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Brexit: disability discrimination in Northern Ireland

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Last updated 22nd June 2022 (part update 27th November, 2025).

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

Windsor Framework, Article 2

Under what’s now called the Windsor Framework, 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 probably 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 Windsor Framework:

2(1) 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: Windsor Framework (legislation.gov.uk). The Windsor Framework was originally called the Protocol on Ireland/Northern Ireland, but its name was changed from 24 March 2023, by Joint Declaration No 1/2023. The first link does not seem to have been updated for later amendments to the Protocol/Framework, including the change of name, but I don’t think Article 2(1) has been amended.

Some notes on Article 2(1):

  • One of the directives listed in Annex 1 to the Windsor Framework is the Framework Employment Directive which covers disability discrimination.
  • Article 13(3) of the Windsor Framework says that unless otherwise provided, any reference in the Windsor Framework to an EU act (such as the Framework Employment Directive) is to be read as referring to that EU act as amended or replaced. The “Stormont Break” added in Article 13(3a) seems not to apply to the Framework Employment Directive as the latter is not a Union act “covered by this paragraph”, as set out in the final sub-paragraph.
  • Article 13(2) of the Windsor Framework says provisions of the Windsor Framework referring to EU law “shall in their implementation and application be interpreted in conformity with the relevant case law of the Court of Justice of the European Union”. This is not very clearly worded, but is probably intended to include a requirement that directives (including the Framework Employment Directive) with which Northern Ireland must comply are interpreted in line with EU case law.
  • The part of the Belfast Agreement entitled “Rights, Safeguards and Equality of Opportunity” includes “the right to equal opportunity in all social and economic activity, regardless of … disability…”.

Rights etc under Windsor Framework 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 liabilities etc under the Withdrawal Agreement (which includes the Windsor Framework) are to be “recognised and available” in UK domestic law and “enforced, allowed and followed accordingly”, 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.

It has been held that this can require a UK court even to disapply a UK Act of Parliament in Northern Ireland, similarly to when the UK was a member of the EU:

Re Northern Ireland Human Rights Commission (bailii.org), NI High Court, [2024] NIKB 35
The High Court in Northern Ireland disapplied a number of provisions in the Illegal Migration Act 2023, in respect of Northern Ireland. It found they were in breach of article 2 of the Windsor Framework.

Read together, said the court, Article 4 of the Withdrawal Agreement and s.7A of the Withdrawal Act 2018 were juridically aligned to the previous approach to the supremacy of EU law under the European Communities Act 1972, when the UK was a member of the EU. [§175, §50-60]

I’m not sure if there any cases on it, but I think it’s fairly likely that in view of this, based on s.7A EU (Withdrawal) Act 2018, Northern Ireland courts would continue to apply the Marleasing principle to interpret disability discrimination legislation in conformity with EU law as far as possible. If no such interpretation was possible, it seems direct effect could be claimed against a public body.

“Bervidi” is a post-Brexit decision of the EU court on reasonable adjustments that is inconsistent with the wording of Northern Ireland’s DDA 1995 (and of the Equality Act 2010 in Great Britain), and may test how EU law is now applied in Northern Ireland:

Bervidi, EU Court of Justice, 2025
The EU Court of Justice held that under the EU Framework Employment Directive, the duty to make reasonable adjustments can apply in relation to someone else’s disability, at least as regards a parent seeking adjustments from her employer to care for her disabled child. (The EU court held the same for indirect discrimination, which is not in the DDA 1995 at all.)

Explainer document

In August 2020 the UK government published an Explainer document (gov.uk) about this Article 2(1) commitment and how it would be enforced. The explainer said 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 Windsor Framework 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. When a UK court is considering the interpretation of any of the directives listed in Annex 1 [including the Framework Employment Directive], this will be done in conformity with any relevant case law of the CJEU…” The CJEU is the EU court.
  • Paragraph 16 goes on to summarise UK-wide domestic rules (as they were before REUL Act 2023) on how far UK courts may or must follow EU Court (CJEU) decisions after the end of 2020. However I suggest that in the light of s.7A Withdrawal Act, courts in Northern Ireland cases may well give much more weight to EU law and EU court decisions than is required by those rules: above Rights etc under Windsor Framework are part of UK law.
  • Paragraphs 17 to 26 address the “dedicated mechanism” for implementing the Article 2(1) commitment. This is 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). 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 some 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.

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