This blog post, written by Professor Christopher McCrudden (Blackstone Chambers; Emeritus Professor of Equality and Human Rights, QUB; L Bates Lea Global Professor of Law, University of Michigan Law School), discusses the Windsor Framework aspects of the Supreme Court’s Judgment In the matter of an application by Martina Dillon, John McEvoy, Brigid Hughes and Lynda McManus for Judicial Review [2026] UKSC 15.
Introduction
The purpose of this commentary on today’s unanimous judgment of the Supreme Court in the long-awaited case of In the matter of an application by Martina Dillon, John McEvoy, Brigid Hughes and Lynda McManus for Judicial Review [2026] UKSC 15 (hereafter ‘the Dillon judgment’) is limited. That judgment in effect considers two separate legal issues: the appropriate interpretation of the ECHR as applied to the Legacy Act; and the application of Article 2(1) of the Windsor Framework to the Legacy Act. This commentary considers only the latter issue.
The judgment of the Supreme Court in Dillon, engaging with the various issues that arise in the context of Article 2 of the Windsor Framework, is complex and not entirely clear in its meaning. There are, however, several elements of the judgment which are clear, at least in broad terms, although each requires further nuance. Part 1 of this commentary sets out these broad-brush conclusions. Part 2 considers several of the issues that arise in greater detail and introduces some much-needed nuance into the discussion. It is not unfair to the Supreme Court, I hope, to say that the judgment is not an easy read.
As well as not dealing with the ECHR parts of the judgment, a second limitation on the scope of this commentary is of critical importance. My purpose in this commentary is to provide as clear as possible a legal analysis of the judgment from the perspective of what it means for the purposes of domestic UK law. It does not seem productive in the immediate aftermath of the judgment to attempt to re-litigate the case, arguing that the judgment is legally ‘wrong’ for the purposes of domestic law. The Supreme Court’s judgment is clearly binding authority throughout the United Kingdom.
A third limitation is that I do not consider whether the judgment of the Supreme Court on the Article 2(1) WF issues is consistent with the international law obligations of the United Kingdom under the Withdrawal Agreement. Before that issue can be satisfactorily addressed, the issue of what exactly the judgment means must be addressed.
Fourth, I do not consider the implications of the judgment for the cases that have been stayed in Northern Ireland courts, pending this judgment, which will likely now proceed, and nothing in this commentary should be interpreted as commenting directly or indirectly on these cases. Nor does anything in this commentary reflect the views of the Equality Commission for Northern Ireland, which intervened in Dillon, and which I represented before the Supreme Court; no doubt, in time, the Commission will present its own understanding of the judgment. The understanding of the case presented here reflects my views alone.
Part 1: Broad-brush conclusions
The first conclusion that can be drawn is that the Supreme Court did not disturb the interpretation of Article 2 WF concerning a significant number of issues that the Northern Ireland Court of Appeal had considered. Where the Supreme Court did not explicitly or by implication overrule the approach taken by the Court of Appeal, the judgment of that Court in Dillon remains good law.
The second conclusion that can be drawn is that the Supreme Court did not accept the more wide-ranging elements of the Government’s submissions. Although, we shall see that the Supreme Court did accept significant elements of the Government’s submissions, the attempt to render the whole of Article 2 WF non-justiciable in particular through the strategy of substantially denying it ‘direct effect’ was unsuccessful. This means, therefore, that Article 2 WF has been accepted as potentially directly effective in domestic law in a wide set of circumstances, and where that is the case, fully justiciable.
The third conclusion is that the provisions of Article 2 WF are to be interpreted as part of the Withdrawal Agreement, such that the general provisions of that Agreement apply, in particular Article 4 of the Withdrawal Agreement, which is accepted as specifying that the approach to be adopted in understanding the concept of ‘direct effect’ is that specified by the CJEU.
The fourth conclusion that can be drawn is that, although the judgment ranges widely, the Supreme Court’s decision to uphold the Government’s appeal against the Court of Appeal judgment was based on the ground that the meaning and effect of the EU Victims Directive, which had been a central part of the applicants’ argument as to why the Legacy Act fell foul of EU law, should not be interpreted as broadly as both the High Court and the Court of Appeal had done. This is a relatively narrow ground for allowing the appeal, and whilst it is important in the context of legacy, has relatively little effect beyond that.
The fifth conclusion is that the effect of section 7A of the 2018 Act, which is the provision of domestic law that incorporates the Withdrawal Agreement into domestic law, has been recognized as having the effect that a breach of Article 2 WF by primary legislation enacted after section 7A came into effect would be remediable in domestic law (although the specific remedy was left unaddressed by the Court).
