Part V - Fundamental Rights in the Protocol

12 Human Rights and Equality

Christopher McCrudden

12.1 Introduction

Human rights and equality issues were a critical part of the negotiation of the 1998 Belfast-Good Friday Agreement (hereafter 1998 Agreement) and contributed to the successful outcome of those negotiations. Leading up to and following the 1998 Agreement, there was a flurry of domestic legislative activity, in particular the Human Rights Act 1998, the Fair Employment and Treatment Order 1998 and the Northern Ireland Act 1998. This is no coincidence: the Agreement was intended largely to be a framework for such activity, and a statement of principle, rather than to be directly enforceable. When taken together with previous legislation on equality beginning in the 1970s, and with subsequent legislation during the 2000s, Northern Ireland now has one of the more impressive collections of human rights and equality law in Europe. It is noteworthy that all this legislation was enacted either at Westminster or by UK government ministers under powers to legislate during periods of ‘direct rule’, when the Assembly was suspended. This legislation was supplemented yet further with ‘social’ legislation (in particular in the employment and welfare fields), a degree of protection from discrimination on the basis of citizenship arising from the operation of the Common Travel Area (CTA),¹ and fitful use of public procurement ‘linkages’ to add extra financial weight to ensure compliance.²

Even before the 2016 Referendum had been held, concerns had been expressed that the exit of the UK from the EU could lead to a reduction in the level and intensity of these protections because EU law to a degree provided underpinnings through Treaty provisions (eg, on equal pay), the anti-discrimination directives (race, sex, age, sexual orientation, disability), the ‘social’ directives (part-time work, maternity/paternity, etc), political obligations regarding the European Convention on Human Rights (ECHR), the Charter of Fundamental Rights (CFR) and the status of EU citizens (including EU citizens by virtue of being Irish citizens). Common membership of the EU also meant that a greater degree of convergence between Northern Ireland and Ireland was emerging in those areas where EU law was influential.

The Withdrawal Agreement (WA) addresses human rights and equality concerns directly and indirectly in three main ways: (i) the provisions in Part 2 WA dealing with reciprocal rights for EU citizens residing in the UK and UK citizens residing in the EU protect Irish citizens residing in Northern Ireland since such citizenship also brought with it EU citizenship;³ (ii) the provisions of Protocol Article 3 addressing the CTA provid a degree of reassurance that these arrangements are now recognized in an international agreement;⁴ and (iii) Protocol Article 2 ensures that there be no diminution of rights as a result of the UK’s exit from the EU. It is this third provision that this chapter primarily considers. Protocol Article 1 provides that its express objective is the protection of the 1998 Agreement ‘in all its dimensions’.

This chapter focuses on how Protocol Article 2 addresses human rights and equality issues in Northern Ireland. This chapter also describes how the TCA supplements the Protocol in several respects, addressing some issues that were left unaddressed by the Protocol, in particular issues concerning the protection of labour and social rights (in the ‘level playing field’ provisions), and the status of the ECHR. These will be considered briefly in order to provide a more complete map of the new architecture of human rights and equality in Northern Ireland currently in place, without attempting to be comprehensive. Chapter 13 considers the role of the EU CFR.⁵

12.2 Article 2 of the Protocol

12.2.1 Application

Article 2 establishes obligations on the UK (‘the United Kingdom shall …’). The UK is bound by international law to implement the Protocol in good faith and in its entirety (Vienna Convention on the Law of Treaties (VCLT), Article 26), including Article 2. Neither Ireland nor the EU has obligations under Article 2, although Ireland and the EU are obliged to facilitate the UK in carrying out its obligations generally.⁶

The ‘no diminution’ obligation is not restricted to the protection of the rights of any particular group; in particular, Article 2 is not linked to citizenship, nor is it restricted to the rights of the ‘people of Northern Ireland’. In referring back to the provisions of the 1998 Agreement, however, the scope of the protection of the rights is limited to those ‘in the community’,⁷ which is left undefined. Who, then, is included as within ‘the community’? In the other parts of the 1998 Agreement, the term ‘community’ refers to those in Northern Ireland. In this part of the Agreement, however, that interpretation is less convincing, given that this part contains obligations on the Irish government to incorporate the ECHR into Irish law, an obligation that clearly cannot be described as relating to the ‘community’ in Northern Ireland. It would appear, therefore, that the term ‘community’ in this part of the Agreement may also refer to those on the island of Ireland, with important implications for the scope of Article 2, as we shall see.

12.2.2 Interlocking Elements

There are three interlocking elements in Article 2: (i) the general clause (‘no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity’); (ii) the anti-discrimination clause (‘including in the area of protection against discrimination, as enshrined in the provisions of Union law listed in Annex 1 to this Protocol’); and (iii) the provision dealing with domestic implementation requirements (including the reference to ‘dedicated mechanisms’ in Article 2(1)). In addition, these specific provisions must be seen as set in the broader general provisions of the WA and the Protocol, in particular those dealing with interpretation and enforcement, including international dispute settlement. Each of these elements will be considered in turn.

12.2.3 General Clause

There are three distinct elements to the general clause. First, the guarantee relates to ‘rights, safeguards or equality of opportunity …’. Second, it relates only to those rights etc in that particular part of the Agreement entitled ‘Rights, Safeguards and Equality of Opportunity’ (‘as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity’). Third, the guarantee aims to ensure that ‘no diminution … results from [the UK’s] withdrawal from the Union …’. The first two issues will be considered together, before turning to consider the third.

A preliminary issue as to the coverage of the general clause arises because of the way in which the relevant part of the Agreement is drafted. The first sentence of that part reads: ‘1. The parties affirm their commitment to the mutual respect, the civil rights and the religious liberties of everyone in the community. Against the background of the recent history of communal conflict, the parties affirm in particular … .’ The relevant section of the Agreement then goes on to specify the set of particularized rights protected. It is unclear whether the general clause therefore protects all ‘civil rights and religious liberties’ or only the particularized rights (‘right of free political thought’ etc). If the former, the coverage of Article 2 is potentially very broad indeed: the Oxford English Dictionary definition of civil rights includes ‘the political, social, and economic rights which are recognized as the entitlement of every member of a community and which can be upheld by appeal to the law’.

