Brexit, Human Rights and Equality

, Colin Harvey, Amanda Kramer, Kieran McEvoy, Anna Bryson, Rory O'Connell, Brian Gormally, Daniel Holder, Fidelma O'Hagan, Gemma McKeown, Emma Patterson-Bennett

Research output: Book/ReportCommissioned report

Abstract

BrexitLawNI Policy Report: Brexit, Human Rights and Equality By BrexitLawNI Human Rights & Equality Significant Impact on Human Rights and Equality The UK’s exit from the EU has significant potential impacts on human rights and equality in NI. Despite assurances from the UK government, it will undeniably result in the withdrawal of human rights protections. For example, the loss of the EU Charter of Fundamental Rights will result in the removal of a broad range of protections that are currently not contained elsewhere in UK domestic legislation. This is especially concerning in light of the failure to deliver human rights and equality in NI for much of the period since the Belfast/Good Friday Agreement (B/GFA). The challenges posed by Brexit concern not just the withdrawal of substantive rights themselves but also the availability of enforcement mechanisms. The EU framework provides for a wider range of enforcement mechanisms, such as the Francovich remedy, that will no longer be available. The removal of the jurisdiction of the Court of Justice of the European Union (CJEU) provides further complication to this enforcement picture. Divergence and the Concept of Equivalence The UK’s exit from the EU risks creating further divergence between standards of rights protection on the island of Ireland. This situation would go against the spirit of the B/GFA as well as provide further challenge to the peace process. Furthermore, the current state of the negotiations and arguably the logic of Brexit itself, threaten the universality of rights. Finally, there are also severe implications for the birthright clause of the B/GFA, which provides that people born in NI have the right to be British or Irish or both. The B/GFA states that the choice of identity should not result in differential or detrimental treatment, but as the negotiations currently stand, Irish passport holders will have access to more rights than those without an Irish passport. Recommendations: The position of the European Convention on Human Rights (ECHR) and the Human Rights Act (HRA) 1998 in relation to NI should be affirmed. Proposed ‘solutions’ for NI and the island of Ireland should be subject to rigorous human rights and equality impact assessments. The EU (Withdrawal) Act needs to be amended (or alternative provision made) to fully protect human rights and equality – including, the rights guarantees in the Charter, general principles of law, and EU secondary legislation. There is an urgent need to consider the Bill of Rights as a mechanism to ensure respect for human rights including those found in EU law. More attention should be given to the debate on an all-island Charter of Rights as one way to resolve questions around equivalence. Urgent detail is required on the undertaking that the people of NI who claim Irish citizenship will be entitled to EU citizenship rights. Further consideration needs to be given to the desirability of allowing the people of NI a voice in the EU’s democratic processes given the extent to which they will be subject to the common regulatory area.
LanguageEnglish
ISBN (Electronic)978-1-909131-71-2
Publication statusPublished - 14 Sep 2018

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equality
human rights
EU
charter
withdrawal
divergence
Ireland
citizenship
legislation
act
court of justice
ECHR
fundamental right
peace process
European Law
equivalence
bill
remedies
jurisdiction
guarantee

