BrexitLawNI Policy Report: Brexit, Human Rights and Equality

Significant Impact on Human Rights and Equality

The UK’s exit from the EU has significant potential impacts on human rights and equality in NI. Despite assurances from the UK government, it will undeniably result in the withdrawal of human rights protections. For example, the loss of the EU Charter of Fundamental Rights will result in the removal of a broad range of protections that are currently not contained elsewhere in UK domestic legislation. This is especially concerning in light of the failure to deliver human rights
and equality in NI for much of the period since the Belfast/Good Friday Agreement (B/GFA).

The challenges posed by Brexit concern not just the withdrawal of substantive rights themselves but also the availability of enforcement mechanisms. The EU framework provides for a wider range of enforcement mechanisms, such as the Francovich remedy, that will no longer be available. The removal of the jurisdiction of the Court of Justice of the European Union (CJEU) provides further complication to this enforcement picture.

Divergence and the Concept of Equivalence

The UK’s exit from the EU risks creating further divergence between standards of rights protection on the island of Ireland. This situation would go against the spirit of the B/GFA as well as provide further challenge to the peace process. Furthermore, the current state of the negotiations and arguably the logic of Brexit itself, threaten the universality of rights. Finally, there are also severe implications for the birthright clause of the B/GFA, which provides that people born in NI have the right to be British or Irish or both. The B/GFA states that the choice of identity should not result in differential or detrimental treatment, but as the negotiations currently stand, Irish passport holders will have access to more rights than those without an Irish passport.

Recommendations:

• The position of the European Convention on Human Rights (ECHR) and the Human Rights Act (HRA) 1998 in relation to NI should be affirmed.
• Proposed ‘solutions’ for NI and the island of Ireland should be subject to rigorous human rights and equality impact assessments.
• The EU (Withdrawal) Act needs to be amended (or alternative provision made) to fully protect human rights and equality – including, the rights guarantees in the Charter, general principles of law, and EU secondary legislation.
• There is an urgent need to consider the Bill of Rights as a mechanism to ensure respect for human rights including those found in EU law.
• More attention should be given to the debate on an all-island Charter of Rights as one way to resolve questions around equivalence.
• Urgent detail is required on the undertaking that the people of NI who claim Irish citizenship will be entitled to EU citizenship rights.
• Further consideration needs to be given to the desirability of allowing the people of NI a voice in the EU’s democratic processes given the extent to which they will be subject to the common regulatory area.

*For a black and white version of the report, please email us: brexitlawni@qub.ac.uk*