Northern Ireland Scrutiny Committee

Wednesday 10th June 2026

(began 2 days, 11 hours ago)

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10:51
None Portrait Speaker 1
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Good morning and welcome to this public meeting of the Northern Ireland Scrutiny Committee. Before we start, the substance of our evidence today, I just wanted to say something on behalf of the Committee about what has happened in the last two days. Today, this Northern Ireland scrutiny committee of the House of Lords is commencing an inquiry concerning human rights and equality issues in Northern Ireland, with specific reference to article two of the protocol to the Windsor Framework. The Committee would like to express sadness at the awful incident which started the events that followed yesterday in Northern Ireland and on behalf of the committee, I express our sadness concerning the violence which broke out yesterday in Belfast, which has required extensive intervention by first responders and the relevant public authorities.

We add our voice to the widespread concern arising from yesterday's events. The appearance of such violence on the streets is deeply unwelcome in our work as a select committee. We will take into account any material lessons that can be learned from this regrettable episode. Right. So I'm now going to make an introduction to our evidence session today. Today, holding the first public evidence session of our inquiry on article two of the protocol Windsor Framework, the so-called non diminution of rights provision.

The committee will examine the scope and implications of article two on Northern Ireland and the wider United Kingdom in the light of the recent Supreme Court decision in the Dillon case, the committee is also interested in the enforceability of article two in UK law and litigation, as well as the government, the UK governments, the EU's and the civil society's expectations of its operation and application. We're joined today by three valued academic experts. Professor Bryce Dixon is emeritus professor in the School of Law, Queen's University, Belfast. Doctor Eleni Francis, who is with us in the room, is associate professor in public law and Human rights at Durham's excellent law school in Durham University, and Professor Colin Murray is professor of law and democracy at the nearby Durham and also excellent Newcastle University.

You're all really very welcome. We very much look forward to your evidence. We would be grateful if you could introduce yourselves briefly the first time you speak. Today's meeting is being broadcast. A verbatim transcript will be taken for subsequent publication, which will be sent to witnesses for you to check for accuracy. Members of the committee are reminded to declare any relevant interest. The first time you speak. So I'm now going to move to the first question, which I will ask.

And the question is why did the UK and the EU negotiate and include article two of the Windsor framework in the protocol Windsor framework?How does article two relate to the Belfast Good Friday Agreement?In particular, its rights, safeguards and equality of opportunity?Our SEO provisions. Shall we start with you, Doctor Francis, as you're here in the room.
10:53
None Portrait Speaker 2
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Thank you very much. So I will just briefly introduce myself as as requested. My name is Eleni Francis. I'm an associate professor in public law and human rights. My area of expertise is EU fundamental rights. So this will be the perspective that I will be giving to the committee today. And I have written extensively on the direct effect of EU fundamental rights, the Charter of Fundamental Rights, including a monograph on the direct. The horizontal direct effect of those provisions.

And I have also authored three reports on the status of fundamental rights in Northern Ireland following Brexit, as well as other research on the relationship between the UK constitutional order and the EU constitutional order after Brexit. So, as I said, I will focus on that area of expertise rather than commenting on some of the more domestic matters that are raised in the questions today. Thank you very much for the opportunity to provide evidence. Now relating to the first question. It was common ground between the parties in the negotiations that union law provided a supporting framework for the rights, safeguards and equality of opportunity.

Part of the Good Friday Agreement. And this is mentioned, um, not only in the Q&A that the Commission has prepared, but also in the preamble to the Ireland Northern Ireland Protocol as it then was now known as the Windsor Framework. Um, this highlights that membership of both the EU and the, of the EU by both Ireland and the UK contributed to the peace process and that EU fundamental rights had as a as a web of rights had provided a framework within which the RCO was made more effective.

So article two was introduced as a guarantee against regression. From that frame, the supporting framework of rights that was in place under European Union law.
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None Portrait Speaker 4
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Yeah.
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None Portrait Speaker 4
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Thank you, Baroness Anderson. Well, I suppose the protections make a broad provision for life in Northern Ireland after the conflict. And the provision is that, um society and governance be grounded in the rights of everyone in the community. To take the language of the first paragraph of that chapter of the agreement. Now, those commitments are reflected across a range of law. It's not simply EU law. It also speaks to the European Convention on Human Rights.