The sixth conclusion is that the EU Charter of Fundamental Rights (CFR) continues to have effect in domestic law, primarily in the context of interpreting directly effective EU law that is relevant in the context of Article 2 WF. Whether the provisions of the CFR are themselves directly effective in domestic law through Article 2(1) remains to be determined.
The seventh conclusion is that the approach that should be adopted to the interpretation of the Article 2(1) WF is accepted, at least in principle, as governed by customary international law, effectively the provisions of the Vienna Convention on the Law of Treaties, and no distinction is drawn in this context in construing the reference in Article 2(1) WF to the Belfast-Good Friday Agreement, between the Multi-Party Agreement and the British-Irish Agreement.
The eighth conclusion is that the Explainer Document’s interpretative authority is significantly weakened by it not being regarded as evidence of subsequent agreed practice for the purposes of the VCLT, although whether it should nevertheless be accorded some authority as evidence of the intentions of the Government at the time that Article 2 WF was agreed (and the intention of Parliament when section 7A was adopted) is not considered.
The ninth conclusion is that the rights specified in the relevant provisions of the Belfast-Good Friday Agreement (‘RSEO’) should be interpreted in light of the first sentence of paragraph 1 which specifies that the Parties adopted the listed rights ‘[a]gainst the background of the recent history of communal conflict’, but how far this is a significant limiting factor on the interpretation of those rights is uncertain.
The tenth conclusion is that reliance on the ‘civil rights’ language of the relevant provisions of the RSEO is now problematic. This is not to say that reliance on that phrase is necessarily ruled out; rather it means that applicants attempting to ground their reliance on Article 2(1) through ‘civil rights’ are likely to face an up-hill struggle to convince the court that the Supreme Court has not closed off that avenue of direct effect.
Part 2: Adding nuance and complexity
Having set out my reading of the Supreme Court’s judgment in broad terms, it is now necessary to consider some of the issues in more detail, pointing to where those broad-brush conclusions require a degree of nuance before a fully accurate picture of the effects of judgment emerges. I will consider the issue of direct effect, the status of ‘civil rights’ in RSEO Paragraph 1, the scope and function of the ‘bullet point’ rights, litigation involving the Annex 1 Directives, the role of the Charter of Fundamental Rights, and the future use of non-statutory materials, including the Explainer Document. In what follows, references to paragraphs of the Superem Court’s judgment are in bold.
Direct effect
Although Article 2 WF is capable of ‘direct effect’, the Court spends some time considering under what circumstances it can be used in UK domestic courts. Obviously, this is of critical significance for future litigation. There are several critical steps in the Court’s reasoning at this point in the judgment.
The first step is what the test of direct effect is to be. The answer, in principle, is straightforward and clear: ‘The justiciability of article 2(1) of the Windsor Framework depends on whether it meets the conditions for direct effect under EU law’ (para 111). The relevant test for ‘direct effect’ is seen by the Court (para 112) as being the test set out by the CJEU for the effect ‘of an international agreement between the EU and non-Member States’, namely whether, ‘regard being had to its wording and to the purpose and nature of the agreement, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure…’ (Case 12/86 Demirel v Stadt Schwabisch Gmund [1987] ECR 3719 (“Demirel”) at para 14 in terms which the CJEU reiterated in Case C-240/09 Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky [2012] QB 606 at para 44). Applying that test to Article 2(1) WF, the Court concluded that the relevant question (para 113) was ‘whether, having regard to the wording and to the purpose and nature of the RSEO chapter and of article 2(1) of the Windsor Framework, those provisions read together impose a clear and precise obligation which satisfies the test for direct effect.’
The second step in the process involves the Court setting out its answer to that question. There are three elements in the Court’s answer. The first is that certain provisions of the RSEO chapter are not themselves directly effective because they do not meet the CJEU’s test. The Court identifies specifically (para 114) the ‘commitment to “the civil rights … of everyone in the community” in paragraph 1 in that context, in addition to the provisions regarding victims in paragraphs 11 and 12 RSEO. ‘These provisions,’ says the Court, ‘are expressed at a high level of generality. The reference to “civil rights” in paragraph 1 is accompanied by broad references to “mutual respect” and “religious liberties”.’ The language adopted in the victims’ provisions ‘is far too general to give rise to any directly enforceable rights in relation to inquests, civil proceedings or prosecutions.’
The third step in the process (para 116) is for the Court to emphasize the need to pay attention to the language in Article 2(1) itself. As the Court puts it, it is necessary ‘to focus on “rights, safeguards or equality of opportunity, as set out in [the RSEO chapter]” (emphasis added). ‘It is necessary,’ says the Court, ‘to identify a clear and precise obligation in EU law by reference to the RSEO chapter. It is only in this way that the obligation not to diminish rights, safeguards or equality of opportunity acquires any content.’ The Court considers it ‘necessary to read article 2(1) of the Windsor Framework in conjunction with the RSEO chapter in order to identify a clear and precise obligation which satisfies the test for direct effect’ (para 117). Article 2(1), therefore, is capable of being directly effective (para 118), when taken in combination with at least some of provisions of the RSEO chapter.
