This morning’s news that the Irish Government is taking the United Kingdom to the European Court of Human Rights, in a bid to block the Government’s Northern Ireland Troubles (Legacy and Reconciliation) Act (“the Act), raises a number of interesting questions.
Perhaps the most important of these is: how serious are ministers about actually defending the legislation?
According to the Daily Telegraph, the Government is committed to fighting the “misguided” suit. It quotes a “senior government source”:
“Ireland needs to back off. The Irish Government, Sinn Fein and Joe Biden are all cut from the same cloth. But we are not going to climb down over this. We are confident we will win.”
Fighting words. But then consider this intervention from Sir Declan Morgan, the senior judge (and former Lord Chief Justice of Northern Ireland) who has been appointed to lead the Independent Commission for Reconciliation and Information Recovery (ICRIR), the body set up by the Act.
Whilst broadly supportive, his interview with the Financial Times contains one vital claim which should cause deep concern for the Act’s supporters:
““Whether or not the conditional immunity provisions are compliant with the [European] Convention [on Human Rights] is entirely a matter for the courts,” he told the Financial Times in an interview. “If it [immunity] is not compliant with the convention then we will not implement it.””
This looks like one of those cunning sleights-of-hand I talked about in last week’s piece on international law and the constitution. Sir Declan is correct that it is for the courts to decide whether legislation is compliant with the Convention.
But strictly speaking, it does not follow automatically that the Government must abandon qualified immunity if they find it incompatible. Parliament can legislate contrary to international commitments, and immunity is provided for in Section 19 of the Act.
It may well be that the Government has decided not to proceed with immunity in the event of an adverse judgment at the ECtHR. But if so, that is a policy decision, not merely a legal one – and it is strange to be hearing about it from Sir Declan, rather than Chris Heaton-Harris.
Beyond that, the row again puts the spotlight on the very problem the Act aims to address: the extraordinarily different treatment of British police officers and soldiers versus that given to terrorists in the aftermath of the Belfast Agreement.
Contrast the fury provoked by this attempt to create a pathway to amnesty – which is conditional on giving full and frank testimony to the ICRIR – with the Blair Government’s decision to quietly send so-called comfort letters to 187 IRA suspects, a policy which only came to light when one such (and one sent in error, no less) collapsed the trial of John Downey, the man accused of the 1982 Hyde Park bombing, in 2014.
Then there is the perfectly fair question of the Irish Government’s own record. The Northern Irish Secretary has rightly zeroed in on this in his public response to the lawsuit. Per the Daily Telegraph:
“They have been critical about our proposed approach on the grounds that it moves away from a focus on criminal prosecutions. We believe that the Irish government’s stated position on dealing with legacy issues is inconsistent and hard to reconcile with its own record.”
Heaton-Harris added that Dublin has made no “concerted or sustained attempt” to prosecute terrorists, and has called on it to “urgently clarify the number of criminal prosecutions brought in Ireland since 1998”, the paper adds.
This is a long-standing grievance: even back in the 1980s, critics of Margaret Thatcher’s decision to sign the Anglo-Irish Agreement quickly pointed out that Ireland never followed through on its undertakings to deport IRA suspects to the UK for prosecution. She herself, in her autobiography, conceded that: “our concessions alienated the Unionists without gaining the level of security co-operation we had the right to expect”.
Downey, mentioned above, provides a useful illustration of why this was a sore point. In 1984, the British Government ran out of patience with the Irish Government’s claims that it could not locate who was then the UK’s most-wanted man. It tasked a private investigator with finding him. It took the PI a single phone call to get Downey’s exact address and location… from the Irish social security office.
And in 1979 Jack Lynch, then Taoiseach, refused the United Kingdom permission to chase suspected terrorists over the Border and explicitly ruled out deporting alleged terrorists – which must have been a great help to the IRA’s campaign of ethnic cleansing against Protestants in border communities.
In 2019, unionist leaders demanded an apology from Dublin over its refusal to deport Patrick Ryan, a “former priest turned IRA member” who now talks openly, and entirely unrepentantly, about his terrorist past.
Note that he does this without any apparent fear of prosecution, whilst the Daily Telegraph reports that one ex-RUC officer has been investigated five times over the shooting of an IRA commander in 1991, and you ought hopefully to grasp the inequity the Government’s legacy legislation aimed to address.
Ben Lowry, the editor of the Belfast News Letter, has today collated a useful collection of pieces on the extent of the problem. One stat leaps out: between 1973 and 1997, Ireland refused 102 extradition requests – out of 110.
There is, of course, no such thing as a clean resolution to a conflict such as the Troubles. The Belfast Agreement and the settlement that grew out of it are both, despite the hagiography that often attaches to each, deeply flawed. That they were never going to be perfect is no excuse for ignoring those shortcomings.
A total of 482 republican and loyalist prisoners – including Patrick McGee, sentenced in 1985 to 35 years for the Brighton bombing – were released as a result of the Belfast Agreement. Other terrorist suspects, such as Downey and Ryan, have never faced justice and seem unlikely to do so.
Not for nothing does justice wear a blindfold and carry a set of balanced scales. If the burden of prosecutions falls only on one side (especially, one might say, the side serving in uniform against terrorists), that is not justice at all.