Joint Committee on Justice and Equality debate, Wednesday, 23 January 2019. Rights and Equality in the Context of Brexit: Discussion
Both Emily Logan (Chief Commissioner of the Irish Human Rights and Equality Commission) and Les Allamby (Chief Commissioner, Northern Ireland Human Rights Commission), as invited guests to the Joint Committee debate on Rights and Equality in the Context of Brexit, condemned the decision of the UK government (in the draft withdrawal agreement of November 2018) not to retain the Charter of Fundamental Rights in Northern Irish law. The terms of the Good Friday agreement state that there must be equivalence of rights on the island of Ireland, and both Chief Commissioners argued that, if the Charter no longer applies in Northern Ireland, this cannot be held to be the case.
Quote: "A number of outstanding issues…remain to be resolved… Second, there is the UK Government’s decision to be no longer bound by the EU Charter of Fundamental Rights. The charter largely mirrors the rights contained in the European Convention on Human Rights but goes further by including a number of economic and social rights. As Mr. Gormally outlined, the 1998 agreement envisaged a bill of rights for Northern Ireland supplementing the rights contained in the convention to reflect the particular circumstances of Northern Ireland, drawing on international instruments and experience. In effect, a bill of rights was to provide a "convention-plus" approach to human rights protection. Although the charter post-dates the 1998 agreement and applies it only in conjunction with EU law, the charter remains the closest equivalent to a "convention-plus" approach contemplated in a bill of rights.
It has been argued that while the draft withdrawal agreement does not incorporate the charter into Northern Ireland law, other provisions within the withdrawal agreement mean that the charter would apply extensively. Moreover, the UK Government has argued that much of the charter will be retained in either common law or statute law. Nonetheless, the loss of the EU charter in its current form would lead to a loss of legal certainty and consistency, as legal cases would have to argue that the charter applies as well as how it applies. In addition, the charter is an accessible document and the wider understanding of rights would be hampered through the failure to incorporate it within the draft withdrawal agreement. The retention of the charter would also provide a degree of continuing equivalence of rights throughout the island of Ireland and, therefore, is in line with the spirit of the 1998 agreement. For all those reasons, the commission continues to hold that the charter should be retained for Northern Ireland at least until a bill of rights for Northern Ireland is introduced."