Colin Murray, Reader in Public Law, Newcastle University
Photo credit: Chmee2, via Wikimedia commons
All of the talk of Getting Brexit Done, as it turns out, was hokum. The UK Government have made it clear that they are unhappy with the Protocol on Ireland and Northern Ireland that they negotiated with the EU and want to see it radically changed. That much is well known. But, at a deeper level, much of the task of understanding what Brexit, and the Protocol, means in practice is only beginning. The Withdrawal Agreement, and indeed the Protocol as part of it, is not in terms of UK domestic law an unincorporated treaty; section 7A of the European Union (Withdrawal) Act 2018 (inserted as part of the European Union (Withdrawal Agreement) Act 2020) makes it operative as part of the UK’s domestic jurisdictions.
This produces a series of complex interactions between the Withdrawal Agreement’s requirements, new legislation and retained EU law that are only now being subject to litigation. This post examines the level of indeterminacy inherent in Article 2 of the Withdrawal Agreement’s Protocol on Ireland and Northern Ireland, the provision which is supposed to secure the operation of EU law’s rights and equality protections in Northern Ireland post Brexit, and the first judicial efforts to understand how it works.
Northern Ireland has frequently been at the forefront of Brexit debates. Notwithstanding the attention paid to the unique relationship that it continues to have with the EU after Brexit, comparatively little has been said about the human rights and equality dimensions of the Protocol than its trade provisions. Under Article 2(1) of the Protocol, significant parts of EU rights and equality law continue to apply to Northern Ireland:
The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union, including in the area of protection against discrimination, as enshrined in the provisions of Union law listed in Annex 1 to this Protocol, and shall implement this paragraph through dedicated mechanisms.
It might not be immediately apparent, Article 2 provides for two separate obligations. The first relates to the EU law measures listed in Annex 1. At present, this covers six directives which make up the backbone of EU law’s protections against discrimination on the basis of protected characteristics; the Racial Equality Directive, Employment Equality (Framework) Directive, Gender Goods and Services Directive, Equal Treatment (Employment) Directive, Self-Employment Equal Treatment Directive, Equal Treatment in Social Security Directive. The full scope of these protections is only evident when Article 2 is read alongside Article 13(3) and 13(4) of the Protocol, which place the United Kingdom under a general obligation to ensure the law applicable in Northern Ireland reflects developments in European Union law relating to the Annex 1 directives. In other words, Northern Ireland law must be reformed to “keep pace” with developments in these aspects of EU law.
The second, more general, obligation upon the UK is to avoid any diminution, as a result of Brexit, of the protections provided by EU law which underpin the terms of the Rights, Safeguards and Equality of Opportunity section of the Belfast/Good Friday Agreement 1998. This is a lot to unpack, but taken at face value it is designed to preserve the operation of a range of EU law related to rights and equality in the context of Northern Ireland. Much of this continues to operate, post Brexit, as retained EU law, but as the UK Government moves to overwrite retained measures this opens up the possibility that the non-diminution guarantee will prevent or restrict divergences in Northern Ireland law. The more that Westminster seeks divergence for Great Britain from EU law with rights and equality elements (setting devolved competences in Wales and Scotland aside for the moment), the more prominent Article 2 will become in sustaining a distinct set of arrangements for Northern Ireland.
The Northern Ireland courts are responsible for administering the EU law relevant to Article 2 without direct oversight by the EU’s courts. This is perhaps surprising given the zeal with which the CJEU ordinarily guards its function to oversee the application of EU law, and operates very differently in this regard from the Protocol’s provisions on the marketing of goods in Northern Ireland (Article 12). Under Article 13(2), however, the courts in Northern Ireland are required to interpret the provisions of the Protocol ‘in conformity’ with relevant CJEU case law. This is a more extensive obligation than that set out in Article 4 of the Withdrawal Agreement; the Northern Ireland courts must continue to track CJEU case law as it develops.
All of this makes for a dizzyingly complex set of arrangements. EU law works as an interconnected whole, underpinned by the operation of general principles. In terms of equality and rights, however, the Protocol maintains the operation of some parts of EU law in full as it develops, a frozen in time version of other parts of EU law, and accepts that the UK can remove other parts of EU law (not covered by Annex 1 or connected to the 1998 Agreement). The non-diminution guarantee is particularly challenging for the courts to operate; the Northern Ireland courts will have to take account of CJEU case law as it develops and potentially retrofit it to apply to the operation of the version of EU law which was in place during the Brexit transition/implementation period. The scope of this guarantee, moreover, depends on the extent to which the courts accept that an EU law measure can be connected to the Rights, Safeguards and Equality of Opportunity section of the 1998 Agreement and its non-exhaustive collection of rights and equality aspirations which was not, at the time, intended to be determinative in legal disputes.
