Is the Legacy and Reconciliation Act really so bad?

Brice Dickson is Professor Emeritus of International and Comparative Law at Queen’s University Belfast and Chief Commissioner of the Northern Ireland Human Rights Commission 1999 to 2005

Few pieces of legislation have united as many opponents as the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023, which received Royal Assent on 18 September. From a wide range of local victims’ groups to UN Special Rapporteurs – via all the political parties in Northern Ireland, the Human Rights Commission, the Law Society, the Irish government, the British Labour Party and the Council of Europe’s Commissioner for Human Rights – the outcry against the law has been loud and angry.

The focus of the criticism is that the Act breaches human rights in two particular respects. First, it puts an end to all civil cases and inquests concerning troubles-related deaths and injuries between 1996 and the Good Friday Agreement. Second, it allows immunity from prosecution for people who disclose the truth about their own troubles-related misdeeds to an Independent Commission for Reconciliation and Information Recovery.

At one level opposition to the Act is very understandable. Many victims of the troubles have yet to see anyone brought to justice for the wrongs that were done to them. Over 1,000 unresolved killings remain on the books of the PSNI’s Legacy Investigations Branch. Several inquests that were in the pipeline will not now be completed because time will be called on them on 1 May 2024 unless all that remains to be done by that date is the issuing of the coroner’s determination. The thought that some perpetrators will be able to get off the hook just by providing some information to the new Commission is to many deeply unpalatable.

Yet we have been here before and on that occasion human rights concerns were hardly mentioned. The Good Friday Agreement allowed the release from prison of convicted murderers even if they had served very short sentences. It ensured that anyone convicted after 1998 for a troubles-related killing could be imprisoned for no longer than two years. It led to immunity from prosecution schemes for people who surrendered illegally held weapons or supplied information about victims who had been ‘disappeared’. Later there was an administrative scheme allowing republican ‘on the runs’ to be told they need no longer fear prosecution if they were to return to any part of the UK.

In the wake of the euphoria around the GFA people voted overwhelmingly, North and South, for turning the page on the past and embarking upon a new future. Now, 25 years later, it seems that human rights obstacles are being raised to the turning of another page. The argument today comes close to saying that human rights concerns must trump everything else, including the public interest in a society moving on from its conflicted past. That was not the position adopted 100 years ago in the Irish Free State, where Indemnity Acts were passed as early as 1923 and 1924 to draw a line under prosecutions and civil suits for deaths and injuries inflicted during the previous eight years. Nor was it the view that prevailed in South Africa in the mid-1990s when, just two or three years after the peace agreement there, the judges on the Constitutional Court, including human rights luminaries such as Albie Sachs and Kate O’Regan, decided that even the human right to justice must sometimes take second place to a society’s need for reconciliation. More prosaically, many states around the world impose limitation periods for the prosecution of serious crimes, including murder. Twenty or thirty years is a common choice, as in France.

Opponents of the new Act seem confident that judges will declare parts of it to be incompatible with the European Convention on Human Rights. The Chief Commissioner-designate of the new Commission, Sir Declan Morgan, has said that he will continue to fill that role only if the Act is not torpedoed in that way – an honourable position. The reality is that the Act’s compatibility with the ECHR is very debatable. Current case law of the European Court of Human Rights is not at all conclusive on whether the immunity from prosecution provision will pass muster. The reconciliation it will supposedly achieve may be hard to verify and some of the crimes that the immunity supposedly covers may be too grave to qualify for that status under the ECHR. There is also a suggestion that on some matters the Commission will not be independent enough for ECHR purposes if some of its staff have previously worked in the policing of Northern Ireland.

On the other hand, the European Court’s case law does not suggest that there is always a human right to have a prosecution conducted when someone is killed or injured, nor to an inquest or to a civil remedy. It does proclaim the right to have deaths and injuries effectively investigated, whether they have been caused by state or non-state actors, but section 13 of the new Act preserves that right if a review unearths evidential leads that justify a criminal investigation and it expressly imposes a duty on the Commissioner for Investigations (whom we now know will be Peter Sheridan) to comply with Convention rights. Under section 5 the new Commission’s powers to obtain information from official sources, including the security services, are extensive and the reports it will produce on the reviews it undertakes have the potential to be revelatory and of substantial comfort to victims’ families. It must also be remembered that victims and survivors are in a better place today than they were just a few years ago in terms of the services and compensation payments they are now entitled to.

At the time of writing some 16 separate challenges to the Act have been lodged in Belfast’s High Court. Many of them must be making the same arguments and will not doubt be consolidated. One problem facing the litigants is that judges in the UK cannot invalidate an Act of Parliament. They can only declare one or more of its provisions to be incompatible with Convention rights. If that occurs the government must then decide how to respond to the declaration and may take years to do so.

Once domestic remedies have been exhausted individuals can then take their complaints to the European Court of Human Rights in Strasbourg. But that too can take a long time and, even if the Strasbourg Court were to find against the UK, the government would again not have to remedy the situation immediately. When the Court ruled in 2005 that the UK must give prisoners the right to vote in elections, the government took 13 years to comply and the relevant enforcement body – the Council of Europe’s Committee of Ministers – was content to be fobbed off with reforms that were more fig-leaf than substantive.

The Irish government could lodge an inter-state case against the UK in Strasbourg, but doing so would be a high-risk strategy in political terms and the outcome would be no more certain than in the case of individual complaints. Ireland’s own Indemnity Acts of 1923 and 1924 would doubtless be cited as embarrassing precedents that the Irish government would need to explain away, not to mention its more recent support for immunity schemes relating to weapons and the bodies of the disappeared. Furthermore, the idea that the European Court might issue an ’interim measure’ to stop the Act from being commenced is not at all a realistic possibility: the legal criteria for such a step are simply not met.

There are other aspects to the 2023 Act, including provisions for memorialising the troubles through oral history and academic research. These too may be problematic in various ways, but cannot be validly attacked on human rights grounds.

The Act might of course still fail: victims and survivors may not request reviews of troubles-related incidents in any significant numbers and, surprisingly, the Commission itself does not seem to have a call-in power. A Labour government might repeal the Act in a year or so’s time, even though it was Tony Blair who championed the Good Friday Agreement and put in place previous amnesties. We would then be back to square one.

At that point do we resurrect the Stormont House Agreement of 2014, which itself envisages bodies similar to those in the new Act, although shorn of bans on legal cases and of offers of immunity? Or could we carry on as we are, with a very small minority of victims benefiting from high-profile prosecutions and thorough inquests but even then obtaining little if any accountability? That would be equivalent to the Republic of Ireland continuing prosecutions and civil suits in the 1970s for crimes that were committed in the troubles of the 1920s and before. Surely there comes a time, except when there have been crimes against humanity, when a society’s conflicted past is best left to historians and film-makers, not to lawyers and judges?

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