Northern Ireland Troubles Bill: Human Rights Memorandum

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NORTHERN IRELAND TROUBLES BILL

EUROPEAN CONVENTION ON HUMAN RIGHTS MEMORANDUM

1. This memorandum addresses issues arising under the European Convention
on Human Rights (“ECHR”) in relation to the Northern Ireland Troubles Bill (“the
Bill”). It has been prepared by the Northern Ireland Office (“the Department”).

2. Section 19 of the Human Rights Act 1998 (“HRA 1998”) requires the Minister in
charge of a Bill in either House of Parliament to make a statement before
Second Reading about the compatibility of the provisions of the Bill with the
Convention rights (as defined by section 1 of that Act). On introduction of th e
Bill in the House of Commons, the Secretary of State for Northern Ireland Hilary
Benn MP made a statement under section 19(1)(a) HRA 1998 that, in his view,
the provisions of the Bill are compatible with the Convention rights.

Overview of the Bill
3. The Bill puts in place mechanisms for addressing the legacy of the Troubles in
Northern Ireland, delivering reforms to the current system of addressing legacy
issues.

4. Part 1 INTRODUCTORY. Part 1 provides various definitions, including of “the
Troubles”. It also repeals various provisions of the Northern Ireland Troubles
(Legacy and Reconciliation) Act 2023 (“the 2023 Act”).

5. Finally, Part 1 also renames the Independent Commission for Reconciliation
and Information Recovery (“ICRIR” ), which was established by the 2023 Act ,
the Legacy Commission.

6. PART 2 THE LEGACY COMMISSION . Part 2 reforms the renamed ICRIR,
making extensive changes to its structure and governance. It makes provision
for the appointment of various office holders within the new Legacy Commission

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and for persons to be employed or seconded as officers of the Commission.
The Legacy Commission’s principal functions (clause 3(2)) are to:

• carry out investigations into conduct forming part of the Troubles that
caused death and harm (including investigation of any serious Troubles
offences, such as murder, or other offences connected to such offences)
and publish reports detailing the findings of such investigations;

• carry out inquisitorial proceedings into certain deaths (broadly, those that
were being or were to be investigated by coroners in Northern Ireland
prior to 1 May 2024 and that cannot be adequately investigated by way
of a resumed inquest) and publish reports detailing the findings of such
investigations;

• produce personal statements by eligible persons affected by deaths and
serious harm; and

• produce a historical record of deaths that resulted from Troubles-related
conduct.

7. PART 3 INVESTIGATIONS OF CONDUCT CAUSING DEATH AND OTHER
HARM. Part 3 makes provision for the Directors of Investigation (who are part
of the Legacy Commission) to investigate conduct that caused death or serious
harm during the Troubles. Such an investigation may be initiated at the request
of various people (see c lauses 27 and 28), including close family members or
certain public authorities , or the Directors themselves (see clause 32), in
various circumstances.

8. Any investigation under Part 3 must be carried out as a criminal investigation
unless the Director conducting it concludes that there is no realistic prospect of
information being provided to a prosecutor, in which case the investigation will
proceed as a fact-finding investigation with a report produced by a “judicial

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panel member” (who will be either a serving or retired judge – see clause 6) at
the conclusion (see clause 38).

9. PART 4 INQUISITORIAL PROCEEDINGS . Part 4 provides for the
circumstances of certain deaths (all of which were subject to pre -1 May 2024
inquests in Northern Ireland – see clause 50) to be examined by a judicial panel
member holding public inquisitorial proceedings (these proceedings will be
similar to those of a public inquiry under the Inquiries Act 2005 (“IA 2005”).
Witnesses will be able to give evidence to such inquisitorial proceedings by
video link (clause 54) and core participants (e.g. family member s) will be able
to apply for funding for legal representation , from the Legacy Commission. At
the end of the process the judicial panel member will produce a report detailing
their conclusions regarding the circumstances of the death.

10. PART 5 INVESTIGATIONS AND INQUISITORIAL PROCEEDINGS:
GENERAL. Part 5 makes provision for various matters relating to the work of
the Commission. Clauses 67 and 68 impose a requirement on the judicial
panel member who has produced a report to give certain family members the
opportunity to submit personal statements (explaining how the relevant events
have affected them) to be published.

11. Clause 69 imposes a duty on those conducting investigations or inquisitorial
proceedings to have regard to the welfare of witnesses and other participants
in the investigation etc. Clause 70 requires a Director or judicial panel who
uncovers evidence that members of the P olice Service of Northern Ireland
(“PSNI”) may have committed certain criminal offences (i.e. offences that are
not within the remit of the Commission) to refer the matter to the Police
Ombudsman for Northern Ireland (“PONI”). Clause 71 makes relevant
amendments of the Police (Northern Ireland) Act 1998 to enable PONI to carry
out an investigation following a referral.

12. PART 6 THE INDEPENDENT COMMISSION ON INFORMATION
RETRIEVAL. Part 6 makes provision about the work of a new international
body, the Independent Commission on Information Retrieval (“ICIR”) that is

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being set up under an agreement with the Irish Government. The ICIR will
receive information about deaths and, following requests from family members
of persons whose deaths resulted from the Troubles, will write reports detailing
such information. Part 6 provides for restrictions on when the ICIR can accept
a request to provide information about a death, such as when there is a need
for the Legacy Commission to carry out an investigation in order to satisfy
Article 2 ECHR obligations. Information that is p rovided to the ICIR cannot be
used in any legal proceedings (including criminal proceedings for any offence),
and there are offences to prohibit ICIR members from making unauthorised
disclosure of ICIR information and reports.

13. PART 7 INQUESTS . Section 44 of the 2023 Act halted Troubles -related
inquests in NI from 1 May 2024. It also prevented new inquests from
commencing. Part 7 of the Bill makes provision for the recommencement of
certain Troubles-related inquests (“resumed inquests”) that had been halted as
a result of section 44. Part 7 also confers a decision -making function on the
Advocate General for NI (“AdvGNI”) in relation to Troubles -related inquests
which were previously directed by Attorney General NI or by the AdvGNI
(pursuant to section 14 of the Coroners Act (Northern Ireland) 1959) but not
commenced prior to 1 May 2024 (a function that the Government intends will
be exercised by the Solicitor General for England and Wales in accordance with
section 2 of the Law Officers Act 1997). The AdvGNI will consider certain factors
in relation to each case (such as whether there is sensitive information, the
views of family members etc) to decide whether the death should be considered
via an inquest or inquisitorial proceedings. Finally, Part 7 includes some
provision regarding the case management of resumed inquests.

