Brexit breaks it

The implementation of the Windsor Framework has given rise to legal and constitutional challenges and the consequential costly access to justice for persons resident in post-Brexit Northern Ireland. Brexit has not only fractured the EU, but also the UK, says Duncan Grehan

The central topic of an Irish Centre for European Law conference in Queen’s University Belfast in October examined article 2 of the Windsor Framework (formerly known as the Ireland/NI Protocol), in the aftermath of the Court of Appeal’s decision in the Dillon (Legacy Act) case (Dillon & Ors, Application for Judicial Review [2024] NICA 59 (20 September 2024); Northern Ireland Troubles (Legacy and Reconciliation) Act 2023).

The Dillon judicial review involved an appeal by seven cross-appellants, the Secretary of State for Northern Ireland as respondent/appellant, the Police Ombudsman for Northern Ireland, Department of Justice, and Coroners Service for Northern Ireland as notice parties, and the Human Rights Commission, Equality Commission for Northern Ireland, Wave Trauma Centre, and Amnesty International (UK) as the intervenors.

Before the three presiding judges, there appeared 24 barristers instructed by 12 solicitors’ offices. And this matter may well still proceed for further costly review by the UK Supreme Court.

At paragraph 2 of its judgment, the NI Court of Appeal (NICA) explained: “This case concerns the legality of primary legislation, the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023, which was introduced to deal with the legacy of Northern Ireland’s troubled past, and whether that legislation offends the European Convention on Human Rights and/or undermines rights previously guaranteed by EU law.”

At paragraph 4, the court addressed the main Legacy Act consequence: “In summary, those who have brought the lead case are directly affected by the end of inquests and civil actions and the potential grant of immunity from prosecution, as set out in their affidavit evidence.”

At paragraph 7, the court recognised the tension between its role and that of politics: “Furthermore, we are conscious that, whilst this case arises in the legal sphere, it also occupies the political space. Hence, we are also aware of the potential political ramifications of this case. 

“However, to be clear, our role is not to make policy. The courts are simply concerned with the legality of the legislation. This is a legitimate part of the judicial function, reflective of adherence to the rule of law and the constitutional role of the courts recognised both at common law and in legislation. We proceed on that basis.”

EU law directly effective

The court clearly set out its opinion on the continuing binding nature of EU law in the UK and therefore in Northern Ireland post the Withdrawal Agreement (WA) at paragraph 57: “… certain Union law continues to apply in the circumstances mandated by the WA. In addition, provisions of the WA itself are to have the same legal effects as they produce within the EU. Those laws and provisions of the WA shall be capable of being relied upon directly so far as they have direct effect and may give rise to the remedy of disapplication of primary legislation.”

It cited, at paragraph 56, WA article 4.1 in clear support of that dicta. Article 2(1) of the Windsor Framework (WF) states that the UK shall ensure that, as a result of the UK’s withdrawal from the EU, there “shall be no diminution of rights, safeguards or equality of opportunity” and this is also set out in the 1998 Belfast/Good Friday Agreement (B/GFA), paragraph 1 of which stated, albeit somewhat generally, that its parties committed “to the mutual respect, the civil rights and the religious liberties of everyone in the community”.

The NICA found in Dillon (paragraph 85) that article 2(1) “is directly effective” in the legal relationships between the state and its citizens.

However, it also pointed out that, “although the questions of whether there has been a diminution in rights and whether, if so, this can be said to have resulted from the UK’s withdrawal from the EU, will require a degree of detailed analysis on the concrete facts in any given case, the key obligation assumed by the UK in article 2(1) is a clear and unconditional obligation of result.”

So, the issue of the legality of domestic law vis-a-vis the article 2(1) guarantee that there shall be no diminution of citizens’ rights is to be decided on a case-by-case basis.

No diminution permitted

At paragraph 60, the NICA states with clarity: “Specifically, article 2(1) WF provides for the rights of individuals resident in Northern Ireland. It imposes a state obligation on the UK to ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 agreement entitled RSE, occurs post-withdrawal from the EU.”

Post-Brexit in NI, there is ongoing EU law and rights. Pursuit of such rights and remedies involves time, a lengthy avenue to redress, and so uncertainty and cost – especially given the necessary involvement of the public sector’s organs and funds.

In the event of any EU or international law default, the EU Commission has no entitlement to bring enforcement proceedings (article 12(4) WF), and the UK courts have no right to refer questions to the CJEU. Ensuring compliance with EU law is the obligation of its domestic courts.

Challenging breaches of article 2 claiming the diminution of rights requires exhaustion of complex and time-consuming steps: firstly to the NI Human Rights Commission (article 14 WF); secondly, to the Specialised Committee (article 165 WA); thirdly, to the Joint Committee (articles 167-169 WA) – and only then, fourthly, can there be arbitration and clarification and the binding determination of the CJEU (articles 170-174).

One of the questions also raised in the Dillon case was whether the WA and the B/GFA are international treaties and thereby subject to the 1969 Vienna Convention on the Law of Treaties (VCLT).

Helpfully, somewhat, the NICA at paragraph 78 concluded: “The WA is plainly an international treaty to which the VCLT could apply. Both the UK and Ireland are parties to the VCLT.

“Furthermore, it is well-recognised that articles contained in this treaty on treaties represent a codification of the norms of customary international law. The position as regards the B/GFA is less clear-cut.”

Legacy act not lawful

EU law and its principles remain available for residents in NI. The domestic laws and remedies to be compliant with EU law standards must be appropriate, effective, proportionate, and dissuasive and respect the principles of equivalence and effectiveness.

The Legacy Act provided an end to the rights of those with loss as a result of the Troubles to seek redress, remedies, and compensation.

At paragraph 10, the NICA noted that the trial judge, Colton J ([2024] NIKB 11) “found that ‘there is no evidence that the granting of immunity under the 2023 act will in any way contribute to reconciliation in Northern Ireland, indeed, the evidence is to the contrary.

“It may well be that a system whereby victims could initiate the request for immunity in exchange for information would be compliant with articles 2 and 3 ECHR, but this is not what is contemplated here.’ This is a finding which he was entitled to make.”

In reaching its conclusion on the illegality of the Legacy Act, and having considered the Charter of Fundamental Rights of the EU, the ECHR, as well as the VCLT, it stated (paragraph 244): “The legislation as it currently stands provides a blanket prohibition on civil claims, which to our mind is not proportionate or justifiable.”

Postscript

Advocate General Anthony Collins (who retired this October and has been nominated a judge of Ireland’s Court of Appeal) noted, as the ICEL conference’s final speaker, that while all NI residents can enjoy no diminution of EU law rights, this has a time limitation, and that those who choose Irish citizenship will continue to have many such rights – but those who don’t, won’t.

He also agreed and noted, during question time, that the WF is binding on the UK and that its article 2(1) provisions have direct effect.

Duncan Grehan is a solicitor, accredited mediator, and member of the EU and International Affairs Committee of the Law Society of Ireland