What is behind the row between the British and Irish governments?

There have been heated exchanges in light of a decision by Ireland to sue the UK over new legislation that attempts to draw a line under the Troubles. Sean O’Grady looks at the implications of the latest war of words on an issue that continues to beleaguer British-Irish relations

Ireland’s deputy prime minister Micheal Martin (left) and Northern Ireland secretary Chris Heaton-Harris at Farmleigh House, Dublin, during the British-Irish Intergovernmental Conference earlier this year (PA Wire)

The Irish government has decided to sue the UK under the provisions of the European Convention on Human Rights over a new law that attempts to draw a line under the Troubles. Ireland’s deputy prime minister, Micheal Martin, explained that the UK scheme is opposed by many who were affected by Northern Ireland’s deadly decades-long conflict, “especially the victims and families”.

The decision provoked a militant reaction from the British government. The secretary of state for Northern Ireland, Chris Heaton-Harris, suggested hypocrisy on the part of Ireland: “The Irish government should urgently clarify the number of criminal prosecutions brought in Ireland since 1998 relating to Troubles cases,” he said, reiterating a common complaint within unionist quarters and among some Tories.

The issue has proved another irritant to UK-Irish relations, after a period in which they had been warming a little and progress had been made on the intractable problems created by Brexit, overlaid as they are on centuries of strife.

What is the problem with the new UK law?

The fear, shared more widely than just in Ireland, is that the principal effect of the legislation will be to prevent former British soldiers from being brought to justice for serious and unlawful actions undertaken during the worst periods of the Troubles – and, indeed, to prevent the truth from being established, vital as that is in allowing the families of the victims to find closure.

The defenders of the new law, which was passed in September this year, argue that it provides for conditional and limited immunity from prosecution for crimes committed on all sides, and is an important part of the peace process, bringing an end to grievances. The model has been said to be the post-apartheid Truth and Reconciliation Commission in South Africa.

Formally, the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 “proposes to end legal proceedings concerning Troubles-related conduct and provide conditional immunity from prosecution for those who cooperate with investigations conducted by a newly established Independent Commission for Reconciliation and Information Recovery (ICRIR)”.

Why are people unhappy?

Because they see the last chance to achieve justice for victims of the Troubles disappearing before their eyes.

Aspects of the new law include, as above, the provision that those who cooperate with the new commission will benefit from a limited form of immunity from prosecution. The new act will also prevent future civil cases and legacy inquests from taking place – a concept that many find deeply painful.

One important example is the case of the Ballymurphy massacre in Belfast in 1971, in which six innocent civilians, including a priest, were much later found to have been killed unjustifiably by crown forces. Under the new law, those alleged crimes – along with numerous crimes carried out by terrorists – will never be resolved in a courtroom or at an inquest. The legislation has encountered widespread opposition from political parties and victims’ organisations in Northern Ireland.

What does the DUP say?

The Democratic Unionist Party is unhappy with the new law – but also with the Irish attempt to reverse it, because its members want no amnesties for violence anywhere. The DUP leader, Jeffrey Donaldson, accused Dublin of “double standards”, saying: “I don’t think the Irish government are in a very strong position to point the finger ... for years, effectively, there has been a form of amnesty in the Irish Republic, because they have not actively pursued those responsible for these crimes.”

Does it affect the peace process?

The arguments are potentially another complication in the process of trying to get the Northern Ireland Executive at Stormont back to work. Much progress has been made in recent weeks to persuade the DUP to end its boycott and to accept a financial settlement and reassurance about the post-Brexit Windsor Framework and the status of Northern Ireland in the UK internal market (as well as aspects of the EU single market). But grievances have a habit of getting linked together into a tangle in the context of Northern Irish politics.

More widely, much of the momentum in the peace process, since the then prime minister John Major embarked on it with his counterpart Albert Reynolds three decades ago, has been driven by the intimate and trustful working partnership between London and Dublin. Without that, the peace process is doomed.

What does it mean for the Tory party debate about the European Convention on Human Rights?

It gives the right wing of the Tory party, already deeply unhappy with the judgments of the European Court of Human Rights (ECHR) concerning the Rwanda scheme, another reason for the UK to withdraw from the convention. That would be a further problem for the peace process, because the convention is an integral part of the 1998 Good Friday Agreement, the foundation of the power-sharing institutions. Because of that, as well as a general desire to maintain good relations with Washington and the EU, the government will not withdraw from the convention.

What will happen, then?

The UK will press on regardless, because it cannot be seen by its own supporters to be doing what the ECHR wants it to. So even though, one day, the current proceedings may be ruled unlawful by the ECHR, the British government isn’t pausing: “We will continue robustly to defend the legislation, including to ensure that the work of the ICRIR can continue without impediment while proceedings are ongoing. The overriding purpose of the Legacy Act is to enable more victims and survivors to obtain more information faster than can be achieved under current legacy mechanisms. We cannot afford further delay in the provision of effective legacy outcomes – both for families and wider society.”

The ECHR judgment will probably not arrive until after the next election, so it’s hard to prejudge the course of events at that stage. If the ECHR does find in favour of Ireland, then the act must fall, or else survive in a state of semi-legal limbo under international law, eventually seeking a view from the UK Supreme Court.