Brexit and Socio-Economic Rights
What do we mean when we say socio-economic rights?
When using human rights language, we discuss economic, social and cultural rights together. These rights are enshrined in the International Covenant on Economic Social and Cultural Rights (ICESCR) and include the rights to adequate food, to adequate housing, to education, to health, to social security, to take part in cultural life, to water and sanitation, and the right to work.
Socio-economic issues but more significantly socio-economic rights have been central to the understanding of the Northern Ireland Conflict. The conflict emerged in a backdrop of discrimination – in particular in areas such as housing and employment. The conflict was most intense in areas of socio-economic deprivation and it exacerbated economic and health problems. This has created a long lasting socio-economic impact on Northern Ireland ever since.
However, measures have been put in place over the years in an effort to address inequality and discrimination. For example, the establishment of the Housing Executive which bases housing allocation on objective need, although by no means perfect, has addressed some areas of housing inequality and human rights. NGOs such as the PPR Project continue to work on addressing outstanding housing inequality issues with the housing executive and others.
We have also seen steps towards making workplaces fairer and stopping sectarianism in employment; again not a perfect world, but a far cry from the mid 1970s. We have had Fair Employment Legislation to address religious and political discrimination and importantly attached to this is a monitoring and reporting framework with legal redress through the Equality Commission and courts.
The Good Friday / Belfast Agreement, in the chapter ‘rights safeguards and equality of opportunity’ provided for a robust equality duty – now known as section 75 of the NI Act 1998. At the time it was the most robust equality duty in the whole of Europe. Designated public authorities for the first time had to show how they paid Due Regard to the promotion of equality of opportunity in all areas of policy making across 9 protected categories. The Equality Commission enforces and monitors this public sector duty as well as taking individual complaints on anti-discrimination and disability law.
But what about socio-economic rights?
These are not a protected category under section 75 but protection of equality and socio-economic rights are intertwined. In recent ongoing discussion with the Equality Commission, they agree that equality screening and assessments should be carried out across the 9 protected categories – but with a socio-economic lens in which to see impacts across the 9 categories. Socio-economic issues represent a key barrier to equality across multiple identity groups such as lone parents, adults and children living with a disability and those seeking asylum, to name but a few.
The Good Friday / Belfast Agreement did also include ‘economic, social and cultural’ commitments such as the employment equality reform, mentioned above, and Irish language rights. Although the 1998 agreement had factored in equality and economic, social and cultural rights, there has been slippage or inaction in particular around the area of socio-economic rights and to equality throughout the years of power sharing.
Subsequent agreements such as the ‘Stormont House’ (SHA) and ‘A Fresh Start’ had little or no mention of human rights or equality and the first part of A Fresh Start even went as far as stripping our much needed public sector of it’s resources.
The Equality Coalition asked Dr Robbie McVeigh to map this in ‘A Fresh Start for Equality?’ The Equality Impacts of the Stormont House Agreement on the Two Main Communities.
It was suggested in this report that if the SHA/Fresh Start was to be successful in stabilising the political institutions and ‘completing’ the peace process, the approach to public spending and austerity outlined in the Stormont House Agreement financial annex needed to be significantly revised in terms of the goals and gains of the Good Friday/ Belfast Agreement, as it was more likely to be self-defeating. Recommendations were therefore made that intended to re-centre equality in the processes emerging from the Stormont House Agreement and subsequent Fresh Start Agreement.
One significant recommendation was full proofing of the SHA/Fresh Start financial package in terms of equality. Taking the form of a full Equality Impact Assessment, this would have evidenced how the different proposals within the agreements would impact on existing inequalities – positively or negatively. It would also have identified mitigating measures/alternative proposals in line with statutory guidance when the policy failed to address any existing inequalities. This would also have provided a baseline for the next programme for government.
It has become clear, a couple of years on from the Fresh Start and Stormont House Agreement, that there was no equality proofing of the public sector cuts and new social welfare arrangements; meaning socio-economic rights have taken a massive hit and inequality is on the rise with women and children bearing the brunt of many of the public sector cuts and changes in social welfare.
Socio-economic rights could also have been addressed in a more meaningful way through an anti poverty strategy based on objective need to tackle deprivation and social exclusion as provided for in section 28(e) of the St Andrews Agreement. CAJ challenged the NI executive through a judicial review back in the summer of 2015 for the lack of any substantive strategy and although this was successful there is now no executive to execute such a strategy.
