The House of Lords has passed the Northern Ireland Troubles (Legacy and Reconciliation) Bill after amending it. The bill now returns to the House of Commons for consideration of the amendments.
This article will focus on two of the major changes made by the Lords. First, they struck from the bill the provision authorizing grants of immunity to perpetrators of serious crimes. Second, they added language specifying that the objective of a newly created body - the Independent Commission on Reconciliation and Information Recovery (ICRIR) - will be to promote reconciliation.
One significant amendment passed by the House of Lords removes a controversial immunity provision from the bill. That provision provides perpetrators of Troubles-related serious offenses - including “murder, manslaughter or culpable homicide” - immunity from prosecution, if they provide an “account” of conduct that is true to the best of their knowledge and belief.
The immunity provision amounts to a grant of amnesty for perpetrators of serious crimes. It’s worse than a get out of jail free card. Indeed, Daniel Holder, Director of the Committee for the Administration of Justice (a Belfast human rights NGO) has described the immunity provision as tantamount to a “get out of investigation free card.” Amnesties for the commission of serious crimes, like murder, are prohibited by human rights and humanitarian laws.
It may be a dangerous exercise to forecast what happens to an amended bill when it is returned to the House of Commons. An additional consideration warranting caution, in this case, is a recent Amnesty International commissioned poll of 2,171 United Kingdom (UK) adults. In the poll, 58% of Conservative Party voters said those accused of Troubles-killings should not receive immunity from prosecution in exchange for providing information about their crimes.
Nevertheless, a safe prediction is that the House of Commons will reject the Lords’ elimination of immunity and include such a provision in the final version of the law.
First, the Conservative government, which has an overwhelming majority, has made commitments to UK veterans lobbying groups that it will enact a law granting veterans and state security officers immunity, so that they will no longer be subject to investigation and prosecution for their conduct during the Troubles.
Second, the government intends to fast-track the legislation and pass it before the parliamentary term ends later this month.
Third, the government tabled other amendments, passed by the House of Lords, aimed at strengthening the bill in the face of an inevitable court challenge on human rights grounds. Based upon these additions to the bill, the UK government hopes the law can withstand court scrutiny. In that regard, Ireland’s Joint Oireachtas Good Friday Committee indicated, once the bill becomes law, it will ask the Irish government to file an interstate-case challenge before the European Court of Human Rights, similar to the famous Ireland v UK (1978) case on torture.
The bill is opposed by each of Northern Ireland’s major political parties, the Irish government, members of the US Congress, victims’ rights groups, and, most importantly, victims’ families. Survivors and victims’ families should be at the center of any legislation dealing with the legacy of the Troubles. Unfortunately, they are not. Therefore, with or without an immunity provision, one can expect this opposition to the bill will continue.
The bill calls for the end of criminal investigations by the Northern Ireland (NI) Police Service on May 1, 2024. Any inquests into the cause of deaths and NI Police Ombudsman legacy investigations must cease, if not completed by that date.
Finally, a victim’s family will be foreclosed from filing a civil suit for damages related to the unlawful death of a loved one. Each of these measures is essential to ensuring that NI remains compliant with the European Court of Human Rights caselaw.
In place of these measures, the ICRIR will carry out “reviews” of Troubles-deaths and harmful conduct, grant immunity, produce reports of findings, refer cases they deem appropriate for prosecutors, and produce a historical record of the Troubles. The amended bill states that ICRIR reviews must fully comply with obligations imposed by the 1998 Human Rights Act and the European Convention on Human Rights.
Another amendment has to do with the stated goal of the ICRIR. Language has been added to the bill to make clear that in exercising the functions described above, the ICRIR’s principal objective is to “promote reconciliation.” In this way, the ICRIR’s objective matches one of the objectives in the Bill’s title: “Address the legacy of the Northern Ireland Troubles and promote reconciliation.”
Why is the additional language about the ICRIR’s objective important? As previously stated, amnesties for those who have committed grave breaches of fundamental human rights (for example, violating a person’s right to life under Article 2 of the European Convention on Human Rights) are unlawful, because they can lead to impunity for perpetrators.
Under the bill, the ICRIR is the body that grants immunity/amnesty. In dicta in the Margus v Croatia (2014) case, the European Court of Human Rights seemed to accept that an amnesty may be lawful in “some particular circumstances such as a reconciliation process.” The new language buttresses the notion that the bill promotes reconciliation and supports an argument that the ICRIR immunity process is part of a reconciliation process, thereby attempting to create a safe harbor for the immunity/amnesty provision.
If that is the intent of this new provision, it widely misses the mark. It would be entirely disingenuous for the UK government to argue that its initiation of a reconciliation process now, coming 25 years after the Good Friday Agreement, qualifies as an exception to the prohibition against amnesties. Also notable is that the UK and Irish governments signed the Stormont House Agreement in 2014 to address legacy matters. It had the support of the major political parties in NI, excluding the Democratic Unionist Party, and victims’ families. Yet, the UK unilaterally failed to implement it.
Furthermore, saying the goal is to promote reconciliation doesn’t make it so! Reconciliation is the necessary foundation for turning violent conflict into a durable peace. It can be fostered by many things - including building trust and relationships, understanding the other and developing a shared vision of the future, learning to live cooperatively, acknowledging the past, and healing. Truth-telling is a core element of reconciliation.
It’s impossible for individuals to reconcile without truth. It is hard to see how replacing police and Ombudsman investigations, inquests, and civil suits with the ICRIR process will enhance truth-telling. In fact, it will obscure the truth. And therein lies the rub.
Each of the soon-to-be discarded measures uncovered facts that had in many cases been intentionally covered-up and hidden, often for decades. That is the reason why the UK government is abandoning those measures.
The real purpose of the legislation is not reconciliation. It is to cover-up collusion. As Baroness Nuala O’Loan (former NI Police Ombudsman) so eloquently put it during the House of Lords’ debate on the bill’s third reading: “The real purpose of this bill . . . is to control access to information so that some people will never be able to prove what happened in cases of state action, and to protect those veterans - there are few, both police and military - who may have committed the greatest crime that being murder.”
The ICRIR process will not promote reconciliation. It will do the opposite. It will set reconciliation efforts in Northern Ireland back.
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