Troubles victims challenged the Legacy Act 2023. The Supreme Court held that the Windsor Framework did not require courts to disapply the Act’s immunity provisions. It also rejected the abstract finding that the ICRIR could never lawfully replace inquests, while unappealed incompatibility declarations stood.
Background
The Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 replaced existing legacy processes with an inquisitorial system run by the Independent Commission for Reconciliation and Information Recovery (ICRIR). Those processes included police and Police Ombudsman investigations, inquests and civil actions. The Act also:
- required the ICRIR to grant immunity from prosecution for serious or connected Troubles-related offences where a person gave a true account of their conduct (section 19);
- barred criminal enforcement action for other Troubles-related offences (section 41);
- ended Troubles-related inquests not at the final determination stage by 1 May 2024 (section 44);
- ended Police Ombudsman investigations (section 45); and
- barred Troubles-related civil actions (section 43).
The applicants, Martina Dillon, John McEvoy, Brigid Hughes and Lynda McManus, are victims or relatives of victims of Troubles-related attacks. Several of the cases involved alleged state collusion. Each was directly affected by the Act. For example, the inquests into the deaths of Seamus Dillon and Anthony Hughes were brought to an end, and Ms McManus’ civil claim could not proceed.
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The decisions below
Colton J made several findings in the applicants’ favour:
- He declared the immunity provisions (sections 7(3), 12, 19, 20, 21, 22, 39, 41 and 42(1)) incompatible with articles 2 and 3 ECHR.
- He declared sections 8 and 43(1) incompatible with Convention rights.
- He held that the immunity provisions, and sections 8 and 43(1), should be disapplied under article 2(1) of the Windsor Framework read with section 7A of the European Union (Withdrawal) Act 2018. He relied on the Victims Directive and the EU Charter of Fundamental Rights.
He rejected the challenges to the ICRIR’s independence, to the absence of legal aid and to the disclosure provisions.
After a change of government, the new Secretary of State abandoned the appeal against the declarations of incompatibility. The Court of Appeal then:
- upheld disapplication of the immunity provisions under the Windsor Framework;
- held that the Charter did not provide freestanding justiciable rights;
- extended the article 6 declaration to section 43(2);
- made a declaration of incompatibility in respect of section 45; and
- allowed the applicants’ cross-appeal on next of kin involvement.
On that last point, the Court of Appeal declared that the ICRIR was not presently capable of discharging the article 2 investigative obligation where it replaced inquests. It made declarations of incompatibility in respect of the disclosure provisions, which it said gave the Secretary of State an “effective veto”, and in respect of section 44.
The issues
- The Windsor Framework ground: whether article 2(1) of the Windsor Framework required disapplication of provisions of the 2023 Act. This turned on three questions: whether article 2(1) had direct effect; whether there had been a diminution of rights resulting from EU withdrawal; and whether disapplication followed.
- The Charter ground (cross-appeal): whether the Charter could be relied on as a freestanding basis for disapplying sections 8 and 43(1).
- The ICRIR ground: whether the absence of legal aid, the absence of provision for questioning witnesses and the Secretary of State’s powers over disclosure meant that next of kin would not be adequately involved. A related question was whether those disclosure powers meant the ICRIR lacked independence, so that the article 2/3 investigative obligation would be breached.
The Court’s reasoning
Direct effect of article 2(1) of the Windsor Framework
The Court applied the Demirel test. Under that test, a provision of an agreement between the EU and a non-member state is directly applicable where it contains a clear and precise obligation that does not depend on any subsequent measure.
The applicants relied on three passages of the Rights, Safeguards and Equality of Opportunity (RSEO) chapter of the Belfast Agreement:
- paragraph 1 (the “civil rights” of everyone in the community);
- paragraph 11 (addressing the suffering of victims); and
- paragraph 12 (victims’ right to remember).
The Court held that these passages were
far too general to give rise to any directly enforceable rights in relation to inquests, civil proceedings or prosecutions.
The applicants and the Human Rights Commission argued that the “no diminution” obligation was sufficiently precise on its own. The Court rejected that argument:
It is necessary to identify a clear and precise obligation in EU law by reference to the RSEO chapter. It is only in this way that the obligation not to diminish rights, safeguards or equality of opportunity acquires any content.
The Court nonetheless accepted that article 2(1) may have direct effect in two situations:
- in conjunction with a directly effective provision of one of the Annex 1 anti-discrimination Directives; or
- in conjunction with other EU instruments within the ambit of the RSEO chapter, if the Demirel requirements are satisfied.
