Britain has long suffered from a failure to pay proper attention to Ireland. So the news that Ireland is to bring an inter-state case against the UK under the European human rights convention may have caught some on the hop. There can be no excuse for that. This state-against-state clash, only the second that the UK has faced from Ireland, has been coming for at least a year and a half. What is more, Ireland is in the right and the UK in the wrong.
Boris Johnson’s government launched the original Northern Ireland Troubles (legacy and reconciliation) bill in 2022. After some changes, it eventually became law in September this year. Its aim, in Mr Johnson’s overstated words, was “to draw a line under the Troubles”. The new act has not drawn any such line. Instead, it has been opposed every step of the way by almost everyone except the Conservative party and some UK veterans’ organisations. Most important of all, it is opposed by all the main Northern Ireland political parties, from Sinn Féin to the Democratic Unionists.
The legacy law sets up an independent commission for reconciliation and information recovery. Its central purpose is to enable the families of the more than 3,500 dead from the Troubles era – which lasted from 1966 to 1998 – to find out how their relatives were killed. Many cases remain unsolved, so this is a desirable goal. But the legacy law allows the commission to give conditional immunity from prosecution to those who reveal details of the killings, while closing down future alternatives such as inquests and civil actions. It is biased against victims’ families.
This is the nub of the argument for supporters and opponents alike. Rishi Sunak’s government wants to end legal proceedings against British soldiers and members of the security forces because this is a hot-button issue for the Tory right and for some rightwing tabloids. But the chosen mechanism does not just antagonise nationalists, who think killers from the security forces should have to answer for their actions, it also angers unionists, who want relatives to have a say before any republican paramilitaries are given immunity.
The legacy law lacks political friends. But it also lacks legal ones. Challenges were already under way in the Northern Ireland courts. The inter-state case is now likely to get priority. Much legal opinion thinks that the law infringes the European human rights convention because it weakens a “procedural obligation” to conduct effective investigations into deaths caused by state agents such as members of the security forces. The new commission itself has called for clarity.
The legacy law is flawed and irresponsible. Pressing ahead in the face of such opposition was an act of bad faith, particularly after a better approach appeared to have been settled in the Stormont House agreement in 2014. It also places yet another post-Brexit strain on the Anglo-Irish relationship and on the peace process of which both states are guarantors. London should have agreed to Dublin’s request to pause the law.
In some ways this is now a phoney dispute. Few expect the Sunak government to survive the next UK election. For shortsighted partisan reasons, Mr Sunak may welcome the prospect of a human rights court finding against Britain. That is against the national interest. A Labour government would scrap the legacy law anyway – rightly so. The sooner a more just way of dealing with legacy issues is established, the better.
