In the matter of an application by Martina Dillon, John McEvoy, Brigid Hughes and Lynda McManus for Judicial Review; In the matter of an application by Martina Dillon, John McEvoy, Brigid Hughes and Lynda McManus for Judicial Review No 2

Article 2(1) of the Windsor Framework can have direct effect only when read with a sufficiently clear and precise right within the relevant chapter of the Belfast Agreement and, where necessary, an applicable EU measure. The Victims Directive does not regulate legislative policies granting immunity from prosecution.

Charter rights are not freestanding. They apply only when anchored in EU law which is being implemented.

A prospective challenge to an investigative scheme under articles 2 and 3 of the Convention succeeds only if the scheme will produce ineffective investigations in all or almost all relevant cases. Investigative effectiveness is assessed holistically. Legal representation, witness questioning, family participation and institutional independence are context-sensitive elements, not independent ends.

Victims of Troubles-related violence challenged provisions of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023. The Act established the ICRIR, ended or restricted several existing investigative and legal processes, and created an immunity scheme.

The High Court, in [2024] NIKB 11, made declarations concerning incompatibility with Convention rights and article 2(1) of the Windsor Framework. The Court of Appeal, in [2024] NICA 59, upheld or extended several declarations. It also held that the ICRIR was not presently capable of replacing inquests consistently with the article 2 investigative obligation.

The Secretary of State appealed on the Windsor Framework and ICRIR issues. The applicants cross-appealed on the Charter. The central questions concerned direct effect, diminution of EU-derived rights, the Charter’s scope and the validity of an abstract challenge to the ICRIR scheme.

1. Disposition. The Supreme Court unanimously allowed the Secretary of State’s appeal and dismissed the applicants’ cross-appeal. It set aside the specified declarations concerning the Windsor Framework, the ICRIR’s capacity and independence, and the consequential incompatibility of the provision ending inquests. The unappealed declarations concerning immunity and other Convention incompatibilities remained undisturbed.

2. Windsor Framework. Article 2(1) can be directly effective only when the obligation against diminution is given sufficiently clear and precise content by the relevant part of the Belfast Agreement and any applicable EU measure. Paragraphs 1, 11 and 12 of the Rights, Safeguards and Equality of Opportunity chapter were too general to create the rights asserted. Article 2(1) may nevertheless operate with a directly effective EU provision falling within that chapter’s ambit.

   The rights in articles 11 and 16 of the Victims Directive concern prosecutorial decisions and compensation in actual or potential individual criminal proceedings. They do not regulate a legislature’s broader policy on when prosecutions may be brought, including an immunity policy intended to promote post-conflict reconciliation. The 2023 Act therefore caused no relevant diminution resulting from EU withdrawal: paras 125–139.

3. Charter. The Charter supplies no freestanding rights under article 2(1). Article 51 requires an anchor in EU law which the state is implementing. EU competence alone is insufficient, and the general reference to civil rights in the Belfast Agreement did not set out the specific Charter rights relied upon: paras 144–159.

4. Prospective Convention challenge. An abstract challenge to an investigative scheme must establish that ineffective investigations will result in all or almost all cases within the domestic temporal scope of the Human Rights Act. The essential parameters of an article 2 or 3 investigation—including adequacy, promptness, family involvement and independence—are interrelated. They must be assessed jointly and in the circumstances of completed or concrete investigations: paras 160–191.

5. The absence of statutory legal aid or an express entitlement for families to question witnesses did not satisfy that demanding test. An inquisitorial investigation can comply with articles 2 and 3, and the Commissioner was expressly required to comply with the Human Rights Act. The Court of Appeal had wrongly treated ICRIR reviews as equivalent to adversarial legacy inquests: paras 192–207.

6. The Secretary of State’s disclosure power was constrained by public law, the Human Rights Act and judicial review. It required a balance between national security and the administration of justice, informed by sufficient inquiry and the ICRIR’s views. The applicants could not establish inadequate family participation, insufficient independence or ineffective investigation in all or almost all cases: paras 208–231.

7. Amnesties. The Strasbourg jurisprudence leaves open, but has not recognised, a reconciliation exception to the rule against impunity for grave breaches of articles 2 and 3. Domestic courts could not establish such an exception. The Secretary of State had abandoned the relevant appeal, so the existing immunity declarations stood: paras 232–249.

1. United Kingdom Supreme Court: The Secretary of State’s appeal was allowed and the applicants’ cross-appeal was dismissed. The specified declarations made below were set aside: [2026] UKSC 15.
2. Court of Appeal in Northern Ireland: The Secretary of State’s appeal on the relevant Windsor Framework issues was dismissed. The applicants’ cross-appeal concerning family participation, disclosure, civil actions and the ICRIR was allowed in material part: [2024] NICA 59.
3. High Court of Justice in Northern Ireland: Colton J made declarations of incompatibility and disapplication concerning several provisions, but rejected or declined relief on other aspects of the ICRIR scheme: [2024] NIKB 11.