On 28 February 2024, Colton J of the King’s Bench Division of Northern Ireland (“the Judge”) handed down judgment in the landmark case of Dillon and Ors v Secretary of State for Northern Ireland. The challenge concerned the controversial Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (“the Legacy Act”). The Legacy Act imposed a number of changes on legal procedures relating to alleged unlawful acts committed during the period known as the Troubles. According to the Judge’s summary:
“[The Legacy Act] brings to an end investigations of Troubles-related incidents through police investigations, the Police Ombudsman, new civil claims and inquests. It creates the Independent Commission for Reconciliation and Information Recovery (‘the ICRIR’) which will carry out ‘reviews’ of deaths or other harmful conduct arising in respect of the Troubles. It must grant immunity to those involved in criminality in certain defined circumstances. It must provide a report at the end of any of its reviews. It has the power to refer matters to the prosecuting authorities in Northern Ireland, England & Wales and Scotland. It can only carry out reviews referred to it within five years. In short, it will be the sole body responsible for investigations into deaths and other harmful conduct caused during the Troubles in accordance with the provisions of the [Legacy] Act.”
The Applicants were individuals who had been victims of alleged Troubles-related wrongs, or the family members of such victims. They claimed that the Legacy Act violated their rights under Articles 2, 3, 6, 7, 8 and 14 of the European Convention on Human Rights (“the ECHR”), and that a declaration of incompatibility should be made. They further claimed that parts of the Legacy Act were incompatible with Article 2 of the Windsor Framework (formerly known as the Northern Ireland Protocol) because they diminished certain fundamental rights and, on that basis, should be disapplied.
Colton J accepted many of the Applicants’ arguments, issuing both declarations of incompatibility with the ECHR and disapplying parts of the Legacy Act. Some of the key findings in the 200-page judgment are summarised below.
One aspect of the Legacy Act was that it allowed grants of immunity (also referred to as amnesties) to alleged perpetrators of serious Troubles-related crimes, including murder and torture, on the condition that the individuals in question provided information regarding their crimes. The Judge accepted the Applicants’ argument that the immunity scheme was incompatible with Articles 2 and 3 of the ECHR (which include an obligation to punish perpetrators of unlawful killings and torture), including because it made no exception for grave breaches of fundamental rights. He also held that there was no evidence that the granting of immunity would in any way contribute to reconciliation in Northern Ireland, and indeed that the evidence was to the contrary.
The Judge also considered whether the ICRIR was capable of discharging the UK’s investigative obligations under Articles 2 and 3 of the ECHR, given that the Legacy Act terminates other legal processes which otherwise contribute to the discharge of these duties (such as criminal investigations, investigations into police complaints, civil actions and inquests). He concluded that, in circumstances where the Court was not dealing with a “concrete case”, it had not been established that the ICRIR would necessarily be incapable of carrying out effective investigations into deaths or allegations of torture occurring during the Troubles. Nonetheless, he gave important guidance on the conditions, including regarding independence and victim participation, which would need to be satisfied for any given investigation to the ECHR-compliant.
The Legacy Act also prevents new civil proceedings being commenced relating to Troubles-related wrongs. Colton J held that this was incompatible with Article 6 of the ECHR (guaranteeing the right to a fair hearing of civil claims) to the extent that it operated retrospectively, but that, to the extent that it operated prospectively, even such a “bright line” rule was within the UK’s margin of appreciation under Article 6. Colton J also held that the parts of the Act which had not otherwise been found to be incompatible with the ECHR were not unlawful under Article 14 of the ECHR (concerning discrimination).
Colton J addressed arguments concerning the Windsor Framework. Under Article 2 of this instrument, the UK has an obligation to ensure that there is no diminution of rights, safeguards or equality of opportunity, as set out in the relevant part of the Belfast Good Friday Agreement of 1998 (which was a cornerstone in formally bringing the Troubles to an end), resulting from the UK’s withdrawal from the EU. By virtue of the EU-UK Withdrawal Agreement, to the extent that there is any such diminution, the relevant provision of UK law must be disapplied.
Colton J found that fundamental rights, including ECHR rights, as well as the particular rights of victims, were covered by the relevant part of the Good Friday Agreement. He further held that the Legacy Act diminished these rights. He proceeded to find that these rights were underpinned by EU in the form of the Victims’ Rights Directive as well as the EU Charter on Fundamental Rights, and that therefore their diminution could not have occurred but for the UK’s withdrawal from the EU. It followed that it was necessary to order the disapplication of certain provisions of the Legacy Act, including those envisaging grants of immunity to alleged perpetrators of serious Troubles-related crimes.
Hugh Mercer KC and Naomi Hart acted for the Northern Ireland Human Rights Commission, which intervened in this case in support of the Applicants.
Read the full judgment here.
