Day 3 of the judicial review challenge against the Legacy Act commenced on Thursday, 23rd of November, with the oral submissions of Hugh Southey KC on behalf of Gemma Gilvary, whose brother Maurice was abducted, interrogated and tortured for a week by the Provisional IRA’s Internal Security Unit. It is believed that collusion was a key feature on the case, which is part of the pending Operation Kenova investigation into Freddie ‘Stakeknife’ Scappaticci, alleged to have been a British Army spy inside the IRA. Given the nature of the events and the strong suspicion of collusion on the case, the main focus of Southey’s submission concentrated on torture, which, according to the barrister, should be given a particular, separate consideration.
Citing the 2004 landmark judgement of the House of Lords, Mr. Southey highlighted that the condemnation and prohibition on torture is a distinguishing feature of common law which predates the modern parliamentary sovereignty and therefore is part of it. Besides, the prohibition on torture is considered to be a fundamental principle of international law from which no derogation is permitted – it is an enhanced peremptory norm making it jus cogens, with a particularly high status similar to prohibitions on genocide and slavery.
In that sense, it should be highlighted that any tolerance of torture degrades the legal system and the state that allows it – the prohibition of torture is important to uphold the integrity of the administration of justice.
As such, the barrister highlighted several of the key aspects around torture, citing extensive caselaw:
- States cannot offer immunity to people accused of torture and must therefore prosecute such actions – the requirement to prosecute is substantive to the principle;
- Deterrence, key element;
- Without deterrence, legal system risks being undermined;
- Torture cannot be covered by an statute of limitations;
- The duty to prohibit torture is a duty to other states.
Considering all those aspects, especially the requirement for prosecution being a key aspect of the prohibition on torture and the similarity of torture with other crimes such as genocide, as well as the fact that the Legacy Act offers immunity to perpetrators and limits the options of victims for effective litigation, Mr. Southey posed an interesting question for Justice Colton to consider – Would courts uphold a law by which the parliament authorised genocide?
If it’s not lawful to legalise genocide, the question becomes whether it’s lawful to legalise torture.
The court then heard the oral submissions made on behalf of Patrick Fitzsimmons, whose case raise distinct issues of incompatibility of the Legacy Act with the ECHR and the wider international law regarding internment orders and compensation. According to the counsel for Fitzsimmons, the Legacy Act has retroactive nature, is a reactive legislation and is incompatible with Article 6 ECHR, which protects and guarantees the right to a fair trial. The factual background of this argument lies on what is known as the ‘Adams litigation’ and it is believed that the Act is a flagrant interference of the legislature with the administration of justice, to stop former internees from getting civil claims and any form of compensation.
The hearing closed with the oral submissions of the Equality Commission, which is intervening in the challenge on the basis that the Legacy Act breaches Article 2 of the Windsor Framework. As pointed out by the barrister for the Commission, human dignity is at the core of all the matters discussed throughout the challenge – the concept of dignity is a legal and justifiable principle, and a right. He argued that human dignity is central to the interpretation of the Belfast Agreement, the Windsor Framework, the ECHR, the Victims’ Rights Directive, and even the concepts of civil rights and reconciliation. As such, the State has an obligation to protect and safeguard human dignity.
Considering that a right is not a privilege but an entitlement, and the seriousness of the events that are central to the Legacy Act, the barrister highlighted that the lack of investigations impacts adversely at the core of human dignity.
The Equality Commission raised the issue that the UK Government did not take into account the principles of equality and human rights protected under Article 2 of the Windsor Framework either before or after Brexit in the process of conceiving and enacting the Legacy Act. Counsel for the Commission also stated that rights are noticeably lacking in the Legacy Act, which is incompatible with Article 2 of the Windsor Framework inasmuch as it suggests a clear diminution of rights for victims.
The case continued on Friday, 24th of November 2023.
The first barrister to address the court on the fourth day highlighted that the Legacy Act is incompatible with Articles 2, 3, 6 and 14 of the European Convention on Human Rights (ECHR) citing extensive jurisprudence and adding to previous submissions heard in Court during the week. These include the requirement for effective and independent investigations contained in Articles 2 and 3, which the Act and therefore the ICRIR are incompatible with. In that regard, he noted that, for instance, Mr. Sheridan could not have been appointed to investigate McEvoy’s case prior to the Legacy Act, because he is a former member of the RUC Special Branch, and yet, he is now identified as the Commissioner for Investigations of the ICRIR. The barrister also raised issues about proportionality in connection with the right to access the courts contained in Article 6 ECHR, which cannot contemplate a blanket or broad derogation, nor a derogation by category. Similarly, he adhered to what has been submitted regarding discrimination and Article 14 ECHR, adding that the cutoff date of May 2024 creates further discrimination between those whose cases have been completed and those whose cases are pending or incomplete.