Cite this

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title = "Brexit, Human Rights and Equality",
abstract = "BrexitLawNI Policy Report: Brexit, Human Rights and Equality By BrexitLawNI Human Rights & Equality Significant Impact on Human Rights and Equality The UK’s exit from the EU has significant potential impacts on human rights and equality in NI. Despite assurances from the UK government, it will undeniably result in the withdrawal of human rights protections. For example, the loss of the EU Charter of Fundamental Rights will result in the removal of a broad range of protections that are currently not contained elsewhere in UK domestic legislation. This is especially concerning in light of the failure to deliver human rights and equality in NI for much of the period since the Belfast/Good Friday Agreement (B/GFA). The challenges posed by Brexit concern not just the withdrawal of substantive rights themselves but also the availability of enforcement mechanisms. The EU framework provides for a wider range of enforcement mechanisms, such as the Francovich remedy, that will no longer be available. The removal of the jurisdiction of the Court of Justice of the European Union (CJEU) provides further complication to this enforcement picture. Divergence and the Concept of Equivalence The UK’s exit from the EU risks creating further divergence between standards of rights protection on the island of Ireland. This situation would go against the spirit of the B/GFA as well as provide further challenge to the peace process. Furthermore, the current state of the negotiations and arguably the logic of Brexit itself, threaten the universality of rights. Finally, there are also severe implications for the birthright clause of the B/GFA, which provides that people born in NI have the right to be British or Irish or both. The B/GFA states that the choice of identity should not result in differential or detrimental treatment, but as the negotiations currently stand, Irish passport holders will have access to more rights than those without an Irish passport. Recommendations: The position of the European Convention on Human Rights (ECHR) and the Human Rights Act (HRA) 1998 in relation to NI should be affirmed. Proposed ‘solutions’ for NI and the island of Ireland should be subject to rigorous human rights and equality impact assessments. The EU (Withdrawal) Act needs to be amended (or alternative provision made) to fully protect human rights and equality – including, the rights guarantees in the Charter, general principles of law, and EU secondary legislation. There is an urgent need to consider the Bill of Rights as a mechanism to ensure respect for human rights including those found in EU law. More attention should be given to the debate on an all-island Charter of Rights as one way to resolve questions around equivalence. Urgent detail is required on the undertaking that the people of NI who claim Irish citizenship will be entitled to EU citizenship rights. Further consideration needs to be given to the desirability of allowing the people of NI a voice in the EU’s democratic processes given the extent to which they will be subject to the common regulatory area.",
author = "Colin Harvey and Amanda Kramer and Kieran McEvoy and Anna Bryson and Rory O'Connell and Brian Gormally and Daniel Holder and Fidelma O'Hagan and Gemma McKeown and Emma Patterson-Bennett",
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Brexit, Human Rights and Equality. /.

2018.

Research output: Book/ReportCommissioned report

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AU - Harvey, Colin

AU - Kramer, Amanda

AU - McEvoy, Kieran

AU - Bryson, Anna

AU - O'Connell, Rory

AU - Gormally, Brian

AU - Holder, Daniel

AU - O'Hagan, Fidelma

AU - McKeown, Gemma

AU - Patterson-Bennett, Emma

PY - 2018/9/14

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N2 - BrexitLawNI Policy Report: Brexit, Human Rights and Equality By BrexitLawNI Human Rights & Equality Significant Impact on Human Rights and Equality The UK’s exit from the EU has significant potential impacts on human rights and equality in NI. Despite assurances from the UK government, it will undeniably result in the withdrawal of human rights protections. For example, the loss of the EU Charter of Fundamental Rights will result in the removal of a broad range of protections that are currently not contained elsewhere in UK domestic legislation. This is especially concerning in light of the failure to deliver human rights and equality in NI for much of the period since the Belfast/Good Friday Agreement (B/GFA). The challenges posed by Brexit concern not just the withdrawal of substantive rights themselves but also the availability of enforcement mechanisms. The EU framework provides for a wider range of enforcement mechanisms, such as the Francovich remedy, that will no longer be available. The removal of the jurisdiction of the Court of Justice of the European Union (CJEU) provides further complication to this enforcement picture. Divergence and the Concept of Equivalence The UK’s exit from the EU risks creating further divergence between standards of rights protection on the island of Ireland. This situation would go against the spirit of the B/GFA as well as provide further challenge to the peace process. Furthermore, the current state of the negotiations and arguably the logic of Brexit itself, threaten the universality of rights. Finally, there are also severe implications for the birthright clause of the B/GFA, which provides that people born in NI have the right to be British or Irish or both. The B/GFA states that the choice of identity should not result in differential or detrimental treatment, but as the negotiations currently stand, Irish passport holders will have access to more rights than those without an Irish passport. Recommendations: The position of the European Convention on Human Rights (ECHR) and the Human Rights Act (HRA) 1998 in relation to NI should be affirmed. Proposed ‘solutions’ for NI and the island of Ireland should be subject to rigorous human rights and equality impact assessments. The EU (Withdrawal) Act needs to be amended (or alternative provision made) to fully protect human rights and equality – including, the rights guarantees in the Charter, general principles of law, and EU secondary legislation. There is an urgent need to consider the Bill of Rights as a mechanism to ensure respect for human rights including those found in EU law. More attention should be given to the debate on an all-island Charter of Rights as one way to resolve questions around equivalence. Urgent detail is required on the undertaking that the people of NI who claim Irish citizenship will be entitled to EU citizenship rights. Further consideration needs to be given to the desirability of allowing the people of NI a voice in the EU’s democratic processes given the extent to which they will be subject to the common regulatory area.

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