Jeffrey Dudgeon: One year into office, the Labour government must now see that appeasing Irish nationalism on legacy does not work

I write this as convenor of the Malone House Group (MHG), which has been alone in supporting the last government’s amnesty plan, which was promised but is not getting a meeting with Hilary Benn, and which has been ignored by the Northern Ireland Affairs Committee (NIAC) – a committee which hears from legacy voices that seem to support ‘lawfare’ over the past.

It would be true to say the welcome Hilary Benn experienced when he took over as secretary of state has evaporated. The optimism has gone. Labour seems to be in an impasse. Legacy is now a hard grind and the law could well end up much where the Tory government was. The NIO’s hope that Dublin could pull them out of difficulties and take the nationalists off their back was never a winning policy given the implacability of both, egged on by the Queen’s University Law Department and legacy practitioners.

The Conservatives’ Legacy Act received Royal Assent in September 2023. The section bringing to life the Independent Commission for Reconciliation and Information Recovery (ICRIR), the new investigations body, under Sir Declan Morgan, commenced in May 2024. However Mr Justice Colton had in February ordered the act’s dismemberment with a series of declarations of incompatibility under section 4 of the Human Rights Act and through disapplication of other sections by virtue of Article 2 of the NI Protocol and Windsor Framework.

Key elements of the act like the stopping of further Troubles inquests and civil suits were thus determined to be contrary to the European Convention on Human Rights (ECHR), as was the section preventing Gerry Adams (and a hundred others) being compensated for internment in the early 1970s.

Benn’s first decision – actually that of the Attorney General, Lord Hermer just days after the election – was not to appeal the ECHR element of the Colton judgment. That seems to have been the last time Hermer was involved in legacy matters as it was realised he had represented Gerry Adams in a civil suit in London. He had to recuse himself thereafter.

A declaration of incompatibility is only a judicial statement addressed to Parliament but Hermer decided to abide by most of it, leaving just an NIO appeal on the Windsor Framework aspect in what is known as the Dillon case (in which a Belfast court found in favour of the widow of a victim of loyalism that the Legacy Act gave the government too much power to withhold information from ICRIR). It will be heard in the Supreme Court in mid-October.

London cannot afford to lose Dillon otherwise EU law will trump the UK’s equality, rights and immigration laws in NI, with inevitable seepage into GB law. The cost of these various judgement in the Belfast courts is never taken into account but we are talking of a billion or more pounds on civil suits, public inquiries and reopened inquests, unless, as the NIO proposes, ICRIR takes over the role of coroner. That is assuming it survives the imposition of an Irish commissioner and the removal of the ex RUC officer Peter Sheridan.

Benn chose also to make a single exception by announcing a public inquiry into the Pat Finucane murder (with Baroness O’Loan as an assessor) while an extra £50 million was provided toward the erection of a Casement Park stadium. These concessions to nationalism failed to have any effect on lawfare or Dublin. Rather the opposite, as the cries grew for a public inquiry into the Sean Brown murder following another Belfast court pronouncement, also being appealed by the NIO to the Supreme Court.

The verdict in the Clonoe inquest in February 2025 which resulted in the coroner, Mr Justice Humphreys, asking prosecutors to consider charges against army veterans for SAS killings of IRA men, finally brought the Ministry of Defence to life. The following month it announced two judicial reviews of the coroner’s ruling as it inferred army criminality in the Clonoe deaths; one for the MoD and another funded one for the soldiers. No more appeasement of judicial overreach with regard to veterans is being tolerated.

Mr Benn’s powers of manoeuvre are increasingly restricted. Unusually, he introduced a lengthy Remedial Order, on foot of Hermer’s advice, designed to remove the offending sections of the Legacy Act. Westminster’s Joint Committee on Human Rights found there was an absence of the necessary “compelling reasons” for such a drastic measure which dispensed with the normal legislative route of repeal and re-enact. The Remedial Order has been in limbo for months and has not reappeared nor has the announcement of Benn’s replacement for the Legacy Act, let alone a decision on inquests.

Then came the prime minister’s announcement that ministers will look at “every conceivable way” to prevent Gerry Adams receiving compensation. Sir Keir Starmer added he would “strive to make sure this did not happen” ignoring the fact that if he simply faced down the Belfast judiciary, as he is entitled to do, the six figure compensation would not be paid.

This circle is near impossible to square so, at best, Benn’s new Legacy Act will not have effect before 2028. Meantime the Supreme Court will be the ultimate arbiter of legacy law, if and when it curbs the increasing separatism of the Belfast judiciary and our associated government quangos like NI Human Rights Commission (NIHRC).

The MHG stood out alone in supporting the Legacy Act and, in particular, ICRIR’s role in information recovery, the one aspect of legacy that can bring some finality to distressed relatives where reinvestigations cannot.

Unfortunately the political parties – unionist and nationalist – have not budged from their refusal to endorse that body, or worse, like Alliance, indulge in thoughtless antagonism. For that reason, MHG has sought to intervene formally in the Dillon case at the Supreme Court. Amnesty, NIHRC and Wave, amongst others, are already accepted as interveners against the act. If our request is granted – and the NIO has objected arguing there is not enough time in the three-day hearing for oral submissions – it would be a first for a non-nationalist body.

We had previously sought leave to intervene at Strasbourg in the hostile inter-state legacy case brought by Ireland against the UK but were informed last month that, “The Chamber decided to adjourn the Court’s proceedings pending the final outcome of the ongoing domestic proceedings for judicial review in the case Dillon and Others which are currently pending before the Supreme Court of the United Kingdom…your request will be examined at a later date”. Everything awaits Dillon.

No surprise then that Hilary Benn won’t meet the Malone House Group, despite an earlier commitment, while the Labour-dominated NIAC in the Commons refuses to hear evidence from us despite calling in a host of witnesses on the lawfare side of legacy like QUB, CAJ, Wave, Baroness O’Loan, the Pat Finucane Centre and NIHRC.

One welcome development, in recent days, is the involvement of Jamie Bryson in his letter to the News Letter (‘Loyalists should flood the legacy commission with demands for investigations into killings by the IRA,’ August 19) encouraging non-nationalist victims’ families to use the good auspices of ICRIR. He has broken the silence of unionism in that quarter and is also putting it to legacy practitioners to consider serving their clients’ interests in different ways. Hopefully army families will follow suit.