And separately, domestic law commitments. And it's only when you have an admixture of these that you get how the UK's commitment in an international agreement, the Belfast Agreement of 1998, gets translated into, well, rights that are actionable. Um in court in Northern Ireland. So perhaps at the time of 1998, the incorporation of the Echr into domestic law was the most high profile law reform that accompanied the 1998 agreement and that the UK government committed to, as part of the Social Chapter. But it's certainly not the only legal measure of relevance.

EU law was already providing a range of protections against discrimination, both in ethno nationalist contexts, which you might say are directly related to communal tensions within NI and wider contexts, from sexual orientation to sex to disability to race. Now that EU law was in place before 1998 and has continued to develop since, there are also many areas where EU law is more expansive or was more expensive in terms of its range of commitments than the European Convention, particularly in areas like data protection law and workers rights. And so in a range of different areas of law, EU law was providing the basis of rights protections in place in NI after 1998.

Now, again, the mixture is very complex because beyond that, there are also domestic law commitments like section 75 of the Northern Ireland Act, which provides for a mainstream equality duty and protects additional characteristics like um discrimination on the basis of political opinion. But EU law prior to Brexit was taking its place in that mixture of legal regimes that was providing a right protection in.
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None Portrait Speaker 4
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Um, well. Article two is part of the EU with UK withdrawal agreement. Now that's separate from the main body of EU law as we think about it, directives, regulations or even the treaties themselves. But it is an international agreement between the UK and the EU. And you might think on a basic understanding or a fundamental understanding of UK constitutional law, that that throws up issues of dualism. What's the connection that brings those commitments in article two into the courtrooms of UK courts?Well, that connective tissue becomes article four of the Withdrawal Agreement, which makes it clear that commitments with direct effect within the Withdrawal Agreement and the Windsor framework is a constituent part of that agreement, are to continue to have effect in UK law as if they operate as provisions of EU law, and that is then connected into our domestic legal system by section seven, capital A of the EU Withdrawal Act 2018, which expressly provides that provisions of EU law that are covered by the Withdrawal Agreement will have that effect within the UK's courtrooms.

Now, there are very supportive provisions beyond that. You can look at section 78, capital C and D of the Northern Ireland Act 1998, and those were inserted into that act by the Withdrawal Agreement legislation, and they make it clear that article two generated litical rights in the courts of the United Kingdom, and that the Northern Ireland Human Rights Commission and the Equality Commission could use their auspices as being the dedicated mechanism for the purposes of article two to support and intervene in that litigation.
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None Portrait Speaker 3
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Um, well, I'm with Professor Murray in agreeing that, um, the framework is definitely part of domestic UK law. Uh, it's also binding on the EU. Um, so to that extent it's part of EU law as well. But if I may just add that the question asked by Baroness Sanders and I think uh. Requires us to look at to what extent the. I'm going to refer to it as the RSE provisions just for shorthand that the extent to which those provisions in the agreement have been protected as such since 1998.

And that requires looking, obviously, at the legislation, some of which Professor Murray has mentioned, but also at the the court's approach to those provisions. And, um, we know from an early case, Baroness Foster will be well aware of this involving um her predecessor, Peter Robinson. Um when, when um. The, the, the House of Lords as a court had to decide whether um provisions in the Northern Ireland Act taken from the Good Friday Agreement. Um had any kind of binding, uh, legal, effect.

Um and the case was all about whether um the. First and Deputy First Minister could be appointed outside the six week time limit for, for those appointments and the House of Lords through Lord Bingham in particular spoke of the Northern Ireland Act as something which should be interpreted generously and purposively, bearing in mind the values which the constitutional provisions are intended to embody. In other words, he was saying, you need to look at the Good Friday Agreement and the provisions in it that were reflected in the Northern Ireland Act as as a political compromise, basically, and against a political background.

So you don't take the words literally all the time. You you interpret them in the light of the need for stability and power sharing and peace in Northern Ireland. And that's been reflected in other cases since, uh, to the extent that when a litigant, um, wanted to rely on the birth right provision in the, in the Good Friday Agreement, the one that says, if you're living in Northern Ireland, you can be Irish or British or both. Um, that was taken to the Court of Appeal in Northern Ireland and they held that although the claimant wanted to be only Irish and, and didn't like the fact that her she was being um given British nationality against her will, the court decided well.

