NI LEGACY ACT UPDATE
We can confirm that the SOSNI has now made an official announcement regarding the NI Legacy Act:
Written statements - Written questions, answers and statements - UK Parliament
The MOD has produced a veteran briefing pack, that aims to clarify the current situation and highlight the ongoing support available. This is available below.
Introduction
On 17th July, the King’s Speech, announced the Government’s pledge to repeal and replace the Legacy Act. The High Court found the ICRIR to be an independent body capable of conducting human rights compliant investigations and it will continue operating in this capacity.
The Northern Ireland Secretary has announced that the Government is abandoning the previous Government's appeal on aspects of the Legacy Act and remove provisions from the statute book which the Northern Ireland High Court found incompatible with the Human Rights Act. This includes abandoning the potential offering of conditional immunity for those who would provide a full account to the ICRIR. The Government has also committed to reverse the current prohibition on bringing new civil proceedings, and to propose measures to allow inquests previously halted to proceed.
The ICRIR became operational on 1 May, with the aim of addressing the legacy of the Troubles and promoting reconciliation. Resulting from the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 the ICRIR will, at the request of victims and families, undertake reviews and investigations into deaths and “other serious injuries” relating to the Northern Ireland Troubles (from 1966 to the 1998 Good Friday / Belfast Agreement).
This note provides our latest understanding of the ICRIR’s plans and what they could mean for veterans who were involved in the Northern Ireland Troubles.
The Government recognises the huge contribution that veterans have made to securing peace in Northern Ireland and has their interests at heart, and we will continue to provide communications and reassurance to veterans and their families as the Commission begins investigations.
The contents of this pack are for guidance only and veterans should refer to the Legacy Act itself if they want to see the statutory wording regarding the ICRIR’s remit and powers.
The Commission has provided an information leaflet available here.
Abandoning ECHR Aspects of the Ongoing Appeal against the Legacy Act & Addressing Incompatibility Findings via a Remedial Order Under the Human Rights Act
The Secretary of State for Northern Ireland has announced that the Government is abandoning the previous Government's appeal on aspects of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 which the Northern Ireland High Court found incompatible with the Human Rights Act and will remove those provisions from the statute book. This begins to deliver the Government’s manifesto commitment to repeal and replacethe Legacy Act. This includes abandoning the potential offering of conditional immunity for those who would provide a full account to the Independent Commission for Reconciliation and Information Recovery.
We are mindful that this may be seen as reintroducing further legal uncertainty. The Defence Secretary, John Healey, Veterans Minister, Alistair Carns MC, and all of Defence, recognise that this was an exceptionally difficult undertaking and that many of our veterans faced trauma from their experiences during the Troubles as well as their aftermath. Over the years many of our veterans have been investigated and re-investigated over some of the incidents that occurred, with significant impacts on their and their families’ mental health and wellbeing. We will continue to provide pastoral and, where appropriate, legal support for our veterans involved in investigations and other litigation.
The King’s Speech committed the Government to consult with all parties and bring forward measures to begin the process of repealing and replacing the Legacy Act to ensure that the legislation serves all those affected by the legacy of the Troubles in Northern Ireland. This includes our veterans. The Defence Secretary will represent veterans’ concerns when he meets with the Northern Ireland Secretary do discuss this in the coming weeks. Defence Ministers are keen to hear from veterans as work progresses to deliver the Government’s commitment to repeal and replace the Legacy Act.
The ICRIR:
- The ICRIR is a new and independent public body which has been set up to find answers to questions individuals and families have relating to deaths and serious injuries which occurred during the Troubles. It will provide information to victims, survivors and their families and promote reconciliation.
- The ICRIR will – when asked to do so by victims, survivors and/or family members, and certain state bodies [see note below] – conduct reviews into deaths and “other serious injuries” that happened during the Troubles (from 1966 to the 1998 Good Friday / Belfast Agreement). The ICRIR will seek to recover and provide information to victims and families to promote reconciliation.
