The Irish government has controversially announced that it will bring an inter-state claim against the UK in the European Court of Human Rights over the Northern Ireland Troubles (Legacy and Reconciliation) Act. Taoiseach Leo Varadkar rather piously claimed that he had ‘no option’ but to bring the case, since the Act breaches the European Convention on Human Rights (ECHR).

The Legacy Act, which has few friends in Northern Ireland, is designed to stop the commencement of new Troubles-era cases and inquests. It offers a conditional amnesty to former members of the security forces and to ex-paramilitaries alike – provided that they co-operate with investigations run by a new body, the Independent Commission for Reconciliation and Information Recovery (ICRIR) – headed by a retired judge, Sir Declan Morgan.

A domestic court challenge against the policy has already been commenced at the High Court in Belfast. This case, which may eventually end up in the UK Supreme Court, will air exactly the sort of human rights challenges that could be heard in Strasbourg. The crux of the case relates to the procedural obligation on states, under the ECHR, to hold an investigation which is independent of those implicated in the event, effective (in the sense of being capable of identifying and punishing perpetrators), prompt and reasonably expeditious, with a ‘sufficient element of public scrutiny’ and the involvement of a victim’s next-of-kin to the extent necessary to safeguard their interests.

This legal action hardly seems designed to improve community relations. It is likely to inflame unionists

Normally, in cases involving individual claims, a domestic court challenge would be allowed to reach its final conclusion before a case could be heard in Strasbourg. The government’s argument is that the Act provides a ‘robust and effective framework’ to allow the ICRIR to discharge the UK’s legal obligations under the Human Rights Act and the ECHR.

Inter-state cases before the European Court of Human Rights are rare. The Council of Europe notes that there have been around 30 such cases since the ECHR entered into force in 1953. The case is being brought under Article 33, which allows ‘any High Contracting Party’ to refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party’.

The Irish government’s decision to bring a case now is both unfortunate and ill-judged. While the Act may well be a rather flawed compromise, which will satisfy few victims of the Troubles, it is also an attempt to draw a line under events which occurred many years ago and which are unlikely to ever be resolved in a satisfactory way. The UK government is probably also correct in saying that the Act will enable more victims and survivors to obtain more information, and rather faster than can be achieved under current mechanisms. By pouring fuel on these smouldering embers, the Irish government has done no one any favours.

Some have argued that post-Brexit, a united Ireland is inevitable. Yet this action hardly seems designed to improve community relations. It is likely to inflame unionists and keep rancorous disputes alive for many more years. The bitter pill of the Legacies Act may have satisfied no one, but it was at least even handed in offending everyone.

As Eliot Wilson observed yesterday, the Irish government’s actions are also liable to result in charges of hypocrisy in circumstances where Dublin has not even engaged with the ICRIR, and the Irish government has made no effort since 1998 to pursue prosecutions for past offences over which it might have jurisdiction. Northern Ireland Secretary, Chris Heaton-Harris, has already said that the Irish government ‘should urgently clarify the number of criminal prosecutions brought in Ireland since 1998 relating to Troubles cases.’

The Irish claim is being portrayed as an attempt to block, or overturn, the Legacies Act. However, the legal position is rather more complicated. The Strasbourg Court has no power to override UK domestic legislation, even if it were to find against the UK government. Nonetheless, it might conclude that the blanket amnesty provided by the Act is contrary to the above mentioned procedural obligations set out in earlier judgments.

The proposed case comes at a very awkward time for the British government

This would mean that continuing to operate the scheme would put the UK in breach of international law, and that it would be under an international law obligation to remedy the breach, either by amending, or withdrawing the legislation. But any final judgment may be years away. What’s more, as the prisoners’ voting rights saga demonstrated, compliance with contentious Strasbourg judgments is not always immediate and may result in a messy compromise. Those who have lost family members during the Troubles may well end up unsatisfied with the final outcome, even if the Irish claim is successful.

The proposed case comes at a very awkward time for the British government. Rishi Sunak is already facing calls from his colleagues to exit the ECHR. This politicised claim is likely to exacerbate these problems. Former home secretary Suella Braverman is on manoeuvers arguing that this sort of Strasbourg caselaw is an ‘obstacle to justice and fairness’ and ‘another reason we need to leave the ECHR.’

Unlike the government’s pernicious Rwanda removals scheme, a challenge to the Legacies Act, which is in reality designed to protect British veterans from being pursued for actions which occurred many decades ago, will present any future government with far more of a challenge. No British government will want to see British servicemen investigated, while republican paramilitaries continue to go unpunished. Should Keir Starmer (who joined the club of political leaders in military fatigues this week) win the next election, this is not an issue he will wish to inherit.

LP Hartley, who died in the same year as Bloody Sunday, famously wrote ‘the past is a foreign country, they do things differently there.’ While events in the past may never be forgiven, if we ever want to see reconciliation and an end to the sectarian conflict in Northern Ireland, we may simply have to accept that some undeserving individuals will never face justice.