The Northern Irish High Court found that several sections of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (the “Act”) are in breach of the European Convention of Human Rights (the “ECHR”) and should be dis-applied. Receiving royal assent in September 2023, the Act halted investigations of incidents linked to the Troubles, forming an Independent Commission for Reconciliation and Information Recovery (the “ICRIR) which is designated as the one body for reviewing any troubles-related deaths, conduct of a harmful nature and immunity requests for a 5 year period. The Act has received significant opposition, as highlighted by the Irish Government lodging an inter-state ECHR application against the UK.
This High Court case was brought by a number of individuals who are related or closely linked to individuals who were killed during the Troubles. They brought challenges on several aspects of the Act, for incompatibility with Articles 2, 3, 6, or 14 of the ECHR and Article 2 of the Windsor Framework. While the court made some findings of compatibility, such as finding that the ICRIR is sufficiently independent to carry out its investigative obligations, there were a number of areas of incompatibility identified.
Firstly, a challenge arose in relation to the Act allowing immunity from prosecution for those involved in crime, in prescribed circumstances across several sections, and the High Court held this to be incompatible with Articles 2 and 3 of the ECHR and Article 2 of the Windsor Framework. Mr Justice Colton stated that the provision for immunity does not “…provide for any exceptions for grave breaches of fundamental rights including allegations of torture.” Further issues arose with section 41 of the Act, which allows for immunity in cases of life endangering offences such as attempted murder. In acknowledging the important role that the State plays in penalising such conduct, the court held that this contravened Article 2 ECHR and Article 2 Windsor Framework.
Additionally, the court found that section 43(1) of the Act is incompatible with Article 6 ECHR and Article 2 of the Windsor Framework. This section imposed limitations on bringing civil claims within specified dates, and the court found that it only met the proportionality test insofar as it applied retrospectively. The court further declared the incompatibility of section 8 of the Act with Articles 2 and 3 ECHR and Article 2 of the Windsor Framework, a section which facilitated the exclusion of evidence that is linked to or considered “protected material” in civil proceedings.
The final incompatibility was found with sections 46 & 47 of the Act, and these sections provided for orders of interim custody, which were held to be incompatible with Article 6 and Article 1 of the First Protocol ECHR.
The judgement of Mr Justice Colton in the High Court identified several incompatibilities of the Act with the ECHR, and is an insightful finding in advance of the interstate application between Ireland and the UK that will appear before the European Court of Human Rights in the coming months.