If the latter, then the ‘rights’ specified in the relevant section of the Agreement are: 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 not to be discriminated against; the right to equal opportunity in all social and economic activity, in both the public and the private sector, 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; and the right of victims to remember as well as to contribute to a changed society.

Even if the ‘civil rights’ protected by Article 2 are limited to the rights listed in the Agreement, the protection of Article 2 also applies to certain ‘safeguards’ which are outside even the broadest definition of ‘civil rights’. There are four safeguards in the relevant section of the Agreement. Three are relatively straightforward: the ‘need to ensure that symbols and emblems are used in a manner which promotes mutual respect rather than division’; ‘the importance of respect, understanding and tolerance in relation to linguistic diversity’; and continuing UK membership in the ECHR, combined with the provision of domestic remedies for alleged breaches of the Convention, an issue considered subsequently.

In addition to these, however, there is a further broader provision: ‘Pending the devolution of powers to a new Northern Ireland Assembly, the British Government will pursue broad policies for sustained economic growth and stability in Northern Ireland and for promoting social inclusion, including in particular community development and the advancement of women in public life.’ The reference to ‘social inclusion’ arguably refers to a broad swathe of socio-economic protections. However, the commitment is time-limited and (with the establishment of the Assembly) may be seen as having lapsed. Given these uncertainties, the role of the TCA in addressing the ‘level playing field’ issues of social and employment rights is of added importance.

These uncertainties aside, the restriction of Article 2 to the ‘non-diminution’ of rights and safeguards in the relevant part of the Agreement, and only those rights and safeguards, means that the so-called birthright provision of the Agreement (the right for the people of Northern Ireland to be British or Irish or both) is not included within the Article 2 obligation (or indeed elsewhere in the Protocol), although it is referred to in one of the Recitals to the Protocol, which means that it may be relevant to the interpretation of other provisions of the Protocol (including Article 2).

Turning now to the third element in the general clause, we have noted that the Article 2 obligation prohibits only any ‘diminution [which] results from [the UK’s] withdrawal from the Union …’. Two main issues arise from this: (i) what elements of EU law (up to the end of the transition period) provided legal underpinnings to the rights protected in the relevant section of the Agreement (the Preamble to the Protocol refers to EU law’s ‘supporting framework’) and (ii) when would any future diminution ‘result from’ the UK’s exit?

It is not hard to visualize situations in which a rule of EU law would have enabled or facilitated the enforcement of 1998 Agreement rights obligations and in which that EU rule has been abrogated and not replaced after Brexit. So far as is known, however, there was no systematic mapping exercise undertaken of precisely what elements of EU law (up to the end of the transition period) provided legal underpinnings to the relevant 1998 Agreement rights and safeguards, and no official list has yet been published by official bodies in either the EU or the UK. It is clear that such a list would need to consider the full range of substantive Treaty articles, regulations, directives and provisions of the CFR that provided a ‘supporting framework’ for each of the 1998 Agreement rights and safeguards. ‘Underpinning’ thus refers to the substantive rules of EU law, but it also refers to the procedural and remedial rules of EU law that ensure or facilitate the full and efficient application and enforcement of the 1998 Agreement rights in Northern Ireland, for example the right to secure damages for breach of a rule by the state, and the right to have legislation suspended if it is held to be contrary to the Protocol.

When would any future diminution ‘result from’ the UK’s exit? The appropriate question is whether but for the UK’s exit that diminution would have been able to occur, legally. If the answer is negative, then Article 2’s non-diminution obligation applies. This will be a mixed question of law and fact in each case. Unless, over time, all divergences end up being attributed back to Brexit as a matter of course, which seems unlikely, this aspect of the Article 2 obligation renders the protection accorded a wasting asset, since the longer any diminution is from the date of exit, the more difficult it may be to establish that but for that exit the UK would not have been in a position to reduce the level of protection provided.

A more particular question relates to the application of Article 2 to the continuing status of the ECHR in Northern Ireland. Would it be a breach of Article 2 for the UK to withdraw from the Convention? In my view it would not because of the ‘supporting framework’ criterion. Although we have seen that it is included as one of the ‘safeguards’ in the relevant section of the Agreement, we cannot say that the UK’s membership in the Convention is underpinned by EU law, only by a political commitment. Given the limits of Article 2 in this respect, the provisions of the TCA concerning the status of the ECHR in UK law generally become of central importance. Two examples illustrate the method required in applying the general clause of Article 2.

12.2.3.1 Example 1: EU Citizens’ Eligibility to Vote in District Council Elections

The first example concerns the eligibility to vote and to stand for election in Northern Ireland. The franchise for district council elections in Northern Ireland is to be found in the Elected Authorities (Northern Ireland) Act 1989 (as amended), section 1. This provides that British or Commonwealth citizens, citizens of the Republic of Ireland and citizens of other European Union (EU) countries are eligible to vote, in all cases provided they are aged eighteen or over on polling day, have been resident in Northern Ireland during the whole of the three-month period prior to the election, are registered to vote and are not otherwise legally excluded from voting. What if a future UK parliament deprived EU citizens resident in Northern Ireland of the right to vote in district council elections?

