The Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 and the Irish government response

ARINS blog article by Diane Duggan, a barrister practising in Dublin and a member of the Bar of Ireland Human Rights Committee.

5 January, 2024

How post conflict societies deal with legacy issues is one of the most complex questions that emerges in the aftermath of violence. Ireland is no different and the most robust attempt yet by the British government to draw a line under the Troubles has now resulted in Ireland taking the United Kingdom to the European Court of Human Rights (ECtHR) for only the second time in over five decades. Such a step is being taken after much deliberation by the Irish government. Their formal decision was long anticipated, but was not announced until just four weeks before the deadline. There is much at stake. Taking the UK to the world’s oldest human rights court could impact years of carefully managed diplomacy at a time when the relationship between the two governments has plummeted. What is at stake and what might such a case involve?

How Northern Ireland has dealt with the legacy of the Troubles to date

Despite numerous multilateral agreements including the Good Friday Agreement/Belfast Agreement 1998 (GFA), to the St. Andrews Agreement 2006, Stormont House Agreement 2014, Fresh Start Agreement 2015 and New Decade New Approach in 2020 – the question of how to investigate and bring to justice those responsible for unlawful killings during the Troubles has neither been fully prescribed nor agreed upon. A fragmented approach through inquests, police ombudsman investigations, civil actions and police investigations has been growing in recent decades and has gradually become more effective. All of these processes were strengthened by the implementation of the European Convention on Human Rights into UK law in 1998 (as agreed under the GFA). This ensured thorough and transparent determinations to emerge in such matters as the Ballymurphy inquest where, in 2021, the 11 victims were found to be innocent and their killings unlawful. The 11 people were shot by British soldiers who stated they were returning fire on Republicans. From 1971 until 2021, that remained the official record. This is what is at stake in legacy issues – determining a rigorous truth recovery process how to tell the truth about history at its most serious level. On 18 September 2023, the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (‘the Legacy Act’) was passed in Westminster despite opposition from all of the political parties in Northern Ireland. The Irish government had urged the UK government (through diplomatic channels) that the Act was a serious deviation from most recently agreed approaches in the Stormont House Agreement 2014 and a breach of the ECHR. The decision by the UK to legislate in such a way was an entirely unilateral one; in contrast to decades of previous collective consultative action by all parties to the GFA since 1998.

What have other jurisdictions done?

Other post conflict societies have dealt with legacy issues in different ways. The approaches can range from the restorative approach of South Africa’s Truth and Reconciliation Commission (1996-2002) to the retributive method implemented by the Nuremburg trials (1945-46), or an agreement to simply ignore the legacy of violence seen in post Franco Spain’s Pact of Forgetting 1971, subsequently addressed in Spain’s Memory Law (2022). Indeed on this island, the Free State passed the Indemnity Acts 1923 and 1924 which granted amnesties for anti-treaty activists and British forces along with the national army. 100 years on, the Legacy Act proposes similar measures of indemnity and immunity in Northern Ireland, through the establishment of the Independent Commission for Reconciliation and Information Recovery (ICRIR), although twenty-first century standards of justice and human rights may yet prove to be the Act’s greatest adversary.

What does the Act propose to do?

The Act proposes to establish a process through the ICRIR that would deal with all Troubles related cases. It defines the Troubles as a period commencing on 1 January 1966 and ending on 10 April 1998. Functions of the ICRIR will include reviews of deaths and other ‘harmful conduct’ during the Troubles and determinations regarding the granting of immunity to certain persons. It will also bring an end to any further inquests or civil actions related to the Troubles.

Critics of the Act include the Council of Europe Commissioner for Human Rights, UN Commissioner for Human Rights, all political parties in Northern Ireland, the Oireachtas Committee on the Implementation of the GFA, Amnesty International, the Northern Ireland Human Rights Commission, the Committee of Administrative Justice Northern Ireland and Church leaders. The foremost complaint is that the Act breaches Article 2 (right to life) of the ECHR by its immunity provisions, where victims’ families have an entitlement to due process and a system that ensures perpetrators can be brought to justice. It is alleged that the Act is in breach of the GFA in that it will limit the ability of people in Northern Ireland to potentially challenge breaches of the ECHR. Furthermore, it is argued that the Act interferes with policing and justice issues which are devolved powers under the GFA, without seeking consent of the legislature to do so (as is required by the GFA). The Northern Ireland Human Rights Commission (NIHRC) has distinguished the South African legacy framework from this Act stating that the Truth and Reconciliation Commission was established following consultation with civil society for one year, it then formed part of a broader reconciliation process and hearings were held in public. In contrast, no such consultative process was carried out prior to the introduction of the Act; it provides the ICRIR with powers to withhold evidence and information from families seeking justice. Where ECHR rights are at stake, procedural aspects are vital. Investigations must be thorough, impartial and independent.

What is Ireland’s position and what is an interstate case?

