Even after 2020 Northern Ireland discrimination law must continue to comply with the EU Framework Employment Directive, including future amendments to it.
Under 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, even after the end of 2020. This is under Article 2(1) of the 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 Withdrawal Agreement (full text on gov.uk) between the UK and EU
Article 2(1) is on page 297 of the Withdrawal Agreement. Annex 1 is on page 325. One of the directives listed in Annex 1 is the Framework Employment Directive which covers disability discrimination. 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…”.
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 which says that a reference to a Union act is to be read as referring to that act “as amended or replaced”.)
- 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: New human rights and equality oversight roles begin (pdf, equalityni.org), 4th January 2021 and Equality and Human Rights Protections post-Brexit (pdf, equalityni.org), 5th Dec 2020.
- 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.