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EC/21/01/03
EQUALITY COMMISSION FOR NORTHERN IRELAND
Implementation of the Dedicated Mechanism: Briefing Paper
January 2021
Purpose
The purpose of this briefing paper is to update Commissioners on
developments relating to establishment and implementation of
Dedicated Mechanism (DM) since the November 2020 Commission
meeting, as well as the planned next steps.
Summary
There has been a number of developments relevant to the establishment
of the DM since the Commission update in November 2020.
These include the coming into operation of the DM on 1 January 2021,
as well as ongoing and regular engagement with the NIHRC, and
engagement with a range of key stakeholders, including equality and
human rights stakeholders, and the Executive Office Assembly
Committee.
There has been a further meeting of the EU/UK Joint Committee, as well
as political and legislative developments of relevance to the Protocol,
including the Internal Market Bill (IMB), and the EU/UK Trade
Agreement.
Planned next steps include ongoing engagement the NIHRC, and joint
work with the Irish Human Rights and Equality Commission (IHREC) to
progress a MOU to govern all island oversight arrangements; and
engagement with the Independent Monitoring Authority (IMA).
Action Required by Commissioners
Commissioners are asked to note the update and the planned next
steps.
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EQUALITY COMMISSION FOR NORTHERN IRELAND
Operation of the Dedicated Mechanism: Briefing Paper
January 2021
1 Background
1.1 There has been a number of developments relevant to the
establishment and the implementation of the DM since the
November 2020 Commission update paper.
1.2 These include in relation to the Commission’s work to establish
the DM; ongoing and regular engagement with the NIHRC; and
engagement with a range of key stakeholders, including the
including the Irish Human Rights and Equality Commission
(IHREC), the Executive Office Assembly Committee, and
equality and human rights stakeholders.
1.3 There has been a further meeting of meeting of the UK-EU
Joint Committee. There have also been political and legislative
developments of relevance to the Protocol, including relating to
the Internal Market Bill (IMB), and the EU/UK Trade
Agreement.
2 Update on developments
Commencement of DM functions.
2.1 Commissioners will note that the powers and duties of the DM
came into effect officially on 1 January 2021, following the end
of the Brexit transition period, and the coming into force of the
legislation commencing the DM functions. 1
1 Regulation 5, The European Union (Withdrawal) Act 2018 and European Union (Withdrawal
Agreement) Act 2020 (Commencement, Transitional and Savings Provisions) Regulations 2020.
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2.2 As set out in more detail below, the Commission, in partnership
with the NIHRC, undertook a number of communication
activities to mark the commencement of its role.
ECNI work on Dedicated Mechanism
Resourcing of Dedicated Mechanism Unit
2.3 Steps have been taken since the November 2020 Commission
meeting to recruit additional permanent staff (staff officer grade)
to the legal and policy/research teams, following external
recruitment exercises, as well as to recruit additional temporary
staff (staff officer) to the legal and communications teams.
2.4 Externally commissioned training on judicial review is being
secured to provide to relevant staff, including DMU staff and
Commissioners, in late February/ early March 2021.
Engagement with NIHRC
2.5 The Commission has had ongoing and regular engagement
with the NIHRC on a range of matters relating to the
establishment and operation of the DM.
2.6 This has included the joint communications work, joint
engagement with key stakeholders and, as set out below, work
to progress all island scrutiny arrangements with the IHREC.
All Island scrutiny work
2.7 Following approval by Commissioners at the November 2020
Commission meeting on the proposed arrangements to govern
oversight of the all island dimension on rights and equalities
falling within the scope of the Article 2(1) commitment, the
Chief Executive has engaged with NIHRC and IHREC to
progress these arrangements.
2.8 It is proposed that a meeting of the Working Group consisting
of the Chief Commissioners, a Board member from each
organisation and the Chief Executives will take place in early
February.