Sections 78C and 78D of the Northern Ireland Act 1998 showed that Parliament considered article 2(1) capable of giving rise to directly enforceable rights in certain circumstances. The applicants also relied on ministerial statements and the government’s “Explainer” document as subsequent practice under article 31(3)(b) of the Vienna Convention. The Court held that these were unilateral statements by one party and so did not qualify. In any event, the Court said that direct effect is a question governed by EU law, not one of interpretation.
No diminution of rights under the Victims Directive
The Court applied a three-stage test proposed by the Secretary of State. It held that articles 11 and 16 of the Victims Directive did not fall within paragraphs 1 or 12 of the RSEO chapter. It left open whether they fell within paragraph 11.
The decisive point was that the Directive does not preclude national legislation determining when prosecutions may be brought:
The Victims Directive does not address and does not seek to regulate broader questions of policy as to when prosecutions should be pursued, such as a national policy on immunity for the purpose of achieving reconciliation following conflict.
The Court drew on recitals 26 and 43 and article 1(1) of the Directive. Recital 43 refers to decisions taken by prosecutors and similar authorities. A Parliamentary grant of immunity in a class of cases is not such a decision. Nor is a decision of the ICRIR, which is not a prosecutorial authority. The Court concluded:
It is clear that the Victims Directive is not the source of a right for all victims of crime to see perpetrators prosecuted.
The question of disapplication therefore did not arise, and the Secretary of State’s appeal on this ground was allowed.
The Charter cross-appeal
The Court dismissed the cross-appeal for four main reasons.
- Constitutional context. Section 5(4) of the 2018 Act excluded the Charter from retained domestic law. Allowing freestanding reliance on the Charter would greatly expand its reach, creating a general source of rights backed by the power to disapply primary legislation. The Court observed:
This would surely require the clearest possible statutory language.
- Human rights under the Belfast Agreement. Paragraph 2 of the RSEO chapter dealt with human rights by providing for incorporation of the Convention, which was achieved through the Human Rights Act. Those rights had not been diminished.
- Article 51(1) of the Charter. The Charter applies to member states only when they are implementing Union law. Applying Fransson, TSN and R (HC) v Secretary of State for Work and Pensions, the Court held:
We agree with the Court of Appeal that it is not sufficient that an EU competence may be engaged and that the Charter has no application unless it is “anchored” in a provision of EU law which is being implemented. It is not so anchored in this case.
- CG v Department for Communities. This case did not alter the settled case law. It turned on Union citizenship and free movement rights and their implementation.
The ICRIR: the ab ante challenge
The proceedings began before the Act was passed and before the ICRIR existed. The challenge was therefore prospective and abstract. Applying Bibi, Christian Institute, Safe Access Zones and JR123, the Court held that the applicants had to show more than a possible breach in particular cases:
Rather, they must establish that the legislative scheme will give rise to a failure to comply with one or more elements so that there will be no effective investigation “in all or almost all cases”
The Court made several further points about how that test applies:
- Absolute rights. The Court of Appeal had doubted whether the ab ante principles applied to the absolute rights in articles 2 and 3. The Supreme Court held that it was wrong to do so:
The breach alleged by the applicants is a breach of procedural aspects of the article 2/3 investigative obligation which are not expressed in absolute terms.
- The correct comparator. The scheme had to be assessed against the investigative obligation itself, not against existing practice:
The assessment is not against the previous scheme involving adversarial legacy inquests beset with systemic delays.
- Temporal scope. Because of the temporal limits identified in In re Dalton, the test had to be adjusted to cases within the temporal scope of the Human Rights Act. The challenge failed even on that adjusted test.
- Joint assessment. Drawing on Tunç and Gribben, the Court emphasised that the essential parameters of an effective investigation are inter-related and must be considered jointly, not piecemeal.
- Other factors. The Convention sets minimum standards and must not impose an impossible or disproportionate burden. The passage of time is relevant. Effectiveness can rarely be judged until an investigation is complete.
- The statutory duty. Section 13(1) obliges the Commissioner for Investigations to comply with the Human Rights Act. This includes deciding case by case how far next of kin must be involved.
Legal aid and questioning of witnesses
The judge had been right not to read Jordan v United Kingdom as requiring legal aid in all article 2/3 investigations. Jordan concerned an adversarial inquest, whereas the ICRIR is inquisitorial. The Court of Appeal erred in treating ICRIR reviews as equivalent to legacy inquests:
There is no Strasbourg jurisprudence which requires an adversarial process with publicly funded lawyers representing the next of kin and victims who are able to cross-examine witnesses. The requirement is for an effective investigation, and the determination of whether there has been an effective investigation is rarely possible prior to the conclusion of the investigation.
