Brexit and its Wider Implications for Human Rights in Northern Ireland
Written Evidence Prepared for the Ad Hoc Committee on a Bill of Rights of the Northern Ireland Assembly - Professor Colm O’Cinneide, University College London
Prepared Friday 13th November 2020
1. I am Colm O'Cinneide, Professor of Constitutional and Human Rights Law at University College London (UCL). I have published extensively in the fields of human rights law, comparative constitutional law, tort law and equality and non- discrimination law, and also served for ten years (2006-16) as a member of the European Committee on Social Rights, the expert body which interprets the European Social Charter within the framework of the Council of Europe.
2. I have also served as specialist legal adviser to the Joint Committee on Human Rights of the UK Parliament on the legislation that became the Equality Act 2010 (2008-10), and also as specialist legal adviser to the Women and Equalities Committee of the House of Commons on the implications of Brexit for UK equality law (2016-7). I have also provided specialist legal advice to the Northern Ireland Human Rights Commission (NIHRC) in both 2004 and 2008 in relation to proposals for a Bill of Rights for Northern Ireland, primarily on issues relating to the relationship of any such Bill of Rights to the wider framework of the UK constitutional system.
3. My evidence (both written and oral) will focus on the potential of Brexit on the 'particular circumstances' of Northern Ireland, as they relate to ongoing discussions on the possibility of having a Bill of Rights for Northern Ireland as mentioned in paragraph 4 of the Rights, Safeguards and Equality of Opportunities section of the Belfast Agreement. In particular, I will focus on the potential impact of Brexit on equality and non-discrimination issues.
The Impact of Brexit on Human Rights Protection across the UK
4. The potential impact of Brexit on human rights has attracted plenty of commentary since the Leave vote prevailed in the referendum of 23 June 2016. In the aftermath of the referendum result, academic commentators suggested that the UK's exit from the European Union would not necessarily endanger existing levels of human rights protection – but Brexit nevertheless posed some risk in this regard, which required careful consideration by politicians and policy-makers.1
5. These 'risks' can be divided into two distinct categories. First of all, there were concerns that Brexit would result in the human rights of EU nationals suffering as a result of the loss of EU free movement rights. (These concerns have now largely been resolved, and I will not focus on them in my evidence.) The second set of concerns related to the legal consequences of Brexit for a number of important areas of human rights protection, where the loss of the supremacy and direct effect of EU law would 'dilute' the legal protection enjoyed by individuals against breaches of their rights by state and private actors. My evidence will focus on this second aspect of Brexit, and its particular implications for Northern Ireland.
6. In this regard, EU law has been particularly important in establishing a 'floor' of rights protection in areas such as employment equality law, data protection law, certain aspects of labour law, and immigration and migration law. For example, the provisions of Article 157 of the Treaty on the Functioning of the EU (TFEU) on the right to equal pay for work of equal value, and the Framework Equality Directive 2000/78/EC which requires states to prohibit employment discrimination on the grounds of age, disability, religion or belief, and sexual orientation, have played a hugely significant role in protecting individuals against discrimination. As an EU member state, the UK was required to give effect to these requirements in its domestic law, and to comply with judgments of the Court of Justice of the EU (CJEU) which interpreted their provisions. National law which blocked individuals seeking a remedy against discrimination had to be set aside if it conflicted with EU law, or re- interpreted in a way that avoided a clash.
7. This happened, for example, in the seminal case of Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary  5 ECR 1651, where the CJEU concluded that that a prohibition on female RUC officers carrying handguns, which had been cited as the basis for a refusal to renew Ms Johnston's fixed term contract, had to be shown to be proportionate. Previously, UK law would have given her no way of effectively challenging a prohibition that effectively would have ended her RUC career. But to comply with the CJEU's ruling, Northern Irish and by extension UK law more generally had to be reinterpreted to allow for a greater degree of legal rights protection.
