From Department of Foreign Affairs
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Today, the government decided to initiate an inter-State case against the United Kingdom under the European Convention on Human Rights.
In its application, the government will argue that the provisions of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 are incompatible with the United Kingdom’s obligations under the Convention.
Speaking following the government decision, the Tánaiste said:
“This decision was taken after much thought and careful consideration.
“I regret that we find ourselves in a position where such a choice had to be made.
“However, the decision by the British Government 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.
“The incorporation of the European Convention on Human Rights into Northern Ireland law is a specific and fundamental requirement of the Good Friday Agreement. Since the UK legislation was first tabled, the government have been consistent that it is not compatible with the Convention.
“I used every opportunity to make my concerns known, and urged the British Government to pause this legislation.”
The Tánaiste highlighted that:
“I have consistently adopted a victims-centred approach to this issue. We are not alone in our concerns. Serious reservations about this legislation have also been raised by a number of international observers, including the Council of Europe’s Commissioner for Human Rights and the UN High Commissioner for Human Rights. Most importantly, this legislation is opposed by people in Northern Ireland, especially the victims and families who will be most directly impacted by this Act.
“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. 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.
“The British Government enacted this legislation on 18 September 2023, shutting off any possibility of political resolution.
“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.”
1. In May 2022 the British Government introduced the Northern Ireland Troubles (Legacy and Reconciliation) Bill, which was enacted on 18 September 2023. The publication of this legislation marked a unilateral departure from the 2014 Stormont House Agreement, which set out a path on legacy that had been agreed between the two governments and most parties in Northern Ireland.
2. The two governments began the process of implementing the legacy provisions of the Stormont House Agreement in 2015 with the signing of a bilateral treaty to establish the cross-border Independent Commission on Information Retrieval.
3. In January 2020, the UK Government committed to publishing the legislation required to implement the legacy provisions of the Stormont House Agreement within 100 days. They did not do so.
4. The stated purpose of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 is to address the legacy of the Troubles and promote reconciliation by establishing an Independent Commission for Reconciliation and Information Recovery (the ICRIR), limiting criminal investigations, legal proceedings, inquests and police complaints, extending the prisoner release scheme, and providing for experiences to be preserved and memorialised. The ICRIR would have the power to grant immunity from prosecution for crimes amounting to gross human rights violations (such as intentional killing or ill-treatment of civilians).
5. Since the introduction of the draft legislation, the government has expressed concerns about its compatibility with the European Convention on Human Rights (ECHR). Respect for the ECHR is a fundamental safeguard of the Good Friday Agreement. An additional concern is that unlike the Stormont House Agreement, this Act makes no provision for cross-border cooperation in legacy cases with an all-island dimension.
6. There is near universal opposition to the Legacy Act on the island of Ireland.
7. A number of international observers have also expressed strong concerns with the Act’s provisions, including the UN High Commissioner for Human Rights, Volker Türk, and the Council of Europe Commissioner for Human Rights, Dunja Mijatović,
8. In addition, the Council of Europe’s Committee of Ministers has adopted a number of decisions resolutions since the introduction of the legislation, expressing its concerns about ECHR compatibility and urging the UK to reconsider the immunity provisions of the legislation.
9. Under the rules of the Court, a case must be initiated within four months. With the Bill having been enacted on 18 September 2023, that period expires shortly (17 January 2024).
10. Article 33 of the ECHR provides that any contracting party to the ECHR may refer any alleged breach of the Convention by another contracting party to the European Court of Human Rights (referred to as inter-State cases).
11. There have been over 30 inter-State cases since the ECHR entered into force in 1953. At present there are some 14 inter-State cases pending before the European Court of Human Rights.
12. Ireland previously initiated an inter-State case against the United Kingdom on 16 December 1971 (Ireland v United Kingdom (no. 5310/71). In its judgment, delivered on 18 January 1978, the European Court of Human Rights held that certain techniques of interrogation used by the British forces constituted a practice of inhuman and degrading treatment, but not torture, within the meaning of Article 3 ECHR. Ireland subsequently applied to revise the Court’s judgment, which application was dismissed by decision of 20 March 2018.