What has the EU done for us on Socio-Economic Rights?
Meanwhile, the EU has been extremely relevant in the protection of socio-economic rights and equality. In areas such as equality law, support for economic and social development in NI, cross border programmes, workers’ rights and maternity rights – these are all uncertain after the EU exit.
The European Commission have put forward views that there should be no retrogression in the enjoyment of anti-discrimination rights in particular after Brexit and this is a particularly welcome position.
In contrast, the UK Government position paper on NI refers to the need to uphold the GFA ‘in all its parts’. The paper refers to the need to be ‘mindful of the full breadth of commitments within the GFA agreement’ and does give attention to a lot of issues; however, it has a very limited focus on socio-economic rights and equality. Equality and parity of esteem are mentioned but they are looking towards the ethno-national divide rather than a more inclusive understanding of equality and anti-discrimination rights and their intersection with socio-economic rights. The UK Government position paper recognises that socio-economic rights were both a factor and consequence of the conflict but does not go further to endorse equality and socio-economic rights.
The Common Travel Area has not only been used for travel but also has brought us reciprocal rights that have evolved bilaterally. This goes further than the letter of the common travel area arrangements and includes socio-economic rights such as the right to work, study and access welfare and health services across the island of Ireland. Again there is much uncertainty about the impact of Brexit on these rights.
At certain points in our recent history, Northern Irish legislation has been ahead of EU developments (for example, the prohibition of religious discrimination and the adoption of equality mainstreaming mentioned above). So at least theoretically a Northern Irish legislature could maintain or enhance equality, anti-discrimination and socio-economic rights and could exercise its own legislative powers as they do have legislative competence in many of these areas.
We should be mindful though that the EU has provided a convenient ‘neutral’ backdrop for upholding equality laws in particular over the years. Often discussions on equality rights (and sometimes socio-economic rights) get mired in zero-sum local politics and the rights based on EU law (arguably) need not necessarily have attracted the same political tensions. The EU has also acted as a driver for equality law during periods when it has been difficult to envisage much legislative activity in Northern Ireland. The EU has functioned as a ‘leader’ specifically on gender, sexual orientation and transgender rights, where some local politicians have been inclined not to be proactive.
EU legislation therefore has provided for a minimum level of protection for equality and certain socio-economic rights but the EU (Withdrawal) Bill does not include any explicit saver for equality rights or socio-economic rights and is the subject of considerable criticism.
It may seem a positive move then that there will be possibilities for UK Ministers or Stormont Ministers to make changes in these areas but this could be done without adequate democratic oversight and this could have a concerning impact on socio-economic rights and wider equality and human rights. Exit will likely also mean that there will be no access to the Court of Justice. Take all these things together and this leads to considerable anxiety about the prospects for socio-economic rights in the future.
What solutions have Brexit Law NI proposed?
- The EU (Withdrawal) Bill should provide explicit protections for EU standards in the fields of equality and discrimination law, workers’ rights, and environmental rights (both in relation to devolved and UK authorities).
- An enforceable Bill of Rights (that includes protections for socio-economic rights). Brexit will mean that the supremacy of rights is eroded. Providing for supremacy at least as regards devolved authorities requires further amendment to the Northern Ireland Act, but we believe a more sensible solution would be the Bill of Rights.
- In addition to this, consideration should be given to what role the Charter of Fundamental Rights can play in the future, and the provisions of the Withdrawal Bill are particularly unwelcome in this respect.
- The equality law framework in Northern Ireland needs to be strengthened, to address gaps that have emerged over the last number of years again a sensible way of doing this seems to be A Single Equality Act for Northern Ireland.
- If we work with what we currently have, this is section 75 of the Northern Ireland Act; this provides a framework for considering the equality implications of policies adopted by designated public authorities. Particular attention should be given to supporting section 75 processes and thought given to whether it adequately covers possible action by UK ministers affecting the law in Northern Ireland. More attention should be paid to whether the envisaged ‘enforcement’ tools around section 75 in the Northern Ireland Act remain adequate and whether the grounds under section 75 should now be extended to cover socio-economic status. Provisions under section 75 such as data collection, the ongoing monitoring of impacts of any policies and positive action to address inequalities should be used to inform any public authority decision through the transition period.