8. In effect, for many areas of equality law, EU law became the train that pulled along the development of UK law in its wake.2 The same was true in other areas of law, such as the protection of part-time and fixed-term workers, the development of pregnancy discrimination and maternity protection law, and data privacy. Furthermore, these areas of the law were 'quasi-constitutionalised', with individual rights being protected against dilution by ministerial regulation, Westminster legislation, or regressive developments in national case-law. In later years, in the wake of the Lisbon Treaty in 2009, the EU Charter of Fundamental Rights began to play a role in this regard as well, ensuring that both EU law and 'national implementing legislation' had to be compatible with a range of human rights standards.3
9. However, Brexit, by ending the direct effect and supremacy of EU law, obviously changes this situation. It will disengage UK law from the development of rights protective EU law standards, for good or for bad. It will also 'deconstitutionalise' these areas of law, by opening them up for amendment by UK legislation or ministerial regulations, depending on the relevant national legal framework.4
10. Some commentators have welcomed this possibility, suggesting it allows for more flexibility and UK political control over the relevant areas of legal rights protection.5 However, other commentators have expressed serious misgivings about this change to the legal status quo, and the potential it opens up for a regression in rights protection.6
11. Nor were these concerns been confined to academic commentary. For example, the Joint Committee on Human Rights (JCHR) of the UK Parliament expressed concern in early 2017 that the process of Brexit could have a negative impact on human rights across a number of different areas, if action was not taken to alleviate its impact.7
12. Similarly, reporting in early 2017, the Women & Equalities Committee of the House of Commons expressed concern about Brexit weakening existing equality legislation, and as a consequence urged the UK government to consider legislating to confer a status equivalent to the Human Rights Act 1998 on the Equality Act 2010.8 (This Act only applies in England, Scotland Wales: more on this below.)9
13. The Committee's key recommendations were as follows:
2. At present, domestic legislation and EU legal structures together provide the UK's strong equality protections. Stakeholders have expressed concern that the removal of the EU legal underpinning, including the court system, will lead to a weakening of equality protection in the future unless its full effects are understood. It is therefore important for the Government, during the process of leaving the EU, to ensure that robust equality protection is embedded at each milestone. The Government should ensure that equality protections—including but not limited to workers' rights—remain to the fore as negotiations begin and throughout the leaving process. (Paragraph 31)
3. Leaving the EU provides an opportunity to return to Parliament its role to ensure that equalities are robustly protected. The Equality Act 2010 is the culmination of decades of development of domestic protection of equalities. An additional clause in that Act adding a function of a declaration of compatibility into the Equality Act would act as an entrenchment of these rights that were enacted by Parliament. (Paragraph 42)
4. The Government should give strong consideration to bringing forward an amendment to the Equality Act 2010 to mirror provisions in the Human Rights Act 1998. The purpose of that amendment would be to set out that public authorities must not act in a way that contravenes the Equality Act unless required to do so by another Act of Parliament; that ministers, when presenting any Bill, must make a declaration of compatibility with the Act; that interpretation of legislation by the courts must take account of the Act and be read as far as possible to comply with its provisions; and that, if any legislation is incompatible with the Act, a declaration of incompatibility should be made by the court. (Paragraph 43)
The 'Particular Circumstances' of Northern Ireland
14. There was particular discussion of the potential impact of Brexit on human rights protection in Northern Ireland. Various commentators and civil society organisations expressing concern about how the human rights dimension of the Belfast Agreement might be affected.10 Some of these issues were raised in the Miller and McCord cases that were litigated in 2016-17 relating to the triggering of Article 50 of the Treaty of European Union.11
15. Particular issues arise in respect of legal protection against discrimination in Northern Ireland. Much of the statutory framework governing Northern Irish equality law takes the form of ministerial regulations, primarily introduced under the European Communities Act 1972 to give effect to the requirements of EU law - or, in the case of fair employment law, introduced by the Secretary of State for Northern Ireland using his delegated powers.12 There is no comprehensive legislation setting out Northern Irish discrimination law: the Equality Act 2010, which fills this role for England, Wales and Scotland, does not apply to Northern Ireland.
16. As a consequence, this means that equality and non-discrimination law in Northern Ireland is already uniquely easy to amend – and may potentially be even more so, after the Brexit process is complete, despite the prominence of equality and non- discrimination as a central concern of the Rights, Safeguards and Equality of Opportunities strand of the Belfast Agreement. Furthermore, while the Equality Act 2010 updated equality law in Britain, the lack of such a codifying measure for Northern Ireland has left key elements of Northern Irish discrimination law dependant on CJEU case-law – including the rights of carers for persons with disabilities,13 and the rights of pregnant women and mothers more generally.14 This means that the uncertain future status of such case-law after Brexit may call into question existing well-established legal rights within Northern Ireland.
