The Sunlit Uplands of Rights Protection in Northern Ireland

By: Stuart Wallace

The High Court in Northern Ireland was recently asked in Dillon and Ors v Secretary of State for Northern Ireland to consider whether the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (Legacy Act) was compatible with human rights law. The case provides some interesting insights into human rights law post-Brexit in the UK. 

Dillon and Ors v Secretary of State for Northern Ireland

The background to the case: The Legacy Act seeks to bring an end to investigations into Troubles-related incidents, terminating police investigations, civil claims and inquests. All current investigations are due to terminate on 1 May 2024. In their place, an Independent Commission for Reconciliation and Information Recovery (ICRIR) will review deaths or other harmful conduct during the Troubles and produce a report on the incidents. The ICRIR must also grant immunity to those involved in criminality in certain circumstances. There was widespread opposition to this legislation from both Republicans and Unionists in Northern Ireland. In the Dillon case, several victims and their next-of-kin challenged the legislation. The challenge was brought under three heads, the Human Rights Act (HRA), the Windsor Framework and common law. This piece will focus on the HRA and Windsor Framework exclusively. 

The judgment runs to over 200 pages making it difficult to do justice to the complexity of the issues involved. The gist of the challenge under the HRA was that the legislation violated the European Convention on Human Rights (ECHR) because the ECHR requires the state to carry out effective investigations into the infliction of death or life-threatening injury and torture, inhuman and degrading treatment. The Legacy Act prevents this by shutting down investigations and replacing them with the ICRIR. The ECHR also prevents states from granting amnesties from prosecution, except in extremely limited circumstances, and the threshold for granting amnesties in this legislation was extremely low [see [145] of judgment]. Shutting down the investigations and civil claims also had knock on effects on an individual’s right to access the courts and on the state to provide effective remedies. The applicants asked the court to rule that several sections of the legislation were incompatible with the ECHR and issue declarations of incompatibility (DoIs) for them.  A declaration of incompatibility is used by a court to indicate to the government that the court considers a piece of legislation is capable of operating incompatibly with the ECHR. It is then up to the government to decide whether to change the legislation in response.

The challenge under the Windsor Framework is more complicated (for excellent analysis from Colin Murray and Anurag Deb see herehere and here). Essentially, the combined effect of the Windsor Framework and the EU Withdrawal Act 2018 means that the UK must ensure that there is no reduction in human rights protection for the people of Northern Ireland when compared to the pre-Brexit position. The applicants claimed this legislation violated EU law, specifically arts 1, 2 and 47(2) EU Charter of Fundamental Rights and arts 1, 11, 16 of the Victims Directive. Any reduction in rights protection should consequently result in disapplication of the offending law pursuant to section 7A of the EU (Withdrawal) Act 2018. Thus, if the Legacy Act was found to be incompatible with EU law, the court would disapply the offending sections.

The court ruled in favour of the applicants. The really interesting element of the case is that the court granted remedies under the HRA and Windsor Framework in parallel. So, for example, it issued DoIs for sections 7(3), 12, 19, 20, 21, 22, 39, 41, 42(1) of the Act because they were incompatible with Articles 2 and 3 of the ECHR. It also disapplied the same sections of the Legacy Act because they were incompatible with Article 2 of the Windsor Framework and provisions of EU Law. This is significant for two reasons, firstly it shows how limited HRA remedies can be in certain circumstances and secondly it indicates that a fissure in human rights protection is developing within the UK’s legal framework. 

The future of rights protections in the UK

Let’s begin with the utility of the HRA remedies. This case shows an inherent weakness in the human rights protection regime in the UK. When the HRA was drafted, it was never envisaged that the flagrant breaches of the ECHR which are becoming increasingly common in UK legislation (Legacy Act, Illegal Migration Act, Safety of Rwanda Bill and Victims and Prisoners Bill see previous discussion here and here) would be implemented by Parliament. It was intended that Acts would be subject to much greater scrutiny where potential rights breaches were apparent and that the offending provisions would be mitigated or removed from legislation. The Legacy Act brazenly flouts human rights law, going against clear jurisprudence from the ECHR and reducing access to remedies and different forms of investigation on an unprecedented scale. The primary means of correcting divergences from human rights law in the HRA is statutory interpretation of the legislation to make it consistent with the ECHR under section 3 of the HRA. Yet where the breaches are as clear and intentional as those in the Legacy Act, section 3 becomes largely useless. It becomes impossible to read the Act consistently with the HRA, because the breach is intended.  

The alternative to section 3 is the second rate, remedially empty DoI, which is of very limited utility to the victims in this case. While the UK government has historically had a good record of acting to address incompatibilities, DoIs are reliant on both government will and parliamentary time to alter the offending legislation. It can mean that the underlying issue giving rise to a violation is left unaddressed for years pending changes to legislation. While there is a means to fast-track changes to legislation under s.10 of the HRA, this is generally only suited to making minor adjustments to legislation. The scale of the changes required to make the Legacy Act comply with the ECHR would be far beyond such a measure. In the meantime, the clock is ticking down to the closure of the investigations on 1 May 2024, with the impetus shifting to the Government to act. It is open to question whether the Government would make time to amend the legislation, if their recent response to the SAA case on the Rwanda deportation policy is anything to go by. 

The Windsor Framework arguably saved the HRA’s blushes in this situation. It offered a much more robust remedy to the victims than the HRA was able to provide, and largely forestalled some very difficult questions about the rights protection regime in the UK as the date when investigations close draws nearer. However, a different set of difficult questions for the human rights protection regime in the UK has arisen in its place. The disapplication that occurred here is a legal relic from a bygone pre-Brexit era, the ghost of Factortame. Yet rather than being some quaint curiosity, the provisions of the Windsor Framework have the capacity to wreak havoc on the UK’s legal system. In this case, the results were largely self-contained because the Act in question related almost exclusively to matters germane to Northern Ireland. However, other challenges deploying the Windsor Framework to disapply legislation are in the pipeline. Challenges to legislation like the Illegal Migration Act 2023 are potentially much more problematic. It is entirely conceivable, indeed highly likely, that a Northern Irish court will soon disapply large sections of the Illegal Migration Act exclusively in Northern Ireland, which will lead to significant disparities in the rights that migrants possess and how they are dealt with in different parts of the UK. The risk of forum shopping will increase, with the possibility that migrants target Northern Ireland to avail of much more favourable treatment when compared to the rest of the UK, including enhanced access to the courts and more grounds to challenge their deportation utilising domestic and EU law. It will call into question the viability of the regime the Illegal Migration Act is attempting to establish.  

More broadly the disparities in available remedies between the weaker (DoIs) in Great Britain and powerful disapplication measures in Northern Ireland and the resultant differences in rights protection will foster discrimination and disparities between different people in the UK. There have always been some idiosyncrasies between the rights protection in different devolved jurisdictions in the UK, but the Windsor Framework takes this to an unprecedented level. The Windsor Framework is creating, and will continue to create, a rift between Great Britain and Northern Ireland. The cracks are only just beginning to show, but it will be interesting to see how the people of Great Britain react to this particular Brexit dividend, viewing from afar the sunlit uplands of rights protection in Northern Ireland. The Government have appealed the judgment in Dillon and it seems destined for the Supreme Court, but this is likely to be a futile rearguard action, and a two-tiered system of human rights protection within the UK seems inevitable at this point.

Stuart Wallace.

Stuart Wallace is an Associate Professor at the University of Leeds where he teaches constitutional law and international human rights law. He is a contributing writer for the Constitution Society.

The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.