Several issues would need to be considered in determining whether this would amount to a breach of Article 2. First, it seems clear that three particular rights specified in the relevant part of the 1998 Agreement are engaged, viz ‘the right to pursue democratically national and political aspirations’, the ‘right to seek constitutional change by peaceful and legitimate means’ and the ‘right of women to full and equal political participation’. Second, the right in question was underpinned by identifiable EU law that was in force in Northern Ireland during the relevant period. Article 8b.1 of the Treaty establishing the European Community (as amended by Title II of the Treaty on European Union) introduced a right to vote in ‘municipal’ elections by EU citizens resident in another member state. Two EU directives subsequently spelled out the detailed arrangements necessary to operationalize this right.⁸

Taken together, these establish voting rights and the right to stand for election for resident EU citizens in ‘municipal’ elections in the member states. EU citizens’ rights to vote and to stand as a candidate under EU law are restricted to ‘municipal’ elections, which in Northern Ireland means district council elections.⁹ Furthermore, in the context of the implementation of the relevant Treaty provisions and directives¹⁰ identified, several provisions of the CFR apply: Article 11 Freedom of expression and information; Article 12 Freedom of assembly and of association; and, in particular, Article 40 Right to vote and to stand as a candidate at municipal elections. Finally, but for the UK’s exit that right would still have to be provided for in Northern Ireland law. Any ‘diminution’ of that right would have been contrary to EU law, if the UK had still been a member state of the EU.

12.2.3.2 Example 2: EU Citizens Resident in Ireland Seeking to Reside in Northern Ireland

In our second example, that there is an EU citizen who is not also an Irish citizen lawfully resident and working in Ireland. This person now wishes to take up employment in Northern Ireland. The provisions of Part 2 WA will not enable her to do so; nor will the provisions of the CTA, since she is not an Irish citizen. The UK authorities refuse her application to work in Northern Ireland. Prior to Brexit, under EU law, she could have relied on her free movement rights to work in Northern Ireland. Can she successfully argue that Article 2 prevents this diminution of rights?

Certain aspects of this case are clear: she had a Union law-based right which she now does not have. Although the right to free movement is an EU citizenship right found in EU law, the relevant part of the 1998 Agreement also protects ‘the right to freely choose one’s place of residence’. That appears broad enough to cover circumstances where the UK prevents someone who would have had the right to choose to reside in Northern Ireland before Brexit based on EU rights and is now no longer able to do so because of UK withdrawal.

The diminution of that right resulted from the UK’s withdrawal (using the ‘but for’ test). The ‘no diminution’ obligation applies to the UK government, which is now refusing her entry to work. Article 2 is only binding on the UK, so Article 2 would not help a Northern Ireland-resident EU citizen cross the border in the other direction. So Article 2 would apply only, potentially, to travellers going North, not the reverse. It would not constrain the EU or Ireland.

The key question then becomes whether the person seeking to use Article 2 is within ‘the community’ to which this part of the 1998 Agreement applies. There appear to be three possible interpretations: a narrow reading (it’s only the people in Northern Ireland); a broader reading (it’s all the people in Ireland and (possibly) the UK); and the broadest reading (it’s all people in the EU, or possibly the whole world). The broadest reading is unconvincing, but so too is the narrowest reading.

As suggested above, ‘community’ in other parts of the 1998 Agreement refers to those in Northern Ireland (such as in Strand 1, and Policing), but in the human rights, etc section that is not so clear, given that there is a part of that section devoted to the protection of human rights in the South (the responsibilities of the Irish government, which was inserted at the behest of the unionist negotiators). Ironically, this seems to imply that the ‘community’ in that section has been expanded to include at least those in the South, given that the reference to the ‘community’ prefaces all the parts of that section, not just the parts dealing with Northern Ireland. If so, that would indeed mean that non-Irish/British residents of Ireland would continue to enjoy the right to reside in Northern Ireland as before Brexit, as a result of Article 2.

12.2.4 Anti-discrimination Clause

The second element in Article 2, the anti-discrimination clause, needs separate treatment. It provides that there shall be ‘no diminution of … equality of opportunity, as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity …, including in the area of protection against discrimination, as enshrined in the provisions of Union law listed in Annex 1 to this Protocol …’. The directives included are restricted to what EU law considers the key ‘anti-discrimination’ directives.

The description of the directives listed as constituting ‘Union law’ has considerable significance. This is because Article 4(3) WA stipulates that the provisions of the Agreement referring to ‘Union law or to concepts or provisions thereof’ shall be ‘interpreted and applied in accordance with the methods and general principles of Union law’. This means, for example, that the interpretation of what the directives require must be undertaken taking into account all of the interpretative elements that the Court of Justice of the European Union (CJEU) would apply, including the general principles of EU law and, where relevant, the CFR, since the CJEU may draw upon the CFR if required to rule upon the meaning of the directives. Article 13(2) of the Protocol places no temporal limitations on this obligation. Northern Ireland courts would, therefore, also be required to follow post-transition CJEU case law by reason of that provision.

We have seen that the designated EU law listed in Annex 1 includes only the substantive anti-discrimination directives. The drafters of the Protocol have relied, therefore, on a distinction between the anti-discrimination directives (included in Annex 1) and directives that address broader issues of equality of opportunity and social policy (not included in Annex 1), such as the Part-Time Work Directive, the Maternity and Parental Leave Directive and the Pregnancy Directive. This does not mean, however, that these additional directives are irrelevant to the operation of Article 2 because, although they are not listed in the Annex, they do constitute ‘underpinnings’ to the protection of equality of opportunity and are thus to be considered in the application of the general clause.

Article 2 provides: ‘The United Kingdom shall ensure that no diminution of … equality of opportunity, as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union … .’ The Agreement’s listed rights include the ‘right to equal opportunity in all social and economic activity, in both the public and private sectors, regardless of class, creed, disability, gender or ethnicity’. The Part-Time Work Directive, the Victims Directive, the Maternity and Parental Leave Directive, the Pregnant Workers Directive and specific EU measures aimed at protecting the rights of persons with disabilities are measures that underpinned this right in Northern Ireland law, and thus any diminution from the level of protection accorded by these provisions will run contrary to the general clause of Article 2, even though it will not run contrary to the provisions of the anti-discrimination clause.

