Anurag Deb, PhD researcher, Queens University Belfast, and Colin Murray, Professor of Law, Newcastle Law School

Photo credit: Aaronward, via Wikicommons media

In a landmark decision, a UK court has disapplied portions of a UK Act of Parliament for the first time since Brexit due to conflicts with the Withdrawal Agreement, specifically highlighting the ongoing connection between UK and EU legal systems. This unexpected development, though previously argued for, underscores the UK government’s consistent underestimation of Article 2’s impact on rights-related cases. This article examines Article 2, the Dillon case, and the implications of this ruling for the current government’s legislative plans.

Article 2 of the Windsor Framework (the UK government’s term for the entire Northern Ireland Protocol, despite the framework not altering this or other provisions) remains one of the few unchanged aspects of the controversial Brexit deal for Northern Ireland. Its wording has remained consistent since Theresa May first introduced it in 2018.

This consistency served the UK government’s narrative that rights in Northern Ireland were protected under the Withdrawal Agreement, deflecting criticism that Brexit undermined the 1998 Belfast/Good Friday Agreement. While the 1998 Agreement itself only briefly mentions the EU, it dedicates an entire section to rights and equality – areas increasingly shaped by EU law post-1998.

In 2020, the UK government emphasized that its Article 2 obligations demonstrated its “steadfast commitment to upholding the Belfast (“Good Friday”) Agreement in all its parts.” Even during attempts to dismantle parts of the Protocol in 2021, Article 2 commitments were deemed “not controversial,” though a more accurate statement would have been “not yet controversial” given the lack of legal challenges using this provision against an Act of Parliament. The government’s stance exemplified Brexit “cake-ism,” confidently asserting Article 2’s sanctity while believing domestic courts wouldn’t utilize its full potential.

However, just over a month ago, the Safeguarding the Union Command Paper attempted to downplay the rights provision within the Windsor Framework, claiming the framework solely pertained to goods trade, leaving most public policy untouched, and suggesting Article 2’s limited scope regarding rights.

This interpretation is fundamentally flawed. Article 2, along with Article 13(3), binds the UK to align Northern Ireland’s laws with EU developments concerning six equality directives listed in Annex 1 of the Protocol. It also prevents the weakening of protections offered by other EU laws to aspects of the rights and equality arrangements within the 1998 Agreement due to Brexit. The Windsor Framework’s application extends far beyond just the trade in goods.

The Dillon judgment marks the collision of the government’s rhetoric with the realities of its Withdrawal Agreement obligations, as incorporated into domestic law through the UK Parliament’s Withdrawal legislation. The case centers around the contentious Northern Ireland Troubles (Legacy and Reconciliation) Act 2023, presented by the UK government as its solution for addressing legal issues stemming from the Northern Ireland conflict. This Act, which halts civil and criminal justice mechanisms in conflict-related cases, establishes an alternative body (the Independent Commission for Reconciliation and Information Recovery), and grants immunity to those involved, has drawn widespread criticism.

While the Act faces challenges under the Human Rights Act 1998 and an interstate action against the UK at the European Court of Human Rights initiated by Ireland, this article specifically focuses on challenges related to the Protocol/Windsor Framework. Although not the first case invoking Article 2, it is unique in testing the application of this element of the Withdrawal Agreement and offering the most potent remedy available – disapplying any statute conflicting with preserved EU laws.

This is made possible through Article 4 of the Withdrawal Agreement, ensuring that aspects of EU law applicable in the UK under the Agreement remain protected by the same remedies available for EU law breaches by member states. The UK Supreme Court, in the Allister case, acknowledged that Section 7A of the European Union (Withdrawal Act) 2018 reflects this obligation within the UK’s domestic jurisdictions. For Mr. Justice Colton, the task was clear: “any provisions of the 2023 Act which are in breach of the WF [Windsor Framework] should be disapplied.”

The 1998 Agreement’s Rights, Safeguards, and Equality of Opportunity chapter places significant emphasis on victims’ rights. Prior to Brexit, these rights were partly protected within Northern Ireland law through the Victims’ Directive and the EU Charter of Fundamental Rights. The Directive’s Article 11 guarantees the right to review decisions not to prosecute – a right clearly infringed upon by the Legacy Act’s provision for immunity from prosecution. This breach alone necessitates the disapplication of significant portions of the Legacy Act.

The UK government’s claim of being caught off guard by this conclusion is disingenuous. They acknowledged the Victims’ Directive’s relevance to the 1998 Agreement commitments in their 2020 Article 2 Explainer. Furthermore, in response to inquiries regarding Article 2’s application to immigration legislation, the government asserted that the 1998 Agreement drafters intended the term “victims” to refer specifically to those affected by the Northern Ireland conflict. Despite this awareness, the government mounted a staunch defense of the Legacy Act, attempting to pressure the courts while even threatening consequences against Ireland for challenging the immunity arrangements.

The truly surprising aspect of the Dillon case is not the court’s decision to disapply large sections of the Legacy Act, which directly results from the unique rights protections within the Withdrawal Agreement. Rather, it’s Mr. Justice Colton’s decisive ruling despite the UK government’s efforts to obfuscate its agreed-upon rights obligations. In contrast, during the UK’s full membership in the EEC, it took the Judicial Committee of the House of Lords several years and missteps to arrive at disapplying statutory provisions contradicting EU law in the Factortame (No. 2) case. The Northern Ireland High Court, however, readily recognized that these requirements, particularly concerning the non-diminution of rights post-Brexit, remain applicable within Northern Ireland’s legal framework.

The Court’s decisiveness stemmed from the lack of discretion afforded once a breach of the Victims’ Directive by the Legacy Act was established. This highlights a crucial, yet overlooked, aspect of Brexit – disapplication of inconsistent domestic law applies to any EU law applicable in the UK under the Withdrawal Agreement, as stated in Article 4. This principle, absent in the 1972 Accession Treaty, reflects the solidified concept of EU law primacy and the necessity of disapplying conflicting domestic laws, principles the UK government seemingly accepted as a trade-off for leaving the EU without jeopardizing the 1998 Agreement.

While the government may have sought to downplay Article 2 and its consequences, Dillon serves as a stark wake-up call for Westminster. Despite the consistent efforts of the Northern Ireland Human Rights and Equality Commissions (the NIHRC and ECNI) to raise awareness, the Joint Committee on Human Rights’ scrutiny of the Legacy Bill made no mention of the Windsor Framework. Dillon marks not only an unprecedented disapplication of primary legislation but also the first such instance post-Brexit. However, this is just the beginning. The NIHRC’s upcoming challenge to the Illegal Migration Act 2023, based on the disregard of relevant EU law, further underscores the government and Westminster’s lack of understanding regarding the legal realities of Brexit. Dillon demonstrates that the Windsor Framework demands significantly greater attention from Parliament. It is not a mere legal anomaly but a potent source of law impacting law-making and legislation intended for UK-wide application.