A controversial immunity provision in the Government’s bill to deal with the legacy of the Northern Ireland Troubles will be tested in court to see if it complies with human rights laws, Sir Declan Morgan has said.
The former lord chief justice for Northern Ireland, who is the incoming chief commissioner of the Independent Commission for Reconciliation and Information Recovery (ICRIR), conceded that the amnesty proposal was deeply unpopular.
There has been widespread opposition among victims’ groups and political parties to the fact immunity from prosecution will be on offer to perpetrators in return for information provided to the ICRIR.
Explaining the immunity provision, Sir Declan said: “The legislation provides for the mechanism within which it would work.
“There are two routes through which immunity could be achieved. One is by where a person comes to the commission and indicates that they wish to obtain immunity and provide information about an event in which they were involved.
“If that happens, the information they provide will have to be tested.
“The panel will have to make a judgment on whether what the person is saying is the truth, to the best of their ability.
“That means it has to be comprehensive.
“The second route is where someone is being investigated in relation to an event and a similar process arises then where immunity can be claimed.”
The retired judge added: “The immunity provision itself is very controversial, there is no question about that.
“A great number of people are opposed to it. The Government is satisfied it is (European) convention compliant.
“For me that is a critical aspect of the way in which the commission works, it has to work in a way which is convention compliant.
“I have indicated three criteria for me by which the commission has to work.
“One is we have to be doing something positive or useful for the people who are coming to us.
“The second is that whatever happens has to be grounded in the 1998 (Good Friday) Agreement.
“The third is whatever we do, we have to comply with the European Convention on Human Rights.
“I anticipate there will be litigation with the Northern Ireland courts in relation to this. People have advertised that quite clearly.
“I think it helps if the courts then make the determination about the compatibility of the arrangements.”
The Government has introduced multiple amendments to its proposed legislation and Northern Ireland Secretary Chris Heaton-Harris has previously said he is confident it complies with human rights laws.
Sir Declan said: “Constitutionally, it is not the Government’s decision as to whether or not it is compatible, it is the court’s decision.
“I think it is helpful that the issue should be determined in the Northern Ireland courts as quickly as possible.”
There are enormous opportunities here and it would be very unfortunate if they were to be lost in the argument over what may turn out to be a small number of immunity cases— Sir Declan Morgan
He added: “We will be judged by what we do, not what we say.
“Once the commission gets up and running we have to demonstrate to people we can deliver things that are of value to this community.
“I think it is important to get the litigation out of the way, the sooner the better.
“If it is a convention compliant arrangement then we must get on and deal with it.
“However, there will be some who say they are not prepared to work with the commission.
“I still think there are enormous opportunities here and it would be very unfortunate if they were to be lost in the argument over what may turn out to be a small number of immunity cases.”