Recent Developments – Including the Impact of the NI Protocol
17. These issues have continued to be debated and discussed throughout the various swings and roundabouts of the Brexit process. Particular points of concern on a UK- wide basis have been the treatment of EU nationals post-Brexit; the ambiguous future status of existing EU jurisprudence relating to areas of human rights sensitivity such as equality and non-discrimination rights, data protection and digital privacy, asylum- seeker protection, and employment law; the decision to exclude the EU Charter of Fundamental Rights from the general 'carry-over' of EU law provided for by the EU Withdrawal Act 2018;15 and the limits imposed by Schedule 1 of the 2018 Act on the extent to which a breach of the general principles of EU law, as retained, can be pleaded as a cause of action after the end of the Brexit transition period.16
18. Now that the UK has exited the EU and the implementation period is due to expire on 31st December 2020, attention is also focused on the status (if any) accorded to the ECHR in any EU/UK future relationship agreement and the nature of any 'level playing field' provisions in this agreement relating to labour and social rights standards.
19. The debate has been a little different in Northern Ireland, on account of its 'unique circumstances' as they relate to Brexit.17 The provisions of the EU (Withdrawal Agreement) Act 2020, implementing the terms of the EU/UK Withdrawal Agreement 2019 (hereafter 'the WA') and in particular the Northern Ireland Protocol (hereafter 'the Protocol'), retain certain aspects of EU law in force within Northern Ireland. In particular, the UK commits itself by virtue of Article 2(1) of the Protocol to ensuring 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' – with Annex 1 listing the main EU directives relating to equality and employment rights.
20. Taken together with the provisions of Article 12 of the Protocol relating to the implementation of the Protocol and the status of EU law, this in effect maintains the existing key elements of EU law in effect as it relates to equality and non- discrimination issues. In essence, it would keep the present 'floor' of quasi- constitutionalised EU standards in place, as they relate to the equality of opportunity strand of the Belfast Agreement at least.
21. However, these provisions, along with the rest of the Protocol and WA, need to be read subject to the 'without prejudice' provisions of Article 1 and the provisions of Articles 12-18 of the Protocol relating to its implementation, enforcement and renewal. In particular, the existence of the consent mechanism set out in Article 18 of the Protocol is significant: the Protocol may lapse in four years, if the required level of cross-community consent in the Assembly is not obtained.
22. Furthermore, S. 21 of the EU (Withdrawal Agreement) Act 2020 gives UK Ministers wide 'Henry VIII' powers to change Northern Ireland laws without much in the way of parliamentary oversight or formal consultation requirements, where they relate to 'matters arising, or related to, the Protocol'.18 In addition, the much-debated Internal Market Bill currently going through Parliament may confer extra Henry VIII powers on UK ministers to amend, vary or suspend the provisions of the Protocol itself as they relate to state aid and other aspects of the GB/NI economic relationship, and impose substantial limits on the availability of judicial review in this regard.19
Potential Implications for the 'NI Bill of Rights' Discussion
23. All of this suggests that the level of 'quasi-constitutionalisation' of equality and non- discrimination rights indirectly provided by the Protocol, via the maintenance in force of the direct effect of EU law, is limited. More generally, it highlights the lack of an embedded legal basis in Northern Irish law for many of the rights coming under the umbrella of the Rights, Safeguards and Equality of Opportunity strand of the Agreement. The ongoing debate about the status of the ECHR in UK law, and whether the Human Rights Act 1998 and by extension the rights protective provisions of the Northern Ireland Act 1998, also draws attention to this lack of constitutional embedding.
24. All of which raises interesting issues as to whether the 'particular circumstances' of Northern Ireland in this regard make it desirable to attempt to achieve such a 'quasi-constitutionalisation' through the enactment of a Bill of Rights for Northern Ireland.20 It could place the rights guarantees set out in the Rights, Safeguards and Equality of Opportunity strand on a firmer legal footing than they enjoy at present, and de- emphasise the importance of the NI Protocol in this regard.