14. PART 8 FURTHER PROVISION RELATING TO THE TROUBLES . Clauses
86 and 87 make provision for the Legacy Commission to produce a historical
record of all deaths caused by conduct forming part of the Troubles. Clause 88
amends the 2023 Act to enable the criminal investigation of Troubles -related
offences that are not serious or connected offences (serious and connected
offences are to be investigated by the Commission).

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15. Clause 89 provides (with retrospective effect) that interim custody orders may
be made under certain Northern Ireland legislation by a Minister of State or an
Under-Secretary of State as well as by the Secretary of State. Clause 90 makes
related provision about convictions that have been quashed in the past on the
basis that an interim custody order was not made by the Secretary of State
acting personally.

16. PART 9 GENERAL . Part 9 deals with general matters in relation to the Bill
(consequential provision, regulations, interpretation, extent and
commencement).

ECHR litigation relating to the 2023 Act
17. This Bill repeals Part 2 of the 2023 Act, replacing it with new provisions that will
achieve a new approach to the investigation of conduct that caused death or
serious harm during the Northern Ireland Troubles. The 2023 Act is the subject
of ongoing ECHR-related litigation, and the UK Supreme Court is currently
deciding whether to uphold the Secretary of State’s appeal against certain
findings made by the Northern Ireland Court of Appeal in Re Dillon’s Application
(“Dillon”).1

18. In addition, this Bill was introduced in the House of Commons on the same day
(14 October 2025) as the Secretary of State laid an order in draft before
Parliament in accordance with section 10 HRA 1998 (“Remedial Order”) that
will, when made, repeal provisions of the 2023 Act following certain declarations
of incompatibility that were made in Dillon.

Dillon
19. Following its enactment, various provisions of the 2023 Act were challenged in
the courts of Northern Ireland on the basis that they were not compatible with

1 [2024] NICA 59.

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ECHR rights (along with other grounds). In 2024 Colton J made the following
key ECHR-related findings (among others):2
• The provisions (including section 19) that allowed for a person to be
granted immunity from prosecution were not compatible with Articles 2
and 3 ECHR;

• The bar on the criminal investigation, prosecution and the punishment of
offenders under section 41 and 42(1) were not compatible with Articles
2 and 3;

• ICRIR was capable of carrying out effective investigations for the
purposes of Articles 2 or 3;

• The bar on the continuation of civil proceedings under section 43 was
not compatible with Article 6 ECHR;

• Sections 46 and 47, which dealt with certain Interim Custody Orders and
litigation or appeals relating to them, were not compatible with Article 6
(in so far as they applied to existing claims ) and Article 1 of Protocol 1 ,
but were not found to be incompatible with Article 7 ECHR.

20. The judgment of the High Court was subject to an appeal (and cross-appeal) to
the Northern Ireland Court of Appeal , although an appeal in respect of Colton
J’s findings as regards immunity , civil proceedings and ICOs that had been
issued by the previous Government were discontinued by the Secretary of
State. The Court of Appeal made the following key ECHR-related findings
(among others):

• ICRIR has sufficient independence to be capable of delivering Article 2
or 3 ECHR-compliant investigations in cases;

2 [2024] NIKB 11.

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• The provisions of the 2023 Act d id not provide for the effective
participation of the next of kin in the process, in circumstances in which
the ICRIR review process replace s an inquest as the means of
discharging the state’s Article 2 or 3 procedural obligations; and

• The provisions relating to the Secretary of State’s power to preclude
disclosure of sensitive information by the ICRIR to the Next of Kin and
the public were found to be incompatible with Article 2 ECHR; and

• The bar on the commencement of new civil proceedings under section
43 was incompatible with Article 6 ECHR, given its general application.

21. The ECHR findings of the Court of Appeal in relation to the ICRIR’s capacity to
conduct an Article 2 or 3-compliant investigation are the subject of an appeal to
the UK Supreme Court that was heard on 14 to 16 October 2025. The bar on
the commencement of new civil proceedings was not appealed by the Secretary
of State.

Related amendments
22. The Remedial Order will, when made, repeal the sections of the 2023 Act that
provide for immunity (i.e. section 19 and related sections) , the section 41 and
42(1) prohibitions on criminal enforcement in respect of certain offences and
the section 43 bar on civil proceedings.

23. Clause 88 of this Bill amends section 38 of the 2023 Act to enable criminal
investigations of offences that are not within the scope of the work of the
Commission. Finally, clause 90(2) of this Bill repeals sections 46 and 47 of the
2023 Act as those provisions will now be replaced by the provisions in clauses
89 and 90.

ECHR analysis

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Clause 22 - Biometric material
24. Clause 22 provides for the Secretary of State to make regulations to designate
a collection of biometric material for use by the Legacy Commission in the
exercise of its functions. The regulations may provide that designated material
is to be retained and not otherwise destroyed under the listed destruction
provisions. The clause was previously enacted in the 2023 Act as section 35.

25. The reason for the provision is that there are certain destruction provisions in
primary legislation (including various pieces of counter-terrorism legislation)
which would result in the deletion of biometric material which might otherwise
be needed by the Legacy Commission in the discharge of its investigative
functions. It is worth noting that the Criminal Justice Act (NI) 2013 contains a
destruction regime which has not yet been commenced. However, an NI Bill
has been introduced in the Assembly which rep eals and replaces the 2013
uncommenced regime. The Department expects this to come into force at some
point in the next 2 to 3 years.

26. The provision will allow the Secretary of State to provide for the continued
retention of material which would otherwise be destroyed under UK law. The
retention of fingerprints and DNA profiles engages Article 8 ECHR. In S and
Marper v. UK 3 the ECtHR found that the interference caused by retaining
biometric material was in accordance with law and pursued a legitimate aim
(prevention and detection of crime), but it was not necessary and proportionate.
The “blanket and indiscriminate” retention of DNA and other biometric data from
individuals not been convicted of a criminal offence violated Article 8 ECHR.

