Dillon & Ors v Secretary of State for Northern Ireland: Establishing Direct Effect of the Windsor Framework and Upholding Victims' Rights

Introduction

The case of Dillon & Ors v Secretary of State for Northern Ireland ([2024] NICA 59) before the Court of Appeal in Northern Ireland represents a significant judicial examination of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 ("the 2023 Act"). This judicial review, brought forward by Martina Dillon, John McEvoy, Lynda McManus, Brigid Hughes, Teresa Jordan, Gemma Gilvary, and Patrick Fitzsimmons, challenges the legality of the 2023 Act in light of its potential conflicts with the European Convention on Human Rights (ECHR) and obligations arising from the Windsor Framework ("WF") and the Victims’ Rights Directive ("VD") of the European Union.

The core issues at stake involve the compatibility of the 2023 Act with articles 2, 3, 6, 7, 8, and 14 of the ECHR, particularly focusing on the Act's provisions related to immunity from prosecution, the termination of inquests and civil actions, and the establishment of the Independent Commission for Reconciliation and Information Recovery ("ICRIR"). The appellants argue that these provisions undermine established human rights protections and fail to provide adequate mechanisms for victims seeking justice and redress.

Summary of the Judgment

The Court of Appeal upheld several key findings from the trial judge, confirming that certain provisions of the 2023 Act are indeed incompatible with the ECHR. Notably, the court declared incompatibility concerning sections 19, 7(3), 12, 20, 21, 22, 39, 41, and 42(1) of the Act, which relate to conditional immunity from prosecution for Troubles-related offences. These sections were found to breach articles 2 and 3 of the ECHR by preventing accountability and effective investigations into serious crimes.

Additionally, the court addressed the Act's termination of ongoing civil actions and the replacement of traditional inquests with the ICRIR reviews. While acknowledging the legitimate aim of promoting reconciliation, the court determined that the differential treatment of Troubles victims from other civil claimants was disproportionate and unjustified, thereby contravening article 6 of the ECHR.

The court also examined ancillary issues such as the five-year limitation on requesting reviews and the statutory provisions governing the ICRIR's independence and operational effectiveness. While the limitation period was deemed acceptable, the lack of adequate participation mechanisms for next of kin and the extensive control exerted by the Secretary of State for Northern Ireland ("SOSNI") over the disclosure of sensitive information were deemed problematic.

In conclusion, the court upheld the declarations of incompatibility for sections in breach of articles 2, 3, and 6 ECHR, mandated their disapplication under section 7A of the European Union (Withdrawal) Act 2018, and allowed partial cross-appeals concerning the ICRIR's operational shortcomings and the prohibition of civil actions.

Analysis

Precedents Cited

The court extensively relied on established case law to navigate the complex interplay between domestic legislation and international human rights obligations. Key precedents include:

Van Gend & Loos v Netherlands Inland Revenue Administration (1963): Established the principle of direct effect of EU treaties, allowing individuals to invoke provisions directly in national courts.
Case C-7/17: Allister and Others v Secretary of State for Northern Ireland: Confirmed that section 7A of the EU Withdrawal Act 2018 effectively incorporates the Windsor Framework into UK law, allowing for the disapplication of incompatible domestic legislation.
Re SPUC's Application (2023) NICA 35: Elaborated a three-stage test for determining diminution of rights under the Windsor Framework, focusing on whether rights were protected before withdrawal, whether their enjoyment has diminished due to withdrawal, and whether such diminution would not have occurred had the UK remained in the EU.
Re Northern Ireland Human Rights Commission's Application for Judicial Review [2018] UKSC 27: Highlighted the distinction between substantive and procedural duties under the ECHR, emphasizing the necessity of effective investigations into human rights violations.
Marguš v Croatia (App. no. 4455/10, 26 May 2014): Affirmed that granting amnesty for serious crimes such as torture contravenes articles 2 and 3 of the ECHR by fostering impunity.
Jordan v UK (2003) 37 EHRR 2: Underlined the imperative of effective and independent investigations into deaths involving state agents to satisfy article 2 obligations.

