I am honoured to have been asked to appear before the committee to discuss the Northern Ireland Troubles (Legacy & Reconciliation) Act 2023 and its repercussions for bereaved families. I was born in Belfast and raised in the shadow of Clonard Monastery which hosted the secret Hume-Adams talks that laid the foundations for the peace process that would ultimately lead to the Good Friday Agreement of 1998.
I am a keen supporter of the agreement. Today I want to discuss a number of matters regarding its legacy. The agreement was obviously a very important roadmap to peace for us but there was one important lacuna in it. This is the fact that it did not set in place any overarching mechanism to deal with the past in Northern Ireland. This has led to lawyers in the North utilising a number of what we call piecemeal mechanisms such as inquests, civil actions, the police ombudsman's office and to a lesser degree, police investigations to assist families in dealing with legacy issues. None of these models was designed to deal with the past and we have had to use all our skills to do that. Very importantly, the incorporation of the European Convention on Human Rights, ECHR, into UK law was a pivotal moment. That duty was placed on the UK Government by the Good Friday Agreement. That has been a very important development. In particular, it has provided a remedy for breaches of convention rights in the UK courts, rather than the need to go to the European Court of Human Rights in Strasbourg, which can be a very lengthy process, taking up to five years or more. Families had a quicker and better alternative in the domestic courts. The development of Article 2 procedural obligations in particular has dramatically changed the inquest process and has produced much more thorough, conclusive and effective investigations into the circumstance of the deaths of loved ones.
There is much evidence that the current judicial and investigative processes have been working well, perhaps too well, in recent years. I have completed the inquests into the deaths of 15 individuals, including nine people shot dead at Ballymurphy in 1971 and two children, Francis Rowntree and Stephen Geddis, shot dead by baton rounds. In all 15 cases the coroner determined that the deceased was innocent and that the force used by the state was unjustified.
There have also been a number of high-profile police ombudsman investigations which have found evidence of collusion between the security forces and police. There have been many successful outcomes in civil actions and various police investigations have led to soldiers being charged with serious crimes. The British legal system was not designed, or indeed intended, to deliver such outcomes in conflict-related cases. It was no longer a weapon in the British Government's arsenal as envisaged by Brigadier Frank Kitson, a key architect of British counter-insurgency strategy during the conflict. However, these legal victories for families have prompted a response or a pushback from the British Government.
On the same day that the current Lady Chief Justice of Northern Ireland, Siobhan Keegan, delivered the Ballymurphy findings, the UK Government, in the Queen's speech reopening Parliament, vowed to end the cycle of legacy investigations. This pledge culminated in what is now known as the the legacy Act passing into law on the 18 September 2023. The Act contains provisions that guillotine existing judicial and investigative mechanisms such as inquests and civil actions and replace these with the Independent Commission for Reconciliation and Information Recovery, ICRIR. The British Secretary of State will control its budget, shape its caseload, have the power to prohibit disclosure and will have some editorial control of its reports. In essence, it is a creature of the Northern Ireland Executive. It is controlled by, and must report to the British Secretary of State. According to the Model Bill Team at Queen's University Belfast, the Act also contains one of the most sweeping amnesties introduced in any jurisdiction since 1945, being significantly more expansive than that brought in by the Chilean dictator, Augusto Pinochet. The British Government has made no secret of the fact that this legislation was primarily about delivering commitments to protect army veterans from the legal processes.
In response to the passing of the Act, a judicial review challenge has been brought by victims against the British Secretary of State to the High Court in Belfast. I am currently involved in the case. A number of human rights organisations have also intervened. The court heard submissions for 7 days at the end of November. A judgment is awaited from the Honourable Mr. Justice Colton but any decision is likely to be appealed by either party and the matter could eventually be determined by the supreme court.
This legal challenge has its limitations. If an Act of Parliament breaches the convention rights, the courts can declare the legislation incompatible with the ECHR. This does not make the law invalid. It remains up to the Parliament to decide whether to change it.
It is likely that the current British Government will ignore any ruling by the supreme court and will ultimately abandon the European Court of Human Rights. It is intent on a collision course with the courts, just like on the issue of immigration, to generate political capital as defenders of army veterans. While Labour leader, Keir Starmer, has publicly committed to repealing the Act, it is feared by many families that, as Prime Minister, he may, when push comes to shove, soften his stance and merely tinker with the ICRIR. However, he may be susceptible to a negative ruling from the supreme court or, more particularly, the European Court of Human Rights on this issue. Will he want the UK to be a pariah state in the international community?
The Irish Government, for this reason, and not least as co-guarantor of the Good Friday Agreement, should challenge the UK over the Act through an interstate case to the European Court of Human Rights. There is a precedent. The Irish Government previously took the UK to court in 1971 over the so-called five techniques used to interrogate people arrested during internment in the North of Ireland. This has become known as the Hooded Men case. As Kieran McAvoy of Queens University Belfast has said in a recent article in The Irish Times, there are some advantages to an interstate challenge such as the fact there is no requirement for the Irish Government to exhaust local remedies before accessing the Strasbourg court. This will mean any interstate hearing will not have to await the conclusion of the current litigation. Such a challenge may not have any impact on the current British Government’s trajectory but may provide an incoming Labour administration with sufficient political cover to fulfil its commitment to repeal this draconian legislation.
Finally, I want to finish my remarks by reference to a key goal of the Good Friday Agreement, which is reconciliation. The word appears in the title of this Act.There is a clear tension between intention of the legislation and the language of the Act. There are many components to the concept of reconciliation. It can mean intercommunity reconciliation or reconciliation between the victims and the perpetrator of gross human rights violations in the context of post-conflict societies. There are other necessary conditions to reconciliation such as accountability and the development of a political culture that is respectful of the human rights principles, one in which the universal application of the rule of law is deeply valued and respected.
This legislation is a breach of the Good Friday Agreement, the ECHR and international human rights standards, and it fundamentally undermines the rule of law. The stumbling block to reconciliation has not been victims exercising their rights to access to justice but 50 years of the state wilfully obstructing and delaying justice for families. It is only through independent legal processes that the rule of law is restored. This is especially so in cases where the legal system has previously been employed by the state to deny human rights abuses. As Ben Ferencz, a young prosecutor at the Nuremburg trials, said, "There can be no peace without justice, no justice without law and no meaningful law without a Court to decide what is just and lawful under any given circumstance."
