Protection of Human Rights and Equality After Brexit

What is the UK Government’s commitment to human rights and equality after Brexit?

Prior to the UK’s departure from the European Union (EU) in January 2021, the UK Government committed to ensuring that certain human rights and equality protections in Northern Ireland would continue to be upheld after Brexit. This commitment was set out in the Ireland/Northern Ireland Protocol to the Withdrawal Agreement reached with the EU.

• Commitment not to reduce certain human rights and equality protections after Brexit

In particular, under Article 2 of the Protocol, the UK Government committed to ensuring that the protections currently in place in Northern Ireland for the rights, safeguards and equality of opportunity provisions set out in the chapter of the same name in the Belfast (Good Friday) Agreement will not be not reduced as a result of the UK leaving the EU.

The EU laws relevant to this commitment are set out in Annex 1 to the Protocol (see below). They protect against discrimination on the grounds of gender, racial or ethnic origin, religion or belief, disability, age, or sexual orientation, and require the promotion of equal treatment in areas such as employment, access to goods and services, and social security.

This means, for example, that the Northern Ireland Assembly, Executive and public authorities cannot act in a way that would reduce certain human rights and equality protections in Northern Ireland, as a result of the UK leaving the EU.

The UK Government has also committed to ensuring that some of Northern Ireland’s laws will keep pace with any future changes to certain EU human rights and equality laws.

• Commitment to keep pace with certain human rights and equality protections after Brexit

This means that if the EU amends or updates the laws set out in Annex 1 to the Protocol, after 1 January 2021, Northern Ireland laws will keep pace with those changes. This is designed to ensure that Northern Ireland will not fall behind minimum EU standards, particularly in the area of anti-discrimination.

What EU laws are in Annex 1 to the Protocol?

All of the EU Directives listed in Annex 1 to the Protocol have been brought into force in UK law and are designed to promote equal treatment and tackle discrimination on the following protected grounds:

• Gender

• Racial or Ethnic Origin

• Religion or belief

• Disability

• Age

• Sexual Orientation

Specifically, the six EU Directives in Annex 1 are:

• Gender Goods and Services Directive (Gender): Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services;

• Recast Directive (Gender): Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast);

• Race Equality Directive (Race): Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin;

• Framework Directive (religion and belief; age; sexual orientation; and disability): Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation;

• Equal Treatment Directive: Self-employment (Gender): Directive 2010/41/EU of the European Parliament and of the Council of 7 July 2010 on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Council Directive 86/613/EEC;

• Equal Treatment Directive: Social security (Gender): Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security.
This is an important commitment as there are concerns that human rights and equality protections may be reduced as a consequence of Brexit. It is a recognition that EU law played an important role in improving human rights in Northern Ireland.

Why was this commitment made?

The commitment is also an acknowledgement of the importance and centrality of human rights and equality protections in the Belfast (Good Friday) Agreement and their role in underpinning the peace process.
This commitment protects everyone in Northern Ireland.

Who is protected by this commitment?

This commitment protects everyone in Northern Ireland.

What issues are covered by the commitment?

The commitment applies to the rights, safeguards and equality of opportunity provisions set out in the chapter of the same name in the Belfast (Good Friday) Agreement. These provisions include, but may not be limited to:

• The right of free political thought;

• The right to freedom and expression of religion;

• The right to pursue democratically national and political aspirations;

• The right to seek constitutional change by peaceful and legitimate means;

• The right to freely choose one’s place of residence;

• The right to equal opportunity in all social and economic activity, regardless of class, creed, disability, gender or ethnicity;

• The right to freedom from sectarian harassment;

• The right of women to full and equal political participation;

• The right of victims to remember as well as to contribute to a changed society;

• Respect, understanding and tolerance in relation to linguistic diversity; and

• The need to ensure that symbols and emblems are used in a manner which promotes mutual respect rather than division.
In order to show that there has been a breach of the commitment there must be evidence that:

What would amount to a breach of the commitment?

• the issue is covered by the relevant chapter of the Belfast (Good Friday) Agreement;

• it was protected in Northern Ireland on, or before, the end of the Brexit transition period on 31 December 2020; and,

• a reduction in human rights or equality protection occurred as a result of Brexit.

Some of the human rights and equality protections in the Belfast (Good Friday) Agreement are underpinned by EU anti-discrimination directives, set out in Annex 1. But there are other relevant EU laws, not included in Annex 1, such as the Parental Leave Directive, Victims’ Directive and Pregnant Workers’ Directive, as well as specific measures aimed at protecting the rights of disabled people which may be taken into account when determining if a breach has occurred.

A failure by UK Government to ensure that human rights and equality laws in Northern Ireland keep pace with any changes that the EU makes after 1 January 2021 to update or replace certain EU equality laws, as set out in Annex 1 to the Protocol, would also be a breach of the commitment.

Is this commitment binding?

