Fresh from agreeing to surrender the Chagos Islands to Mauritius, the government may be about to reach an equally damaging agreement with the Republic of Ireland in relation to legacy cases in Northern Ireland. Recent statements by the Secretary of State for Northern Ireland, Rt Hon Hilary Benn MP, suggest that the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 is to be repealed. That Act’s emphasis on truth and reconciliation, paired with conditional immunity for those who participate, looks set to be replaced by a renewed emphasis on investigations and prosecutions.
On past form, this approach to legacy cases – which centres on inquests, criminal investigations, prosecutions and trials – is likely to prove divisive. It will yield few successful prosecutions, result in an asymmetry in the investigation of paramilitaries and security personnel, and be of limited use in establishing the truth of what has happened for the majority of Troubles-era victims. In other words, it risks solving nothing – while at the same time raising new barriers to reconciliation.
The Irish government’s support should not be secured at any cost
Why then is the government apparently so determined to proceed in this way? The answer would seem to lie in the combination of the Westminster government’s desire to secure the support of the Irish government and its assumption that the Legacy Act 2023, or any other conditional amnesty, would be incompatible with the ECHR. In a new paper for Policy Exchange, my colleagues and I argue that these factors are likely to have distorted the government’s policy-making in this tricky domain and that parliament and the public should closely question this apparent new approach.
The support of the Irish government would, of course, be helpful in addressing the legacy of the Troubles. The Belfast Agreement provides a structure for ongoing dialogue between the British and Irish governments – a structure that the government in Dublin has bypassed by initiating an inter-state case against the UK before the European Court of Human Rights in Strasbourg. But the Irish government’s support should not be secured at any cost and the UK government should not agree to a return to prosecutions and investigations in order to shut down the Strasbourg litigation.
Unfortunately, Hilary Benn and his colleagues seem to be proceeding on the assumption that defeat before the Strasbourg court would be inevitable – as if the court is bound to rule that the UK has breached Article 2 of the ECHR by enacting the Legacy Act 2023. But the Strasbourg court might find otherwise, not least since the 2023 Act was enacted in order to help secure peace and reconciliation in Northern Ireland. The government seems to be resting its legal analysis on a single Northern Ireland High Court judgment that declared various provisions in the Legacy Act incompatible with Convention rights. This judgment was eminently contestable and it was foolish of the government to choose to abandon an appeal against it in July 2024.
The current government’s assumption that the conditional amnesty established by the previous government’s Legacy Act is indefensible is doubly surprising in view of the relevant history. Not only did the Labour government that agreed to the Belfast Agreement enact several conditional amnesties between 1997 and 1999, but in 2005 the Labour government proposed a categorical amnesty. Introduced at Sinn Fein’s request, the Northern Ireland (Offences) Bill at first addressed only the so-called ‘on-the-runs’ (persons suspected of terrorism but never charged as well as persons charged or convicted who had escaped), but was later widened to include security force personnel (at which point Sinn Fein ceased to support it). Parliament did not enact this proposal, with the government instead sending out hundreds of ‘comfort letters’ to the on-the-runs, a practice that only came to light in 2014 with the collapse of the trial of John Downey for the 1982 Hyde Park bombing.
Parliament should ask the present Labour government whether, and if so why, it now thinks that the Blair-era 2005 legislative proposal was legally and morally indefensible. Parliament should also ask Benn whether he has challenged the Irish government to defend its own approach to legacy cases. Why since 1998 has there been no sustained attempt on the part of the Irish state to investigate and prosecute legacy cases? What is one to make of former Irish Tánaiste, justice minister and attorney general Michael McDowell’s references to the Irish government’s informal decision not to investigate Troubles-related cases? How is the Irish government’s approach to legacy compatible with its commitment under the Belfast Agreement to bring forward measures that ‘would ensure at least an equivalent level of protection of human rights as will pertain in Northern Ireland’?
If the Irish government has chosen not to investigate and prosecute Troubles-related cases, this may well be the right policy, although one might have expected it to be sanctioned by law. What seems extraordinary is for the Republic of Ireland to insist that the UK apply a standard that it does not itself meet. What would be even more extraordinary is if this UK government now agrees.
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