This conclusion is clearly supported by the other amendments made by the European Union (Withdrawal Agreement) Act 2020 to the Northern Ireland Act 1998. As the Commissions argued, the new section 78C empowers the Human Rights Commission and the Equality Commission to bring judicial review proceedings in respect of an alleged breach or potential future breach of article 2(1) of the Windsor Framework or to intervene in such proceedings. The new section 78D empowers those Commissions to assist persons who have brought proceedings in respect of an alleged breach or potential future breach of article 2(1) of the Windsor Framework. The Court drew on these provisions as ‘evidence of the view of Parliament that article 2(1) is capable of giving rise to a directly enforceable right in certain circumstances’ (para 120).
In what circumstances, exactly, is set out in the fourth step of the Court’s reasoning. The Court holds that the test may be met in either of two situations. First, in a context of where the EU discrimination Directives, as set out in Annex 1, are in issue. The Court holds (para 118) that ‘article 2(1) might operate in conjunction with a directly effective provision of one of the Annex 1 Directives so as to give rise to a directly effective obligation not to diminish such a right.’ Technically, this holding is obiter, since the Directives in Annex 1 had no application in the present case and are not relied on by the applicants, but it is nevertheless a clear indication of what the Court would be minded to do were that situation to arise. A second situation where Article 2 is viewed as capable of having direct effect is ‘in conjunction with other EU instruments falling within the ambit of the rights listed with bullet points in paragraph 1 of the RSEO chapter, or within the ambit of paragraphs 11 or 12, if the Demirel requirements are satisfied in respect of the obligation imposed (para 118). Whether these two situations are to be considered as giving rise to a similar analysis is considered subsequently.
The Court concludes the discussion of the direct effect of Article 2(1) with a brief paragraph (para 125) that essentially constitutes the Court’s ratio decidendi on the issue: ‘While the provisions of paragraphs 1, 11, and 12 of the RESO chapter do not themselves have direct effect, article 2(1) of the Windsor Framework may be capable of having direct effect in conjunction with other EU instruments falling within the ambit of the RSEO chapter if the Demirel requirements are satisfied in respect of the obligation imposed.’ Two situations that the Court identifies which satisfy those requirements are those set out in paragraph 118. A question that arises, however, is whether the two situations are examples of where the Demirel requirements are satisfied, or whether they constitute the only circumstances in which the Court considers the Demirel requirements could possibly be satisfied.
Future role of ‘civil rights’
Beyond the two situations, identified in paragraph 118, it appears that the Court was unwilling to countenance an argument that Article 2(1) could be read more broadly, in particular by using the ‘civil rights’ provision in paragraph 1, operating in conjunction other EU instruments falling within the ambit of civil rights, to produce direct effect. However, the status of ‘civil rights’ as an RSEO right which might ground a justiciable claim in much the same way as the ‘bullet point’ rights that follow it is not entirely clear.
Ruling out this use of ‘civil rights’ is supported by the Court’s subsequent analysis of the role of the Charter of Fundamental Rights (in para 148.) We shall consider the Court’s treatment of the CFR in more detail below. For the purpose of determining the extent of the direct effect of Article 2(1), it is important to bear in mind that when the Court is considering the argument that the Charter is directly enforceable in domestic law because of Article 2(1), the Court considers whether the Charter rights could be said to have been ‘set out’ in the RSEO chapter. The Court continues: ‘The only provision in the RSEO chapter which could arguably “set out” Charter rights in this appeal is the reference to “civil rights” in paragraph 1. As pointed out above, this is expressed at a high level of generality and is accompanied by broad references to “mutual respect” and “religious liberties”. This very generalized phrase is not apt to set out specific, enforceable legal rights, including such rights as are set out in the Charter.’ That appears to be a clear rejection of ‘civil rights’ as having any role in a justiciable claim more generally.
