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Legacy Act sees Ireland take UK to court for second time in history

The legal advice is that the UK’s controversial Legacy Act is not compatible with the international human rights legislation

Dublin has consistently raised its concerns, as have others, not least victims and survivors themselves – and London has not listened. Photograph: Frederick Florin/AFP via Getty Images
Dublin has consistently raised its concerns, as have others, not least victims and survivors themselves – and London has not listened. Photograph: Frederick Florin/AFP via Getty Images
Freya McClements's picture
Freya McClements
Wed Dec 20 2023 - 19:31

For only the second time in the history of the two states, Ireland is taking the UK to court.

The legal advice received by the Government is that the UK’s controversial Legacy Act is not compatible with international human rights legislation, and it is to challenge it with an inter-state case in the European Court of Human Rights (ECHR).

“It’s still a fairly rare thing, because it’s a big deal obviously for a state to take another member state or indeed a close neighbour to court, so it tends to be a kind of last resort,” says Professor Kieran McEvoy from Queen’s University, Belfast.

Announcing the decision on Wednesday the Tánaiste made clear this was indeed a last resort and had been taken with “regret.”

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“The British government removed the political option and has left us only this legal avenue,” said Micheál Martin. “I used every opportunity to make my concerns known and urged the British government to pause this legislation.”

Eight years ago, amid a much warmer climate for British-Irish relations, the Irish and British governments agreed upon a joint approach to dealing with the legacy of the North’s Troubles, the Stormont House Agreement.

It was never implemented; instead, the UK government unilaterally dropped it for a new and highly controversial approach, the Legacy Act, which became law in September, and includes a conditional amnesty for perpetrators.

Dublin has consistently raised its concerns, as have others, not least victims and survivors themselves – and London has not listened; the feeling is that given this, and the Attorney General’s advice that the legislation is in breach of the European Convention on Human Rights, it has little option but to take the case.

A point made repeatedly on Wednesday was that it should never have been necessary: “This perpetrator-friendly legacy legislation should never have been imposed on victims and survivors in the first place,” said the Belfast-based support group WAVE Trauma Centre.

“It is regrettable that victims and survivors and now the Irish Government have to go to the courts to challenge this legally dubious and morally corrupt legislation.”

Most observers had little doubt this would end up in the courts; a judgment is already awaited in the High Court in Belfast after bereaved families took a legal challenge.

One of the big advantages of an inter-state case is that it is quicker, as it does not have to exhaust domestic courts first. “It’s one member state saying another member state has breached the rules, it’s a big deal diplomatically and legally, so not only does it go straight to Strasbourg, it kind of gets ahead in the Strasbourg queue as well,” says McEvoy.

Unlike cases brought by individual families, the inter-state case can address the whole picture under the umbrella of Britain’s human rights obligations.

It also sorts out another legal wrangle over the application of the ECHR, which Britain dates to 1990; Strasbourg says it was signed in the 1950s, so applies without exception.

How long this process will take is not yet clear; one point to watch for will be whether the Government seeks interim measures to prevent the legislation being implemented until the case is concluded.

The impact has already been felt on British-Irish relations; the UK government hit back, describing the Government’s move as “misguided” and urging it to look to its own record, something which some families, seeking answers from Dublin, will echo.

That said, relations with this particular British administration may well be only a temporary problem if, as most believe, Labour will win the forthcoming general election; in this scenario, the inter-state case could give Keir Starmer’s government useful cover for fulfilling his pledge to scrap the legislation.

The last time Ireland took the UK to the European Court of Human Rights was in the 1970s, over the so-called Hooded Men and whether the use of controversial interrogation techniques by British security forces amounted to torture.

This time, says McEvoy, he would be “astonished” if the amnesty is lawful, and he also believes the court will “look closely” at other provisions, not least around what entails a proper investigation.

The legislation, he believes, is “going to unravel, because I don’t think it’s lawful.”

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