Human Rights after Brexit
As the UK left the EU, both parties recognised that the Belfast (Good Friday) Agreement and that the 1998 Agreement needed consideration and protection and that human rights and equality are central to that Agreement.
This was implemented through the Ireland/Northern Ireland Protocol to the UK-EU Withdrawal Agreement, which recognised that EU law had provided a ‘supporting framework’ for the rights, safeguards and equality of opportunity protections in the Belfast (Good Friday) Agreement. In Article 2 of the Ireland/Northern Ireland Protocol (Protocol Article 2) the UK Government committed to ensuring that certain rights, safeguards and equality of opportunity protections are not diminished as a result of the UK leaving the EU.
Protocol Article 2
“The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union, including in the area of protection against discrimination, as enshrined in the provisions of Union law listed in Annex 1 to this Protocol, and shall implement this paragraph through dedicated mechanisms.”
To break this down this means the following:
- It is UK Government commitment
- To protect certain rights currently in place
- In the Rights, Safeguards and Equality of Opportunity chapter of the Belfast (Good Friday) Agreement
- And underpinned by EU law
- Such rights cannot be diminished as a result of the UK leaving the EU
- The scope and content of Protocol Article 2 will ultimately be subject to the determination of the courts and the oversight bodies established by the UK-EU Withdrawal Agreement.
Human Rights after Brexit
Annex 1 Equality Directives
NI law will have to match any changes the EU makes to improve the minimum levels of protection available the six EU Equality Directives in Annex 1.
- Equal Treatment (Goods and Services) Directive 2004/113/EC – on grounds of gender
- Recast Equal Treatment (Employment) Directive 2006/54/EC - on grounds of gender
- Race Equality Directive 2000/43/EC
- Framework Equality Directive 2000/78/EC - equal treatment in employment and occupation framework irrespective of religion or belief, disability, age and sexual orientation
- Equal Treatment (Self-Employment) Directive 2010/41/EU - on grounds of gender
- Equal Treatment (Social Security) Directive 79/7/EEC - on grounds of gender
Belfast (Good Friday) Agreement
The Rights, Safeguards and Equality of Opportunity chapter of the Belfast (Good Friday) Agreement sets out a non-exhaustive list of rights.
The parties to the 1998 Agreement affirmed their commitment to “the mutual respect, the civil rights and religious liberties of everyone in the community”, before affirming “in particular”:
- the right of free political thought;
- the right to freedom and expression of religion;
- the right to pursue democratically national and political aspirations;
- the right to seek constitutional change by peaceful and legitimate means;
- the right to freely choose one’s place of residence;
- the right to equal opportunity in all social and economic activity, regardless of class, creed, disability, gender or ethnicity;
- the right to freedom from sectarian harassment; and
- the right of women to full and equal political participation.
Alongside these are other specific rights and safeguards:
- the right of victims to remember as well as to contribute to a changed society;
- respect, understanding and tolerance in relation to linguistic diversity;
- the need to ensure that symbols and emblems are used in a manner which promotes mutual respect rather than division; and
- UK Government commitment to give domestic effect to the ECHR, with direct access to the courts and remedies for breach
Civil rights of everyone in the community
- European Convention of Human Rights
- Equality of Opportunity
Relevant underpinning EU law
To show a diminution of rights, safeguards or equality of opportunity protections resulting from the UK’s withdrawal from the EU, there must be a right or safeguard which was underpinned by EU law and given effect in NI law on or before 31 December 2020. A list of measures identified so far is available in the Appendix to the NIHRC-ECNI Working Paper on the Scope of Protocol Article 2.
- EU Charter of Fundamental Rights
This is given effect in NI law through the following measures:
- Section 6 NI Act 1998
- Prohibits the NI Assembly legislating in a way that is it is incompatible with Protocol Article 2.
- Section 24 NI Act 1998
- Places duty on NI Executive to adhere to Protocol Article 2.
- Section 26 NI Act 1998
- Where the Secretary of State considers that a proposed action by the NI Executive or department would be incompatible with any international obligations, she or he has the power to direct that the proposed action shall not be taken.
- Section 7A of EU Withdrawal Act 2018
- Incorporates all rights, obligations and remedies provided for in the UK EU Withdrawal Agreement (which includes Protocol Article 2) are part of UK law.