The four big drawbacks of the Northern Ireland legacy Bill

The British Government’s controversial Northern Ireland legacy Bill, which was approved by the House of Commons on Wednesday, has four significant drawbacks.

The first obvious drawback of the Bill, which is now set to become law, is that all the political parties in Northern Ireland strongly oppose it. Indeed, it is a breach of faith with those same parties which agreed a quite different approach with the British and Irish governments in the Stormont House Agreement in 2014. One might reasonably believe that almost anything that could unite the fractious Northern Ireland parties is likely to be a good thing. Alas, the Bill seems to have been driven principally by political considerations in London, notably by internal Conservative Party politics.

The second drawback is that the Bill seems, on the face of it, to be incompatible with the UK’s obligations under article two of the European Convention on Human Rights concerning the right to life, which imposes profoundly important obligations on states with a view to vindicating that right by means of robust investigations and procedures. For that reason, the Bill has been strongly criticised by the Council of Europe as well as by the UN High Commissioner for Human Rights. No doubt the Sunak government can round up a few lawyers to give some comfort to its position.

However, the sad reality is that the Bill is shaping up to repeat the Johnson government’s explicitly acknowledged intention, in the context of its Brexit Internal Market Bill, of breaching the UK’s international legal obligations in a “specific and limited way”. Sunak has more generally made some progress in distancing himself from the standards of behaviour of his disgraced predecessor. In this instance, however, he is repeating one of his mistakes.

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Pathways to justice

The Bill’s third drawback is that it is widely believed to be simply the wrong way to address the complex issues involved. The families of the victims of violence as well as survivors, on every side, who should be at the centre of considerations, strongly oppose the Bill. Few of them want to see old men put in prison. It is rather about leaving open the legitimate pathways to justice provided for in the Stormont House Agreement, including inquests and enquiries such as that long promised to the family of murdered solicitor Pat Finucane.

There has been no more eloquent articulation of the sheer wrongness of the Bill than that by the Catholic Church and Church of Ireland Archbishops of Armagh in a joint letter some time ago to the Financial Times. Noting that the Bill’s provisions for immunity from prosecution are set “pitiably low”, they argued jointly that the Bill will not achieve any of its purposes. “On the contrary,” the archbishops pointed out, “it will deepen division and further demoralise all but a tiny minority of those it purports to help.”

The fourth drawback is what the Bill says about the relationship between the British and Irish governments. There is no doubt that the vital trust that for so long characterised that relationship, whimsically squandered during the Johnson years, has been significantly restored by Sunak’s more constructive behaviour. Northern Ireland Secretary Chris Heaton-Harris and his team deserve some credit in that regard.

However, the fact is that the Irish Government’s views on the legacy Bill have been ignored, including its request repeated this week that the Bill should be paused. This illustrates that significant doubt remains about whether Sunak fully “gets” the nature of the British-Irish relationship in relation to Northern Ireland. In particular, he does not appear to grasp the centrality of the “co-guarantorship” that has been at the heart of the peace process and made it possible.

The value of the joint work of successive British and Irish governments was understood by many British prime ministers over several decades. The long-standing deep co-operation between London and Dublin was about many things, including unity of purpose and reassurance to both communities in Northern Ireland. A vital aspect of that co-operation was the pooling of wisdom. Each side’s insights were enriched by the perspective and perceptions of the other. Their joint work over recent decades has not been an optional extra, but rather a precondition for progress in Northern Ireland. Sunak’s approach to the legacy Bill is an example of the more unilateral approach that has gained ground in London.

The entry into force of the Bill will not, of course, be the end of the matter. There will be strong legal challenges including, quite possibly, by the Irish Government. The British Labour Party has promised to repeal the Bill and is likely to have an opportunity to do so before too long. Another fine mess that could so easily have been avoided by openness to wise and well-meaning advice.

Bobby McDonagh is a former ambassador to London, Brussels and Rome