Understanding the implications of article 2 of the Northern Ireland Protocol in the context of EU case law developments

Conscious of the careful balance stemming from the Rights, Safeguards
and Equality of Opportunity provisions of the Belfast/Good Friday
Agreement 1998, it was clear that human rights guarantees underpinned
by European Union (EU) law would be a pivotal aspect of the Protocol
on Ireland/Northern Ireland within the Withdrawal Agreement. The
commitment is particularly prominent in respect of equality law, as a
guarantee that no diminution of rights and equality protections would
result from withdrawal from the EU was built into article 2(1) of the
Protocol providing for non-diminution of rights in Northern Ireland
post-Brexit. The purpose of this article is to identify and analyse recent
developments in EU equality case law which may trigger the non-
diminution obligation from the entry into force of the Protocol to the
date of writing (ie between 1 January 2021 and 1 September 2022). This
analysis is underpinned by a systematic case law review to provide an
evidence-based analysis of: a) where divergence of equality protection
standards is occurring presently; and b) where these concerns are likely
to present in the future. The article identifies four substantive areas,
namely religious discrimination, disability discrimination, gender
equality in the field of pensions and social security, and migration
law, which raise significant and complex questions about the practical
feasibility of the non-diminution obligation. In light of the thematic
case law analysis, the article offers broader reflections on the future
direction of article 2 obligations, which could be used to approach the
non-diminution commitment prospectively.