Legislation, human rights and the rule of law: what was wrong with the Northern Ireland Troubles Act 2023?

Introduction

On 28 February 2023, the Northern Ireland High Court (King’s Bench) delivered its judgment in Re Dillon’s Application for Judicial Review [2024] NIKB 11, declaring, under s.4 of the Human Rights Act 1998, that provisions under the Northern Ireland (Legacy and Reconciliation) Act 2023 Act were incompatible with Article 2 (right to life). Article 3 (prohibiting torture and inhuman and degrading treatment and punishment), Article 6 (the right to a fair trial), and Article 1 of the First Protocol (peaceful enjoyment of possessions) of the European Convention. The Court also invoked the rights under the Windsor Framework, made pursuant to the European (Withdrawal) Act 2018, in order to disapply certain provisions of the 2023 Act.

The background and claims in Re Dillon’s Application

The applicants in this case – victims or family members of victims of Troubles-related incidents – challenged various provisions of the 2023 Act as incompatible with various Convention rights, and of the Windsor Framework and thus sought disapplication of those and other provisions under s.7A of the European Union (Withdrawal) Act 2018. Convention rights are given effect to by the Human Rights Act 1998, and under s.4 courts can issue declarations of incompatibility with respect to legislation that contravenes such rights. Section 7A of the 2018 Act, on the other hand, makes it clear that certain rights – for example with respect to trade in goods – are retained, and will allow the courts to disapply any provision in conflict with those rights.

The 2023 Act had been implemented in order to end investigations into Troubles-related incidents by police, ombudsmen, civil claims and inquests, creating the Independent Commission for Reconciliation and Information Recovery to carry out and publish reviews of deaths or other harmful conduct arising out of the Troubles.

In particular, the court had to consider the following issues:

• Whether s.41, under which no criminal enforcement could be taken against anyone for Troubles-related offences which were not serious, was compatible with the above rights – breach found, declaration of incompatibility;
• Whether the five-year time limit for requests for reviews established under s.38 of the Act was lawful – no breach of Article 6 found;
• Whether the Commission were sufficiently independent and possessed sufficient investigative powers – claim dismissed, no breach found;
• Whether s. 43 of the Act, which halted Troubles-related civil proceedings brought after May 2022 and prevented new ones from being brought, was compatible with those rights – breach of Article 6 found;
• Whether s.7 of the Act, which limited the use of compelled material obtained from immunity applications in criminal proceedings and whether s.8, limiting the use of protected material in civil proceedings, was compatible – breach of article 6;
• Whether the 2023 Act was compatible with Article14 of the Convention, which guarantees to the enjoyment of Convention rights free from discrimination on protected grounds – no breach found;
• Whether Convention-incompatible provisions should also be disapplied under the Windsor Framework, and whether the court could also strike down the Act for conflicting with fundamental constitutional principles – breach found, provisions disapplied;
• Whether ss.46 and s.47 of the Act, which reversed the Supreme Court’s decision in R v Adams (Gerard) [2020] UKSC 19, which found that interim custody orders not made by the secretary of state at the time had been invalid, and which prohibited claims based on the prior unlawfulness of such orders, was retrospective and unlawful – breach of Article 6. 

The effect of the decision in Re Dalton on the United Kingdom Constitution

The UK constitution is based on the doctrine of parliamentary, rather than constitutional sovereignty, and that no court or body can question an Act of Parliament. However, Parliament itself can limit that doctrine and provide the courts with greater powers of judicial review of legislation. This was achieved in the 2018 EU Withdrawal Act, which retained certain EU rights as sovereign over domestic law, or at least until Parliament expressly overrules that legislation. That sovereignty can, of course, be regained by passing legislation expressly by amending or repealing the 2018 Act.  Equally, s. 4 of the 1998 Act allows the High Court and above to declare primary and secondary legislation incompatible with rights contained in the European Convention of Human Rights. Yet the 1998 Act makes it clear that the power under s.4 does not extend to ignoring, disapplying or striking down any offending legislation passed or authorised by Parliament.

In terms of the separation of powers and the constitutional role of the courts, many ask why a court, with unelected judges, should be able to disturb government policy, authorised by Parliament, by declaring such policy unlawful. Of course, much of that doubt has been answered in our above discussion, on parliamentary sovereignty. However, the High Court in this case also passed judgment on the application and execution of potentially lawful actions. For example, it concluded that interferences with ECHR and retained EU rights were not justified on the evidence presented to the court: ‘there was no justification for breaching Convention rights, as there was 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.’ For some, this is evidence of courts overstepping their constitutional remit, and ruling on the merits of government policy; a task for an accountable executive.

That argument invites a three-pronged response. First, reviewing actions on grounds of proportionality and necessity was given to the courts by both the 1998 Act and the 1972 (and 2018) Acts. Second, although review under both Acts should not extend to replacing the policy and judging the pure merits of such – that would be institutionally and democratically wrong – the decision is this case is not simply a case of the courts disagreeing on the evidence. Thus, there was no evidence that the granting of immunity will in any way contribute to reconciliation in Northern Ireland; indeed, the evidence is to the contrary.’ That suggests that the executive, being asked to provide the necessary evidence to justify prima facie breaches of fundamental rights, have failed to provide any relevant evidence. Third, some of the claims made in this case were rejected; the court applying judicial deference and the margin of appreciation in deciding that some measures were within the law.

Conclusions

This case reveals the government’s position on and approach to the protection of human rights, and its belief in the law and the rule of law. The government obviously has a distrust of European human rights law and European judges, and it may, if given the opportunity, reintroduce plans to scrap to Human Rights Act 1998, and to withdraw from the European Convention and the jurisdiction of the European Court of Human Rights. Yet this judgment is not simply repeating the ideas and judgments of a European Court; many of the decisions are based on common law principles of the right to life, freedom from cruel and unusual punishment, fairness, due process rights, freedom from retrospective law, and property rights – rights which have existed well before the incorporation of European rights and principles, and which have been upheld by our courts.

Unless a government prohibits review of any kind, the judges will continue to come after it, and only legislation that prohibits any judicial intervention will restore the government’s idea of constitutionalism. That would naturally start the conversation about a new UK Constitution, and the conduct of the present government, including its policies in this case, are asking serious questions about accountability in our Constitution.