Taking the UK to court might be awkward but it’s the right thing to do morally

When he was running for the Tory leadership in 2019, Boris Johnson signed a Sun newspaper pledge to end so-called “vexatious” investigations into former soldiers who served in Northern Ireland. Johnson was unmoved by the fact that there was already an agreement with four of the five Northern parties, and the Irish Government, on legacy. It was called the Stormont House Agreement.

His government unilaterally tore up that deal and instead made clear its determination to introduce an amnesty. The result is the Northern Ireland Troubles (Reconciliation and Legacy) Act 2023 – which was pushed through Westminster by the Sunak government in September, despite the opposition of the Irish Government, victims and all of the Northern parties.

This Act closes down all ongoing conflict related inquests, civil actions, police and police ombudsman investigations and replaces them with a commission with an emphasis on “reviews” rather than investigations. It also introduces a conditional amnesty scheme with a conspicuous low eligibility subjective test threshold. Any former soldier or paramilitary who tells the Commission their version of what happened in a conflict-related event which they believe to be true, “must” be granted an amnesty.

The Irish Government has been telling the British for three years that this is wrong and probably unlawful, the British just haven’t been listening.

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As a result, the Taoiseach has sought and received legal advice from the Attorney General on taking the UK to the European Court of Human Rights . Last week he announced that the Government will make the decision whether or not to litigate against the UK in the coming weeks.

Any state that has signed up to the European Convention on Human Rights can bring a challenge against another member state to the Court for an alleged breach of the Convention. This is referred to as an interstate challenge. Indeed, Ireland has already taken a case against the UK in 1971 over the controversial “five techniques” used to interrogate people arrested during internment in Northern Ireland. Ireland tried and failed to reopen this case in 2018.

So what are the legal advantages of an interstate challenge versus individual cases taken by families?

Legal challenges taken by a number of families are being heard this week in the Belfast High Court. Interstate and individual challenges can run in parallel; they are not mutually exclusive. That said, there are a number of obvious advantages to an interstate challenge.

The first is admissibility. There is a general requirement for interstate and individual applicants to “exhaust local remedies” before accessing the Court in Strasbourg. The Irish Government has no obvious domestic remedy in the UK courts. Moreover, that requirement is dispensed with if the applicant state alleges that legislation introduces, directs or authorises measures incompatible with Convention rights.

Then there’s the question of duration. Individual families will have to go through the national courts up to and including the UK Supreme Court before getting to Strasbourg which often takes years – an interstate case would avoid this as it goes straight to the European Court.

A case taken by individual families will inevitably focus on the facts of their case – the closing of a particular inquest or a police ombudsman investigation. An interstate challenge on the other hand could be much less restricted in its scope and focus, strategically targeting key elements of the Act.

While the UK ratified the Convention in the 1950s, it didn’t incorporate it into domestic law until the Human Rights Act (2000). Following a recent UK Supreme Court judgment, the UK government will argue before the domestic courts that the legal obligation to have proper Convention-compliant effective investigations only commences in 1990, permitting lighter touch “reviews” from 1970-1990 of some of the worst incidents in the conflict. An interstate challenge will avoid such temporal wranglings, enforcing legal obligations from the 1950s.

The Irish Government could also apply for what is termed interim relief – exceptional measures granted in cases where there is “a real risk of serious and irreversible harm” where the Court indicates that a particular action should cease until the court has reached a substantive finding on its legality. While interim measures are also available to individual applicants in their particular case, again an interstate case could potentially have a broader application.

The UK has already been found guilty by the European Court of Human Rights of a number of important failings in investigating conflict-related deaths. The European Committee of Ministers, the enforcement mechanism for adverse findings, has strongly criticised the legacy legislation, particularly the amnesty provisions. The Council of Europe High Commissioner on Human Rights and her UN equivalent have done the same. In short, the Irish Government should be kicking at an open door.

While it has also been suggested that the Irish Government could “support” the individual families who have lodged legal challenges in Northern Ireland, it is hard to imagine what that would look like in practice. The families are legally aided and the Irish Government would have no obvious standing before the UK courts. Legally speaking, an interstate challenge is the way for the Government to honour its commitment to stand by the families.

Of course, this is a political and not just a legal decision. Again, the climate is encouraging. The UK has simply ignored the Irish Government’s public and private objections to the legality and workability of this legislation and has reneged on both the Stormont House Agreement and its associated enabling treaty previously signed with the Irish Government. All of the parties in Northern Ireland are against this legislation and Keir Starmer says Labour will repeal it if elected next year.

As the Taoiseach has said, no one wants to take their neighbour to court. In this instance, it’s the right thing to do morally. Moreover, none of the other neighbours will object. The ones being sued may be moving shortly anyway and the new neighbours moving in should be more agreeable and indeed glad of the political cover provided by such a case.

Professor Kieran McEvoy is the Senator George J Mitchell Chair in Peace, Security and Justice, Queen’s University Belfast