However, in another part of the judgment, in which the Court rejects the applicants’ arguments concerning the Victims’ Directive, the Court arguably takes a somewhat different approach. One of the applicants’ arguments in that context was that (para 130) certain rights in the Directive fell within the ambit of the RSEO chapter because of the reference to “the civil rights … of everyone in the community” in paragraph 1 of the RSEO chapter. One might have expected, in light of the approach adopted by the Court when dealing with the Charter in paragraph 148, for the Court to have simply dismissed this argument on the ground that ‘civil rights’ could never play that role, but the Court takes the different approach of apparently assuming that ‘civil rights’ might play such a role but failed to do so in this case. In paragraph 131, the Court states that ‘the provisions of the Victims Directive relied upon are not concerned with civil rights in the sense in which that term is employed in the first sentence of paragraph 1, where it appears to refer at a general level to civil and political rights, of which the rights which are then listed (“in particular”) are specific examples.’ Why the Court would consider it necessary (or even possible) to interpret ‘civil rights’ in this context is unclear if the term is necessarily non-justiciable.
Where that leaves the status of ‘civil rights’ in future litigation is uncertain and will, no doubt be the subject of future litigation. We appear to have several uncertainties that need to be addressed: (i) the apparent tension between the approaches taken by the Court in paragraphs 131 and 148 is to be resolved, and (ii) the apparent ambiguity in the critically important paragraphs 118 and 125.
Scope and function of the ‘bullet point’ rights
One significant effect of the Court’s approach to the direct effect of Article 2(1) is to focus attention on the ‘bullet point’ rights in paragraph 1 of RSEO. As we have seen, in future cases it will be necessary to establish that the alleged breach of Article 2(1) concerned rights that were ‘within the ambit of the RSEO chapter’ (para 125). There are several dimensions to this that require attention.
First, the Court cannot have been ignorant of the significance of the phrase ‘within the ambit of’, given the Court’s intimate and sustained engagement with the jurisprudence of the European Court of Human Rights, which uses the phrase to describe the relationship that must be established between Article 14 ECHR and the other ECHR substantive rights, in order for Article 14 to be engaged (e.g. Lady Black in R (Stott) v Secretary of State for Justice [2018] UKSC 59, [2020] AC 51). The Court will also have been aware that the precise meaning of ‘within the ambit’ in that context is notoriously ambiguous and it is likely that, as a result, further litigation can be expected as to its meaning in the context of Article 2(1).
Second, that issue aside, there is also the further question as to how the ‘bullet point’ rights themselves are to be interpreted. In this regard, the Court’s brief analysis of these rights in paragraph 119 is likely to be poured over by legal advisers and subsequent courts alike. There are several aspects of paragraph 119 that are striking: the analysis of the bullet point rights is set in the historical context of the Belfast-Good Friday Agreement, which is seen by the Court as ‘aimed at establishing peace in Northern Ireland after decades of sectarianism and civil conflict.’ Second, the bullet point rights are to be seen within the context of the text of the Paragraph 1 RSEO, which, according to the Court, ‘speaks at a high level of generality of civil rights and religious liberties against the background of what, in 1998, was a recent history of communal conflict.’ Building on these two points, the Court concludes that: ‘The rights listed with bullet points are all concerned with ending sectarian conflict. These include freedom of political thought, freedom of religion, the right to pursue national and political aspirations, the right to seek constitutional change by peaceful and legitimate means, equal opportunities and freedom from sectarian harassment.’
Technically, these observations are all obiter dicta since the applicants did not rely on any provision of EU law falling within the scope of the bullet point rights listed in paragraph 1 of the RSEO chapter, and they are, therefore, as the Court observed, ‘clearly inapplicable to the matters in issue in these proceedings’. Nevertheless, obiter dicta by the Supreme Court are likely to be highly influential and must be taken seriously. What then are we to make of the Court’s analysis?
Taken at face value, they appear to limit the scope of the bullet point rights quite significantly if all the rights are to be viewed solely through the lens of ‘ending sectarian conflict’. So, for example, the bullet point right to equal opportunities, seen through this lens, would appear to apply only to the types of discrimination that are usually associated with religious and political discrimination. And while this understanding has a logic to it, in the sense that it is conceivable that such an approach might have been adopted by those negotiating the Agreement, it appears to fly in the face of the text of the bullet point rights themselves. Thus, the ‘equal opportunities’ provision explicitly provides: ‘the right to equal opportunity in all social and economic activity, regardless of class, creed, disability, gender or ethnicity’. It is not at all clear why such an extended list of protected grounds would be included if the intention was simply to ‘end[] sectarian conflict’. It is perhaps telling (and unfortunate) that the Court did not actually quote this provision in full.
