Colin Murray is a Professor of Law at Newcastle University. Anurag Deb is a PhD candidate at Queen’s University Belfast and a Legal Executive at KRW Law.
If there is one thing over which the UK Government can give itself a pat on the back in Northern Ireland, it is the bringing together of our fragmented and polarised political spectrum in vehement opposition to the heavy-handed imposition of a swingeing Budget and for the passing of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023. On 26 September, Professor Brice Dickson defended the Act and what it aims to achieve. This is a significant intervention, given who Dickson is (a former Chief Commissioner of the NI Human Rights Commission and member of the Policing Board) and his considerable contribution in the field of human rights in Northern Ireland (both its practice and its scholarship) for decades. His arguments, therefore, need to be scrutinised with care and respect. And, after such scrutiny, the Legacy Act still emerges as a deeply flawed statute.
Dickson makes three main arguments in his piece. First, he looks at the outcry against effective amnesties under the Legacy Act and recalls ‘we have been here before’, referencing legal provisions on early release from prison for Troubles-related offences, laws around the provision of information on victims who had been ‘disappeared’, laws around arms decommissioning and the ‘on the run’ letters. Let’s consider each of these pre-existing arrangements in turn.
On the early release scheme, our starting point is that early release from prison is not functionally or conceptually the same as being entitled to avoid the operation of the criminal justice system altogether. An obvious difference is that the early release scheme is a reduction in the custodial part of sentences. An offender is still able to be investigated, charged, tried and convicted beyond reasonable doubt. The Legacy Act by contrast suppresses all of these processes, if the person concerned provides relevant information (to the best of their knowledge and belief) to the Independent Commission for Reconciliation and Information Recovery (ICRIR) – the body established under the Act for dealing with reviews of conflict-related deaths and other harmful conduct. Early release declarations may be revoked in some circumstances; by contrast, a true immunity from prosecution is not easily revocable, at least not without considerable political and legal cost, because of what such immunity represents. The loss of personal liberty is among the harshest consequences the law can impose. Thus, when a legal entitlement is put in place allowing some individuals to avoid not just prison, but the entire process which might lead to it, this arrangement will be carefully guarded by everyone who benefits from it. Even if a future government seeks to repeal the Legacy Act (as the Labour party have pledged to) such rights, once generated and relied upon, are almost impossible to remove once operative.
Likewise, the laws established with regard to the provision of information on victims’ remains are not amnesties. Instead, they prevent the information provided with regard to the remains of victims from being admissible in criminal trials. This may lead to the collapse of a trial, but it may not. Either way, no part of the relevant law explicitly prevents anyone from being charged, tried or convicted of anything. Laws around decommissioning are amnesties, in the sense that prosecution of relevant offences is completely barred, but these were time-limited, providing a limited window of opportunity for decommissioning, after which the people would no longer be eligible for amnesties. Moreover, these amnesties did not extinguish civil liability in relation to weaponry, as the Legacy Act does.
The analogy with ‘on the run’ letters is also problematic on its own terms. No part of the on-the-run scheme could be described as having amounted to an amnesty. Relevant individuals’ names would be reviewed by the police, who would submit evidence to the Public Prosecution Service for its determination as to whether these individuals were ‘wanted’ for questioning or prosecution, or not. If they were not wanted, a letter would be written to that effect, subject to a caveat that a change in circumstances or the emergence of new evidence or intelligence may lead to arrest. As the Hallett Review noted, quite emphatically, ‘[t]he [on the run] scheme did not amount to an amnesty for terrorists. Suspected terrorists were not handed a “get out of jail free card”.’
The Legacy Act, by contrast, contains provisions obliging the ICRIR to grant immunity from prosecution if certain conditions are fulfilled. This immunity can be ‘specific’, in relation to identified offences, or ‘general’, in relation to a category of such offences, or ‘specific and general’, which combines both previous categories. The immunity cannot be revoked, unless the immune individual is subsequently convicted of having supplied a false statement to the ICRIR when requesting immunity. The near absolute nature of this amnesty moves even beyond the (mostly) arms and explosives-related offences to which the decommissioning amnesty instituted in 1997 applied. Instead, the Legacy Act’s amnesty gives individuals an effective ‘get out of jail free’ card for a potentially vast array of offences.
