The challenge
Following a large number of judicial review applications challenging the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023, the NI High Court granted leave in respect of four applications, which were heard together.
The NIHRC was granted leave to intervene by way of written and oral submissions before the High Court, Court of Appeal and UK Supreme Court.
Human rights engaged
Across the four applications, a range of rights are relevant including: Articles, 2, 3, 5, 6, 7, 8 and 14 ECHR and Article 2(1) of the Windsor Framework. The relevant EU law is the EU Victims Directive.
Outcome – NI High Court
The High Court held that the provisions relating to immunity from prosecution (ss.7(3), 12, 19-22, 39, 41 and 42(1)) are incompatible with Articles 2 and 3 ECHR. The Court also found these provisions in breach of Article 2 of the Windsor Framework and disapplied them on that basis.
The Court held that s.43(1), which discontinues relevant Troubles-related civil actions, is incompatible with Article 6 ECHR. The Court also found this provision incompatible with Article 2 of the Windsor Framework and disapplied it on that basis.
The Court held that s.8, relating to the exclusion of evidence in civil proceedings, is incompatible with Articles 2, 3 and 6 ECHR. The Court found s.8 also in breach of Article 2 of the Windsor Framework and was disapplied.
The Court held that s.41, prohibiting criminal enforcement action, is incompatible with the applicant’s rights under Article 2 ECHR and in breach of Article 2 of the Windsor Framework. S.41 is to be disapplied.
Finally, the Court found that the provisions relating to interim custody orders (ss.46(2)-(4), 47(1) and (4)) are incompatible with the applicant’s rights under Article 6 and A1P1 ECHR.
Outcome – NI Court of Appeal
The Court of Appeal affirmed the finding of the High Court in respect of sections 7(3), 12, 19, 20, 21, 22, 39, 40, 41 and 42(1) being incompatible with Article 2(1) of the Windsor Framework. These are disapplied.
The Court affirmed the declarations from the High Court in respect of sections 7(3), 12, 19, 20, 21, 22, 39, 40, 41, 42(1) being incompatible with Articles 2 and 3 ECHR.
The Court amended the order of the High Court in respect of section 43(1) insofar as precludes any route of obtaining compensation.
The Court further made a declaration that the ICRIR is not presently capable of discharging the investigative obligation of Article 2 ECHR regarding next of kin participation and the disclosure of sensitive information.
The Court made a declaration of incompatibility, pursuant to s.4 HRA, that sections 4(1)(a) and (4), 30(2), (4)-(7), (10) and (11) of, and Part 1, paras 3-5, and Part 2, paras 9-13 of Schedule 6 to, the 2023 Act, insofar as they provide the Secretary of State with a power to preclude disclosure of sensitive information by the ICRIR to the next of kin and the public, are incompatible with Article 2 ECHR.