Rita O'Reilly

History will knock on the Cabinet door today.

The Government must decide if Ireland will apply to the European Court of Human Rights by Thursday to revise its 1978 judgment in the Ireland v United Kingdom torture case.

In 1971, then Fianna Fáil Taoiseach Jack Lynch took the case, the first inter-state case under the European Convention on Human Rights to be heard by the Court. The Fine Gael-Labour administration that followed under Taoiseach Liam Cosgrave pursued it, in particular through Attorney General Declan Costello.  

The case was about much more than 14 ‘Hooded Men’ subjected to extreme interrogation techniques, but their treatment and the allegation that they were tortured became central to it. By 1976, the then Commission on Human Rights found torture, but in 1978 the full court found the ‘Hooded Men’ were subjected to inhuman and degrading treatment, but not torture.

Based on the evidence before it, the Court found that the treatment of the men, who at the very least were subjected to five techniques of hooding, wall-standing, ‘white noise’ and sleep, food and water deprivation, fell short of ‘the special stigma of torture’. The judgment is accused not just of contaminating later judgments from the Court itself but of haunting human rights since – invoked as it was by lawyers for the Bush administration to justify ‘enhanced interrogation techniques’ used in Iraq and Afghanistan.

In 4 June 2014, the RTÉ Investigations Unit broadcast ‘The Torture Files’  http://www.rte.ie/news/player/prime-time/2014/0604/ which revealed new evidence from the British national archives showing the Court in Ireland v United Kingdom was relying on flawed evidence. The new archive material showed that the UK, a founding contracting party to the European Convention, had offered up misleading evidence in the case and that contrary to its claims that the treatment meted out to the men was at worst the fault of lower to middle-ranking military and police, the torture methods had been sanctioned from the very top, where “a political decision was taken” to use them at British cabinet level.

Under Rule 80 of the Rules of the European Court of Human Rights, the Irish state has six months from the discovery of new evidence to apply to the Court to seek a revision of its judgment in light of the new evidence.  That clock started ticking on 4 June after the RTÉ Investigations Unit programme. It stops on Thursday, 4 December, making today’s Cabinet meeting the last opportunity for a decision to be taken. The advice of Attorney General Máire  Whelan advice will be key.  Last year she rejected a similar call from the Pat Finucane Centre based on more limited archive material it submitted then.

Amnesty International Ireland’s Executive Director, Colm O’Gorman says it is the Cabinet's last opportunity ahead of the December 4 deadline “to do the right thing”. Sinn Féin and Fianna Fáil have backed calls for the Government to apply to revisit the case and the matter is to be discussed at the Fianna Fáil front bench meeting.

Yesterday, Thomas Hammarberg, the Amnesty International chief whose 1971 report found evidence of torture of internees in Northern Ireland and later himself a Council of Europe Commissioner for Human Rights added his voice to the calls.

History will knock on the door of the High Court also this afternoon (Tuesday, 2 December). At 3pm lawyers for the Hooded Men and for the Government are to reconvene before the President of the High Court, Mr Justice Nicholas Kearns. The lawyers for the men are seeking a judicial review to compel the state to act. They consented to an adjournment to today to await the outcome of the Cabinet meeting.

An affidavit filed on behalf of the Attorney General and the Minister for Foreign Affairs, the Director General of the Anglo-Irish Division of the Department of Foreign Affairs gives an insight in the state’s attitude: “The respondents have carried out an extensive study of the documentation which they have received. The voluminous documentation has been subject to a process of detailed and careful consideration and analysis. Advice has been obtained on the content and implications of the documents. Further material recently identified in the process of verification is under intensive consideration and matters arising are ongoing.”

Counsel for the men, Mr Ronan Lavery QC, said the statement in the affidavit would bring “considerable comfort” to his clients but he was disappointed that the state’s lawyers were unable to give any assurances as to how and when the Government would reach a decision.  Former attorney general Mr Michael McDowell, for the state, said the Government was aware of Thursday’s deadline.

Today should tell all.