Dillon & Ors, Application for Judicial Review

Factual and Procedural Background

This opinion concerns an appeal and cross-appeal from a decision of the trial judge regarding the legality of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 ("the 2023 Act"). The applicants are families directly affected by the legacy of the Troubles, challenging aspects of the 2023 Act on grounds including incompatibility with the European Convention on Human Rights ("ECHR") and EU law protections. The Secretary of State for Northern Ireland ("SOSNI") is the substantive appellant. The 2023 Act was introduced to address the legacy of Northern Ireland's past conflict, providing mechanisms including the Independent Commission for Reconciliation and Information Recovery ("ICRIR"), immunity provisions, and ending certain inquests, investigations, and civil actions. The applicants challenge these provisions as undermining rights and protections previously available, including those under the Victims’ Directive and the Belfast/Good Friday Agreement ("B-GFA"). The trial judge found certain provisions incompatible with the ECHR and the Windsor Framework ("WF"), issuing declarations of incompatibility and disapplying some provisions under domestic legislation implementing the EU Withdrawal Agreement. The appeal and cross-appeal engage complex issues of direct effect of international and EU law, human rights compatibility, and the adequacy of the ICRIR as a replacement for previous investigative and judicial mechanisms.

Legal Issues Presented

1. Whether the trial judge was entitled to disapply provisions of the 2023 Act under article 2(1) of the Windsor Framework and related EU and Treaty mechanisms.
2. Whether the trial judge was correct to issue declarations of incompatibility against provisions of the 2023 Act for failure to comply with articles 2 and 3 of the ECHR.
3. Whether the trial judge erred in finding no violation of the ECHR with respect to the ICRIR’s ability to comply with its obligations.
4. Whether article 8 ECHR was engaged in the Jordan case.
5. Whether the trial judge was correct to make a declaration of incompatibility in the Fitzsimmons case concerning interim custody orders.
6. Whether the trial judge was correct to dismiss the Gilvary case for lack of standing.

Arguments of the Parties

Appellant's (SOSNI) Arguments

• The trial judge erred in interpreting the WF by equating breaches of the ECHR with breaches of the EU Charter of Fundamental Rights ("CFR").
• The judge failed to conclude that no diminution of rights occurs where CFR rights are mirrored in the ECHR and erred in finding diminution ab initio.
• The Vienna Convention on the Law of Treaties ("VCLT") should not apply to interpretation of the Withdrawal Agreement or the B-GFA.
• The judge incorrectly found the Victims’ Directive ("VD") engaged and directly effective in a blanket fashion.
• The rights relied upon were not properly specified or engaged within the B-GFA's Rights, Safeguards and Equality of Opportunity ("RSE") provisions.
• The judge misapplied the test from Re SPUC’s Application.
• The CFR and VD do not fall within article 2 WF's scope for direct application or disapplication remedies.
• The 2023 Act’s provisions, including immunity and civil action restrictions, do not constitute a diminution of rights protected under the WF.
• The remedy of disapplication is discretionary and should be applied cautiously to avoid legal uncertainty and disruption.
• The five-year time limit on review requests by the ICRIR is compliant with article 2 ECHR.
• The ICRIR is sufficiently independent and effective to discharge State obligations under articles 2 and 3 ECHR.
• The prohibition on civil claims under section 43 of the 2023 Act is proportionate and justified, promoting peace and reconciliation.
• The article 14 discrimination claims lack merit as the differential treatment is justified by legitimate aims.
• Article 8 ECHR is not engaged in the Jordan case.
• The applicant in Fitzsimmons lacks standing to bring an article 7 ECHR claim.
• The Gilvary case lacks sufficient evidence to meet the Convention values test and should be dismissed or stayed.

Applicants' and Intervenors' Arguments

• The WF article 2(1) has direct effect and mandates no diminution of rights post-Brexit, including rights under the VD and the B-GFA RSE provisions.
• The 2023 Act’s immunity provisions and ending of prosecutions and civil claims diminish victims’ rights under article 11 and 16 VD and corresponding ECHR rights.
• The remedy for such diminution is mandatory disapplication of incompatible provisions under section 7A EUWA 2018.
• The ICRIR lacks sufficient independence, effectiveness, and victim participation mechanisms to comply with articles 2 and 3 ECHR procedural obligations.
• The five-year limit on review requests risks injustice if new relevant evidence emerges after the limit.
• The prohibition on civil claims is a blanket bar removing access to courts and violates article 6 ECHR.
• The article 14 claim is founded on differential treatment of Troubles victims versus other victims without reasonable justification.
• Article 8 ECHR is engaged in the Jordan case due to the impact on private and family life.
• The Fitzsimmons applicant has a legitimate interest in challenging retrospective interference with his rights under article 7 ECHR.
• The Gilvary applicant meets the Convention values test for procedural protections related to torture allegations and should not be denied standing.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by affirming the direct effect of article 2(1) of the Windsor Framework ("WF"), concluding it imposes a clear, unconditional obligation on the UK not to diminish rights, safeguards, or equality of opportunity as set out in the Belfast/Good Friday Agreement ("B-GFA") post-Brexit. This obligation was incorporated into domestic law through section 7A of the European Union (Withdrawal) Act 2018 ("EUWA 2018"), which mandates disapplication of conflicting domestic legislation.

