Colin Murray and Clare Rice (Newcastle University)

Although much of the focus on the UK-EU Withdrawal Agreement’s Protocol on Ireland/Northern Ireland has been directed towards trade, its arrangements extends far beyond these issues. We examine the human rights and equality provisions contained in Article 2 of the Protocol, and consider the implications of these for overarching rights protections in Northern Ireland.

What is Article 2?

Article 2(1) of the Protocol on Ireland/Northern Ireland provides that there shall be ‘no diminution of rights, safeguards or equality of opportunity’ in the region as a result of the UK’s exit from the EU. The language used here is a direct reference to the Good Friday/Belfast Agreement 1998. Given the shared interest for both parties in ensuring Northern Ireland’s peace process did not become collateral damage, it is unsurprising that they attempted to wrap these terms in the language of the 1998 Agreement.

In essence, the non-diminution commitment means that a base-level of protections which the people of Northern Ireland derive from EU law must be maintained post-Brexit. This explicitly includes protections in relation to discrimination, as contained within EU law (outlined in Annex 1 of the Protocol). Article 2 also extends beyond these in implicitly covering other EU law relevant to the 1998 Agreement’s rights, safeguards and equality of opportunity commitments.

Devolution has entailed that EU law has been transposed into UK law in various ways across the different administrations. The Protocol means that Northern Ireland will operate a distinct rights and equalities framework from the jurisdictions in Great Britain within the scope of Article 2. It will also likely diverge from relevant EU law rules (particularly if the EU builds upon these base-line protections). Article 2’s practical application and development therefore remains open to interpretation; Northern Ireland could well end up with a unique rights and equalities regime.

Oversight and Enforcement of Article 2

Oversight mechanisms are outlined in Article 2(2). Within Northern Ireland, three bodies are tasked with this: the Equality Commission for Northern Ireland (ECNI), the Northern Ireland Human Rights Commission (NIHRC) and the Joint Committee of the Human Rights Commissions of Northern Ireland and Ireland.

These bodies gain four powers in relation to the Protocol: oversight; education; information exchange with the EU-UK Joint Committee; and launching/intervening in judicial review proceedings. The last of these is perhaps the most significant from a legal perspective when understood in the context of the Withdrawal Agreement as a whole. Although not an EU law treaty, its provisions are intertwined with the EU law concepts of direct effect and supremacy. This means Article 2 will continue to be enforceable within Northern Ireland’s courts after Brexit. The jurisdiction of the Court of Justice of the European Union (CJEU) over parts of the Protocol, however, does not extend to Article 2 rights and equality obligations, opening up space for divergent interpretations of EU law provisions.

The UK-EU Joint Committee also holds an important role in relation to Article 2. Where new EU law impacts upon the 1998 Agreement’s rights and equality provisions, it will be up to this body to determine whether it should also apply in Northern Ireland. The decisions reached within this committee are binding, and are to be considered to carry the same legal weight as the Withdrawal Agreement itself. This could prove to be problematic for the UK should it opt to diverge from alignment with EU law developments, which it has indicated will be the case in time. The cross-border dynamic to rights protections on the island of Ireland (as highlighted in the role also afforded to the Irish Human Rights and Equality Commission), militates towards a dynamic approach to Article 2.

Analysis

Sensitivities around human rights and matters relating to equality in Northern Ireland entail that this aspect of the Protocol will increase in prominence. The 2017-2020 political hiatus within Northern Ireland highlighted this, with different perspectives on what equality entails under the 1998 Agreement being at the forefront of Northern Ireland politics. This has spanned a range of areas, including language rights and citizenship, not least in the context of the DeSouza case.

The fractured nature of the legal framework for equality also became pronounced during this time. For example, Westminster’s intervention in relation to same-sex marriage and abortion reflected this, while further emphasising the politically challenging dynamics around such matters. This move arguably also demonstrated the limits to devolution, an outcome which could itself entail future ramifications. With any dynamic alignment of the Northern Ireland arrangements with the EU, Northern Ireland will come to look very different from the rest of the UK.

The Protocol nonetheless provides an opportunity for Northern Ireland’s current fractured framework for rights and equality to be consolidated, and for rights to ultimately be better protected than might be the case elsewhere in the UK depending on the approach the UK Government opts to take with regard to its review of the Human Rights Act. Work on the creation of a Bill of Rights for Northern Ireland has been advancing with a renewed momentum in the wake of Brexit. The Northern Ireland Assembly established an Ad-Hoc Committee on a Bill of Rights for this precise purpose. Indeed, a Bill of Rights would potentially act as a further layer of protection over Northern Ireland’s differentiated rights framework, and aid in the fulfilment of the Protocol’s Article 2 commitments.

Conclusion

The Protocol’s human rights and equality provisions are often overlooked, but they are significant in the Northern Ireland context. Their importance is reflected in the architecture in place to oversee and enforce their implementation. Some ambiguity nonetheless remains in terms of the full extent of these provisions, which leaves certain areas susceptible to political wrangling as tensions over Brexit continue.

Colin Murray is Reader in Public Law at Newcastle University Law School.

Clare Rice is Research assistant at Newcastle University Law School.

This explainer is derived from a working paper the authors have written, which is freely available to view here.