12.2.5 International Governance Arrangements

The governance of Article 2 may be set out only briefly here because the compliance mechanisms applying to Article 2 are set in the context of the Protocol as a whole. Unusually, as regards trade agreements generally, the same provisions for international interpretation and enforcement apply to Article 2 as apply to customs, trade and regulatory issues. The Specialised Committee on Ireland–Northern Ireland and the Joint Committee (JC), discussed in Chapter 4, also apply to Article 2. (A potentially significant difference, however, is that two independent public bodies in Northern Ireland, the Northern Ireland Human Rights Commission (NIHRC) and the Equality Commission for Northern Ireland (ECNI), have a role in providing information on the implementation of Article 2 to the Specialised Committee.) Likewise, the international arbitration panel, discussed in Chapter 5, is empowered to determine violations of Article 2 in the event of a dispute arising which cannot be settled otherwise, with the CJEU having final jurisdiction over determining any issue of EU law. The ultimate sanction for violation of Article 2, as with the other provisions of the Protocol, is suspension of the WA as a whole, except for provisions dealing with citizens’ rights.

12.2.6 Domestic Governance Arrangements

The requirements for the domestic implementation of Article 2 differ, however, from those that apply to the Single Market and Customs provisions of the Protocol, in three particular respects. First, the Northern Ireland Assembly ‘consent principle’ does not apply to Article 2, so even if the Assembly were to vote to terminate the Protocol, it would apply only to Articles 5 to 12, not Article 2. Second, the ability (and, in the case of decisions by the court of law resort, the obligation) of the domestic courts to refer issues of EU law to the CJEU under the preliminary reference procedure does not apply to Article 2 issues. Third, there is an important role for the NIHRC and the ECNI in overseeing the domestic implementation of Article 2, a role that has no equivalent with regard to the other provisions of the Protocol and is an important part of the domestic ‘dedicated mechanism’ required by Protocol Article 2(1). A role for these Commissions is recognized in Protocol Article 2(2), but the details are set out in the European Union (Withdrawal Agreement) Act 2020 (EUWAA).¹¹ This provides for both Commissions to have the powers to monitor implementation, to have standing for taking judicial review in its own name, and to have the ability to support judicial review by other parties. This has been accompanied by increased staff and additional funding from government to support these activities.

Section 7 A of the European Union (Withdrawal) Act 2018 (as amended) (EUWA) also applies to Article 2, as it does to the whole of the Protocol. As a result, Article 2 applies to both the Westminster Parliament and the UK government. In addition, there is specific provision regarding the obligations of the devolved institutions of government in Northern Ireland. As regards Article 2, the primary obligations include legislating in a manner that is consistent with the Protocol’s provisions on rights,¹² and tracking changes in EU law.¹³ If the Assembly/Executive refuses to introduce tracking of changes, the Secretary of State is empowered to override that refusal and legislate directly. If both the Assembly and the Secretary of State were to refuse to legislate, judicial review would be almost certain.

12.2.7 Direct Effect

As with other provisions of the WA and the Protocol, there is room for debate as to whether and, if so, how far Article 2(1) has ‘direct effect’. ‘Direct effect’ has two somewhat different meanings: (i) that a legal rule must be applied by a national court, even in the absence of implementing measures, against all parties; and (ii) that natural and legal persons are able to rely directly on the rule in domestic UK courts to their benefit. Article 4(1) WA states that provisions of ‘Union law’ made applicable by the Agreement ‘shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States’. Article 4(1) continues: ‘Accordingly, legal or natural persons shall in particular be able to rely directly on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law’, the test for which is whether the provision is ‘clear, precise and unconditional’.

It may be necessary to distinguish between the direct effect of the general clause and the anti-discrimination clause. Of the two, the anti-discrimination clause most directly engages Article 4(1) WA, given that Annex 1 specifically refers to ‘Union law’, in the form of the anti-discrimination directives. The anti-discrimination directives have consistently been held to have vertical direct effect, and so it would appear that at least the anti-discrimination clause (together with the Annex) is directly effective against the UK. As regards the direct effect of the general clause, there is more room for debate because it is arguably less clear and precise than the anti-discrimination clause, and so on its wording it is arguable that it does not meet the threshold for direct effect in EU law. Because of this uncertainty, ministerial statements in the House of Lords and the UK government’s Explainer on Article 2¹⁴ take on an added importance. Both in a statement in the House of Lords¹⁵ and in its Explainer on Article 2,¹⁶ the UK government accepted the direct effect of Article 2 as a whole. Given the importance of such statements as indicative of the understanding of the WA,¹⁷ under the VCLT’s approach to interpretation, such statements are likely to prove determinative.

Should this not prove to be the case, then the issue arises as to whether the Francovich rule (state liability in damages for the incorrect adaptation of national law) applies in the event of a breach of Article 2’s general clause. The difficulty here is that such damages appear to have been abolished specifically by EUWA 2018.¹⁸ The issue is whether, despite this, state liability in damages remains available in Northern Ireland. We have seen that the Protocol protects certain rights from diminution, and that those rights have, in part at least, been underpinned by Union law. Thus far, we have been concerned with substantive EU law, but we should also include EU procedural and remedial law, including the Francovich rule, which underpins the substantive rights. These substantive rights would be much less well protected if the Francovich rule were no longer to apply. The substantive rights would be ‘diminished’ if the procedural and remedial dimensions of the right were taken away. The ‘no diminution’ obligation applies not only to the substantive rights but also to the procedural and remedial dimensions of those rights, including the Francovich rule, a position that is supported by the judgment of the European Free Trade Association (EFTA) Court in an analogous case.¹⁹ Since the Protocol requires this, section 7 A of the 2018 Act overrides the prohibition on Francovich damages in the rest of the UK. The effect of the ‘no diminution’ rule is to create a lex specialis as an exception to the general principle of ‘no Francovich damages’ in the EUWA.

