On 7 May 2025, the Supreme Court delivered judgment in Dillon and Ors v Secretary of State for Northern Ireland [2025] UKSC 15, concerning the controversial Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (“the Legacy Act”). The Legacy Act imposed a number of restrictions on legal procedures relating to alleged unlawful acts committed in Northern Ireland during the period known as the Troubles.
At first instance, Colton J had accepted that parts of the Legacy Act were incompatible with the European Convention on Human Rights (“the ECHR”) and had also disapplied parts of the Act which he found diminished rights contrary to the Windsor Framework (the renamed Northern Ireland Protocol, which forms part of the UK-EU Withdrawal Agreement). Those findings focused on the provisions of the Act which allowed grants of conditional immunity (also referred to as amnesties) to alleged perpetrators of serious Troubles-related crimes, including murder and torture. The Secretary of State appealed against these findings. The Applicants cross-appealed against findings of the Judge that other aspects of the Act — including the establishment of a new body (“the Independent Commission”) to carry out reviews of Troubles-related offences — were compatible with the ECHR.
After the hearing on appeal, the Secretary of State informed the Court of Appeal that he no longer sought to pursue the grounds of appeal relating to the ECHR. The Court of Appeal dismissed the Secretary of State’s appeal in respect of the Windsor Framework and upheld the Applicants’ cross-appeal in part.
The Secretary of State appealed to the Supreme Court in respect of the Windsor Framework. The Supreme Court upheld his appeal in this regard. Specifically, it found that the immunity provisions and sections 8 and 43(1) of the Legacy Act do not breach Article 2(1) of the Windsor Framework because those provisions did not result in a diminution of the Applicants’ rights derived from EU law in a way that would have been contrary to EU law, had the UK remained in the EU.
The Supreme Court further decided, in the Secretary of State’s favour, that: (i) the EU Charter of Fundamental Rights does not create free-standing rights, including for the purposes of the Windsor Framework; and (ii) the Applicants had not established that investigations carried out by the Independent Commission would breach the Article 2/3 ECHR investigative obligation in all or almost all cases, which is the standard that must be met when legislation is challenged prospectively.
No appeal had been made to the Supreme Court against the lower courts’ declarations that the immunity provisions and sections 8, 43(1) and 43(2) of the 2023 Act are incompatible with ECHR rights, so those declarations had to remain in force. Nonetheless, in response to submissions made by an intervener, the Court commented (obiter) that it would in any event have rejected the proposition that there is an exception to the general rule that breaches of Articles 2 and 3 of the ECHR must be punished where an amnesty or immunity is granted with the view to reconciliation following conflict. The European Court of Human Rights has not recognised such an exception.
Naomi Hart acted for the Northern Ireland Human Rights Commission, which intervened in this case in support of the Applicants. Before the King’s Bench Division and the Court of Appeal, she was led by Hugh Mercer KC, before he was appointed the United Kingdom’s Judge at the European Court of Human Rights. Before the Supreme Court, she was led by Adam Straw KC at Doughty Street Chambers.