Northern Ireland: Supreme Court clarifies approach to the Windsor Framework in Legacy Act challenge
On 7 May 2025, the Supreme Court delivered judgment in Dillon and Ors v Secretary of State for Northern Ireland [2025] UKSC 15, concerning the controversial Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (“the Legacy Act”). The Legacy Act imposed a number of restrictions on investigations, prosecutions, and accountability in respect of the Troubles.
At first instance, Colton J had accepted that parts of the Legacy Act were incompatible with the European Convention on Human Rights (“the ECHR”) and had also disapplied parts of the Act which he found diminished rights contrary to the Windsor Framework (the renamed Northern Ireland Protocol, which forms part of the UK-EU Withdrawal Agreement). Those findings focused on the provisions of the Act which allowed grants of conditional immunity to alleged perpetrators of serious Troubles-related crimes, including murder and torture. The Secretary of State appealed against these findings. The Applicants cross-appealed against findings of the Judge that other aspects of the Act — including the establishment of a new body (“the Independent Commission”) to carry out reviews of Troubles-related offences — were compatible with the ECHR.
The Court of Appeal dismissed the Secretary of State’s appeal in respect of the Windsor Framework and upheld the Applicants’ cross-appeal in part. As a result, it found that the Legacy Act was unlawful as regards conditional immunity, the prohibition on police misconduct disciplinary action, the ending of Troubles-related inquests, and the prohibition on Troubles-related damages claims. The Court of Appeal also disapplied many of these provisions under the Windsor Framework.
The Supreme Court upheld the Secretary of State’s Windsor Framework appeal on the facts. Specifically, it found that the immunity provisions and sections 8 and 43(1) of the Legacy Act do not breach Article 2(1) of the Windsor Framework because those provisions did not result in a diminution of the Applicants’ rights derived from EU law in a way that would have been contrary to EU law, had the UK remained in the EU.
The Judgment contains important conclusions about Article 2 of the Windsor Framework. The court decided that Article 2 taken with the RSEO chapter of the Belfast/Good Friday Agreement in conjunction are capable of direct effect: (1) in the context of the Directives in Annex 1 of Article 2; and (2) “in conjunction with other EU instruments falling within the ambit of the rights listed with bullet points in paragraph 1 of the RSEO chapter, or within the ambit of paragraphs 11 or 12, if the Demirel requirements are satisfied in respect of the obligation imposed.”: §118. The Supreme Court rejected the Secretary of State’s wider case on Article 2 of the Windsor Framework.
The Supreme Court further decided, in the Secretary of State’s favour, that the EU Charter of Fundamental Rights does not create free-standing rights, including for the purposes of the Windsor Framework.
As regards the ECHR, the Supreme Court decided that the challenge to the legislation was an ‘ab ante’ challenge (rather than one challenging law on the basis of its application in a particular case). In consequence, it was necessary for the Applicant to show that the legislative scheme will give rise to a breach of Article 2/3 of the ECHR “in all or almost all cases”. One reason this high threshold was not met, was that the legislative scheme applied to cases taking place outside the temporal jurisdiction of the ECHR. Another reason was that it will rarely be possible to decide whether there was a breach of Article 2/3 until the conclusion of the investigation. The Court also emphasised that the Commissioner for Investigations will have to comply with the Article 2/3 investigative obligation in individual cases.
At the Supreme Court, an intervener sought to persuade the Court to overturn the findings of the lower courts as regards the compatibility of the immunity provisions with ECHR rights. The Supreme Court rejected this submission and found that there was no exception to the general rule that breaches of Articles 2 and 3 of the ECHR must be punished where an amnesty or immunity is granted with the view to reconciliation following conflict. This was an important victory for the Applicants.
Jude Bunting KC acted for the Applicants, along with John Larkin KC, Jack Williams, Malachy McGowan, and Laura King instructed by Phoenix Law.
Adam Straw KC acted for the Northern Ireland Human Rights Commission, leading Naomi Hart.
