The Dillon judgment of the Supreme Court of the United Kingdom… – Slugger O’Toole

Colin Murray is Professor of Law at the University of Newcastle.

Last week’s ruling by the UK Supreme Court Dillon undermines the UK’s commitments in the Brexit deal. The decision, relating to the previous Conservative government’s Legacy Act 2023 and its controversial amnesty provisions, demonstrates a complete disregard for Northern Ireland’s special constitutional provisions. This amounts to arguing that after Brexit the UK Parliament can legislate as it pleases and that the special commitments made under the Withdrawal Agreement are not worth the paper they are written on.

The commitments to human rights and equality within the Windsor framework are often understated in the Brexit story. And it is true that they have received far less attention than the machinations over special goods regulations and trade deals with Northern Ireland. But that’s because they were much less controversial; It was so clear that the Good Friday Agreement relied on provisions of EU law that the UK government had to concede these conditions if it wanted to be able to claim that it would fully comply with its obligations.

As a result, the terms of what became Article 2 of the Windsor Framework were agreed at the start of the negotiations and remained unchanged even as other parts of the Northern Ireland arrangements were radically reworked. The UK Government has specifically committed to maintaining in full the essential protections of EU law against discrimination and to protecting other EU laws from being diminished as they relate to the rights and equality elements of the 1998 agreement.

There has always been debate about the extent of EU law covered by this commitment. After getting the Brexit deal across the finish line, Boris Johnson’s government has published a Explanation in August 2020 (it remained on the front page of the Northern Ireland Office website until the day of Dillon judgement). This affirmed that the commitment explicitly covered, but was not limited to, the Victims Directive, the Parental Leave Directive and the Pregnant Workers Directive and that these could continue to be relied upon in Northern Ireland’s law as if it were still part of an EU member state. This is not a long list of firm commitments.

At the same time, however, Johnson made it known that he had agreed to all the conditions he needed to get Brexit through and that they could be rolled back during implementation. Everyone would eventually tire of thinking about the commitments of the 1998 agreement, and the UK would be able to do whatever it wanted. So when amnesty provisions were included in previous legislation introduced by Johnson, families of conflict victims raised questions about their compatibility with the Victims Directive’s commitment that those affected by crime should be able to challenge decisions not to prosecute.

And even though Johnson was no longer prime minister, his successors remained faithful to his plan. Although the UK government has explicitly committed to the Victims Directive, when victims of the conflict have attempted to assert this commitment, they have consistently denied the application of Article 2 of the Windsor Framework. After a reversal at the High Court in Belfast, the new Labor government persevered on appeal even though it pledged to remove the amnesty provisions of the Legacy Act. And when the Court of Appeal reiterated the clear text of the UK Government’s commitments to them, the Government turned to the UK Supreme Court.

It is worth pausing to note that the entire amnesty scheme is being scrapped by the UK government. The legal question surrounding the victims directive is no longer relevant. But successive British governments have continued the dispute with the express aim of undermining Article 2. There have been loopholes in this debacle, but British institutions have adopted a Thelma and Louise approaching the exit ramps.

Indeed, the UK Supreme Court has accepted the idea that we are in a post-Brexit world and that EU law no longer matters much, whatever the UK government promises. Its judges are far removed from the detailed debates on the implementation of Article 2 which took place in Belfast. The Court stated that there are no clear rights obligations arising from the 1998 agreement which can serve as a basis for litigation beyond specific EU discrimination law. The plain text of the 1998 Accord’s obligations provides a detailed exposition of the rights of “everyone” in the community that go beyond issues of sectarian conflict. This poses such a significant constraint on the British government’s policy that it wants to see it reduced. And the UK Supreme Court has complied, radically narrowing the range of cases in which Article 2 can be applied.

The program to undermine the commitments made to the people of Northern Ireland thus comes to an end, with the explanation setting out their post-Brexit rights having no legal weight. And the Irish government too, after congratulating itself on having respected the terms of the Brexit deal, has been conspicuous by its absence when it comes to defending those terms, welcoming the UK’s “clear commitment” to legacy in recent days. As Johnson hoped, no one would pay attention to the implementation of the Withdrawal Agreement.

These developments are being lost as Keir Starmer’s grip on Number 10 weakens and politicians at Stormont begin to consider Nigel Farage reopening the Windsor framework. But when it comes to the UK’s rights commitments to the North, successive British governments have long set out to undermine them. So far, given that the legacy of the conflict, immigrants and trans people are most immediately affected by these changes, there has been little policy response, but these are profound changes that undermine Northern Ireland’s particular constitutional arrangements.

But that doesn’t have to be the end of the story. The UK Supreme Court is not the final arbiter of the UK’s treaty commitments. THE Dillon The judgment, in thus translating the terms of Article 2, violates the UK’s commitments under the Withdrawal Agreement. Such violations can be challenged by the European Commission within the agreement’s committee structures, and ultimately referred to arbitration. This judgment comes as Ireland prepares to take over the presidency of the Council of the EU and thus play a key role in shaping the European agenda. This is the turning point in whether all the rhetoric around Brexit and the 1998 deal really matters. After all, what is the point of guaranteeing these commitments if nothing is done to protect them.

This is a guest slot to provide a platform for new writers, either on a one-off basis or as a prelude to joining the regular Slugger team.