27. In that case, the ECtHR noted that the power did not have regard to the nature
or gravity of the offence, nor the age of the suspected offender; that the
retention was not time limited, and material was retained indefinitely whatever
the nature or seriousness of the offence; that there were limited possibilities for

3 (2009) 48 E.H.R.R. 50.

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an acquitted individual to have the data removed; and that there was no
provision for independent review of justification of retention.

28. More recently, the European Court of Human Rights considered retention of
biometric material again in Gaughran v UK (Application No. 45245/15, judgment
13 February 2020). In that case, the Court held that the indefinite retention of
biometric data of all convicted persons violated Article 8. However, there were
also comments made about the proportionality of retaining DNA in Northern
Ireland for use in the investigation of historic cases; unhelpfully the court drew
a direct comparison between the justificat ion for that and retaining biometrics
to use generally in the investigation of “cold cases”. In relation to the particular
need to retain biometrics in Northern Ireland for legacy investigations, and the
relevance of that argument to the proportionality of interference with Article 8
rights, the ECtHR said:

“92. …the Court considers that the necessity to preserve parts of the DNA
database for the purposes of historic investigations is not significantly different
to the general arguments advanced that retaining biometric data is helpful for
investigating other types of ‘cold cases’, examples of which were included as
case studies illustrating the Government’s general argument set out above (see
paragraph 89).

93. The Court recalls in general terms that it has found in the context of the
positive obligation arising under Article 2 that the public interest in investigating
and possibly obtaining the prosecution and conviction of perpetrators of
unlawful killings many years after the events is firmly recognised... Investigating
‘cold cases’, is also in the public interest, in the general sense of combating
crime... However , also in the context of unlawful killings the Court has
underlined that the police must disch arge their duties in a manner which is
compatible with the rights and freedoms of other individuals... Indeed, without
respect for the requisite proportionality vis‑à‑vis the legitimate aims assigned to
such mechanisms, their advantages would be outweighed by the serious

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breaches which they would cause to the rights and freedoms which States must
guarantee under the Convention to persons under their jurisdiction...”

29. The De partment notes that Gaughran was not directly concerned with the
power conferred by this Bill, but rather a general legislative regime in which
biometrics were retained for the general purpose of prevention and detection of
all crime.

30. The Department considers that the provision in the Bill regarding the retention
of biometric material can be exercised compatibly with Art icle 8 ECHR. The
provision contains specific limitation s which go towards the proportionality of
measure. For example, clause 22(5) requires that the Secretary of State
provide for time -limited retention (a reasonable period after the conclusion of
the Legacy Commission’s work) and for periodic reviews of the need to retain
the material. In addition, the provision will only allow for the retention of the DNA
profile rather than the DNA sample (as well as fingerprints). The power also
allows the Secretary of State to designate a specific collection of material for
retention so further limitations may be included in the regulations.

31. The Department considers that the Article 8 interference that accompanies the
proposal to retain a snapshot of legacy biometrics is in accordance with the law
and is necessary and proportionate to ensure public safety, prevent disorder
and crime and uphold the rights and freedoms of others.

Clause 17 and Schedule 5 – disclosure of information
32. In Dillon the Northern Ireland Court of Appeal looked at the provisions in the
2023 Act which deal with the disclosure of sensitive information by the ICRIR
(see paragraphs 223 -237 of the judgment). The court commented on the
breadth of the definition of ‘sensitive information’ and on the Secretary of State’s
role in the process (including his power to issue guidance about the
identification of sensitive information). It is the Secretary of State’s role in the

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process which appears to have been the basis for the court’s finding that the
regime is incompatible with Article 2 ECHR.

33. The judgment of the Northern Ireland Court of Appeal on this point is the subject
of the ongoing appeal to the UK Supreme Court. It is the expectation of the
Department that the Supreme Court will allow the appeal and conclude that the
disclosure regime in the 2023 Act (including the role of the Secretary of State
in it) is ECHR-compatible.

34. Part 2 of the 2023 Act, which includes the provisions dealing with the disclosure
of sensitive information by the ICRIR , is being repealed by the Bill. The new
regime which will govern the disclosure of information by the Legacy
Commission has many similarities with the 2023 Act regime. However, it also
differs in several respects:

• The definition of ‘sensitive information’ is narrower, in that information is
not sensitive simply because it has been supplied to the Legacy
Commission by certain bodies , such as the Security Service or the
Secret Intelligence Service (which is the case under the 2023 Act).

• The Secretary of State no longer has a power to issue guidance on the
identification of sensitive information.

• The Secretary of State will only be able to prohibit a proposed disclosure
of sensitive information by the Legacy Commission if the disclosure
would not be in the public interest.

• The Legacy Commission itself may appeal a decision of the Secretary
of State to prohibit a proposed disclosure of sensitive information –
including early in an investigation, prior to the production of a report.

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• The list of authorities to whom the Legacy Commission can disclose
sensitive information without the Secretary of State’s consent has been
expanded to include PONI in certain circumstances.

35. The Department considers that the revised disclosure regime is ECHR-
compatible.

Part 3 – next of kin participation
36. In Dillon the Northern Ireland Court of Appeal held that the regime of reviews
into deaths provided for by Part 2 of the 2023 Act was insufficient to discharge
the state’s procedural obligation under Article 2 ECHR (or 3), in cases in which
that obligation would otherwise have been discharged by an inquest, because
it provided insufficient opportunity for the participation of the next of kin of
victims in the process:

in circumstances where the ICRIR purports to replace inquests as the means
of compliance with the State’s obligations under Article 2 ECHR, it is not
presently capable of discharging the Article 2 investigative obligation as (i) it
does not have the power to hold an investigation which allows for effective
participation of the Next of Kin to the extent necessary to protect their
interests…4

37. The Court’s reasons for this conclusion are at paragraphs 184 to 222 of the
judgment, and the Court’s assessment of the overall compatibility appears to
be based on the following:

• The 2023 Act does not make provision for the next of kin to have funded
legal representation to assist them in engaging with an investigation; and

4 See order of the Northern Ireland Court of Appeal dated 20 September 2024. This allowed
a cross-appeal and overturned the judgment of Colton J who had held that the regime was
compatible with Articles 2 and 3 in this regard (see paragraphs 320 to 360).