12.3 Trade and Cooperation Agreement

There are two main sets of provisions of the TCA which need to be taken into account in reaching a balanced judgment on the degree of protection accorded to rights in Northern Ireland following the departure of the UK from the Union, namely the so-called level playing field provisions and the human rights provisions.²⁰ Though quite modestly, these provisions partially address the failure of the Protocol to address labour and social rights explicitly, and the role of the ECHR in Northern Ireland. It is important to note, however, that, unlike the provisions of the Protocol, these provisions are specifically stated not to be directly effective.²¹

12.3.1 Level Playing Field Provisions

These provisions were designed to ensure fair competition between the EU and the UK, and include commitments not to regress from labour, social, environmental and climate standards. These restrictions are unlikely to prove constraining, except in quite special circumstances. Article 6.2 provides only that ‘[a] Party shall not weaken or reduce, in a manner affecting trade or investment between the Parties, its labour and social levels of protection below the levels in place at the end of the transition period, including by failing to effectively enforce its law and standards’. So, too, either side may take ‘rebalancing measures’ if material impacts on trade or investment arise as a result of significant divergence. Article 8.3 appears to apply all the International Labour Organization (ILO) Conventions that the UK and the member states of the Union have respectively ratified, as well as the provisions of the European Social Charter that, as members of the Council of Europe, the member states of the Union and the UK have accepted, but the obligation is weaker than it may appear; each party only ‘commits to implementing’ these provisions, which falls considerably short of their being obligated to comply with them.

12.3.2 Human Rights Provisions

There are two main sets of human rights provisions: the general rules on human rights found in Articles 763 and 771, together with Article 772, and the special rules on human rights in the criminal justice context detailed in Article 524.

As a result of the general rules, the parties ‘shall continue to uphold the shared values and principles of democracy, the rule of law, and respect for human rights, which underpin their domestic and international policies. In that regard, the Parties reaffirm their respect for the Universal Declaration of Human Rights and the international human rights treaties to which they are parties.’ This provision on human rights is described as constituting ‘essential elements of the partnership established by this Agreement’. If either party considers that there has been a serious and substantial failure by the other party to fulfil any of the obligations that are described as essential elements, it may decide to terminate or suspend the operation of the Agreement or any supplementing agreement in whole or in part, subject to a delay to allow for negotiations between the parties to take place, and to the measures being proportionate. The significant limitation on the applicability of these provisions is that ‘for a situation to constitute a serious and substantial failure to fulfil any of the obligations described as essential elements …, its gravity and nature would have to be of an exceptional sort that threatens peace and security or that has international repercussions’.

The special rules on human rights in the criminal justice context appear somewhat more robust. The co-operation in the criminal justice context is said to be ‘based on the Parties’ and member states’ longstanding respect for democracy, the rule of law and the protection of fundamental rights and freedoms of individuals, including as set out in the Universal Declaration of Human Rights and in the ECHR, and on the importance of giving effect to the rights and freedoms in that Convention domestically’. This constitutes the first time in either the WA or the TCA that the ECHR is mentioned specifically, and its domestic implementation.

As well as being more specific than the general provisions discussed previously, these specific provisions are also subject to a broader compliance regime. Each party ‘may at any moment terminate [the criminal justice co-operation measures] by written notification’ for breach of these protections. There is no requirement that the breach be of the exceptional sort required for a breach of the general human rights obligations, and it is clear that withdrawal from the Convention and certain specified Protocols (1, 6 and 13) is itself sufficient to justify termination of this part of the TCA. Where there are ‘serious and systemic deficiencies’ by a Party regarding ‘the protection of fundamental rights or the principle of the rule of law’, the other Party may also suspend (rather than terminate) this Part of the TCA.

12.4 Conclusion

Given the relative weakness of the human rights provisions of the TCA, Article 2 of the Protocol is likely to take on increased significance, but how far it will prove effective remains to be seen. On the one hand, Article 2 might come to be seen as less than the sum of its parts, or at least less than it first appears. On the other hand, Article 2 could become the foundation of a unique dispensation for Northern Ireland. Neither of these assessments is likely to be borne out in practice; it is more likely that it could come to be seen in practice as of limited application, but of surprisingly significant depth when it does apply. At the time of writing, at least one case is pending that may begin to indicate how the courts will consider Article 2 in the future.²²

13 The Charter of Fundamental Rights

Sir Bernard McCloskey

13.1 Introduction

The law of unintended consequences specializes in conundrums and anomalies. The Charter of Fundamental Rights of the European Union (CFR) was singled out for special, targeted attention in the UK domestic Brexit legislation.¹ The evident intention of the UK government – abrupt and permanent extinction of the CFR from UK law – was unmistakable. The European Union (Withdrawal) Act 2018 (EUWA 2018) repealed the European Communities Act 1972, the measure of primary legislation whereby the UK acceded to the EU, while converting existing EU law into domestic law, subject to specified exceptions. The CFR is one of the most striking of these exceptions, by virtue of section 5(4) EUWA 2018, which provides: ‘The Charter of Fundamental Rights is not part of domestic law on or after exit day.’ Thus, the CFR, it seemed, ceased to form part of domestic UK law overnight, permanently and without more. But the story does not end there. The multiple components of the Brexit legal architecture, not less than complex, having been finalized and activated, it is not clear that this apparent intention has been achieved. If it was not, was this by accident or by design?

13.2 The DNA of the CFR

Human rights development in EU law has been the product of evolution, not revolution: a gentle, orderly and judge-led process which, viewed in retrospect, appears a natural progression. It is nonetheless remarkable given that human rights did not feature in the Treaties in their original incarnation. There was no bill of rights and nothing equivalent thereto. The founding fathers were enlightened and ambitious, but cautiously so.

