Queen's Policy Engagement

Repealing the Legacy Act and Redressing the Troubles

In light of Labour's election landslide last week, Professor Luke Moffett looks at whether they will repeal and replace the Legacy Act as promised and if so, how?

Repealing the Legacy Act and Redressing the Troubles

The election of Labour government has been welcomed in many quarters, not least in Northern Ireland where the previous Tory government pushed through the Legacy Act that closed down all avenues to deal with the past. Instead, the Act created one route for dealing with the past through the Independent Commission for Reconciliation and Information Retrieval (ICRIR). It received uniquely unanimous condemnation from victim groups and political parties in Northern Ireland by preventing any current criminal investigations into deaths during the Troubles as well as stopping compensation claims against those responsible.

A group of UN experts found the Legacy Act to be a ‘flagrant violation’ of international human rights standards. More recently an independent panel of human rights experts found that the Act was a long line of ‘widespread, systematic, and systemic‘ practice of impunity to protect members of the security forces and their agents from accountability.

Labour’s position has been in complete contrast to the Tory government. In May 2024 the then shadow, now Secretary of State for Northern Ireland Hilary Benn, committed to ‘repeal and replace’ the Legacy Act. This post reflects on what this means and where we go next for dealing with the past in Northern Ireland, in particular the need to redress the suffering of bereaved families.

 

What is the Legacy Act?

The Legacy Act is legislation passed in September 2023 by the Tory government when it had a majority in Westminster. The Act creates a new body – the Independent Commission for Reconciliation and Information Recovery (ICRIR) – to funnel all investigations into its mandate. All inquests and civil litigation by the 1st May 2024 are to be halted, and it prevents any criminal investigations into Troubles related crimes. Families can still seek information and investigations through the ICRIR, but some victim groups have called on victims to not engage with the Commission until after the Westminster elections.

The previous UK government stated that the Act would be compliant with the European Convention on Human Rights given the discretion afforded States in investigating the past under the rubric of facilitating truth recovery and reconciliation. However in February 2024 the Northern Ireland High Court found that broadly the ICRIR was lawful, but that the immunity from prosecution and retrospectively closing down civil litigation were incompatible with the European Court of Human Rights (ECtHR). In January 2024 the Irish government lodged an inter-State application against the United Kingdom before the European Court of Human Rights on the basis of the Legacy Act violating Articles 2, 3, 6, 13 and 14 of the Convention. In the meantime, the ICRIR has begun operating since May 2024.

 

Repeal and replace the Legacy Act with what?

Any act of the UK Parliament requires a new piece of legislation to be passed, unless it has provisions for repeal by secondary legislation by a government minister. The Legacy Act does not have such secondary repeal provisions, so instead the Labour government with its majority in the House of Commons will need to pass a new bill either scrapping or amending the Legacy Act. It is unlikely that the ICRIR will be completely scrapped, given that senior staff including former NI Lord Chief Justice Declan Morgan have been in post for the past few months trying to make it operational. Instead, any repeal by the Labour government will be through amending the powers of the ICRIR and the likely restart of inquest procedures. Consideration will also need to be made on whether to allow civil litigation or to provide a broader remedy to bereaved families, such as an apologies and acknowledgment of responsibility alongside a bereavement payment scheme, discussed further below. The Irish government has welcomed the new Labour government and is open to cooperation on a range of issues including dealing with the consequences of the Troubles, but it has not yet dropped its inter-State case at the European Court given that the Legacy Act still has legal effect.

Even amending the Legacy Act to restart inquests will not resolve all the issues around effectively investigating the past. Even before the Legacy Act came into force a number of high-profile inquests were frustrated by the lack of cooperation from the security services who have used national security to prevent the release of information and halted a judge in April 2024 from summarising facts in an inquest. In another inquest involving a loyalist murder and allegations of State collusion a judge apologised to the family after he had to halt proceedings over the withholding of sensitive information that had ‘seriously compromised’ the uncovering of facts.

Restarting inquests and civil litigation will only benefit some families, and some in the unionist community see it serving only redress needs for nationalist victims. Some victims affected by IRA violence want letters of assurance (On-The-Run letters) that they would not be prosecuted to be rescinded, for better engagement in investigative processes by the Irish government, including a parallel statutory inquiry for the 1998 Omagh bombing, and a broad statement of acknowledgment of responsibility by the UK and Irish government as well as paramilitary organisations on the Troubles and the harm caused.

