Explanatory Notes

Schedule 3: Protection for certain rights, safeguards etc. in Belfast Agreement

472 The purpose of Schedule 3 is to make provision for the ‘no diminution’ commitment and the arrangements necessary for the ‘dedicated mechanisms’ required under Article 2(1) of the Protocol on Ireland/Northern Ireland. That Article states that there is to be no diminution of rights, safeguards and equality of opportunity as set out in the ‘Rights, Safeguards and Equality of Opportunity’ chapter of the Belfast (Good Friday) Agreement 1998 in Northern Ireland resulting from the UK’s withdrawal from the EU, including in the area of protection against discrimination enshrined in the provisions of EU law listed in Annex 1 to the Protocol. This is to be implemented by way of ‘dedicated mechanisms’.

473 Paragraph 1 highlights that the subsequent sections make amendments to the Northern Ireland Act 1998.

474 Paragraphs 2 and 3 of Schedule 3 contain the following amendments to the Northern Ireland Act 1998:

a. paragraph 2 inserts a fetter into section 6(2) of the Northern Ireland Act 1998, which prevents the Northern Ireland Assembly from legislating incompatibly with Article 2(1) of the Protocol;

b. paragraph 3 inserts a fetter into section 24(1) of the Northern Ireland Act 1998 which prevents Northern Ireland Ministers and departments from acting in a way which is incompatible with Article 2(1) of the Protocol.

475 Paragraphs 4 and 6 insert new subsections into section 69 and 74 of the Northern Ireland Act 1998 respectively, signposting to the new sections of that Act which set out the new functions and powers of the Northern Ireland Human Rights Commission (NIHRC) and the Equality Commission for Northern Ireland (ECNI) as part of the ‘dedicated mechanisms’, as required under Article 2(1) of the Protocol.

476 Paragraph 5 amends section 71 of the Northern Ireland Act 1998 to clarify the NIHRC’s ‘own motion’ standing powers to challenge the compatibility of legislation with the European Convention on Human Rights, via the Human Rights Act 1998. The combined effect of these amendments is that the criteria and restrictions set out in section 71(2B)(a)-(d) do not apply where the NIHRC brings these proceedings under section 69(5)(b) (proceedings involving law or practice relating to the protection of human rights) and the NIHRC will be able to bring these proceedings without being required to show that there would be an actual or potential victim.

477 Paragraph 7 inserts new sections 78A to 78E into the Northern Ireland Act 1998 which set out the functions the NIHRC and ECNI will have as part of the dedicated mechanism.

Section 78A - NIHRC functions in relation to EU withdrawal agreement

478 New section 78A of the Northern Ireland Act 1998 sets out the functions of the NIHRC as part of the dedicated mechanism.

479 The NIHRC will be required to monitor the implementation of Article 2(1) of the Protocol (78A(1)). It will also be required to report to the Secretary of State and the Executive Office in Northern Ireland on the implementation of Article 2(1) of the Protocol (78A(2)) and may require them to reply to such a report and explain what steps they have taken, or are planning to take, in response to any recommendation/s contained in the report (78A(3)). Where the NIHRC makes such a report under subsection (3), the Secretary of State must lay a copy of that report before Parliament and the Executive Office must lay a copy of it before the Assembly (78A(4)).

480 This section also includes a duty to advise the Secretary of State and the Executive Committee of the Assembly of legislative and other measures that ought to be taken to implement the commitment in Article 2(1) (78A(5)). The NIHRC is also required to advise the Assembly on the compatibility of proposed Assembly legislation with Article 2(1) of the Protocol (78A(6)) and to promote understanding and awareness of the importance of Article 2(1) through research and educational activities (78A(7)). This section also allows the NIHRC to publish its advice and the outcome of its research (78A(8)) and to bring any appropriate matters to the attention of the Specialised Committee referred to in Article 14(c) of the Protocol (78A(9)).

Section 78B - ECNI functions in relation to EU withdrawal agreement

481 New section 78B of the Northern Ireland Act 1998 sets out the functions of the ECNI as part of the dedicated mechanism, which are the same as the functions of the NIHRC in relation to Article 2(1) of the Protocol.

482 The ECNI will be required to monitor the implementation of Article 2(1) of the Protocol (78B(1)). It will also be required to report to the Secretary of State and the Executive Office in Northern Ireland on the implementation of Article 2(1) of the Protocol (78B(2)); and may require them to reply to such a report and explain what steps they have taken, or are planning to take, in response to any recommendation/s contained in the report (78B(3)). Where the ECNI makes such a report under subsection (3), the Secretary of State must lay a copy of it before Parliament and the Executive Office must lay a copy of it before the Assembly (78B(4)).

483 This section also includes a duty to advise the Secretary of State and the Executive Committee of the Assembly of legislative and other measures which ought to be taken to implement the commitment in Article 2(1) (78B(5)). The ECNI is also required to advise the Assembly on the compatibility of proposed Assembly legislation with Article 2(1) of the Protocol (78B(6)) and to promote understanding and awareness of the importance of Article 2(1) through research and educational activities (78B(7)). This section also allows the ECNI to publish its advice and the outcome of its research (78B(8)) and to bring any appropriate matters to the attention of the Specialised Committee referred to in Article 14(c) of the Protocol (78B(9)).

Section 78C - Power of Commissions to bring, or intervene in, legal proceedings

484 This section provides that both the NIHRC and the ECNI can bring judicial proceedings, in respect of an alleged breach (or potential future breach) of Article 2(1) of the Protocol. The NIHRC and ECNI can also intervene in legal proceedings in so far as they relate to an alleged breach (or potential future breach) of Article 2(1) of the Protocol. Subsection (2) clarifies that this does not create a new cause of action.

Section 78D - Power of Commissions to assist persons in legal proceedings

485 This section enables the NIHRC and ECNI to assist a person in proceedings, or proposed proceedings, in so far they relate to an alleged breach (or potential future breach) of Article 2(1) of the Protocol.

486 Subsection (2) lays out the situations in which the NIHRC and ECNI can grant an application for assistance, namely where the proceedings in question raise a question of principle, where it would be unreasonable to expect a person to pursue the proceedings without assistance due to their complexity, because of the person’s position in relation to another person involved or for some other reason, or where there are other special circumstances which make it appropriate for the NIHRC or ECNI to provide assistance.

487 Subsection (3) states that where the NIHRC or ECNI grants an application for assistance, it can provide or arrange for the provision of legal advice; arrange for the provision of legal representation; and provide any other assistance which it thinks is appropriate.

488 Subsection (4) provides that arrangements made for the provision of assistance may include provision to recover expenses from the person in certain circumstances.

Section 78E - Collaborative working

489 This section states that the NIHRC and ECNI can arrange for any of their functions under the above sections to be carried out either by acting jointly or by one of them acting on behalf of the other.

490 Paragraph 8 of Schedule 3 of this Bill adds the new sections 78A to 78E to the list of reserved matters contained in paragraph 42 of Schedule 3 of the Northern Ireland Act 1998, meaning that the Northern Ireland Assembly would only be able to legislate for the matters to which those sections relate with the consent of the Secretary of State.

 

Prepared 19th December 2019