In some cases, next of kin may be adequately supported in other ways. These include the Green Form Scheme, seconded lawyers, other ICRIR procedures, or there being no need for representation at all. The applicants could not exclude all such cases.
Similar reasoning defeated the complaint about questioning witnesses. Inquisitorial Police Ombudsman investigations without cross-examination have satisfied article 2, as shown in Dalton. The Commissioner could also arrange questioning prompted by next of kin where appropriate.
Disclosure and independence
The Court held that the Court of Appeal had overstated the Secretary of State’s powers under Schedule 6:
However, the Secretary of State does not have an unrestrained power to “veto” the disclosure of information, nor does the Secretary of State have “the final say.”
Ordinary public law principles govern any decision as to disclosure. The Secretary of State must take into account the public interest in the administration of justice. The Court put it this way:
In short, the Secretary of State must carry out the Wiley balancing exercise.
The Secretary of State also has a Tameside duty of inquiry, is bound by section 6 of the Human Rights Act, and owes a duty of candour on judicial review, so that
In this way the court would have the final say as to whether the Secretary of State’s decision prohibiting disclosure should be quashed.
The applicants could not show non-compliance in all or almost all cases. Some cases would involve no sensitive material, and in others disclosure would not be prohibited.
On hierarchical independence, Strasbourg does not require absolute independence (McQuillan). The Court added:
It is constitutionally impossible to remove the executive from a decision-making process involving national security.
The Court of Appeal had found only that the regime had the “potential” to offend independence. The Supreme Court held:
The ab ante test is not satisfied by a potential failure to satisfy the requirement of independence.
The declaration concerning section 44 depended on these findings and therefore fell with them.
The Veterans Movement intervention
The Veterans Movement argued that Strasbourg case law recognises a “reconciliation exception” to the rule that breaches of articles 2 and 3 should be punished. The Court did not decide that question, because the Secretary of State had abandoned the relevant appeal:
Since the appeal against those orders was abandoned, and the Veterans Movement cannot reactivate the appeal which the Secretary of State abandoned, it follows that those orders must stand.
The Court nevertheless reviewed Dujardin, Tarbuk, Ould Dah and Marguš. It concluded that these cases leave the possibility of an exception open but do not establish one. Applying the mirror principle in Ullah and AB, it said:
In our view it cannot be said that the Strasbourg court has established a principle in its case law that there is a reconciliation exception to the general ban on amnesties for grave breaches of fundamental rights or that the question has not come before that court.
Practical significance
- Limits on the Windsor Framework. The decision significantly narrows article 2(1) as a basis for disapplying Acts of Parliament. The RSEO chapter’s general provisions cannot supply the clear and precise obligation needed for direct effect. Article 2(1) may operate only in conjunction with specific, directly effective EU instruments.
- No freestanding Charter rights. The Charter cannot be used in Northern Ireland as a freestanding route to replicate Convention rights with disapplication remedies.
- The Victims Directive. The Directive does not regulate national policy on prosecution or immunity.
- Prospective challenges. The Court strongly reaffirmed the “all or almost all cases” threshold. It confirmed that the threshold applies to the procedural elements of articles 2 and 3. Challenges to the effectiveness, next of kin involvement or independence of investigative bodies should generally await a concrete, completed investigation.
- National security disclosure. A ministerial power to restrict disclosure on national security grounds is constrained by public law, including the Wiley balancing exercise, and remains subject to judicial review.
- Effect on the 2023 Act. Unappealed declarations of incompatibility remain in place. These cover the immunity provisions (articles 2 and 3), section 43 (article 6) and section 45. Their removal is a matter for Parliament, as Parliament is addressing through the Northern Ireland Troubles Bill.
Verdict: The Supreme Court allowed the Secretary of State’s appeal and dismissed the applicants’ cross-appeal. It set aside the declarations made by the Court of Appeal in paragraphs 6(a) and (c) and 7(a)–(c) of its order dated 20 September 2024. These covered the Windsor Framework disapplication and incompatibility orders, and the declarations concerning ICRIR next of kin involvement, independence in disclosure, the disclosure provisions and section 44. It also set aside declarations (ii), (iv) and (vi) of the High Court’s order dated 28 February 2024. Declarations of incompatibility that the Secretary of State had not appealed remain in place, including that the immunity provisions are incompatible with articles 2 and 3 of the Convention. The Court said it would correct, in its own order, the typographical reference to section 40 in the Court of Appeal’s order.
