Written Evidence for the House of Lords Northern Ireland Scrutiny Committee inquiry on Article 2 of the Protocol/Windsor Framework

This submission to the House of Lords Northern Ireland Scrutiny Committee call for evidence provides a detailed legal analysis of Article 2 of the Windsor Framework (WF) in relation to specific questions in the call for evidence. The overarching argument that we put forward is the significance of the protections created within the Withdrawal Agreement and through Article 2 WF specifically. We put forward six overarching points:
1. Article 2 WF was created with the protection of the 1998 Belfast/Good Friday Agreement in mind.
2. Article 2 WF creates a non-diminution protection through two complementary obligations.
3. One of our strongest concerns is regarding the striking shift in the UK Government’s position from its 2020 Explainer Document on no-diminution compared with its position in the Dillon litigation.
4. Prior to the uncertainty generated by the Supreme Court in Dillon, Article 2 WF has already made a significant contribution to rights protection in Northern Ireland.
5. The Supreme Court judgment in Dillon creates some uncertainty.
6. Article 2 remains an indispensable safeguard within the post-Brexit constitutional framework, but its long-term effectiveness cannot be assumed.