However, Dickson goes on to state (his second major point), regardless of the sweeping nature of the Legacy Act, we should bear in mind what happened in the Irish Free State in the 1920s and in South Africa in the 1990s. Respectfully, the Irish Free State’s actions in legislating to provide for sweeping amnesties in respect of the Civil War in the 1920s predated any international human rights document by around two decades (and three decades in the case of the European Convention on Human Rights). They also came in the immediate aftermath of mutual amnesty arrangements being agreed between Ireland and the UK with regard to the War of Independence. The important question to ask is thus would Ireland be able, in light of its international obligations, to replicate such blanket legislative action in 2023?
Instead, if we are left judging our present-day actions by the standards of a time before human rights were widely regarded as being both worthy of embedded national and international protection and as providing a touchstone for global diplomacy and participation, bringing with them the cache of being a rights-respecting country, then we need to acknowledge how seriously we have regressed. South Africa’s process of truth and reconciliation, meanwhile, has not escaped criticism as having furthered perpetrator impunity over any genuine reconciliation. Importantly, the South African Truth and Reconciliation did not extinguish civil liability generally, like the Legacy Act does: instead, under section 21 of the Promotion of National Unity and Reconciliation Act 1995, civil and criminal liability applied normally to people refused an amnesty. It is true that the Legacy Act, as amended, allows for immunity to be revoked (a) where someone misled the Commission or (b) where someone is convicted of a subsequent terrorist offence. But given that the Act prevents alternate modes of investigation in conflict related cases, and the operation of the ICRIR is temporary, the supposed threat of revocation is a chimera.
Dickson rounds off his comparative exploration with the ‘prosaic’ observation that many countries cap the amount of time in which a serious criminal offence can be prosecuted. This is true, but the UK most certainly is not part of this club, and another reason why the Legacy Act is deeply problematic. It fits within a set of modifications to the criminal justice system, from the Diplock Courts onwards, which can readily be imposed upon Northern Ireland even if they would not be contemplated in other parts of the UK.
Dickson’s third major point to question whether the Legacy Act breaches the European Convention on Human Rights (the ECHR). There are two main points he makes here: that the Legacy Act may not be found to breach the requirements of the Convention (litigation is already in train) and that, even if it does, the remedies for any such breach available domestically will not, by themselves, prevent the Act from operating. On the first point, space precludes a detailed exploration of the cases in the European Court which speak to the issue of amnesties, but taking Dickson’s argument at its strongest, the Court’s approach has not always been consistent, and much of the jurisprudence does point to a space in which certain circumstances in which amnesties, even for serious offences, could be acceptable.
A major theme emergent from these cases is, nonetheless, that a blanket amnesty will amount to a breach of the ECHR. This would suggest that if judges accept the amnesty under the Legacy Act is conditional on meaningful participation in truth recovery processes and not an irrevocable blanket amnesty (i.e. an unconditional amnesty), then the Act may survive scrutiny against the Convention’s terms. But the headline nature of the amnesty will not be considered in isolation from questions such as the degree of functional independence enjoyed by the ICRIR, the lack of amnesty-related information for victims and their families (which could go some way towards providing truth to victims) and the exclusion of not just criminal but civil liability under the Legacy Act. The European Court, moreover, has adopted a context specific approach to amnesties; it has given more leeway to the application of rights where measures are adopted as part of a reconciliation process. It is very difficult for the UK Government to make credible claims in this regard in light of the widespread dissatisfaction with the Legacy Act arrangements within Northern Ireland (a point to which we will return below) or that, 25 years on from the 1998 Agreement, an amnesty on these terms is necessary to ward off a threat to peace.
On the second point, Dickson is correct to highlight the limitations of domestic remedies – the Legacy Act itself cannot be invalidated by any domestic court (a hallmark of the parliamentary sovereignty which acts as the bedrock of the UK constitution) and nor can any of its provisions be struck down under the Human Rights Act 1998. Judges may, under the 1998 Act, either read the Legacy Act’s provisions compatibly with the Convention as far as possible or, if this is not possible, declare those provisions incompatible (the focus then shifts onto the government to rectify the incompatibility or do nothing, as the UK Government did for years with regard to adverse judgments over restrictions on prisoner voting). This has generated considerable pressure upon the Irish Government to bypass the need for protracted litigation before the domestic courts of Northern Ireland and bring an inter-state action against the UK directly to the European Court of Human Rights. The NI Human Rights Commission, moreover, has highlighted its doubts as to the compatibility of the legislation with the human rights safeguards established under Article 2 of the Northern Ireland Protocol (a mechanism which could permit the domestic courts to disapply elements of the legislation, as we discussed here).
