Northern Ireland is again centre stage on arrangements for Brexit following the publication of the Internal Market Bill 2019–21 and the revelation that, in terms of parts of the Protocol on Ireland/Northern Ireland to the EU/UK Withdrawal Agreement, the bill will, according to Northern Ireland secretary Brandon Lewis MP, ‘break international law in a very specific and limited way’.

Less than eight weeks earlier, the government published its white paper on the UK internal market (CP278, Department for Business, Energy and Industrial Strategy, 16 July 2020). The introduction stated:

Furthermore, among the government’s amendments to the bill were proposals to ensure no legal challenge to parts of it could be made under Human Rights Act 1998 s6. The bill created considerable dismay at both the Northern Ireland Human Rights Commission (NIHRC) and the Equality Commission for Northern Ireland (ECNI). Although the bill concentrates on trade issues, it nonetheless has implications for the work of both commissions.

The two commissions, alongside the joint committee of the NIHRC and Irish Human Rights and Equality Commission, are designated as the dedicated mechanism (DM) in the Protocol on Ireland/Northern Ireland. The DM is designed to ensure the UK government’s commitment to ‘no diminution of rights’ under the Rights, Safeguards and Equality of Opportunity section of the Belfast (Good Friday) Agreement is made good in practice. The protocol provides that Northern Ireland will keep pace with developments under EU law in six EU directives covering equal treatment in employment, self-employment, access to goods and services, social security and freedom from discrimination based on racial and national origin.1The directives are: Council Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services; Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation; Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast); Directive 2010/41/EU on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity; Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin; and Council Directive 79/7/EEC on the progressive implementation of the principle of equal treatment for men and women in matters of social security.

Moreover, in an explainer document on the DM issued in August 2020, the UK government recognised there would be no diminution in rights covering EU directives on parental leave, pregnant workers and minimum standards on the rights, support and protection of victims of crime.2UK government commitment to ‘no diminution of rights, safeguards and equality of opportunity’ in Northern Ireland: what does it mean and how will it be implemented?, Northern Ireland Office, 7 August 2020. The further scope to preserve EU law rights will be a matter of reading the relevant section of the Good Friday Agreement and working out what other EU law rights should be preserved.

The explainer document also outlined how the key human rights and equality provisions in the Good Friday Agreement are supported by the European Convention on Human Rights including access to courts and remedies for breaches of convention rights. In light of the bill, the NIHRC and the ECNI published a joint Briefing on the Internal Market Bill (September 2020), raising concerns that amendments to the bill undermine key provisions of the Good Friday Agreement.

Moreover, beyond the lack of adherence to an international agreement and domestic human rights standards, will the other parts of the bill have any adverse impact on the work of the two commissions in their role as a DM to ensure no diminution of rights? The two commissions have sought reassurance and clarity that provisions around indirect discrimination in the bill do not seep into the protections of equality and human rights within the protocol.

All of this sits alongside the government’s long-standing commitment of the not to reform the Human Rights Act 1998 while the UK remains a part of the EU, including during the transition period, a timeframe coming to an end; elsewhere the Ministry of Justice has recently published a call for evidence on whether judicial review strikes the right balance between enabling citizens to challenge the lawfulness of government action and allowing the executive and local authorities to carry on the business of government.3Does judicial review strike the right balance between enabling citizens to challenge the lawfulness of government action and allowing the executive and local authorities to carry on the business of government? Call for evidence, 7 September 2020. In tandem with all the uncertainties for business and trade as the UK exits the EU, we need to add the long-term protection of human rights and legal remedies, which suggests that it is as important as ever to remain vigilant around securing the protections contained in the Good Friday Agreement.