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In a move that has so far flown under the radar, Ireland has launched a legal challenge against the UK at the European Court of Human Rights (ECHR) over plans to grant immunity to those who committed murders and torture during The Troubles.
The case, launched on 19 January, targets the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 – marking a rare instance of a country directly challenging another’s primary legislation on human rights grounds. It was spotted by legal writer David Allen Green.
The announcement was made quietly, through a tweet linking to a press release, but its implications could be far-reaching.
This action by Ireland reflects the strong links between the European Convention of Human Rights (ECHR) and the Good Friday Agreement, the landmark 1990s peace accord.
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The ECHR is integral to this agreement as it provides both nationalists in Northern Ireland and the Irish Government with the means to uphold basic human rights standards, independent of the UK Parliament and government’s influence.
Now, Ireland is arguing that the principle has been undermined by the green light given to acts of murder and torture through granting immunity to participants in The Troubles.
Before the Act’s passing last year, the Irish Times noted that all of the North’s five main political parties, as well as relatives of those bereaved by The Troubles and victims and survivors’ groups and human rights organisations, opposed the legislation. The United States and United Nations also condemned the bill.
The looming legal challenge comes as the Conservative-right steps up its rhetoric calling for the UK to withdraw from the ECHR. Allen Green argues that they are doing so without fully considering or discussing the potential impact on the Good Friday Agreement and the UK-Ireland relationship.
The legal action, an “inter-state” case, is an unusual form of legal challenge at the ECHR. Typically, cases before the court involve individual applicants against member states, rather than one member state confronting another. However, Ireland’s decision to target the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 marks a direct confrontation with UK primary legislation.
Former Taoiseach Micheál Martin, now Deputy Head of the Irish Government, said: “I regret that we find ourselves in a position where such a choice had to be made.”
He hit out at the UK Government pursuing legislation “unilaterally” rather than working with the Irish Government or cross-party on the island.
“The British Government removed the political option and has left us only this legal avenue,” he said. “The incorporation of the European Convention on Human Rights into Northern Ireland law is a specific and fundamental requirement of the Good Friday Agreement. Since the UK legislation was first tabled, the Government have been consistent that it is not compatible with the Convention. I used every opportunity to make my concerns known, and urged the British Government to pause this legislation.”
Martin added that the provisions in the Act, which allow for the granting of immunity, have the effect of “shutting down existing avenues to truth and justice for historic cases, including inquests, police investigations, Police Ombudsman investigations, and civil actions”.
“Even in cases in which immunity is not granted, ‘reviews’ by the proposed body, the Independent Commission for Reconciliation and Information Recovery (ICRIR) are not an adequate substitute for police investigations, carried out independently, adequately, and with sufficient participation of next of kin,” he added.
The Irish Government’s case is that Westminster’s NI Troubles Act stands in direct opposition to key human rights principles in potentially sanctioning atrocities.
But in a statement at the end of 2023, when it became clear the Irish Government would bring such a case, Westminster’s Northern Ireland Secretary Chris Heaton-Harris MP said that the UK Government “profoundly regrets” the decision taken by the Irish Government, which he branded “unnecessary”.
“The decision comes at a particularly sensitive time in Northern Ireland,” he said. “The UK Government urged the Irish Government, before considering action, to engage directly with the [Reconciliation] Commission to understand better its plans for the implementation of the legislation.”
And he dismissed the Irish Government’s referral to the Stormont House Agreement, claiming that “the reality is that there was no cross-party consensus or agreement to the practical implementation and out-workings of that agreement”.
He said the Irish Government’s case was undermined by the fact that “at no time since 1998 has there been any concerted or sustained attempt on the part of the Irish state to pursue a criminal investigation and prosecution-based approach to the past”.
Successive UK and Irish governments during the peace process “worked closely together on a range of initiatives which have provided conditional immunity and early release from prison,” he added.
Should the Strasbourg Court find that the UK has violated the ECHR with this primary legislation, the political fall-out could be significant.
While the ECHR cannot nullify an Act of Parliament, a ruling against the UK would expect the Government to undertake remedial action – a prospect that would likely spark considerable controversy within the Conservative Party.
This case is unlikely to be resolved quickly, with a judgment likely not due for three to four years from now – making it potentially a problem for a future Labour government. But it could become a fiery political debate in the meantime.
Ireland’s Case: The ECHR Summary
“The application concerns [the UK’s] Northern Ireland Troubles (Legacy and Reconciliation) Act 2023, which was signed into law on 18 September 2023. The stated purposes of the Act are to address the legacy of the Troubles – a conflict in Northern Ireland that lasted from the late 1960s to 1998 – and promote reconciliation.
“The Irish Government argues that certain provisions of the Act are not compatible with the European Convention. They rely on Articles 2 (right to life), 3 (prohibition of torture and inhuman or degrading treatment), 6 (right to a fair trial), 13 (right to an effective remedy), and 14 (prohibition of discrimination).
“The Irish Government alleges, in particular, that sections…of the Act guarantee immunity from prosecution for Troubles-related offences, provided that certain conditions are met, contrary to Articles 2 (right to life) and 3 (prohibition of torture and inhuman or degrading treatment) of the Convention.
“[In addition] Parts 2 and 3 of the Act replace current mechanisms for information recovery with respect to Troubles-related offences (including police investigations and coronial inquests) with a review by a newly-established Independent Commission for Reconciliation and Information Recovery, contrary to Articles 2 (right to life), Article 3 (prohibition of torture and inhuman or degrading treatment) and Article 13 (right to an effective remedy).
“[The Irish Government also argues] that section 43 of the Act prevents both the initiation of new Troubles-related civil actions before the courts and the continuation of civil actions not commenced before 17 May 2022, contrary to Article 6 (right to a fair trial) read alone and in conjunction with Article 14 of the Convention (prohibition of discrimination).”
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