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• It does not make formal provision for the disclosure of material or
information to the next of kin, or opportunity for them or their legal
representatives to question any witnesses.

38. The judgment of the Northern Ireland Court of Appeal on these points is the
subject of the ongoing appeal to the UK Supreme Court. It is the expectation of
the Department that the Supreme Court will allow the appeal and will conclude
that the procedural obligation under Article 2 ECHR is not as extensive as the
Court determined. The Court did not cite any authority (either domestic or
Strasbourg) that has held that an investigative regime must provide for the
above requirements. The Department also considers that the Court’s findings
as to the requirements of an Article 2 ECHR-compliant investigation go beyond
those identified by the UK Supreme Court in Finucane.5

39. Part 2 of the 2023 Act is being repealed by this Bill and the investigative regime
that it provided for is for the most part being replaced by Part 3 of this Bill. The
Department considers that the new regime will provide sufficient opportunities
for the next of kin to be involved in the process, noting in particular:

• Clause 27(1) gives a close family member the right to request an
investigation into conduct that caused a death, and to ask specific questions
about the conduct (clause 29(1)) which a Director of Investigation must have
regard to when deciding how to conduct an investigation and the Legacy
Commission must , where possible, respond to them in its report (clause
36(9) and 38(5));

• Clause 33 requires close family members etc. to be notified of an
investigation that was initiated by a Director of Investigation or following a
request by another person;

• Clause 36 confers wide discretion on a Director of Investigation to determine
how to conduct their investigation and how they will interact with close family

5 Re Finucane’s application [2019] UKSC 7.

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members in doing so . That discretion will have to be exercised in such a
way as to meet a ll relevant ECHR obligations ( in particular the procedural
requirements under Article 2 ECHR) as well as in accordance with the duties
imposed by the provisions discussed below;

• In conducting any functions conferred under the Bill, the Legacy
Commission will be under a duty to have regard to the views given by the
new Victims and Survivors Advisory Group (see clause 8 ), which must
include one or more victims and survivors of the Troubles and one or more
persons representing the interests of such persons (clause 8(4));

• In addition, in conducting any functions conferred under the Bill, the Legacy
Commission will be required to do so in a way that is consistent with the
principle that (among others) the suffering of victims and survivors should
be acknowledged , justice and the recovery of information should be
facilitated, and human rights should be respected (see clause 11);

• Clause 37 provides that if a Director of Investigation determines that an
investigation of conduct is not to be carried out as a criminal investigation
(i.e. in accordance with clause 36(2) and (3)) and will instead be carried out
as a fact -finding investigation , they must notify certain close family
members; and

• Clause 40 imposes a requirement on a judicial panel member who has
produced a report at the conclusion of a Part 3 investigation to consult with
certain family members about the contents of a report and to take into
account any representations that they make.

40. The revised regime under Part 3 does not make specific provision for the
matters identified as required by the Court of Appeal. 6 Nevertheless, th e

6 Part 4, which provides for a new regime of inquisitorial proceedings, does make provision in relation to
those matters, although that regime will apply only in relation to the investigation of deaths that were the
subject of a pre-1 May 2024 inquest (where those deaths are not suitable to be investigated by way of a
resumed inquest) – see clause 50 and the discussion below.

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Department considers that, for the reasons given above, the Part 3 investigative
regime is compatible with Article 2 ECHR.

Clause 50 – Deaths to be examined under Part 4
Article 14 ECHR
41. Part 4 of the Bill provides for certain deaths to be e xamined by way of
inquisitorial proceedings rather than by investigation under Part 3. The
Secretary of State considers that while Part 3 investigations are effective and
ECHR-compatible, it is appropriate for those particular deaths to be the subject
of public inquisitorial proceedings. All of the deaths that are potentially within
scope for examination under Part 4 (see clause 50) were (or would have been)
the subject of an inquest that did not complete its work prior to 1 May 2024 (the
date on which section 44 of the 2023 Act commenced) . While it is hoped that
most of those deaths can be investigated by resumed inquests (see the
amendments made by clause 84) there are some that will need to be
investigated by an alternative mechanism that allows for the possibility of the
examination of sensitive material in closed sessions. Part 4 makes provision for
those cases.

42. It is possible that a family member of a deceased person whose death is not
within scope of Part 4 (and that will therefore be investigated under Part 3) may
argue that the difference in treatment (as compared to a victim who is eligible)
constitutes discrimination on the basis of “other status” that is contrary to Article
14 ECHR. While the Strasbourg and domestic case-law recognises that “other
status” can have a wide meaning and need not necessarily have a social or
legal significance outside the difference in treatment complained of, it seems
unlikely that it would extend to such a specific difference. However, to the extent
that there is discrimination on the basis of other status, the Department
considers that there is an objective justification for the difference. The purpose
of making provision to enable some deaths to be examined by way of
inquisitorial proceedings is to recognise that those deaths would have been
subject to inquests had it not been for the effect of the 2023 Act, and that those

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deaths are more appropriately examined through inquisitorial proceedings
rather than through a resumed inquest (in general because of the existence of
sensitive material). It is appropriate for Parliament to make special provision
about the investigation of these deaths to reflect the expectations of the family
members concerned.

43. The courts have recognised that they should accept, in reference to other
status, that it is open to Parliament to make policy choices that have differing
impact on different persons, and should only find that such differences are
contrary to Article 14 ECHR where the reasons for them are manifestly without
reasonable foundation. 7 It falls within that wide margin of appreciation for
Parliament to determine the deaths that should be within scope of Part 4 and
to provide that other deaths should be investigated through the equally effective
and ECHR-compatible mechanism of a Part 3 investigation.

44. Therefore, to the extent that there is any discrimination within the ambit of
Article 14, that discrimination is justified and proportionate.

