In the matter of an application by Martina Dillon, John McEvoy, Brigid Hughes and Lynda McManus for Judicial Review No 2 [2026] UKSC 15

Four victims of the Northern Ireland Troubles challenged provisions of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023, including conditional immunity from prosecution, bars on civil actions, and the ICRIR's investigative powers. The Supreme Court allowed the Secretary of State's appeal on Windsor Framework and ICRIR grounds, dismissed the cross-appeal on the Charter, but left intact unappealed declarations of incompatibility.

Facts

The four applicants (Martina Dillon, John McEvoy, Brigid Hughes and Lynda McManus) are victims or next of kin of victims of violence during the Northern Ireland Troubles. Each was directly affected by the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (“the 2023 Act”), which established the Independent Commission for Reconciliation and Information Recovery (“the ICRIR”), introduced a conditional immunity scheme for serious or connected Troubles-related offences (subject to a person giving a truthful account), brought to an end police investigations, Police Ombudsman investigations, ongoing inquests and certain civil actions concerning the Troubles.

The applicants sought judicial review, contending that several provisions were incompatible with articles 2, 3 and 6 of the European Convention on Human Rights (“the Convention”) and breached article 2(1) of the Windsor Framework, read with section 7A of the European Union (Withdrawal) Act 2018, such that the offending provisions should be disapplied. Colton J in the High Court made several declarations of incompatibility and disapplied certain provisions. The Court of Appeal largely upheld those findings and made further declarations regarding next of kin participation, disclosure, and section 44 (ending inquests). After a change of government, the Secretary of State abandoned the appeal against the High Court’s declarations of incompatibility concerning the immunity provisions, section 8 and section 43(1). The Supreme Court granted permission on the remaining issues.

Issues

The Supreme Court identified three issues:

• Whether the courts below were correct to disapply provisions of the 2023 Act on the basis of article 2(1) of the Windsor Framework read with the Rights, Safeguards and Equality of Opportunity (“RSEO”) chapter of the Belfast Agreement and the Victims Directive (“the Windsor Framework ground”).
• Whether the Charter of Fundamental Rights of the European Union (“the Charter”) could be relied on as a freestanding basis to disapply provisions of the 2023 Act (“the Charter ground” – the applicants’ cross-appeal).
• Whether the Court of Appeal was right to hold that the ICRIR could not discharge the article 2/3 investigative obligation due to absence of legal aid, no provision for next of kin questioning of witnesses, and the Secretary of State’s disclosure powers (“the ICRIR: Next of kin involvement and disclosure ground”).

Arguments

Applicants

The applicants submitted that article 2(1) of the Windsor Framework had direct effect, that their EU law rights under articles 11 and 16 of the Victims Directive and articles 1, 2, 4 and 47 of the Charter had been diminished by sections of the 2023 Act, and that the ICRIR reviews could not satisfy the article 2/3 investigative obligation due to the absence of legal aid, lack of provision for examination of witnesses, and the Secretary of State’s effective veto over disclosure of sensitive information.

Secretary of State

The Secretary of State argued that the RSEO chapter provisions relied on were too general to satisfy the Demirel test for direct effect, that the Victims Directive does not regulate national policy on prosecutorial immunity, that the Charter applies only when member states are implementing EU law and requires an “anchor” in such law, and that the applicants’ challenges to the ICRIR’s compliance with articles 2 and 3 were impermissible ab ante challenges which could not satisfy the “all or almost all cases” test.

Veterans Movement (Intervener)

The Veterans Movement argued that the Strasbourg jurisprudence recognised, or might recognise, a reconciliation exception to the general rule that breaches of articles 2 and 3 should be punished, and that the Conditional Immunities should be understood in the wider context of the Northern Ireland peace process.

Judgment

Windsor Framework Ground

The Supreme Court held that article 2(1) of the Windsor Framework, when read with the specific provisions of paragraphs 1, 11 and 12 of the RSEO chapter relied on by the applicants, did not satisfy the Demirel test for direct effect, those provisions being expressed at too high a level of generality. However, article 2(1) might have direct effect in conjunction with other EU instruments falling within the ambit of the RSEO chapter, provided the Demirel requirements were met. Applying a three-stage test (engagement of an RSEO right; EU law underpinning on 31 December 2020; diminution resulting from withdrawal), the Court held that articles 11 and 16 of the Victims Directive concern actual or potential prosecutions in individual cases and the exercise of prosecutorial discretion – they do not regulate national policy decisions such as immunity schemes adopted to promote reconciliation. Accordingly, the 2023 Act did not cause a diminution of Victims Directive rights, and the appeal on this ground was allowed.

