The Council of Europe Committee of Ministers has published a decision in relation to a group of Northern Ireland legacy cases (McKerr vs UK), following an examination of legacy issues in the context of the introduction of the UK’s Northern Ireland Troubles (Legacy and Reconciliation) Bill on 17 May.
The decision noted the concerns and questions that have been expressed about the Bill and regretted the lack of public consultation. The Committee stated that is crucial that legislation on this issue is in full compliance with the European Convention of Human Rights, enabling effective investigations into all outstanding cases. The Committee will now request that the UK Government answer a detailed list of questions on the compliance of the Bill with the ECHR.
Ireland, represented by Ambassador Breifne O’Reilly, welcomed the Committee’s discussion as an important and timely opportunity to consider legacy issues, as the Irish Government believes that the introduction of this draft legislation by the UK Government raises a range of very serious questions and concerns.
The Stormont House Agreement was reached in 2014 by the Irish and UK Governments, together with most parties in Northern Ireland. It sought to map out a comprehensive and balanced way to address the painful legacy of the conflict in Northern Ireland. While there may not be a perfect solution to such a complex and sensitive issue, a broad measure of agreement was achieved. It is a matter of regret that this Agreement has not been implemented and that so much time has now passed, for the many families who have been waiting for truth and justice for their loved ones.
With the introduction of the Northern Ireland Troubles (Legacy and Reconciliation) Bill on 17 May 2022, the UK Government has now departed very significantly from that Agreement.
The Bill provides for the establishment of a new body, the Independent Commission for Reconciliation and Information Recovery, to conduct ‘reviews’ of Troubles-related deaths and serious injuries. All inquests, civil litigation and criminal investigations outside of this review process would cease. On the basis of participation with the review process, individuals can be granted immunity from prosecution. It is a marked change, and one that has caused profound upset for families and victims. It does not command the support of any party in Northern Ireland, who have all been clear in their strong opposition.
A number of essential questions and concerns have been raised with regard to the Bill’s compliance with the United Kingdom’s obligations under the Convention – and in particular its positive obligations under Articles 2 and 3. It is very unclear as to whether the proposed review system meets the requirements for investigations to be carried out independently, adequately, and with sufficient participation of next of kin. While leaving open the prospect of prosecution, it is also unclear as to how, under this review system, criminal investigations capable of leading to such a prosecution could take place.
The Bill’s provisions in relation to the role of the Secretary of State for Northern Ireland in the funding of Commission, the appointment and terms of office of Commissioners, the disclosure of information, and the winding up of the process have additionally raised profound concern with respect to independence, particularly insofar as this process relates to deaths that are alleged to have resulted from the use of force by state agents.
There are also serious concerns, which have been expressed particularly powerfully by victims and families, with regard to the granting of immunity, and what appears a remarkably low threshold for so doing. The Bill does not clearly require full disclosure of all relevant information, does not clearly require the veracity of an applicant’s account to be properly tested, and provides that grants of immunity will be irrevocable even if it transpires that the applicant has obtained immunity with false information.
Families and victims groups are worried that the Commission will not carry out effective investigations or deliver meaningfully for their loved one. For many, the concept of immunity, conditional or otherwise, is about protecting perpetrators instead of securing justice, or upholding the rule of law. The shutting down of inquests and civil cases has also been a further cause of pain and worry, for families who have in many instances been waiting years for their cases to be heard while watching some measure of comfort being granted to others through these important systems.
The European Convention on Human Rights has played and continues to play a vital role for all of the people of Northern Ireland in securing their rights and creating confidence. That confidence and trust, particularly in the rule of law and systems of justice, has been fundamental to building lasting peace and deeper societal reconciliation.
It has been Ireland’s consistent position that the fundamental principles that guided the Stormont House Agreement – truth, justice, rule of law, and human rights compliance – must continue to guide us now if we are to secure confidence in any process to deal with the painful legacy of conflict. Lasting progress on this issue also requires that the legitimate needs of victims are at the heart of any way forward, together with sufficient support from the parties in Northern Ireland, and a partnership approach between both Governments.
The Irish Government does not see the Northern Ireland Troubles (Legacy and Reconciliation) Bill as meeting those fundamental principles, securing that confidence, or furthering what we know is a shared goal of deeper societal reconciliation.
As such, Ireland has welcomed the decision by the Committee of Ministers and its request for a list of questions regarding the Bill’s compliance with obligations under the European Convention on Human Rights to be fully addressed by the UK Government.