Supreme Court Dillon Judgment

With permission, I will make a statement on the recent Supreme Court judgment in the case of Dillon and others. It is a complex judgment, but I thought it right to come to the House at the first available opportunity to summarise its main findings.

The case was originally brought against the previous Government following the passage of the legacy Act—the Northern Ireland Troubles (Legacy and Reconciliation) Act—in 2023. The applicants, a group of families who lost loved ones during the troubles, argued that various provisions of the legacy Act undermined rights protected by article 2 of the Windsor framework and by the Human Rights Act 1998, which gives effect to the European convention on human rights.

In February 2024, the High Court of Northern Ireland found the conditional immunity scheme and other provisions of the legacy Act to be incompatible with our obligations under articles 2 and 3 of the European convention on human rights. Those findings were endorsed in September 2024 by the Northern Ireland Court of Appeal. It also made judgments that two additional matters with regard to investigations by the Independent Commission for Reconciliation and Information Recovery—namely, next-of-kin participation in investigations and the role of the Secretary of State in decisions about the disclosure of sensitive information—did not meet the standard required to be compatible with the ECHR.

This Government have been clear that we are opposed to aspects of the legacy Act, including immunity. That scheme, which would have offered immunity to terrorists, had no support in Northern Ireland or from victims and their families. It was wrong in principle and provided no effective protections for veterans, not least because the provisions were never commenced by the previous Government. That is why, when we came into government, we immediately withdrew the appeal on immunity. However, the Court of Appeal’s interpretation of article 2 of the Windsor framework and its findings on next-of-kin participation and disclosure had wider implications for the Government’s ability to legislate effectively across the UK and protect national security. It was for those reasons that the Government appealed against that judgment to the Supreme Court. I am pleased to report that last week the Supreme Court upheld our appeal, finding wholly in the Government’s favour.

Article 2 of the Windsor framework ensures that there is no diminution of rights, safeguards or equality of opportunity in Northern Ireland as a result of the UK leaving the European Union. The Government are firmly committed to those human rights and equalities provisions but felt that article 2 had been interpreted too broadly by the lower courts. The Supreme Court’s judgment has provided important clarity on this question and confirmed the Government’s long-standing position that the rights protected by article 2 of the Windsor framework are those concerned with ending the sectarian conflict in Northern Ireland. While reaffirming the Government’s position on this matter, the Supreme Court found that the relevant provisions of the legacy Act should not have been disapplied by article 2 of the Windsor framework. The purpose of bringing the appeal was to obtain clarity on how article 2 should be interpreted in the future, not to defend immunity.

On next-of-kin participation and disclosure of information, the Supreme Court found that the commission is currently capable of conducting investigations that are compliant with our obligations under the European convention on human rights. The Supreme Court also concluded that the provision of legal aid for the cross-examination of witnesses is not always necessary for an investigation to be fully compliant with human rights. However, the Government recognise the importance of next-of-kin involvement in the reformed Legacy Commission’s inquisitorial proceedings, and we are providing for that in the troubles Bill.

On disclosure, the Supreme Court was unequivocal, saying that

“there must be a system restricting disclosure in circumstances where disclosure may or would risk prejudicing the national security interests of the United Kingdom”,

but it went on to say that

“the Secretary of State does not have an unrestrained power to ‘veto’ the disclosure of information”

and that

“any decision to do so is subject to challenge by way of judicial review.”

This Government are committed to ensuring the maximum possible disclosure of information while protecting life and national security, hence the changes I am bringing forward in the troubles Bill to create a fairer disclosure regime with greater transparency in how decisions are made.

I now turn to what this means for the question of immunity. Contrary to what has been claimed by some, the UK Supreme Court has not endorsed the immunity scheme—it remains incompatible with our human rights obligations. It is also important to dispel the suggestion that the Government do not have the power to make the remedial order. As I have previously made clear, the conditions for laying a remedial order under the Human Rights Act are that:

“An appeal brought within that time has been determined or abandoned.”

The Government’s appeal regarding the immunity scheme in the legacy Act had already been abandoned. The Supreme Court recognised that, and therefore that was not an issue before it, but it did state very clearly that no exceptions in case law exist to justify the granting of immunity for breaches of articles 2 and 3 of the ECHR.

Finally, I want to make clear why, although we welcome the Supreme Court’s determination of certain aspects of the legacy Act, we cannot leave the statute book as it is. The central underpinning of the legacy Act, which was the immunity scheme, was wrong and has failed, so we need a new system. The troubles Bill is essential for a number of reasons. First, while we know that the commission is capable of doing investigations, it has not delivered so far and it must be reformed. The Bill will implement various changes to address these matters, including reformed governance and enhanced investigatory functions.

Secondly, we need the Bill to avoid endless legal disputes in future—for example, the clauses on interim custody orders will put beyond doubt that the Carltona principle applied in the context of those orders. The Bill will also ensure that all troubles-related cases can be investigated, one way or another.

