The Northern Ireland Legacy Bill: Reconciliation or restriction?

31 May 2022 by anuragdeb

In 1998, people across the island of Ireland overwhelmingly endorsed the Good Friday Agreement, in a historic decision which signalled hope for a post-sectarian, post-conflict future. The UK Parliament responded to this popular mandate by returning devolution to Northern Ireland. On 24 May 2022, the reverse happened: in the face of vehement opposition from Northern Ireland, the UK Parliament voted to clear the second stage of a Bill that would drastically impact efforts to deal with the Northern Ireland conflict.

The Bill: an overview

There are 4 main parts to the Northern Ireland Troubles (Legacy and Reconciliation) Bill. Part 1 defines ‘the Troubles’, traditionally a phrase used to euphemistically describe the violent political and sectarian conflict which lasted for a little over 3 decades in Northern Ireland. Part 2 establishes a new body, the Independent Commission for Reconciliation and Information Recovery (ICRIR), charged with (among other things) reviewing deaths and certain other ‘harmful conduct’ and granting immunity from prosecution to individuals in exchange for information about those individuals’ potentially criminal conduct during the Northern Ireland conflict. Part 3 largely ends criminal investigations, prosecutions, civil actions, inquests and inquiries (except in specific circumstances). Part 4 provides for the compilation of histories of the Northern Ireland conflict.

Though the Bill’s provisions are complex, this post is not concerned primarily with those provisions. Instead, in addition to the Secretary of State’s statement (under section 19(1)(a) of the Human Rights Act 1998) of compliance with Convention rights, the Bill is accompanied by (somewhat unusually) a 36-page ‘European Convention on Human Rights Memorandum‘, written by the Northern Ireland Office. This Memorandum provides the views of the UK Government on why the Bill is Convention-compliant and this is what will be explored here.

The Memorandum: main points

This post focusses on the Memorandum’s claims that the end of criminal investigations and prosecutions, coupled with a conditional amnesty, are ‘proportionate’ interferences with the right to life and prohibition of torture under Articles 2 and 3 (respectively) of the European Convention on Human Rights (ECHR).

Frequent readers may recall that Articles 2 and 3 have a common procedural element which is not contained in the text of the ECHR: the obligation to investigate breaches of the substantive rights and prohibitions under each Article. The case law of the Strasbourg Court on this procedural obligation is a fairly settled matter, as recognised by the UK Supreme Court time and time again. In sum, the obligation on the part of the State is to hold an investigation which is independent, effective in the sense of being capable of identifying and punishing perpetrators, prompt and reasonably expeditious, with a sufficient element of public scrutiny and involvement of a victim’s next-of-kin (see Jordan v United Kingdom (2003) 37 EHRR 2, [105]-[109]).

It is important to acknowledge that the Memorandum comprehensively sets all of this out. The problem is with its justification of the contents of the Bill within these legal requirements. The ICRIR is presented as the only replacement for criminal investigations (clause 33), with certain police and coronial trappings (clause 5 – disclosure obligations to the ICRIR, clause 6 – ICRIR officers have the powers and privileges of constables and clause 14 – the ICRIR is able to require people to attend and give information). However, with prosecutions rendered almost impossible owing to general and specific immunities (clause 18), the Article 2 requirement that an investigation be effective is impossible to be met. The Memorandum attempts to square this circle by stating that the conditional amnesty regime:

… can be justified as an exception to the requirement to punish those identified as being responsible for a death or life-threatening injury, as a proportionate means of achieving and facilitating truth recovery and reconciliation in Northern Ireland, taking into account current [Strasbourg] case-law in relation to amnesties. (para 22)

However, a closer examination of how the Memorandum takes account of Strasbourg case law reveals a flawed approach. The Memorandum acknowledges the general prohibition on amnesties within the ECHR framework as set out in cases such as Marguš v Croatia (2014) 62 EHRR 17 and Ould Dah v France [2009] ECHR 532 (para 43). There is however reliance placed on two Strasbourg cases for the point that the prohibition on amnesties can admit exceptions: Tarbuk v Croatia (Application no. 31360/10; Judgment of 11 December 2012) and Dujardin v France (Application no. 16734/90; Commission decision of 2 September 1991). Tarbuk was a decision on Article 6 of the ECHR. Croatia had enacted a general amnesty in respect of conduct during the period of war between 1990 and 1996, and the applicant had benefited from this amnesty by having criminal proceedings against him discontinued. He had subsequently filed a claim for compensation in respect of his pre-trial detention (before the discontinuance of proceedings against him), only for the law on compensation to be amended to exclude those who had benefited from the general amnesty. Tarbuk contained no detailed consideration of the Strasbourg Court’s views on whether the Croatian amnesty was compatible with the ECHR, because that question was not in issue in that case. In Dujardin, the European Commission on Human Rights had observed that an amnesty would not per se breach the ECHR unless “it can be seen to form part of a general practice aimed at the systematic prevention of prosecution of the perpetrators of such crimes”, which plainly the Bill aims to do. Moreover, Dujardin had predated the emergence of the Article 2 investigative duty. In these circumstances, the Memorandum’s confident assertion that the conditional amnesty and extinguishment of criminal investigations can be justified with reference to Article 2, is highly suspect. Tellingly, the Memorandum’s claim that Strasbourg jurisprudence “recognises that the use of an amnesty can further the objective of reconciliation” (para 56) refers back to its discussion of cases such as Tarbuk and Dujardin. This circular reference does no more than beg the question of Article 2 compatibility.

The Memorandum adopts its Article 2 reasoning for its equal confidence as regards Article 3 (para 70), so the above critique applies equally to this assertion.

Derogating from the non-derogable?

Article 15 of the ECHR permits a State to derogate from certain rights in exigent circumstances (“war or other public emergency threatening the life of a nation”) and only to the extent “strictly required by the exigencies of the situation”. Notably, the only derogation possible under Article 2 is “in respect of deaths resulting from lawful acts of war”. The UK Government has never designated the Northern Ireland conflict a war; far less has it designated its own actions in the conflict lawful acts of war. Even if it had, no such circumstances exist in Northern Ireland presently which could justify a derogation under Article 2. Moreover, the Bill itself defines ‘the Troubles’ between 1966 and 1998 (clause 1) and thus refers to a previous, not present conflict. Finally, reconciliation, of the kind envisioned in the Bill, or any kind for that matter, is not a reason to derogate from the obligation to investigate suspicious deaths and life-threatening circumstances.

However, the Bill amounts to a permanent, statutory and unlawful (on the international legal plane at least) derogation from the investigative obligation under Article 2 of the ECHR. The Human Rights Act 1998 provides for derogations to be designated by order, and originally contained derogations in respect of Northern Ireland – under Article 5 of the ECHR (right to liberty and security), in terms of the length of time a person suspected of terrorism offences could be kept in custody without charge. This was removed in 2005. No designation order has preceded the Bill.

Of course, this is not to say the Bill is unlawful as a matter of domestic law – if enacted, it would be the product of the same sovereign Parliament as the Human Rights Act. Even the latter’s command to interpret legislation “whenever enacted” in accordance with those ECHR rights contained in the Act, while simultaneously taking Strasbourg case law into account can only go so far.

Rather, as the Bill progresses to the next stage of the legislative process, the concern over its contents is addressed to Parliament. The UK Government has come under recent criticism for announcing legislative proposals which may breach international law (also in respect of Northern Ireland) and the Legacy Bill looks no different. Far from reconciling anything, the Bill as it stands dramatically restricts the human rights framework on which the Northern Ireland peace process was built.