The court accepted the broad and purposive interpretation of the Rights, Safeguards and Equality of Opportunity ("RSE") provisions of the B-GFA, recognizing that victims’ rights, including those contained in the Victims’ Directive ("VD") and the European Convention on Human Rights ("ECHR"), fall within the scope of protected rights. The court found that the 2023 Act’s provisions, particularly those granting immunity from prosecution and prohibiting civil claims, resulted in a diminution of these rights, contrary to the WF and the VD’s minimum standards, which are directly effective.

While the trial judge had equated breaches of the ECHR with breaches of the EU Charter of Fundamental Rights ("CFR"), the court here limited the role of the CFR to an interpretative aid rather than a freestanding justiciable right, noting the CFR applies only when Member States implement EU law. The court rejected the appellant's argument that the CFR and VD do not fall within the scope of article 2 WF for disapplication purposes.

In relation to the ECHR, the court endorsed the trial judge’s findings that the immunity provisions and other restrictions in the 2023 Act violate articles 2 and 3 ECHR, supported by Strasbourg case law condemning amnesties and immunity that impede effective investigation and prosecution. The court also found the interim custody order provisions incompatible with article 6 ECHR.

Regarding the ICRIR, the court recognized its statutory powers and independence but found significant concerns about victim participation, legal aid, and the role of the Secretary of State for Northern Ireland ("SOSNI") in controlling disclosure of sensitive information, which undermines the independence and effectiveness of investigations replacing inquests. The court allowed the cross-appeal in part, granting declaratory relief on these points.

The court found the blanket prohibition on civil claims under section 43 incompatible with article 6 ECHR, as it removes access to courts entirely rather than imposing a limitation period, which is disproportionate and unjustified.

On article 14 ECHR discrimination claims, the court accepted that while the applicants have a relevant status as victims or relatives of victims of the Troubles, the differential treatment is justified by the legitimate aim of reconciliation and peace promotion, and the margin of appreciation afforded to Parliament in this politically sensitive area.

For the Jordan case, the court upheld the trial judge’s finding that article 8 ECHR was not engaged, distinguishing the facts from cases where article 8 obligations have been found to apply.

On standing, the court found the Fitzsimmons applicant lacks sufficient interest to bring an article 7 ECHR claim, given his conviction was quashed prior to the 2023 Act, and dismissed the cross-appeal on this ground.

In the Gilvary case, the court considered that the applicant’s case should be stayed rather than dismissed outright, preserving rights pending further investigative developments following legislative amendments.

Holding and Implications

The court’s final decision is as follows:

• The appeal by the Secretary of State for Northern Ireland is dismissed on the Convention grounds.
• The cross-appeal is allowed in part: the five-year time limit on review requests is not currently incompatible with the Convention; however, the restrictions on victim participation and disclosure by the ICRIR, and the blanket prohibition on civil claims, are incompatible and warrant declaratory relief.
• The article 14 discrimination claim is rejected.
• The article 8 claim in the Jordan case is dismissed.
• The Fitzsimmons applicant lacks standing for the article 7 claim; that cross-appeal is dismissed.
• The Gilvary case is stayed without adjudication on the merits, pending further developments.

The direct effect of article 2(1) WF and the remedy of disapplication of incompatible provisions under section 7A EUWA 2018 are affirmed, reinforcing the primacy of international obligations incorporated into domestic law over conflicting primary legislation. The decision confirms that legislative measures removing or restricting victims’ rights to investigation, prosecution, and civil redress in legacy cases must comply with human rights and EU law protections. The ruling highlights the importance of effective victim participation and independent investigation mechanisms to meet procedural obligations under articles 2 and 3 ECHR. While recognizing the political sensitivity and reconciliation aims underlying the 2023 Act, the court underlines the limits of Parliamentary discretion where fundamental rights are at stake.