Um that's what the Good Friday Agreement says. You can be British or Irish, but you. And you can rely on either of those. But you can't deny that you have both nationalities potentially automatically, and that the European Convention on Human Rights, for example, doesn't contain the right only to be Irish or only to be British. So again, the agreement was interpreted in a way that, um, may not comply. Uh, absolutely. With the literal approach to it, but with the, the political context in mind.

And that's what applied in the Dillon case as well.
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None Portrait Speaker 4
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Yes, Lord Thomas.
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None Portrait Speaker 2
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Thank you very much. Thank you both. Okay, so I will probably, if that's okay. Um, answer the second question first. Because I think it's important and it gives a bit of context, um, to the Dylan judgment. So first of all, it's important to bear in mind that direct effect and the obligations imposed on the UK under the withdrawal agreement, under the withdrawal agreement are two distinct things. So the Supreme Court judgment in Dylan is about direct effect.

The withdrawal agreement is about non diminution. Whether that obligation is directly effective altogether or not is a different matter. So if the obligation is directly effective altogether, then individuals can bring cases before the court and have the rights given to them by this obligation affirmed by domestic courts. That's what direct effect means. Right. So, um, in, in the situations in which the, Dylan, the Supreme Court finds that the obligation is directly effective, which in short, I don't want to tire you.

In short, it will be, I think in many of the cases pertaining at least many of the cases, if not all, of the cases pertaining to the equality directives, plus potentially other areas covered by European Union law, measures that fall within the ambit of the RCO. There is a lot more discussion to be had about that, but in those situations, UK courts must give effect um to fundamental rights in exactly the same way as they would have done before Brexit. Okay, so that means that individuals can bring cases based on, say, their rights under the equality directives.

Um, including also the Charter of Fundamental Rights, which um, these directives express, right. So the, the obligations are given further expression in the directives, but are primarily to be found in primary law in the EU Charter of Fundamental Rights. Um and domestic courts must still affirm those, including where need be by disapplying domestic law. Okay. That's if the obligations are directly effective. Now, the Supreme Court in Dylan and as a parenthesis, I disagree with this interpretation, but we can come to that later, if you will.

Um, the Supreme Court in Dylan finds that article two is not altogether directly effective. It is only directly effective, essentially. And that's my reading, where the underpinning measures were themselves directly effective. Are the, these directives were now with the, what the court tries to do is essentially apply direct effect to the RCO section of the Belfast Good Friday Agreement. Um of course this is quite problematic and very difficult because the EU concept of direct effect does not translate very well to that part of the agreement.

And now that. Means that aspects of the RCO. So um the, what the court terms, the more general parts of the RCO will not have direct effect and will not be invokable before domestic courts. It does not mean that that's the end of the obligation under article two and under article two. The obligation is not diminution. And that is a binding obligation. Under European Union law. And by the way, this is an unincorporated agreement binding on the union in all of its member states, and it was intended to be interpreted in exactly the same way in the UK and in the European Union.

That was the purpose of article four. So in EU law, um, even where an obligation is not directly effective, it is still binding. And that means that domestic courts should strive to give effect to it consistently with European Union law to the extent possible, I can refer you to a case C 57317 Poplawski two. For example, there is ample cju case law on this matter. Um, but if the diminution occurs in relation to a non directly effective. Right.

And the courts are not able or willing to interpret it consistently with European Union law, there does remain an option for that diminution to be discussed in the Joint Committee on the Windsor Framework and if necessary, for arbitration to take place, because direct effect is just about individuals bringing cases to court domestically. It is not about what the obligation on the United Kingdom government is. Um, that is a separate matter. Um, now, to go back to your question, Baroness Ritchie, about the Charter of Fundamental Rights.

Um, so the. Dylan judgment is very interesting in that regard because, um, essentially it finds that the victims directive does not apply. And so we're not within the ambit of the, the, um an. Unpinning measure with direct effect within the ambit of the RCO. And that's the end of the matter, because in order for the Charter of Fundamental Rights to apply, we need a hook onto European Union law independent of that charter. So, for example, we would have needed an equality directive or the victims directive to be in play in scope in order for the Charter of Fundamental Rights to kick in.

