to the principles of the 2014 Stormont House Agreement, which included provisions to establish a range of mechanisms for the dealing with the past but was never implemented.

“I have said we want to go back to the principles of the Stormont House Agreement, which didn’t have universal support but had a fairly broad level of support and that’s in marked contrast to the Legacy Act, that has no support at all in Northern Ireland,” he said.

“And everyone I have spoken to says that you need to have a body capable of conducting investigations, you need to have a body capable of recovering information.”

Mr Benn said the success of the ICRIR will depend on how it is received by relatives of the dead.

“The Stormont House approach and the bill that appeared subsequent to that envisaged two separate institutions doing that, one for information recovery, one for continuing investigation,” he said.

“The two are combined in effect in the independent commission, ICRIR, and clearly how ICRIR does once it starts its work….will depend on what families think of the effectiveness of the process.

“And, whatever system we have in the future has got to have a genuinely independent body which is capable of investigating, revealing information and providing an account to families.

“Because everyone agrees you need such a body.

“Now, what form it takes and what reforms to ICRIR may be required will be the subject of consultation, and will of course be informed about the way in which ICRIR goes about its work.”

Benn seems to suggest that the ICRIR would survive under Labour as the investigating body able to  provide information for revived inquests and civil  cases.

The Investigations  Commissioner ex RUC Assistant Chief Constable Peter Sheridan who long ago supervised the Special Branch, is talking up the Commission.

“I have heard across the board about how justice stops on May 1. Actually, if people read the information, the opposite is true,” he said.

“I, as the commissioner for investigations, have the ability to do criminal justice-style investigations and report to the prosecution service either in England and Wales or here in Northern Ireland where we find evidence available.

“There are families who do want that, but there are lots of families who want to know information that is not necessarily criminal justice. “I want to be absolutely honest with victims and survivors on what is a vanishingly small possibility around criminal justice prosecutions.”

With that  dose of reality, we can only wait to see how all sides respond.  Victims groups  have nothing to lose  by testing the Commission’s  worth.  It has received a powerful boost from Chief Constable Boutcher who has asserted his operational independence from the Secretary of State.  So will the UK government eventually bow to pressure from within the system and ease its national security restrictions for the Commission  in a  form denied to open court ? If we get to that crunch and they don’t budge, the Legacy Commission must blow the whistle loudly.