What’s the truth about reconciliation in Northern Ireland?

Standing outside Belfast High Court last week, Martina Dillon, whose husband Seamus was shot dead in a loyalist attack in 1997, said she would fight until she got “truth and justice”.

Survivors and relatives of victims killed during the Troubles may have achieved a significant legal victory, after the Belfast High Court ruled parts of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 are unlawful. But Dillon said she only got “half of what I wanted”.

The Act ends all police investigations, civil claims and inquests into Troubles-related incidents. Instead, serious incidents are to be “reviewed” by a new body (the ICRIR), but only if referred within five years. Most controversially, the Act also includes immunity provisions, which require that immunity be granted for certain serious Troubles-related offences. The Act required only that perpetrators give a truthful account of their conduct, regardless of whether they showed contrition. 

During the hearings last November, survivors and families described the devastating impact caused by a lack of justice. Martina Dillon explained that she had suffered “sleepless nights”. John McEvoy, a survivor of a loyalist shooting, told the court of his struggles with PTSD. 

Last week’s ruling that certain provisions of the Act breach the European Convention on Human Rights is significant because it directly challenges the Government’s justification for the Act: that it will help promote reconciliation in Northern Ireland. The Government claims the Act will encourage perpetrators to come forward with information, arguing this would “provide better outcomes for victims and survivors”.

But the judge concluded there was “no evidence” that the immunity provisions would “in any way contribute to reconciliation in Northern Ireland, indeed, the evidence is to the contrary”. The judgment also highlighted the “widespread opposition” to the approach taken by the Act, which is opposed by all political parties in Northern Ireland, groups representing victims, and Northern Ireland’s human rights bodies.

Instead, the judge held that human rights involve procedural obligations, which require the proper investigation and adequate sanction of instances of unlawful killing and torture. The judge held that the “victims of the Troubles who have suffered at the hands of paramilitaries” were “entitled” to the benefit of these procedural obligations, and that these were “clearly undermined” by the immunity provisions.

Two of the applications concerned killings in which there was evidence of UK Government collusion.

The role of EU law in this decision may also cause headaches for the Government. Where legislation is incompatible with the European Convention on Human Rights, courts may usually only issue a declaration, leaving it for Parliament to change the law. 

But because the provisions were ruled to be incompatible with the NI Protocol/Windsor Framework – the post-Brexit agreement between the European Union and the United Kingdom concerning Northern Ireland – they had to be disapplied.

It was only last month that the DUP ended a boycott of Stormont which had held for two years over legal distinctions between Britain and Northern Ireland, and the key role played by the NI Protocol/Windsor Framework in this case has already generated some backlash. According to the Belfast News Letter, Lord Dodds of the DUP has demanded the Government explains how the judgment is compatible with previous statements that the Framework applied “only in respect of trade goods”.

The Government has now announced that it will appeal the decision. Meanwhile, the Irish Government is bringing its own legal challenge to the legislation at the European Court of Human Rights.

This case puts human rights back at the centre of the conversation around justice for those affected by the horrors of the Troubles, and highlights how EU law continues to play a part in the UK even after Boris Johnson claimed he would “Get Brexit done.” As Dillon said outside the court, “the fight goes on”.