Former chief justice Morgan is unrepentant. Despite Dublin’s Strasbourg challenge to his legacy commission, he insists: ” I can make it work.”

Chief Legacy Commissioner Sir Declan Morgan

Dublin’s challenge before the European Human Rights Court at Strasbourg  to the UK  Government’s Legacy Act replacing legal process with  the mainly administrative and arguably closed process of a legacy commission has an air of  political inevitability about it. Whatever their belief in the strength of their case, they could hardly expose such an open flank to a militantly self righteous Sinn Fein.  Not only  Irish nationalism north and south but the UK Labour party and a fair slice of the legal establishment and commentariat on both islands are opposed. They seem confident that their objections will carry the day.

Dublin’s challenge couldn’t come at a worst time,  when the two governments ought to be  be in chiming agreement  over trying to get the restoration of Stormont across the line.   It exposes all the rough edges of the Brexit legacy which frayed the close cooperation between the two governments of the early GFA era. The Tory right which seems  to have captured successive Conservative governments insist in terms that the legacy is none of Dublin’s bloody business, no matter that this specifically contradicts the Stormont House Agreement’s joint pledge to cooperate on it. It  hits hard at more than Irish nationalist sensitivities by giving priority to protecting  “ our boys” over mere Irish natives’ “right to justice.”

Just look at the reaction to Dublin’s move from Mark Francois MP, spokesman for the right wing Tory caucus.

“Who actually runs this damn country? Is it the democratically elected [UK] government, chosen from parliament or an unelected, unaccountable foreign court?”       

More diplomatically the Secretary of State  Chris Heaton Harris has teased the Irish government with their own record, pointing out  its glaring  contradiction with taking the Brits to Strasbourg:  “The Irish Government should urgently clarify the number of criminal prosecutions brought in Ireland since 1998 relating to Troubles cases.

But Dublin’s unanimity is not quite complete. CHH  has a limited point, according to the politically marginal but well qualified legal figure of Michael McDowell, a former attorney general in an earlier Dublin coalition, writing in his Irish Times column.

…the Government is “entitled to be outraged” because the British government under former prime minister Boris Johnson “tore up” the 2014 Stormont House Agreement, which pledged to continue with criminal investigations and inquests…. But, equally, they cannot escape the facts. Every crime in the North, every killing, every shooting, every bombing is a crime in the Republic under the Criminal Jurisdiction Act. We have not investigated any of that,” Rejecting Sinn Fein’s criticism of the British government’s decision to press ahead with the legacy legislation despite the opposition of all Northern parties, he said: “When I hear [them] demanding full historical investigations, it is a lie, it is a massive lie.

“The Shinners were demanding prosecutions [of British soldiers for Troubles-era offences] at the same time as they were demanding that the Irish State give on-the-runs free passes,” 

Both governments should follow the lead of the Free State government in 1923-24 when it granted an indemnity for all acts committed by both State and irregular forces, he argued. “The Provos are never going to tell the truth. MI5 is never going to tell the truth. I really think they would be better off drawing the conclusion that the Free State did. We are not going to be able to seek criminal accountability. History is inconvenient, sometimes.”

Despite the chorus of condemnation over the Legacy Act, it’s noteworthy that  the Chief Commissioner the former NI chief justice  Sir Declan Morgan has been largely spared of criticism. He took  on the role because he despaired of politicians’ inability to  commit to an approach. The nearest  they came  to it was to note the UK government’s  commitment to an independent Historical Investigations  Unit.  Its sudden abandonment came less from legal conviction than political pressure from the  “patriotic” right and therefore tainted from the start.  The question of immunity for testimony is a particular bone of contention. But overall Morgan is undaunted. In an interview with the Financial  Times he suggests that an ECHR verdict may not be all or nothing but that particular criticisms from the Court could be addressed by  his Commission

“I’m not here because it’s the only game in town, I’m here because I think it can work..

He said he was not concerned by Ireland’s legal move. “Whether or not the conditional immunity provisions are compliant with the [European] Convention [on Human Rights] is entirely a matter for the courts,” he told the Financial Times in an interview. “If it [immunity] is not compliant with the convention then we will not implement it.” He said the ICRIR would “deal with the issues with the same rigour” as inquests and deliver “virtually no difference” in outcomes…

 “It’s unsurprising that [victims] see this as yet another step in some way or another to deprive them of answers,” said Morgan, who has been praised for listening to victims and attempting to overcome political paralysis on legacy issues. “That is not what I’m about. I just don’t do that.” He promised the process would deliver “an Article 2-compliant outcome”. If the act is found to flout the ECHR “we are expecting the government . . . to change it”, he added…

Morgan expects the number of immunity cases to be “quite small” although he acknowledges the scepticism from the commission’s critics, and the reluctance of some victims’ families to engage with him because they “have been disappointed so many times in so many different ways”. But he said he was “confident” there were enough people who were “sufficiently convinced” about what the ICRIR could achieve and “it is by doing what we say that we will get trust”. Morgan cautioned that the real aim of the ICRIR was at risk of being lost amid the controversy. “The work of this commission is information recovery,” he said. “But the objective is reconciliation.”

There’s no doubt therefore of the scale of Morgan’s ambition and his apparent confidence. No point in  shilly shallying. But of course he may be wrong.  He may  hope that  Dublin’s action will not have a chilling effect on victims coming forward. Most groups are politically organised and super-sceptical. Without them Morgan is impotent. He and his team have a lot of convincing to do.

It hardly helps to realise  that the whole edifice may come crashing down if Labour in government were to activate their pledge to  repeal the Act. I’d love to be a fly on the wall  when or if the former NI Lord Chief Justice  tries to  persuade the former English director of public prosecutions to stick with him and  perform another of his climbdowns.

The miserable politics will rumble on. How is Dublin’s action likely to fair?  Expert opinion so far is divided on how quickly the court will hear it. Some are confident of an eventual  finding against the Legacy Act and its commission. Others like former NI HR Commissioner Prof Brice Dickson writing  recently in Slugger and since appointed as a lay legacy commissioner, is less sure. He will provide strong support to Morgan and the Investigations Commissioner Peter Sheridan. And even if Dublin’s action succeeds it may take years before its impact reaches victims and their families.

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 no 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.

This vista of  further long delay after decades of deadlock may in the end prove one the strongest arguments for  persisting  with the Legacy Commission.