Thirdly, there is the issue of Irish co-operation. Currently, no information is being shared by the Irish authorities with the commission; the Bill will enable that to happen for the first time, helping to find answers for the relatives of those who were murdered, including service personnel who served our country.

Fourthly, the Bill will enable information to be provided to families through the new Independent Commission for Reconciliation and Information Recovery. Fifthly, we need new and effective safeguards for our veterans and other former service personnel. Crucially, the legacy Act did not provide those protections, and we have developed them for veterans and others who served. As I have made clear, we will be bringing forward more provisions in Committee in response to veterans’ concerns. Simply returning to the legacy Act would leave veterans without immunity or any protections whatsoever.

I am grateful to the Supreme Court for its careful consideration of these matters, and I welcome its judgment. I hope that the combination of this ruling and legislative progress on the troubles Bill will mean that all communities affected in Northern Ireland and the rest of the United Kingdom can have confidence that a reformed legacy commission will be able, where possible, to provide answers to those who have waited far too long to find out what happened to their loved ones.

I commend this statement to the House.

I call the shadow Minister.

As is traditional, I thank the Secretary of State for advance sight of his statement, in that—as he said himself—the judgment in the Dillon case is a complex one. We on the Conservative Benches certainly agree. I suspect that this judgment will be pored over and, indeed, argued over at considerable length, not least in the other place should Labour’s benighted troubles Bill ever make it there.

I will just make a point about immunity, and the concept that lay behind the Conservatives’ Northern Ireland Troubles (Legacy and Reconciliation) Act 2023. I was serving on the Select Committee on Defence under my right hon. Friend the Member for New Forest East (Sir Julian Lewis)—an excellent Chairman—when, in 2017, we produced an extremely detailed report on this complex issue. In fairness, I think the Secretary of State has read that report. What was proposed by the Select Committee is akin to what the legacy Act turned out to be, and that in turn was based on the South African truth and reconciliation commission.

We never legislated for absolute immunity for anybody; we legislated for conditional immunity, so that if someone who was involved in a troubles-related fatality came forward to give evidence to the Independent Commission for Reconciliation and Information Recovery—I will return to the commission in a moment—the commission could judge whether they had fully co-operated with it, such as by revealing the burial place of one of the so-called disappeared. If the commission believed that that individual had genuinely co-operated in good faith, they would be granted immunity. If not—if the commission felt that that person was lying, dissembling or trying to hide something—the commission could recommend that a prosecution still go ahead. Contrary to the Government’s position, the legacy Act and ICRIR, which the Act established, only ever allowed for conditional immunity. It is important to put that on the record this morning.

I can agree with the right hon. Gentleman when he describes the judgment as a complex one; he is absolutely right about that. I should make it clear that protected disclosure relating to the location of remains of those murdered by the IRA—in almost all cases, they were buried in the Republic of Ireland—is covered by separate arrangements that were introduced when the independent commission for the location of victims’ remains was created. That had support right across Northern Ireland, because people rightly judged that the most important thing was to enable families to be reunited with the remains of their loved ones. Sadly, there are four individuals whose remains have not yet been found.

The right hon. Gentleman talks about the conditional immunity scheme. The fact remains that if a terrorist who committed one of many horrendous crimes—some of which are being investigated at the moment, such as the M62 coach bombing, what happened at Warrenpoint and the Kingsmill massacre—came to the commission and told the full truth, the last Government’s legislation said that the commission “must”, not “may”, grant them immunity from prosecution.

If it believes they have co-operated—that is the nuance.

Well, I am afraid it is not a question of nuance. The reason why—[Interruption.]

Order. Shadow Minister, you asked the questions; please allow the Secretary of State to answer them without interruption.

Thank you, Mr Speaker. The right hon. Gentleman knows that the reason why the immunity provisions had no support from any of the political parties in Northern Ireland and no support from victims and survivors’ organisations in Northern Ireland was that people were outraged by the suggestion that terrorists who committed appalling crimes should be able to walk away scot-free because of those immunity provisions. He also has to recognise that immunity remains incompatible with our human rights obligations.

I turn to the three specific questions that the right hon. Gentleman asked. The first was about the interrelationship between the Dillon judgment and the Windsor framework. Clearly a very important part of the judgment is to do with the Windsor framework. In essence, the issue before the Supreme Court was this: was article 2 of the Windsor framework correctly interpreted by the courts in Northern Ireland when they decided to disapply the immunity provisions and in effect struck them down? The Court said clearly that that was incorrect.

The Government brought the appeal because, although we disagree with immunity as a matter of principle and believe that it never existed, that judgment of the courts in Northern Ireland raised a much bigger question, which could be interpreted in other ways in respect of other policies; hon. Members will have seen some of the issues to do with immigration. That is why the Government brought the appeal, and we now have clarity that article 2 applies to certain things, but it is not capable of the broad interpretation that the Northern Ireland courts had given to it.

