Brexit

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The Human Rights Consortium has worked throughout the Brexit process to ensure that human rights and the retention of safeguards and protections contained in EU law remains central to discussions on Northern Ireland. While the Consortium did not take a position on Brexit, the close monitoring of potential human rights implications for Northern Ireland of exiting the EU was and continues to be an essential aspect of our work. 

Much of the Consortium’s work on Brexit is shaped by our Brexit and Human Rights Working Group, containing over 50 different organisations interested in or working on Brexit through a human rights lens. If you’re a member of the Consortium and want to work with us on Brexit and human rights issues, [contact us] to join the Working Group. 

Brexit and Human Rights

Windsor Framework/Protocol on Ireland and Northern Ireland

You might’ve heard about the impacts of the Protocol and the Windsor Framework on Northern Ireland’s trading position between the Republic of Ireland and Great Britain. These arrangements are also important, however, because they contain specific commitments from the UK Government to not diminish rights in Northern Ireland as a result of Brexit. 

Our work on the Ireland/Northern Ireland Protocol focused particularly on the human rights protections contained therein, namely the Article 2 commitment made by the UK Government to ensure “no diminution of rights in Northern Ireland as a result of Brexit”, as well as their commitment to keep pace with specific EU directives focused on gender equality, disability protection, and employment discrimination. 

We opposed the UK Government’s unilateral action to rip up the Protocol through their Northern Ireland Protocol Bill, and have worked through various channels on the UK and EU sides to encourage a joined-up approach to negotiations through the established processes for dispute resolution. In the lead up to the announcement of the Windsor Framework, we published our 5 Tests for any new agreement on the Protocol, exploring the vital Article 2 ‘non-diminution’ and ‘keeping pace’ commitments and how a new agreement could potentially lead to them being undermined. 

Through the Brexit and Human Rights Working Group, and our own direct lobbying, we work to ensure that the Article 2 ‘non-diminution’ commitment is upheld by the UK Government and we continue to monitor UK legislation for potential breaches. We have identified breaches in several Bills pursued by the Government in recent years, including the ill-fated Bill of Rights Bill, the Retained EU Law Act and most recently the Illegal Migration Act. 

You can find our briefings, articles and resources on the Windsor Framework, its predecessor the Protocol and Article 2 scrutiny below:

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Trade & Co-Operation Agreement

Similarly to the Protocol/Windsor Framework, but more broadly applicable to the wider UK, the Trade & Cooperation Agreement created a framework for the future trading relationship between the UK and EU to take shape. It also contains important human rights protections, namely the “level playing field” provisions. 

Throughout the negotiations on EU-UK exit and future trading arrangements, the Consortium consistently warned against the risk of a ‘cliff edge’ of rights posed by a so-called ‘hard Brexit’. The very real risk of exiting the EU without a deal to protect the rights and standards gained through EU membership, enabling and encouraging further regulatory divergence, created significant concerns across civil society in Northern Ireland. 

We worked to ensure that the voice of civil society was present and incorporated in the negotiations, and welcomed the small protections assured by the ‘level playing field’ provisions of the eventually agreed Trade and Cooperation Agreement. These ‘level playing field’ provisions create a baseline of rights and protections in areas including labor rights, workplace safety, and environmental protection, from which neither the UK nor the EU can prorogue. 

Alongside the legally enforceable commitments in Article 2 of the Windsor Framework/Protocol, the TCA contains imperfect but essential protections that have been used as an advocacy tool domestically to push back on the UK Government’s regression of rights and regulations. 

You can read our full briefing on the human rights provisions of the Trade and Cooperation Agreement below. 

