Efforts by the UK government to draw a legal line under unlawful killings carried out during the Troubles have stalled. The High Court in Belfast has ruled that one of the key provisions of the Northern Ireland Troubles (Legacy and Reconciliation) Act, which was passed by the UK parliament last September, breaks international human rights law.
The court reached its decision after hearing arguments on behalf of relatives of some of the victims. It concluded that the Independent Commission for Reconciliation and Information Recovery (ICRIR) set up by the Act was competent to carry out its role. It will bring an end to any further inquests or civil actions related to the Troubles.
But the court also found the conditional immunity that would be granted to people who co-operated with the commission was in breach of articles 2 and 3 of the European Convention on Human Rights, which cover the right to life and the prohibition of torture.
It was also in breach of the Windsor Framework agreement between the EU and the UK, addressing Northern Ireland and Brexit. Article 2 guarantees rights set out in the Belfast Agreement.
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The ICRIR will find it all but impossible to carry out its work as envisaged without the power to grant conditional immunity and the project is now stalled, pending the outcome of an appeal to the UK supreme court, which the Northern Ireland Secretary Chris Heaton-Harris indicated is very likely.
The timeline for an appeal is not clear. What is known is that there must be a UK general election by January 2025. It is one that the Conservative Party is very unlikely to win. The opposition Labour Party has already committed to repealing the Act should it take power. In the background is an interstate case taken by the Irish Government against the United Kingdom in the European Court of Human Rights which makes similar claims to those adjudicated on this week.
Given the headwinds it faces, the working assumption must now be that ICRIR will never get off the ground. It is opposed by all the parties in Northern Ireland – not necessarily for the same reason – so in the round that is to be welcomed.
But it leaves the issue of how to deal with the legacy of the Troubles unresolved. The 2014 Stormont House Agreement remains the basis of British government policy and the now hamstrung ICRIR was meant to give effect to the agreement.
There seems to be no consensus among the parties in Northern Ireland as to how to move forward without offering conditional immunity. The Labour party Shadow Northern Ireland secretary Hilary Benn has no proposal other than building a consensus on proposals that have widespread support. If only it was that simple.