Peadar Tóibín (Meath West, Aontú)
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454. To ask the Minister for Foreign Affairs and Trade if the Government will take cases on behalf of victims and survivors of British collusion to the European Court of Human Rights as in the case of persons (details supplied). [34196/22]

Peadar Tóibín (Meath West, Aontú)
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542. To ask the Minister for Foreign Affairs and Trade if the Government will investigate and prepare a court case for the European Court of Human Rights on the basis of the violation of the right to life as a result of the absence of any just and fair investigation into the murders that occurred as a result of British collusion given that the British Government will implement a law that will give amnesty to those who murdered in collusion with the British state. [34463/22]

Simon Coveney (Cork South Central, Fine Gael)
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I propose to take Questions Nos. 454 and 542 together.

It is deeply disappointing that the British Government has chosen to unilaterally introduce its 'Northern Ireland Troubles (Legacy and Reconciliation) Bill', and has in so doing moved away from the process agreed in the Stormont House Agreement, a process that was agreed by both Governments, political parties and victims and survivors groups.

We have profound concerns both on the substance of this Bill and the process of its drafting and introduction, and we are conscious that it has been strongly opposed by victims, by the Northern Ireland parties, and by civil society groups. I know that many families are upset by the publication and progress of this Bill, including those waiting for inquests or pursuing civil litigation. There will be many that understandably feel that immunity, conditional or otherwise, may be more about protecting perpetrators instead of pursuing justice and getting to the truth in such cases. 

We also have serious questions with regard to the Bill's compliance with international human rights obligations, and in particular, as to whether the Bill complies with the positive obligation on states to carry out effective investigations into unlawful deaths required by Article 2 of the European Convention on Human Rights.

The Council of Europe Committee of Ministers brought forward their examination of the McKerr Group of legacy cases at Ireland's request in light of the introduction of the Bill. The examination took place on 9 June. Ireland delivered a national statement during the debate, expressing serious concerns and questions with regard to the compatibility of the Bill with the European Convention on Human Rights. It is now expected that the UK will have to answer a series of questions on the legislation from the Secretariat, namely to explain how the Bill is convention compliant, and how it will gain public trust, ahead of a further discussion in Strasbourg in September. 

The right of individual application is at the core of the system established by the European Convention on Human Rights. It is not generally the role of the European Court of Human Rights to examine the compatibility of a state’s domestic laws with the Convention in the abstract.  Rather, the Court examines whether the application of a state’s domestic laws gives rise to a violation of the Convention in a given case, in light of the relevant factual circumstances. In doing so the Court will normally have the benefit of the evidence before the domestic courts as the impact of the state’s domestic laws on the Convention rights of the individual concerned.  

Any future examination by the Court as to whether this Bill, if enacted, is compatible with the United Kingdom’s obligations under the Convention will necessarily turn on the factual circumstances of a given case. In order to do so,  it must be in a position to assess its practical impact on the conduct of an inquest, prosecution, civil action, or police complaint, and whether this gives rise to a violation of the Convention in a given case.

In this light, discussion concerning the possibility of the referral of an inter-state case to the Court by Ireland concerning the Bill is, in the Government’s assessment, premature.

It is also important to note that since the entry into force of the Convention in 1953, there have been just over 30 such inter-state cases. The vast majority of inter-state cases before the Court arise from regional conflicts between contracting states.  Ireland has only exercised the right to refer an inter-state case to the Court on one occasion previously (Ireland v United Kingdom (1972)). That case concerned practices which in the Government’s view amounted to torture, in breach of Article 3 of the Convention, and was taken against the background of the exercise by the United Kingdom of wide-ranging extrajudicial powers of arrest, detention, and internment in Northern Ireland. 

As such, the case of Ireland v United Kingdom is illustrative of the grave and exceptional circumstances in which the Government will consider exercising its right to refer an inter-state case to the Court.

However, the Government has consistently been and remains fully committed to engaging with victims and families, with the parties in Northern Ireland and with the British Government to strongly advocate for a collective approach to legacy which is based the legitimate needs of victims and that, crucially, must meet its human rights obligations. We do not believe that the Bill in its current form meets those important tests. We will also continue to engage proactively with the Council of Europe Committee of Ministers on this issue and in support of families. Ireland’s current role as President of the Committee of Ministers of the Council of Europe represents a timely opportunity to ensure that concerns regarding the compatibility of the Bill with the Convention are satisfactorily addressed by the British Government.