Les Allamby outlines how the draft Withdrawal Agreement is proposing to tackle the UK government’s commitment to ‘non-diminution of rights’ under the relevant section of the Belfast (Good Friday) Agreement. In terms of protecting human rights and equality originating from EU law, it indicates the UK government’s position for Northern Ireland.
The joint report
In December 2017, the joint report agreed between the EU 27 and the UK government recognised the 1998 Agreement provision that it is the birthright of all the people of Northern Ireland to choose to be Irish or British or both and be accepted as such.3Joint report from the negotiators of the European Union and the United Kingdom government on progress during phase 1 of negotiations under article 50 TEU on the United Kingdom’s orderly withdrawal from the European Union, TF50 (2017) 19, European Commission, 8 December 2017, para 52, page 8.
It set out that people of Northern Ireland who are Irish citizens will continue to enjoy rights as EU citizens including where they reside in Northern Ireland.4Ibid, para 52, page 8.
In addition, the UK government committed to ensuring that ‘no diminution of rights’ is caused within the provisions contained in the ‘Rights, safeguards and equality of opportunity’ section of the 1998 Agreement, including in the area of protection against forms of discrimination enshrined in EU law.5Ibid, para 53, page 8.
Moreover, the parties recognised that the UK and Ireland may continue to make arrangements in relation to free movement under the Common Travel Area without adversely affecting Ireland’s obligations under EU law.6Ibid, para 54, page 9.
The commissions’ role and the 1998 Agreement
The Northern Ireland Human Rights Commission (NIHRC) and the Irish Human Rights and Equality Commission (IHREC) were mandated by the 1998 Agreement to operate as a joint committee to consider human rights issues across the island of Ireland. As a result, the two commissions have engaged extensively in Brussels, Dublin and London, along with civic society organisations, to translate the December 2017 report into concrete legal commitments in the draft Withdrawal Agreement.
The NIHRC and the Equality Commission for Northern Ireland (ECNI) also engaged substantively with the Cabinet Office, the Department for Exiting the EU and the Northern Ireland Office on the detail contained within the ‘non-diminution of rights’ commitment made by the UK government.
Translating the commitments contained within the ‘Rights, safeguards and equality of opportunity’ section of the 1998 Agreement into EU law is a significant challenge. The section contains a number of broad rights (see box below).
Specific rights contained within the ‘Rights, safeguards and equality of opportunity’ section of the 1998 Agreement
•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.
•The right of women to full and equal political participation.
In addition, the section also covers a wide variety of other issues, including the rights of victims of violence during the conflict to contribute to a changed society and have their voices heard, the promotion of social inclusion, including, in particular, community development, and the advancement of women in public life, and respect for and promotion of linguistic diversity, including the Irish language, Ulster Scots and the languages of other ethnic communities.
The Protocol on Ireland/Northern Ireland
In practice, article 4 of the draft Withdrawal Agreement enshrines the non-diminution of rights under the relevant section of the 1998 Agreement as a result of the withdrawal from the EU, including protection from discrimination under EU law. In annex 1, this commitment covers six EU law directives encompassing equal treatment of people by gender and race or ethnic origin in employment, self-employment, social security, and access to goods and services. The box below sets out the specific EU directives covered in the draft Withdrawal Agreement.
Provisions of EU law covered in the Ireland/Northern Ireland Protocol and non-diminution of rights
•Council Directive 2004/113/EC
of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services.
of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.
•Council Directive 2000/43/EC
of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.
of the European Parliament and of the Council of 7 July 2010 on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Council Directive 86/613/EEC.
•Council Directive 79/7/EEC
of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security.
Should the draft Withdrawal Agreement be passed, the Northern Ireland Office will produce a document setting out further detail on what the non-diminution commitment will entail in practice.
Should the draft Withdrawal Agreement be passed, the Northern Ireland Office will produce a document setting out further detail on what the non-diminution commitment will entail in practice. The NIHRC and the ECNI have argued strongly that the EU directives on maternity rights (Council Directive 92/85/EEC
), parental leave (Council Directive 2010/18/EU
) and victims of crime (Directive 2012/29/EU
) should also be covered as a minimum. It also remains to be confirmed whether the commitment covers both non-regression and keeping pace with future developments of EU law in this field, though our understanding is that it will.
The Ireland/Northern Ireland Protocol also creates dedicated mechanisms comprising the NIHRC, the ECNI and, for issues with an all-island dimension, the joint committee of the NIHRC and the IHREC. The intention is to confer new powers on both the NIHRC and the ECNI to monitor, supervise, advise, report and enforce the non-diminution commitment and provide adequate resources to ensure these enhanced roles can be performed effectively.7Explainer for the agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union, UK government, 14 November 2018, para 176, page 42.
The dedicated mechanism will only come into effect at the end of the transition period of the agreement in December 2020. It does provide for both the NIHRC and the ECNI to take cases in their own names. In our discussions with the UK government, it has been made clear that there must be individual rights to enforce the non-diminution commitment and that individuals have access to legal aid to take such cases. These are issues to be clarified in any follow-up document to the draft Withdrawal Agreement.
Other arguments made to the UK government did not succeed, including that the Charter of Fundamental Rights of the EU
should be retained in the absence of a Bill of Rights for Northern Ireland, which remains one of the missing pieces of the jigsaw of the 1998 Agreement. In a detailed analysis of the Ireland/Northern Ireland Protocol, Chris McCrudden has argued that one of the ways rights listed in the 1998 Agreement are protected is through the EU Charter of Fundamental Rights and general principles of EU law and that the Protocol means, in effect, that these protections are maintained.8Chris McCrudden, Brexit, rights and the Northern Ireland Protocol to the Withdrawal Agreement, paper to the British Academy and Royal Irish Academy, December 2018.
This, however, would not retain the EU charter’s accessibility and will no doubt become a matter of legal argument in due course. Moreover, there was no acceptance that the 1998 Agreement created an expectation of an equivalency of (though not the same) rights across the island of Ireland. This was important because of the recent changes to abortion law and the introduction of equal marriage in Ireland to recognise the outcomes of the referendum on both equal marriage for same-sex couples9The Thirty-Fourth Amendment of the Constitution (Marriage Equality) Act 2015 provides for equal marriage.
and repeal of the eighth amendment of the Irish Constitution.10The Health (Regulation of Termination of Pregnancy) Act 2018 came into effect to allow abortion in Ireland in prescribed circumstances on 1 January 2019.
This leaves Northern Ireland law trailing in the wake on both issues.11For more on the current state of abortion law in Northern Ireland, see March 2019 Legal Action 12.
The work on recognising the 1998 Agreement and ensuring its advances in rights are not adversely impacted by the decision to leave the EU is just one part of the work of the joint committee. The joint committee has commissioned and published scoping papers on the wider rights issues,12Colin Murray, Aoife O’Donoghue and Ben Warwick, Discussion paper on Brexit, NIHRC, 14 March 2018.
the Common Travel Area,13Sylvia de Mars, Colin Murray, Aoife O’Donoghue and Ben Warwick, Discussion paper on the Common Travel Area, NIHRC, 13 November 2018.
and the cross-border criminal, civil and security ramifications.14Amanda Kramer, Rachel Dickson and Anni Pues, Discussion paper on evolving justice arrangements, NIHRC, 2019.
In essence, the NIHRC’s position remains as follows: whether the draft Withdrawal Agreement is passed or not, there will need to be provision made to ensure the rights protections created in the 1998 Agreement are not adversely impacted by the UK government leaving the EU. How that will be done in practice outside of the draft Withdrawal Agreement remains to be seen.