Barrister: Ireland would be advised to hesitate and consider these legal points before suing the UK over its legacy act

That would be unprecedented, with one state in the Council of Europe complaining about another’s law making. Not even the European Union – a more powerful entity – went that far! The Irish Attorney General, Rossa Fanning SC, would be advised to consider the following legal arguments, before Dublin is bounced again by northern nationalists into something it may come to regret.

Four arguments against this are:

• First, the new Irish state legislated three times for amnesties following the 1916-23 conflicts, exonerating all but the Republican IRA in the 1922-23 Civil War.

• Second, the 1949 Geneva Conventions on the law of war include, in a protocol of 8 June 1977 state: “At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.”

• Third, the UK did just that following the Northern Ireland Troubles of 1968-98 with: the release of republican and loyalist prisoners; an amnesty on the decommissioning of weapons; an amnesty on the recovery of the death (buried secretly by the IRA); immunities in the Bloody Sunday and other enquiries; and, especially, the unlawful ‘On The Runs’ administrative scheme, whereby at least 187 of an additional 228 IRA members – including John Downey – were issued with official comfort letters.

• Fourth, the then Irish Taoiseach, Bertie Ahern’s letter of December 23 1999 to Tony Blair – a letter that has been in the public domain for some years – where he insisted upon amnesties in both states.

Irish nationalists invariably justify their demands by citing the Belfast Agreement; victims and families, however, were told simply in 1998 that peace would be their consolation!

The correct forum (for challenge) would be: the International Court of Justice in the Hague. But, when the Republic of Ireland signed up to its jurisdiction in December 2011, they excluded the Belfast Agreement!

Arguments Five to Seven:

• Fifth – and this is for the Labour opposition in the UK promising to repeal the legacy legislation – it was Tony Blair and Peter Hain who introduced the Northern Ireland (Offences) Bill in November 2005, only to withdraw it in January 2006, because Irish nationalists did not want amnesty provisions extending to the security forces.

• Sixth, the Republic of Ireland lost its last inter-state case against the UK at Strasbourg – the so-called ‘hooded men’ case in March 2018. Judge O’Leary – an academic lawyer – argued for the Irish line. She lost by six votes to one.

The Republic went on to hold the presidency of the Council of Europe last year with Judge O’Leary subsequently becoming the current president of the human rights court. Does Dublin believe that, after Brexit, its star can only rise again at Strasbourg? Eastern European countries however and now Sweden and Italy are no longer slaves to liberal uniformity. The idea of an inter-state case originates with self-styled and identified ‘legacy practitioners’ in Northern Ireland, comprising: five law firms; six non-governmental organisations; and seven mainly Queen’s University, Belfast academics.

• Seventh, the northern ultras focus on a putative new human right – Article 2 procedural – based on the McKerr line of cases from 2001 at Strasbourg. But there is also a McKerr line of cases from 2004 in UK domestic law.

In December 2021, the Supreme Court decided, in McQuillan, that one accessed rights through the Human Rights Act 1998, which entered into force in October 2000, so no deaths before that date – pushed back controversially by ten years – required an ‘Article 2 compliant’ investigation by Britain.

In June 2023, the Supreme Court went further, in R (Maguire), referring to graduated obligations: “There is no simple monolithic form of procedural obligation which applies in every case…The graduated way in which the procedural obligation applies reflects the fact that this obligation, like the substantive positive obligations under Article 2, is an implied positive duty which is not to be taken to impose an unreasonable or disproportionate burden upon the state.” So cost is now to be a consideration.

ICRIR, the Independent Commission on Reconciliation and Information Recovery has been established in Belfast, with Sir Declan Morgan, the former Lord Chief Justice, as chief commissioner. The key appointment of Peter Sheridan as investigations commissioner has just been made and preparation for the handover to ICRIR of all re-investigations in May 2024 is well under way.

It is useful to prefigure an Irish challenge to a UK statute, in the context of the developing small boats in the channel policy (and further delays on Rwanda). Already, there are calls on the right to denounce the European Convention on Human Rights. The Irish might well, with an inter-state challenge over the Northern Ireland Legacy Act, help tip the balance and bring about the UK’s withdrawal from the Council of Europe.

• Dr Austen Morgan is a barrister in London, at 33 Bedford Row. His book,Pretence: why the United Kingdom needs a written constitution was published by the Black Spring Press Group on 30 May 2023

• This is the latest in a series of articles on the Legacy Act by the Malone House Group​, which is concerned about the use of ‘lawfare’ against the UK state and an imbalance against the security forces. Link to the first article below

• Jeff Dudgeon: After years of imbalance against state forces in historic Troubles investigations, a new legacy law has been passed