The UK government has found itself in confrontation with the courts over the future of legacy law, the latest arising from the Sean Brown case. Why was this allowed to happen?

Sir Declan Morgan, Chief Commissioner, Legacy Commission

The Sean Brown case is a perfect example of  what can happen when a the legal vacuum is left by the delay in cancelling one Legacy Act  and replacing it with a new Act or a radically amended version of the rejected original. By ordering  a public inquiry into the Brown murder,  the Northern Ireland Court of Appeal in effect held  that the administrative process replacing legal due process of the Independent Commission on Reconciliation and Information Recovery, the ICRIR (a.k.a.  the Legacy Commission) is no substitute for due process in the absence of a final Act, whatever the  limited changes to its modus operandi.. On the face of it, this is quite a  blow to the government’s and the commission’s hopes. In just under a year it  has received 154 requests for information, out of a potential 3,500 cases,  The government however are sticking with the commission, arguing that the whole panoply of the criminal justice system no longer delivers.

The government is not taking the court’s ruling lying down. In a decision of   “constitutional significance,” it  disputes that the NI Court of Appeal has the authority to ” order ” a public inquiry and is taking its ruling to the Supreme Court. This was not supposed to happen. The experienced  NI Secretary Hilary Benn bursting with good will, came into office determined to replace  the Tory government’s despised Legacy legislation- a piece of work  which could not have attracted more suspicion if “cover-up” had appeared in coloured lights. But instead of removing most legal process from dealing with legacy cases, we are more mired in legal wrangling than ever.

The government has however conceded the restoration of Troubles inquests and civil actions , to the evident satisfaction of the judiciary. The main  intention however remains: to keep the law out of dealing with the past as much as possible.

The NI courts are not the only institution of state challenging another part of it in London.The PSNI Chief Constable Jon Boucher has been scathing about  MI5’s   insistence in maintaining  Neither Confirm Nor Deny over Stakeknife. If they’re digging their heels in over such a case as Scapatticci, what hope is there for reasonable candour in others?

Hilary Benn  now stands accused in some quarter  of complicity in covering up state involvement in Sean Brown’s murder. Given the degree of distrust hugely amplified by the  Conservatives’ original Bill,  this is less surprising than it should be. This is not where Starmer’s Labour wants to be, not only due to a toxic inheritance, but because of dithering over reaching decisions on the extent of official disclosure and transparency. Without it, the Legacy Commission’s role is doubtfully viable.

I dismiss the notion that the UK state today at senior levels is complicit in cover-up. Others disagree , perhaps too readily. Benn’s support for the commission may partly be focussed on the  huge cost of legal hearings for potentially thousands of cases, stretching into billions on top of compensation payments to which government is already  committed.

And yet the commission has it all to do to prove its worth. It won’t be enough to report  privately to victims and families. The reports to which victims and families give consent for publication will have to convince the public too.

Meanwhile criticism of the government voiced with authority in the Lords and elsewhere is mounting. In reply the official silence on further legacy reform is deafening.

Who knows what’s going on behind the scenes?   Benn’s approach has been to  further strengthen the powers of the Legacy Commission to make it acceptable to stakeholders, not least victims and relatives. But the longer he delays to submit the complete package  for public debate, the harder it’s becoming for the commission to succeed.

I would dearly like to know why that the Chief Commissioner, Declan Morgan,  so well respected as chief justice, is  confident  that he will win the degree of the cooperation from the State he requires. Either he is setting too bar too low or he knows something we don’t. To salvage its reputation and perhaps the very future of dealing with the past,  It is well over time for the government to share their latest ideas and put them to the test.

 


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