The Lisbon reforms of 2009, which made the CFR enforceable EU law, effected a significant transformation of the EU landscape, with a greater emphasis on human rights protection in the Treaties than ever before. The CFR represented the culmination of several decades’ work of the Court of Justice of the European Union (CJEU) and its predecessor (the European Court of Justice (ECJ)) during which active, imaginative and penetrating judicial interpretation and application of EU law had discovered and proclaimed fundamental rights,² initially through the conduit of ‘general principles’ considered to be inherent in the Treaties and subsequently by explicit recognition in the Treaties themselves. Article 6(3) of the Treaty on European Union (TEU) provides that fundamental rights shall constitute general principles of EU law. It proclaims that ‘fundamental rights’ consist of those rights guaranteed by the European Convention of Human Rights and Fundamental Freedoms (ECHR), together with rights embedded in the constitutional traditions common to the member states.³

The CFR represents both the vindication and the codification of the jurisprudence of the CJEU, which from its earliest days developed the cornerstone principles of equal treatment, non-discrimination, transparency, legitimate expectations and the legal recognition and protection of other fundamental rights and freedoms. The fundamental difference between the pre-CFR and post-CFR eras is that the rights of EU citizens and others residing on EU territory are now proclaimed and codified visibly and unambiguously in a model which is transparent, unequivocal and dynamic. These rights are more concrete, tangible and accessible than ever before. Constituting one of the three dominant instruments of governance of the EU, the CFR is a legally binding bill of rights, resembling the catalogues of rights to be found in the constitutions of most EU member states. Upon its adoption, a new era in the EU legal order dawned.

13.3 The CFR’s Preamble

The Preamble to the CFR is illuminating and instructive. It reveals its diverse origins and sources of inspiration, as well as proclaiming its rationale and aims. It recalls the post-war resolution of the peoples of Europe ‘to share a peaceful future based on common values’. It draws on the ‘spiritual and moral heritage of the Union’, which is founded on the ‘indivisible, universal values of human dignity, freedom, equality and solidarity’. Its most important statement, arguably, is the reaffirmation that the Union is ‘based on the principles of democracy and the rule of law’.

Through the creation of the twin mechanisms of Union citizenship and an area of freedom, security and justice, the EU ‘places the individual at the heart of its activities’. The Preamble emphasizes, on the one hand, the common values of the member states and, on the other, the respect to be accorded to ‘the diversity of the cultures and traditions of the peoples of Europe’, their national identities and how they are governed at national, regional and local levels. Furthermore, the Preamble explicitly recognizes the principle of subsidiarity, while emphasizing that ‘it is necessary to strengthen the protection of fundamental rights’, which derive from ‘the constitutional traditions and international obligations common to the Member States, the [ECHR], the Social Charters adopted by the Union and by the Council of Europe and the case law of the Court of Justice of the European Union and of the European Court of Human Rights’. The CFR’s close affinity with Article 6(3) TEU in this respect is evident.

13.4 Has the CFR Really Disappeared from the UK Legal System?

The answer to this question is no. It is at first blush a surprising answer, given the terms of section 5(4) EUWA 2018. Explaining why this is so requires a two-part analysis. I examine first, in this section, what the status of the CFR is in UK law in areas other than those covered by the Protocol. In Section 13.5, I turn to the position under the Protocol.

As regards the status of the CFR in UK law generally after Brexit, its continuing and future potential to influence domestic UK law arises in several ways. First, the following transitional provisions gave the CFR a limited degree of prospective effect after exit day. The CFR continues to operate, albeit on a short-term basis, insofar as relevant to any proceedings begun, but not finally determined, before a UK court or tribunal prior to exit day.⁴ A court will be able to disapply legislation or quash a relevant act where a challenge relates to something predating exit day and is made within a three-year limitation period.⁵ Any pre–exit day court decisions quashing an act or decision or disapplying a provision of pre-exit secondary legislation on the ground of incompatibility with one of the general principles of EU law will continue to have effect.⁶

Second, and more importantly, the UK’s post-Brexit retreat from EU law will not be abrupt. EU law will continue to form part of domestic UK law as ‘retained-EU law’.⁷ In particular, certain of the existing rights codified under the CFR will be retained in UK domestic law, such as relating to anti-discrimination rights. Unless and until ‘retained-EU law’ is repealed, it remains in full force, and repeal is likely to be a gradual, incremental process. Indeed, the complete repeal of retained EU law is unlikely to prove either viable or desirable. The CFR will remain influential in the interpretation of all aspects of this retained EU law which it affects. It will also exert an influence via all retained CJEU jurisprudence in which it features. Courts and tribunals are also specifically empowered to have regard, and give effect, to post–exit day CJEU judgments which do not depart from pre–exit day CJEU judgments.⁸ These may include CFR-related decisions.

Third, the CFR could conceivably make a formal or official reappearance in the event of the exercise of the statutory ministerial power to act so as to prevent, remedy or mitigate any failure of retained EU law to operate effectively or any other deficiency.⁹ The same observation applies to the separate power to make transitional arrangements by secondary legislation.¹⁰

Fourth, the relationship between the CFR and the CJEU’s ‘fundamental rights’ jurisprudence deriving from EU general principles provides a potentially rich harvest of possibilities for continuing CFR influence. Any fundamental rights or principles under EU law which exist irrespective of the CFR (surely a blurred dividing line?) will be retained in UK domestic law. This gives rise to the possibility of resort to the CFR’s ‘Explanations’ and to CFR jurisprudence (whether that of the CJEU or the UK courts) provided that the CFR’s rights identified and recognized express a fundamental right or principle existing irrespective of the CFR. While this may give rise to an untidy and uncertain dichotomy, the significance of this provision is that the CFR is a codifying instrument containing at least some provisions deriving from preceding CJEU ‘fundamental rights’ case law. This assessment is fortified by the specific provision in the EUWA 2018 that ‘references to the Charter in any case law are, so far as necessary for this purpose, to be read as if they were references to any corresponding retained fundamental rights or principles’.¹¹ It follows that certain aspects of CJEU jurisprudence with a specific focus on the CFR may continue to exert significant influence in the UK following exit day.