Secondly, legal aid is a matter for the Northern Ireland Executive as it is their responsibility.

On the troubles Bill, as the right hon. Gentleman will know, it is a carry-over Bill, and its Committee stage will come early in this new Session. I do not accept what he said about the Bill for the very simple reason that, as he well knows, the basis on which any decisions are taken about prosecutions has not changed and will not change under the legislation that the Government are bringing before the House.

With respect to the shadow Minister, I have to say as someone who ran peacemaking programmes in Northern Ireland and who did a master’s dissertation on the South African truth and reconciliation commission that, sadly, the legacy Act came nowhere near replicating that. Does the Secretary of State agree that as we take forward the Northern Ireland Troubles Bill, we do have both a responsibility to the victims and the survivors and a special duty to our veterans, and that there does not need to be a false dichotomy in creating legislation that supports both groups?

I very much agree with my hon. Friend. In the end, the legacy Act failed because it did not command support across all communities in Northern Ireland. How can we hope to make progress if that is the case? What we are trying to do, with the support and scrutiny of the House, is to come up with a system that is fair and reasonable but that enables those many families who are still searching for answers to find them. I hope that what I have said today provides some reassurance, in particular to those representing victims who were crestfallen on seeing parts of the Dillon judgment. I have tried to set out the Government’s commitment to ensuring that we have a system that can command confidence from all.

I call the Liberal Democrat spokesperson.

I thank the Secretary of State for advance sight of his statement.

The Supreme Court judgment lays bare the consequences of the previous Government’s catastrophic approach to legacy, which drew a wholly unjustifiable moral equivalence between terrorists and those who serve the Crown. That scheme was declared unlawful and incompatible with our human rights obligations by every court that considered it, and has now been repudiated by this Government. Those on the Conservative Benches who championed it in this House did our veterans no favours, and neither has their ill-disguised and cynical party political mischief-making regarding the remedial order and today’s statement. The Liberal Democrats have opposed the granting of immunity from the outset and maintained throughout that removing it was a legal necessity, not a political choice, and this judgment confirms that we were right.

The Supreme Court set aside the Court of Appeal’s declarations that the ICRIR was incapable of discharging its article 2 investigative obligations. However, that was not an endorsement of the ICRIR’s design. The Court held that the challenges to the absence of legal aid, the absence of provision for next-of-kin questioning of witnesses, and the Secretary of State’s power to restrict disclosure could not succeed as abstract prospective challenges; rather, each of those questions would need to be assessed on the facts of individual cases. That “wait and see” approach is part of the uncertainty that our veterans and their families fear. Will the Secretary of State tell the House what concrete steps he will take in Committee to ensure that genuine, independent protections for veterans are built into the Bill, rather than leaving those safeguards to be resolved on a case-by-case basis?

I agree with all of what the hon. Gentleman says about the failings of the 2023 legacy Act, and he has done the House a service in taking Members through the argument as to why it could not be sustained.

As I have repeatedly said to the House, protections are already contained in the troubles Bill, and we intend to bring forward more protections. We have had many discussions with veterans’ organisations, and my right hon. Friend the Defence Secretary and I are determined to ensure that we treat our veterans fairly and with care. The protections will be published in advance of Committee, and then the House will have a chance to debate them. I look forward to that moment.

In Plymouth I represent very many veterans, lots of whom served in Northern Ireland, and I reflect on the fact that the state asked our people to do incredibly difficult things, at enormous personal risk and sacrifice, in a very particular context and with a particular political direction that they were deciphering at the time. Many of those difficult things were necessarily secret, and today we still ask our people to do incredibly difficult things—in secret, necessarily—at enormous personal risk and sacrifice. Many of those people are personal friends of mine. The 2023 legacy Act was unworkable, and we were elected on a manifesto to repeal and replace it. We should do that, but my constituents and my close friends are deeply concerned, as am I. Can the Secretary of State lay out how the troubles Bill will protect them in years to come from being forced into the courts by those who wish them ill?

I am grateful to my hon. Friend for his representation of his constituents, and for what he has just said. I join him in paying tribute to those who served with such bravery in Northern Ireland. As he will be aware, the courts and coroners in Northern Ireland have on many occasions recognised the point that was made to the Prime Minister in the opening of the King’s Speech debate yesterday: members of our armed forces had to take split-second decisions. The courts recognise and understand that, and have on many occasions said that what they did was entirely lawful. Nobody who acted lawfully, in line with lawful orders, has anything to fear at all; indeed, the very small number of cases in which members of the armed forces have been convicted for offences during the troubles is evidence of that. The commitment that I give to my hon. Friend, and which I have already given to the Liberal Democrat spokesperson, is that when we come to Committee, he will see the answer to the very fair question that he has put to me about the protections that we intend to put in place, and it will be made absolutely clear that there is no equivalence between those who sought to protect the public in Northern Ireland and those who tried to murder them.