And that is correct. And from that perspective, the judgment, I think, is coherent. However, the scope attributed to both the directive and the charter are a little bit more problematic. Um, particularly if we consider the case law on the victims directive. It's very limited. And there is there has never been a J u authority on, uh, the courts. Um, yeah. On, on jurisdiction and the general scope of application of that directive. But generally speaking, the case law is quite broad, um, and has treated that directive in light of its purpose and scope, which is to protect victims.

So it has, has given it an expansive rating. Um, in cases like Burdine and Gambino and Hiqa. But as I said, there is no clear authority. CJ u authority on the scope of the VRD. So from my perspective, um, when the court finds in paragraph 135 that the directive does not apply, I think that is a problematic finding potentially from the perspective of European Union law, and could perhaps need clarification.
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None Portrait Speaker 2
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So thank you very much. The Supreme Court in Dolan follows a three part test. Previously, domestic courts have followed a longer test, but I think it's possible to just rely on what the Supreme Court said in Dylan at paragraph 128 is a right safeguard or equality of opportunity. Um, that falls within the RCO chapter of the Belfast Good Friday Agreement, engaged to if so, did that right safeguard or equality of opportunity have legal effect in Northern Ireland?On the 31st of December 2020?And was it underpinned by European Union law?And three, was there a diminution of that right safeguard or equality of opportunity as a result of the United Kingdom's withdrawal from the EU?So the critical issue, obviously, is to understand what falls within the RCO.

That is, for the Supreme Court to decide, of course. Um, but if we are to assume that the equality directives, as the Supreme Court does suggest, would, um, fall would be engaged, I think perhaps I can give you a simple example that hopefully will not be too controversial. Um, so I'll draw here on the report on remedies that we've done. If anybody wanted a bit more detail on this, but let's say that the UK passes the almost Equal Act 2026. Um, and this legislation purports to apply to Northern Ireland.

Now let's assume that the almost Equal Act has a section limiting gender equality to the public sector only. So private employers are no longer bound by this duty. Um and Maria, an applicant is for a job is discriminated against in a private sector job post on the basis that she is visibly pregnant. Um she will therefore have to be replaced soon. So the employer feels that there is no point in appointing her. Um, that would be obvious discrimination on grounds of gender.

Under the case law of the EU, pregnancy discrimination is sex discrimination. Um, since a case 17788 Decker um, now just follow the three part test. Is there an RCO protection that is engaged. Yes. Gender equality in economic activity. Right. Um arguably, uh, obviously this is very clear for the listed directives, but it could of course be applied in other contexts to two was there a right effective in Northern Ireland before Brexit that was underpinned by European Union law.

Absolutely. Yes. There I did have an effect in Northern Ireland before Brexit. There were multiple provisions of European Union law that applied here. Article 157, Tfeu, article 21 and 23 of the EU charter and of course the Gender Equality Directive 2006 54 um and. Case law. These measures are directly effective. Um was there a diminution of their rights. Yes. Um there is a diminution because Maria would have been able to claim, uh, non-discrimination as against a private employer under European Union law.

And she is no longer able to claim this under the almost Equal Act 2026. So assuming that the almost Equal Act 2026 is very clear and cannot be read compatibly with the EU obligation that would have existed before, um, then the remedy for Maria here will be disapplication of that legislation and application of the previous standard of protection.
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None Portrait Speaker 3
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Um. It is basically quite simple. I think, um the example that Doctor Frances gave, um is maybe not that realistic, but she's right in the way that she explains it. The example I was going to give was if um Parliament. Decided to say that we don't have enough people from the Catholic community working in the Prison Service of Northern Ireland. So we're going to impose a 5050 recruitment approach to that. And the way that was done for about ten years after the Good Friday Agreement in relation to the PSNI to, to to boost the number of of people from the Catholic community in that service.

If the if Parliament tried to do that today, that. Would um that that would clearly be unlawful under article two of the framework. Uh that went. The framework because it relates to um religious discrimination, which falls within one of the directors in annex one to the framework. And, um, it's a. Um, it, it's a. Right. Um, which. Um. Relates at least to the RSE provisions in, in the Good Friday agreement.

