Tort, Truth Recovery and the Northern Ireland Conflict

Abstract

Northern Ireland has no effective process to address legacy of the human tragedy of decades of conflict. And yet during that conflict, and especially in the years since the Belfast/Good Friday Agreement 1998, people have employed multiple legal mechanisms to gain information about events which affected them and their loved ones. Human rights challenges, public inquiries, freedom of information requests, police investigations and fresh inquests have all contributed to a patchwork of approaches to truth recovery. The UK Government has long viewed these efforts with suspicion; as the primary state actor involved in the conflict its records provide a much richer source of information about historic wrongs than the recollections of members of clandestine paramilitary organisations. Successive Conservative administrations have characterised many of these efforts as “lawfare”, intended to persecute veterans long after the events in question and undermine public faith in the UK’s Armed Forces. One under-explored element of this complex picture is use of tort in legacy cases. Civil actions, supported by legal aid funding in Northern Ireland, provide a potential avenue for the discovery of information held by public bodies. Even unsuccessful actions can thus contribute new information about the events in question. Many of the harms inflicted during the conflict were torts as well as crimes, and this article assesses the extent to which these civil actions provide an ersatz mechanism for truth recovery, and challenges efforts to curtail such actions as a “witch-hunt”.

Keywords: Northern Ireland Conflict, Truth and Reconciliation, Civil Liability, Disclosure, Limitation Periods, Closed Material Procedures, Human Rights