13.5 The CFR, the CJEU and the ECtHR

The ECHR belongs to the realm of the Council of Europe (COE), an international organization separate from the EU and governed by its own rules, norms, systems and procedures. Its members include the UK. Continued UK membership of the COE is not at present under threat; nor is the UK’s accession to the ECHR, although this has often been mooted in the recent past. Unless or until it is significantly weakened, the Human Rights Act 1998 (HRA) should remain a powerful conduit through which the ECHR and the jurisprudence of the European Court of Human Rights (ECtHR) continue as a significant presence in UK law.

In the search for factors which may provide an effective foil to the foreseeable post-Brexit human rights protection backward slide in the UK, attention may turn to the increasing alignment of the CJEU and the ECtHR. This belongs to a context where the EU en bloc is still committed to acceding to the ECHR.¹² There has been a progressively discernible jurisprudential dialogue between these two courts.¹³ The ‘constitutional traditions common to the Member States’, a familiar phrase, has increasing resonance in this context. This ‘cross-pollination’ seems merely logical given the strong association linking ECHR rights, the CFR and the general principles of EU law.¹⁴ Thus, post-Brexit, it is foreseeable that both the CFR and the general principles of EU law, particularly insofar as these have been absorbed within the ECHR and the Strasbourg jurisprudence, will continue to have indirect influence in the UK legal system. This will occur in a context where it is the declared philosophy of the ECtHR to treat the ECHR as a living instrument.¹⁵ While the concern must be that this influence may be weak, it is also worth recalling that, through judicial resourcefulness prior to the HRA, important provisions of the ECHR achieved recognition in the UK.¹⁶ There will thus be scope for the CFR to influence the development of the common law by judges, particularly on account of its links with the ECHR.

13.6 The Protocol and the CFR

In this section, I shall consider the status of the CFR in the UK in areas covered by the Protocol, one of the intricacies of the legal arrangements giving effect to Brexit. Northern Ireland finds itself in a unique situation being the only part of the UK which, post-Brexit, shares a land border with an EU member state, namely Ireland. All citizens of Northern Ireland are British nationals. Many, by virtue of their place of birth or otherwise, are also nationals of Ireland. This entitles them to hold an Irish passport. The members of this group, being Irish nationals, are EU citizens entitled in principle to all of the associated rights and benefits.¹⁷ The Protocol forms part of the suite of international agreements between the EU and the UK. By virtue of the Protocol, considered in tandem with the 1998 Agreement, an international treaty to which the UK is party, it would appear that those residing in Northern Ireland, whether Irish citizens or not, have the benefit of a range of protected rights greater than those enjoyed post-Brexit by those resident in other parts of the UK.¹⁸ The effect and nuances of this will be a matter for future assessment, particularly through judicial decisions.

What is clear is that one of the most striking effects of the Protocol for the population of Northern Ireland is that, via a series of interconnected provisions in the European Union (Withdrawal Agreement) Act 2020 (EUWAA 2020) and the Withdrawal Agreement (WA), including the definition of ‘Union law’ in Article 2 WA, considered in conjunction with a series of provisions within the Protocol,¹⁹ there is substantial provision for the continued application of specified aspects of ‘Union law’ in Northern Ireland. From this starting point, it would appear that the UK is continuing to implement certain aspects of Union law post-Brexit, and is obliged to do so.

But how does this relate to the status of the CFR? The indelible starting point must be confronted: by Article 51, the CFR applies only when a member state is acting within the scope of EU law, as interpreted in a series of important decisions of the CJEU.²⁰ In general, the UK’s institutions will, of course, no longer be doing so. However, bearing in mind Article 51 of the CFR, and notwithstanding section 5(4) EUWA 2018, the CFR – via the Protocol – has achieved a level of survival in respect of Northern Ireland extending beyond the situations and respects identified above in Section 13.5.

The explanation of the foregoing proposition requires a careful examination of several further provisions of the WA, two in particular. The first is Article 4(1): ‘The provisions … of Union law made applicable by this Agreement shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States.’ Insofar as the WA (which includes, of course, the Protocol) entails the implementation of Union law, the CFR will apply, by virtue of Article 51.

The second is Article 4(2) WA: ‘The United Kingdom shall ensure compliance with paragraph (1), including as regards the required powers of its judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions, through domestic primary legislation.’ This is, in domestic legal terms, an intrusive provision and a potentially far-reaching one. However, it is enshrined only in the WA, an international treaty. It is not mirrored specifically in either EUWA 2018 or EUWAA 2020. Since it is a provision of international law that has not been specifically incorporated into UK law, the UK dualist theory applies. Thus, are its efficacy and enforcement confined to the realms of politics, diplomacy, municipal elections and, possibly, international courts? The answer, again, appears to be no. EUWAA 2020 is designed to give effect in UK domestic law to the WA. By 2020, EUWA 2018 was no longer capable of giving adequate effect in domestic law to all aspects of Brexit. EUWAA 2020, with its associated amendments of EUWA 2018, was an essential statutory measure, required to reflect the radically changed Brexit landscape which materialized post-2018. Crucially, section 7 A EUWA 2018 (introduced by s 5 of EUWAA 2020) provides in material part that ‘(1) Subsection (2) applies to – … the Ireland/Northern Ireland Protocol’. The critical parts of section 7 A are subsections (2) and (3).²¹ Albeit by a somewhat cumbersome drafting route, section 7 A appears to subject all measures of UK legislation to all rights (etc) and all remedies (etc) referable to the WA, to give effect thereto in UK domestic law and to require their enforcement in legal proceedings in that jurisdiction.

