Description
Article 2 of the Protocol on Ireland/Northern Ireland commits the United Kingdom to there being “no diminution of rights, safeguards and equality of opportunity” in Northern Ireland as a result of the UK's withdrawal from the EU. This relates to the section on that theme included in the 1998 Good Friday (Belfast) Agreement. Whereas the rights and safeguards set out in the 1998 Agreement were largely political commitments rather than legally-enforceable, their reference in the Protocol gives them a much more significant status. Moreover, it has led to an unprecedented situation in which the protection of rights in Northern Ireland under Article 2 now has implications for laws made in Westminster. Recent rulings by the High Court and Court of Appeal in Belfast (on the Legacy Act and Illegal Migration Act) have found the Article 2 commitments to have reach-back into the whole of the UK. These rulings are being challenged by the UK Government, which apparently does not wish for its powers to be constrained by commitment to be ECHR-compliant and to uphold certain other rights in Northern Ireland. Moreover, it does not wish to see an asymmetry in rights protections across the UK. Giving both legal explanations and examples of the practical and political implications of Article 2, this paper explores how Article 2 has become one of the most consequential aspects of the Protocol, with implications for the UK and EU that were genuinely unexpected at the time it was negotiated.
