The Legacy Bill: Furthering the Gap to Truth and Justice

by | Aug 16, 2023

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About Aidan McGirr

Aidan McGirr is a law student at New York University. An IILJ Scholar, Aidan is a representative on the University’s International Law Society, a policy writer for the International Refugee Assistance Program, and a member of the Jessup Moot Court. Previously, Aidan completed a Master’s with distinction from Linköping University, where he focused on migration policy. Aidan has also worked with the UN Association of Sweden on peace and security issues, as well as the Global Centre for the Responsibility to Protect. Aidan received his Bachelor degree in astrophysics with a minor in global health from Arizona State University.

Currently before the UK’s House of Lords is the Northern Ireland Troubles (Legacy and Reconciliation) Bill (the Bill). While pacific in name, the Bill is packed with legal and political ramifications set to shake the foundations of human rights accountability on the island of Ireland to the core. On paper, the bill is meant to address “The Troubles” – a period in Irish history from the 1960s to the 1990s during which the north of Ireland was marked with sectarian violence. Prior to the Troubles, the Catholic population of the North was seeking fundamental civil rights, including the ability to vote, to work, and to hold land. Following the Troubles, more than 3,500 people had died, and mass internment and arrest had become the norm. The reckoning of this time period continues today in the quest for accountability and truth.

As the Bill enters its final stages before enaction, it has drawn sharp criticism from the UN Office of the High Commissioner for Human Rights, the Council of Europe Commissioner for Human Rights, the Irish government, Amnesty International, and from victims of the conflict. It has also remained a flashpoint for US-UK relations. With this background, this blog draws attention to what is at stake when the Legacy Bill inevitably passes. In doing so, this blog proceeds with an abbreviated overview of the Bill before discussing its ramifications and concluding with remarks about legal possibilities upon the Bill’s entry into force.

The Legacy Bill began in 2021 as a command paper framed as a statute of limitations for all “Troubles” offences. Yet, this ‘statute of limitations’ operated as a general, blanket amnesty for these offences. Indeed, the paper drew broad criticism, with legal experts pointing out that this amnesty scheme stretched further even than Pinochet’s amnesties.

The Bill was amended and has torn through the UK’s parliament into its current form. Notable now is the development of the Independent Commission for Reconciliation and Information Recovery (ICRIR), an insulated body to conduct reviews of all civil and criminal Troubles-related matters. In parallel with the launch of the ICRIR is the termination of any outstanding criminal investigation on 1 May 2024 and the closure of any civil action brought on or after 17 May 2022. By way of context, Troubles-related matters are often fraught with delay. The families of those killed in the 1972 Bloody Sunday massacre only received their inquiry report some 38 years later, which stated the innocence of every individual killed by British forces on that day. Finally, among other things, the Legacy Bill requires an amnesty be granted for any person who: (1) has requested that immunity, (2) has provided an account which is ‘true to the best of their knowledge and belief’, and (3) has provided information described which would implicate the person for prosecution in serious Troubles-related offenses (See, generally, Sec. 2, Clause 19-23). This amnesty provision at present has no specific prohibition for certain crimes, meaning even crimes of sexual violence could receive an amnesty. Furthermore, the Bill allows the Secretary of State discretion in disclosing statements based on “national security interests” (see Sec. 2, Cl. 4), allowing for complete opacity in reports which otherwise might raise questions of state collusion – a not uncommon feature in this form of litigation.

The effects of such a bill are twofold, on both the people affected and the history to be written. The victims have never had an effective truth commission, and there is much to be gained through transitional justice. But amnesties are questionable at best (MARGUŠ v. CROATIA [139]), and are inappropriate in Ireland’s case (Commissioner for Human Rights – McKerr [22]).

Thus, practitioners must prepare legal challenges to the Bill through several avenues. The best that can be expected from the Northern Ireland high courts would be a declaration of incompatibility. Looking beyond Northern Ireland’s jurisdiction, individual cases could also be tried in the Republic of Ireland. However, this would require the Republic to exert extraterritorial jurisdiction under Art 29(8) of the Constitution. The European Court of Human Rights may also prove fruitful: while individual cases could be brought under Articles 2 or 3, an inter-state proceeding could be brought by any party under Article 33, likewise a creative ex ante application for interim measures under Article 39. Nonetheless, given the scope and power of the Legacy Bill, such challenges may be too little too late, given the impending (and irreversible) closure of all civil and criminal cases.

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