However um, having said that, I go back to the point I made earlier, the RSE provisions. Are very general and vague. And the Supreme Court in the Dylan case emphasized that it was the vagueness of those provisions which meant, in effect, that article two one did not have direct effect in in Northern Ireland or in the UK, because one of the requirements for a provision to be off direct effect is that it has to be clear and precise. And that wasn't the case. It wouldn't be the case for most of the provisions in the RSEO part of the Good Friday Agreement.
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None Portrait Speaker 1
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Sorry.
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None Portrait Speaker 4
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Um. Thank you, I suppose to be brief. Um, I would endorse a lot of what Francis is saying and even much of what Professor Dixon was saying. Until we get to those last observations and I think there. I depart from Professor Dixon. I think when the Supreme Court sought to apply direct effect to the provisions of the 1998 agreement, it was committing a category error. It applies litigation called Demurral, which is about an EU Association agreement, whereas the 1998 agreement is not an EU treaty and shouldn't be treated as if direct effect is applying to it.

Specifically, effectively doing so doubles the burden of direct effect on applicants before court, because they have to show not only the direct effect of specific EU measures, but also direct effect in the context of the Social Chapter, and that makes that chapter much more difficult to rely upon. Now, again, we return back to some of what Lord Thomas and I were discussing about the weeds of the judgment, even in those weeds, and they might be obiter dicta. There are also other hurdles that if the Supreme Court's language is followed through, would make other cases more difficult.

And I'll give you the example of the Pregnant Workers directive and ask that you consider general UK legislation that limits the rights contained within that directive, or seeks to reduce below that standard, because that's what we're talking about with the non diminution commitment seeks to backtrack on a commitment that was previously enshrined in EU law. Whilst. And I was part of an EU member state. Now you could in that context say this isn't one of the annex one directives, but it does directly relate to one of the bullet point list under paragraph one of the 1998 agreement.

So chapter in doing. So it would fit that hurdle that the Supreme Court has imposed in this judgment. But the Supreme Court also includes language about all of those bullet points being related to a communal or a sectarian conflict. And it's very hard to see the Pregnant workers directive in those terms. And again, I think it risks a misreading of that section of the 1998 agreement. If you're talking about equal opportunity in the workplace or the rights of women to participation in society, those are not issues that immediately speak to the sectarian conflict.

And potentially some of the obiter dicta in the judgment. And again, this is a five judge unanimous decision made by the Supreme Court. So these obiter dicta will have a lot of weight in the lower courts, could start to limit exactly that ambit that you're talking about. What happens when a trade union adviser tries to say to people, what rights do you actually have under these arrangements?
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None Portrait Speaker 1
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Goudie.
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None Portrait Speaker 2
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Thank you very much.
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None Portrait Speaker 2
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Yes, yes. Okay. So, um, I think there are very significant problems with the way in which the Supreme Court dealt with the concept of direct effect and. Question six is whether the Dillon judgment is consistent with the UK's obligations really. And I think in that respect, no, not entirely. Um the the context of course, article four of the Withdrawal agreement and section seven of the EU Withdrawal Act are quite significant because those provisions state that um effectively incorporate the, the EU concept of direct effect and the EU concept of direct effect is to my mind, incompatible with how I read the Dillon judgment.

And the CGU has never supported an interpretation of provisions as being directly effective in certain circumstances. It is a binary concept. A provision either is directly effective because it is clear, precise and unconditional, or it is not. It cannot be both. There are some category exclusions that will not tire you with these this morning, but essentially it is a binary classification. Now, um, the principle authority mentioned in the judgment is Demirel. And Professor Murray already mentioned that there are some significant issues with the reliance on Demirel and a case concerning the association agreement with Turkey in the context of the Withdrawal Agreement and Windsor framework.

This is uncharted territory. Um, the this is not an external relations agreement like any other. If it is to be considered an external relations agreement at all, the legal basis is constitutional. It is article 50. So it is distinguishable from those cases. But even if we were to take that much more difficult to meet threshold, the case states at paragraph 14. A provision in an agreement. Um, it is about the nature of a provision, not about a provision and what it refers to.

Similarly, the case of the classic case on direct effect talks about the wording of article 12 of the then EEC treaty, a provision which needs to be not a positive but a negative obligation. And there are many other cases like Sir Vince, for example, which are also cases about association agreements, and they contain negative obligations. And those provisions have been found to have direct effect. They're very analogous to article two, in where we're talking about a provision that was not to introduce further obstacles to free movement.