It is also noteworthy that, in listing the bullet point rights in paragraph 119, the Court failed to list all the rights, in particular the ‘the right of women to full and equal political participation’. Again, it is unclear how that provision fits the neat, but ultimately unpersuasive, conclusion that ‘all’ the bullet point rights ‘are concerned with ending sectarian conflict.’ Subsequent courts will be called on to engage in a somewhat more sophisticated and historically-informed analysis than the Supreme Court engaged in. In defence of the Court, the issue did not actually arise for decision and therefore did not, perhaps, receive the attention it deserved. (The Court’s attention was drawn to the only historical analysis of these provisions so far undertaken, Christopher McCrudden, The origins of ‘civil rights and religious liberties’ in the Belfast–Good Friday Agreement, Northern Ireland Legal Quarterly, Vol. 75 No. 3 (2024) 443–487, but the Court does not appear to have engaged with this analysis.) In light of all these concerns, it is uncertain how far it can be said that the Court intended that in future cases it would be a prerequisite for reliance on the bullet points that there is also a link to the resolution of the troubles.
Litigation using Annex 1 Directives
There is a third issue that arises which relates to the Court’s analysis in paragraph 118 of when Article 2(1) has direct effect. As set out above, the Court holds that one of these situations arises where the EU discrimination Directives, as set out in Annex 1, are in issue. The issue that arises here is how holding this relates to the bullet point rights in Paragraph 1. Addressing this issue requires a close analysis of the Court’s approach in paragraph 118. The way in which the Court puts its decision is as follows:
‘The six EU Directives listed in Annex 1 all relate to the prohibition of discrimination. Before us, it was common ground between the Secretary of State and the applicants that article 2(1) might operate in conjunction with a directly effective provision of one of the Annex 1 Directives so as to give rise to a directly effective obligation not to diminish such a right.’
The precise issue that arises is whether, when reliance is placed on the Annex 1 Directives, engagement with the bullet point rights is also necessary. This may seem to be a trivial point. After all, one of the bullet point rights relates to the right to equal opportunities, and so even if an engagement with a bullet point right is required, don’t all the Directives listed in Annex 1 are clearly ‘within the ambit of’ that right? Unfortunately, however, that approach does not fully take on board the approach which we have seen the Court adopts to the analysis of the bullet point rights. If, the Court’s analysis that all the bullet point rights have to be interpreted through the lens of them aiming to address ‘sectarian conflict’ stands, then that would significantly limit how far the Directives could be seen to be engaged by Article 2(1). If, on the other hand, there is no requirement to engage a specific bullet point right for the rights in the Annex 1 Directives to be protected from diminution without further reference to a bullet point right, the Court’s analysis of the lens through which the bullet point rights have to be viewed is not relevant where reliance is placed on the Annex 1 Directives.
Unfortunately, the answer appears to depend on two separate aspects of the text of paragraph 118. The first textual point relates to ‘such a right’ in the quotation set out above. Does that refer to a right that derives from the Directives, or does it relate to a right as set out in one of the bullet points? The second textual point relates to the word ‘also’. This is because the Court follows its analysis of direct effect in the Annex 1 context with the following: ‘We also consider that article 2(1) may be capable of having direct effect in conjunction with other EU instruments falling within the ambit of the rights listed with bullet points in paragraph 1 of the RSEO chapter …’ (emphasis added). Does the insertion of the word ‘also’ in this context mean that we should consider the two examples of where direct effect applies are to be taken as effectively two examples of the same principle (that EU instruments are required to fall within the ‘ambit’ of a bullet point right)? Or is ‘also’ to be read as identifying a different type of situation, with the reference to the ambit of the bullet point rights being restricted to the second situation and not applying the first?
This is another issue that, in time, will require further judicial consideration. What I have termed as the ‘ratio’ of the Court in deciding the direct effect issue, in paragraph 125, appears to point to the former, rather than the latter, conclusion. We have seen that the Court concludes the discussion of the direct effect of Article 2(1) as follows: ‘(…) article 2(1) of the Windsor Framework may be capable of having direct effect in conjunction with other EU instruments falling within the ambit of the RSEO chapter (…)’ (emphasis added). No distinction between the two situations identified in paragraph 118 appears to be being made, but I consider the issue is arguable either way.
The role of the Charter of Fundamental Rights
Turning now to the Court’s consideration of the role of the EU Charter of Fundamental Rights, we are faced with some difficulty in determining how the Court’s analysis should be applied in subsequent cases.
Some elements of the Court’s analysis are clear. The first is that the Court’s ultimate decision that the Charter does not apply in this case is on the basis that the requirement that the Charter provisions are engaged only when a Member State is ‘implementing’ EU law, has not been established by the applicants (para 157), on the ground that merely establishing that measures addressing victims was an EU competence was not sufficient. This finding is specific to the facts of this case and, whilst important for the legacy context, provides little guidance for how the CFR is to be applied in other cases.
