FUTHER DOUBTS AS TO LEGALITY OF THE INDEPENDENT COMMISSION FOR RECONCILIATION AND INFORMATION RECOVERY - by Nadine Finch

In his speech at Labour Party Conference, the Secretary of State for the Home Department repeated his commitment to repealing, but also replacing the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023. He also repeated his commitment to maintaining its Independent Commission for Reconciliation and Information Recovery (ICRIR).

As noted in my recent Labour Hub article on the announcement of a long overdue inquiry into the murder in 1989 of solicitor, Pat Finucane, Hilary Benn had equated public inquiries with the work of the Commission. He had only agreed to a public inquiry in Pat Finucane’s case as an exception. This exceptionality test led him to refuse public inquiries into the murders of Kevin and John McKearney in January 1992 and Charles and Theresa Fox in September 1992. Kevin was married to the Foxs’ daughter. The murders have been linked to the Ulster Defence Force, a Loyalist paramilitary group that never disbanded at the time of the Good Friday Agreement.

The government-established Historical Enquiries Unit had found that there was a link between the four murders and an inquest opened into their deaths on 23 January 2023. The progress of these inquests was delayed by the service of public interest immunity notices by the security services in relation to material relevant to the murders. This would appear to confirm the alleged involvement of those working for the state, or connected to the state, in the murders.

In an attempt to ensure that the inquests could be completed, the coroner, Judge Richard Greene KC, proposed to include a short narrative to contextualise his limited factual findings, providing a gist of the facts surrounding their deaths. This too was challenged by the security forces and the Northern Ireland Office. On 26 April 2024, with his powers to continue the inquests about to expire under the Legacy Act on 1 May 20924, the Judge recommended that a public inquiry be held into the murders.

The current Secretary of State for the Home Department has also refused a public inquiry into the murder of Gaelic Athletic Association official, Sean Brown, in 1997. Sean was abducted as he locked up a GAA ground and subsequently killed by members of the Loyalist Volunteer Force. A legacy inquest into his murder had been opened into his death but earlier in 2024, the coroner, Mr. Justice Kinney, found that his judicial powers had been compromised by the extent to which state officials were refusing to disclose relevant material.

The Secretary of State for Northern Ireland has yet to explain why he has refused to follow the advice of two senior members of the Northern Ireland Judiciary and hold public inquiries into these five murders, all of which appeared to involve state collusion with Loyalist paramilitaries but has proposed to refer them to the ICRIR.

These decisions are clearly even more questionable in the light of the judgment by the Court of Appeal of Northern Ireland on 20 September 2024 in the case of In the matter of an application by Martina Dillon and others – NI Troubles (Legacy and Reconciliation) Act 2023 [2024] NICA 59.

LCJ Keegan, giving judgment on behalf of the Northern Ireland Court of Appeal found that the Legacy Act and the procedures of the ICRIR gave an effective veto to the Secretary of State for Northern Ireland in relation to disclosure of information and evidence believed by the State to be “sensitive”.  As LCJ Keegan was previously the Presiding Coroner of Northern Ireland, she knew full well the obstacles that had faced relatives, lawyers and the judiciary seeking to ensure that historic inquests proceeded.  

All members of the Court of Appeal judicial panel recognised that disclosure by state officer holders was a vexed area which had previously delayed many inquests. It also noted that, under the Legacy Act, the Secretary of State for Northern Ireland could rely on reasons that were wider than those that attract public interest immunity or even fail to give any reasons and the ICRIR could not challenge his decision.

In addition, it found that in complicated historical cases it would be necessary to require oral evidence, the examination of witnesses and an in-depth focus on disclosure. This would require the participation and expertise of lawyers and the legal aid for relatives to instruct them. This was something that had been available in inquests but would not be available when a case was considered by the Commission. In addition, it would not have the assistance of the expertise developed by coroners, as independent judicial office holders in the historic inquests that had already been held.

Therefore, the Court of Appeal held that the ICRIR did not provide for effective participation of the next of kin of those murdered as required by Articles 2 and 3 of the European Convention on Human Rights and that the veto given to the Secretary of State was also incompatible with the Convention.

Nadine Finch

Vice-Chair, Labour for Irish Unity