After passing the so-called Legacy and Reconciliation (Northern Ireland) Act in 2023 (the Legacy Act) amid criticism from everyone but the Tories, the UK Government continues the quixotic quest to defend its plans to secure impunity for their role during the conflict at the expense of the rule of law and the rights of victims and survivors of the conflict. The most recent battle is taking place in the Court of Appeal in Belfast, where the Secretary of State (SoS) is appealing the High Court ruling that declared parts of the Legacy Act unlawful and incompatible with the European Convention on Human Rights (ECHR) earlier this year. The bereaved relatives and survivors who challenged the lawfulness of the Legacy Act in the first place, supported by other victims and advocates such as RFJ, stood outside the Court of Appeal on Tuesday morning as legal representatives entered the building to begin a week-long series of oral submissions. Our message was clear:
We are never giving up. Repeal the unlawful and immoral Legacy Act and dismantle the ICRIR in favour of human rights-compliant mechanisms.
The Court of Appeal, consisting of Lady Chief Justice Keegan, Lord Justice Horner, and Justice Scoffield, is first hearing the arguments of the appellant—the UK Government, represented in court by Tony McGleenan KC. The barrister began his oral submissions by repeating the Secretary of State’s unfounded rhetoric regarding the aim of the Legacy Act, which, according to them, is to promote and achieve reconciliation.
The vast majority of victims and survivors have stated, loud and clear, that this law will not bring about reconciliation; in fact, the passing of the Legacy Act has been described as re-traumatising within the sector, and we believe the Act does not but obstruct the alleged aim. Human rights and transitional justice experts have endorsed that view; reconciliation can only be achieved by addressing past human rights violations comprehensively within a legally compliant human rights framework for all bereaved and injured. It is a principle which requires wider societal involvement, and the new body, the controversial Independent Commission for Reconciliation and Information Recovery (ICRIR) cannot deliver on that because it is incompatible with human rights requirements (the procedural obligations under Articles 2 and 3 of the ECHR), it is not independent, and the Legacy Act has no societal support. Justice Colton echoed those voices in his judgement; he ruled that, based on evidence and international experiences, the immunity scheme would hinder reconciliation. Several human rights monitoring bodies and experts, such as the former Commissioner for Human Rights, Dunja Mijatović, have expressed that the Legacy Act undermines justice for victims, truth-seeking and reconciliation.
Yet, the UK Government and its cavalry of barristers seem to believe that by merely using (or abusing?) the word ‘reconciliation’ and including it in both the Act’s and the ICRIR’s titles will fool us and the Court of Appeal into ignoring our experience and the evidence to believe their empty words. This is not but a “meretricious window dressing”, as put by a lawyer in the High Court last year. The wide and unanimous opposition to the Legacy Act by victims’ groups, the majority of political parties in the North of Ireland, the Irish Government, human rights experts, and the civil society at large 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 (SHA) to the current Legacy Act suggests that the aim has never been reconciliation but the protection and reassurance for veterans and state agents.
Repeating the arguments made during the challenge hearing in November 2023, Mr McGleenan offered yet another baffling analysis, this time regarding 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 the continued monitoring of its obligations to respond to the findings of the McKerr group of cases. Despite authorities not always doing so in good faith and the overt criticism of the Committee against the new legislation, the barrister implied that the Legacy Act is, in fact, a product shaped by the dialogue with and commentary by the Committee, suggesting that Strasbourg accepts its framework and contents.
This is untrue and misleading. The Committee of Ministers has endorsed and encouraged the implementation of the Stormont House Agreement as the human rights-compliant framework and has expressed strong concerns about the Legacy Bill, now an Act, and its compatibility with the European Court of Human Rights since the then SoS, Brandon Lewis, announced the Government’s unilateral plan in 2020. According to the barrister, however, these were mere concerns “acknowledging a risk that it might”, but not an outright condemnation.
Mr McGleenan also said that the Legacy Act is “an attempt to address political failures to implement” the core principles of the Good Friday Agreement. He clearly ignored the fact that the client he represents delayed and then torpedoed the implementation of the Stormont House Agreement. In fact, it is his client, the UK Government, that has impeded, obstructed, and thwarted every opportunity for victims and survivors to have their rights to truth and justice fulfilled by concealing information that appears to indicate the involvement of the British state in human rights violations. The Legacy Act and its ICRIR represent the culmination of these efforts.
The ICRIR was created as part of the Tory Legacy Act 2023 to administer amnesty to those involved in the conflict. To qualify for amnesty, a person is only required to provide an account of their role in a murder and/or attack to the best of their belief. The secondary role of the ICRIR is to examine such instances. The legislation governing the ICRIR provides key powers to a British Secretary of State, thus compromising any independence of the ICRIR in its other functions, such as examining killings and attacks. Talking up that the ICRIR will get access to all files and documentation is disingenuous.
The Legacy Act is bad law. Bad law makes for even worse processes like the ICRIR, which ultimately will damage and further harm families, the wider society and the peace process.
The appeal continues.
