Legacy Act Challenge: State insults our collective intelligence

The second week of the legal challenges brought by several bereaved and injured of the conflict against the Legacy Act started with the oral submissions made by Tony McGleenan KC on behalf of the UK Government at the Belfast High Court. After having described last week that the challenges were “the most intrusive relief” ever brought to the court and an “unprecedented attempt to block a sovereign Act of Parliament”, the barrister followed on the partial chronological analysis he had started on Friday, focusing on the policy development and progress of the legislative process of the Bill. In doing so, he tried to depict a participatory and transparent process bona fide, in which balance has been struck – according to the barrister, the policy positions of the Tory government have been “openly discussed” with Strasbourg, the Irish Government and the main political parties throughout the whole process. This is beyond insulting.

One of the most striking arguments in favour of the legislative process and the subsequent enactment of the legislation is the manner in which the Government interprets, at least for the purposes of this judicial review, the decisions published by the Committee of Ministers – the oversight body of the Council of Europe responsible for the supervision of the execution of judgments of the European Court of Human Rights. The Committee has been very vocal about its concerns regarding the Legacy Bill and its compatibility with the European Court on Human Rights, especially about the lack of independence of the ICRIR, the shutting down of current venues, and the immunity scheme. The Government, however, claims that Ministers of the Council of Europe are “actually looking forward” to the ICRIR working, and holds on to cautious choice of words used in the latest decisions published by the Committee in September 2023 – “risk of breach” of Article 2 ECHR, rather than “breach” – to argue in favour of the Legacy Act. It is noteworthy however that, although those decisions were published the day after the enactment of the legislation, the material for consideration of Ministers in their 1475th meeting preceded the enactment and refer to the prior legislative process in parliament.

Mr. McGleenan also offered a peculiar observation of some of the most controversial aspects of the Legacy Act. According to the barrister, the Act does not create a blanket amnesty but a conditional immunity that is dependant on request and must be “earned” by perpetrators providing a full and ‘truthful’ account to the ICRIR. He said that the prospect of prosecutions, convictions and full term sentences remain, and that they act as incentives for individuals to engage with the ICRIR in good faith. Counsel for the UK Government therefore dismissed the applicability of the Strasbourg jurisprudence regarding amnesties, making general allegations and adding that the Government’s view is that it meets the Article 2 ECHR requirements.

The barrister added that the ICRIR would have access to the information provided by applicants to the immunity scheme, as well as “full disclosure” from relevant government bodies, unlike current mechanisms such as those in the coronial system, which face challenges with PII hearings, redactions, etc. It seems that the UK Government expects us to forget the fact that those “challenges” are created by those same government bodies, which have been perniciously fighting families for two decades, using secret courts and other proceedings to prevent, delay and discredit effective investigations. Mr. McGleenan added that the UK Government remained committed to obtaining information and truth for victims.

In RFJ’s view this is beyond disingenuous. We’ve said it before and we’ll say it again: it is an insult to our collective intelligence and a denial of our collective experience.

On the basis and premise that the current adversarial litigation is “detrimental” for reconciliation according to the Government, and citing proportionality as the key factor for the enactment of the legislation, the High Court heard that the ICRIR will have a systematic nature – unlike, Mr. McGleenan repeated, inquests and civil proceedings, which are ad hoc and “reactive” – and will be extensively and properly resourced to carry out reviews into deaths and serious injuries. In this regard, the barrister added that the ICRIR’s will be a systematic case-managed approach supported by the commitment made by the Government with parliamentary oversight, which, despite the 5-year deadline for requests, will be able to carry out its work beyond that. All in all, counsel for the UK Government presented the ICRIR as the best mechanism ever to have been tabled to deal with the legacy of the past in our jurisdiction, ignoring what international human rights bodies, human rights experts, the Irish Government, the main political parties and victims’ groups have been saying for the last three years.

One of the key points of the Government in terms of the compatibility of the Legacy Act with the ECHR is that, unless the court is fully confident that Strasbourg would conclude that the legislation is indeed incompatible with Articles 2, 3, 6 and 14 of the ECHR, the court should not make a judgement in that regard. Mr. McGleenan said that the court might be concerned, or even see a risk like the Committee of Ministers have, but unless it is “fully confident”, the principle that a domestic court should respect the judicial hierarchy and thus avoid interpreting the Convention too widely applies.

As counsel for the UK Government continues with his oral submissions to try to justify the Legacy Act, its lawfulness and the good intentions of the Government, the Irish News has published that Commissioner for Investigations at the ICRIR Peter Sheridan has accepted what Mr. McGleenan denied in court last week – that is, that the Legacy Act was designed by the Government to protect former British soldiers. According to the newspaper, the former RUC officer who attended an event at Harvard University last month also said that, in his view, the new legislation may have breached human rights laws.