The Windsor Framework could not be used in a case relating to legacy to disapply national law. It would only be applicable where there is direct effect as set out in EU law.

This case arose from challenges to the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023. This was based upon arguments that the newly established Independent Commission for Reconciliation and Information Recovery (ICRIR) was not capable of discharging the investigative obligation under human rights law. Additionally, it was argued that provisions within the 2023 Act should be disapplied due to the Windsor Framework.

As a result, this had constitutional impact in terms of the primacy of law.  The Court of Appeal held that parts of the 2023 Act would be disapplied due to the Windsor Framework however argued that it would not disapply provisions based upon the Charter of Fundamental Rights of the European Union.   Both of these decisions were appealed to the Supreme Court.

In terms of the Windsor Framework – the issue was whether Article 2(1) of it were ‘directly effective’ within the ambit of EU Law. To that end, the provision would have to be clear, precise and not subject to the adoption of any subsequent measure. The Supreme Court acknowledged that it could, in principle, have direct effect in conjunction with precise EU Law rights but that was not the case here.  In this case, the provisions being relied upon were expressed at a high level and did not have the directly enforceable rights as would apply to inquests, civil proceedings or prosecutions. There was an argument that the Victims Directive would be directly effective as it allowed for a review of a decision not to prosecute.  However, the Supreme Court stated that that was a matter relating to individual cases rather than setting higher level policy matters.

The cross-appeal relating to the application of the Charter of Fundamental Rights was dismissed. The Supreme Court holding that the Charter did not provide freestanding justiciable rights but only applied when Member States were implementing Union law and that it had to have an ‘anchor’ in specific provisions of EU law being implemented.

It is appreciated that this is not an employment law case but the learnings from it could be impactful across various aspects of the law including employment law. The decision limits the extent to which the Windsor Framework would act as the gateway to allow for the application of EU Law when there is a potential disparity between the EU rights and the domestic rights.  It makes clear that there must be this ‘anchor’ in EU Law which is clear and precise and that no further subsequent measure is required.  As a result, there remains that opportunity to argue EU provisions through the lens of the Windsor Framework albeit on that limited basis.

You can read the case in full here.