Equality and Human Rights after Brexit, A Short Guide.

A Short

Guide

Equality and Human

Rights after Brexit:

The UK Government’s commitment under

the Windsor Framework

Article 2 (1) of the Windsor Framework

EQUALITY

HUMAN

RIGHTS

Introduction

Under the EU/UK Withdrawal

Agreement, the UK

Government has committed,

in Article 2 (1) of the Windsor

Framework, to ensuring that

certain equality and human

rights in Northern Ireland will

continue to be protected

after Brexit.

Set out below is further

information on that

commitment, the right of

individuals to challenge an

alleged breach of the UK

Government’s commitment

and how the Equality

Commission and the

Northern Ireland Human

Rights Commission can

assist individuals who wish to

make such a challenge.

3Equality and Human Rights after Brexit

EQUALITY

HUMAN

RIGHTS

The UK Government’s

commitment to

equality and human

rights after Brexit

The UK Government has

committed, in Article 2 of the

Windsor Framework, to ensuring

that the protections currently in

place in Northern Ireland

regarding the rights, safeguards,

and equality of opportunity

provisions, set out in the chapter

of the same name in the Belfast

(Good Friday) Agreement, are

not reduced as a result of Brexit.

The UK Government also

committed in the Windsor

Framework to ensuring that

certain equality laws in Northern

Ireland will keep pace with any

future changes to the EU equality

laws which are set out in Annex 1

to the Windsor Framework.

This commitment is a recognition

of the importance and centrality

of rights and equality protections

in the Belfast (Good Friday)

Agreement and of the fact that

this Agreement has underpinned

the peace process here.

This commitment applies to

Northern Ireland. Everyone who is

protected by Northern Ireland law

is covered by this commitment

irrespective of whether the law

has been passed by the Northern

Ireland Assembly or the UK

Parliament.

A Short Guide

The rights covered by the commitment

The commitment in Article 2 of the Windsor Framework applies to

the rights, safeguards, and equality of opportunity provisions set

out in the chapter of the same name in the Belfast (Good Friday)

Agreement, which include:

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 chose one’s place of residence

The right to equal opportunity in all social and economic

activity 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

The right of victims to remember as well to contribute to a

changed society

Respect, understanding and tolerance in relation to linguistic

diversity

The need to ensure that symbols and emblems are used in a

manner which promotes mutual respect rather than division

me of these rights, as set

out on the previous page,

are underpinned by EU anti-

discrimination laws which protect

against discrimination on the

grounds of: gender; racial or ethnic

origin; religion or belief; disability;

age; sexual orientation; and which

promote equal treatment.

These EU laws cover areas such

as employment, access to goods

and services, and social security,

and are set out in Annex 1 to

the Windsor Framework, and are

listed in Appendix 1 of this

booklet.

There are also other EU laws

which are relevant to the

protection of these rights. These

include EU laws such as the

Parental Leave Directive, Victims’

Directive and Pregnant Workers’

Directive, as well as speciﬁ

measures aimed at protecting the

rights of disabled people.

This commitment is binding on the

UK Government and Parliament,

and the Northern Ireland

Executive and the Assembly, as a

matter of international law.

All the provisions in the

Withdrawal Agreement, including

the UK Government’s

commitment under Article 2 of

the Windsor Framework, are now

contained in UK law.

6 A Short Guide

The role of the Equality

Commission and the

Northern Ireland Human

Rights Commission

To ensure that the UK Government

meets its commitment under

Article 2 of the Windsor

Framework, it created a

‘dedicated mechanism’

comprising of the Equality

Commission of Northern Ireland

and the Northern Ireland

Human Rights Commission.

The Commissions have been given

additional powers and

responsibilities to ensure that the

UK Government’s commitment

is met.

They are responsible for providing

advice to government and

monitoring, supervising, enforcing

and reporting on the ongoing

implementation of this

commitment.

Speciﬁcally, the Commissions’ new

powers and duties include:

Monitoring how the

commitment is implemented;

Reporting on its

implementation to the

Secretary of State for

Northern Ireland and The

Executive Oce;

Advising the Secretary of

State and the Northern Ireland

Executive of legislative and

other measures that must

be taken to implement the

commitment;

Advising the Northern Ireland

Assembly (or a committee

of the Assembly) whether a

Bill is compatible with the

commitment;

Promoting understanding and

awareness of how important

the commitment is;

Bringing or intervening in

legal proceedings in respect

of an alleged breach (or

potential future breach of the

commitment); and

Assisting persons in relevant

legal proceedings.

The Commissions can carry out

their powers and duties either

jointly or separately.

The Commissions will also work

with the Irish Human Rights and

Equality Commission (IHREC)

to provide oversight of, and

reporting on, rights and equalities

issues falling within the scope

of the commitment that have an

island of Ireland dimension.

Further, the Equality Commission,

the NI Human Rights Commission,

and the Joint Committee of

NI Human Rights Commission

and IHREC can directly raise

matters of relevance to how

the commitment is being

implemented with the Specialised

Committee on the Windsor

Framework.

