Despite Appeal Court ruling, the families of Troubles victims are no closer to truth

Allison Morris, Belfast Telegraph, September 23rd, 2024

We have reached an important juncture when it comes to dealing with the legacy of our past. An Appeal Court ruling on Friday, delivered by Lady Chief Justice Siobhan Keegan, was a damning indictment on the former government's mechanisms to deal with unsolved Troubles related killings.

The ruling was lengthy and detailed but the shorthand version of the judgment is that the Troubles Legacy Act gives the government too much veto power over the disclosure of sensitive material to the Independent Commission for Reconciliation and Information Recovery (ICRIR).

The commission, headed up by former Lord Chief Justice Sir Declan Morgan, has already started investigating killings after requests by families. However, the Northern Ireland Court of Appeal in its judgment, in a case brought by bereaved relatives, found that the veto over disclosure seriously impeded the commission's ability to carry out human rights compliant investigations.

As we know this legislation was passed by the previous Conservative government.

We can debate at length why they went down this route, but we know this was done over the heads of victims and without local political support.

I was always sceptical of the new Labour government's manifesto pledge to repeal the legislation.

It seemed much more likely that they would tinker around the edges of it rather than scrap it completely.

A previous court has already ruled that a controversial measure to give an amnesty to suspects was not legally sound and would not stand up to judicial scrutiny.

The Lady Chief Justice said the legislation gave whoever the Secretary of State was at the time “the final say” on disclosure of sensitive state information to the ICRIR, adding that this would risk undermining public confidence in the body.

Sir Declan Morgan said in response that the Secretary of State needs to “respond to the judgment”.

“The Commission has already welcomed his proposal to further enhance our independence and would welcome additional steps by him to address the issues identified by the court,” he added.

However, solicitor Gavin Booth, who represented a number of families in the appeal said, “there is only so much lipstick you can put on a pig”.

His message is clear, that tinkering with the ICRIR will never satisfy those families who have difficult and complex cases, involving layers of allegations of collusion and state intransigence.

The problem going forward is what could help those families who have been failed by successive governments when it comes to legacy and delivering truth and justice in their loved ones murders?

Many had hoped the inquest process would be the answer to decades of waiting.

A positive example of this was the inquest ruling in the case of the Ballymurphy massacre that vindicated those families who had lived with years of stigma that was attached to the deaths of their innocent loved ones.

But with the former government determined to end all legacy inquests that process was less successful for others.

The relatives of those murdered in the Kingsmill atrocity were left disappointed that the inquest did not name any of the suspects involved in the 1976 IRA attack.

When the coroner delivered his finding earlier this year Alan Black, the only survivor of the attack said the inquest had “left us all so dissatisfied”.

“As we progressed through the inquest our questions have not been answered and our concerns have grown.”

In the case of Sean Brown, Fergal McCusker and the McKearney and Fox families their inquests didn't even get as far as a ruling, the coroners in each case recommending a public inquiry as the only way to deal with the murders in an open and transparent way.

The coroners in those cases were all hampered by the UK Government's refusal to hand over disclosure to the courts, in some cases the legal teams were handed full files with page after page of black nothingness as the material was censored and withheld.

To add to the pain, those families were all told last week by the office of the Secretary of State that they would not be getting a public inquiry and should take their concerns to the ICRIR for investigation.

The same ICRIR that the Appeal Court has ruled operates with disclosure arrangements that are incompatible with the European Convention on Human Rights.

And so what happens next?

Well the ball really is in the court of the new Secretary of State Hilary Benn. He could give more powers to the ICRIR, but that is unlikely to change the attitude towards the body by many grieving families.

Families who really shouldn't need to campaign for decades just to have a proper investigation into the deaths of their loved ones. They've been failed time and time again, and there is nothing to suggest that cycle is going to end anytime soon.