Law Pod UK Latest Episode: Belfast special report. Elections, the Northern Ireland Protocol and non-diminution of EU rights

9 May 2022 by

Voting for the Northern Ireland Assembly took place on Thursday 5 May. This year, for the first time, Sinn Fein looks set to win a majority of the seats. Whether the Democratic Unionist Party agrees to the power sharing arrangement where it is relegated to second place remains to be seen. What continues to be hotly debated is the Northern Ireland Protocol, put in place to avoid a “hard border” between Northern Ireland and Ireland which of course is still part of the EU single market.

But the Protocol isn’t only about trade. Under Article 2 the UK government has made an important commitment regarding the rights of Northern Ireland’s citizens to equality, non-discrimination, transparency and a range of other rights protected under European Union law. Article of the 2 Protocol is a very new provision, applying the acquis communitaire of the CJEU to Northern Ireland, even though NI is part of post Brexit EU.

In our latest episode Rosalind English meets UKHRB Northern Ireland correspondent Anurag Deb in Belfast two days after the elections to discuss what this EU rights provision means for the citizens of Northern Ireland.

Here is some supplemental information, citations and details of the Directives discussed in the podcast.

The Annex I Directives in the Protocol are: 

  1. Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services
  2. Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation
  3. Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin
  4. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation
  5. Directive 2010/41/EU of the European Parliament and of the Council of 7 July 2010 on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Council Directive 86/613/EEC
  6.  Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security ()

The two judgments on Article 2 of the Protocol (thus far) are Caoimhe Ní Chuinneagain’s application for judicial review[2021] NIQB 79 ( which was a similar case to Emma de Souza (right to be legally recognised in Northern Ireland as an Irish citizen only) and you will find a short statement about Article 2 of the Protocol at paragraph 26.

The longer and more detailed judgment is SPUC’s application for judicial review  [2022] NIQB 9 which involved a challenge to the Abortion (Northern Ireland) Regulations 2020 and Abortion (Northern Ireland) (No. 2) Regulations 2020 which provide for the regulation of abortion in Northern Ireland following reforms made at Westminster in 2019. Anurag’s post about abortion law reform in March 2021 is here with more detail about the regulations and their history . The discussion on Article 2 is at paragraphs 74-146 of SPUC, but the relevant test for establishing a breach of Article 2 is at paragraphs 83-88. See also this post by Colin Murray (published yesterday) on the SPUC judgment.

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