Jamie Bryson argues that the Supreme Court’s ruling in the Dillon case marks a significant moment in the ongoing constitutional and legal debate surrounding Northern Ireland’s post-Brexit arrangements and legacy issues. In this opinion piece, Bryson contends that the judgment limits the scope of Article 2 of the Windsor Framework — a provision which has been used in legal challenges involving rights and equality law in Northern Ireland. He argues the ruling weakens attempts to keep Northern Ireland dynamically aligned with EU law after Brexit and strengthens the constitutional position of the United Kingdom. The article also addresses the controversy surrounding the Legacy Act and the Independent Commission for Reconciliation and Information Recovery (ICRIR), with Bryson defending the legislation and warning against what he describes as continued “lawfare” against military veterans who served during the Troubles.
The judgment of the Supreme Court in the case of Dillon and others has profound consequences not just on the issue of legacy in Northern Ireland (in which veterans from across the UK who served have been subject to relentless ‘lawfare’), but also constitutionally in terms of limiting the effect of Article 2(1) of the Windsor Framework (‘WF’). This is an outcome which ought to be of interest to all those who value the constitutional foundations of the United Kingdom, the fundamental structure of which is the political and economic Union given legal effect by the Acts of Union 1800.
It is beyond the scope of this article to analyse the impact of the WF on the economic union of the United Kingdom. It suffices to say that union remains subjugated and suspended for so long as the WF remains. That, self-evidently, is constitutionally unsustainable and must be reversed.
However, the Supreme Court was dealing with another provision of the WF, namely the provision relating to ‘rights’ found in Article 2(1). In Northern Ireland, for quite some time, the academic and legal analysis accepted as orthodoxy was that which emanated from an organised network of largely pro-nationalist and heavily pro-EU academics, partisan Non-Governmental Organisations (‘NGOs’) such as the Pat Finucane Centre, Committee for the Administration of Justice and Relatives for Justice, turbocharged by supposedly independent statutory bodies such as the Northern Ireland Human Rights Commission and Equality Commission.
This collective network had developed a concerningly widespread groupthink, which was accepted and credentialled both by the ‘network’ itself (with each strand reinforcing the other) and uncritically endorsed by the media, which accepted the output as legal ‘fact’ and representing the correct position. Needless to say, as so often with the media, they were listening to the wrong people.
In so far as it relates to the Dillon case, this orthodoxy had two strands; firstly, that Article 2 of the WF — the ‘rights’ aspect — was to be broadly interpreted and, certainly in respect of the analysis put forward by the Commissions and nationalist NGOs, that such an interpretation meant Northern Ireland must continue to dynamically align and keep pace with EU law in almost every area of ‘rights’ and ‘social policy’. If there was any inconsistency with UK law, then it was EU law which should prevail.
This remarkable position represented a clear effort, in an act of partisanship by the Human Rights and Equality Commissions, to use Article 2 of the WF as a ratchet to align Northern Ireland more with the EU than the UK, and thus to incrementally separate us from the rest of the Union. This was particularly evident in the ‘For Women Scotland’ Supreme Court judgment which (unsurprisingly) clarified that gender is defined by biological sex. However, the Equality Commission in particular resisted the application of this ruling by the UK’s highest court in Northern Ireland, instead trying to use Article 2 of the WF as a blocking mechanism.
The Supreme Court has narrowed the application of Article 2 of the WF and, in consequence, has effectively de-fanged the provision. It remains dangerous to a degree, but much less so than before yesterday.
It is unlikely that we will see any swift remedial steps by either the Human Rights or Equality Commissions, who are wedded to a pro-EU dogma. But the law is clear and, with regard to Article 2 of the WF (which, for the avoidance of doubt, should be completely removed), at least its effect has been significantly limited.
Turning then to the deployment of Articles 2 and 3 of the Human Rights Act in an effort to undermine the Independent Commission on Reconciliation and Information Recovery (ICRIR). This argument was again the product of the aforementioned ‘network’ groupthink, with, once again, the Human Rights Commission and particularly the Chief Commissioner leading the charge. The Commission published numerous policy papers, and the Chief Commissioner gave many controversial interviews to the media in which it was stated, as a legal ‘fact’, that the ICRIR was not sufficiently independent.
The two main grounds for this were that former RUC officers worked for the ICRIR, and that the Secretary of State retained primacy over national security material. Firstly, the High Court and Court of Appeal had already dismissed the independence issue based upon the former backgrounds of ICRIR office holders and employees; the Supreme Court did not even consider this matter, endorsing the position of the High Court and Court of Appeal that it was “unarguable”. This, naturally, did not diminish the confidence with which the Chief Commissioner continued to advance this position.
Secondly, the Supreme Court has now dismissed the broad ground of attack relating to the Secretary of State having primacy over national security material. That a Government would retain ultimate responsibility, accountable to Parliament, over national security is hardly surprising, yet remarkably this needed to be expressly set out.
That leaves the situation whereby the Legacy Act, as it presently stands, is legally fit for purpose and should be allowed to proceed with its work. The conditional immunity aspect should never have been abandoned as a ground of appeal by the Labour Government, and there is no good legal reason to proceed with further remedial orders.
But aside from those remedial orders, it is clear that Labour’s proposed replacement legislation — which reopens the door to what many regard as the vexatious persecution of veterans — is not only unnecessary, but a complete betrayal of those who served in Northern Ireland and little more than a sop to an aggressive and increasingly hostile Irish Government, which continues to lecture the UK on legacy matters while refusing to provide information relating to alleged collusion with the IRA.
The legacy battle is far from over, but yesterday in the Supreme Court an important victory was secured for those seeking to defend the constitutional integrity of the United Kingdom and protect veterans from continued legal pursuit.
By Jamie Bryson LL.B
Jamie Bryson works in law and policy. He is NI Director for the Centre for the Union, director of law and policy for Unionist Voice Policy Studies and legal advisor to the Malone House Legacy Group.
Follow Jamie Bryson on Twitter / X here.
The views expressed are those of the author.
