Professor Colin Murray,
Newcastle Law School
Photo credit: Wknight94,
via Wikimedia
Commons
Introduction
The courtroom was anything but
packed on a grey Monday morning in Belfast. There were no camera crews outside.
And yet, for a small band of cognoscenti who gathered to hear Humphreys J’s
decision, something significant was about to happen. The UK Government’s
keystone migration legislation, the Illegal
Migration Act 2023 (providing for the “outsourcing” of asylum claims to third
countries), was about to be confronted with the fact that it had made extensive
rights commitments specific to Northern Ireland within the UK-EU
Withdrawal Agreement. Either these immigration measures were going to be
found not to apply to Northern Ireland, or some violence was going to be
inflicted upon the rights commitments made to Northern Ireland.
The momentousness of this moment
should not have come as a surprise; the workings of Article 2 of the Windsor
Framework were settled as far back as 2018, whereas other special post-Brexit provisions
for Northern Ireland have been repeatedly redrawn. In 2021, its operation was
described by the UK Government as “not
controversial”, at a time when they were eager to see significant changes
to other parts of the then Protocol. The significance of Article 2 has been highlighted
many,
many,
many
times on this blog. So how did the judgment in Re NIHRC’s
Application sneak up on the UK Government?
Article 2
Article 2 of the Northern Ireland
Protocol (as was) was a vital provision for the UK’s Brexit policy. It provides:
1. The United
Kingdom shall ensure that no diminution of rights, safeguards or equality of
opportunity, as set out in that part of the 1998 Agreement entitled Rights,
Safeguards and Equality of Opportunity results from its withdrawal from the
Union, including in the area of protection against discrimination, as enshrined
in the provisions of Union law listed in Annex 1 to this Protocol, and shall
implement this paragraph through dedicated mechanisms.
2. The United
Kingdom shall continue to facilitate the related work of the institutions and
bodies set up pursuant to the 1998 Agreement, including the Northern Ireland
Human Rights Commission, the Equality Commission for Northern Ireland and the
Joint Committee of representatives of the Human Rights Commissions of Northern
Ireland and Ireland, in upholding human rights and equality standards.
Whereas trade elements related to
Northern Ireland could be connected to the 1998 Agreement (better known as the
Belfast or Good
Friday Agreement) through the operation of cross-border bodies, the
connection with regard to rights and equality law was direct. The 1998
Agreement set out a new basis for a post-conflict governance order in Northern
Ireland based on the rights of everyone in the community, and in the years since
the Agreement, extensive elements of those rights protections were grounded in
EU law. The UK Government would have faced an uphill struggle to maintain that
Brexit did not impact its commitment to the “letter and spirit” of the 1998
Agreement without providing specific rights and equality assurances in the
Northern Ireland context.
In the SPUC
case of 2023 the Northern Ireland Court of Appeal refined this commitment into
a six stage test (para 54):
A right (or
equality of opportunity protection) included in the relevant part of the
Belfast/Good Friday 1998 Agreement is engaged.
That right was
given effect (in whole or in part) in Northern Ireland, on or before 31
December 2020.
That Northern
Ireland law was underpinned by EU law.
That
underpinning has been removed, in whole or in part, following withdrawal from
the EU.
This has
resulted in a diminution in enjoyment of this right; and
This
diminution would not have occurred had the UK remained in the EU.
Every element of this test must
be fulfilled if a case based around non-diminution is to succeed.
The non-diminution commitment is
not simply an international law obligation upon the UK; under section 7A of
the European Union (Withdrawal) Act 2018, Article 2 appears to operate within
the UK’s domestic jurisdictions with the same effect as EU law had prior to
Brexit. In other words, reflecting the commitment in Article 4 of the
Withdrawal Agreement to retaining the legal effect of EU law as regards the
withdrawal agreement, this provision enables the courts to disapply statutes
which conflict with its terms. And yet, in a bizarre hostage to fortune, when
it was aware that legal challenges to the Illegal Migration Act under Article 2
were already underway, the UK Government issued assurances as part of the Safeguarding
the Union Command Paper in January 2024 that ‘the Windsor Framework applies
only in respect of the trade in goods’ (para
46). The new judgment undermines this claim (which, even at first glance,
was always inaccurate).
