Legacy act under attack

Consequences of new Troubles legislation could be felt this week

The Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 received royal assent on Monday night and is now law. Apart from some definitions and powers to make regulations, it has not yet been brought into effect. But its impact may be felt as early as this week.

As I explained earlier this month, the legislation offers conditional immunity from prosecution for Troubles-related offences to individuals who cooperate by providing information to a new Independent Commission for Reconciliation and Information Recovery (ICRIR). The reforms will also prevent any new Troubles-era inquests being held.

The Council of Europe’s committee of ministers began a three-day meeting in Strasbourg yesterday. These meetings, held quarterly, are attended by diplomats from the 46 member states who are known as deputies. Their job is to “oversee the execution of judgments and decisions from the European Court of Human Rights”. When countries fail to implement court rulings, the deputies agree to express varying degrees of displeasure.

One group of cases under consideration this week relates to the United Kingdom. It’s known as the McKerr group.

Gervaise McKerr was shot dead by police officers in Northern Ireland in 1982. The human rights court decided as long ago as 2001 that the UK authorities had failed to carry out a prompt and effective investigation into the circumstances of his death. This was a breach of the procedural obligation implicit in article 2 of the human rights convention, which protects the right to life.

In assessing the UK’s response to this and similar rulings, the deputies expressed “serious concern” over the past year about the UK’s legacy bill. At its meeting three months ago, the committee of ministers

strongly reiterated its calls upon the authorities to reconsider the conditional immunity scheme in light of concerns expressed around its compatibility with the European convention.

It also reiterated its serious concern about the proposal to terminate pending inquests that have not reached substantive hearings, and its call on the authorities to reconsider this proposal and allow the limited number of pending legacy inquests to conclude.

The UK government said it was confident it would be able to demonstrate at this week’s meeting that it had “sufficiently responded to concerns about the bill’s compatibility with the [human rights] convention”.

Concerns

We shall learn on Friday whether the deputies agree. But I would be surprised if they believed their concerns had been met by recent government amendments to its bill.

Dunja Mijatović

Dunja Mijatović, the Council of Europe’s commissioner for human rights, said in June that the legislation would violate the UK’s international obligations and put victims’ rights at risk. Noting that “several judgments related to the legacy of the Troubles have been waiting to be executed for 20 years or more,” she thought the bill, if passed in its current form, “would make the prospect of meeting the requirements of the court’s case-law more remote than ever”.

Judicial review

And now there are to be fresh challenges. The Belfast solicitors Madden & Finucane, who act for the McKerr family and others bereaved during the Troubles, announced last Friday that they had lodged judicial review proceedings “challenging the lawfulness of this legislation and its compatibility with international human rights standards”.

Another firm, KRW Law, said it had applied for “emergency judicial intervention”.

It should not be too difficult to prove that the new act does not meet human rights standards — although the UK government has done the best it can to put forward a counter-argument. And it’s worth remembering that Pat Finucane, one of Madden & Finucane’s founding partners, was shot dead by loyalist paramilitaries in front of his wife and young children in 1989. There has still not been an article 2-compliant inquiry into alleged government collusion in Finucane’s death and his case is also under consideration by the committee of ministers.

What I find harder to understand is how the applicants for judicial review can simply challenge the lawfulness of primary legislation passed by a sovereign parliament. But no doubt there will soon be specific decisions taken by ministers which may form the basis of legal action.

Madden & Finucane say they will “also be lodging applications for families directly affected by this legislation to the European Court of Human Rights in Strasbourg over the coming weeks”.

That may also be premature. Article 35 of the human rights convention says the Strasbourg court may only deal with individual applications “after all domestic remedies have been exhausted”.

But there is one way of avoiding the need to take a case through the courts of the United Kingdom. Article 33 deals with what are called interstate case. It says that any state that has signed the convention may refer any alleged breach of the convention by another member state to the court.

I mentioned in my earlier piece that the Irish foreign minister Micheál Martin was taking legal advice on whether to launch proceedings against the UK. Irish government lawyers would no doubt have wanted to wait until the legislation was passed before finalising their advice. But, having raised expectations, it would be strange if Dublin backed down now. Ireland is due to speak at the UN General Assembly meeting on Friday.

Under article 46 of the convention, member states undertake to abide by the final judgment of the court in any case to which they are parties. As far as I know, that applies to an interstate case in the same way as it does to those brought by individuals.

Mijatović has reminded us the UK has still not complied with judgments delivered more than 20 years ago. As we saw with Russia, the ultimate sanction for non-compliance is expulsion from the Council of Europe.

That’s not likely and I don’t think any serious political leader in the UK would welcome expulsion — not even those who might precipitate it by seeking to withdraw from the human rights convention. It was certainly not what parliament intended when it passed an act with “legacy and reconciliation” in its title.

But it will take all the diplomatic skills the UK can muster to persuade Europe and the wider world that its “finely balanced political and moral choices” will put right what went so very wrong during the years of the Troubles.

Update 22 September: the ministers’ deputies have published their decisions.

• Recalling their concerns about the Northern Ireland Troubles (Legacy and Reconciliation) Bill’s compatibility with the European onvention and their repeated calls upon the authorities to sufficiently amend the bill, if progressed and ultimately adopted, to allay those concerns; and

• noting with interest the amendments to the bill tabled by the government since their last examination of the cases which, in particular strengthen the participation of the next-of-kin of victims and public scrutiny in the work of the ICRIR, the deputies

• noted however that a number of issues relating to independence, disclosure and the initiation of reviews remain uncertain; urged the authorities therefore to provide additional information on the planned practical and other measures to ensure that these issues are fully addressed, including: to ensure the independence of the ICRIR appointment process; to further strengthen in practice the procedural safeguards for victims and their families; to develop clear disclosure protocols from all relevant authorities to the ICRIR; and to ensure referral to the ICRIR of all cases that might engage articles 2 and 3 of the European convention;

• deeply regretted furthermore that, while the cut-off date has been extended to May 2024, the proposal to terminate pending inquests remains in the bill; expressing profound concern that, if effective handover measures are not put in place, this may lead to further delay and distress for individuals, including some of the individual applicants in this group of cases, urged the authorities to consider taking additional practical measures to ensure that as many inquests as possible can conclude before 1 May 2024 and that all of the preparatory work done on these pending cases is not lost in any transfer to the ICRIR; and

• underlining again the importance for the success of any new investigative body, particularly if aimed at achieving truth and reconciliation, of gaining the confidence of victims, families of victims and potential witnesses, acknowledged the steps taken by the authorities in an attempt to engage with victims and stakeholders over the past twelve months; noted with deep regret nevertheless that despite those efforts, support for the ICRIR remains minimal; strongly encouraged the authorities to take all necessary additional measures to garner public trust and the confidence of victims, their families and all stakeholders; they

• reiterated their serious concern about the proposed conditional immunity scheme which risks breaching obligations under article 2 of the European Convention to prosecute and punish serious grave breaches of human rights, and seriously undermining the ICRIR’s capacity to carry out effective investigations within the meaning of article 2 of the convention; deeply regretted therefore the authorities’ decision not to support the House of Lords’ amendment to remove the scheme from the bill and its subsequent rejection; strongly urged the authorities to consider repealing the immunity provisions, [my emphasis]

• invited the chair of the committee of ministers to send a letter to the United Kingdom authorities in order to raise the concerns above; and

• decided to resume the examination of this group of cases at their meeting in June 2024 at the latest.