What does the 23 June mean for Northern Ireland specifically? Legal Perspectives no 3: Equality legislation
In the third of three articles on the legal implications of a Brexit on Northern Ireland, Professor Dagmar Schiek looks at the future of equality law and policy in Northern Ireland.
On 23 June, citizens poll whether the UK should remain a member of the EU or whether it should announce its intention to withdraw. While this question has general consequences for Great Britain (i.e. England, Wales and Scotland) and Northern Ireland alike, there are also aspects which affect Northern Ireland specifically. This third blog considers the future of equality law and policy in Northern Ireland – problems relating to the UK’s land border with Ireland were discussed in part one, and the impact on the peace process in part two.
Equality law and policy in Northern Ireland – a complex field
Combating discrimination and ensuring full equality in practice is a long-standing policy area of the EU and at the same time a theme underlying the peace process. The 1998 Belfast agreement and its successors aim to erase factual inequalities between the groups referred to as “two main communities”. Recent research of March 2016 commissioned by the Equality Coalition establishes that much remains to be achieved in this regard. Legislation on equality for Northern Ireland goes beyond equality between the main communities, though. Section 75 of the Northern Ireland Act 1998 creates a statutory obligation on public authorities to promote equality of opportunity between persons of different religious belief, political opinion, racial group, age, marital status or sexual orientation, between men and women, persons with a disability and without and persons with dependents and without. The Act also created the Equality Commission for Northern Ireland (ECNI), which also has a mandate beyond the “main communities” (Section 73, 74). The legislation reflects the conviction that a commitment to equality (and for combating discrimination) needs to be rooted in a wider agenda.
Such a wider agenda is also pursued by the European Union: already the former EEC was committed to ensuring equal pay for women and men (now: article 157 TFEU), as well as to guaranteeing equal treatment for persons moving to another EU member state (Articles 18, 45, 49 TFEU). In addition, EU equality legislation outlaws employment discrimination on grounds of sex, racial and ethnic origin as well as religion and belief, sexual orientation, age and disability, as well as discrimination on grounds of sex and racial and ethnic origin beyond employment. These directives have been implemented in Northern Ireland in a number of specific orders and acts, which are available on the ECNI web page. All this results in a complicated web of protection against discrimination by specific orders applying to Northern Ireland, specific legislation and actions by the NI Legislative Assembly and European Union Law.
In the division of competences between the Northern Ireland Legislative Assembly and the UK government, the overlap of EU equality law and NI equality law creates a high degree of complexity. The UK government remains responsible for negotiating and implementing international obligations, and this includes European Union law. The Legislative Assembly is competent for implementing section 75 of the Northern Ireland act. Should the EU membership of the UK lapse, this would result in less overlap of competences – although the UK government would remain competent for implementing international agreements such as the UN Convention for the Elimination of all Forms of Discrimination Against Women and the UN Convention on Rights of Persons with Disabilities.
Practical impact on the work of the Equality Commission for Northern Ireland
Any legislation, and in particular legislation aiming to change socio-economic reality, depends on effective implementation. The Equality Commission for Northern Ireland (ECNI) plays a pivotal role here. It uses all these legal bases in its work. As regards EU equality legislation, it also actively contributes to its further development, for example by promoting references to the Court of Justice of the European Union (ECJ). How would the withdrawal from the EU impact on this?
First of all, upon withdrawal from the EU, the legal basis for the orders would become open to challenge as far as they implement EU Directives. It is likely that the UK legislator would pass saving clauses maintaining legislation implementing EU Directives at least for a transitional period, but it is impossible to know this in advance. Because the ECJ would no longer be competent to decide references from the UK after withdrawal, the continuing relevance of its interpretation of equality law would become a matter for academic debate.
This would lead to insecurities in how far judges in Northern Ireland would consider past and future ECJ case law as persuasive authority. In any case, the option of obtaining an interpretation of equality legislation from the European Court of Justice would no longer be available. While there is a free standing body of equality legislation for Northern Ireland, including the Fair Employment and Treatment Order, this body of law has been complemented by the implementation of EU equality legislation. We must assume that both bodies of law reinforce each other. The withdrawal of the UK from the EU thus risks a weakening of equality law in Northern Ireland because this mutual reinforcement would be eliminated.
Withdrawal from the EU would create a number of insecurities related to the practical implementation of legislation combating discrimination and promoting equalities. This does not mean that any progress in these fields would become impossible. However, withdrawal from the EU would add to the considerable hurdles to be overcome for achieving equality.
It would also weaken the position of the Northern Ireland Equality Commission, which would lose the option to support cases that are referred to the European Court of Justice.