Northern Ireland’s Court of Appeal ruled on Friday that the controversial Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 breaches human rights laws and the post-Brexit Windsor Framework.

The ICRIR — which the UK government has pledged to reform — and its viability as a means of dealing with outstanding legacy cases was a central question in the proceedings.

Handing down the judgment on behalf of a three-judge panel, the Lady Chief Justice, Dame Siobhan Keegan, said: “To be clear, our role is not to make policy. The courts are simply concerned with the legality of the legislation.

“This is a legitimate part of the judicial function reflective of adherence to the rule of law and the constitutional role of the courts as recognised both at common law and in legislation. We proceed on that basis.”

In particular, the court found that issues arise with the ICRIR in relation to effect next of kin participation and the role of the Secretary of State for Northern Ireland in relation to disclosure.

Part of its concerns about next of kin participation concerned legal aid. The court did not accept that the legal aid legislation can be read down to capture the ICRIR processes.

The court also did not consider that the obvious gap in terms of legal representation can be saved by the novel suggestion of lawyers being seconded into the ICRIR, as Commission officers, to represent the next of kin in a particular case.

It said this proposal offends the principle that families should be able to choose their own lawyers and that they should be independent of the adjudicatory body.

It also considered that the regulatory implications of such an arrangement are likely to be extremely difficult, if not impossible, to overcome, particularly in terms of members of the independent bar.  

The court said: “We do not believe it wise to take a ‘wait and see’ approach on this particular issue, not least because it also engages another agency responsible for legal funding. That is why we consider the said approach would be counter‑productive and has the potential to lead to more litigation in individual cases.”

Meanwhile, the court noted that the legislation provides an effective veto to the Secretary of State over the disclosure of information by ICRIR.

“Overall, we find that this regime offends against the proper aim of the ICRIR expressed in its written submissions that ‘the organisation is made up of personnel that are able to conduct their work free of State interference’,” the court said.

The applicants in the lead case were represented by Jude Bunting KC with John Larkin KC, Malachy Magowan and Laura King, instructed by Darragh Mackin and Gavin Booth from Phoenix Law.

Commenting on the outcome, Grainne Teggart, Northern Ireland deputy director for Amnesty International UK, said: “Today is an important victory for victims. The court has spoken loud and clear that core parts of the Independent Commission for Reconciliation and Information Recovery (ICRIR) are unlawful.

“From the outset we and victims have raised our significant concerns with the ICRIR, a deeply flawed body created and curated by the last government.

“All eyes are now on the Secretary of State. We urge him to ensure the Troubles Act is repealed in full and that the ICRIR is replaced.

“Hilary Benn should return to the Stormont House Agreement and build from a strong human rights foundation.”