This is a House of Lords and House of Commons Committee joint report, with recommendations to government. The Government has two months to respond.
Date Published: 26 October 2022
On 17 May 2022, the Government introduced the Northern Ireland Troubles (Legacy and Reconciliation) Bill (“the Bill”) to the House of Commons. The Bill is intended to “address the legacy of the Troubles” in Northern Ireland. The Bill establishes a new Independent Commission for Reconciliation and Information Recovery (ICRIR) which will be responsible for reviewing all outstanding legacy cases concerning Troubles-related deaths and “other harmful conduct”. The ICRIR will also be responsible for granting immunity from prosecution to individuals who meet certain conditions (the “conditional immunity scheme”). Meanwhile, all Troubles-related criminal investigations, criminal prosecutions, inquests, civil claims, and police complaints will be subject to prohibitions or restrictions. The existing Early Release Scheme will also be expanded to include offences within a wider temporal scope, whilst removing the requirement for offenders to serve any minimum term.
Since the Good Friday Agreement formally brought an end to the period known as ‘The Troubles’, governments have sought to support the people and communities of Northern Ireland to address the legacy of the past and to reconcile differences between them. It is clear that progress has been made in many areas, and we acknowledge that the bill has been drafted with a positive intent to support reconciliation and enable often complex and contested matters to come to a conclusion. Our concerns reflect a view that despite the good intent, the operation of the bill as drafted would come into conflict with the government’s legal obligations and as such, risk frustrating the intended objectives.
We have serious doubts that this Bill as drafted is compatible with Articles 2 and 3 of the European Convention on Human Rights (ECHR) (the right to life and the prohibition of torture and inhuman and degrading treatment or punishment, respectively), as well as Articles 6 and 13 (the right to a fair trial and the right to an effective remedy). The former Secretary of State for Northern Ireland (SOSNI) made a statement under section 19(1) of the Human Rights Act 1998 that, in his view, the Bill is compatible with Convention rights. We have serious doubts that this view is correct.
Firstly, the cessation of any further criminal investigations, prosecutions (unless already underway or referred by the ICRIR), inquests (beyond 1 May 2023 at the latest), police complaints, and civil claims (as of the date of introduction of the Bill), means that the UK’s obligation to discharge its duty to undertake effective investigations into deaths and serious harm will lie almost exclusively with the ICRIR. We are not convinced that the case reviews undertaken by the ICRIR will necessarily comply with the procedural obligation arising from Articles 2 (the right to life) and 3 (the prohibition of torture) of the ECHR to undertake effective investigations which are independent, effective, reasonably prompt and expeditious, subject to public scrutiny, and involve the next-of-kin. Shutting down all other avenues to pursue truth and justice is a high-risk strategy and places the UK at risk of non-compliance with Article 6 (right of access to a court) and Article 13 (right to an effective remedy). Criminal investigations, prosecutions, and inquests should be permitted to continue, and a more reasonable, longer limitation period should be provided for civil claims.
Secondly, the limited scope of the ICRIR’s reviews risks non-compliance with Article 3 of the ECHR, as it may only review cases which resulted in death or “serious physical and mental harm”, which is narrowly defined as a list of eight medical conditions. There appears to be no clear rationale for this limited definition. It is therefore possible that individuals who have suffered harm amounting to a violation of Article 3, which falls outside the definition in the Bill, will not be eligible to have their cases reviewed by the ICRIR. Although the Secretary of State for Northern Ireland will have the power to refer cases to the ICRIR for review, there is no guarantee that these cases will be reviewed.
Thirdly, the conditional immunity scheme is in direct conflict with the duty to undertake effective investigations which are capable of identifying and punishing perpetrators. This positive duty arises from Articles 2 and 3 of the ECHR. The case law of the European Court of Human Rights (ECtHR) gives, at the very least, a strong indication that amnesties for grave violations of human rights are not permissible under the Convention. The conditional immunity scheme should be removed from the Bill. If it is retained, the threshold for the granting of immunity must be raised so that the veracity of accounts can be tested. Revocation should also be made possible in circumstances where a false account has been given.
Fourthly, the extension of the Early Release Scheme will allow for certain persons convicted of Troubles-related offences to have their sentences reduced to zero, thereby evading any punishment following conviction. The suspension of sentences, early releases, or leniency in sentencing for causing deaths or serious harm can breach Articles 2 and 3. It is therefore possible that the extinguishing of any requirement to serve a sentence for criminal conduct contrary to Articles 2 and 3 may also amount to a violation of those Articles. The Early Release Scheme should not be broadened to the extent that it removes the possibility of punishing perpetrators of serious human rights violations.
Finally, we note that there are several outstanding adverse judgments of the ECtHR against the UK Government relating to Troubles-related cases in Northern Ireland. We are not convinced that the approach put forward in the Bill will address the long-standing problems identified by these cases. The Council of Europe’s Committee of Ministers has urged the UK Government to reconsider its approach and to address its concerns regarding the Bill’s compatibility with the Convention. The Bill’s current approach risks the UK failing to comply with the outstanding judgments of the ECtHR, which is a breach of the UK’s obligations under the Convention.
This Bill attempts to address a situation which is complex and protracted. We acknowledge that there are no easy solutions when it comes to achieving peace, truth, justice, and reconciliation in post-conflict societies. However, our concern lies exclusively with whether the proposals contained within the Bill comply with the UK’s human rights obligations. We have concluded that, in our view, this Bill is unlikely to be found compatible with Convention rights. We therefore urge the Government to reconsider its approach and to put forward a Convention-compliant solution.