2.9 This meeting will discuss a working draft Memorandum of
Understanding (MOU) between the three Commissions to
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underpin the agreed arrangements for all-island scrutiny work,
among other issues. It is proposed that Commissioners’
approval of the draft MOU will be sought thereafter at the
February 2021 Commission meeting and similar approval will
be sought by NIHRC and IHREC Commissioners
2.10 It is also proposed that a meeting of all Commissioners of the
respective Commissions will take place in March, following the
adoption of the MOU by all three Commissions.
2.11 It has also been proposed that, as part of the all island scrutiny
of Article 2, the Commissions engage with representatives from
civil society and NGOs from both Ireland and Northern Ireland
to hear views and concerns on matters of relevance to the role
and remit of the Commissions’ work on all island scrutiny. Plans
will be made to organise such engagement in the coming
period.
Engagement with key stakeholders
2.12 The Commission has engaged with a number of key
stakeholders to raise awareness of the role and remit of the
DM, as well as on the Article 2 commitment.
2.13 The Chief Commissioner, along with the Chief Commissioner of
the NIHRC and the Chief Commissioner of the IHREC, gave
evidence before the Assembly Committee for the Executive
Office to provide an update on the work of the Commissions in
relation to their oversight roles as regards the UK
Government’s commitment in Article 2 of the Protocol.
2.14 The Chief Commissioner set out the work undertaken to
establish and staff the DM and to raise awareness of the Article
2 commitment and the powers of the Equality Commission and
the NIHRC to oversee and monitor this commitment. She also
highlighted progress being made on joint working between the
Equality Commission, NIHRC and IHREC on all island scrutiny.
2.15 Issues raised by Committee members included: the impact of
the UK Internal Market Bill (IMB) on rights; the need for
adequate arrangements between UK and EU to ensure that the
Assembly is kept abreast of changes to the rights framework;
concerns about a democratic deficit, of having to follow EU
rules with no say in their development; and concerns relating to
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the UK’s European Settlement Scheme; frontier workers; and
racial profiling.
2.16 The Chief Executive spoke at an event on ‘Fundamental Rights
and the Protocol’ as part of the Irish Centre for European
Law/Queens University Belfast seminar series on ‘The Ireland-
Northern Ireland Protocol to the Brexit Withdrawal Agreement’
in November 2020 to raise awareness of the Article 2
commitment and powers and functions of the DM. This was
well attended by academics, lawyers and public servants and
led to useful discussions on the scope of the commitment.
2.17 As part of the 2020 Northern Ireland Human Rights Festival,
the DMU organised and delivered a Seminar entitled ‘After
Brexit: Protecting your Equality and Human Rights’ on 9
December 2020. Fifty participants attended from across a wide
range of government and non-government organisations,
voluntary and interest groups as well as members of the wider
general public. The Commission’s Chief Executive and the
NIHRC Chief Commissioner delivered presentations and
delegates had the opportunity to ask questions on the work,
including planned work, of the DM. Positive feedback was
received from delegates following the seminar.
2.18 There has been ongoing liaison with The Executive Office
(TEO) officials on opportunities to engage with key officials
across government departments going forward, as well as an
update meeting with the NIO in December 2020.
2.19 There has also been initial joint engagement with staff in the
Labour Relations Agency in relation to Brexit and the potential
impact on employment rights.
2.20 In December 2020 the Department for Agriculture and Rural
Affairs (DAERA) confirmed that from 1 January 2021, Pet
Passports issued in the UK are no longer valid for travel from
GB to NI and to EU countries. Interim measures are in place
and a new UK (NI) branded EU Pet Passport will be available in
due course.
2.21 From 1 January 2021, GB is considered a Part 2 listed country
for the purposes of pet travel, and therefore pet owners need to
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ensure all the health checks and necessary documentation are
in place before travelling to NI with their pets, and this includes
assistance dogs.
2.22 Following the changes, concerns were raised by a Guide Dogs
charity about the impact of the new arrangements on the guide
dog puppies.
2.23 The Commission has followed up on concerns raised by
stakeholders relating to movement of assistance dogs between
GB and Northern Ireland as a result of changes to pet passport
arrangements post Brexit. This has included engagement with
IMTAC2 on the issue and we have sought clarification from
DEARA on the matter.
