There are many extraordinary things about the UK Supreme Court’s (UKSC) decision in Dillon. It is unpicking of at least half of Article 2 of the Windsor Framework – specifically undoing the elements that protect human rights in Northern Ireland post Brexit. Its use of interpretive tools to undertake what I’m sure it regards, to paraphrase Self-Esteem – as kinda wizardry to arrive at absurdities of interpretation. Colin Murray in his blog posts outlines many of these legal high jinks in what he rightly calls a highly activist judgment. Reasonable sounding conservative judgments written in abstractions are rarely called out for their activism. Even where their apparent rationality and common sense are deployed to undo ordinary meanings and intentions. But here the UKSC, in seeing the controversial UK Legacy Act of 2023 as a way to narrow future protection of rights in Northern Ireland it is activist, including in ways that I will outline below, that impact women.
There are many ways in which a feminist judgment rewrite could unpick Dillon. The fact that the families in the cases, the families that have been fighting for some kind of knowledge of the state’s involvement in the deaths of their loved ones are relegated to first being mentioned many paragraphs in [para14], and certainly are not front and centre of the Court’s understanding or explanation is one.
The stereotyping of not just ‘The Troubles’ but of all the conflicts on the island in the very first paragraph as the Irish fighting amongst themselves is another. It is worth reading in full to get a sense of just how this court sees the whole island of Ireland and its history.
There have been longstanding conflicts in Ireland, including over the partition of the island. A key aspiration of Irish nationalists has been to bring about a united Ireland, with the whole island forming one independent state. This aspiration conflicts with that of unionists in Northern Ireland, who want that region to remain part of the United Kingdom (“the state”, in what follows). These conflicting aspirations together with many other pervasive and serious communal differences resulted in violence during what have commonly come to be known as “the Troubles”, leading to many tragedies with a deep and profoundly regrettable legacy of suffering. More than 3,500 people were killed during the Troubles, with approximately 40,000 injured. Around 1,200 cases relating to killings remain unsolved.
This opening paragraph reeks of colonial condescension. It frames the Legacy Act as an Irish problem. Never mind that it is a London-driven solution to the past, rejected by most in Northern Ireland. Legacy is also about excavating the role of the UK Government in the Troubles including in the deaths and harms that occurred. In the same week as the judgment was issued, the May Report found that the Independent Commission for Reconciliation and Information Recovery (ICRIR) set up by the Act is not working properly. The families, including those who took the Dillon judgment, once again being failed. But reading the judgment, the people this decision is just those stereotyped in that first paragraph.
Much of the decision is also about how the Windsor Framework is implemented and the UK’s duties under Article 2. Duties designed as a solution to the UK’s decision to leave the European Union. In that context, that first paragraph is also tone deaf. Article 2 is the basis on which many of the marginalised in Irish society, including women, LGBTQ+ people, immigrants and others rely upon to prevent their rights being taken away under the non-diminution guarantee. The Court, starting with that first paragraph, completely removes those people from the purview of rights in Northern Ireland.
This is particularly achieved by the UKSC as it layers over all rights in Northern Ireland – from the Good Friday Agreement, and through its reasoning at least half of Article 2 – as entirely tied to the old ideas of the Orange/Green or two communities. As if that is what Northern Ireland (and the whole island) is – and indeed always was, according to that paragraph.
As Colin Murray outlines in his blog this is undertaken in ways that tangles forms of interpretation, intermixing of obiter statements and ratio as well as temporal leaps, but I want to focus on the outcome of reading the Good Friday Agreement as only creating a narrow bullet point list of rights, and maybe other in penumbra that are only relevant to the two communities.
The Court partly does this by arguing that rights outlined in the GFA are not detailed enough. An extraordinary statement from an apex court in which the 1998 Agreement is one of the few parts of its constitution to be codified, and the same document is also an act of internal self-determination. If things had to be detailed to be enforceable, it is remarkable that any of the UK Constitution functions. But some parts as they are based on rationale, reasonable grounds which the legal man is more than capable of understanding, can remain vague. Others, no matter that their ordinary language is quite plain, are too embedded in emotion – here the longstanding conflicts in Ireland – to be anything but muddy.
One of the rights listed in the 1998 Agreement is ‘the right of women to full and equal political participation’. This right was one of the last to be added and one fought for directly by the Women’s Coalition following years of campaigning from women in Northern Ireland. Many women and women’s organisations were critical to the peace process. Doing the quiet work on the ground with communities on a daily basis. They were as instrumental to the peace as those politicians now clinging to the 1998 Agreement to launder their alleged corruption, racism, and deeply problematic friendships. Women were the centre of many of those harms as well. Their work continues to go underacknowledged because it was not loud or bombastic or part of the type of legacy that dominant voices across Northern Ireland and beyond cling to as anniversaries repeat and big events are held.
This right is limited, it speaks only of equal political participation, but the fact it, a small claim to merely be present, had to be fought for shows its necessity. But the Dillon judgment narrows that already slight right even further. It situates that right in a space where ‘everyone in the community’ now only means the ‘two communities.’ Recent case law from the Courts in Northern Ireland regarding the Windsor Framework had finally acknowledged that everyone meant everyone. Not just those tied to a sectarian conflict. Reflecting actual life in Northern Ireland, not the island of that first paragraph. But the UKSC has receded back in time to 1998, and even in the context of 1998, read it in a narrow way. Women are only entitled to full and equal political participation regarding the sectarian conflict. This narrows both the subject matter and those who can invoke that right.
It is important to note that while there has been some commentary on the impact on Trans Rights following the judgment, the UKSC was not considering the six Equality Directives under Annex 1 of the Windsor Framework’s Article 2, where the UK government has committed to maintaining equality and anti-discrimination law in line with EU as it evolves. It therefore has no implication on the protections for Trans people that remain in place in Northern Ireland following the FWS decision of the UKSC. While the Courts are currently looking at this aspect of Article 2, any reference to them in this case were entirely obiter.
The failure to introduce a Bill of Rights (or indeed a Charter for the island) is now coming home to roost. This failure has already impacted women particularly, as many of the debates faltered on socio-economic rights. But the failure to introduce one is based on an underlying distrust of rights combined with a complacency that rests on ‘good chaps’ UK constitutionalism. ‘Good chaps’ has never served women – that kind of lack of detail only ever serves patriarchal values. But a Bill of Rights needs to be squarely on the agenda now.
The jokes in Northern Ireland about being a Catholic or Protestant atheist are still made. But now, should we expect it to be part of a test to see if you still have rights and what those rights can only pertain to?
It could be hoped that future decisions will walk this back. There are many gaps in the reasoning, strange interpretative decisions, and absences/silences by which future courts could do that work. They could also do so using feminist judgments techniques.
This is an angry blog about this judgment, and I’m sure in the vein of Carly Simon, knowing that this song is about you will be a basis for many to dismiss it as emotive and overwrought. Anger is a feminist tool, just as the performance of rationality is a tool of the patriarchy.
Prof Aoife O’Donoghue is a Professor of Law at Queen’s University Belfast
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