Benn to replace Legacy Act but is it enough to satisfy victims or entice former combatants to come forward?

Brian Walker, December 5th, 2024

The UK government has begun proceedings to replace the Legacy Act introduced by the previous Conservative government which was opposed by all parties in Northern Ireland and the Irish government. The controversial Act halted scores of civil cases and inquests into Troubles deaths. These will now resume. But a new Act will fall short of restoring a full trial process with its own independent international investigations body as some of its critics demanded. The Independent Commission for Reconciliation and Information Recovery ( ICRIR) will survive but with its powers strengthened in compatibility with human rights laws.

In a Commons statement, the Northern Ireland Secretary Hilary Benn said “too many families” have had to “wait too long to find out what happened to their loved ones” as he announced measures being taken to progress cases.

He described the previous administration’s approach to legacy matters as “wrong” and said aspects of the legislation were found by the courts to be incompatible with obligations under the European Convention on Human Rights (ECHR).

“I am today laying a remedial order under the Human Rights Act to take the first steps to honour that commitment.

“This order will remedy all of the human rights deficiencies in the Act identified by the Northern Ireland High Court in February in the case of Dillon and others” he claimed. In Dillon the NI Court of Appeal chose to cite the Windsor Framework so loathed by  unionists, rather than the ECHR, to rule that the introduction of limited immunity for those willing to disclose evidence of their role in Troubles crimes was a denial of human rights under EU law applying in Northern Ireland.

Current immunity scheme to go

 Said Benn: “Specifically, the order will remove all provisions from the Act relating to the immunity scheme which, let it not be forgotten, would have enabled any of those who perpetrated the most appalling terrorist crimes to seek immunity from prosecution from the ICRIR.”

He will introduce primary legislation  to allow Troubles cases to be brought back to the civil courts “a basic  right denied them by the Legacy Act.” Inquests, starting with those previously halted by the Act will also be restored.   

 The new Act will also seek to improve the disclosure regime for the ICRIR and, in specific circumstances, enable the commission to hold public hearings.

But nationalists and legal critics such as the Committee for the Administration of Justice  (CAJ) will  condemn the UK government’s decision to appeal against legal restrictions on its exclusive right to reserve final decisions on disclosing sensitive state-held information. This is the so-called “national security veto”  which critics claim amounts to coverup.      

More powers for ICRIR

The ICRIR has faced sustained criticism from groups representing Troubles victims since it was established by the legacy Act.

 Benn said the confidence of families in the commission’s work is “paramount”, adding: “We will make further changes to reform and strengthen the commission’s independence, powers and accountability.”

“The removal of conditional immunity, the reinstatement of legacy inquests halted by the Act, restoring civil cases and reforming ICRIR while enabling it to continue working on behalf of the growing number of families who have already sought its help.”

However the removal of conditional immunity leaves open the question of what sort of terms might be offered to encourage potential  suspects and  perpetrators to give evidence.

  Benn said he will hold talks with families, victims’ groups, civil society and the veterans community about the legislation he intends to bring forward.

“I want to take the opportunity to reassure the House that as a government we are committed to ensuring that veterans receive the right welfare and, where appropriate, legal support.”

Detailed conversations will also continue with the Irish Government.

Immediate political reaction fell along predictable lines. The DUP MP Sammy Wilson said the decisions the secretary of state had made on inquests and civil cases would "not result in terrorists being taken through the courts and is only going to result in aging members of the security forces being dragged, once again, through the courts”.

How will Victims Groups react?

 The reaction from Sinn Féin MP John Finucane  who had earlier given a cautious welcome to the public inquiry into his father’s murder was perhaps more critical than expected. The announcement fell short of Labour’s manifesto commitment to "repeal and replace the act”, he said. A number of Benn’s proposals were “outrageous and disgraceful. His main focus is on retaining and reforming the ICRIR in a vain bid to attract the support of families and victims rather than dealing with their genuine and well-rehearsed concerns,” Finucane added. 

It will take some months for the full replacement Act to emerge and to discover if the ICRIR will be sufficiently strengthened to satisfy  those most closely affected- the victims and survivors.

 Hilary Benn has put the fate of the ICRIR in their hands.