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Brexit: disability discrimination in Northern Ireland

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Last updated 18th April 2021 (part update 16th January, 2024).

Even after 2020 Northern Ireland discrimination law must continue to comply with the EU Framework Employment Directive, including future amendments to it.

Protocol Article 2

Under a protocol to the Withdrawal Agreement between the UK and EU, Northern Ireland discrimination law must continue to comply with the Framework Employment Directive, including any future amendments to it and any future EU court cases on it. That applies even after the end of 2020. The provision stating this is Article 2(1) of the Agreement’s Protocol on Ireland/Northern Ireland which says:

The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the [Belfast Agreement 1998] entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union, including in the area of protection against discrimination, as enshrined in the provisions of Union law listed in Annex 1 to this Protocol, and shall implement this paragraph through dedicated mechanisms.
Article 2(1) of the EU-UK Withdrawal Agreement: Protocol on Ireland/Northern Ireland (legislation.gov.uk).

Some notes on Article 2(1):

  • One of the directives listed in Annex 1 to the Protocol is the Framework Employment Directive which covers disability discrimination.
  • Article 13(3) of the Protocol says that unless otherwise provided, any reference in the Protocol to an EU act (such as this Directive) is to be read as referring to that EU act as amended or replaced. It says this is so notwithstanding Article 6(1) of the main Withdrawal Agreement under which generally references to EU law are to be understood as references to that law applicable on the last day of the transition period (ie the end of 2020). So under Article 13(3), amendments to and replacements of the Framework Employment Directive after the end of 2020 seem to be included in Article 2(1).
  • The part of the Belfast Agreement to which Article 2(1) refers includes “the right to equal opportunity in all social and economic activity, regardless of … disability…”.

Rights etc under Protocol are part of UK law

Without more, the Withdrawal Agreement would just create duties etc in international law as between the EU and UK. However s.7A EU (Withdrawal) Act 2018 provides that nearly all rights and obligations etc under the Withdrawal Agreement (which includes the Protocol) are to be recognised and available in UK domestic law, so far as required by Article 4 of the Withdrawal Agreement (below). S.7A(3) even says that all UK legislation is to be read and has effect subject to that,

Article 4 of the Withdrawal Agreement says for example that individuals or companies must be able to rely directly on provisions in the Agreement which meet the conditions for direct effect under EU law.

Para 29 of the Explainer Document, below was quoted by the NI High Court as showing the UK government accepted the following view of the court on the effect of s.7A:

“Thus, it will be seen that Article 2 [of the NI Protocol] has direct effect and legal persons such as the applicant in this case are able to rely on it in domestic courts.”
Re SPUC Pro-Life (bailii.org) NIQB, 2022, at para 77

Explainer document

In August 2020 the UK government published an Explainer document (gov.uk) about this Article 2(1) commitment and how it will be enforced. The explainer says among other things:

  • At paragraph 12: As well as Northern Ireland law continuing to comply with the directives in their current form, the UK government has also committed to update Northern Ireland law to reflect any future changes in EU law which give improved protection. “This will ensure that Northern Ireland will not fall behind minimum European standards in anti-discrimination law.” (Presumably this commitment is based on Article 13(3) of the Protocol as explained above.)
  • At paragraph 16: The Article 2(1) commitment will not lead to the direct application of EU law in Northern Ireland. “There will be no direct recourse to the EU Court of Justice (CJEU) in enforcing the commitment, and neither the European Commission nor any other body of the EU institutions will have a direct role in supervising the commitment.”
  • Paragraph 16 goes on to set out how UK courts must or may follow EU Court (CJEU) decisions after the end of 2020. I suggest that in the light of the Northern Ireland Protocol (including Article 13(2) on applying case law of the EU Court), UK courts interpreting Northern Ireland discrimination legislation will be all the more likely to exercise any discretion in favour of applying EU Court case law, even where the EU Court decision was after the end of 2020.
  • Paragraphs 17 to 26 address the “dedicated mechanism” for implementing the Article 2(1) commitment. This is to be a framework “comprising dedicated monitoring, advising, reporting and enforcement activities” of the Northern Ireland Human Rights Commission (NIHRC) and the Equality Commission for Northern Ireland (ECNI). Also these bodies will work together with the Irish Human Rights and Equality Commission (IHREC) on issues that have an island of Ireland dimension. There are ECNI Press Releases on this in the Links below.
  • Paragraphs 27 to 29 talk about possible legal enforcement of the Article 2(1) commitment in the domestic courts (not in the EU Court), in particular through judicial review. “Domestic courts” would include particularly the Northern Irish courts. For example para 29 says:

“… Given that, under Article 4 of the Withdrawal Agreement, incorporated into domestic law through the EU (Withdrawal Agreement) Act 2020, all provisions in the Withdrawal Agreement and the provisions of Union law that it makes applicable in the UK have the same legal effect in the UK as in the EU and its Member States, individuals will also be able to bring challenges to the Article 2(1) commitment directly before the domestic courts.” (my emphasis)
Note: EU (Withdrawal Agreement) Act 2020 inserted s.7A EU (Withdrawal) Act 2018, above.

This para 29 of the Explainer Document was quoted by the NI High Court as showing the UK government accepted the following view of the court on the effect of s.7A (above):

“Thus, it will be seen that Article 2 [of the NI Protocol] has direct effect and legal persons such as the applicant in this case are able to rely on it in domestic courts.”
Re SPUC Pro-Life (bailii.org) NIQB, 2022, at para 77

See also Brexit, EU law and disability discrimination under Equality Act 2010.

Retained EU Law Act 2023 (‘Brexit Freedoms Bill’)

The following discusses to some extent the effect in Northern Ireland of the Retained EU Law (Revocation and Reform) Act, 2023 (REUL Act).

The main Northern Ireland equality legislation on disability seems unaffected by the revocation of listed EU-based regulations in the REUL Act, so this legislation will continue after 2023:

  • The Disability Discrimination Act 1995 was never affected because it is an Act of Parliament.
  • Also the Special Educational Needs and Disability (Northern Ireland) Order 2005, SR 2005/1117 (Education: disability discrimination in Northern Ireland) is not listed in Schedule 1 as one of the regulations revoked by the REUL Act. (Even under the original Bill, I don’t think it would have been affected by the sunset provisions.)

As to how far NI courts (or the Supreme Court) should continue to apply EU law and cases in relation to this disability discrimination legislation, the REUL Act does not repeal s.7A EU (Withdrawal) Act 2018 which gives the Northern Ireland Protocol effect in UK law (above Rights etc under Protocol are part of UK law). As discussed at that link, the Protocol says NI law should continue to comply with the Framework Employment Directive, even after 2020. The fact that s.7A continues should at least make it more likely that NI (and higher) courts would continue to follow EU law on this NI legislation. However these issues, including whether NI courts should continue to apply the Marleasing principle, will be for the courts to decide (perhaps taking into account any steps taken under the “dedicated mechanism” in response to changes made by the REUL Act).

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