Ireland had ‘no option’ but to take case against UK over Northern Ireland Troubles legacy Act, says Taoiseach

The Irish Government is to challenge the UK in the European Court of Human Rights over its controversial legislation to deal with the legacy of the North’s Troubles.

The Taoiseach, Leo Varadkar, said it had been left with “no option” but to take an inter-state case and the “strong” legal advice was that the Legacy Act breached the UN Convention on Human Rights.

Announcing the move on Wednesday, the Tánaiste, Micheál Martin, said the decision had been taken “after much thought and careful consideration”.

“I regret that we find ourselves in a position where such a choice had to be made,” he said, but the “only recourse is to pursue a legal path.”

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The Government will argue the provisions of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 are incompatible with the UK’s obligations under the European Convention on Human Rights (ECHR).

The Tánaiste said the Government was particularly concerned about the provisions “which allow for the granting of immunity, and which shut down existing avenues to truth and justice for historic cases, including inquests, police investigations, Police Ombudsman investigations, and civil actions.”

The UK government was strongly critical of Dublin’s decision, with the Northern Secretary, Chris Heaton-Harris, describing it as “misguided” and urging the Irish Government to look to its own “inconsistent” record on addressing the legacy of the Troubles – comments that were echoed by the DUP and Ulster Unionist Party.

In a lengthy statement on Wednesday evening, Mr Heaton-Harris said the UK government “profoundly regrets the decision taken by the Irish Government today to bring this unnecessary case against the UK.

“This decision comes at a particularly sensitive time in Northern Ireland. It did not need to be taken now, given the issues are already before the UK courts.”

He said the UK government “remains confident” the Legacy Act “provides a robust and effective framework … to discharge our legal obligations.”

The decision to challenge the legislation was widely welcomed by victims, survivors and campaigners and survivors in Northern Ireland.

Emmett McConomy, whose 11-year-old brother Stephen was killed by a plastic bullet fired by a British soldier in Derry in 1982, said it was a “good day for victims” but they should “never have been here in the first place, what the British government has done is disastrous for victims and survivors.

“It’s heartwarming to know that the Irish Government has taken this forward, but it shouldn’t have to,” he said.

“What a Christmas gift from the Irish Government to victims and survivors, hope and defence of their human rights,” said Mark Thompson from Relatives for Justice.

Gráinne Teggart of Amnesty International said “this State-level challenge is very welcome and made necessary by the UK government’s actions. We hope this critical litigation will bring all Troubles victims closer to the justice they deserve.”

It was also welcomed by Sinn Féin and the SDLP. The Sinn Féin leader, Mary Lou McDonald, said the “shameful” Legacy Act was a “flagrant breach of international human rights law” and the inter-state case would complement legal challenges taken by families.

The SDLP leader, Colum Eastwood, said it was “both welcome and utterly necessary.”

Speaking to the BBC, Jeffrey Donaldson, the leader of the DUP, accused the Irish Government of “double standards” and said it could not “point the finger” at the UK government because “the Irish government have no proposals to deal with legacy issues.”

The Legacy Act, which became law in September, replaced current methods of criminal and civil investigations and inquests with inquiries carried out by a new investigative body, the ICRIR, which has the power to offer conditional amnesties for perpetrators.

The UK government argues it will offer better outcomes for victims and survivors.

A legal challenge to the Legacy Act taken by bereaved families was heard in the High Court in Belfast last month, and a judgment is awaited.

Belfast solicitor Pádraig Ó Muirigh, who represents some of those involved in that case, said on Wednesday that his office will submit applications to the European Court of Human Rights on behalf of families “early in the new year.”

In a statement issued announcing the move, the Tánaiste said the decision by London “not to proceed with the 2014 Stormont House Agreement and instead pursue legislation unilaterally, without effective engagement with the legitimate concerns that we, and many others, raised left us with few options.

“The British government removed the political option, and has left us only this legal avenue.

“Since the UK legislation was first tabled, the Government have been consistent that it is not compatible” with the ECHR, the incorporation of which into the law in Northern Ireland is “a specific and fundamental requirement of the Good Friday Agreement,” he said.

“I used every opportunity to make my concerns known, and urged the British Government to pause this legislation.”

He emphasised that the legislation was opposed by victims and survivors of the Troubles and their families, and “serious reservations” about the legislation had been raised in Ireland north and south and by a number of international observers, including the Council of Europe and the United Nations

“In particular, we have concerns around provisions which allow for the granting of immunity, and which shut down existing avenues to truth and justice for historic cases, including inquests, police investigations, Police Ombudsman investigations, and civil actions,” he said.

“Even in cases in which immunity is not granted, “reviews” by the proposed body, the Independent Commission for Reconciliation and Information Recovery (ICRIR) are not an adequate substitute for police investigations, carried out independently, adequately, and with sufficient participation of next of kin.”

He said the enactment of the legislation by the British government on September 18th had shut off “any possibility of political resolution” and “we now find ourselves in a space where our only recourse is to pursue a legal path.

“It is important to leave the next steps to the Court,” he said.

In a lengthy statement issued on Wednesday evening, the Northern Secretary, Chris Heaton-Harris, said the UK government had urged the Irish Government, before considering action, to “engage directly” with its new legacy body “to understand better its plans for the implementation of the legislation, particularly given that effective information recovery for many families will require cross-border cooperation.

“It is a matter of considerable regret that it has chosen not to do so,” he said.

“We believe that the Irish Government’s stated position on dealing with legacy issues is inconsistent and hard to reconcile with its own record.

“At no time since 1998 has there been any concerted or sustained attempt on the part of the Irish state to pursue a criminal investigation and prosecution based approach to the past,” he said, and called on the Irish Government to “urgently clarify the number of criminal prosecutions brought in Ireland since 1998 relating to Troubles cases.”

While the Irish Government’s move was “disappointing, it is one for which the UK Government was prepared,” he said, adding the UK government would “continue robustly to defend the legislation, including to ensure that the work of [the new legacy body] the ICRIR can continue without impediment while proceedings are ongoing.

“The overriding purpose of the Legacy Act is to enable more victims and survivors to obtain more information faster than can be achieved under current legacy mechanisms.

“We cannot afford further delay in the provision of effective legacy outcomes - both for families and wider society,” he said.

“The bilateral relationship with Ireland is, and always will be, one we value deeply. Despite this misguided action, we will continue to work to minimise the consequences and protect the interests of the people and businesses that bind us together,” the Northern Secretary said.

Reacting to the announcement on Wednesday, human rights organisation the Pat Finucane Centre said the UK government had “ignored the concerns of political parties across these islands and the human rights community ... and showed complete disregard for opposition voiced by victims and survivors vehemently opposed to this legislation.

“Victims and survivors recognise that only the perpetrators of violence will benefit from the Legacy Act,” a spokeswoman said.

“We agree with the view expressed by the Irish government that they had no choice but to pursue the legal avenue and believe this sends the strongest possible message that this legislation must and will be challenged in every possible way.”

Daniel Holder from the Committee on the Administration of Justice said it was £the right decision and a necessary one.

“An Inter-state case is the best way to challenge the whole legacy act and the quickest way to get this legislation before the international court that is the European Court of Human Rights in Strasbourg.”

Ends.

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