Social Change Initiative, in partnership with the Human Rights Centre at Queen’s University Belfast and the Donia Human Rights Centre at the University of Michigan, has published a new report on International Enforcement mechanisms for Article 2 of the Windsor Framework. The report comes at a time when the UK Government risks breaching Article 2 of the Windsor Framework in the upcoming Supreme Court case on Dillon.
Article 2 of the Windsor Framework is a commitment by the UK Government to ensure that Brexit would not lead to any diminution of rights contained in the Good Friday Agreement. It came as the answer to one of the principal concerns raised during the Brexit process, which was the erosion of the human rights protections embedded in the Good Friday Agreement, many of which were underpinned by EU law.
The text of Article 2, together with the Government’s own explanatory memorandum, made clear that UK courts would have the power to disapply domestic legislation found to be incompatible with Good Friday Agreement rights.
However, this commitment is now under strain as the UK Government has appealed to the Supreme Court against ruling of the Northern Ireland High Court and Court of Appeal which disapplied elements of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023. The Act controversially sought to end inquests, civil actions, and prosecutions connected with the conflict.
In Dillon, due to be heard by the Supreme Court in October, the UK Government will argue that courts in Northern Ireland lack the power to disapply primary legislation, even where it is inconsistent with Article 2 of the Windsor Framework.
If the UK Government’s arguments succeed, the legal commitment in Article 2 would be substantially weakened, potentially depriving individuals in Northern Ireland of an effective domestic remedy against legislation diminishing Good Friday Agreement rights. This would amount to a significant retreat from the guarantees that underpinned the post-Brexit settlement.
Social Change Initiative comments that while the Supreme Court’s ruling will be pivotal, it may not be final as the Windsor Framework contains international enforcement mechanisms to address disputes between the UK and EU concerning its implementation. These procedures could provide an avenue for ensuring compliance with human rights and equality guarantees, even in the case of the UK Courts siding with the Government. The report published by Social Change Initiative sets out the international dispute resolution mechanisms available to uphold the Good Friday Agreement’s protections should the UK Government’s interpretation prevail.
Martin O’Brien, Director of the Social Change Initiative, commented:
“The Supreme Court decision will be very important, but even if the UK Government’s arguments were to prevail in London, that would not necessarily be the end of the matter. There are international enforcement mechanisms available that could still hold the UK accountable for its commitments.”