On 20 September 2024, the Court of Appeal of Northern Ireland delivered judgment in the case of Dillon and Ors v Secretary of State for Northern Ireland [2024] NICA 59, concerning the controversial Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (“the Legacy Act”). The Legacy Act imposed a number of restrictions on legal procedures relating to alleged unlawful acts committed during the period known as 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 (also referred to as amnesties) 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.
After the hearing on appeal, the Secretary of State informed the Court of Appeal that he no longer sought to pursue the grounds of appeal relating to the ECHR. Thus, the Court of Appeal was required to determine only the Secretary of State’s appeal in respect of the Windsor Framework and the Applicants’ cross-appeal.
As regards the Secretary of State’s appeal on the Windsor Framework, the Court of Appeal held that Article 2(1) of the Framework imposes an obligation on the UK to ensure that no diminution of the rights, safeguards and equality of opportunity arises for individuals who are resident in Northern Ireland as a result of the UK’s withdrawal from the EU. It held that this provision is directly effective, and further that relevant civil rights were engaged, including certain rights arising under the EU Victims’ Rights Directive (“the Directive”). The Court found that it was self-evident that the Legacy Act had resulted in a diminution of the rights enjoyed by the Applicants as they had been deprived of access to inquests, police and Police Ombudsman investigations, the potential of criminal prosecutions of offenders and civil remedies against alleged perpetrators — constraints which were incompatible with the Directive. The Court concluded that, by virtue of Article 2(1) of the Windsor Framework, the UK-EU Withdrawal Agreement and the European Union (Withdrawal) Act 2018, the correct remedy was disapplication of the Legacy Act to the extent of the incompatibility.
As regards the Applicants’ cross-appeal, the Court of Appeal upheld Colton J’s conclusion that the Independent Commission could, or potentially could, discharge most of the UK’s obligations under the ECHR and therefore, in the absence of a concrete case in which a breach of the ECHR was alleged, mostly declined to make a finding of incompatibility. However, there were exceptions, including that the Court allowed the cross-appeal to the extent that it concerned: (i) inadequate provision for effective next-of-kin participation, which it considered incompatible with Article 2 of the ECHR; and (ii) the blanket prohibition on civil actions, which the Court found to be incompatible with Article 6 of the ECHR.
Hugh Mercer KC and Naomi Hart acted for the Northern Ireland Human Rights Commission, which intervened in this case in support of the Applicants.