Um, so in light of that. My reading of article two is that it is a provision which meets the test for direct effect under EU law in that it is clear, precise and unconditional insofar as it sets out a negative obligation not to diminish or reduce rights. To that extent, the obligation is obvious. Nothing needs to be done. In fact, all the UK needs to do is not to is to refrain from taking measures that um, reduce rights protection. So under European Union law have very serious reservations about it.

It's also not uncommon for provisions of EU law to refer to other provisions, particularly in the fundamental rights context. And there are ample examples in the case law of the CGU. One is the Eggenberger ruling, for example, where the court finds that the key obligation is in article 21, articles 21 and 47 of the charter. And that um. Certain non-directly affected provisions in that particular instance, um were not um expressing. The obligation in question. They were merely making it more specific.

So the fact that the main obligation um in that case provision of the charter was directly effective was sufficient for the individual to be able to invoke it in court. So for me, the fact that article two refers to the Rseo or to other provisions simply is not material to the determination of direct effect. Um, the question is whether article two on its own terms, as a provision of the withdrawal agreement in Windsor Framework, and is directly effective in its own right. And as I said, I think from the authorities that I cited, it probably is, um now, is that significant enough?And what can be done?Um, essentially, I think it is very significant for the commission in particular, the European Union, from the outset of the negotiations, had made it clear that article four was intended to safeguard the unity of concepts like direct effect and supremacy, and that both parties had agreed to apply those concepts in the same way.

And it is, of course, important because the withdrawal agreement applies to the member states too. And so this interpretation would, in my view, not be possible in the in the member states. Um, the member states would have to rely on case law and they would potentially have to make a reference. Um, if anything like that came before their courts. Um, so I would expect some discussion in the joint committee in the first instance. And if agreement is not reached at that level, then we would move to binding arbitration.

If we were to go to the arbitration panel, then the panel would have to I would have an obligation to refer questions of EU law to the Court of Justice and for my purposes, I think those questions are, um, the concept of direct effect, the role of and scope of the victims directive and the scope and role of the EU Charter of Fundamental Rights.
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None Portrait Speaker 1
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Um.
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None Portrait Speaker 3
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I wasn't actually referring to the D'Souza case. I was referring to the case, which is, is is similar, um, to. The D'Souza, but not I wasn't exactly referring to that, but basically I agree with Baroness Foster that, um, the rights, safeguards and Equality of opportunity section of the Good Friday Agreement is basically a, a political document. Um, I don't agree that um there's any difference between the multi-party agreement and the, uh. Anglo-Irish treaty. Uh, agreement. Um, because each annexes the other two.

So I think this section applies to both of those agreements, but basically, uh, and this refers a bit to the previous discussion. Um, and what Doctor Francis was saying. The reason why, um, you can't say that the provisions in the RSEOR are directly effective. Is that um. Uh, they don't protect the, rights that were being claimed by the applicants in the Dylan case. There is no EU law saying, for example, that you can't have an amnesty or you can't prosecute certain offences.

Um, or you can't admit evidence that has been brought to a court against a certain person. Um, so it was the absence of those rights in EU law. Uh, that really meant that the Supreme Court decided there's been no diminution. You can't have any diminution of a right that doesn't exist. So to that extent, I think the Supreme Court's decision was correct. It might be challenged through the, um, dedicated mechanisms that might be coming on to or the specialized committee.

It may get to arbitration. There may be a reference to the Court of Justice of the European Union, but at the end of the day, I'd be disappointed if, uh, a very vague, an excellent document in many ways, but a very vaguely worded document such as the Good Friday Agreement was interpreted in this, uh. Overly. Um. Purposive way. Uh, it was never intended to have that effect. It had its effect in bringing about power sharing and peace.

And it wasn't intended to, um, somehow get into the weeds of criminal law or dealing with legacy issues.
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None Portrait Speaker 5
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Quality Commission. So those institutions together make up the dedicated mechanism. And there task is to in many ways explain and unpack article two. But it's also to advise on its application and to institute litigation or proceedings if it believes that these measures are being breached and it has done so under article two in the Northern Ireland Human rights. Commission's case with regard to the Illegal Migration Act of 2023. Now, one of the most important things here, and it sheds on to some of the later questions.

