Posted by Nadia O'Mara on 12 Nov 2019

No one is above the law, including the Armed Forces.

Yesterday, the Conservative party pledged to change the law to prevent former members of the Armed Forces from facing legal action – in particular those being investigated over alleged wrongdoing in the Northern Ireland conflict.

The proposal would amend the Human Rights Act (HRA) 1998 so it doesn’t apply to anything that took place before October 2000 – when the Act came into force. It seeks to ban inquests from returning verdicts of unlawful killing for deaths during the Troubles.

Our policy and campaigns officer Nadia O’Mara explains how this dangerous plan threatens both the Northern Ireland peace process and our fundamental rights.

What does the law say?

The HRA, which puts the European Convention on Human Rights (ECHR) into UK law, protects the right to life. This requires proper, effective investigations into all deaths caused by the State or where it appears the State has failed to protect life.

This usually happens through an inquest or a public inquiry – investigations designed to bring to light any wrongdoing, neglect or systemic failings. This makes sure those responsible are held to account, failings are not repeated, and vital lessons learned.

Sometimes the State is reluctant or unwilling to carry out a proper investigation. This can be for several reasons, but sometimes it is because there is Government complicity or collusion in a death and the State does not want its involvement to come to light. In these situations, families and other people affected can be made to fight for decades to secure proper investigations into loved ones’ deaths.

When there are significant delays or repeat investigations it is almost always because of the State’s failure to do its job properly the first time.

What are the new proposals?

Yesterday’s announcement responds to mounting calls from a small group of parliamentarians and ex-service personnel for soldiers to be protected from investigations and prosecution for historic offences – claiming it is unfair to face multiple investigations or to be prosecuted a long time after the event.

This fails to acknowledge that it is the repeat and shocking failure of successive governments to properly investigate alleged misconduct by the Armed Forces at the time it happened, which has led courts to order effective investigations down the line. This situation was a hallmark of UK military operations in Northern Ireland, Iraq and Afghanistan.

The Ministry of Defence (MoD) recently concluded a public consultation on introducing measures to shield both soldiers and the MoD itself from legal scrutiny for alleged wrongdoing overseas – expressly excluding Northern Ireland. Liberty opposed these proposals because they would sanction a culture of impunity in the Armed Forces and potentially stop prosecutions even where war crimes had been committed.

Yesterday’s proposals are different but part of the same picture.

The Conservative party has pledged to amend the HRA so it can never apply to incidents which took place before the Act came into force, leaving people with no other avenue than to take their case to the European Court of Human Rights (ECtHR) in Strasbourg.

The HRA only applies retrospectively in exceptional situations – where the State may have been complicit in a death; and where a significant proportion of procedural steps took place after the Convention had come into force.

The Conservative’s proposal is confused in that it suggests this move would prevent prosecutions. It wouldn’t. Prosecutions – criminal cases brought by the State against individuals – would not be affected because they have nothing to do with the HRA.

But what this proposal would do is have a devastating impact on the families of civilians and soldiers alike who have lost loved ones at the hands of the State.

For example, two of the Deepcut cases happened before the HRA came into force – under this measure the families would never have secured justice.

How will this affect peace in Northern Ireland?

More than 20 years after a peace agreement was reached in Northern Ireland, many people are still fighting for truth and justice. As the Government acknowledged just last year, “the hurt and suffering caused is still felt by people across Northern Ireland and beyond”.

The HRA has been a vital tool for people in Northern Ireland to hold the UK Government to account for human rights violations during the conflict.

While the scope of these proposals is unclear, at first glance they do not appear consistent with the Stormont House Agreement under which the UK Government committed to finally setting up institutions to get to the truth of what happened during the Troubles.

These proposals also risk contravening the Good Friday Agreement – which commits the UK to incorporating the ECHR into Northern Irish law to ensure people have access to justice when their rights are breached.

Human rights underpin the agreement upon which Northern Ireland’s hard won and fragile peace is built. Any move to unpick that threatens peace and justice.

A thinly veiled attack on all our rights

This proposal is the latest in a long line of threats by the Conservative party to amend, repeal or replace the HRA. As with previous proposals, it is muddled and legally incoherent.

Any change to the HRA risks opening the door to further erosion of its powers – or fresh pressure to scrap the Act completely, threatening all our rights. It would also put the UK on a collision course with the ECtHR in Strasbourg.

The wrong answer to a different question

No one is above the law, including the Armed Forces.

The answer to the concerns of those who have been involved in multiple investigations is not to elevate an entire class of individuals beyond the reach of the law.

The answer is to carry out effective, prompt and independent investigations first time round.

This is the only way to ensure truth and justice for all victims and to prevent the erosion of accountability at the expense of our rights.

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