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It may be time for a less diplomatic approach with UK over Legacy Bill

Irish Government should consider taking UK to European Court of Human Rights over proposed legislation

The Northern Ireland Troubles (Legacy and Reconciliation) Bill is currently on a fast-track at Westminster. It proposes to halt criminal investigations, civil proceedings, inquests and police ombudsman investigations into Troubles-related offences. In substitute, the Bill provides for an “Independent Commission for Reconciliation and Information Recovery” to carry out “reviews” of conflict-related deaths and serious injuries.

As prime minister Boris Johnson has frequently made clear, the real driver for this Bill is a desire to prevent criminal investigations and prosecution of British soldiers who served in Northern Ireland. The sweeping general amnesty proposed last year has been replaced with a scheme for conditional immunity but the bar could not be set much lower. If an applicant believes that they are telling the truth, then immunity from prosecution “must” be granted.

In 2014, the Stormont House Agreement was signed by the British and Irish governments and four of the five local political parties. Since then, I have been working with colleagues at Queen’s University Belfast and the Committee on the Administration of Justice to find legally and politically viable solutions to the challenges that have arisen in relation to its implementation. This included drafting a “Model Bill” to showcase what a human-rights-compliant version of the legacy legislation might look like. Throughout we remained in “problem-solving” mode, seeking pragmatic and creative accommodations compatible with international human rights law. In 2020, the agreement brokered by Simon Coveney and then secretary of state Julian Smith to restore devolution promised to legislate on legacy within 100 days. Smith was subsequently sacked and the UK government has now unilaterally abandoned the commitments made in the Stormont House Agreement.

Indifference to previous agreements on the part of the current British government is nothing new. What is more surprising is the recent ill-informed chatter in this jurisdiction about the need for those north of the Border to “draw a line under the past” and “just move on”. Three things get in the way of this argument. First, international human rights law is increasingly intolerant of amnesties. Those introduced in Chile, Argentina and Peru have all been unpicked in the courts in order to hold human rights violators to account. In particular, there is an intolerance for immunity schemes that provide cover for impunity by preventing effective investigations. Reviewing the legal requirement under the European Convention on Human Rights (ECHR) to provide an independent and effective investigation into unlawful killings and serious injuries, the Northern Ireland Human Rights Commission has already stated that “this Bill is substantially, in fact almost certainly fatally, flawed”.

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Second and related, the ability to go to court in Northern Ireland to argue that ECHR rights have been breached is explicitly guaranteed in the Belfast Agreement. Once enacted, this Bill will prevent families from making such arguments in relation to conflict-related offences. Flouting the hard-won devolution of policing and justice, the Bill enables the British government to reach deep into the operation of the Northern Ireland courts, policing and prosecutions.

Third, there is that awkward issue of public confidence. There is widespread opposition to these proposals right across both the political spectrum and the victims and survivors sector. In 2018, the vast majority of the 17,000 submissions to the government’s own public consultation confirmed broad support for the implementation of the Stormont House Agreement and opposition to an amnesty.

The UK government’s rationale for introducing this legislation is that “the current system” is not working. We are now beginning to wonder if in fact judicial and police investigatory procedures (as reflected, for example, in the recent Ballymurphy inquest and Office of the Police Ombudsman for Northern Ireland reports on collusion) have in fact been working rather too well. Everyone accepts that successful conflict-related prosecutions will be few and far between. The real value of proper investigations, however, is the type of information that has come to light through “truth recovery with legal teeth”.

It is notable that an oral history archive, a memorialisation strategy and academic research on patterns and themes are now front and centre of the UK government’s proposals. Of course, such work is vital. It could usefully probe the deep and tangled roots of our conflict (amplifying unheard voices, rupturing neat narratives and illuminating the complex ways in which class, race, gender and geography shaped experiences). But any self-respecting historian knows that, to have any hope of success, such work must be independent. Instead, the secretary of state proposes to appoint “designated persons” and to then decide which of their recommendations to take forward. As is clear from the Bill’s accompanying memorandum, historical research is being deployed as evidence of a reconciliatory approach. This is smart but cynical. It would appear that oral history and memorialisation are being used to provide legal and political cover for the real intent behind the Bill – to shield state actors from effective investigations and to control and filter the narrative on the past.

What, if anything, can be done? There will inevitably be a raft of legal challenges. One possibility that my colleagues and I have begun to consider is the prospect of the Irish Government taking an interstate case to Strasbourg (as occurred with the “hooded men” in the 1970s). Historically, such cases have been rare in Europe given the understandable preference for negotiated, rather than legal, settlements between member states. To their credit, the Irish Department of Foreign Affairs has worked hard to steer the British from this course of action on legacy but their pleas have fallen on deaf ears. Given the consequences for the Belfast Agreement, the rule of law and the rights of thousands of individual victims, the time may be right for a less diplomatic approach.

Dr Anna Bryson is a senior lecturer in law at Queen’s University Belfast and a fellow of the Mitchell Institute for Global Peace, Security and Justice