This blog is a part of a series of expert blogs commenting on how Brexit may affect human rights in a variety of sectors. This contribution is from Kevin Hanratty, Director at the Human Rights Consortiuma broad alliance of civil society organisations from across all communities, sectors and areas of Northern Ireland.

Please note, this is a guest blog and views expressed in this blog do not necessarily reflect the views of BIHR.

Across the UK there is understandable concern about the inevitable human rights challenges presented by Brexit. Colleagues and organisations from England, Scotland and Wales will likely share many of the same anxieties as those of use in Northern Ireland. The loss of the Charter of Fundamental Rights, the link to the EU Court of Justice and its jurisprudence and the requirement to keep pace with progressive EU standards and legislation more broadly are a shared concern.

However, in Northern Ireland some of the fears about leaving the EU take on a distinctly local relevance when viewed through the looking glass of our local institutions and wider peace settlement.

Since the creation of the devolved system of Government at Stormont following the 1998 peace agreement the EU has had an important function in pulling Northern Ireland towards enhanced human rights compliance and the enablement of elements of that agreement.

The divisions that lead to the collapse of Stormont in January 2017 were preceded by a lengthy period in which human rights had for a long time been the victim of cross-party inertia and disagreement. For example, calls for a Single Equality Act in Northern Ireland to unify our various equality and anti-discrimination provisions had continuously fallen on deaf ears since the establishment of the Stormont Institutions. Likewise, the campaign to deliver a local Bill of Rights for Northern Ireland, which was provided for in the Belfast/Good Friday Agreement of 1998 and intended to be a core pillar of human rights protections, remains undelivered and has been the victim of Stormont intransigence and Westminster indifference. The list goes on and had included provisions for same sex marriage and abortion law reform until Westminster eventually intervened this summer.

However, within that restricted context the EU played an important role in ensuring that some rights protections here were forced to keep pace with the rest of the UK. For example, when there was no agreement between the First Minister and deputy First Minister in relation to implementing the directive on equal access to goods and services, the UK government took action to remedy this as ‘the most effective way of securing UK-wide compliance with our European Community obligations’. Where these EU law obligations did not exist the UK government have not used UK-wide law to progress human rights or equality law in Northern Ireland. For example, the Equality Act 2010 consolidated equality law in England, Wales and Scotland, but not in Northern Ireland.

In that paralysed context, EU law, including the caselaw of the Court of Justice of the EU (CJEU), continued to be an important mechanism to ensure that human rights and equality law (within the remit of Community Law) progressed in Northern Ireland. For example, in Northern Ireland carers for disabled people are protected against discrimination on the basis of EU case law, whereas in the rest of the UK, this protection is codified under the Equality Act. Similarly, court decisions of the CJEU have been instrumental in progressing women’s rights, the rights of disabled people and workers’ rights.

In a similar vein the commonality and regulatory alignment of Community Law took on a particular meaning in Northern Ireland. Reciprocal policing and justice cooperation, social security recognition, European Health insurance and other areas of regulatory alignment on the back of common Single Market and Customs Union membership was the basis under which the important Strand 2 (North-South) elements of the Belfast/Good Friday Agreement were able to flourish. This was a particularly important element of the peace process for nationalists in Northern Ireland as the resulting Cross Border Implementation bodies helped to further open up what was an already porous border. 

In our own Rights at Risk research we highlighted both the dangers and the complexities of replicating the same standards and protections that are currently enjoyed in Northern Ireland (through our membership of the EU) once the UK leaves the European Union. We therefore supported the prioritisation of Northern Ireland and protection of the Belfast/Good Friday Agreement within the Brexit negotiations. However, as the negotiations unfolded, the commitments to protect the principle of non-diminution of rights in Northern Ireland, protection of Citizenship rights for those who reside in Northern Ireland and other commitments made have regularly been rolled back upon.

We are grateful that the perils of a No Deal scenario seem, at least for now, to have been avoided. The creation of a hard border between Northern Ireland and the Republic of Ireland would have been the ultimate cliff edge for many elements of our peace process, including rights protections.

Despite an amended Withdrawal Agreement between the UK and EU, which includes a revised protocol on Northern Ireland a number of concerns still remain and some new ones have been added.

The rights safeguards within the protocol were not enhanced beyond previous versions despite the clear limitations of how this is currently drafted. The consent mechanism in Stormont runs the risk of ongoing division and tension in the NI Assembly and was designed by the UK and EU without any consultation in Northern Ireland. It removes important level playing field safeguards that protect a range of rights in relation to the environment, social and labour standards. It creates new customs and regulatory checks between NI and the rest of the UK which will likely only increase overtime as the rest of the UK diverges from EU rules. However, it does carry over key provisions on the supremacy of EU law, which could be important for the protection of rights in the revised protocol.

Likewise, we continue to have a number of concerns about both the content of the Withdrawal Agreement Bill and the potential lack of time available to properly scrutinize its provisions. These include concerns about the wide-ranging ministerial powers granted under the legislation to change law without parliamentary consent, changes to the Northern Ireland Act without parliamentary oversight and the protection of rights principles being limited to the acts of the Northern Ireland Assembly. While we now have a slightly longer timeframe to scrutinize these provisions during the election period we would be concerned, like colleagues across the UK that sufficient parliamentary time may not be devoted to effectively scrutinising this legislation once it returns to Westminster.

EU membership, law and practices have played an essential confidence-building and regulatory role in supporting the Northern Ireland peace process. Particularly through underpinning and enhancing our rights protections. Replicating or maintaining that sense of confidence requires not just selective elements of EU law or practice being retained, but the entire tapestry of what EU membership represents in Northern Ireland. While it has been reassuring to see the clear focus on the impact of Brexit in Northern Ireland and a recent move away from the danger of a No Deal conclusion, all of the outcomes from the Brexit negotiations to date have failed to fully replicate those existing protections and sense of security. So, if Brexit continues, Northern Ireland like the rest of the UK, still has a job of work to do to ensure that it happens in a way that best protects human rights.