2.24 As part of our joint evidence on Brexit with the NIHRC to the
Northern Ireland Affairs Committee, we raised concerns about
the impact of such changes to the pet passport arrangements.
The Chair of the Committee has recently written to the Minister
of State for Disabled People raising concerns about the
placement of assistance puppies in Northern Ireland for training
and on the costly and burdensome obstacles faced by people
travelling from GB to NI with assistance dogs. The letter urged
the Government to explore the possibility of agreeing flexibility
under the Protocol within the UK-EU Joint Committee to allow
for unhindered travel for assistance dogs between GB and NI. 3
Communications work
2.25 Funded by the NIHRC, an advert has been placed in regional
and local newspapers across Northern Ireland. The advert
outlined the UK Government’s commitment to equality and
human rights under Article 2 (1), the role of both Commissions,
and provided contact information for those seeking assistance.
2.26 A number of digital articles and press statements have been
issued to raise awareness of the new roles of both
Commissions.
2Independent Mobility Transport Advisory Committee
3Correspondence from the Chair of the NI Affairs Committee, Simon Hoare MP, to the Minister of
State for Disabled People, Justin Tomlinson MP, 15 January 2021.
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2.27 These include:
• An article, ‘Equality & Human Rights Protection Post Brexit’
which ran in the Belfast Telegraph outlining a joint statement by
both Chief Commissioners on equality and human rights
protections post Brexit on 5 December 2020.
• A press release and web article, ‘Human Rights and Equality
Bodies provide Brexit evidence to NI Assembly’, which
highlighted the Commissions’ evidence session at the
Assembly Executive Office Committee on the 16 December
2020.
• A press release and web article, ‘New Equality and Human
Rights Oversight Roles Begin’, which was released on the 4
January 2021 to mark the beginning of the Commissions’ new
oversight roles as the DM.
2.28 Social media has also been used to promote the role of the
Commission with regular postings in this regard.
2.29 Information on the role of the DM and the Article 2
commitments have also been communicated to a range of
partners and groups through inclusion in the Commission’s E-
zines in both December 2020 and January 2021.
2.30 In addition, prior to the commencement of its role as part of the
DM, the Commission’s website was updated to promote
awareness and understanding of Article 2 of the Protocol and
the role and remit of the DM.
Legal work
2.31 The Commission received updated legal advice on the scope of
Article 2(1) commitment in December 2020 and is currently
reviewing the same.
2.32 Work has been progressed to develop a draft Article 2 Legal
Advice and Assistance Policy. This policy will assist the
Commission in its consideration of applications for assistance
from individuals alleging a breach of their rights under Article 2
(1). Commissioners’ approval of the draft Legal Advice and
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Assistance Policy will be sought at the February 2021
Commission meeting.
EU oversight bodies
2.33 The fifth meeting of the EU-UK Joint Committee, which
oversees the implementation of the Withdrawal Agreement,
took place on the 17 December.4 At this meeting a number of
decisions were taken relating to the operation of the
Ireland/Northern Ireland Protocol. 5 In addition, the UK
Government and EU Commission made a number of unilateral
declarations.6 There was no specific reference to the Article
2(1) commitment or work to progress the DM in these decisions
or declarations.
2.34 There have been no further meetings of the Ireland/Northern
Ireland Protocol Specialised Committee since the November
2020 update.
2.35 A meeting of the Joint Consultative Working Group has not yet
taken place. This Group is to act as an important forum for the
exchange of information and mutual consultation and will report
to the Specialised Committee7.
Political/legislative developments:
Internal Market Bill
2.36 We informed Commissioners at the last meeting that, in
response to a request from Baroness Margaret Ritchie, one of
the signatories to the amendment which the Commission and
NIHRC had sought during the passage of the Internal Market
4 EC (2020), Statement by the European Commission following the fifth meeting of the Joint
Committee, 17 December 2020
5 EC (2020), Decisions No 2/2020 to 7/2020 taken by the Joint Committee on 17 and 22 December
2020 following its fifth ordinary meeting.
