Publications

Submission the Northern Ireland Scrutiny Committee Inquiry on Article 2 of the Protocol/Windsor Framework

Summary of recommendations/messages

The Commission is concerned that the UK Supreme Court judgment in Dillon along with UK Government statements and actions, have resulted in a significant departure from what was negotiated and publicly expressed by Government and understood by stakeholders in relation to Windsor Framework Article 2.

The NIHRC recommends that the Committee affirm that human rights and equality were central to the Belfast (Good Friday) Agreement; that human rights and equality standards in NI lagged behind Great Britain and Ireland before Brexit and continue to do so; that EU law underpinned most of what limited progress was made on human rights and equality in NI since 1998; that this is the context that resulted in the negotiation of Windsor Framework Article 2; and that it was designed to protect the Belfast (Good Friday) Agreement by preventing a reduction in EU-derived human rights and equality standards in NI.

The NIHRC recommends that the Committee explore the ambit of the Rights, Safeguards and Equality of Opportunity chapter of the Belfast (Good Friday) Agreement and how it is understood by the two Governments.

The NIHRC recommends that the Committee explore the risk of inferring from ambiguous references in the Dillon judgment that the Rights, Safeguards and Equality of Opportunity chapter of the Belfast (Good Friday) Agreement should be interpreted in a manner that confines the rights and safeguards to those concerned with ending the communal/ sectarian conflict.

The NIHRC recommends that the Committee ask the Secretary of State for NI on what basis, and at what point, the UK Government decided to interpret the rights protected by Windsor Framework Article 2 as confined to those concerned with ending the sectarian conflict. This should include consideration of how this interpretation can be reconciled with, for example:

• the commitment to a “new beginning” the Declaration of Support to the Belfast (Good Friday) Agreement;
• the commitment to the rights of “everyone in the community” in the Rights, Safeguards and Equality of Opportunity chapter of that Agreement;
• the rights ‘affirmed in particular’ in that chapter, such as the right to equal opportunity regardless of disability;
• universality of rights and the living instrument doctrine; and
• the EU interpretive obligations arising in relation to Windsor Framework Article 2 and the EU equality directives in Annex 1.

The NIHRC recommends that the Committee ask the Secretary of State for NI when the UK Government discussed, and what it agreed, with its co-guarantor of the Belfast (Good Friday) Agreement, the Government of Ireland, on the scope and interpretation the Rights, Safeguards and Equality of Opportunity chapter.

The NIHRC recommends that the Committee ask the Secretary of State for NI when the UK Government discussed, and what it agreed, with its EU treaty partner on the scope and interpretation of Windsor Framework Article 2, including the UK Government view that the rights protected by Article 2 are confined to those concerned with ending the sectarian conflict in NI.

The NIHRC recommends that the Committee note that even if the Rights Safeguards and Equality of Opportunity chapter of the Belfast (Good Friday) Agreement is understood as a broad-based endorsement of the full range of UK human rights and equality commitments, Windsor Framework Article 2 is necessarily constrained by the limited range of EU law which affects human rights and equality and applies only to those measures which were binding on the UK before Brexit.

The NIHRC recommends that the Committee explore the origin, development and status of the Explainer document on Windsor Framework Article 2, published by the UK Government in 2020; enquire what engagement the UK Government undertook in developing the document, particularly with the EU and the Government of Ireland; and explain its rationale for withdrawing it and what, if any, engagement it undertook prior to doing so.

The NIHRC recommends that the Committee consider and affirm the importance and value to the public of human rights and equality protections provided in Windsor Framework Article 2.

The NIHRC recommends that the Committee explore with the UK Government the methods by which ambiguities and gaps in the Dillon judgment may be addressed to put Windsor Framework Article 2 on a clear and firm footing, consistent with the expectations of its treaty partner and stakeholders and thereby reduce the risk of litigation and international dispute. Diplomatic options include seeking agreement with the EU on a Decision by the UK-EU Joint Committee on the scope and direct effect of Windsor Framework Article 2 or a joint version of the Explainer document, either of which would automatically be incorporated into UK domestic law by virtue of section 7A, EU (Withdrawal) Act 2018.

The NIHRC recommends that the NI Executive roll out effective training on Windsor Framework Article 2 to all relevant officials and act promptly to ensure guidance on policy and legislative development is updated to include advice on detailed consideration of Windsor Framework Article 2.

The NIHRC recommends that the NI Executive ensure that Explanatory Memoranda and impact assessments set out detailed consideration of compliance with Windsor Framework Article 2. This should include reviewing all provisions of EU law engaged under Windsor Framework Article 2 relevant to the legislation or policy being assessed, including EU law which underpins relevant ECHR rights.

The NIHRC recommends that, to facilitate compliance with the dynamic alignment obligation pursuant to Articles 2 and 13 of the Windsor Framework, the Executive Office, the Department for Communities and other relevant departments, publish an annual report monitoring any proposed changes by the EU to the EU equality directives listed in Annex 1 and relevant CJEU case law.

The NIHRC recommends that the Explanatory Notes to legislation applying to NI address Windsor Framework Article 2, in line with Cabinet Office guidance.

The NIHRC recommends that the Human Rights Memoranda to Bills which apply to NI be expanded to include detailed consideration of compliance of the Bill with Windsor Framework Article 2, including relevant EU minimum standards.  This should include reviewing all provisions of relevant EU law engaged under Windsor Framework Article 2, including EU law which underpins relevant ECHR rights.

The NIHRC recommends that the Committee urges the UK Government to undertake and publish early and detailed technical analysis of proposed EU law developments, including those of relevance to Windsor Framework Article 2, to facilitate effective parliamentary scrutiny of those developments.

The NIHRC recommends that the Committee consider whether there is early, detailed and effective scrutiny of proposed EU law developments relevant to the dynamic alignment obligations, including under Windsor Framework Article 2, within the UK parliamentary committee structure.

The NIHRC recommends that, to ensure effective embedding of Windsor Framework Article 2 in policy and processes, UK Government departments roll out effective training on Article 2 to all relevant officials.