The SPUC Decision
For the last couple of years, therefore, the extent of the non-diminution guarantee has been the subject of considerable debate, but litigation was always going to be required to determine how the Northern Ireland courts approach these obligations. The first of these challenges has come from the Society for the Protection of Unborn Children (SPUC), questioning the legality of the Abortion (Northern Ireland) Regulations 2021. SPUC claimed that the new legislation was discriminatory in its impact on persons with disability and that, because EU law protects against disability discrimination, these measures could not, because of Article 2, undermine these protections.
Colton J, in the Northern Ireland High Court, rejected these claims. Although an appeal has been launched, there were multiple grounds on which this challenge failed, most significantly the need to connect the operation of Article 2 to something that would, prior to Brexit, have been an EU competence; EU law’s protections against disability discrimination do not extend to cover how EU Member States provide for reproductive rights. Moreover, the challenge was, in essence, a disguised effort to challenge parts of the 2020 Regulations, which, being in place before the end of the Brexit transition/implementation period, could not have been treated as being consequent upon Brexit. The significance of the case is not, therefore, the outcome, but the detail in which Colton J worked through the stages of a non-diminution claim under Article 2, providing a blueprint for how this will be tackled in future cases.
Colton J first affirmed that Article 2 has direct effect and can be relied on by legal persons in domestic courts. This was not contentious in the case, but is nonetheless significant. For all that the scope of the Annex 1 directives is clear, the extent of EU law covered by the non-diminution guarantee is more of a challenge to ascertain, and the first way to curtail the operation of these elements of Article 2 would be to deny direct effect within the scope of Article 4 of the Withdrawal Agreement. Colton J, not only accepted direct effect, but prominently flagged UK Government commitments to allowing Article 2 to be relied on in this way (at ).
Colton J then affirms that the Withdrawal Agreement potentially allows for a broad sweep of EU rights and equality law to apply under Article 2 of the Protocol (at ):
The combined effect of section 7A EUWA 2018 and Article 4 of the Protocol limits the effects of section 5(4) and (5) of the EUWA 2018 and Schedule 1, para 3 of the same Act which restrict the use to which the Charter of Fundamental Rights and EU General Principles may be relied on after the UK’s exit.
It is worth noting an error in the judgment in this paragraph – it isn’t Article 4 of the Protocol but of the Withdrawal Agreement that is at issue here. But the point remains the same; direct effect and supremacy apply to the EU law which falls within the ambit of Article 2 of the Protocol, and that can include the Charter of Fundamental Rights and EU General Principles notwithstanding section 5 of the Withdrawal Act 2018 excluding the Charter from retained law.
Having set out this broad playing field, Colton J then summarises the necessary connection between the rights and equalities section of the 1998 Agreement and EU law (at ):
[T]here must be a diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement entitled “Rights, Safeguards and Equality of Opportunity” that is, there must have been a protection that existed before the withdrawal of the United Kingdom from the European Union which does not exist after, and as a consequence of, that withdrawal.
Having set up the key hurdle for SPUC to cross, this is where the claim breaks down (at ):
[T]he applicant cannot establish, as he was required to do if he was to rely upon Article 2, that the equality of opportunity protection identified in the 1998 Agreement has been given effect in the legal order of Northern Ireland on or before 31 December 2020. The alleged right relied upon was not underpinned by EU law prior to 31 December 2020 and therefore there has been no change in Northern Ireland law on this issue as a result of the UK’s exit from the EU.
The most important feature of this decision is that Colton J does not seek to read the provisions of the 1998 Agreement restrictively. Instead, he puts much of the weight of his decision on requiring SPUC to demonstrate how EU law protected this right prior to the end of the transition/implementation period (31 December 2020). Hence the “frozen in time” nature of EU rights and equality law in Northern Ireland. EU law textbooks from around 2020 will continue to attract a premium in this small jurisdiction for anyone seeking to rely on Article 2’s non-diminution guarantee will have to show how EU law operated at this time.
The Fights to Come
Now that the SPUC decision has laid some of the groundwork for managing complex non-diminution claims, stronger claims could be waiting in the wings following the passage of the Elections Act 2022 and Nationality and Borders Act 2022. These need to be considered in turn.