6 UK Government (2020), Unilateral declarations of 17 December 2020 by the UK and EU on export
declarations, meat products, official certification, human and veterinary medicines and Article 10(1) of
the Ireland/Northern Ireland Protocol.
7 The Joint Consultative Working Group was established under Article 15 of the Ireland/ Northern
Ireland Protocol of the Withdrawal Agreement.
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Bill (IMB) through the House of Lords, the Government agreed
to respond in full to a letter from the peer.
2.37 The Minister subsequently wrote to Baroness Margaret Ritchie
on 26 November 2020. The letter gave assurances that
addressed the concerns raised by the Commissions. In
particular, it clarified that, if the Assembly adopts requirements
relating to the sale of goods in NI, and those requirements
implement legislation applying to NI under the Protocol, the IMB
provisions will not interfere with those requirements. 8 This letter
has been deposited in the House of Lords Library 9.
2.38 The Secretary of State for Northern Ireland subsequently wrote
to the Commission and the NIHRC setting out those
assurances.
2.39 This was an important intervention by the Commission, working
in partnership with the NIHRC, as we considered it vital that the
IMB did not undermine the Article 2 commitment, the remit of
the DM, or the rights of individuals under Article 2.
2.40 Following the high-level agreement between the UK
Government at the EU Commission in December 202010 and
the subsequent decisions of the Joint Committee and unilateral
declarations of the UK Government and EU Commission, the
UK Government did not reinsert the provisions from Part 5 of
the Internal Market Bill relating to disapplying parts of the
Ireland/Northern Ireland Protocol, which had been removed by
amendments in the House of Lords, when it returned to the
House of Commons.
2.41 The UK Internal Market Act 2020 received Royal Assent on 17
December 2020. 11
8 Letter from Lord Callanan to Baroness Ritchie of Downpatrick regarding issues raised during the
Report stage (first and second days) of the United Kingdom Internal Market Bill, 26 November 2020.
9 Letter from Lord Callanan to Baroness Ritchie of Downpatrick regarding issues raised during the
Report stage (first and second days) of the United Kingdom Internal Market Bill, 26 November 2020.
10 EC (2020), Statement of the European Commission Vice-President Šefčovič following the fifth
meeting of the Joint Committee, 17 December 2020.
11 UK Internal Market Act 2020.
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EU/UK Trade Agreement
2.42 The UK and EU signed a Trade and Cooperation Agreement on
24 December 2020. 12
2.43 The UK Parliament was recalled on 30 December 2020 and the
EU (Future Relationship) Act was enacted to give effect to the
Trade and Cooperation Agreement in the UK.13 The European
Council has adopted a decision to sign the UK-EU Trade and
Cooperation Agreement and for its provisional application in
advance of the EU’s formal ratification procedures.14
2.44 The UK-EU Trade and Cooperation Agreement includes non-
regression provisions on the level playing field, including for
labour and social rights 15.
2.45 The UK and EU can establish their own levels of protection and
any regression below the level in place at the end of the
transition period could trigger rebalancing measures.
2.46 The level playing field provisions in the UK-EU Trade and
Cooperation Agreement are focused on the outcome of any
future rule changes, rather than ensuring the UK and the EU
maintain the same protections.16 Concerns have been raised
that the oversight mechanism is relatively weak as it can only
be triggered where the reduction of standards may impact on
trade or investment, which can be very difficult to prove. 17
2.47 Recent reports in the media have indicated that the UK
Government is considering restricting access in Great Britain to
some rights under the Working Time Directive18, in order to
change how holiday pay entitlements and rest breaks are
calculated. 19 This has raised concerns that the UK
Government is intending to roll back on some workers’ rights
and raises potential issues as to whether this would be
12 UK-EU Trade and Cooperation Agreement, 24 December 2020.
13 EU (Future Relationship) Act 2020.
14 European Council Statement, EU-UK Trade and Cooperation Agreement: Council adopts decision
on the signing, 29 December 2020.