This commitment is binding on the UK Government and Parliament, the Northern Ireland Executive, the Assembly, and public authorities as a matter of international law.

All the provisions in the Withdrawal Agreement, including the UK Government’s commitments on equality and human rights under Article 2 of the Protocol, are now contained in UK law.

What is the role of the Human Rights Commission?

To ensure that the UK Government meets this commitment, a ‘dedicated mechanism’ has been created comprising of the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland.

From 1 January 2021 the Human Rights Commission and the Equality Commission will have new duties and powers to monitor, supervise, advise, enforce, and report on this commitment.

The Commissions will also work with the Irish Human Rights and Equality Commission to provide oversight of human rights and equality issues that have an island of Ireland dimension as a consequence of Brexit.

Further, the Commissions, and the Joint Committee of Northern Ireland Human Rights Commission and the Irish Equality and Human Rights Commission can directly raise matters of relevance to how the commitment is being implemented with the Specialised Committee on the Protocol. This Specialised Committee is made up of representatives from both the UK and EU, and it oversees the implementation and application of the Protocol.

What are the new powers and duties of the Human Rights Commission?

Both the Human Rights Commission and the Equality Commission will, from 1 January 2021, have new duties and powers to monitor, supervise, advise, enforce, and report on this commitment.

These duties and powers are set out in the EU (Withdrawal Agreement) Act 2020, amending the Northern Ireland Act 1998

In particular, the Commissions’ new powers and duties include:

• Monitoring how the commitment is implemented;

• Reporting on its implementation to the Secretary of State for Northern Ireland and The Executive Office;

• Advising the Secretary of State and the Executive Committee of the Northern Ireland Assembly of legislative and other measures that must be taken to implement the commitment;

• Advising the Northern Ireland Assembly (or a committee of the Assembly) whether a Bill is compatible with the commitment;

• Promoting understanding and awareness of how important the commitment is;

• Powers to bring, or intervene in, legal proceedings in respect of an alleged breach (or potential future breach) of the commitment; and

• Powers to assist individuals in relevant legal proceedings.

Further to these duties and powers, the Commissions will provide regular reports to the UK Government and Northern Ireland Executive and identify any changes to the human rights and equality protections as a consequence of Brexit.

The Commissions can exercise these powers and fulfill these duties jointly or separately

Can individuals bring complaints if there is a breach of the commitment?

Yes, from 1 January 2021 individuals can bring legal action, by way of judicial review, to challenge alleged breaches of the commitment by the UK government, NI Executive, NI Assembly and public authorities.

The Human Rights Commission and the Equality Commission have the power to:

• provide advice and assistance, and support individuals bring legal complaints, where they believe that this commitment has been breached, where appropriate; and

• bring legal challenges or intervene in legal cases, where they believe that this commitment has been breached, where appropriate.

In order to show that there has been a breach of the commitment there must be evidence that:

• the issue is covered by the relevant chapter of the Belfast (Good Friday) Agreement;

• it was protected in Northern Ireland on, or before, the end of the Brexit transition period on 31 December 2020; and,

• a reduction in human rights or equality protection occurred as a result of Brexit.

The Commissions can bring legal action separately or jointly. For information on how to contact the Human Rights Commission, see below.

What are the North/South oversight arrangements?

The Human Rights Commission and the Equality Commission will work with the Irish Human Rights and Equality Commission to oversee and report on rights and equalities issues falling within the scope of the commitment that have an island of Ireland dimension.

All three Commissions can report separately to the UK Government and Ireland Government on any issues with a relevant island of Ireland dimension.

Further information

• UK Government Explainer: UK Government commitment to no diminution of rights, safeguards and equality of opportunity in Northern Ireland (NIO, 2020).

• Work on Internal Market Bill: Joint statement (2020) with the NIHRC and the IHREC on the Internal Market Bill

• Joint briefing paper with the NIHRC on the Internal Market Bill (pdf, Sept 2020) - includes the Annex 1 Directives

• Read more about the Equality Commission’s Brexit work: www.equalityni.org/UKexit

Contact us

Northern Ireland Human Rights Commission

For further information on NI Human Rights Commission and its role as part of the dedicated mechanism, you can also contact the Northern Ireland Human Rights Commission, Tel: 028 90243987, website: www.nihrc.org

Equality Commission for Northern Ireland

For general information about the Equality Commission’s ‘Dedicated Mechanism Unit’ email: information@equalityni.org or Tel: 028 90500600. For advice enquiries on making a complaint, speak to one of our Dedicated Mechanism Unit advisors, Tel: 028 90500600, Monday-Friday, 10am-4pm.

Independent Monitoring Authority

Further information on the Independent Monitoring Authority for the Citizens’ Rights Agreements and its work to protect on citizens’ rights protections under the Withdrawal Agreement, after 1 January 2021, is available on their website: www.ima-citizensrights.org.uk.