25. Such a move might also reduce the destabilising impact of Brexit in political terms, by reducing the current importance of EU law as the platform on which key elements of equality rights protection are constructed. Debate on the contents of such a Bill of Rights might also democratise a discussion that has often be framed in highly technical/legal terms.
26. The abovementioned 2017 recommendations of the Women & Equalities Committee of the House of Commons may be useful in further developing thinking on these issues.
27. In essence, the main impact of Brexit on human rights across the UK, and in particular in Northern Ireland, has been to highlight the lack of embedded legal protection for such rights. This has especial implications for the protection of equality and non-discrimination rights in the Northern Irish context, which are only partially assuaged by the provisions of the NI Protocol.
28. I would be happy to explore some of these issues in my oral evidence to the Committee on Thursday 19th November.
1 See e.g. T. Lock, 'Human Rights Law in the UK after Brexit' (2017) Public Law, Brexit Special Extra Issue 117.
2 C. O'Cinneide & K. Liu, 'Defining the Limits of Discrimination Law in the UK — Principle and Pragmatism in Tension' (2014) 15:1–2 Intl J of Discrimination & the Law 239.
3 See e.g. Kücükdevici, C-555/07,  I-00365,  2 CMLR 33; Benkharbouche v Embassy of Sudan,  UKSC 62; Walker v Innospec Ltd  UKSC 47; Google v Vidal-Hall  EWCA Civ 311.
4 C. O’Cinneide, ‘Brexit and Human Rights’, in O. Fitzgerald and O. Lein, Complexity’s Embrace: The International Law Implications of Brexit (Cigi, 2018), Ch 16.
6 M. Amos, “Red Herrings and Reductions: Human Rights and the EU (Withdrawal) Bill” (4 October 2017), UK Constitutional Law Association (blog), online: <https://ukconstitutionallaw.org/>.
7 JCHR, The Human Rights Implications of Brexit (5th Report of Session 2016-17, HL Paper 88/HC 695) (London, UK: Parliament, 2016).
8 Women and Equalities Committee, Ensuring Strong Equalities Legislation After the EU Exit, 7th Report, 2016-7 Session, 22 February 2017, HC 799.
9 Full disclosure: I was the Committee’s specialist legal advisor for this report, as mentioned already above.
10 See e.g. Northern Ireland Human Rights Consortium, Rights At Risk: Brexit, Human Rights and Northern Ireland, January 2018, available at http://www.humanrightsconsortium.org/wp- content/uploads/2018/01/RIGHTS-AT-RISK-Final.pdf.
11 R (Miller and McCord) v Secretary of State for Exiting the EU  UKSC 5; also McCord's Application  NIQB 85.
12 See e.g. Fair Employment and Treatment (Northern Ireland) Order 1998.
13 Coleman v Attridge Law  IRLR 88
14 S. 18 of the Equality Act 2010 codifies legal protection against pregnancy/maternity discrimination: no similar provision exists for Northern Irish law.
15 S. 5(4) of the 2018 Act.
16 See in general JCHR, 2017-9 Session, 1st Report, Legislative Scrutiny: The EU (Withdrawal) Bill: A Right by Right Analysis, HL 70/HC 774, 26 January 2018.
17 See the Recitals to the Northern Ireland Protocol.
18 Schedule 3 of the 2020 Act restricts the powers of Northern Irish Ministers to enact such regulations – but its provisions do not apply to central government.
19 See the concerns in this respect voiced by the NIHRC and the Equality Commission for Northern Ireland, https://www.nihrc.org/news/detail/the-uk-internal-market-bill-must-address-human-rights-and-equality- concerns
20 I use the term 'quasi-constitutionalisation' on the assumption that any such Bill of Rights would be ultimately subject to being legally overridden or repealed by an Act of the UK Parliament, in line with parliamentary sovereignty – just as the provisions of the Northern Ireland Act 1998 can be. Having said that, the political constraints on any such exercise of parliamentary sovereignty would have to be acknowledged: in practice, there may be little difference between 'quasi-constitutionalisation' and full 'constitutionalisation' in this regard.