Clauses 56 to 58 – Restrictions on public access etc.
45. Clause 55 imposes a duty on a judicial panel member to conduct inquisitorial
proceedings in public with the core participants (“CPs”) etc. having access to
the relevant material. However, clause 56 does allow restrictions to be imposed
that will have the effect of requiring particular evidence to be considered only in
closed sessions. Such restrictions can be made as are necessary in the public
interest. It is possible that i n some cases restrictions could be made that will
prohibit some of the CPs (including close family members) from being present
when certain material (e.g. material that is sensitive on national security
grounds) is discussed or relevant witnesses are questioned. If that is the case
Counsel to the proceedings will question witnesses and make relevant
submissions in place of the excluded CPs’ representatives.

7 R (oao SC and others) v Secretary of State for Work and Pensions and others [2021]
UKSC 26.

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46. Clause 56(1) permits restrictions to be imposed either by the judicial panel
member or by the Secretary of State. This mechanism to protect sensitive
material etc. closely resembles section 19 IA 2005. The Bill does not make
provision for an appeal mechanism against the imposition of restrictions, but a
decision to impose (or refuse to impose) them will be amenable to judicial
review (as is the position for decisions taken under section 19 IA 2005).

47. Restrictions will be akin to restrictions imposed by a court, in that they will be
capable of binding third parties (e.g. journalists) and in the method of their
enforcement (clause 58). The Legacy Commission or the Secretary of State will
be able to certify a breach of restrictions to the High Court , which may decide
to treat the matter as if it were contempt of court.

Article 2 ECHR
48. The Department considers that this regime is compatible with the right of next
of kin to participate in an investigation into a death under Article 2 ECHR. It is
an established feature of the IA 2005 regime that material can be restricted from
public consideration (and CP consideration) ; and that the Secretary of State
should be able to impose restrictions (alongside an inquiry chair) that are
necessary in the public interest , balancing important public interests such as
the protection of national security against the specific public interest in relevant
information or evidence being examined in public. In carrying out that balancing
exercise, the decision-maker will have to ensure that only such restrictions are
imposed as are justified and proportionate, with the public and CPs being
provided with as much information as is possible without causing harm.

49. Where material is subject to restrictions it is still taken into account by the inquiry
and its significance can be addressed in a closed report, achieving an
appropriate balance between the competing public interests. Clauses 56 to 58
of the Bill produce an equivalent effect and are therefore considered to be
compatible with the procedural duty under Article 2 ECHR.

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Article 10 ECHR
50. The provisions will allow restrictions to be imposed on the reporting of matters
being considered in the course of inquisitorial proceedings. The Department
recognises that the imposition of such reporting restrictions may constitute an
interference with the Article 10 ECHR rights of those who might wish to report
on such matters. However, as such an interference is justified and
proportionate, the provisions that allow for such restrictions are compatible with
Article 10 ECHR.

51. Restrictions may be imposed under clause 56 only where they are necessary
in the public interest. While it will be for the decision-maker to assess what is in
the public interest, this will need to be a rational assessment (subject to judicial
review). In addition, the decision-maker will also need to take into account the
proportionality of any restrictions and the interference with the Article 10 ECHR
rights of persons who are affected by them . A party (e.g. a press outlet) that
believes that restrictions have been wrongly imposed will be able to challenge
the restrictions by way of judicial review . In addition, enforcement of the
restrictions is ultimately at the discretion of a court, which will need to take into
account both Article 10 ECHR rights and the fundamental right of freedom of
speech at common law in deciding whether and how to enforce them.

52. It should be noted that in deciding whether to impose restrictions, the decision-
maker will need to take into account any relevant ECHR rights that favour their
imposition as well as those that favour the contrary . This is likely to be
particularly relevant in cases where a witness or CP argues that it is necessary
to prevent reporting of their identity in order to protect their safety or their
privacy. In many Troubles-related inquests coroners have granted applications
for witness anonymity and have impos ed reporting restrictions to prevent a
person’s identity from being made public.

Clauses 70, 71 and 88 – Police Ombudsman
Court of Appeal finding of Incompatibility regarding section 45 Legacy Act 2023

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53. Under the 2023 Act, I CRIR can investigate serious or connected Troubles -
related offences in the course of its reviews. However, the combined effect of
section 38 (no criminal investigations except through ICRIR) and section 41 (no
criminal enforcement in relation to non -serious or unconnected Troubles -
related offences) mean that non -serious unconnected Troubles -related
offences cannot be investigated or prosecuted. In addition, section 45 prevents
PONI from investigating police Troubles-related conduct (whether into police
complaints or matters referred to PONI) and refer ring such conduct to
prosecutors and/or to PSNI for disciplinary proceedings.

54. In Dillon the Court of Appeal considered section 45 in the context of the State’s
investigative obligations under Article 2 and 3. The Court of Appeal was clear
that the Commission could undertake investigations into police conduct in place
of PONI. However, the Court of Appeal held that the challenge that section 45
was incompatible with Article 2/3 should succeed “in light of the trial judge’s
findings on the effect of section 41 of the 2023 Act” (see paragraph 307). The
Court went on to say that “the immunity provision which prevents misconduct
charges being pursued is incompatible with the Convention”. In relation to
section 41, the High Court reached its judgment that the provision was
incompatible with Article 2 and 3 ECHR on the basis that it extended
unconditional immunity to life endangering criminal offences. However, in
relation to section 45, the Court of Appeal order appears to potentially go further
than the High Court indicating that any ban on the investigation of non-criminal
police misconduct would also breach Articles 2 and 3 (although the Court did
not provide any examples of misconduct that would be within the ambit of
Articles 2 or 3 ECHR but which would not amount to a criminal offence).

55. Following the judgment in Dillon, t he Remedial Order will r epeal s ection 41
Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 so that all
Troubles-related offences can be prosecuted. The other immunity provisions in
the Act will also be repealed.

56. Clause 88 of the Bill amends section 38 of the Act to remove the prohibition on
the investigation of non -serious unconnected Troubles-related offences. In

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addition, c lause 70 creates a specific route for the Commission to refer
evidence of lesser Troubles-related criminal offences committed by members
of the PSNI to PONI for investigation. Clause 71 makes amendments to the
existing PONI regime so that PONI can investigate matters referred by the
Commission if it is in the public interest to do so. PONI will be able to refer
officers to DPPNI for prosecution. In addition, PONI will be able to refer a police
officer convicted of a lesser offence to PSNI for disciplinary proceedin gs.
However, the provision will not resurrect PONI’s power to investigate police
complaints generally or investigate non-criminal misconduct the police officer
has not been convicted of an offence following a referral to DPPNI.

