Still Living in Boris Johnson’s Brexit: The UK Supreme Court’s Dillon Judgment…

Colin Murray is a Professor of Law at Newcastle University.

The UK Supreme Court’s judgment last week in Dillon undermines the UK’s commitments in the Brexit deal. The decision, relating to the previous Conservative Government’s Legacy Act of 2023, and its controversial amnesty provisions, demonstrates a high-handed disregard for Northern Ireland’s special constitutional arrangements. It amounts to an assertion that, after Brexit, the UK Parliament can legislate as it chooses and the special commitments made under the Withdrawal Agreement are not worth the paper they are written on.

The human rights and equality commitments within the Windsor Framework are frequently underplayed within the story of Brexit. And it is true that they received much less attention than the machinations over special goods regulations and trade arrangements for Northern Ireland. But that is because they were much less controversial; it was so clear that the Good Friday Agreement relied upon EU law provisions that the UK Government had to concede these terms if it was to be able to maintain that it would respect its obligations in full.

As a result, the terms of what became Article 2 of the Windsor Framework were agreed at the outset of the negotiations and have remained unchanged even as other parts of the arrangements regarding Northern Ireland were radically reworked. The UK Government specifically committed to maintaining in full the core of EU law protections against discrimination and to protecting other EU law from diminution insofar as it related to the rights and equality elements of the 1998 Agreement.

There was always some debate over the extent of the EU law covered by this commitment. Having gotten his Brexit deal over the line, Boris Johnson’s Government issued an Explainer in August 2020 (it remained on the frontpage of the Northern Ireland Office website until the day of the Dillon judgment). This affirmed that the commitment explicitly covered, but was not limited to, the Victims’ Directive, the Parental Leave Directive and the Pregnant Workers’ Directive and that these could continue to be relied upon in Northern Ireland Law as if it was still part of an EU member state. This isn’t a long list of firm commitments.

At the same time, however, Johnson was letting it be known that he had agreed whatever terms he needed to get Brexit over the line and that they could be unpicked during implementation. Everyone would get bored of thinking about the 1998 Agreement commitments eventually, and the UK would be able to do what it wanted. And so, when amnesty provisions were included in the legacy legislation Johnson introduced, families of victims of the conflict raised issues around their compatibility with the Victims’ Directive’s commitment that those affected by crime should be able to challenge decisions not to prosecute.

And although Johnson was no longer Prime Minister, his successors in office have stuck to his plan. Even though the UK Government had made an explicit commitment to the Victims’ Directive, when conflict victims tried to assert that commitment they have denied the application of Article 2 of the Windsor Framework at every turn. After a reversal in the High Court in Belfast, the incoming Labour Government persevered with an appeal even though they have committed to stripping the amnesty provisions out of the Legacy Act. And when the Court of Appeal repeated the plain text of the UK Government’s commitments back to them, the Government marched off to the UK Supreme Court.

It is worth pausing to note that the whole amnesty regime is being removed by the UK Government. The point of law around the Victims’ Directive is no longer relevant. But successive UK Governments have stuck with the litigation for the express purpose of undermining Article 2. There were offramps leading away from this debacle, but UK institutions have adopted a Thelma and Louise approach to off ramps.

For the UK Supreme Court has accepted the notion that we are in a post-Brexit world and EU law no longer matters very much, no matter what the UK Government promised. Its judges are far removed from the detailed debates about making Article 2 work which have taken place in Belfast. The Court has declared that there are no clear rights obligations flowing out of the 1998 Agreement which can provide the basis of litigation beyond specific EU discrimination law. The plain text of the 1998 Agreement obligations provide an expansive account of the rights of ‘everyone’ in the community which run beyond issues of sectarian conflict. This poses such a significant constraint on UK Government policy that the UK Government wants to see it whittled away. And the UK Supreme Court has obliged, radically narrowing the range of cases in which Article 2 can be applied.

The agenda of undermining the commitments made to the people of Northern Ireland thus comes to completion, with the Explainer setting out their post-Brexit rights being given no legal weight. And the Irish Government too, having patted itself on the back for securing the terms of the Brexit deal, has become conspicuous in its absence when it comes to defending those terms, lauding the UK’s “clear commitment” over legacy in recent days. As Johnson hoped, no one would pay attention to implementing the Withdrawal Agreement.

These developments are getting lost as Keir Starmer’s grip on No 10 weakens, and Stormont’s politicians start contemplating Nigel Farage reopening the Windsor Framework. But when it comes to the UK’s rights commitments to the North, successive UK Governments have long since set out to undermine them. For now, because the legacy of conflict, and immigrants, and trans people are most immediately affected by these shifts, there has been little political response, but these are profound shifts which undermine Northern Ireland’s special constitutional arrangements.

This does not, however, have to be the end of the story. The UK Supreme Court is not the final arbiter over the UK’s treaty commitments. The Dillon judgment, in so traducing Article 2’s terms, breaches the UK’s commitments in the Withdrawal Agreement. Such breaches can be challenged by the European Commission in the deal’s Committee structures, and ultimately subject to arbitration. This judgment comes as Ireland prepares to assume the Presidency of the EU Council, and with it a key role in shaping the EU agenda. This is the defining moment in whether all the rhetoric around Brexit and the 1998 Agreement really matters. After all, what was the point in securing these commitments if nothing is going to be done to protect them.