- The Chief Commissioner and Commissioner for Investigations are committed to putting people at the core of everything the Commission delivers. The ICRIR is committed to serving victims, families, and survivors, including veterans, in a way that is sensitive to the trauma experienced.
- The ICRIR’s referral process will be victim-led – not every case will necessarily be investigated.
- To assist the Commissioner for Investigations to carry out ICRIR’s functions, investigators have all the powers and privileges of a constable when undertaking criminal investigations. Investigators can require individuals to attend the ICRIR for questioning and issue individuals with notices to provide material, with a penalty for non-compliance of a fine of up to £5,000. The ICRIR will also have the power to refer cases to prosecutors following its investigation if the evidence warrants referral.
- The ICRIR has a legal duty regarding the general interests of persons affected by Troubles-related deaths and serious injuries. It must not do anything which would put, or risk putting, the life or safety of any person at risk. It also cannot prejudice, or risk prejudicing, the UK’s national security interests.
- The ICRIR recognises that veterans and their families may want to make requests of the ICRIR. The ICRIR has opened email and telephone lines to the public and these details are available on their website. The ICRIR can be contacted by veterans and their families for further information.
[Note] The state bodies that can refer cases are: the Secretary of State for Northern Ireland, Attorney General for Northern Ireland, Advocate General for Northern Ireland, Coroners (or in Scotland, a Sheriff / the Procurator Fiscal / Lord Advocate) conducting relevant inquests and Fatal Accident Inquiries.
Veteran Witness Support Offer
- The Ministry of Defence remains committed to supporting veteran witnesses through historical investigations into the military’s involvement in Troubles related incidents,including ICRIR investigations.
- The Ministry of Defence, the Army, through the Army Operational Legacy Branch (AOLB) and Regimental Associations, will continue to provide pastoral and legal support, where appropriate.
- We understand that establishment of the ICRIR marks a change in how Troublesinvestigations are conducted and means further uncertainty for veterans. The Ministry of Defence is working with the ICRIR to ensure they recognise their duty of care to all those involved in the ICRIR’s investigations, including veteran witnesses as well as victims and their families.
Families of Military Victims
- The ICRIR’s role is to recover information for victims, survivors and their families about Troubles-related deaths and serious injury. The ICRIR invites all victims, survivors, and their families, who wish to do so, to request information recovery. This includes the families of soldiers killed during the Troubles and military personnel who suffered serious injury. Information on how to engage with the ICRIR is available from the ICRIR or MOD.
- Engagement with the ICRIR is confidential. The ICRIR is under a duty to respect the interests of all persons affected by Troubles-related deaths and serious injuries. The ICRIR must also not do anything which would risk having, or would have, a prejudicial effect on any actual or prospective criminal proceedings in any part of the United Kingdom.
Conditional Immunity
- The conditional immunity provision previously included in the Northern Ireland Troubles (Legacy and Reconciliation) Act have been found incompatible with the Human Rights Act. In line with the Government’s absolute commitment to the Human Rights Act, theseconditional immunity provisions have been removed and will no longer apply in ICRIR’s investigations. While conscious that this may cause alarm, MOD remains committed to supporting veterans to assist in the information recovery process and envisage that mostinvestigations conducted by ICRIR will not result in a referral for prosecution.
Inquests
- The Government has committed to reverse the current prohibition on bringing new civil proceedings, and to propose measures to allow inquests previously halted to proceed. Work had begun on how this will be achieved. Until such time as the changes areimplemented the current legal regime (stopping Legacy Inquests) remains.
ICRIR: Q&A for Veterans
How will the Ministry of Defence be supporting veterans?
The Ministry of Defence remains committed to supporting veterans through all historical investigations into military involvement in Northern Ireland. The Ministry of Defence, the Army, through the Army Operational Legacy Branch (AOLB), and Regimental Associations will continue to provide pastoral and practical support, including legal advice where appropriate.