Article 2 and 3
57. The Department considers that the proposed provision is compatible with
Articles 2 and 3. The repeal of section 41 will allow non-serious unconnected
Troubles-related offences to be investigated. In addition, the Commission will
be under a duty to actively refer evidence of police criminal misconduct to PONI
for investigation. PONI will then be able to investigate and, if appropriate, refer
conduct to the DPPNI for prosecution. Where there is a prosecution, PONI will
also be able to refer a police officer for misconduct proceedings. The
Department considers that this regime meets the investigative obligation under
Article 2 or 3 ECHR.

58. The provision will not allow PONI to investigate non -criminal Troubles-related
police misconduct. The Department has not been able to identify any police
non-criminal misconduct which would be within the ambit of Article 2 or 3. There
will be a route for the investigation of criminal conduct which will ensure that the
State is able to meet its responsibility to deter and punish such conduct.

Clause 73(6) - Information about deaths
59. Information provided to ICIR about a death within its remit and any evidence
obtained directly or indirectly as a result of the information being provided to the

21

ICIR is not admissible in any legal proceedings involving any persons (civil or
criminal) and cannot be used by the Legacy Commission in connection with its
investigations under Part 3 or inquisitorial proceedings. However, the provision of
such information by a person to the ICIR does not give that person immunity from
prosecution for any criminal offence. In other words, whilst the provision protects
disclosure of the information provided in confidence to the ICIR, it does not protect
individuals from being prosecuted for any criminal offence.

60. The purpose of this provision is to offer protective measures to ensure
confidentiality and encourage individuals to voluntarily offer information to ICIR.
It is meant to avoid a chilling effect, in terms of a person’s willingness to be frank
and open about the past, volunteering information which might otherwise not be
provided if this particular protection was not in place. The ICIR is being
established specifically to enable victims to seek and privately receive information
about the Troubles-related deaths of their family members. Unlike the new Legacy
Commission, the ICIR does not have any criminal investigation remit. The ICIR’s
functions con cern only the re trieval of information and the provision of that
information to families, as requested . This avoids issues arising with the same
body carrying out both information retrieval and investigative functions. It may
result in t he ICIR obtaining information from individuals that the Legacy
Commission cannot, as ICIR will have protected disclosure powers. This
voluntary mechanism will provide an additional means to obtain answers, whilst
also being open for those who are willing to engage with the benefit of prot ected
disclosure.

61. It is arguable that preventing an accused in criminal proceedings from relying on
information provided to ICIR about a death within its remit ; and preventing a
family, in receipt of information provided to ICIR about a death within its remit ,
from pursuing a civil action , interferes with their Article 6 ECHR rights. Article 6
could be engaged if the inadmissibility provisions were for example to negatively
impact on those seeking to exercise their Article 6 rights and rely on the
information obtained.

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62. It is the Department’s position that inadmissibility of information provided to the
ICIR is both necessary and proportionate to meet a legitimate aim, namely to
maximise the information given to the ICIR by protecting the confidentiality of the
information given to it and also enabling ICIR to carry out its functions and meet
its aim. The inadmissibility of information provided to the ICIR does not restrict or
reduce the access an individual has to a fair hearing in such a way or to such an
extent that the very essence of the right is impaired. Article 6 is a qualified right.
The ECHR does not lay down rules governing admissibility of evidence , which
are primarily a matter for regulation under national law. The Department’s view is
that any interference with Article 6 rights in this connection is justified as
proportionate to a legitimate aim. The ICIR confidentiality provisions are vital to
its overriding purpose.

63. There is nothing to prevent a defendant in criminal or a family in civil proceedings
from adducing the same information by other means: the inadmissibility
provisions attach only to information given to the ICIR, but not to the admissibility
of information or evidence separately obtained. The inadmissibility provision is
therefore not a complete bar to access to the court in connection with the cause
of action and does not prevent a prosecution for example on the basis of evidence
of criminality obtained separately. It is the information provided that is protected,
not the individual.

64. The aim of the restriction is to maximise the chances of retrieval of “lost”
information about deaths within the ICIR’s remit. There would be a substantial
chilling effect on contributions if it were envisaged that information given in
confidence to the IC IR could be disclosed for the purposes of civil or criminal
proceedings. The ICIR will not be able to discharge its functions if contributors
are deterred from approaching the ICIR if their contributions could found a claim
against them, or others. However, the provision of information does not give a
person immunity from prosecution for any criminal offence. In practice a ny
relevant civil action may be time barred in any event.

65. The ICIR is independent of both the UK and Irish governments; it has the status
of an international organisation ; it has no investigative duty and is not acting as

23

an arm of the state. ICIR as envisaged under the Stormont House Agreement
2014 is different from ICRIR , most notably in that it does not have a criminal
investigation remit.

66. It is this separation of functions that the courts in Dillon were particularly interested
in distinguishing. The position of ICIR is materially different to ICRIR. Colton J in
the High Court in Dillon at paragraph 445 highlighted this:

“In this regard it should be noted that that the ICIR envisaged under the SHA
1998 is a different animal than the ICRIR created under the 2023 Act.
Importantly, the ICIR was proposed specifically to enable victims to seek and
privately receive information about the Troubles-related deaths of their next of
kin. It did not have a criminal investigation remit. That was to be carried out by
the Historical Inquiries Unit which had policing powers, and which was
dedicated to taking forward criminal investigations into outstanding Trouble -
related deaths. Under the 2023 Act, the ICRIR must perform both functions.”

67. It is the Department’s position that this provision pursues a legitimate aim and
there has been some precedence for this in relation to other international bodies
whose role was also to obtain information in confidence. For example, the
Independent Commission for the Location of Victims ’ Remains, established by
the Northern Ireland (Location of Victims' Remains) Act 1999, adopted a similar
approach.