Under the ECHR, cases are taken against states either by individuals (Article 34) or by other states (Article 33). Since 1953, there have only been approximately 30 interstate cases taken to the ECtHR (the Court has received over one million individual applications since its inception). Ireland took its first interstate case against the UK in 1971 in relation to the actions of the British forces at the outset of the Troubles. The Court ultimately held in 1978 that Article 3 violations occurred (regarding inhuman and degrading treatment but not torture). Ireland applied to the ECtHR in 2014 to revise this decision when new information came to light, claiming that the extent of the trauma suffered amounted to torture and the British authorities were aware of this at the time. The court considered the matter and refused the application in March 2018. The one dissenting judgment was given by Judge Síofra O’Leary, now President of the ECtHR. She criticised the narrow view taken by the Court and suggested it did not bode well for future interstate applicants, and might even reassure future interstate respondents.

An important aspect of the background of Irish government’s decision to take an interstate case is the fact that victim’s families are currently at the initial stages of a challenge to the Legacy Act in the UK courts. If the families’ ultimately want to bring their challenge to Strasbourg, this is how it begins as they must exhaust all domestic remedies first (Article 35 of the ECHR). Thus, in November 2023, their challenge commenced by asserting a breach of ECHR rights in the Belfast High Court. It is likely that this case could go to the UK Supreme Court but this in turn would require substantial time. It is only after this process (in the event of the UK courts finding against the families that there has been no ECHR breach), that families could proceed to take the case to Strasbourg. The procedure for interstate cases is separate but is subject to the same admissibility criteria as cases for individuals; Article 35 of the ECHR requires that all domestic remedies are exhausted first. Nonetheless, the ECtHR has tended to dispense with this requirement in interstate cases where the Applicant State alleges that the measure at issue contravenes the ECHR and the Applicant either does not or need not specifically claim on behalf of individuals.

Potential complexities

For cases involving historical crimes and access to justice, time truly is of the essence. Having now lodged an application, it is not clear how soon the case can be heard by the Grand Chamber of 17 judges. There is currently a backlog of approximately 76,000 cases pending but there are protocols to prioritise important cases, such as interstate cases.

Meanwhile, the ICRIR has been established and aims to commence its work as prescribed by the Legacy Act this summer (2024). It is open to Ireland to seek an interim measure (under rule 39) suspending the operation of the ICRIR until the matter is determined by the Grand Chamber. However, the ECtHR generally only accedes to such applications in cases where there is risk of imminent loss of life (such as ongoing conflict situations). Therefore, it is likely that the ICRIR will continue apace.

There are some complications that may arise for Ireland but overall, Ireland has a very strong case on the merits. There are different approaches to legacy issues (through approaches that will allow victims proceed through established channels in the courts and in public, to devising specific transparent and independent systems that are acceptable to victims, or on the opposite end, to agreements that no further investigations or ‘fault finding’ processes will occur), but regardless of one’s view, this Legacy Act appears to have challenges not least complying with Article 2 of the ECHR, demonstrating adherence to the GFA and that a transparent, independent process will occur. These challenges will be difficult for the UK to overcome as the Legacy Act proposes to deny due process where loss of life has occurred in accordance with Article 2 of the ECHR. The jurisprudence of the court is very consistent and a declaration of incompatibility is likely.

A bigger problem potentially arises however, should Ireland win the case, will the UK comply?

If the case were to continue in the UK courts, an identical potential problem that looms for victims’ families is the prospect of the UK courts accepting and declaring a breach of ECHR law, and the UK government failing to respond to the court’s decision. If both Ireland and individual cases were to be successful in Strasbourg, it is possible in the current political climate in the UK that the result could simply be ignored (which would have implications for the Council of Ministers’ function in overseeing execution of judgments). In the event of a change of government in the UK, the leader of the opposition, Keir Starmer has committed to repealing the Legacy Act. However, there is some scepticism that a full repeal would occur (particularly from Relatives for Justice and representatives of the victims’ families, as emphasised at an Oireachtas Committee hearing on December 7 2023), suggesting some future iteration of the Legacy Act is possible. Even if the UK government does comply with any outcome, it is clear that the ECHR has become something of a lightning rod in the UK where there is bound to be a polarised reaction from elements of society who are divided around the issue of the UK’s continuing participation in the ECHR. This could become a real test for the rule of law generally in the UK and with such high stakes, it could have a conscious or unconscious effect on the jurisprudence of the ECHR.

In announcing their decision to take a case, the Irish government stated there was no other option having exhausted all political options which failed to elicit successful engagement on legacy issues. It is certainly a change of political climate since 1998. This case will undoubtedly be long and could come to determine the tone of Anglo-Irish relations in the years to come.

Despite the politics, this case will be determined on its legal merits. President Síofra O’Leary of the ECtHR said in a speech earlier this year “As a court of law we are charged with interpreting and applying the law of the Convention whilst often navigating very choppy political waters…politics are never far from our courtroom, but politics is not what we do”. Perhaps it is fitting that the issue of the legacy of the Troubles will now be determined by law in a Court that emerged from the aftermath of Europe’s greatest wars.