But it also directly relates to what we're discussing, is that the commission's raised considerable concerns around article two in the legislative drafting stages of both the Legacy Act and the Illegal Migration Act. I don't think that there is a failure of the commissions to be on transmit mode when it comes to trying to explain these obligations or how they work, but that evidence, whilst it went before bodies like the Joint Committee on Human Rights wasn't picked up on at the time these measures were going through, and I don't think any of them received adequate scrutiny from a winter framework perspective.

Now, on one final note, how does the dedicated mechanism connect into this international obligation?Well, under article 14 of the Windsor framework, there is a specific power for the dedicated mechanism to raise issues about the application of article two with the specialised Committee on the Windsor Framework, and for that to feed into the Withdrawal Agreement Committee processes and potentially on to arbitration. The EU has repeatedly affirmed the importance of EU law to underpinning aspects of rights and equality in Northern Ireland, and if the dedicated mechanism. Institutions.

Raise this case as being one that makes it much more difficult to use. Article two. Well, then I think it would be a mistake to treat it as, um. Well, we're in a in an improved state of EU, UK relations and no one might want to rock the boat as to going to arbitration, because it would certainly be a point of confrontation between the EU and the UK. But this specific obligation, article two is one that the UK took on deliberately and unilaterally to maintain these protections in the context of NI law.

And again, when it comes to the 1998 agreement, it. As Doctor Francis said, that wasn't supposed to be being read as a very specific set of hoops to be jumped through. That was setting out an area of law that EU law had to be connected to, to make it article two applicable.
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None Portrait Speaker 1
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And there are.
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None Portrait Speaker 1
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Baroness Ritchie.
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None Portrait Speaker 12
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Professor Murray.
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None Portrait Speaker 1
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Russell Murray.
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None Portrait Speaker 13
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Thank you.
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None Portrait Speaker 9
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Yeah. No, I think, um the. This is where the rubber hits the road as it were, in terms of applicability. I think that we were discussing earlier about, you know, the whole of the UK or Northern Ireland, the disapplication of acts of Parliament. I mean, I think it's clear to me that as as Professor Murray has said, Northern Ireland is placed in a unique position. In terms of the obligations on the UK government and in terms of of of the rights of Northern Ireland citizens.

Uh, that's why I was interested in the question on dynamic alignment. How far does this actually go?Um, so and that's one of the key issues in other areas, trade and all the rest of it for, for Northern Ireland politicians. And coming back to Peter's point about the Northern Ireland Executive and the difficulties within the executive on a range of issues, which, uh, you know, it's not across all issues, but across significant issues. Uh, one of the things that I think has an impact, um, maybe not directly in relation to this area, but will have an impact as we run up to the next election within the unionist community.

Is this idea that the laws that we're going to elect people to the Northern Ireland Assembly and in the next general election, MPs to Westminster, who won't have any say whatsoever about any of this. These laws are made elsewhere by others in their interests. And tangentially, we're affected by them. They don't really take into account what people in Northern Ireland want to say. So I think that just marrying together, the political and the legal position, I think it does present a very complex but very, very difficult challenge, uh, for people in Northern Ireland as we go forward.
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None Portrait Speaker 3
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Yes, I think so. Thank you very much for the question. I do I do think so, yes. Um, so first of all, it will make it very difficult, um, for individuals, as we were discussing earlier, to understand what rights they do have under article two, um, particularly when these are not listed in the specific directives, um it will be very difficult for people to advise them, um as, as I think has transpired already from this room of experts, we all have difficulty understanding and giving you clear guidance on which particular obligations of the RCO will be directly effective or not.

Um, so that's one thing. Um uncertainty for individuals. And the second is obviously also litigation costs and the possibility of bringing those cases, um, with a reasonable chance of success. Um, because the tenor of the judgement is um quite clear, I think it is that not all aspects of the RCO will be directly affected, if any are at all. Beyond those six directives. Um so certainly there will also be a dissuasive effect there too. And of course the role of the charter, um, which we discussed earlier, there was, I think some hope, at least for, for individuals that they, they would still be able to rely on charter provisions.

And I think whereas as I discussed previously, the judgment does not specifically exclude the charter insofar as it only talks about the charter. Um, in. Light of the directive. And since the directive does not apply, the charter doesn't apply. Um, the threshold that it sets for the applicability of the charter is quite high. And so there too, I think we will have um a limiting effect.
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