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New powers for independent watchdogs to protect human rights and equality post Brexit

Prime Minister Tony Blair and Taoiseach Bertie Ahern signing the Good Friday Agreement

Prime Minister Tony Blair and Taoiseach Bertie Ahern signing the Good Friday Agreement

THE British government is to give special new powers to two independent watchdogs to protect human rights and equality legislation in Northern Ireland following the United Kingdom’s exit from the European Union next March.

It has emerged that, as part of its EU withdrawal deal, the government has given a commitment to allocate special oversight and enforcement powers to the Northern Ireland Human Rights Commission (NIHRC) and the Equality Commission for Northern Ireland (ECNI) to ensure the protection of civil liberties legislation first written into the Good Friday Agreement in 1998.

It is understood that the proposed new legislation will cover anti-discrimination laws, including workers’ rights both in the public and private sector.

The move has been welcomed by both NIHRC and ECNI who are understood to have submitted business cases for their new roles.

However, when The Detail contacted the Northern Ireland Office (NIO) it failed to clarify the nature of the new powers or what financial resources, if any, will be allocated to the watchdogs to allow them to properly oversee the protection of existing human rights and equality laws here.

On November 14 the UK government published plans of the proposed Withdrawal Agreement with the European Union. That is due to be debated by MPs this week, with a vote in Parliament on December 11.

The withdrawal proposals were accompanied by an ‘explainer’ document, which sets out more of the finer details of the exit from the EU, including the protection of existing human rights laws here.

The 56-page explanatory note confirms that the government has agreed to “no diminution” of the rights, safeguards and equality of opportunity section set out in the Good Friday Agreement.

This means that there can be no reduction in the rights enshrined in the Belfast peace agreement.

Crucially the protection of some of these rights were underpinned by sections of EU law that could now be lost.

Human rights campaigners argue that there is an obligation on the government to find another way of protecting these particular rights in new post Brexit laws.

Campaigners argue that the obvious way to ensure the protection of these rights would be through the establishment of a dedicated Bill of Rights.

While the government has said this will be achieved through a ‘dedicated mechanism’, it has yet to clarify what this term actually means.

Paragraph 176 in the Explainer document for the agreement on the withdrawal of the UK of GB and Northern Ireland from the EU

Paragraph 176 in the Explainer document for the agreement on the withdrawal of the UK of GB and Northern Ireland from the EU

Paragraph 176 of the explanation document confirms that NIHRC and ECNI will now be given special oversight powers to protect human rights.

“The UK will confer upon NIHRC and ECNI new powers to monitor, supervise, advise and report on and enforce the commitment, as well as provide adequate resources to ensure that they are able to perform their enhanced roles effectively,” it said.

However, The Detail understands that the NIHRC or ECNI could not penalise local councils, government departments or private companies who fail to comply with existing human rights and equality legislation following Britain’s departure from the EU on March 29, 2019.

According to experts the term ‘enforcement’ is understood to mean that either organisation will only be permitted to facilitate a legal challenge by an individual who believes that their human rights or equality safeguards have been breached.

Earlier this year the Supreme Court ruled that NIHRC was not legally entitled as an individual organisation to launch a human rights legal challenge in the courts but instead could only support an individual in a case.

The proposed new powers are understood to include legislation to allow NIHRC to take its own human rights legal challenges.

In a joint statement to The Detail, the NIHRC and ECNI gave a guarded welcome to the announcement that they are to be given enhanced oversight powers.

“We welcome the commitment in the Ireland/Northern Ireland Protocol that there should be no diminution of rights, safeguards and equality of opportunity as set out in parts of the 1998 Agreement and the commitment to continue to facilitate the related work of both the Equality Commission and the NI Human Rights Commission in upholding human rights and equality standards. We also welcome the commitment that this should be implemented by dedicated mechanisms and the government’s intention that this will involve the commissions.”

The watchdogs told The Detail that “significant” human rights and equality issues remain at risk after the EU exit next March, including the loss of the EU Charter of Fundamental Rights.

However, the organisations said that the extent of the new powers and funding they will receive from government still remains unclear.

“At this stage much detail needs to be finalised by the UK government including budgets and powers for the dedicated mechanism.

“We will continue to engage in discussions with the UK government in relation to this; we will be seeking the strongest possible safeguards and developments of equality protections and human rights following the UK's exit from the EU.”

Confirming its intention to hand the new oversight powers to NIHRC and ECNI, a Northern Ireland Office spokesman said: "The UK Government has committed to ensuring no diminution of the rights protected in the Rights, Safeguards and Equality of Opportunity chapter of the Belfast (Good Friday) Agreement in Northern Ireland.”

However, the NIO declined to explain the extent of the new powers or what financial resources, if any, would be given to either organisation to allow them to monitor effective oversight of human rights protections.

“This legally binding commitment will be given effect through the Withdrawal Agreement Bill, including relevant powers for the NIHRC and ECNI. We intend to publish further information on the scope of the Article 4.1 commitment, the role and functions of the NIHRC and ECNI as the dedicated mechanism, as well as enforcement mechanisms, in due course."

The NIO’s lack of clarity on what new powers will be transferred to NIHRC and ECNI has been criticised by non-governmental human rights groups and academics.

Daniel Holder from CAJ

Daniel Holder from CAJ

Committee on the Administration of Justice (CAJ) spokesman Daniel Holder said there was an onus on the government to make a clear public statement setting out the new powers and resources that will now be made available to the new oversight bodies.

“As we have long learned throughout the peace agreements, commitments on rights only become meaningful if there is some way of actually enforcing them,” he said.

“The UK (government) has published an ‘explainer’ document stating that it will grant new powers to the human rights and equality commissions to enforce the commitment.

“However, the only provision in the Withdrawal Agreement is for the commissions to raise breaches of the commitment to a joint UK/EU committee that only has to meet once a year. That clearly can’t be it. The UK government should provide clarity and detail at this stage as to what new powers it is proposing for the commissions.”

Queen’s University human rights law professor Colin Harvey said there were real concerns that existing equality protections could now be watered down by the transfer of oversight powers.

“It is vital that the dedicated mechanisms put in place ensure robust enforcement of the ‘no diminution’ obligation,” he said.

“Although the contribution of the existing commissions has been highlighted, there is a notable lack of detailed information and there is serious concern that the British government’s current thinking might result in a weak and ineffective approach.”

While local political parties are understood to have been consulted on the transfer of oversight powers, because of the continued absence of a Stormont executive, the parties are not thought to have had any involvement in negotiations or the decision-making process.

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