Current Affairs Digest: Constitution (April 2024)

1. Taken back control?: Brexit and the Dillon case in the Northern Ireland High Court

On 28 February 2024, the High Court of Northern Ireland handed down a judgment in the case of Dillon and others on the matter of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 [2024] NIKB 11.^[1] It was the first time that a domestic court had struck down provisions of an act of parliament since Brexit.

2. What did the judgment say?

The case related to the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023, which seeks to end criminal investigations, inquest hearings, and civil damages claims for Troubles-era conduct. The act established a new body, the Independent Commission for Reconciliation and Information Recovery (ICRIR). The commission would have the power to grant immunity from prosecution to those involved in criminality in some circumstances, if they cooperated by providing information to the ICRIR. The act would also provide that any future investigations would have to be conducted by the ICRIR.

Relatives of those killed and injured during the Troubles claimed that current inquests or investigations would be impacted by the act and therefore they challenged its compatibility with their rights under the European Convention on Human Rights (ECHR) and article 2 of the UK-EU withdrawal agreement’s Protocol on Ireland/Northern Ireland (now called the Windsor Framework (WF)). The Belfast/Good Friday Agreement 1998 (GFA) includes various protections for civil and human rights. Article 2 of the WF states that the UK “shall ensure that no diminution of rights” in the GFA results from its withdrawal from the EU.

The court ruled that:

• Provisions of the act related to immunity from prosecution are incompatible with the ECHR and article 2 of the WF and should therefore be disapplied.
• Section 43(1) of the act (which ends civil actions brought since the act was introduced to Parliament) is incompatible with the ECHR and article 2 of the WF and should be disapplied.
• Sections 8 and 41, which relate to the exclusion of evidence in civil proceedings and prohibition of criminal enforcement action respectively, are incompatible with the ECHR and article 2 of the WF and should be disapplied.
• Sections 46 and 47 (interim custody orders) are incompatible with the ECHR.

3. What will be the impact of the judgment?

In response to the judgment, the government confirmed in an answer to a written parliamentary question on 7 March 2024 that it was still committed to implementing the act, including the delivery of the ICRIR, and that it would apply for an appeal. It said the government “remain[ed] committed to implementing the Legacy Act and delivering the ICRIR to provide better outcomes for victims and survivors of the Troubles by giving them more information about what happened to their loved ones”.^[2]

Legal commentator Joshua Rozenberg said that although it was “possible” that the ICRIR could meet its intended start date of 1 May 2024, he did not believe it would be “able to do very much” while the legislation that underpinned it remained “holed below the water-line”.^[3]

Tom Hickman KC, professor of public law at UCL, said on X that the judgment was “remarkable” for the number of provisions that had been disapplied.^[4] He said that “no disapplication of an act [of parliament] on this scale occurred during our membership of the EU”. He added that Northern Ireland law had “long been treated as peripheral” to the UK’s constitutional arrangements, but perhaps “finally and justifiably” it will begin to occupy a “much more central place”.

On 8 March 2024, Anurag Deb, PhD researcher at Queen’s University Belfast, and Colin Murray, professor of law at Newcastle Law School, published a blog about the judgment.^[5] The authors argued that the Dillon judgment “marks the point at which the government’s rhetoric” about the impact of Brexit on Northern Ireland is “confronted by the reality of the UK’s withdrawal agreement obligations”. They noted that when Boris Johnson’s government had announced the Northern Ireland protocol as part of its Brexit deal it had stated that article 2 reflected its “steadfast commitment to upholding the [GFA] in all its parts”.^[6] The authors also noted that in January 2024 the current government had published the command paper ‘Safeguarding the union’ as part of its efforts to restore power-sharing in Northern Ireland. That document stated the following in relation to article 2 of the WF:

The important starting point is that the Windsor Framework applies only in respect of the trade in goods—the vast majority of public policy is entirely untouched by it […] Article 2 of the framework does not apply EU law or ECJ jurisdiction, and only applies in the respect of rights set out in the relevant chapter of the Belfast (Good Friday) agreement and a diminution of those rights which arises as a result of the UK’s withdrawal from the EU.^[7]

Despite these statements by the government, the authors argued that the Dillon case was a “wake-up call for Westminster”. They said that “the government, and Westminster in general, have not woken up to the legal realities of the Brexit deal”. The authors also claimed that the judgment may be “only the beginning”, as the compatibility of the Illegal Migration Act 2023 with article 2 of the WF was also currently being tested in a case brought by the Northern Ireland Human Rights Commission.^[8]

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Cover image by Sean Kuriyan on Unsplash.