68. We consider that this provision is necessary to advance the aim of information
retrieval by the ICIR and a reasonable relationship of proportionality has been
struck. It is therefore the Department’s position that any interference with Article
6 ECHR rights that arises from the inadmissibility provisions in relation to the ICIR
are legitimate, proportionate and therefore compliant with Article 6.

Clause 81(1) - Conferral of immunity from suit and legal process
69. The Bill confers on the ICIR immunity from suit and legal process. The effect of
conferral of the immunity is that the decisions of the ICIR, whether taken in

24

relation to its own employees, families who request information or its decisions
to disclose information in accordance with its statutory duties, will not be
justiciable before a Court. The conferral of these immunities potentially restricts
access to a Court to those who might wish to bring an action against the ICIR
in respect of their own civil rights and obligations and in so doing is capable of
interfering with their rights under Article 6 ECHR.

70. The Department takes the view that existing case law supports the view that
immunity from suit can be a justified and proportionate restriction on a potential
applicant’s right of access to a court with respect to the ICIR’s decisions. First,
it can be argued that an international information retrieval body such as ICIR
cannot operate if voluntary contributors perceive a risk of disclosure and
disclosure in some form would be a necessary corollary of amenability to suit
and legal process. Liability to legal process would thus hamper the very object
of the ICIR and would further risk hampering the functioning of the ICIR which
is intended to operate for only a limited period.

71. Secondly, liability to legal process, in risking the disclosure of the identity of
contributors or the implication of individuals in Troubles -related deaths, could
also infringe those individuals’ rights and those of their families under Article 2
and Article 8 ECHR. More broadly, it can be argued that the immunities are
essential to the independence of the ICIR, which is an international organisation
and free from unilateral interference by both the UK and Irish governments.

72. The European Court of Human Rights has had occasion to consider the
relationship between the right of access to a court on the one hand and the
immunity of international organisations on the other. In a number of cases (i.e.
Waite and Kennedy v Germany and Beer and Regan v Germany 8) the
European Court concluded that upholding the immunity of an international
organisation was justified and proportionate, and not in violation of the right to
access to court – “the attribution of privileges and immunities to international

8 (2001) 33 EHRR 3.

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organisations is an essential means of ensuring the proper functioning of such
organisations free from unilateral interference by individual governments”.

73. The ICIR’s independence from both governments is considered essential to
fulfil its core purpose . Freedom from suit and legal process supports and
ensures ICIR’s independence from interference by either government. There
are only very limited safety and national security grounds on which the UK
government is permitted to interfere with the ICIR’s ability to provide information
to families in its reports. Finally, it should be noted that the ICIR will have the
power to waive the immunities conferred upon it. This would allow the ICIR to
allow the ventilation of disputes in domestic courts or tribunals. We anticipate
that this power could be used by ICIR for example in a case where
determination would not require disclosure of confidential ICIR information
relating to deaths but ultimately that is a matter for ICIR to determine whether
any immunities conferred upon it are waived.

74. This provision is considered necessary to ensure the very object of ICIR to seek
and retrieve information and a reasonable relationship of proportionality has
been struck. It is therefore the Government’s position that any interference
with Article 6 ECHR rights that arises from the immunity from suit and legal
process provision in relation to the ICIR is legitimate, proportionate and
compliant with Article 6.

Clauses 89 and 90 – Interim Custody Orders
75. The Detention of Terrorists (Northern Ireland) Order 1972 and the Northern
Ireland Emergency Provisions Act 1973 conferred a power on the Secretary of
State to make an order for the temporary detention of a person in certain
circumstances. This was known as an Interim Custody Order (“ICO”). In R v
Adams9, the Supreme Court unexpectedly displaced the Carltona principle and
held that the power to make an ICO had to have been exercised by the

9 [2020] UKSC 19.

26

Secretary of State personally. Consequently, ICOs made by junior ministers
were invalid.

76. Following the tabling of an opposition amendment during the passage of the
2023 Act, the previous Government introduced provision intended to reverse
Adams. Section 46 of the 2023 Act provides that the ICO order-making function
is to be treated as always having been exercisable by authorised Ministers of
the Crown (as well as by the Secretary of State). Section 47 extinguished civil
claims brought or continued after commencement to the extent that the claim
to be determined involved an allegation that the ICO authorising detention was
invalid on the basis in Adams. In addition, section 47 prevented individuals
convicted of escaping imprisonment while detained under such an ICO from
appealing th ose convictions. Finally, section 47 prevented payment of
compensation for miscarriage of justice under section 133 Criminal Justice Act
1988 where a conviction was reversed solely on the grounds that the ICO
authorising detention was invalid on the basis in Adams.

77. In Dillon, the Northern Ireland High Court declared that s ection 46(2), (3) and
(4) and s ection 47(1) and (4) are incompatible with Article 6 and A rticle 1 of
Protocol 1 (“A1P1”). The Government initially appealed this finding but then
withdrew its appeal. Sections 46 and 47 remain in force.

Clauses 89 and 90 of the Bill
78. Clause 89 of the Bill provides that it is lawful for a junior minister to make an
ICO on behalf of the Secretary of State. Any such order is to be treated as an
order of the Secretary of State , and the provision has retrospective effect .
Clause 90 provides that a conviction quashed on the basis that an ICO was
made otherwise than by the Secretary of State acting personally will not be
affected by the provision in clause 89. However, the quashing of such a
conviction is to be disregarded for the purpose of section 133 Criminal Justice
Act 1988. Clause 90 also repeals sections 46 and 47 of the 2023 Act.

27

79. The purpose of the provision in clauses 89 and 90 is to reaffirm the correct
application of the Carltona principle in relation to the ICO powers. The
Department considers that the conclusion in Adams that the legislation
displaced the Carltona principle, and the making of an ICO therefore required
the personal consideration of the Secretary of State , was unexpected and
wrong.

Article 6
80. Article 6 (1) provides that , in the determination of a person’s civil rights and
obligations, everyone is entitled to a fair and public hearing by an independent
and impartial tribunal established by law.