Retained EU Law (Revocation and Reform) Act

The REUL Act was the UK Government’s approach to reforming EU legislation following its wholesale retention as part of the Withdrawal Agreement. The Act confers a broad swathe of powers onto ministers and limits the ability of Parliament to scrutinise legislation being revoked. While the Act isn’t ideal, the original Bill was a whole lot worse…

The Retained EU Law (Revocation and Reform) Act, originally touted as the ‘Brexit Freedoms Bill’, had the potential to create a bonfire of EU rights and protections in the name of reducing ‘red tape’ and ‘regulatory burdens’. The Act as adopted contains a wide range of powers enabling Government to more easily remove, replace, and update Retained EU Law (REUL) without parliamentary scrutiny, while the original draft of the Bill would have placed the entire spectrum of retained EU law under a sunset clause which would cause it to expire at the end of 2023 unless preserved by a UK Government Minister. 

While this “sunset clause” was significantly pared back to including around 400 pieces of EU law as oppose to the original 4000+, the REUL Act has significant impacts for a wide gamut of EU protections, for the devolution settlement, and for the web of international agreements – including the Windsor Framework/Protocol and the Trade and Cooperation Agreement – governing the UK’s exit from the EU. 

You can read our briefing on the REUL Act and explore the extensive work undertaken by our colleagues in the Civil Society Alliance below. 

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Electronic Travel Authorisation & The Border

Alongside Brexit came a renewed effort from the UK Government to develop its own, more restrictive, migration policy. This included the imposition of a new system of Electronic Travel Authorisation (ETA), the passage of increasingly restrictive asylum and refugee policy, as well as a lack of consideration of the impact this would have on the border in Ireland. 

Our colleagues in the Committee for the Administration of Justice (CAJ) and across migrant and refugee support organisations have worked extensively on the UK Government’s ‘Electronic Travel Authorisation’ (ETA) proposals, analysing and resisting the potential impacts of this scheme on free movement on the island of Ireland. 

CAJ published a briefing in 2020, responding to a UK Government white paper outlining their planned introduction of ETA, analysing the potential impact on the land border and the Common Travel Area. They found a wide range of potential concerns, particularly for non-visa nationals residing in the Republic of Ireland potentially being caught up in this system. 

These concerns were reiterated again in their briefing on the ETA provisions of the Nationality and Borders Bill (now Act) and they have subsequently released an FAQ on how ETA will work following some changes made in response to their and others’ concerns. 

Impacts on the border and the Common Travel Area, however, do not end with the Nationality and Borders Act. The Government’s recently proposed Illegal Migration Bill contains provisions which could massively undermine free movement on the island of Ireland, again presenting specific issues for non-visa nationals residing in the Republic of Ireland. CAJ published a briefing on the potential impacts on the land border, which we incorporated into our wider analysis of the Bill in its entirety and its impacts in Northern Ireland. 

Pre-/Post-Brexit Analysis, “No to No Deal” and the EU-UK Withdrawal Agreement

The Consortium undertook a significant amount of work during and following the Brexit referendum to resist the potential regression of rights that could occur as a result of the UK’s exit from the EU. From the looming threat of a ‘No Deal’ Brexit to the ill-fated ‘backstop’, you can read more on our work over the Brexit process here. 

l Agreement was taking shape (or taking many different shapes over the years since 2016) we consistently conducted research and analysis to best inform our members and the public of the implications of any agreement, or lack thereof, for human rights. We launched our “No to No Deal” campaign alongside a coalition of organisations across civil society, warning of the dangers of a “No Deal” outcome for human rights in Northern Ireland. 

We also conducted analysis and developed submissions seeking to shape how rights would look in a post-Brexit Northern Ireland. We consistently warned of the vast swathe of rights at risk from the UK’s exit from the EU, and pushed for strong human rights protections in any post-Brexit arrangements. 

When the original EU-UK Withdrawal Agreement was announced, alongside “The Backstop”, we conducted analysis on what this might look like in Northern Ireland and the impact it could have on rights and equality. 

You can find our pre-Brexit analysis of the potential threat posed to human rights by Brexit and the loss of EU protections before and during the referendum campaign below.

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