Although I think it is clear that the Court’s ratio in the context of the Charter is thus limited, the Court does engage in quite a detailed analysis of the status of the Charter, even though it is not strictly necessary, and therefore its observations are strictly obiter, if (of course) highly persuasive. One of the key points that is clarified is that the Charter appears to continue to be relevant in the interpretation of other provisions of EU law. This was the approach adopted in the Court of Appeal, and the Supreme Court does not take any exception to the Court of Appeal’s analysis in this respect. The Supreme Court is solely concerned with whether the CFR rights are what it terms as ‘freestanding’, as a result of Article 2(1) (see paras 141, 145, 148).
Unfortunately, the Court’s observations on this key question are far from crystal clear, and subsequent litigation will be required for some of the key issues in the future application of the Charter to be determined. The unsatisfactory nature of the Court’s approach is due to the Janus-like quality of the Court’s judgment on the issue, looking two ways at the same time. Unfortunately, this results in the Court arguably contradicting itself.
The starting point must be paragraph 145. The Court states:
‘(…) the retention in domestic law of the Charter was specifically excluded by section 5(4) of the 2018 Act, subject to relevant separation agreement law. However, the effect of the applicants’ argument that freestanding reliance on Charter rights is permitted would be to significantly expand the application of the Charter. As the Secretary of State pointed out, the applicants’ case means that:
“…the limited language of article 2(1) [of the Windsor Framework]’s reference to the diminution of rights has indirectly [led] via a reading into the RSEO chapter of the [Belfast Agreement] of the entirety of the [Charter] (which did not exist at the time), a general and free-standing source of civil, political, economic and social rights accompanied by the most powerful remedial consequences known to domestic law (namely the disapplication of primary legislation of the sovereign Parliament)”.
This would surely require the clearest possible statutory language.’
The impression that may be gained from this paragraph, if close attention is not paid to the rest of the judgment, is that the Court is here ruling out any ‘freestanding’ role for the CFR in the context of Article 2(1), and it is likely that some will seek to argue that this is, in fact, the implication of the Supreme Court’s judgment. This is largely due to the way in which section 5 of the 2018 Act is discussed. As we can see from the quotation from the judgment, there is explicit citation only of section 5(4), which provides that ‘The Charter of Fundamental Rights is not part of domestic law on or after IP completion day.’
Section 5(7) is only obliquely referenced (‘subject to relevant separation agreement law’) but remains otherwise unaddressed explicitly. Yet section 5(7), to which the Court’s attention was drawn, is surely of critical importance, providing as it does that section 5(4) is ‘subject to relevant separation agreement law’, specifically the Withdrawal Agreement (incorporating the provisions of the Windsor Framework). Section 5, taken as a whole, therefore, merely states the problem, that is, what does the Windsor Framework require vis a vis the CFR. It is misleading to consider that it states a principle that the CFR is not part of domestic law which requires further statutory language in order to override that principle. Section 5 simply leaves the issue to the courts as to what Article 2(1) requires and does not give any guidance as to what the position of the CFR should be, even in principle.
It would, in my view, be a mistaken interpretation, for the reasons that follow, to consider the paragraph as indicating an intention to rule out any role for the CFR in the context of Article 2. That is not to deny, however, that paragraph 145 is deeply problematic and somewhat ill-drafted. Were paragraph 145 to be seen as ruling out any use of the CFR in the context of Article 2(1), it would be entirely inconsistent with the approach adopted by the Court in the remainder of the judgment. That is most clearly the case regarding the interpretative role of the CFR, but also more broadly. Read with care, the approach in the paragraphs that follow paragraph 145, results in the conclusion that CFR rights are capable, not only as having an interpretative role, but also of being considered as having significant direct implications in the context of Article 2(1).
To justify that conclusion, we can turn initially to paragraph 148. The Court initially considers the issue that we have seen is the Court’s principal interpretative starting point of Article 2(1) WF, namely that ‘article 2(1) applies to rights “as set out” in the RSEO chapter.’ The Court continues: ‘For the Charter to apply on a freestanding basis it is therefore necessary to identify how the rights mentioned in the Charter are so “set out”.’ We can pause at this point to observe that if the Court’s conclusion were to have been to deny the CFR any ‘freestanding’ status, it would not have framed the issue in this way; it would have been entirely unnecessary to do so. We shall see that what the Court means by ‘freestanding’ in this context is ambiguous.
This Court’s next move is to examine what, if any provisions of the RSEO, might be interpreted as ‘setting out’ Charter rights, concluding: ‘The only provision in the RSEO chapter which could arguably “set out” Charter rights in this appeal is the reference to “civil rights” in paragraph 1. As pointed out above, this is expressed at a high level of generality and is accompanied by broad references to “mutual respect” and “religious liberties”. This very generalised phrase is not apt to set out specific, enforceable legal rights, including such rights as are set out in the Charter’ (emphasis added). Specifying that the only provision that might ground Charter rights ‘in this case’, again leaves open (intentionally, I suggest) the possibility that other RSEO specified rights (notably those in the bullet point rights) could arguably ‘set out’ Charter rights, and therefore provide the basis for Charter rights to apply on a ‘freestanding’ basis.
