UK Supreme Court ruling 'restrains' scope of EU law as judges overrule Belfast courts in landmark case
The government has won an appeal over the legality of Troubles legacy laws in the Supreme Court, as the UK’s top judges ruled that rights provisions in the Windsor Framework do not automatically override UK law.
The case could have a far reaching impact on the ability of the UK government to legislate for Northern Ireland, with the court ruling that only specific Brussels directives mentioned in the deal could have direct effect.
Judges found that the courts in Belfast were wrong to say that human rights provisions in the Windsor Framework prevented key parts of the Legacy Act from applying here.
Taking the appeal, the government had said the decisions taken by local courts had “raised wider constitutional questions”.
Other Westminster legislation on immigration was also struck out in Northern Ireland in rulings by local courts over their interpretation of the remit of EU law in the province.
TUV leader Jim Allister says the ruling “checks the absurd contention that rights in NI should be those evolving in the EU, not of the UK” – and it is “good to see this setback for Protocol maniacs”.
The case had originally been brought by Martina Dillon, John McEvoy, Brigid Hughes and Lynda McManus – who argued that various provisions of the 2023 Legacy Act undermine rights previously guaranteed by EU law – and are now protected by Article 2(1) of the Windsor Framework.
Martina Dillon’s husband Seamus was murdered in a loyalist attack in Dungannon in 1997.
Accepting the Secretary of State’s appeal, the Supreme Court concluded that the immunity provisions and sections 8 and 43(1) of the 2023 Act do not breach the Windsor Framework because the applicants’ rights derived from EU law have not been diminished as a result of the UK’s withdrawal from the EU.
It has been argued that the EU Charter of Fundamental Rights applies in NI through Article 2 of the Windsor Framework, and therefore UK legislation can be struck down if it is not compliant. However, the court ruled that the “only arguable reference” to Charter rights in the Belfast Agreement is a “generalised reference to civil rights”.
Therefore, it is “not sufficiently apt to set out specific and enforceable legal rights, such as those contained in the charter”, Lord Stephens ruled on Thursday.
The government did not appeal a ruling on immunity provisions in the legacy act – which the previous Conservative government had intended to.
Under the last government judges in Belfast ruled that the Legacy Act gave the UK government too much power to veto the disclosure of material by to the body set up to investigate Troubles legacy cases.
Parts of an appeal started by the Tory government were continued on by Labour, who believed that the ruling would have much wider implications. Secretary of State, Hilary Benn said aspects of the Dillon judgement “raised wider constitutional questions that go beyond the Legacy Act”.
The Belfast courts also deemed UK government immigration unlawful in Northern Ireland. The High Court found that the Rwanda scheme unlawfully diminished the rights of asylum seekers, trafficking victims and unaccompanied children – and that parts of it breach the post-Brexit trade deal and should therefore be disapplied in the province.
Article 2 of the post-Brexit trade deal commits the UK government to ensuring “no diminution of rights, safeguards or equality of opportunity” as set out in the 1998 Belfast Agreement. It specifies six pieces of EU legislation covering equality issues in employment and social security. Local laws are required to ‘keep pace’ with these directives.
However, the local courts have interpreted Article 2 as having a much broader remit – as have the Northern Ireland Human Rights Commission (NIHRC) and the Equality Commission (ECNI). Those bodies are tasked with ensuring the legal commitments in the deal are met.
They have been previously been accused of “prioritising nationalist constitutional goals” – after demanding more EU directives are followed here than required under the deal.
Geraldine McGahey, Chief Commissioner at ECNI has said she is “impatient for change” on Article 2 rights. The two organisations have said the UK Government and NI Executive should “ensure North-South equivalence of rights, by aligning with changes to EU equality and human rights law, even where not required to under the Windsor Framework”.
Given their statutory role to enforce the law as it is, there will now be questions from unionist politicians who have questioned their push to expand EU rights in line with the Republic of Ireland.