Funder: Equality Commission for Northern Ireland
Awarded: £27,111 (2021–2023), £24,910 (2023–2024)
Duration: 2021–2024
Staff involved: Sarah Craig (2021–2024), Rory O’Connell (2021–2024), Claire Lougarre (2023–2024)
Initial Report
Article 2 of the protocol on Ireland/Northern Ireland, contained within the Withdrawal Agreement concluded between the United Kingdom and the European Union, outlines a commitment to non-diminution of rights in Northern Ireland post-Brexit. This commitment is underpinned by the Belfast/Good Friday Agreement 1998 and its provisions on Rights, Safeguards and Equality of Opportunity, which saw these elements as integral to creating the necessary conditions for facilitating peace in Northern Ireland in the wake of conflict. That the United Kingdom and European Union constructed Article 2 on this basis is reflective of the emphasis that was placed on the 1998 Agreement in the Brexit negotiations and assertions that the Agreement must be upheld in any deal between the two sides.
The expansive yet ambiguous framing of the 1998 provisions, while politically sufficient at the time of agreement, have acquired a legal significance in the wake of Brexit. Article 2 represents a reaffirmation of commitment to the 1998 provisions, while simultaneously demanding clarity in the relationship between domestic and European Union law, and obligating an ongoing monitoring process of this post-Brexit.
This phase of research resulted in a project report, written by Sarah Craig, Anurag Deb, Eleni Frantziou, Alexander Horne, Colin Murray, Clare Rice and Jane Rooney for the Equality Commission for Northern Ireland, the Northern Ireland Human Rights Commission and the Irish Human Rights and Equality Commission.
Update Paper
Article 2(1) specifically requires the UK to ensure there is no diminution of rights, safeguards or equality of opportunity as set out in the 1998 Good Friday Agreement resulting from the UK’s exit from the EU. This obligation has two elements to it: a non-diminution requirement (or static alignment) and a keeping pace (or dynamic alignment) requirement.
The non-diminution requirement is that the UK must not reduce those EU protections for rights and equality that existed in Northern Ireland prior to the UK’s exit and which provided an underpinning for the rights in the relevant section of the 1998 Agreement. The keeping pace requirement relates specifically to the six directives listed in Annex 1 of the Protocol/Winsor Framework.
This phase of research produced an update paper following on from the initial report on divergence. The report examines issues of divergence in the protection of rights and equality on the island of Ireland focusing on the period from 1 January 2022 to 31 August 2023, and also including some more recent developments.