Legal Reasoning

The court's legal reasoning centered on the direct effect of international obligations incorporated through the 2023 Act, primarily via sections enacted under the Withdrawal Agreement (WA) and the Windsor Framework (WF). The key elements of the court's reasoning include:

Direct Effect of Article 2(1) WF: The court affirmed that article 2(1) of the WF, which mandates the UK to ensure no diminution of rights arising from its withdrawal from the EU, possesses direct effect. This means individuals can directly invoke this provision before domestic courts without requiring further legislative enactment.
Violation of Sought Provisions: The provisions of the 2023 Act providing immunity from prosecution for certain Troubles-related offences were found to infringe upon articles 2 and 3 ECHR. By effectively granting blanket immunity, these provisions hindered the state's obligation to investigate and prosecute serious crimes, thereby undermining victims' rights to justice and accountability.
Proportionality and Justification: While acknowledging the state's legitimate aim of promoting reconciliation, the court determined that the means employed—the conditional immunity provisions and the restriction of civil actions—were disproportionate. The lack of adequate safeguards and participation mechanisms for victims rendered these measures unjustifiable.
Independent Oversight and Participation: The court scrutinized the establishment and operational framework of the ICRIR, finding that its dependencies on the SOSNI for appointments and control over sensitive disclosures compromised its independence and effectiveness. This undermined the procedural fairness required under articles 2 and 3 ECHR.
Disapplication as a Remedy: In alignment with section 7A of the EU Withdrawal Act 2018, the court mandated the disapplication of incompatible provisions. This judicial remedy ensures that domestic legislation does not override or negate international human rights obligations.

Impact

The court's decision carries profound implications for the legal landscape in Northern Ireland and the broader UK:

Establishing Direct Effect: By affirming the direct effect of article 2(1) of the WF, the judgment reinforces the supremacy of international human rights obligations over domestic legislation. This sets a precedent for future cases where national laws may conflict with international agreements.
Upholding Victims' Rights: The decision emphasizes the necessity of effective and independent mechanisms for investigating human rights violations. It ensures that victims of the Troubles retain access to justice and that state accountability cannot be circumvented through legislative immunity.
Legislative Amendments: The ruling compels immediate legislative action to rectify the identified incompatibilities. The government may need to amend or repeal parts of the 2023 Act to comply with ECHR obligations, potentially leading to significant policy shifts in addressing the legacy of the Troubles.
Judicial Oversight: The judgment underscores the role of the judiciary in safeguarding human rights against disproportionate legislative measures. It affirms the courts' authority to oversee and, when necessary, invalidate laws that impede fundamental rights.
Operational Reforms of ICRIR: The criticism of the ICRIR's structure and operational dependencies necessitates reforms to ensure its independence and effectiveness. This may involve restructuring appointment processes and enhancing participatory mechanisms for victims' families.

Complex Concepts Simplified

Direct Effect

Direct effect refers to the ability of individuals to invoke a treaty or directive directly in national courts without the need for domestic legislation. In this case, the court confirmed that certain provisions of the Windsor Framework have direct effect, allowing victims to directly seek redress under international obligations.

Disapplication

Disapplication is a judicial remedy where a national court sets aside a domestic law that conflicts with higher international obligations. Here, the court ordered the disapplication of specific sections of the 2023 Act that were incompatible with the ECHR.

Proportionality

Proportionality assesses whether the means used by the state to achieve a legitimate aim are balanced and not excessive. The court found that the 2023 Act's provisions disproportionately restricted victims' rights, failing to justify the legislative measures taken.

ICRIR Independence

ICRIR Independence pertains to the degree to which the Independent Commission for Reconciliation and Information Recovery operates free from external influence, particularly from government bodies like the SOSNI. The court criticized the ICRIR's structural dependencies, undermining its ability to conduct unbiased investigations.

Windsor Framework (WF)

The Windsor Framework is an international agreement that outlines the UK's commitments post-EU withdrawal, particularly concerning Northern Ireland. Article 2(1) of the WF ensures that rights, safeguards, and equality of opportunity established under the Belfast/Good Friday Agreement are not diminished due to the UK's withdrawal.

Conclusion

The Dillon & Ors v Secretary of State for Northern Ireland judgment marks a pivotal affirmation of the supremacy of international human rights obligations within the UK's legal framework. By establishing the direct effect of the Windsor Framework's article 2(1), the court has reinforced the imperative that domestic legislation must align with and uphold the protections enshrined in the ECHR. The disapplication of incompatible provisions within the 2023 Act serves not only as a corrective measure but also as a precedent ensuring that the rights of victims remain inviolable against disproportionate legislative overreach.

Furthermore, the criticism directed at the ICRIR's operational dependencies underscores the necessity for robust and independent mechanisms in addressing historical injustices. This ensures that reconciliation efforts are genuine, transparent, and effective in delivering justice to those affected by the Troubles.

Moving forward, this judgment necessitates legislative reforms to rectify the identified incompatibilities, thereby aligning the 2023 Act with the UK's international human rights obligations. It also serves as a judicial reinforcement that the courts will vigilantly protect fundamental rights against legislative measures that impede justice and accountability.