In this post, Tasneem Ghazi of King’s College London summarises the findings of a report commissioned by the Equality Commission for Northern Ireland on adhering to Article 2 of the Northern Ireland Protocol. The Report also includes a literature review on parliamentary scrutiny in Westminster more generally.
Article 2(1) of the Ireland/Northern Ireland Protocol to the UK’s Withdrawal Agreement with the EU creates an obligation on the governments of the UK and Northern Ireland to ensure, broadly speaking, the non-diminution of rights protected by the Belfast/Good Friday Agreement of 1998. Article 2(2) entrusts the task of oversight to the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland. In an explainer published in 2020, the UK government committed to establishing a “dedicated mechanism”: a framework to ensure legislative compliance with Article 2. However, as argued by Paul Evans, Alexander Horne and I, in a report commissioned by the Northern Ireland Equality and Rights Commission, this is hardly straightforward.
Article 2 entails a requirement to ensure “no diminution of rights safeguards and equality of opportunity” with respect to six EU Directives listed in Annex 1 to the Protocol. Accordingly, the UK must ensure that none of the existing relevant protections and rights are diminished after the UK left the EU; and, perhaps more challengingly, there is a requirement for UK law to “keep pace” with developments in EU law concerning six directives that might affect the rights of citizens in Northern Ireland.
The first aspect of policing non-diminution requires the scrutiny of all existing primary and secondary legislation made in the UK and Northern Ireland to ensure it does not diminish the protected rights of those in Northern Ireland. Our report suggests that this complex task will require various existing committees in Westminster and Stormont to exercise selective (rather than comprehensive scrutiny). The “dedicated mechanism” will need to focus the attention of legislators on the areas of proposed primary and secondary legislation that raise questions about compliance with Article 2, and that in doing so, it will need to work with the drafters of proposed laws (upstream) and prospective scrutineers. Various parliamentary committees already have a stake in this, including the Northern Ireland Executive Office, the UK Joint Committee on Human Rights, the Joint Committee on Statutory Instruments, the House of Lords European Affairs Committee/NI Protocol Sub-committee.
The second aspect of “keeping pacing” requires monitoring all future rights created by the EU. This task will evolve over time, and its boundaries are unclear. It encompasses keeping track, not only of EU legislation amending or replacing the six directives listed in Annex 1 to the Protocol, but also any EU legislation which may indirectly affect the rights of residents in Northern Ireland.
These obligations are unique, since they engage with all legislation created by the UK and the EU. They encompass five different sources of law: primary and secondary legislation created in the UK and NI, and EU law. The volume and complexity of the task means that no single committee can be expected to shoulder the duty of ensuring compliance with Article 2. The overlap between different existing committees in Westminster and Stormont also creates the challenge of ensuring that nothing slips through the cracks.
The Dedicated Mechanism has a primary responsibility to coordinate between committees in Westminster and Stormont that have a stake in ensuring compliance with Article 2. This includes developing practices and protocols on information sharing and the development of “early-warning” mechanisms with the UK government, the Northern Ireland Executive and the EU Commission.
The Dedicated Mechanism will need strong contacts and adequate resources to ensure that legislators have the information they need to deliver on their duty of upholding the obligations of Article 2. This system of communication could be ensured through Memorandums of Understanding between the relevant parliamentary committees.
We note that, in general, there sems to be a desire in Westminster to leave the duty of ensuring compliance with Article 2 mainly with the Northern Ireland Executive and the Northern Ireland Assembly.
Our report suggested various procedural reforms that would help the Dedicated Mechanism and that would ensure that institutions in Stormont assume political responsibility for enforcing Article 2. These include:
- Reforming Standing Order 30(6) of the Northern Ireland Assembly, so that the Northern Ireland Executive Committee, alongside other parts of the Dedicated Mechanism are provided with the necessary information concerning any Article 2 obligations.
- Creating a new process so that any reports by the Dedicated Mechanism are considered by the Executive and Assembly. NI Standing Orders 34 or 35 could be amended to ensure this.
- The explanatory memoranda accompanying legislation in Northern Ireland must address equality and human rights issues, or more specifically the obligation to ensure the “non-diminution” of rights under the Protocol. Standing Order 41 may be amended to add this requirement to the existing list of tests.
- Creating a memorandum of understanding between the Dedicated Mechanism and the Assembly’s Examiner of Statutory Rules to facilitate dialogue on Article 2 issues.
The nature of the obligations created by Article 2 means that overseeing compliance cannot be left solely the responsibility of the Northern Ireland institutions. A coordinated effort is needed in Stormont and Westminster. This can and should be facilitated by the “dedicated mechanism”, but the scale of the task is forbidding. The division of responsibilities for legislative scrutiny in the two Houses of Westminster, which involves many different committees in addition to the plenary stages, makes the task all the more complex. Our report sketches out how the “dedicated mechanism” could best fulfil its functions. But as with any aspect of legislative scrutiny, much of this depends on the UK government’s good faith in following through its commitments to providing the mechanism with adequate resources.
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