It’s not often that a High Court judge gets to “disapply” an act of parliament. And you don’t hear much about the impact of European Union law on the United Kingdom now that the UK has left the EU.
Little wonder, then, that some commentators failed to grasp the significance of a 200-page judgment delivered yesterday by Mr Justice Colton at the High Court of Northern Ireland. Even the summary is 14 pages long.
The Dillon case was a challenge to the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023, a dramatic piece of legislation that has been criticised from all sides in Northern Ireland — as I observed last year. It has also been challenged by the Republic of Ireland at the European Court of Human Rights.
The legislation creates a new statutory body called the Independent Commission for Reconciliation and Information Recovery.
If and when the legislation is brought into force, the commission will have the power to grant immunity to those involved in criminality in certain defined circumstances. It would be a conditional scheme, providing immunity from prosecution for Troubles-related offences to individuals who cooperate by giving the commission information.
So it amounts to a shift in policy from criminal justice to information recovery. Last year, the legislation was challenged by relatives of those killed or injured in the Troubles. They complained that investigations and inquests would be brought to an end while those responsible would be granted immunity from prosecution.
Challenging legislation
On what grounds can you challenge primary legislation in the UK courts?
The first, and most straightforward, is to claim that it is incompatible with the European Convention on Human Rights. Sure enough, Mr Justice Colton made a number of declarations of incompatibility yesterday under the Human Rights Act 1998.
We all understand these. They nudge the government towards amending the law. But they are not binding and they do not affect the validity of existing legislation. Parliament is sovereign, after all.
The second ground of the relatives’ judicial review claim against the secretary of state is unique to Northern Ireland. That’s the one that people are only now beginning to get their heads around.
You start with Brexit. There was a withdrawal agreement with the EU that took effect on 1 February 2020. You might have thought that EU law would cease to apply in the UK from that date. But the withdrawal agreement was designed to give effect to EU law in the UK in the same way as it applied in the EU — at least until the UK could work out what to do with it.
Article 4(2) of the withdrawal agreement required the UK to ensure compliance with EU law “including as regards the required powers of its judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions through domestic primary legislation”.
That agreement was given effect by the European Union (Withdrawal Agreement) Act 2020, which says that rights under the withdrawal agreement are recognised and available in domestic law. What’s more, it says, every act of parliament must be read consistently with the withdrawal agreement.
Normally, a later act of parliament — like the legacy and reconciliation one — supersedes an earlier one, like the EU withdrawal act. But, as the Supreme Court said in Miller 1, “the primacy of EU law means that, unlike other rules of domestic law, EU law cannot be implicitly displaced by the mere enactment of legislation which is inconsistent with”.
The Northern Ireland protocol, as it was then called, was part of the withdrawal agreement. It’s now the Windsor Framework.
Article 2 of the Windsor Framework says, in part:
The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 [Belfast/Good Friday] Agreement entitled Rights, Safeguards and Equality of Opportunity, results from its withdrawal from the [European] Union…
To establish a breach of article 2, the Northern Ireland courts have said a claimant must meet six tests:
A right included in the relevant part of the Belfast/Good Friday Agreement is engaged;
That right was given effect in Northern Ireland on or before 31 December 2020;
That Northern Ireland law was underpinned by EU law;
That underpinning has been removed, in whole or in part, following withdrawal from the EU;
This has resulted in a diminution in enjoyment of this right; and
This diminution would not have occurred had the UK remained in the EU.
After detailed analysis, Colton concluded that the claimants had met all these tests. He held that, in enacting the immunity provisions in the legacy and reconciliation act, the government had acted incompatibly with the EU Victims’ Directive and the EU Charter of Fundamental Rights.
The judge said this could not have occurred if the UK remained in the EU and he therefore concluded that the immunity provisions of the 2023 legislation should be disapplied.
He declared:
The provisions in the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 relating to immunity from prosecution, namely sections 7(3), 12, 19, 20, 21, 22, 39, 41 and 42(1), are incompatible with article 2 of the Ireland/Northern Ireland Protocol/Windsor Framework.
Pursuant to section 7A of the EU (Withdrawal) Act 2018, article 2 of the Ireland/Northern Ireland Protocol/Windsor Framework has primacy over these provisions thereby rendering them of no force and effect. These provisions should therefore be disapplied.
Other provisions in the 2023 legislation were also disapplied by the judge.
That meant Colton did not need to consider whether a court could “strike down legislation where it conflicts with a fundamental constitutional principle, in this case, the right of access to the courts” — though he offers some interesting thoughts on the limits of parliamentary sovereignty.
What next?
The secretary of state Chris Heaton-Harris is bound to take the case to the Northern Ireland Court of Appeal and, if necessary, to the UK Supreme Court. However, Labour is has promised to repeal the legislation if it comes to power at the next election.
Heaton-Harris said yesterday, before he had considered the judgment, that he remained committed to the legislation and expected the Independent Commission for Reconciliation and Information Recovery to open its doors on 1 May as planned.
That’s possible, but I don’t see how the commission can do very much while the legislation under which it is to operate remains holed below the water-line.
Fortunately, the chief commissioner is a former lord chief justice of Northern Ireland. Sir Declan Morgan will understand this judgment even if the rest of us don’t.