The Illegal Migration Act
Section 2
of the Illegal Migration Act 2023 imposes a duty on the Home Secretary to make
arrangements for the removal of the vast majority of asylum seekers who entered
the UK after the Act was passed, including the sending of such individuals to
Rwanda. Section
5 makes this duty applicable implicitly notwithstanding a range of
international law, from the terms of the Refugee Convention to those of the
European Convention on Human Rights (ECHR), which might ordinarily be asserted
by the individual in question.
The 2023 Act is thus a difficult
statute to effectively challenge on the basis of rights concerns. It excludes
the use of the interpretive duty under section 3 of
the Human
Rights Act 1998 (ie the obligation to interpret domestic law compatibly with
the ECHR ‘[s]o far as it is possible to do so’), leaving the domestic courts
only able to declare the statute incompatible with the incorporated ECHR rights
under section
4 of the Act (an outcome which does not impact the validity of the
statute.) Although Humphreys J did find swathes of the Act incompatible with the
ECHR rights as part of the Re NIHRC judgment, and therefore issued a declaration
of incompatibility, this does not lead to any effective remedy.
The 2023 Act does not, however,
negate the effect of claims made under Article 2 of the Windsor Framework
insofar as it applies to Northern Ireland – a separate question from the compatibility
of that Act with the Human Rights Act. And so the main arguments relating to
the Act were thus channelled through the non-diminution commitment and into the
way EU law still works in the Northern Ireland context, which held out the
possibility of disapplication of the Illegal Migration Act.
The High Court Judgment
Disapplication of a statute is a
significant outcome – as Humphreys J recognised in his decision “parliamentary
sovereignty remains a fundamental tenet of our constitutional law” (para 37).
But he also acknowledged that for as long as the UK was part of the EU,
national law could not have legal effect insofar as it undermined EU law (the
position reached in the Factortame
case in the early 1990s). The issue was whether this approach continued to
apply in the same way with regard to Article 2 of the Windsor Framework. For
the UK Government Article 2 was simply an “an obligation of result”; it was not
that the relevant elements of EU law continued to be “made applicable” in
Northern Ireland law, but rather that Article 2 “set a benchmark by which rights
can be measured and no diminution ensured” (para 49). The problem with this
argument is that it flies in the face of the wording of Article 4 the
Withdrawal Agreement and Parliament’s commitments under section 7A of the European
Union (Withdrawal) Act; “its provisions … shall produce in the UK the same
legal effects as those which they produce in EU Member States” (para 54). The
Windsor Framework is an integral part of the Withdrawal Agreement and therefore
“Factortame is still in play since the rights and obligations under the
WA must prevail over any inconsistent domestic law” (para 57). There was
nothing of legal significance to the UK Government’s supposed distinction
between the provisions of the Agreement and EU law made applicable under it.
The Government’s next ploy was to
claim that the human rights obligations contained within the 1998 Agreement
could not be applied to asylum seekers. In the Government’s view, that Agreement
was all about “warring factions” in Northern Ireland, something that had no
relevance to immigration policy. Remember that under the first limb of the SPUC
test there must be a connection between the right being claimed and the 1998
Agreement (the whole point of the UK Government’s commitment was, after all, to
insulate Brexit from claims that the 1998 Agreement was being undermined). Humprhreys
J acknowledged that, in some cases, it will be a difficult task for the courts
to establish the relevant connection:
Article 2 of
the WF is an unusual provision in that it seeks to incorporate into law a
chapter of the B-GFA which was never intended to create binding legal rights
and obligations. It was the product of lengthy negotiations between political
parties, the UK and Irish Governments, and contains statements of aspiration as
well as legal right. A document renowned for its ‘constructive ambiguity’ does
not lend itself easily to the tenets of statutory construction. (para 67)
This, however, is not one of
those cases. The 1998 Agreement makes explicit commitments over the “civil
rights … of everyone in the community”. A natural reading of these terms
encompasses asylum seekers, and for Humphreys J, although the 1998 Agreement “did
not expressly reference immigration or asylum, there is no basis to exclude
such individuals from the wide compass of “everyone in the community” (para
69). The brilliance of this judgment is to directly face down the high-handed
assumptions which underpinned the Government’s case. After decades of conflict,
the 1998 Agreement made a commitment to ground the governance of Northern
Ireland in the human rights of all; it did not treat human rights as being
particularised to a sectarian context.
