Legacy Act Challenge: Day 2

Pearse Jordan

Today’s JR hearing challenging the Legacy Act opened with the oral submission of Jude Bunting KC, highlighting that the new legislation and therefore the ICRIR do not meet the basic safeguards and human rights standards set out in the cases of Jordan, McKerr and Kelly within the jurisprudence of the European Court of Human Rights (ECtHR).

The barrister then detailed the nine submissions of law by which the Act breaches Articles 2, 3, 6 and 14 ECHR, outlining the points of incompatibility as follows:

1) The immunity scheme breaches human rights, inasmuch as, according to extensive jurisprudence of the European Court of Human Rights, amnesties and analogous measures are legally impermissible under Articles 2 and 3 ECHR. The exceptions don’t apply in this case – states must prevent, investigate and punish violations of human rights enshrined in those articles (right to life and freedom from torture and inhuman or degrading treatment). Deterrence, retribution and public confidence are some of the key elements for this requirement, ensuring adherence to the rule of law and to prevent any appearance of tolerance or collusion in unlawful acts.

2) Disciplining and dismissing police misconduct in those cases is also key – the scheme introduced by the Police Ombudsman is a requirement of Art. 2 for the State to meet its legal obligations. However, the Act stops PONI investigations and the ICRIR cannot bring about disciplinary sanctions for police officers for serious misconducts during the conflict. This is incompatible with ECHR in the same way a criminal amnesty is.

3) The reviews of the ICRIR are limited to 5 years. the Legacy Act doesn’t allow for further investigations – the ICRIR would only review a case when requested within the 5 year period. If new evidence comes to light after that, there will not be any investigation, which presents a straightforward incompatibility with Art. 2 ECHR.

4) Lack of independence of the ICRIR – respondent (in this case the Secretary of State, SoS) decides the key aspects of the ICRIR and its personnel (significant say in appointments and retention of commissioners, review of their performance, operationally involved in ICRIR, control extent of disclosure…). In fact, in some cases – such as that of applicant John McEvoy – the SoS would be the only party that could request a review of the case. This is already problematic considering the publicly accepted culture of secrecy that exists within security services and the Ministry of Defence… In contrast with the requirement for independence enshrined in Article 2 ECHR, and considering that the ICRIR will be the ONLY way in which violations of Art. 2 and 3 will be looked at, the Legacy Act is squarely incompatible with the ECHR.

5) Effectiveness of investigations set out by the ECtHR includes capacity to punish and to bring about a ruling on central issues, which the ICRIR cannot do. In fact, it seems that the Legacy Act is deliberately worded to limit the powers of the ICRIR, which as a consequence is not required to carry out criminal investigations as set out in Jordan. Additionally, discretion is exercised with regards to legislative purposes – “reconciliation”, not criminal justice. This is a clear breach of the ‘Jordan standards’ set out in the European caselaw and therefore the ECHR.

6) The Act – and thus the ICRIR – denies adequate victim participation, which is a requirement under Art. 2 ECHR according to the Jordan standards. Human dignity is at the core of this requirement – catharsis, rehabilitation, truth. Under the current legislation though, victims wouldn’t be actively involved in the review, would have no role at all in immunity request process, wouldn’t even have to be consulted, review wouldn’t allow the next-of-kin to be legally involved because legal aid isn’t available, no cross-examination, no requirement for advanced disclosure.

7) The Act denies adequate public scrutiny through public hearings as required by the ECtHR caselaw. Public hearings are strong safeguards for presumption of transparency and public trust, and realistically, the Act doesn’t allow for public scrutiny apart from the publication of the report at the end of the review. This suggest a clear legislative aim to avoid public hearings to protect veterans, and it is inconsistent with Jordan and therefore contrary to the ECHR.

8) Denies redress through compensation, which is squarely incompatible with requirements under Art. 2 (Jordan) and Art. 3 (O’Keefe), as well as Art. 6 ECHR. The Act prohibits redress retrospectively – civil claims lodged after the first reading of the Bill stopped.

9) The Act is discriminatory and therefore contrary to Art. 14 ECHR – victims are treated differently based on the date of their injury/bereavement (before/after Troubles).

Karen Quinlivan KC, on behalf of applicant Teresa Jordan, pointed at the fact that the motivation behind this legislation was to protect British soldiers who shot and killed people in the North of Ireland – that is, people from one jurisdiction who killed people from another jurisdiction. This breaches Articles 2 and 14 inasmuch as it constitutes indirect discrimination regarding a national minority. Additionally, there is also a direct discrimination within the totality of the legislation regarding the date of the crimes, as noted by Bunting earlier. This cannot be justified by national security issues, which are already widely protected in the current legal regime by PII certificates, CMPs, etc. Discrimination is therefore not justified and without merit.

In addition to the arguments already dealt with in the court which Quinlivan adhered to, she also highlighted a breach of Art. 8 ECHR (right to respect for private and family life), which Strasbourg seems to interpret as engaged in relation to interference with other serious violations of rights. The argument is that as the next-of-kin and mother, Teresa Jordan’s private and family life are adversely impacted Legacy Act, because it allows police officers who destroyed evidence and lied to about her son’s murder case to walk away thanks to the safeguards of the Act.

According to Quinlivan, the key issue in this case is not about the political process – it’s about the upholding of the rule of law, from whatever quarter it comes. It is the court that is the protector of the rule of law. It is about legal rights. Additionally, the respondent’s reference to democracy is difficult in the context of this legislation, because in truth it’s the antithesis of democracy – the Act is opposed by the vast majority in this jurisdiction.

The case continues.