This interpretation of the Court’s judgment up to this point is, I suggest, further strengthened by paragraph 157, which in essence sets out the Court’s ratio for the non-application of the Charter in this case. Two aspects of that paragraph stand out. First, the conclusion is framed in terms that indicate the narrowness of the Court’s conclusions regarding the Charter:
‘In the present case, article 2(1) of the Windsor Framework would only give rise to a situation “governed by EU law” in so far as the RSEO chapter “set out” directly effective EU law rights. For reasons given above, paras 1, 11, and 12 of the RSEO chapter do not set out any relevant directly effective rights, nor do they set out Charter rights. There was no “implementation” of EU law so as to allow for the application of the Charter.We agree with the Court of Appeal that it is not sufficient that an EU competence may be engaged and that the Charter has no application unless it is “anchored” in a provision of EU law which is being implemented. It is not so anchored in this case.’ (emphasis added)
The second noteworthy aspect of paragraph 157 relates to the apparently broad statement that ‘para[] 1 … of the RSEO chapter do[es] not set out any relevant directly effective rights, nor do they set out Charter rights’ only makes sense in the context of the judgment as a whole if the reference to ‘para 1’ is restricted to the ‘civil rights’ provision in paragraph 1 and is not a reference to the bullet point rights in paragraph 1, given that we have seen that the Court earlier allowed the possibility for the bullet point rights to ground directly effective rights. So too, here, the better conclusion is that the bullet point rights could be seen as grounding Charter rights.
Where does that leave us as regards Charter rights in the context of Article 2(1). What the Court has rejected explicitly (para 158) is any submission that ‘a breach of a Charter right could breach article 2(1) of the Windsor Framework independently.’ In holding thus, the word ‘independently’ is doing a significant amount of work and must be interpreted in light of the paragraphs that precede it. Perhaps the best way of viewing the Supreme Court’s approach is to view Charter rights as somewhat equivalent in legal status to the Annex 1 Directives, in the sense that neither has a continuing status in UK law as EU law (unlike, for example, the provisions of EU law listed in Annex 2 of the Windsor Framework which are incorporated into UK law as EU law).
Rather, the Charter enters the picture in a different way: either indirectly as a set of interpretative principles, or directly, with the latter situation being the one that the Supreme Court primarily focuses on. According to the logic of the Court’s judgment, Charter rights become relevant directly in the context of Article 2(1) where all three of the following conditions are satisfied: (a) where the Charter right operates within the ambit of a specified right in the RSEO chapter; (b) where the Charter right is ‘anchored’ to other directly effective provisions of EU law that operated within the ambit of a specified right in the RSEO chapter; and (c) where the Charter right itself would be directly effective in EU law. (In numerous cases, the CJEU has held that provisions of the Charter do indeed meet the conditions for direct effect, and it would appear that this jurisprudence must now be applied where CFR rights are directly in issue in the context of Article 2(1).)
Where all three conditions are satisfied, that Charter right cannot be diminished as a result of the UK leaving the EU, meaning that the UK is required to produce the same result as would have been the case prior to Brexit. In that context, a breach of a Charter right is not a breach article 2(1) of the Windsor Framework ‘independently’, but it is of very considerable legal significance, and in practice courts will have to pay considerable attention to the Charter in Article 2(1) litigation.
This interpretation is consistent with, and helps us to understand, what the Supreme Court states in paragraph 158, in which it discusses what the Government was proposing to the ECHR and the NIHRC in its proposals concerning the Dedicated Mechanism in 2018. The Court says:
‘Finally, the Equality Commission relied upon the background to the Explainer document as supporting the applicants’ cross-appeal. They contended that this showed that the United Kingdom Government contemplated that a breach of a Charter right could breach article 2(1) of the Windsor Framework independently. (…) [W]e do not consider that it supports the applicants’ case. The references to reliance on Charter rights there made were in the context of other EU law rights. So, for example, in a proposal by the UK Government dated 18 September 2018 concerning the proposed remit of the “dedicated mechanism” referred to in article 2(1) of the Windsor Framework and discussed at para 120 above, it is stated that it is only where the “rights and principles underpinning the Charter exist elsewhere in directly applicable EU law, or EU law which has been implemented in domestic law, or in retained EU case law” that Charter rights may be relied upon. Further, in a letter of 13 November 2018 to the equality Commission and the Human Rights Commission, the Northern Ireland Office of the United Kingdom Government stated that “[the Charter] will not form any part of the ‘no diminution’ commitment directly”.’