There have been previous agreements around dealing with the past that recognised that some form of conditional amnesty could be used to uncover the truth of the past, but not a blanket amnesty as proposed by the Legacy Act. The European Court of Human Rights has found in other contexts that amnesties in certain circumstances may be permissible under the Convention such as where there is a ‘reconciliation process and/or a form of compensation to the victims’. There may be a middle ground to find that incorporates truth recovery aspects, while leaving the door open for non-cooperative suspects in hand with reparations to victims. For bereaved families this could take the form of a bereavement payment. These solutions have been discussed for fifteen years; it is time we act before all the victims of the Troubles die before they see any form of redress of the past.

 

Time for a bereavement payment

Over the past few years, we have been interviewing bereaved family members as well as carrying out archival research on part compensation payments. In the autumn we published our findings. We analysed 1000 compensation claims for individuals killed during the onset and height of the Troubles (1966-1976). We found that compensation was grossly inadequate and unequal, with some families paid £90 and others £15,000 for death in the same bombing. Women, children, single people and cohabitees saw their families paid an insulting pittance, some as low as £43. Women who were killed during the Troubles saw their families receive disproportionality smaller amounts than men who were killed. In light of this and relying on international human rights law, we recommended a single or monthly payment to bereaved families of the Troubles ranging between £20,000-£75,000.

These findings were later used by the Commissioner for Victims and Survivors Ian Jeffers in legal advice to the NI Executive to implement a bereavement payment scheme.  This scheme would complement the payment scheme currently available to injured victims of the Troubles, which has paid out over £47.5 million to more than 1,600 victims.  This is not about throwing money at victims to silence or placate them. Compensation is an important part of officially acknowledging the suffering of victims and providing them some means to move on from the past. This scheme pays a fixed sum and monthly pension to those seriously injured and disabled as result of the Troubles. However for those bereaved the vast majority are not eligible as they had to be at the scene at the time of their loved one’s death or see them in their fatally injured state in the immediate aftermath of an attack, meaning only a handful of the family members of the more than 3,600 people killed are eligible.

Before the Legacy Act came into effect, there was a spate of compensation settlements made to families from the UK government over collusion or failures to investigate effectively their murder. These awards ranged from £75,000 to £625,000, standing in stark contrast to the couple of hundred to a few thousand pounds most bereaved families received. In addition in October 2023 the UK government opened up the War Widow(ers) Recognition Payment scheme, which entitles widow(ers) of military personnel killed who later gave up their pension benefits due to being remarried, to a single payment of £87,500. For civilian victims they are again being left behind in redressing the harm they suffered.

Any debate on a new approach to dealing with the past in Northern Ireland, likely through an amended Legacy Act, needs to include a bereavement payments scheme. Such a scheme needs to come from Westminster, like the injured victims scheme, given the scope of victims across the UK as well as the UK government’s ability to finance such a scheme. There should be scope for the Irish government to make some financial contribution to such a scheme, given in the past its modest recognition scheme for those bereaved. Most families of those killed will not be able to benefit from an inquest, there is unlikely to be sufficient evidence to reasonably prosecute those responsible if prosecutions are restarted, and there is little faith in those responsible for Troubles related murders to come forward and provide the truth.

A bereavement payment scheme would provide a direct benefit to families who lost a loved one during the Troubles. Such a payment would not only symbolically acknowledge their loss, but enable them to seek new opportunities, such as moving house, buy a new car for their child, or a holiday abroad. This has been the experience of our work in a number of countries emerging from conflict, where bereaved families not only suffered the death of a family member, but the loss of income and opportunity that deviated their life trajectory. For some of the victims we spoke to, many of them were young at the time of their family member’s death, so they dropped out of school, were unable to work or leave their care responsibilities at home, or suffered a range of other consequences that have never been recognised or acknowledged.

 

Conclusion

Repealing the Legacy Act will not simply involve flicking a switch that deactivates the ICRIR and restarts inquests. We need a comprehensive approach to dealing with the past in Northern Ireland. We have been through all the arguments and solutions before, from the Eames-Bradley report in 2009, Hass-O’Sullivan in 2013, Stormont House Agreement 2014 to now the Legacy Act.

We need to uncover a complete picture of the web of responsibility of state and non-state actors in violence in the Troubles. Inquests and criminal investigations only provide a tip of the iceberg in individual cases. A comprehensive approach needs to deal with collusion, hidden harms (such as sexual violence), and to acknowledge the loss suffered across the country to ensure that it does not become a source of future grievance and conflict.

 

The featured image has been used courtesy of a Creative Commons license.  

Professor Luke Moffett
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Professor Luke Moffett is an expert on reparations, human rights law, international humanitarian law and transitional justice. His research interests are in the role of reparations in addressing past violations, the role of law in adjudicating on armed conflict and the construction of victims' rights in domestic and international processes.

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