The Irish government has controversially announced that it will bring an inter-state claim against the UK in the European Court of Human Rights over the Northern Ireland Troubles (Legacy and Reconciliation) Act. Taoiseach Leo Varadkar rather piously claimed that he had ‘no option’ but to bring the case, since the Act breaches the European Convention on Human Rights (ECHR).
The Legacy Act, which has few friends in Northern Ireland, is designed to stop the commencement of new Troubles-era cases and inquests. It offers a conditional amnesty to former members of the security forces and to ex-paramilitaries alike – provided that they co-operate with investigations run by a new body, the Independent Commission for Reconciliation and Information Recovery (ICRIR) – headed by a retired judge, Sir Declan Morgan.
A domestic court challenge against the policy has already been commenced at the High Court in Belfast. This case, which may eventually end up in the UK Supreme Court, will air exactly the sort of human rights challenges that could be heard in Strasbourg. The crux of the case relates to the procedural obligation on states, under the ECHR, to hold an investigation which is independent of those implicated in the event, effective (in the sense of being capable of identifying and punishing perpetrators), prompt and reasonably expeditious, with a ‘sufficient element of public scrutiny’ and the involvement of a victim’s next-of-kin to the extent necessary to safeguard their interests.
Normally, in cases involving individual claims, a domestic court challenge would be allowed to reach its final conclusion before a case could be heard in Strasbourg. The government’s argument is that the Act provides a ‘robust and effective framework’ to allow the ICRIR to discharge the UK’s legal obligations under the Human Rights Act and the ECHR.