Understanding the implications of article 2 of the Northern Ireland Protocol in the context of EU case law developments

Abstract

Conscious of the careful balance stemming from the Rights, Safeguards and Equality of Opportunity provisions of the Belfast/Good Friday Agreement 1998, it was clear that human rights guarantees underpinned by European Union (EU) law would be a pivotal aspect of the Protocol on Ireland/Northern Ireland within the Withdrawal Agreement. The commitment is particularly prominent in respect of equality law, as a guarantee that no diminution of rights and equality protections would result from withdrawal from the EU was built into article 2(1) of the Protocol providing for non-diminution of rights in Northern Ireland post-Brexit. The purpose of this article is to identify and analyse recent developments in EU equality case law which may trigger the non-diminution obligation from the entry into force of the Protocol to the date of writing (ie between 1 January 2021 and 1 September 2022). This analysis is underpinned by a systematic case law review to provide an evidence-based analysis of: a) where divergence of equality protection standards is occurring presently; and b) where these concerns are likely to present in the future. The article identifies four substantive areas, namely religious discrimination, disability discrimination, gender equality in the field of pensions and social security, and migration law, which raise significant and complex questions about the practical feasibility of the non-diminution obligation. In light of the thematic case law analysis, the article offers broader reflections on the future direction of article 2 obligations, which could be used to approach the non-diminution commitment prospectively.