Legal experts warn latest legacy proposals incompatible with human rights laws
Proposals to limit legacy investigations in order to protect former British soldiers from “vexatious claims” are incompatible with the UK’s human rights obligations, a new report has warned.
Professor Kieran McEvoy of Queen’s University Belfast School of Law has led work by a team of legal experts to scrutinise 11 distinct proposals on dealing with the past, including the controversial proposals unveiled by the UK government last month.
The report concludes that the latest proposals are incompatible with the European Convention on Human Rights (ECHR), the Good Friday Agreement and the Stormont House Agreement.
Professor McEvoy said: “The latest government statement appears to envisage the abandonment of the structures proposed in the Stormont House Agreement in favour of a process wherein the bulk of outstanding conflict investigations would be ‘fast-tracked’.
“It is difficult to see how such a process could amount to an effective investigation as required under Article 2 of the European Convention of Human Rights.
“It is clear that a driving influence on the UK government’s approach to legacy in recent times has been a desire to ensure that British soldiers do not go to prison for conflict-related offences. An unhelpful narrative has arisen falsely equating attempts to prosecute British soldiers for such offences with a ‘witch-hunt’.”
The report directly addresses the contention that investigations or prosecutions of British security forces are vexatious, and concludes that the “key arguments” are “neither factually nor legally accurate and lack intellectual credibility”.
Gemma McKeown, solicitor at the Committee on the Administration of Justice (CAJ) and one of the co-authors of the report, said: “The reality is that for some members of the current government, and some back-benchers, even one soldier being convicted and imprisoned for conflict related offences is one too many. It is that urge for impunity, dressed up as ‘witch-hunt’ that appears to be propelling government policy.”
The report argues that implementing the Stormont House Agreement “remains the best way to finally deal with the past in Northern Ireland”, co-author Professor Louise Mallinder said.
She added: “Bearing in mind the government’s clear determination to keep soldiers out of prison, we have also reviewed a number of options which would see the Stormont House Agreement implemented in full - but where the current two year sentence before being considered for early release could be reduced to zero.
“In one version, the government would unconditionally reduce the two-year requirement to zero under its existing powers contained in the Northern Ireland Sentences Act 1998. In the other, a reduction to zero would require engagement by the sentenced person with the information recovery element of the SHA. Both would be lawful in our view.
“We fully understand that many victims would want to see those who have killed their loved ones serve the two-year sentence before being considered eligible for early release.”
Dr Anna Bryson said: “It is time to finally make good on the promises made to victims and survivors on dealing with the legacy of the past.
“That can only be done by ensuring that families get the Article 2 compliant investigations to which they are legally entitled, and that the commitments made in the Good Friday Agreement and the Stormont House Agreement are honoured.”