Austen Morgan: ​I do not expect Ireland to win its legacy legal action against the UK

The Irish attorney general, Rossa Fanning SC, has yet to reveal the Irish application. On present showing, I would not predict success for Dublin in Strasbourg. The human rights court cannot strike down UK legislation (not even the European Union tried that before Brexit).

I have recently published a legal essay for the Malone House Group, which believes legacy is simply anti-state: The Northern Ireland Troubles: Strasbourg’s article 2 in legacy cases, now available in different formats from Amazon.

The doctrine of parliamentary sovereignty makes the UK a dualist state. Dualism means there is a complicated relationship between domestic law and international law. The Irish application treats the UK as a monist state (the alternative). Monism sees the European convention as simply a part of domestic law.

In the UK, persons have accessed the European convention, from October 2 2000, through the Human Rights Act (‘HRA’) 1998. Section 2 permits UK judges, in domestic courts, to follow Strasbourg…or not.

Article 2 substantive of the convention protects the right to life. The controversial article 2 procedural, identified by the Strasbourg court in 2001, requires additionally investigations of historic cases. However, article 46 of the convention only requires the UK to abide by judgments in which it was a party. The so-called McKerr group of cases (from 2001) is now a matter for the committee of ministers of the council of Europe, not the court.

In UK law, a number of important supreme court cases has pushed back against a dogmatic article 2 procedural (unique to Northern Ireland): McQuillan in December 2021; R (Maguire) in June 2023; and Dalton in October 2023.

I now argue that section 2 of the HRA 1998 should be used to dispense finally with the Strasbourg ten (or twelve) year pushback rule, whereby investigations are only necessary for killings from October 2 1988 or 1990.

The Republic of Ireland (‘ROI’) first went to Strasbourg, in 1971, over ill treatment under internment, winning the case eventually in 1978. The UK was held responsible for inhuman or degrading treatment. However, when the ROI tried to reopen that case in 2014 (again alleging torture), it failed in 2018 – by six votes to one (the dissenter being the Irish judge, Síofra O’Leary).

The ROI held the presidency of the 46-member states council of Europe, in May to November 2022. Judge O’Leary then became president of the court. However, she is due to retire in July 2024, after her nine years on the bench.

In 1971, the ROI was not involved in Northern Ireland. That changed with the 1998 Belfast agreement. Dublin secured a right to be consulted, but less so when devolution worked. In 2014, the Pat Finucane centre in Derry surprisingly forced the Irish government to go to Strasbourg; diplomacy gave way to international litigation.

Things changed in UK/Irish relations on 18 March 2020 (just before the pandemic). That was the day the government introduced legislation, providing protection for veterans who had served on overseas operations.

‘We propose to address the legacy of the past in Northern Ireland’, Brandon Lewis told parliament, ‘in a way that focuses on reconciliation, delivers for victims, and ends the cycle of reinvestigations…that has failed victims and veterans alike…’.

This policy bore fruit in what is being called the Legacy Act 2023, which received royal assent last September. The Northern Ireland Office even established the Independent Commission on Reconciliation and Information Recover (‘ICRIR’), headed by the former lord chief justice, Sir Declan Morgan, in shadow form before enactment. It will go live in May 2024.

The Irish government has put itself at the head of an apparently formidable coalition of forces, none of which will be much help in Strasbourg.

First, the political parties of the ROI. They can explain to Strasbourg why the new Irish state, in the early 1920s, legislated three times to amnesty all but the civil-war republicans. Further, they can explain why Bertie Ahern, in negotiations with Tony Blair, demanded simultaneous amnesties in December 1999.

Second, the five-party coalition from the assembly, currently suspended. The 2014 Stormont House agreement never made it past the 2015 Fresh Start agreement. If the five parties had had an agreed policy on legacy, they could have legislated for it at Stormont. They, or rather the DUP and Sinn Féin, could agree only to pass the poisoned chalice to Westminster. The parties variously opposed the government’s legislation in 2022-23. The DUP did not seek to undo the concessions over the years to the IRA. The SDLP, and Alliance, concentrated upon state killings, when 90 per cent of those who died – 3,750 in 1968-98 – were victims of republicans and loyalists.

Third, the victims in Northern Ireland, but also Great Britain and even Europe. They are not united. They are not even represented. Some concentrate upon soldiers and police officers, and loyalists through collusion. Other groups pursue the IRA, even though the peace process involves Sinn Féin being in government. The victims are given sectarian voices by clientelist politicians. Above all, one cannot disregard the legacy practitioners, who mount cases legally, contributing to what is called lawfare.

Fourth, the Labour opposition in Great Britain. It quickly promised the repeal of the Legacy Act 2023, if and when there is a Starmer government. The new shadow secretary, Hilary Benn, was even more quick, on his first visit to Northern Ireland, to impose a condition of a credible alternative, before he would set about destroying Sir Declan Morgan’s ICRIR.

Fifth, president Joe Biden. The Irish pride themselves on their influence in Washington DC. Biden – aging and cognitively challenged – is content to wallow in ethnicity, proclaiming his Irishness like the northern Democrat politician he is. US power will cut no ice in Strasbourg.

And finally, what if the UK applies to stay the Strasbourg case, in favour of the ongoing Northern Ireland challenges to the Legacy Act 2023? The human rights judges hold the UK supreme court in high regard, and may decide to see what domestic law makes of the issue before they have a go.

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Dr Austen Morgan is a barrister in London (at 33 Bedford Row) and Belfast. He is the author of: Pretence: why the United Kingdom needs a written constitution, London 2023. He is a member of the Malone House Group, which works on the legacy of the Northern Ireland Troubles