Charter Ground

The Court dismissed the applicants’ cross-appeal. The Charter applies only when member states are “implementing Union law” (article 51(1)) and requires anchoring in a specific provision of EU law being implemented. The Court analysed Fransson, CG v Department for Communities, and R (HC) v Secretary of State for Work and Pensions, concluding that the mere engagement of an EU competence is insufficient. Paragraphs 1, 11 and 12 of the RSEO chapter do not set out Charter rights or relevant directly effective EU rights. The retention of the Charter was specifically excluded by section 5(4) of the 2018 Act.

ICRIR: Next of Kin Involvement and Disclosure

The Court held this was an ab ante challenge to the legislative scheme, requiring the applicants to demonstrate that the scheme would breach the article 2/3 investigative obligation in “all or almost all cases”. The Court emphasised, citing Tunç v Turkey and Gribben v United Kingdom, that the essential parameters of an effective investigation (adequacy, promptness, family involvement, independence) are interrelated and to be considered jointly, and that the effectiveness of an investigation will rarely be capable of determination until after its completion.

On legal aid, the Court held the Court of Appeal had erred by treating ICRIR’s inquisitorial procedure as equivalent to adversarial legacy inquests. Jordan v United Kingdom does not mandate legal aid for all article 2/3 investigations. On examination of witnesses, the Court held no Strasbourg jurisprudence requires an adversarial process. On disclosure, the Court rejected the Court of Appeal’s characterisation of the Secretary of State’s powers as an “effective veto”: the Secretary of State must perform a Wiley balancing exercise, is subject to ordinary public law constraints and the Human Rights Act, and any decision is amenable to judicial review. The system represents an enhancement over PII certificates, as full disclosure is made to the ICRIR which can use sensitive material in its investigations. The Court of Appeal’s declarations at paragraphs 7(a)-(c) were set aside.

Veterans Movement’s Reconciliation Exception

Although the abandonment of the appeal on immunity provisions meant the Court could not determine the issue, it observed that the Strasbourg court has not established a principle recognising a reconciliation exception to the general ban on amnesties for grave breaches of fundamental rights. Applying the Ullah mirror principle, domestic courts cannot create such an exception.

Implications

The judgment provides important guidance on the operation of article 2(1) of the Windsor Framework. Direct effect requires identification of a clear and precise obligation by reference to the RSEO chapter, and broadly worded paragraphs of the RSEO chapter cannot, of themselves, generate justiciable rights. However, article 2(1) may operate in conjunction with directly effective EU instruments within the ambit of the RSEO chapter. The Victims Directive does not regulate national policy decisions concerning the bringing or pursuit of prosecutions.

The decision reaffirms that the Charter is not a freestanding source of rights in domestic law post-Brexit, even via the Windsor Framework. Implementation of EU law requires specific anchoring, and a mere EU competence is insufficient.

On the article 2/3 investigative obligation, the judgment is significant for clarifying the high threshold for ab ante challenges to legislative schemes: the challenger must show that the scheme will breach the obligation in “all or almost all cases”. The judgment emphasises that the essential parameters of an effective investigation are interrelated, not freestanding, and that effectiveness is generally a fact-sensitive determination made after an investigation concludes. The judgment confirms that inquisitorial systems can satisfy the article 2/3 investigative obligation; an adversarial process with cross-examination and legally aided representation is not required as a matter of Convention law.

The judgment also clarifies the role of the Secretary of State in disclosure decisions concerning sensitive information: the Secretary of State must conduct a Wiley balancing exercise, considering both national security and the public interest in the administration of justice, and decisions are subject to judicial review.

Importantly, however, the unappealed declarations of incompatibility – relating to the immunity provisions in sections 7(3), 12, 19, 20, 21, 22, 39, 41 and 42(1), to sections 8, 43(1) and (2), and to section 45 – remain in force. The proposed Troubles Bill announced on 14 October 2025 is intended to repeal and replace the 2023 Act, introducing a reformed Legacy Commission, repealing the immunity scheme, restoring stopped inquests, and providing legal representation for next of kin.

Verdict: The Supreme Court allowed the Secretary of State’s appeal and dismissed the applicants’ cross-appeal. The declarations made by the Court of Appeal at paragraphs 6(a) and (c) and 7(a)-(c) of its order dated 20 September 2024, and the declarations of the High Court at declarations (ii), (iv) and (vi) of its order dated 28 February 2024, were set aside. The unappealed declarations of incompatibility relating to the immunity provisions, section 43, section 8 and section 45 of the 2023 Act remain in force.

Source: In the matter of an application by Martina Dillon, John McEvoy, Brigid Hughes and Lynda McManus for Judicial Review No 2 [2026] UKSC 15