Given that the CFR has a clearly identifiable degree of survival under the WA, and having regard to the indisputable relationship between the WA and EUWAA 2020, the operation of the CFR with regard to issues arising under the WA (and, hence, the Protocol) seems clearly arguable. Although there is a discernible tension between sections 5(4) and 7 A EUWA 2018, the exercise of reading section 5(4) EUWA 2018 in the context of the jigsaw of other provisions highlighted above reveals that the demise of the CFR has not been achieved. Ironically, given the intricacies involved, the CFR could conceivably receive greater attention in the UK, via the Protocol, than ever before. (Of course, while I have outlined certain indications pointing towards an interpretation which dilutes the superficially uncompromising language of section 5(4), full adversarial argument and authoritative judicial construction in an appropriate case will be required.)

13.7 Measuring the Loss When the CFR Does Not Apply Directly

Where the CFR does not apply in the UK post-Brexit, its repeal will have two predictable impacts on the legal protection of rights. First, as the rights protected by the CFR are more extensive than those enshrined in the ECHR (protected in domestic law via the HRA), human rights protection seems destined to diminish across the UK as a whole. The HRA survives (for the moment), continuing to be a major source of directly effective human rights protection in the UK. However, as the CFR is of demonstrably greater reach than the ECHR, where the former no longer applies UK citizens will not have the protection of the CFR’s additional rights, the soi-disant ‘added value’. These include, in particular: the specific rights of the child;²² the array of social protections contained in Title IV;²³ freedom to conduct a business;²⁴ the strong anti-discrimination provisions;²⁵ freedom of the arts and sciences;²⁶ a right of conscientious objection;²⁷ freedom to choose an occupation;²⁸ a right to asylum and against refoulement;²⁹ a right to data protection;³⁰ the prohibition against human trafficking;³¹ a right to marry not restricted to different-sex couples;³² the right to physical and mental integrity;³³ and a guarantee of human dignity.³⁴ This is an impressive list indeed of deceased rights.³⁵

Second, while some of the CFR’s additional rights and protections are, as we have seen, recognized in certain measures of UK domestic law (eg, data protection and protection from human trafficking) or in the ECtHR jurisprudence (eg, certain types of physical and mental integrity), others are likely to evaporate, a particular and worrying illustration being the more expansive rights of the child. Furthermore, to enshrine ‘parallel’ rights in UK domestic law may not benefit from the expansion and fortification of the CFR which, historically, have emerged from the progressive interpretation of the CJEU. Furthermore, future EU legislative measures of expansion and fortification will not apply in the UK.

Third, the abolition of the CFR will give rise to a significant limitation in the matter of available judicial remedies for human rights violations. Under the scheme of the HRA, if a provision of primary legislation cannot be read and given effect in a manner compatible with the Convention rights, the court is empowered to make a declaration of incompatibility.³⁶ This remedial order does not affect the validity, continuing operation or enforcement of the impugned statutory provision. As regards secondary legislation, a judicial order of striking down or setting aside is possible.³⁷ In contrast, as the CFR had the status of supreme EU law in the UK legal system, it had to prevail over any conflicting UK law. Thus, a judicial decision, reflected in an appropriate remedy, that a measure of UK law was incompatible with the CFR would nullify the relevant UK law immediately. Where the CFR does not apply, this will no longer be possible.

More generally, the UK’s retreat from the CFR is likely to have a negative impact on the culture of human rights protection in the UK. It is beyond plausible dispute that, even where there is theoretically strong human rights protection in the laws of any nation, the mindset of its citizens, invariably shaped to some extent by the general culture and philosophy promoted by the government of the day, elected by a majority of voters, is an essential tool in ensuring effective rights protection in practice. It seems highly likely that the removal of the CFR from large parts of UK law will have a negative impact in this respect. This could prove to be the most damaging consequence of all.

The progressive evaporation of the CFR must also be seen in the context of what appears to be a general decline in the UK’s rule-of-law culture. Protection of the rule of law is a critical component of, and support for, the protection of human rights. Yet there are already legitimate worries about the present and future rule-of-law culture in the UK, with at least four reasons to be concerned, at the time of writing. First, several decisions of the UK courts on Brexit-related issues have provoked a vitriolic outcry against the judiciary, one of unparalleled proportions in modern-day Britain, in which senior government figures were prominent. Second, the government, following the latest of these decisions, which it comprehensively lost, quickly announced that there would be a fundamental judicial review (which has now been completed).³⁸ Despite the review recommending only minimal changes, the government announced that it would nevertheless be proceeding with more radical ‘reforms’ aimed at limiting judicial review in the future.³⁹ Third, in December 2020, the government announced a review of the HRA, with terms of reference seemingly indicating a desire to reduce protections in various respects.⁴⁰ Fourth, the UK Internal Market Bill, published in September 2020, contained a provision⁴¹ (subsequently withdrawn because of opposition in the House of Lords) which equipped government with powers to breach international law, including the WA.

13.8 Conclusion

Pre-Brexit, the CFR was something of a sleeping beauty in the UK legal system. Post-Brexit, will it experience an unexpected and perhaps unintended reawakening? It seems unlikely that the CFR will evaporate entirely from UK law, whether because of its influence in the context of ‘retained EU law’ or because of its importance in respect of the Protocol, or both. Intriguingly, the CFR could conceivably be of greater future influence in the UK than it was pre-Brexit. But is it destined to fade or flourish? The extent of the CFR’s post-Brexit influence in the UK will depend significantly on three factors. The first is the innovation and creativity of UK lawyers and judges, which were especially evident as regards the ECHR in the pre-HRA era of the 1980s and 1990s. The second is the extent to which disputes that eventually arise for adjudication before the CJEU and the international arbitration panel are decided in part by reference to the CFR. The third is the future rule-of-law culture in the UK in which the CFR will be attempting to operate. Effective human rights protection, particularly in a country which has no written constitution, will be heavily dependent on a strong rule-of law-culture. What the future holds for this culture in the UK is uncertain, but it is a matter of legitimate concern, not least because of the cold climate in which the CFR will operate in those situations where it applies. To change the metaphor, there are signs that the CFR will find itself swimming in murky waters, ever willing but maybe floundering.