Legacy judgement contradicts Safeguarding the Union claim that Windsor Framework doesn't apply EU rights law in NI

A High Court judgement in Belfast on the government’s controversial Legacy Act has contradicted a claim in the Safeguarding the Union deal struck with the DUP that the Windsor Framework applies only to trading goods – Jim Allister says it confirms the new “constitutional distinction” between Great Britain and Northern Ireland.
DUP leader Sir Jeffrey Donaldson and NI Secretary Chris Heaton-Harris with copies of the ‘Safeguarding the Union’ document. Photo: Niall Carson/PA WireDUP leader Sir Jeffrey Donaldson and NI Secretary Chris Heaton-Harris with copies of the ‘Safeguarding the Union’ document. Photo: Niall Carson/PA Wire
DUP leader Sir Jeffrey Donaldson and NI Secretary Chris Heaton-Harris with copies of the ‘Safeguarding the Union’ document. Photo: Niall Carson/PA Wire

It means the government’s attempts to stop the prosecution of British soldiers who served in Northern Ireland has been undermined by another deal signed by the Tory government – the Windsor Framework.

There have been concerns raised for months – including by DUP MPs Gavin Robinson and Sammy Wilson – that EU rights applicable in Northern Ireland would hinder other government legislation such as its Rwanda Bill to deport migrants.

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The government has consistently claimed that the Windsor Framework does extend to policies such as immigration.

However, the High Court ruling on the amnesty law today said that two parts of the legislation are “incompatible with… article 2 of the Windsor Framework and should be disapplied”. These include the government’s attempts to exclude evidence from legal proceedings and the prohibition of criminal enforcement action.

This is in stark contrast to a claim by the government in the command paper it produced as part of its deal with the DUP.

The Safeguarding the Union deal states: “The important starting point is that the Windsor Framework applies only in respect of the trade in goods - the vast majority of public policy is entirely untouched by it”.

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It claimed that “Article 2 of the Framework does not apply EU law or or ECJ jurisdiction” and only applies to rights set out in the Belfast Agreement.

Jim Allister said: “The much vaunted Donaldson Deal, based on the related Command Paper, accepted government assurances that, despite the plain words of Article 2 of the Protocol that the DUP is now implementing, the EU’s Charter of Fundamental Rights no longer applied in NI and thus the Legacy Act and other legislation was not subject to challenge on that basis.

“Today the High Court has ruled the opposite, citing Article 2 of the Protocol as a basis for ruling the key provisions of the legacy legislation must be disapplied.

“The real importance of this is not in respect of the Legacy Act, but, rather, the constitutional distinction now confirmed between GB and NI, with Northern Ireland on all such matters still held in subjection to EU law and rights under the DUP’s Protocol. This is the application of EU law in action.”

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The UK government has been contacted for comment – and asked whether it can point to any court judgement which agrees with its view in the Safeguarding the Union command paper that the Windsor Framework applies only in respect of the trade in goods. The DUP were also contacted for comment.

Alliance MP Stephen Farry said it comes as no surprise the legacy act has been “unpicked at its first legal challenge”.

The North Down MP said: “The Government has previously said the Independent Commission on Reconciliation and Information Recovery (ICRIR) as framed by the legislation would struggle to work without the immunity element of the Act. The ICRIR itself has said that it only wants to proceed on the basis of compliance with the ECHR.

“Alliance is calling on the UK Government to suspend implementation of the Legacy Act pending the outcome of further steps in the legal process. Crucially, the looming deadline for inquests should be lifted. Similarly, the ICRIR should not proceed with any further work.

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“This Act and the continuing uncertainty around its implementation are causing untold and unjustifiable stress and anxiety for victims and survivors of Troubles incidents.

"Today’s ruling should therefore be a prelude to repeal of the Legacy Act and a replacement which has the confidence of local parties and especially victims.”

Anti-Protocol activist Jamie Bryson said Unionist Voice Policy Studies was first to raise the issue of rights law applying under the Protocol “and has done so repeatedly”.

He said: “The NIO and Home Office said this was ‘nonsense’.

“Last week in an asylum case judgment issued by Mr Justice Humphreys, it was made clear that the EU Charter does continue to apply in NI because of Article 2 of the Protocol Framework.

“But today, a fatal blow was struck to the DUP-NIO claims.

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“Mr Justice Colton has now ruled today that the Legacy Act- a primary Act of the sovereign UK Parliament- is to be disapplied, because it conflicts with the EU Charter of Fundamental Rights, which not only continues to apply, but has supremacy (to such force as to nullify an Act of Parliament) in NI.

“There are now serious questions for the DUP who had not only endorsed these claims that the EU Charter no longer applied, but who had also claimed to have ‘cut the pipleline of EU law’. They must have been trying to cut it with a plastic knife, because the EU Charter has burst down the pipeline and struck down an Act of Parliament.

“The media, much of which who have been incredibly compliant in playing along with the DUP-NIO claims for political purposes, ought not to allow the DUP to confuse the distinct issues as to what one thinks of the Legacy Act, and the effect of the Protocol.

“It is the Legacy Act this time that EU law has slayed, what next?”

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Delivering judgment at Belfast High Court, Mr Justice Adrian Colton said there is no evidence the immunity provision will in any way contribute to reconciliation in Northern Ireland – but said a new body set up to probe Troubles killings could carry out human rights-compliant investigations.

The Legacy Act became law in September and is opposed by all of Northern Ireland’s main political parties and victims’ organisations. The Irish government has launched an inter-state legal case against the UK over the law.

The legacy act provides for a limited form of immunity from prosecution for Troubles-related offences, for individuals who co-operate with the new Independent Commission for Reconciliation and Information Recovery (ICRIR).

It will also halt future civil cases and legacy inquests.

The legal action was brought by some victims’ families – challenging the human rights compliance of the legislation.

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Mr Justice Colton told the court: “I am satisfied that the immunity from prosecution provisions under Section 19 of the Act are in breach of the lead applicant’s rights pursuant to Article 2 of the ECHR (European Convention on Human Rights).

“I am also satisfied they are in breach of Article 3 of the ECHR.”

He added: “There is no evidence that the granting of immunity under the Act will in any way contribute to reconciliation in Northern Ireland; indeed the evidence is to the contrary.”

More to follow…

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