Dillon ruling legal bulwark against rights diminution

The Dillon judgment in the North has provided, “a permanent binding architectural framework for future human rights and equality litigation”, Prof Christopher McCrudden has told an Irish Centre for European Law (ICEL) event in Belfast.

The barrister at Blackstone Chambers, who represented the North’s Equality Commission as an intervenor in each stage of the Dillon litigation, stressed that he was speaking in a personal capacity at the event.

Jack Williams (Monckton Chambers), barrister for the families, also spoke at the event (27 May), which was held at the Belfast Inn of Court, Royal Courts of Justice and opened by Michelle Drury, ICEL’s executive director.

Two-sided result

Prof McCrudden framed the outcome as a two-sided result.

The British government secured “a relatively narrow victory on the specific Legacy Act issue”, the court interpreting the EU Victims' Rights Directive more narrowly than the lower courts had.

However, the court rejected the government's contention that article 2(1) was non-justiciable.

The "fundamental legacy" of the case, in McCrudden's view, is that article 2(1) is now, in the North, "a binding permanent legal framework against the diminution of some rights”.

Williams agreed overall, saying Dillon was "a case of losing the battle but winning the war".

McCrudden’s presentation focused on domestic British law implications and the mechanics of how article 2(1) now applies.

Justiciability

He based his analysis around three pillars:

• Justiciability,
• Interpretive framework, and
• Dynamics of the RSEO chapter of the Good Friday Agreement.

On justiciability, he said that the judgment confirmed that article 2(1) was enforceable in domestic courts via section 7(A) of the European Union (Withdrawal) Act 2018, where obligations met the EU law threshold – the Demirel test, for direct effect.

On the interpretive framework, McCrudden said the ruling established that key concepts such as direct effect were governed by EU law conceptions, “so the Charter of Fundamental Rights clearly has a critical, if specific, role”.

The British government's explainer document cannot be used to interpret article 2(1) under the Vienna Convention, though it may still illuminate parliamentary intent behind section 7(A).

 On the dynamics of the GFA Rights Safeguards and Equality of Opportunity (RSEO) chapter, McCrudden said that it was “of critical importance” that the court had put forward a “synthesis solution”.

This draws a distinction between the general civil-rights provision – too broad to satisfy the direct effect test alone – and the specific bullet-point rights, which can ground claims when combined with article 2(1). 

However, he said that the bullet point provisions “now face a potentially important new restrictive interpretive hurdle”, which he called “the sectarian lens”.

McCrudden explained that because, in paragraph 119 of the court’s judgment, the court interpreted the GFA agreement in its entirety, but especially its bullet-point rights, as primarily about “ending sectarian conflict”, an influential obiter dictum had been created.

This, he said, “creates a potentially major friction point” because the agreement also explicitly protects rights on grounds such as disability, gender, and ethnicity.

“So, a strict sectarian conflict filter may struggle – I put it mildly – to accommodate these broader protected rights,” he said.

Safeguards dimension

In the Q&A, Prof McCrudden noted that the safeguards dimension of the RSEO chapter had received almost no attention.

In particular, the chapter's explicit requirement that Britain remain a member of the European Convention on Human Rights may itself be capable of direct effect – being, he argued, even more clear, more precise, and more unconditional than many of the bullet-point rights.

In his analysis, Jack Williams (pictured) said: “It is important to bear in mind there are three overall questions and stages to the court's analysis of” Article 2(1) of the Windsor Framework”, namely:

• Applicability of article 2(1) that is, its justiciability before domestic courts,
• Whether rights captured by the RSEO chapter of the 1998 agreement would have been reduced by the Legacy Act’s provisions, and
• Impact of that breach should the Legacy Act have been disapplied.

On applicability, Williams noted the court’s findings that:

• Article 2 (1) of the Windsor Framework itself must be and is capable of direct effect,
• Although the RSEO broad reference to civil rights and respecting victims of the Troubles may not meet the test for direct effect, they do not need to “so long as there is an EU instrument falling within the ambit of the rights listed within the 1998 agreement”.

“One of the most important and biggest questions arising out of this case,” Williams said, “is which norms in the RSEO chapter, and EU law thereby incorporated, the Supreme Court actually considers can be applicable?”

In this context he identified paragraph 118 as "possibly one of the most important paragraphs in the whole case", confirming that the Annex 1 directives were encompassed within article 2(1) but did not represent its outer limit.

Plainly wrong

He rejected the view that litigants were now confined to Annex 1 measures alone as "simply and plainly wrong".

Both speakers identified the meaning of "within the ambit of" as requiring clarity.

EU instruments beyond the Annex 1 directives can engage article 2(1) provided they fall within the ambit of the RSEO bullet points, but the precise boundaries remain unsettled.

Williams noted that Strasbourg jurisprudence on article 14 ECHR suggested a wide reading, with "ambit" meaning "significantly wider than scope".

On the issue of establishing breach of article 2(1), which both speakers defined as the crux of the decision, Williams said the court's finding was narrow and fact-specific: the victims directive was held to apply only to individual prosecutions, not broader questions of immunity legislation – a ruling that "does not foreclose future claims".

Remedies

On remedies, the court declined to address the question having found no breach, though Williams noted that Re Allister and SkyKick point toward automatic disapplication of inconsistent primary legislation, with only a narrow discretion to suspend that outcome in exceptional circumstances.

Both also agreed that the question of whether section 7(A) of European Union (Withdrawal) Act 2018 required automatic disapplication of primary legislation inconsistent with article 2(1) remained entirely open.

On the future role of the Charter of Fundamental Human Rights, Williams suggested the court's rejection of the charter to be narrow and case-specific.

“In my view, it is still open to applicants to rely directly on the charter, notwithstanding the dismissal of the cross appeal.” he said.

However, he flagged “one really troubling obiter dicta” in paragraph 145, in which, “It was clear, at least in my mind, the court was troubled by the idea that the EU charter, post-Brexit, could be used to disapply primary legislation in domestic law”.

Perplexing

He said that, with great respect to the Supreme Court justices, he found it this was "perplexing," given that section 5(7) of the EU Withdrawal Act excludes the charter expressly subject to “relevant separation agreement law” and the Windsor Framework was an integral part of the Withdrawal Agreement which was “necessarily relevant separation agreement law”.

Both also agreed that the question of whether section 7(A) of the European Union (Withdrawal) Act 2018 required automatic disapplication of primary legislation inconsistent with article 2(1) remained open.

Prof McCrudden’s full blog post is Reading Dillon.

He also cited the differing interpretation of Prof Colin Murray of Newcastle University Hollowing Out Northern Ireland's post-Brexit rights protection