EDF Gendering Brexit Blog series: How ‘Brexit’ Threatens Northern Irish Anti-Discrimination Law

Professor Dagmar Schiek, of Queen’s University Belfast, contributes this long read on Irish anti-discrimination law and Brexit for the Gendering Brexit Blog series.

The extensive blogging activities on the so-called ‘Brexit’ – a misnomer, because the UK government intends to withdraw Britain alongside Northern Ireland from the UK – have not yet exhausted its impact on anti-discrimination law in relation to Northern Ireland, which could actually be turned into opportunities if handled intelligently.

Generally, Brexit will have negative impacts on rights guaranteed by the EU Treaties and secondary legislation: while the EU Withdrawal Act 2018 retains EU Treaties except for the Charter of Fundamental Rights for the European Union and secondary law in the UK, it also empowers the government to change laws. In ending the European Court of Justice (ECJ)’s authority over retained EU Law, and specifying that there will be no ‘Francovich damages’ and that general principles of EU law will only have indirect effects, it specifically targets EU anti-discrimination law.

Protecting citizens from discrimination

This complex body of law protects citizens from discrimination on grounds of sex, ethnic or racial origin, religion and belief, disability, age or sexual orientation – partly through Treaty articles, but mainly through directives, requiring Member States to establish such bans in national legislation. The 1970s bans on sex discrimination in employment, dismissal, pay and social security (now, Directive 2006/54/EC and Directive 79/7/EC) were expanded in 2000 by directives banning discrimination on grounds of racial or ethnic origin (Directive 2000/43/EC) in employment, social security and social protection, health care, education, and access to and provision of goods and services.

A more limited directive required Member States to ban discrimination in employment on grounds of sexual orientation, religion and belief, disability and age (Directive 2000/78/EC), and Directive 2004/113/EC went some way to close the gap in protection from sex discrimination by outlawing sex discrimination in access to and provision of goods and services, but not in health care and education.

While directives generally lack direct horizontal effect, and thus do not bind business, the ECJ had strengthened anti-discrimination directives. Any legislation enabling discrimination in private contracts must be disapplied because the anti-discrimination directives only confirm general principles of European Union law (Schiek, 2010; 2006). Further, citizens can demand Francovich damages from their Member States if they suffer damages by discrimination due to insufficient implementation of those directives. The Withdrawal Act has been carefully drafted to avoid these effects of EU anti-discrimination law in the future, in areas where it matters most – in business.

Challenges in Northern Ireland

The situation in Northern Ireland, as always, has specific challenges.

In Northern Ireland anti-discrimination law precedes EU anti-discrimination law for a much longer time than in the UK at large: a legal ban on religious discrimination by the legislator and some other public authorities applied from 1920. (Dickson, 2018, p. 16:50; Collins, 2015) More recently, Northern Ireland has been praised as a “pathfinder in terms of introducing new ways to combat inequality”, (Hepple, 2014, p. 7) because its Fair Employment Act spearheaded positive duties for overcoming historic discrimination and exclusion of those categorised as nationalist/Catholic, requiring employers to keep track of the representation of nationalists/Catholics and unionist/Protestants.

However, Northern Ireland fell behind the rest of the UK in 2010: while Great Britain has a comprehensive Equality Act, Northern Irish anti-discrimination law remained a curious mix of Westminster Legislation and statutory orders, with no legislation passed in the Northern Ireland legislature (Stormont) – although, in accordance with the Good Friday Agreement, equality of opportunities is a ‘devolved matter’ under the Northern Ireland Act. Westminster legislation comprises a public sector duty to actively promote equality of opportunity between women and men, disabled and not disabled, carers and non-carers and in relation to religious belief, political opinion, racial group, age, marital status or sexual orientation.

It also created the Northern Ireland Equality Commission and its authority to enforce the duty, suggest equality schemes and conduct investigations, including in the private sector (Sections 75, 76 and schedule 9 of the Northern Ireland Act). EU anti-discrimination legislation is mainly implemented by statutory orders, which will lose their basis through Brexit, and become retained EU Law, with the weaknesses in enforcement explained above.

For Northern Ireland this is doubly problematic because the Good Friday Agreement demands that protection from discrimination, as required under EU law, remains equivalent between Ireland and Northern Ireland. However, there is an opportunity to retain alignment of Northern Irish anti-discrimination law with EU law, and thus with Irish legislation, a requirement stressed by the Equality Commission for Northern Ireland (ECNI, 2018). The EU Commission’s draft withdrawal agreement, with its draft protocol on Ireland/Northern Ireland, requires that there should be no diminution of rights referred to in the Good Friday Agreement in Northern Ireland as a result of Brexit, stressing the relevance of equality law in particular (Chapter one, agreed in principle between the EU and the UK).

Opportunities

Its shortcomings, deriving from allocating sole responsibility to the UK (Schiek, 2018a) and insufficient judicial protection  (Schiek, 2018b), could be overcome to require Northern Ireland’s anti-discrimination legislation to be subject to the jurisdiction of the ECJ. This would require changing the EU Withdrawal Act. In the light of the periodic dysfunctionality of the Northern Irish legislative institutions, a default mechanism should be provided for, for example legislation through a Commission of the British Irish Intergovernmental Congress.

All this would create opportunity for new and more coherent anti-discrimination law in Northern Ireland, which would also benefit women in Northern Ireland, who need protection not only from sex discrimination. In a region where many women are also disabled (e.g. through post-traumatic impairment) or affected by discrimination on grounds of ethno-religious allegiances, (Bell, et al., 2016) this would offer a route to addressing frequent intersectional discrimination.

References:

Bell, C., McVeigh, R. & Dúchán, A., 2016. A Fresh Start for Equality? The Equality Impacts of the Stormont Agreement on the two “main communities”. Belfast: Equality Coalition.

Collins, E., 2015. Religious and Political Opinion Discrimination. In: B. Dickson & B. Gormally, eds. Human Rights in Northern Ireland. Oxford: Hart, p. chapter 14.

Dickson, B., 2018. Law in Northern Ireland. 3rd ed. Oxford: Hart.

ECNI, 2018. Recommendations on the UK Withdrawal Bill as Introduced in the House of Lords. Belfast: ECNI.

Hepple, B., 2014. Equality – The New Framework. 2nd ed. Oxford & Portland (Oregon): Hart.

Schiek, D., 2006. The ECJ decision in Mangold : A further twist on effects of directives and constitutional relevance of community equality legislation. Industrial Law Journal, 35(3), pp. 329-341.

Schiek, D., 2010. Constitutional Principles and Horizontal Effects: Kücükdeveci revisited. European Labour Law Journal, 1(3), pp. 368-379.

Schiek, D., 2018a. The island of Ireland and “Brexit” –a legal-political critique of the draft withdrawal agreement., Belfast: Queen’s University Belfast.

Schiek, D., 2018b. Brexit on the island of Ireland: beyond unique circumstances. Northern Ireland Legal Quarterly,, 69(3), pp. 367-395.

The views expressed in this blog series may not necessarily reflect EDF’s official positions.

Professor Dagmar Schiek is a professor of law at Queen’s University Belfast and also holds a Jean Monnet ad personam Chair in EU law and policy. She has published widely on the impact of European Union law on societies in the EU and on EU and Comparative Anti-Discrimination law. From 2016, she has engaged increasingly with the consequences of the UK’s withdrawal from the EU on the island of Ireland from socio-legal perspectives.

Find out more about Professor Dagmar Schiek.