The second lawyer to address the court was Monye Anyadike-Danes KC, on behalf of Amnesty International, one of the interveners in the case. She focused on the rights to truth and reparations and cited several UN declarations and principles which the Legacy Act undermine. She highlighted that the total or partial concealment of truth leaves open wounds in victims and the wider social fabric, which is an obstacle for reconciliation. The barrister concluded that the Legacy Act and the ICRIR are incompatible with human rights, and that reconciliation is a principle which requires wider societal involvement and cannot therefore be imposed like the Legacy Act has in the North of Ireland.
A barrister for the Department of Justice and the Coroners Office also intervened briefly to address the issue of the ICRIR and the absence of legal aid funding for representation.
Justice Colton indicated that he has also received the written submissions of WAVE Trauma, which he will take into account in his considerations. This concluded the submissions of applicants and interveners, thus leaving the afternoon to the oral submissions of the respondent in the case – the UK Government, represented by Tony McGleenan KC.
Mr. McGleenan commenced his oral submissions by diminishing the extensive and well documented evidence provided by previous barristers in the course of 4 days when he described it as ‘snapshots of evidence to make rhetorical points’. He also denied that the aim of the Act was to protect veterans and said that the Act tries to strike a balance between ‘multiple interests’ to give effect to Belfast (Good Friday) Agreement (GFA). The barrister kept a straight face while stating that the Legacy Act is in fact an exercise to reset to the principles of the GFA, that the Act is ‘faithful’ to the GFA.
In this regard, Mr. McGleenan said that the rights referred to in Article 2.1 of the Windsor Framework, which the other parties have argued is incompatible with the Legacy Act, are in fact the right to information and the right to remember, for the purposes of reconciliation, in what we understand is the most limiting and biased interpretation possible of the GFA.
He based this view on a peculiar chronological analysis of the 25 years since the signing of the GFA, highlighting partial aspects of the various steps along the way such as the enactment of the Human Rights Act, the McKerr group of cases, the draft Offences Bill, Eames/Bradley, Haas/O’Sullivan, and the Stormont House Agreement and the subsequent consultation. In doing so, Mr. McGleenan suggested that the underpinning principles of truth and reconciliation were the main features of our peace process until the McKerr group of cases in 2001 shifted the focus to the procedural investigative obligations and therefore ‘legacy litigation’ and other ‘controversial’ aspects such as retribution, prosecutions and compensation. According to the barrister for the UK Government, it is unlikely that the GFA would ever have been signed if the latter elements were the underpinning principles instead of truth and reconciliation.
Along that analysis, Mr. McGleenan rejected the contention that the ICRIR is not independent by saying that its features are the same as other commissions such as the Independent International Commission on Decommissioning. He also had the audacity to suggest that the Legacy Act and the ICRIR are more generous in scope and thus inclusive than the Stormont House Agreement and its Article-2 compliant mechanisms, because the latter ones would have only allowed for deaths to be investigated. While the issue of the scope is true, the barrister failed to address the bigger issues at play, such as the fact that while the Stormont House Agreement enjoyed wide political support and was welcomed by all the international human rights bodies responsible for monitoring the UK’s human rights records as being human rights compliant, the Legacy Act is opposed and criticised by all of them.
Another extraordinary analysis offered by Mr. McGleenan was around the failed implementation of and the consultation on the Stormont House Agreement. For instance, the barrister mentioned the consultation on the past to justify the shift of the UK Government from the Stormont House Agreement towards the Legacy Act, actively ignoring the fact that the majority of the responses to the consultation backed the Agreement and opposed an amnesty. Moreover, he added that most of the parties present in the judicial review engaged in the consultation process, ‘which fed into the Government’s thinking’. He also suggested that it was Westminster that had to deal with it because Stormont could not.
Justice Colton interrupted this line of argument to remind Mr. McGleenan that the applicants and interveners in the case actually point to widespread opposition and lack of confidence in society, to which the barrister responded that it is difficult to measure such a thing. He said that some might say: “Wait and see – in a world with no options, let it run”. The barrister then shifted back to earlier comments regarding reconciliation to add that the Legacy Act seeks to reconcile society and that the ICRIR will deliver as much information as possible as quickly as possible to those who want it. He also argued that the conditional immunity scheme is different to an amnesty, that it is married to an information recovery process, and that the Legacy Act and the ICRIR do comply with human rights law, in general.
Another point made by Mr. McGleenan was in reference to the participation of the UK Government in the Committee of Ministers of the Council of Europe, which supervises the execution of judgments of the European Court of Human Rights. The UK Government is compelled to engage with the Committee in its continued monitoring of their obligations to respond to the findings of the McKerr group of cases. Mr. McGleenan said in court that this is a ‘transparent’ process but failed to mention that the UK Government does not in fact engage with the Committee in good faith – they often fail to submit documents within deadlines, and the information provided is usually partial and too limited. He also chose not to mention that the Committee has openly criticised the new legislation and the ICRIR.
The case will continue this week, with further oral submissions expected from the Government on Monday and Tuesday.
