Christopher Stanley sets out the unique legal challenges still facing lawyers in Northern Ireland

Northern Ireland remains a state of exception, characterised by its own particular circumstances which include a heightened security threat (largely ignored by the London media), its own cross-border arrangements (largely misunderstood by the Brexiters) and its own legacy of conflict (largely forgotten by Westminster politicians). The legacy of the conflict – Troubles denotes ‘a little local difficulty’ and an echo of Edmund Burke’s geographical morality and an imperial/colonial uprising – shapes both the present and determines the future in Northern Ireland, this ‘narrow ground’.

The relative stability of Northern Ireland today is based on an international peace treaty: the Belfast Good Friday Agreement 1998. The GFA remains contested by some political interests in the North but guarantees the peace and is inscribed by a commitment to human rights (largely unrecognised by Bill of Rights enthusiasts). This commitment means taking rights seriously, specifically in terms of the legacy of the conflict, Article 2 – the right to life – of the ECHR (and also Article 3 – for the survivors, the victims of torture including ‘The Hooded Men’, and the victims of historical institutional sexual abuse, such as those ‘in the care of’ the Kincora Boys’ Home, exploited by and for the British security forces and services for political gain).

As a society in a peace process in the sense of still moving from conflict to peace, characterised as a society of transitional justice, there are two juridical forms in play – soft and hard justice. ‘Soft’ justice is that which takes the form of reconciliation programmes, including victim support groups, truth commissions, historical retrieval archives, civil society organisations and the like. ‘Hard’ justice is that which takes the form of retribution, reparation and accountability. Both have been the subject of intense consultation in Northern Ireland (the Consultative Group on the Past, the Haass-O’Sullivan Proposals and the Stormont House Agreement among others). None of these initiatives has received cross-party political support or consensus.

The British government has failed to discharge its procedural investigatory obligations following a breach of Article 2 when its security forces and security services are implicated in the violation. There is as yet no state sponsored mechanism to undertake independent investigations into the conflict-related Article 2 violations. Proposed mechanisms – the Historical Investigation Unit (HIU) being the latest – are stymied by lack of money and paranoia regarding National Security. Responsibility for the former shifts between the devolved administration at Stormont and the central administration at Westminster – which during the conflict was in Direct Rule. The paranoia about the latter exists despite what is already in the public domain about collusion between British security forces and services and Loyalist paramilitary organisations in multiple Article 2 violations.

The Package of Measures, the political compromise struck between the British government and the Council of Ministers following the McKerr group of judgments of the ECtHR, has failed. First, the Police Service for Northern Ireland (PSNI) Historical Enquiries Team (HET) was found by the HMIC to be acting unlawfully and not in compliance with human rights standards, and not fit for purpose. Second, the Office of the Police Ombudsman for Northern Ireland (OPONI) overcame credibility problems only to have its budget slashed and face a huge legacy complaint deficit. Third, the 50-plus legacy inquests are mired by lack of resources and sabotaged by the PSNI failure to comply with disclosure orders. Hugh Jordan, the father of Pearse Jordan, shot by the Royal Ulster Constabulary (RUC) in 1992 still waits for an inquest into his son’s death after 24 years.

This is why relatives of the victims and survivors of the conflict – from across the communities in the North of Ireland and including former members of the British security forces and services – resort to litigation in their quest for truth, justice and accountability – soft and hard justice.

Legal strategies to achieve these aims include:

• Public law challenges by way of judicial review to challenge Stormont and Westminster to discharge the obligations under Article 2, through a resourced human rights compliant conflict-related investigatory mechanism;
• Public law challenges by way of judicial review challenging the independence of agencies such as the PSNI to undertake human rights compliant investigations into conflict-related violations;
• Public law challenges against the Attorney General for Northern Ireland for failing to order new inquests into conflict-related deaths;
• Public law challenges against section 6 closed material proceedings in civil actions relating to the conflict-related claims;
• Civil law actions against the PSNI, the MOD and NIO for historic negligence including misfeasance in public office and other torts during the conflict
• Civil law actions against named individuals for historic negligence while in public office during the conflict – including writs issued to Sir Frank Kitson, the architect of counter-insurgency strategy in the North of Ireland between 1970- 1972;
• The development of civil claims for transgenerational PTSD for relatives of victims of the conflict;
• The use of FOIA and the appeal process to access state held information on matters relating to the government practice and policy of the conflict;
• Applications to the ECtHR to revisit the Ireland v UK judgment on behalf of The Hooded Men, based on new threshold for torture and new archival material;
• Applications to the ECtHR for a pilot judgment on the failure of the British government to implement an investigatory mechanism to discharge its Article procedural obligations;
• The use of civil actions to obtain discovery and disclosure of material to feed into public law challenges and legacy inquest applications;
• The use of international law agreements to challenge the British government failure to secure compensation for Libyan supplied Semtex used during the conflict;
• The development of pleadings including collusion as a state/administrative practice using the template of the Iraqi litigation;
• Civil law challenges to limitation arguments in relation to conflict-related claims;
• Judicial review challenges using Article 3 on behalf of the survivors of historic child sexual abuse while ‘in the care of’ the Kincora Boys’ Home and exploited in the blackmail of Loyalist politicians.

Northern Ireland, with its legacy of lawyering under fire, is a challenging, exasperating, frustrating, rewarding and exciting jurisdiction in which to practice law on behalf of relatives of victims and survivors existing in the shadow of conflict. It is an arena where contested political, moral and legal narratives are being worked through as a process toward a lasting peace, scored through with truth, justice and accountability – and a commitment to the human rights for all members of its society.
Christopher Stanley is a litigation consultant at KRW Law in Belfast