Challenging a breach of

the Article 2 commitment

Individuals have the right to bring

legal actions before the domestic

courts if they consider that there

has been a breach, or a potential

future breach, of the UK

Government’s commitment under

Article 2 of the Windsor

Framework.

For example, this means that

if individuals consider that the

Northern Ireland Assembly, or the

Northern Ireland Executive, has

acted in a way that is incompatible

with the UK Government’s

commitment, they can challenge

those actions in domestic courts,

by taking a form of legal action

known as a ‘judicial review’.

Only the courts can decide

whether a breach of Article 2 of

the Windsor Framework has

occurred.

In order to show that there

has been a breach of the UK

Government’s commitment, there

must be evidence that:

the right, safeguard or

equality of opportunity

protection is covered by

the chapter of the same

name in the Belfast (Good

Friday) Agreement;

it was protected under

Northern Ireland law

on or before the end

of the Brexit transition

period, namely

31 December 2020;

the reduction in

rights occurred as

a result of Brexit.

8 A Short Guide

A failure by the UK Government

to ensure that Northern Ireland

equality laws keep pace with

any future changes that the

EU makes to update or replace

the EU equality laws set out

in Annex 1 to the Windsor

Framework, would also be a

breach of its commitments under

the Windsor Framework.

Enforcement powers

of the Commissions

Both Commissions have

additional powers to enforce the

UK Government’s commitment

under Article 2 of the Windsor

Framework and to ensure the

rights and equality protections

are upheld.

Both Commissions can:

Provide advice and assistance

to individuals

, including,

where appropriate, provide

support to individuals to bring

legal proceedings, where

they believe that the UK

Government’s commitment

has been breached;

Bring legal challenges or

intervene in legal cases, where

there is an alleged breach, or

potential future breach, of the

UK Government’s commitment,

where appropriate.

The Commissions can exercise

their enforcement powers and

duties jointly or separately. For

example, they have the power to

bring legal proceedings together

or in their own name.

9Equality and Human Rights aft

er Brexit

[1] The relevant legislation (Section 78 D (1) & (2) of the Northern Ireland Act 1998) refers to the power

of Commissions to assist ‘persons’ in legal proceedings.

Time limits for making

a complaint

There are strict

time limits for

lodging judicial

review proceedings

with a court.

A judicial review case for an

alleged breach of Article 2 must

be brought within 3 months

of the decision or action being

complained of taking place.

Please note that contacting

the Commissions or making an

application for assistance to

the Commissions for advice or

assistance does not constitute

issuing legal proceedings.

10 A Short Guide

Further information

For further information and

guidance on the UK Government’s

commitment under Article 2 of of

the Windsor Framework, or in

relation to contacting the

Commissions as regards an

alleged breach of the UK

Government’s commitment under

Article 2 of the Windsor

Framework, please see below:

Equality Commission for NI

www.equalityni.org/brexit

NI Human Rights Commission

www.nihrc.org/our-work/brexit

For additional information: NIO

(2020), Explainer: UK

Government commitment to no

diminution of rights, safeguards

and equality of opportunity in

Northern Ireland

https://www.gov.uk/

government/publications/the-

windsor-framework

Appendix 1: Equality Directives listed in Annex 1

to the Windsor Framework

The six EU Equality Directives listed in Annex 1 to the Windsor

Framework are:

Gender Goods and Services Directive (Gender): Directive 2004/113/EC of

13 December 2004 implementing the principle of equal treatment

between men and women in the a

ccess to and supply of goods and

services;

Recast Directive (Gender): Directive 2006/54/EC of the European

Parliament and of the Council of 5 July 2006 on the implementation of

the principle of equal opportunities and equal treatment of men and

women in matters of employment and occupation (recast);

Race Equality Directive (Race): Directive 2000/43/EC of 29 June

2000 implementing the principle of equal treatment between persons

irrespective of racial or ethnic origin;

Framework Directive (Religion and belief; age; sexual orientation; and

disability): Directive 2000/78/EC of 27 November 2000 establishing a

general framework for equal treatment in employment and occupation;

Equal Treatment Directive: Self-employment (Gender): Directive

2010/41/EU of the European Parliament and of the Council of 7 July

2010 on the application of the principle of equal treatment between

men and women engaged in an activity in a self-employed capacity and

repealing Council Directive 86/613/EEC;

Equal Treatment Directive: Social security (Gender): Directive

79/7/EEC of 19 December 1978 on the progressive implementation of

the principle of equal treatment for men and women in matters of

social security.

EQUALITY

HUMAN

RIGHTS

A Short

Guide

Equality and Human

Rights after Brexit:

The UK Government’s commitment under

the Ireland/Northern Ireland Protocol

Article 2(1) of the Protocol

Further information

For further information and guidance, please contact:

Equality Commission for NI

DMU@equalityni.org

028 9050 0600

Equality House,

7-9 Shaftesbury Square, Belfast, BT2 7DP

www.equalityni.org/brexit

NI Human Rights Commission

info@nihrc.org

028 9024 3987

4th Floor Alfred House,

19-21 Alfred Street, Belfast, BT2 8ED

www.nihrc.org/our-work/brexit

April 2021