What if I refuse to cooperate?
We will support serving and former members of the armed forces who engage with the Commission with pastoral support and guidance, including legal advice where appropriate. Under the Legacy Act, the ICRIR can impose a fine of £5,000 on any person who does not cooperate.
Will the ICRIR be able to investigate historic cases that have already been investigated?
Yes, it can if deemed necessary. The ICRIR can investigate historic cases, at the request of victims and families. The Legacy Act provides that the Commissioner for Investigations must ensure that the ICRIR does not do anything which duplicates any aspect of a previous investigation unless, in the ICRIR’s view, the duplication is necessary. The ICRIR will need to determine what type of review will be appropriate or necessary in different circumstances.
How will the ICRIR process work?
ICRIR may carry out three types of investigation: focused, culpability, and liability. All investigation types aim to address the questions of requesting individuals. Focused investigations are narrow in scope with limited new investigation taking place, while culpability investigations will be more complex but will conclude on a balance of probability. In contrast, liability investigations will seek to establish all the circumstances of the death, or other harmful conduct, and would be capable of leading to a referral for prosecution.
How will the ICRIR investigate cases?
The ICRIR has said it will undertake its work in a three-stage process: first, the ICRIR will support victims and their families seeking answers; second, investigating officers will seek to recover information; third, and finally, a report will be written providing the investigation’s findings. As the investigation nears its conclusion, the Commissioner for Investigations and team will present their evidence to the Chief Commissioner who will assess and evaluate it to determine findings. The Ministry of Defence continues to work with ICRIR in the implementation of this process.
Further information will be available on the ICRIR website:
Your Rights
If I am invited as witness, what can I expect?
The Commission will not call witnesses to give evidence in public like in inquest proceedings but rather it will invite persons who witnessed incidents that are the subject of a review by the ICRIR to provide information voluntarily. In addition, Section 14 of the Legacy Act gives the Commissioner for Investigations powers to require persons to provide information. ICRIR can impose a fine up to £5,000 for anyone who does not comply. The Ministry of Defence can provide pastoral support and, if required, legal advice to any veteran who receives a notice under Section 14. You should contact your Regimental Association or the Army Operational Legacy Branch to find out how to access this support.
If I am contacted by the ICRIR does that mean I am a suspect in a criminal investigation?
As a witness, no. The ICRIR process seeks to answer questions about an incident. However, where the ICRIR undertakes a ‘liability investigation’, that investigation could, should sufficient evidence be uncovered, be capable of leading to a referral for prosecution. The ICRIR should explain very clearly on what basis it is seeking information. We will support veterans asked to cooperate with the Commission.
Will I have to attend or give evidence in Court?
Under Section 14 of the Legacy Act, anyone called as a witness or suspect is compelled to cooperate. Evidence collection may be by interview or, in some cases, at a public hearing. This process of evidence collection can include the review of previous evidence or providing new witness statements. This will very much depend on the case and the specific approach taken by the investigating officer. MOD is committed to offer welfare support and legal advice where appropriate.
I have already given evidence in a case; will I be called again to do so?
The Legacy Act provides that the Commissioner for Investigations must ensure that the ICRIR does not do anything which duplicates any aspect of a previous investigation unless, in the ICRIR’s view, the duplication is necessary. However, the ICRIR may review material from historical investigations. If new lines of inquiry are identified, it is possible that former witnesses may be asked to provide new evidence or clarify past evidence.
How will I be informed of the investigation and outcome?
The detail of how the ICRIR will undertake its work is still being defined as the ICRIR consults with those who have an interest in its work, including the Ministry of Defence. The ICRIR has not yet stated how it will engage with those invited to provide information to the Commission. We will keep the veteran community informed of the ICRIR process as we learn more.
Contact: RHQ RIFLES, Assistant Regimental Secretary (Welfare) – Mrs Kate Badcock - [email protected]