Brexit, the Withdrawal Agreement, and a Bill of Rights for Northern Ireland

Concerns surrounding the impact of Brexit on human rights and Northern Ireland have featured prominently in ongoing Brexit debates, media coverage of Brexit, and the Brexit negotiations themselves. It is well known that NI is the region of the UK most likely to be negatively affected by leaving the EU – with potential consequences for the economy, free movement, peace agreements, the environment, human rights, and the list goes on.

So far, the EU has taken a strong stance on these issues. It has done this in several ways. First, by identifying ‘the framework for addressing the unique circumstances in Northern Ireland’ as one of the three issues to be settled during Phase 1 of the negotiations. Second, the Joint Report issued at the conclusion of Phase 1 of the negotiations included strong language on protecting Northern Ireland and continuing to maintain current human rights standards. Importantly, the Report states that ‘[t]he United Kingdom should ensure that no diminution of rights [in Northern Ireland] is caused by its departure from the European Union, including in the area of protection of discrimination enshrined in EU law.’

The potential for Brexit to be used as a way of diminishing human rights protections available to those living in the UK has also been made clear. Even before the referendum, the members of the Conservative Government, including Theresa May, were vocal about their hopes to scrap the Human Rights Act. This resistance to human rights has also been seen within discussions about what the UK will look like post-Brexit. For example, the EU (Withdrawal) Bill currently making its way through Parliament, states does not include provisions for maintaining the Charter of Fundamental Rights as UK law. Based on the way that the negotiations have been going, it is reasonable to conclude that there are going to be significant impacts on human rights.

In order to protect against the diminution of rights, the development and full implementation of Bill of Rights for Northern Ireland must be included within the final EU Withdrawal Agreement. Doing so would help to ensure that people living in Northern Ireland would not have fewer rights protections available to them and it would also fulfil the promises made in the Belfast/Good Friday Agreement.

Human Rights and Brexit

Unfortunately, the human rights landscape of the UK is very likely to change with the exit from the EU. First, it is reasonable to believe that the rights in the Charter will not be retained. Theresa May’s Government has repeatedly stated this this will be the case. If the rights contained in the Charter are indeed not retained, there would be an undeniable diminution of rights available in Northern Ireland.

The strongest piece of evidence that Charter will not be retained is the text currently contained in the EU (Withdrawal) Bill. Section 5 ‘Exceptions to Savings and Incorporations’, subsection (4) states: ‘The Charter of Fundamental Rights is not part of domestic law on or after exit day’. This element of the Bill was challenged by proposed Amendment 4 on 16 January 2018, stating, ‘this amendment would retain the Charter Rights in UK Law and afford them the same level as protection as the rights in the Human Rights Act.’ On 16 January 2018, the House of Commons rejected Amendment 4 by 317 to 299.

There is a large body of evidence amassing regarding the ways in which human rights protections will be diminished if the rights contained in the Charter are not preserved. For example, a joint statement issued by the British Institute of Human Rights and 20 other organisations, states that

 [t]he EU (Withdrawal) Bill – returning to the House of Commons this week – will not protect people’s rights in the UK as the Government promised. This is in large part because the Bill removed the Charter of Fundamental Rights from our law. The Charter protects rights important to all of us: including rights to dignity, protection of personal data and health; and protections for workers, women, children, and older, LGBTI and disabled people.

Furthermore,

 [l]osing it creates a human rights hold because the Charter provides some rights and judicial remedies that have no clear equivalents in UK law … Rights without remedies are just symbols. We need legal guarantees in the Bill about the kind of society we want to be after Brexit. For the Government to honour its promise of preserving existing rights it must retain the protections in the Charter.

Theresa May’s own Government has also confirmed that rights will be lost if the Charter is dropped. Suella Fernandes, a recent addition to the Brexit Department has claimed that ‘the UK’s plan to drop the EU Charter of Fundamental Rights after Brexit would help avoid an “extra layer” of human rights’. This, along with other similar statements made by Fernandes directly contradict the government’s assurance that no protections would be lost if the rights were not retained.

Not only will the UK lose these human rights protections, but it also stands to lose access to the Court of Justice of the EU. This means that an essential mechanism for the enforcement of human rights, as well as robust remedies, will no longer be available to the UK. Ideally, the Withdrawal Bill would contain provisions to keep the Charter and retain access to the Court. However, if this does not happen, a Bill of Rights for Northern Ireland could add an additional layer of human rights protections to mitigate against the harms of this loss.

A Bill of Rights for Northern Ireland

Throughout the Brexit negotiations, the EU has repeatedly recognised the ‘particular’ or ‘special’ circumstances of Northern Ireland, a post-conflict state, and the need to ensure that there is no diminution of rights post-Brexit. If the EU ensures that the implementation of a Bill of Rights for Northern Ireland is included in the final withdrawal agreement (an act that would also follow through on the promises made in the Belfast/Good Friday Agreement 1998) it could guarantee that individuals in Northern Ireland will continue to enjoy a similar level of rights protections, regardless of what happens with human rights protections in the rest of the UK.

Given the centrality of rights for the conflict in Northern Ireland, it is essential that human rights protections remain a very high priority in the Brexit negotiations. It is well documented that the failure to properly protect human rights in Northern Ireland was a significant factor contributing to the outbreak of conflict, that it made the conflict worse than it might have been, and that implementing human rights protections was an essential element of bringing an end to the conflict. In this context, in order to uphold the promises contained in the Phase One Report of no diminution, it is essential that the EU ensures that a Bill of Rights for Northern Ireland is included in the final withdrawal agreement.

It is important to remember that the potential loss of rights outlined above is only one of the reasons supporting the inclusion of a Bill of Rights within the final withdrawal agreement. The other reasons are for another blog post.

This blog was originally published with Rights NI