The UK Government’s controversial new Troubles Legacy Act is a parliamentary-endorsed attempt to achieve reconciliation in Northern Ireland, the Court of Appeal heard on Tuesday.
Counsel for the Secretary of State also argued that perpetrators of conflict-related crimes offered conditional amnesties under the bitterly-opposed legislation could still face prosecution.
Tony McGleenan KC insisted: “If it’s not earned, the criminal justice process remains intact.”
The government is challenging a finding that parts of the Act breaches human rights laws.
The Northern Ireland Troubles (Legacy and Reconciliation) Act, which came into effect last September, could offer potential immunities to those accused of killings during more than 30 years of sectarian violence.
It also brought a halt to civil litigation and inquests not completed by the cut-off date of May 1.
The government has described the Act as an attempt to draw a line under Northern Ireland’s troubled past.
It involved the establishment of an Independent Commission for Reconciliation and Information Recovery (ICRIR) where self-confessed perpetrators who fully cooperate with the legacy body may be offered immunity from prosecution.
Amid fierce criticism from victims’ organisations, political parties and the Irish Government, a raft of judicial review challenges were brought by some of those who either lost loved ones or were injured in the conflict.
They argued that the legislation is unconstitutional, denies access to justice and aimed at protecting British Army veterans and other security force personnel from prosecution for any wrongdoing in Northern Ireland.
In February, the High Court ruled that the potential granting of immunity under the Act is in breach of the European Convention on Human Rights (ECHR).
A judge also declared that sections of the legislation shutting down Troubles-related civil actions brought after May 17, 2022 and prohibiting any new claims lodged after November 18, 2023 is incompatible with Article 6 of the ECHR and the Windsor Framework.
Opening the appeal against those findings, Mr McGleenan argued that the changes to criminal and civil justice within the Act had their foundation in previous legislative “modifications” which led to the Belfast Good Friday Agreement back in April 1998.
He set out a series of initiatives during the intervening years aimed at Northern Ireland’s troubled past, including the Eames/Bradley Consultative Group, the Stormont House Agreement and the New Decade New Approach deal which led to the restoration of power-sharing in 2020.
Analysing the terms of the Act, the barrister said it has been “characatured and criticised” for being about protecting British veterans.
But he stressed: “It’s about a great deal more, it’s about fidelity to the core principles of the Belfast Agreement, particularly that of reconciliation.
“It’s an attempt to address political failures to implement those core principles.”
The three appeal judges, Lady Chief Justice Keegan, Lord Justice Horner and Mr Justice Scoffield, were told the new legislation was also aimed at dealing with “real capacity problems” in Northern Ireland’s legal system.
“It makes provision for victims and memorialisation,” Mr McGleenan maintained.
“It seeks to ensure maximum incentives for those involved in the Troubles who seek immunity to make full and truthful disclosure while also reserving full capacity for prosecution.”
During submissions he explored the legislative process in the lead up to the Act receiving Royal Assent.
By 2022 attempts to develop a policy were under consideration at the highest levels of government, the court heard.
It was set out how the Prime Minister at the time, Boris Johnson, intervened to shift proposals for a general amnesty to a conditional one where immunity from criminal charges must be earned.
Mr McGleenan contended that the government and Parliament subjected the Bill to “anxious consideration” before reaching the view that it complied with Article 2 of the ECHR.
The court was shown internal memorandums about how the legislation was scrutinised on meeting those obligations.
Despite the Council of Europe having urged the government to make amendments, Mr McGleenan insisted the Council of Ministers did not issue an outright condemnation of the conditional amnesty proposals as breaching Article 2.
“They are expressing concern, acknowledging a risk that it might,” he said.
According to counsel, the terms of the Act were examined and ultimately enshrined into primary legislation.
“There is the importance of parliamentary sovereignty,” Mr McGleenan emphasised.
He went on to argue that the legislation also allows for the examination of “preventability” in incidents where it is alleged that the state could have done more,
Mer McGleenan added: “The underpinning concept of all this is that prosecutions continue, save where immunity is, in the words of the Prime Minister, earned.”
The appeal continues.