The interpretation of the judgment as regards the role of the Charter derives further support, I suggest, when we see what follows the quotation from the 18 September 2018 proposal set out in paragraph 158. Immediately following that sentence, the Proposal continues: ‘This means that, to the extent that a substantive Charter right is relevant to a right in the Rights, Safeguards and Equality of Opportunity chapter of the Belfast Agreement, that right cannot be diminished as a result of the UK leaving the EU.’
The issue that then arises is the relationship is between Charter rights and ECHR rights. In paragraph 147, the Court points to paragraph 2 of the RSEO chapter which requires that the ECHR ‘be incorporated in the law of Northern Ireland’, and the Court points out that this was ‘achieved through the enactment in 1998, and commencement in 2000, of the Human Rights Act and its application to Northern Ireland.’ The Court then further observes that ‘There has been no diminution of those (non-EU law) rights.’ But what if there had been? Would that affect the application of the Charter? No answer is provided and we must await further judicial consideration. This would, perhaps, have been one of the issues that would have arisen for determination if the Court had reached the issue of remedies, which it did not (para 138).
Use of non-statutory materials: status of the Explainer Document
In the context of how to consider the scope of remedies under Article 2(1), one significant question will be when disapplication of the offending domestic law is required. Submissions to the Supreme Court on this issue were detailed and lengthy. One of the sources of the argument from the applicants and the Commission interveners was the Explainer Document, which appears to show the Government’s commitment that disapplication should take place in the same way as when EU law is breached by Member States. As we have seen the Court did not consider the issue of remedies. The Court did, however, consider what materials may legitimately be placed before the Court, including the Explainer Document itself, and so it is worth considering this more limited question since it is likely to feature in important ways in future litigation, not least in considering the remedies issue.
The issue of the use of what are sometimes termed ‘extraneous’ materials has proven a significant issue before the Supreme Court in recent years. In the Dillon case, the Court very largely considers the issue (paras 121-124, 158) in a very limited way, namely in the context of deciding whether materials that had been presented to the Court on the background to the negotiations over what became the Explainer Document could be used as evidence, under the Vienna Convention on the Law of Treaties, of subsequent practice of the parties that casts light on the meaning that should be given to Article 2(1). The Court concluded that it could not. The Court went further in also rejecting the use of the Explainer Document for this purpose as well.
It will be important in subsequent cases not to overinterpret this rejection of these materials in this context. In particular, it is important not to confuse the use of extraneous materials in order to interpret the provisions of an international agreement under the Vienna Convention on the Law of Treaties, with the use of extraneous materials for the purpose of interpreting domestic statutory provisions, where the VCLT’s does not apply. Nothing in the judgment of the Court indicates a refusal to use the Explainer Document, or other extraneous materials, as evidence that is relevant for understanding the purpose of section 7A of the 2018 Act. The detailed examination of the VCLT’s issue does not touch on the issue of how the Court’s explicitly purposive interpretative approach should be evidenced. Unless the Court explicitly rejects the use of the Explainer Document in the latter context, future courts should be presented with the Explainer Document as evidence as to the Government’s understanding of what it was attempting to achieve in section 7A (including in the area of remedies, and indeed what Parliament’s intention was in passing section 7A.
Conclusion
This commentary has examined the Supreme Court’s judgment in the Dillon case, focusing specifically on how Article 2 of the Windsor Framework interacts with domestic law. Several broad conclusions are identified, including, notably, that the Court rejected what appeared to many to be the Government’s attempts to make this provision substantially non-justiciable, with the Supreme Court now confirming that Article 2(1) can, indeed, be directly effective in the United Kingdom, as all previous Northern Ireland courts have done. Ultimately, whilst the judgment marks a defeat for the actual applicants in the case, it constitutes the recognition by the highest court in the land of the binding legal framework for future challenges to the diminution of rights in Northern Ireland after Brexit.
However, the analysis highlights a degree of uncertainty as to the future role of ‘civil rights’ and a restrictive judicial approach regarding the ‘bullet point’ rights in the RSEO chapter of the Belfast-Good Friday Agreement, which the Court appears to have narrowly linked to the historical goal of ending sectarian conflict. In that context the unresolved interpretative weight to be accorded to the Government’s Explainer Document, and other materials, is likely to feature. The commentary has also explored the complex status of the EU Charter of Fundamental Rights, arguing that it remains relevant when anchored to other specific EU law obligations. Over time, further litigation will be required to clarify these and other uncertainties and ambiguities in the judgment, and the critically important, but unaddressed issue of the scope of remedies where a breach of Article 2(1) has occurred, but the Supreme Court’s judgment is a significant step in the process of making Article 2(1) effective.
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