The High Court in Belfast has ruled that British Direct Ruler Peter Hain acted unlawfully when he changed the nature of an inquiry to one which enables the British Crown to keep evidence secret.
Unionist paramilitary leader Billy Wright was killed in 1997 by the republican INLA inside Long Kesh prison in circumstances which led to allegations that prison warders colluded in the killing.
The Inquiry into his killing was initially set up under the Prisons Act, but Mr Hain later converted it to be held under the Inquiries Act 2005 after it was rushed through Parliament.
The Inquiries Act 2005 gas been strongly criticised by human rights groups for allowing information considered harmful to British national interests to be suppressed.
Despite the ruling, the future form of the inquiry has still to be determined as Justice Deeny said he would give lawyers time to study his 40-page judgment before deciding on the appropriate remedy to be granted to 72 year-old Mr Wright.
Mr Justice Deeny held that Mr Hain failed to take into account the important and relevant consideration that the independence of such an inquiry was compromised by Section 14 of the 2005 Act which gives a government minister power to terminate the inquiry at any time.
He said Mr Hain was wrongly advised that an equivalent power existed under the Prisons Act.
The judge said that as the decision-maker, Mr Hain did not direct himself nor did he have called to his attention, “the novel and unrestricted power given to him and his successors as ministers in a Northern Ireland administration.
“A wholly new power exists under Section 14 inconsistent with past law and practice.”
The judge allowed that Mr Hain may not have been properly informed of the issue by his officials.
“He ought to have been advised, at the least, that there was a seriously contentious issue relating to the powers under Section 14,” he said.
The Wright inquiry, along with others into the murders of Pat Finucane, Rosemary Nelson and Robert Hamill, was set up following an investigation by retired Canadian judge Peter Cory into allegations of collusion by agents of the British Crown.
The High Court has also recently ruled that Hain acted illegally in appointing the Victims Commissioner, while the British parliament recently decided to look again at his decision to put members of Protestant marching organisations onto the Parades Commission, which is supposed to adjudicate on parade routes.
But the ruling has returned focus to the Inquiries Act, one of the most controversial laws of recent years. It is ventral to the stand-off between the British government and the family of Pat Finucane over the public inquiry into the lawyer’s murder, arguably the most controversial of the recent conflict.
The Inquiries Act was rushed through Parliament last year, just before the general election, to limit the independence of an inquiry and ensure greater secrecy.
Senior judges on three continents have joined those raising doubts about the law.
It was notable that at the time the law was passed, the British government had set up three of its four promised collusion inquiries; the inquiry in Mr Finucane’s murder was deliberately held back until the law could be passed.
Since its passage, the Finucane family has refused to cooperate with the proposed inquiry, and the Government has been unable to find a chairman.