81. By reversing the decision in Adams and making clear that the exercise of the
ICO order making powers by junior ministers was at all times lawful, clauses 89
and 90 will have the effect of extinguishing civil claims brought on the basis that
an ICO was unlawful because it was made without the personal consideration
of the Secretary of State. Consequently, the proposed provision will prevent the
award of damages in all such civil claims including claims that were extant prior
to commencement of s ections 46 and 47 of the 2023 Act. Clauses 89 and 90
therefore engage Article 6 ECHR.

82. The E uropean Court of Human Rights has held that legislation which
retrospectively limits liability in relation to extant litigation can only be justified
on compelling grounds of general interest. In Vegotex International v Belgium10
(which concerned the criminal limb of Article 6(1) in the tax context ), the
European Court of Human Rights held that retrospective legislation may be
justified to interpret or clarify an older legislative provision, to fill a vacuum or to
offset new case law. In assessing whether the provision is justified , the Court
will consider whether the case law in question was settled, the manner and
timing of the enactment of the legislation, the foreseeability of legislative

10 (2023) 76 EHRR 15.

28

intervention, and the scope of the legislation. Where a judgment has
retrospective effects on all existing cases, a legislature may be compelled to
act where an existing administrative practice is disturbed.

83. As noted above, the purpose of clauses 89 and 90 is to reaffirm the Carltona
principle in the context of ICOs. The Department considers that this amounts to
compelling grounds of general interest justifying the interference with Article 6
for the reasons set out below.

84. First, the decision in Adams represented an unexpected departure from settled
administrative practice. Based on the case law at the time, there was every
reason to believe that the exercise of the ICO order making function by junior
ministers was lawful under the Carltona principle. A period of over 40 years
elapsed between the making of these ICOs and the decision in Adams. No case
was brought in the interim suggesting that ICOs made by junior ministers were
unlawful. In addition, at first instance, the Court of Appeal held in Adams that
ICOs made without the personal consideration of the Secretary of State were
valid. Consequently, the UK Supreme Court’s decision in Adams did not
represent a settled line of case law on the application of the Carltona principle
in the context of ICOs.

85. Furthermore, the decision to make an ICO was always taken at a high level by
Ministers and the re was always a properly considered and substantive basis
for the decision to detain an individual under an ICO (which could only be made
where the individual was suspected of having been concerned in the
commission or attempted commission of any act of terrorism, or in the direction,
organisation or training of people for the purpose of terrorism ). Consequently,
the decision would likely have been the same regardless of whether the
Secretary of State had given the matter his personal consideration. In these
circumstances, the Department considers it wrong in principle for public funds
to be used to pay compensation.

86. Given the expected application of the Carltona principle at the time of their
detention, the claimants in these cases did not have a legitimate expectation of

29

obtaining relief. Consequently, individuals making claims would be benefitting
from an unexpected windfall . In addition, l itigation resulting from the Adams
judgment places a significant and ongoing burden on the public purse in terms
of costs and resources.

87. The Department considers that the Supreme Court was wrong to displace the
Carltona principle in Adams and that doing so has undermined important (even
if historical) powers of detention. The purpose of clauses 89 and 90 is to restore
legal certainty by clarifying the correct application of the Carltona principle in
this context.

88. The Department acknowledges that the Northern Ireland High Court has found
sections 46 and 47 (which have similar effect to clauses 89 and 90)
incompatible with Article 6 (and A1P1). However, it considers that the approach
in this Bill addresses the concerns of the High Court in Dillon. The new
provision is clearly intended to remedy the displacement of the Carltona
principle in Adams. While clauses 89 and 90 interfere with individuals’ Article 6
rights, the Department considers that the purpose of the provision amounts to
compelling grounds of general interest and the interference is justified.

A1P1
89. A1P1 protects individuals from interference with their existing possessions. An
enforceable judgment will constitute a possession for the purposes of A1P1.
However, prior to obtaining a judgment a potential claimant has, at best, a
legitimate expectation of a particular outcome in accordance with the law.

90. A legitimate expectation may amount to a possession under A1P1 in certain
circumstances. The test set out in Draon v France is whether the proprietary
interest in the claim has a sufficient basis in national law and there is settled
case law of the domestic courts confirming it. The Department considers it
unlikely that the claims excluded by virtue of clauses 89 and 90 would be
sufficiently certain to engage A1P1. Civil claims for damages would be subject
to the ordinary limitation period which removes certainty of the claimant’s

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entitlement. In relation to claims for compensation for miscarriage of justice, the
Department does not consider that the decision in Adams amounts to a new or
newly discovered fact within the meaning of s 133 Criminal Justice Act 1988. In
these circumstances, the Department does not consider that the possibility of
compensation under CJA 1988 amounts to a possession within the meaning of
A1P1.

91. However, if the measures do engage A1P1, the Department considers the same
arguments advanced in relation to Article 6 would apply to justify any
interference with A1P1 rights.

Article 7 ECHR
92. Article 7 ECHR (no punishment without law) provides that “” no-one shall be
held guilty of any criminal offence on account of any act or omission which did
not constitute a criminal offence under national or international law at the time
when it was committed”.

93. Clauses 89 and 90 reverse the decision in Adams so that ICOs made by junior
ministers are retrospectively lawful. Consequently, individuals convicted of
offences for escaping imprisonment while detained under an invalid ICO will not
be able to appeal th at conviction on the basis that the ICO is invalid as per
Adams.

94. Clauses 89 and 90 are not retrospectively making unlawful an act that was
understood to be lawful at the time it was committed. It was clearly foreseeable
that attempting to escape imprisonment while detained under an ICO would
amount to an offence under the law when these individuals were detained (even
where that ICO had been made by a junior minister). At the time, there were no
cases indicating that the Carltona principle did not apply to the ICO order
making power. Consequently, there was no reason to believe that escaping
imprisonment while detained under an ICO would not constitute a criminal
offence. The decision in Adams changed that position retrospectively more than
40 years after the individuals had escaped from custody. Consequently, those

31

who escaped custody in the 1970s could not have had a legitimate expectation
of avoiding conviction on the basis in Adams. The expectation that these
convictions should be quashed has arisen many years after the event on the
basis of a decision that the Government considers was wrong. The Department
does not consider that Article 7 requires an automatic reopening of final
convictions where there is a change in the law in those circumstances.

Northern Ireland Office
23 October 2025