After these (always tenuous)
arguments failed, the Government’s legal position collapsed. Most of the public case around the Illegal Migration Act
was that it was a great triumph of Brexit; the UK Government was able to put
the Rwanda scheme in place because it could now depart from the requirements of
the Qualification
Directive, the Procedures
Directive, the Dublin
III Regulation and the Trafficking Directive.
And so, time and again in the judgment, the Government accepted that the
legislation involved a diminution of the protections mandated by these aspects
of EU law; “the respondents accept that, in a category of case, the IMA, once
in force, will result in a diminution of right” (para 116, see also para 133).
For all the bluster that has accompanied the judgment, the UK Government knew
(it did not need the court to rule) that it was acting to hollow out these EU
law requirements. Indeed, it was able to do so, with regard to Great Britain,
because of Brexit. It had not, however, given sufficient consideration to the
implications of the specific commitments it had made in the Northern Ireland
context.
It was thus straightforward for
the Court to conclude that “there is a diminution of rights brought about by
the enactment of the IMA” (para 117) and the remedy of disapplication of extensive
provisions of the statute within the law of Northern Ireland flowed as a direct
consequence of this. And who is responsible for this? Once again, Humphreys J
is clear: “This outcome does not occur at the whim of the courts but represents
the will of Parliament as articulated in the Withdrawal Act” (para 175).
Conclusion
The outcome in the High Court is
therefore far from legally controversial. The UK Government’s efforts towards
asserting that Article 2 was an obligation as to result, entirely within its
keeping, was a desperate ploy, which would have denuded the entire provision of
legal significance without any basis for doing so. Once this proposition was
rejected, the Government’s case was lost, and it has found itself in a fluster
ever since. Tom Pursglove
went as far as to mislead Parliament in responding to an Urgent Question about
the decision with an assertion that ‘our approach is compatible with
international law’. It isn’t, and the UK Government accepted that it wasn’t
when it enacted the legislation (it acknowledged, on introducing the
legislation that, it could
not issue a statement that the legislation was compatible with the ECHR).
And yet it sticks doggedly to its claims that the court’s decision involved an
unwarranted “expansion” of the 1998 Agreement.
The question remains, however,
why this decision came as such a shock? Why were the media not primed and ready
for a Northern-Ireland-shaped hole to be knocked in UK immigration policy? As
so often in debates over Brexit, this surprise is largely the product of
neglect of commitments made towards Northern Ireland. Article 2 was agreed as
an essential part of closing off claims that Brexit undermined the rights
elements of the 1998 Agreement, so many of which had come to be underpinned by
EU law. But once this part of the deal was done, it quickly faded into the
background.
The recurring crisis over trade
policy consumed such attention that the UK Government lost sight of the fact
that it had agreed to a higher baseline of rights commitments for Northern
Ireland by comparison to the rest of the UK. When the law related to Northern
Ireland is complex and unique it is all too easy for wishful thinking to become
dominant in the corridors of Westminster and Whitehall. The Article 2 commitment
doesn’t fit with the narrative of “take back control”, but the UK’s
Conservative Government remains all too eager to present commitments it willingly
made as hardships that have been inflicted upon it.
