The first hearing of the legal challenges to the Legacy Act brought by several victims and survivors of the conflict has begun today in the Belfast High Court before Justice Colton.
In his opening remarks, John Larkin KC, who represents the lead cases of Martina Dillon, John McEvoy and Lynda McManus, acknowledged the hurt and pain suffered by the applicants since the horrific events that changed their lives, highlighting their still ongoing long processes for truth and justice and the secondary traumatisation caused by the passing of the Legacy Act.
The barrister then proceeded to outline the potential unlawful provisions of the legislation, which are included in Sections 2 (Independent Commission for Reconciliation and Information Recovery, ICRIR); 7 and 8 (admissibility of material in criminal and civil proceedings); 19 and 39 (potential immunity from prosecution); 38, 43, 44 and 45 (cessation of police investigations, civil claims, inquests and OPONI investigations); and 41 (prohibition of criminal enforcement action). These, the applicants argue, are incompatible the European Convention on Human Rights (ECHR) and create a defective and unlawful architecture embodied in the ICRIR which cannot be reconciled.
In fact, the problem is not that the ICRIR would be a bad thing if it was an addition to the current legacy mechanisms – according to John Larkin KC, the issue is that it is an exclusive body which extinguishes all other venues, including any options of a case being reviewed or investigated by the ICRIR after the five year deadline established by the Act.
The High Court heard that the reference to ‘reconciliation’ within the Act, including the ICRIR which includes the term in its name, is merely a “meretricious window dressing”. This statement was founded in several aspects, one of which referred to the legislation being perpetrator-centred rather than victim-centred.
The lead applicants argue that the Legacy Act is also “utterly incompatible” with the Windsor Framework and the European Victims’ Rights Directive inasmuch it breaches the commitment of the UK Goverment to “no diminution of rights” in the North of Ireland and eliminates any redress options and harms human dignity and security. Furthermore, the Act is also contrary to the key elements of the Good Friday Agreement, which is founded on the full respect and protection for human rights within the rule of law.
Adding to those submissions on behalf of the lead applicants, Jude Bunting KC set out his applicant’s submissions based on context and law. The arguments of the barrister regarding the context refer to the wide and unanimous opposition to the Bill by victims’ groups, the majority of political parties in the North of Ireland, the Irish Government, and the civil society at large, which would indicate that the Legacy Act undermines any possibility for reconciliation. In fact, the trajectory of the U-turn by the UK Government from the Stormont House Agreement to the current Legacy Act suggest that the aim has never been reconciliation but protection and reassurance for veterans, thus providing an end to investigations.
The High Court also heard that the Legacy Act is incompatible with Articles 2, 3, 6 and 14 ECHR based on nine aspects – namely, the immunity scheme, the inability of the ICRIR to discipline police officers, the prevention of further investigations after 5 years even if new information emerges, the lack of independence of the ICRIR, the lack of effective investigations, the lack of victims’ participation, the lack of adequate public scrutiny through public hearings, and the lack of redress through compensation. These will be discussed in depth in tomorrow’s hearing.
