EU Developments in Equality and Human Rights: Impact of Brexit on the Divergence of Rights and Best Practice on the Island of Ireland: Update Paper on Developments post January 2022

Research output: Book/ReportCommissioned report

Abstract

The Belfast or Good Friday Agreement (BGFA or the 1998 Agreement) includes significant human rights and equality protections, many of which are underpinned by European Union law as recognised in the Brexit negotiations.

The 1998 Agreement also contains a principle of equivalence and while the specific reference appears limited to the need for Ireland to maintain a level of protection equivalent to that in Northern Ireland, the wider context of the Agreement suggests the desirability of equivalence in rights protection on the island of Ireland.

The Protocol on Ireland / Northern Ireland (now called the Windsor Framework) provides legal protections for the rights of the individual in its Article 2. This includes dynamic alignment in relation to 6 equality directives in Annex 1 and the non-diminution principle in relation to other EU law underpinning the rights in the Rights, Safeguards and Equality of Opportunity section of the 1998 Agreement.

By virtue of Article 4 of the Withdrawal Agreement and section 7A of the European Union (Withdrawal) Act, these protections have a status equivalent to EU law in the European Union that is, people can rely on directly effective provisions of the Withdrawal Agreement and the UK must allow for the disapplication of inconsistent domestic law including inconsistent acts of parliament. The Protocol provides that case law of the Court of Justice of the European Union continues to be relevant in interpreting EU law or concepts mentioned in the Protocol.

Following some controversy over the free movement of goods parts of the Protocol, the UK and EU agreed new arrangements at Windsor in 2023, including renaming the Protocol the Windsor Framework.

The judgment in the Legacy Act cases (Dillon and others) demonstrates the relevance and potency of the Article 2 WF protections for human rights. In that case the High Court disapplied parts of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023, relying on the Windsor Framework which provides protections for the European Union law underpinnings of the rights, safeguards and equality of opportunity provisions of the 1998 Agreement. The importance of Article 2 WF for protecting human rights in areas of politically sensitive policy was reaffirmed in the Illegal Migration Act case where the High Court disapplied significant portions of the Act.

This report examines issues of divergence in the protection of rights and equality on the island of Ireland focusing on the period from 1 January 2022 to 31 August 2023 (though includes some more recent developments). It updates an initial report on divergence written by Sarah Craig, Anurag Deb, Eleni Frantziou, Alexander Horne, Colin Murray, Clare Rice, Jane Rooney.
Original languageEnglish
Number of pages164
Publication statusPublished (in print/issue) - 19 Nov 2024
EventEuropean Union Developments in Equality and Human Rights - Riddel Hall, Belfast
Duration: 19 Nov 2024 → …

Publication series

NameEuropean Union Developments in Equality and Human Rights, Belfast, 19/11/24

Keywords

  • Brexit
  • Windsor Framework
  • Equality
  • Human Rights
  • Good Friday Agreement
  • Belfast Agreement
  • European Union
  • Withdrawal Agreement
  • Northern Ireland Protocol
  • Equality of opportunity

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