PoliticsAnalysis

Troubles legacy Bill: Legal expert would be ‘astonished’ if amnesty provision deemed lawful

Republic has ‘two very strong legal arguments’ to present in Europe if taking inter-state case against British government

Images of victims of the Troubles projected on to the Houses of Parliament last week in protest at expected passing of controversial legacy Bill. Photograph: Amnesty International/PA
Images of victims of the Troubles projected on to the Houses of Parliament last week in protest at expected passing of controversial legacy Bill. Photograph: Amnesty International/PA
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Freya McClements
Thu Sept 07 2023 - 19:00

A leading expert in law and transitional justice has said he would be “astonished” if the conditional amnesty included in the British government’s controversial Troubles legacy legislation was found to be lawful by the European Court of Human Rights (ECHR).

Prof Kieran McEvoy, from Queen’s University Belfast (QUB), said he could not “see legally how that would happen” and the Irish Government had “two very strong legal arguments” to present if it were to take an inter-state case against the British government over the controversial Bill.

He said there are “binding legal obligations on a state to have effective investigative mechanisms, and I would be very surprised if what is contained in the legacy Bill would be determined by the ECHR to constitute an effective investigative mechanism”.

Prof Louise Mallinder from QUB, an expert on international human rights law, said that based on the ECHR’s previous case law “a legal challenge by the Irish Government would, I expect, stand a good chance of being favourably received”.

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Concerns voiced previously by the Council of Europe and the United Nations demonstrated that the Republic “would be speaking to a sympathetic audience in terms of the importance and gravity of this particular Bill for the international rule of law”, said Prof McEvoy.

Relatives of those killed during the Troubles, as well as victims and survivors’ groups and politicians, on Wednesday repeated calls for the Irish Government to challenge Britain in the ECHR over concerns that the so-called legacy Bill is in breach of international human rights law.

Families of victims of the Troubles say the proposed legacy Bill is 'the worst thing that could possibly happen'. Video: Enda O'Dowd

Taoiseach Leo Varadkar said Attorney General Rossa Fanning is preparing legal advice and determining if the British legislation is compliant with the European Convention on Human Rights, of which the UK is a signatory. Mr Varadkar said he would decide whether or not to pursue a case “in the coming weeks”.

Prof McEvoy said it was a political rather than a legal judgment, as the “legal position is clear enough: the Irish Government have an absolute right to take the British government to court… This is the moment for them [the Irish Government] to step up. Their opposition to this Bill has been very clear and they have, I think, a moral and indeed a legal obligation to step up and that’s what they should do.”

[ Northern Ireland Troubles legacy Bill: What it means for victims’ families ]

[ The four big drawbacks of the Northern Ireland legacy Bill ]

The Northern Ireland Troubles (Legacy and Reconciliation) Bill – which passed its final vote in the House of Commons on Wednesday – will replace current methods of criminal and civil investigations and inquests with inquiries carried out by a new investigative body, which has the power to offer conditional amnesties for perpetrators.

It is opposed by the North’s five main political parties, victims’ and human rights groups, the Irish Government, other parties in Ireland and in Britain, and internationally, but supported by veterans’ groups.

The Bill is expected to face significant legal challenges in the domestic courts in Northern Ireland and in Europe.

The Labour Party has said it will repeal the legislation if it wins the UK general election next year.

Prof Anna Bryson, from the School of Law at QUB, said there were “compelling” reasons why the Irish Government “is right to give serious and detailed consideration” to an inter-state case.

She said it meant the case could go directly to the ECHR without the need to first exhaust domestic remedies, it would consider the proposals “comprehensively and holistically” rather than focusing on the particular circumstances of an individual case, and the court’s power to ask for interim measures to put a temporary halt on the legislation could be “hugely important in terms of damage limitation for victims”.

Prof Mallinder said she expected there would now be a period of delay while the legal challenges are addressed, and these could force amendments in the legislation. “I anticipate there will be changes – what we’re looking at at the moment will not be where we end up.”