Finally, Dickson asks what might be done if the Legacy Act is declared incompatible in any way: ‘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?’ These are questions worth asking, both for the fact that there are alternatives to this deeply contested measure and for the glaring lack of attention on how (if at all) the existing options operating before the Legacy Act entered force served victims.
Anyone who has been a part of litigation in the High Court will know how lengthy, complex, costly and exhausting that process is. Now let’s multiply this complexity several times for Legacy litigation. This sounds like an argument in support of Dickson, but it is not. In Legacy cases, vast quantities of information necessary to resolve claims are held by the state and airing them in the full glare of a public trial is often completely out of the question. This leads to either two outcomes: the case cannot proceed and dies, or the case proceeds by way of a process of secret hearings from which the public, the plaintiff and the plaintiff’s ordinary legal representatives are excluded – the so-called Closed Material Procedure. Publicly disclosable documents which emerge from this unsatisfactory state of affairs are often so heavily redacted as to amount to a series of black A4 sheets. Fights over the level of redaction can lengthen the duration of each case. And through all of this, the state has the upper hand. Similar disclosure issues also plague Legacy inquests. So, when we say that civil claims and inquests obtain ‘little if any accountability’ for victims, let us acknowledge the reality of this litigation, and instead ask why there may be little accountability. From whom are we asking for accountability? And who has the resources to provide it? The ICRIR’s information recovery processes are circumscribed by the Act, and there is no reason for any confidence that the UK Government will not control the information flow to this body and into the public domain.
All of this brings us to perhaps the biggest and most concerning flaw in the Legacy Act itself. The breadth and depth of opposition against it demonstrates that it carries virtually no support in Northern Ireland. A sweeping law, which will close off almost every existing avenue of information recovery and accountability, was enacted over the heads of people it would impact most – victims. The Stormont House Agreement had a broad base of support behind it, and even resulted in a Model Bill and a Draft (government) Bill to implement the Agreement. As late as June 2021, the then Northern Ireland Secretary said that efforts were underway to engage with a wide range of stakeholders, including victims, to find a way forward to deal with Legacy issues, which would ‘build on and develop on the principles of the Stormont House Agreement’. The following month, the Legacy Command Paper, which would eventually lead to the Legacy Act, was published, and in it the Stormont House Agreement’s careful balance had completely vanished. It is difficult, if not impossible, to accept that an effective consultation into resolving one of the most complex facets of Northern Ireland society was had in less than a month, and that this consultation resulted in an approach which shocked most of the designated stakeholders. Instead, this becomes another “wedge issue”, through which the current UK Government seeks to set itself up on a collision course with the courts on human rights issues in an effort to generate political capital (in this instance, presenting itself as a defender of military veterans’ interests).
We agree with the point underlying Dickson’s analysis – that something needs to be done to resolve the pain and opacity of the past in Northern Ireland, and that this reckoning with the legacy of conflict has been put off for too long. But that something would be among the most important and potentially most transformative events in our history; nothing can dull the momentousness of attempting closure over the legacy of our past. Instead, the limitations imposed upon the ICRIR’s processes amount to a concerted effort to dull this mechanism for truth recovery, and thereby serve to store up more frustrations. The Legacy Act, for example, allows individuals to receive immunity after only a verification process, making it possible for immunity to be granted without the information they have provided ever being shared with families or made public. It is striking, moreover, that regardless of the temporary nature of the ICRIR, important agencies like the Police Ombudsman are stripped of their investigatory powers over historic misconduct (the Ombudsman’s reports have been a valuable avenue of information recovery and accountability). We end here with an answer to Dickson’s apparently rhetorical question: ‘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?’ Even if lawyers and judges are taken out of the picture, we suggest that answering this question should at least be much more focused upon the victims of the conflict than the Legacy Act’s terms.
This is a guest slot to give a platform for new writers either as a one off, or a prelude to becoming part of the regular Slugger team.