EU citizens resident in Member States other than their home state enjoy rights with regard to local government (EU Charter of Fundamental Rights, Article 40 and Treaty on the Functioning of the European Union, Article 22). This is significant in the Northern Ireland context, because the local government franchise also provides the basis for the franchise for Northern Ireland Assembly elections. Under the Elections Act, Westminster legislated to connect electoral rights to whether or not a reciprocal arrangement exists for UK citizens resident in European Union Member States (such arrangements have already been concluded with Spain, Portugal, Luxembourg and Poland). This is a complex set of arrangements; it relates to EU citizens who became resident in the UK since the start of 2021 (because of the Withdrawal Agreement’s protections for existing resident EU citizens) and is constrained in its ambit because local elections are devolved matters in Wales and Scotland.
Insofar as the Act seeks to curtail a right underpinned by EU law which was operative in 2020, the Equality Commission for Northern Ireland and the Northern Ireland Human Rights Commission, which have responsibility for overseeing the operation of Article 2, have identified that this raises potential Article 2 issues around its operation in Northern Ireland (which do not apply to the restriction of these rights in England). Democratic participation rights are explicitly covered by the Rights, Safeguards and Equality of Opportunity section of the 1998 Agreement.
On a direct application of the Article 2 test, had it not been for Brexit, UK legislation could not restrict this right without breaching EU law. The UK Government has made two responses to the possibility of an Article 2 challenge in the course of parliamentary discussion over the new law. First, ministers claim that voting rights for EU citizens must be treated as ancillary rights, and that Brexit has restricted freedom of movement:
[T]he UK is no longer a Member State, EU citizens self-evidently no longer enjoy the right to reside here under the EU Treaties and so the ancillary Article 22 TFEU right to vote and participate in municipal elections is no longer applicable …
Second, ministers note that the new legislation maintains ‘the voting and candidacy rights of EU citizens who were resident here by the end of the Withdrawal Agreement transition period (31 December 2020)’, buttressing the claim that the law is Article 2 compliant on the basis that EU citizens who enjoyed the right during the implementation/transition period will not be adversely affected by the new measures. Litigation is thus likely to test how the courts approach the ‘but for’ test under Article 2. If the courts do not accept the Government’s assertions, section 7A of the European Union (Withdrawal) Act 2018 will operate to disapply the restrictions insofar as they conflict with the Protocol. A similar case for an Article 2 protection, however, cannot be made regarding Northern Ireland Assembly elections. As EU law does not provide EU citizens with a right regarding such regional elections, it is not possible to construct a legal challenge to restrictions to such participation.
The Nationality and Borders Act 2022 disapplies elements of the Trafficking Directive (Directive 2011/36/EU) which had hitherto been part of retained EU law. Although the Trafficking Directive is not listed in the Annexes to the Protocol, this measure is ‘closely linked to’ the Victims’ Directive, which the UK Government has generally accepted is included within the non-diminution commitment contained in Article 2 of the Protocol. This removal of protections for trafficked persons, insofar as they apply to Northern Ireland, therefore raises potential Article 2 issues.
The UK Government again dismiss these concerns, asserting that the Trafficking Directive is too far removed from the substance of the rights of victims under the Rights, Safeguards and Equality of Opportunity provisions;
It is clear from the language used in this section, from the object and purpose of the Agreement and from its overall context, that the drafters had in mind the victims of violence relating to the conflict in Northern Ireland as opposed to all victims in a broad, general sense.
As was noted above, however, this part of the Agreement does not function as a closed list of rights, as the UK Government appears to assert. Once again, the profound disagreements over the operative extent of Article 2’s terms will likely only be settled by the litigation of such contentious issues.
Where to next?
Last year, even as it tried to secure a major reworking of the Protocol's operation, the UK government continued to claim that the workings of Article 2 were 'not controversial'. It's tempting to say, perhaps, that they are not yet controversial. There is considerable scope for controversy to emerge as changes to the operation of retained EU law by Westminster open up divergences with the ways rights and equality provisions operate in Northern Ireland post Brexit, especially as the battles over the Protocol's provisions relating to goods look set to be renewed following the outcome of the Northern Ireland Assembly elections. If controversy does develop around Article 2, however, it will be all the more important that the groundwork for judicial approaches to the Protocol is already being set, and as new challenges emerge, we will start to get a better picture of how Northern Ireland's judges use the considerable latitude its terms allow them.
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