Publications

NIHRC and ECNI Submission to ‘Retained EU Law: Where next?’ - an inquiry by the European Scrutiny Committee

Date produced: April 2022

Summary recommendations/messages

• The Commissions recommend that any detailed proposals to amend the categorisation or treatment of what is currently ‘retained EU law’ should include safeguards to prevent any breach of human rights and equality obligations deriving from the UK EU Withdrawal Agreement, including Protocol Article 2.
• The Commissions recommend that the Committee scrutinises proposed changes to rules around interpretation and application of EU-derived domestic law, for compliance with Protocol Article 2.
• The Commissions recommend that amendment or repeal of Retained EU Law, affecting human rights and/or equality protections in Northern Ireland, should be progressed on the basis of continuing adherence to the UK constitutional convention of providing for policy change via the primary legislative process, with technical and operational detail addressed in subordinate legislation. This applies to amending or repealing legislation that emanates from either Westminster, as regards laws that impact on rights relating to human rights and equality in Northern Ireland, or from the NI Assembly.
• The Commissions advise that the UK Government has made internationally binding commitments in relation to the supremacy of the UK EU Withdrawal Agreement and EU law made applicable under it, which are central to the enforcement of the human rights and equality commitment under Protocol Article 2. The Commissions recommend that no change be made which would weaken Article 2, its enforceability or oversight mechanisms.
• The Commissions advise that, in line with Article 13 of the Protocol, the Annex 1 equality directives will continue to be informed by future CJEU rulings and, to the extent that such rulings evolve general principles of EU law, the EU Charter of Fundamental Rights and the relevant EU Treaty provisions, these will continue to have relevance in NI.
• The Commissions advise that the UK Government is bound by Protocol Article 2 in respect of reserved, excepted and transferred matters relating to NI.
• The Commissions recommend that, irrespective of the categorisation of retained EU law, particular caution be exercised in amending or repealing EU-derived domestic legislation in areas which overlap transferred and reserved or excepted matters relating to NI.
• The Commissions recommend that Explanatory Notes to any legislation, primary or secondary, either passed by Westminster or the NI Assembly, which amends or repeals legislation, including retained EU law, and that impacts on human rights or equality protections in NI, should indicate the consideration given to compliance with Protocol Article 2.