15 Article 6.1-6.6, Title XI: Level Playing Field for Open and Fair Competition and Sustainable
Development UK-EU Trade and Cooperation Agreement, 24 December 2020.
16 Institute for Government (2020), Explainer on the UK-EU Future Relationship: The Deal.
17 Marley Morris (2020), The Agreement on the Future Relationship: A First Analysis (IPPR, 2020).
18 Directive 2003/88/EC concerning Certain Aspects of the Organisation of Working Ttime, 4
November 2003.
19 Peter Foster, et al (2021), UK Workers’ Rights at Risk in Plans to rip up EU labour market rules,
Financial Times, 14 January 2021.
Page | 10EC/21/01/03
considered a significant reduction in level playing field
standards to impact on trade or investment, and thereby trigger
potential rebalancing mechanism under the UK-EC Trade and
Cooperation Agreement.
2.48 The EU Charter of Fundamental Rights now no longer applies
in Northern Ireland, except to the extent the specific provisions
are captured by Article 2(1) of the Protocol. There are some
human rights safeguards in the UK-EU Trade and Cooperation
Agreement, particularly in relation to justice and security
cooperation.20 In addition, the UK or EU can move to terminate
the Agreement where one party breaches the ‘essential
elements’ of the partnership, including ‘democracy, rule of law
and human rights’. 21
Northern Ireland Affairs Committee
2.49 Commissioners will recall from the paper considered at the
November meeting that the Commission was to submit joint
evidence with the NIHRC to the NI Affairs Committee’s Inquiry
into Brexit and the NI Protocol22 . We did this on 18 December;
a copy is available for information under Matters for Information
on the agenda. The deadline for submission of evidence has
now been extended to 28 February 2021.
2.50 As noted above the Chair of the Committee has subsequently
written to the Minister of State for Disabled People asking for
the UK Government to explore a flexible approach to
implementing the Protocol within the UK-EU Joint Committee to
permit unhindered travel for assistance dogs and their owners
between GB and NI. 23
3 Planned next steps
3.1 In terms of planned next steps, we will continue to progress
plans to ensure effective arrangements are in place so as
ensure that the Commission, in partnership with the NIHRC,
20 Article LAW.GEN.3 UK-EU Trade and Cooperation Agreement, 24 December 2020.
21 Article COMPROV.12 UK-EU Trade and Cooperation Agreement, 24 December 2020.
22 NI Affairs Committee (2020), Inquiry into Brexit and the NI Protocol.
23 Correspondence from the Chair of the NI Affairs Committee, Simon Hoare MP, to the Minister of
State for Disabled People, Justin Tomlinson MP, 15 January 2021.
Page | 11EC/21/01/03
effectively carries out the functions of the DM, including to
monitor, advise, report on, and enforce the Article 2
commitment.
3.2 We will continue to work closely with the NIHRC across a range
of areas including communications work and work to develop a
Communications Strategy and action plan.
3.3 In terms of all-island scrutiny of the Article 2 commitment of the
Protocol, as set out above, the ECNI will continue to work with
the NIHRC and IHREC to progress a MOU, and future work,
including engagement with civil society representatives.
3.4 In terms of stakeholder engagement, the Commission will
continue to engage with key stakeholders to raise awareness of
the role and remit of the DM and the Article 2 commitment. This
will include engagement with Independent Monitoring Authority
(IMA) shortly, to ensure there is clarity on respective
roles/remits.
3.5 The Commission has been invited to the give evidence to the
NI Assembly Ad Hoc Committee on a Bill of Rights. We will
work with colleagues to raise awareness of the DM policy
recommendations through input into a draft position paper on
the proposed NI Bill of Rights, which will be submitted for
consideration by Commissioners at the February Commission
meeting.
3.6 As highlighted above, Commissioners’ approval of a draft
Article 2 Legal Advice and Assistance Policy will be sought at
the February Commission meeting.
3.7 In terms of research, we also plan to progress work to
commission research relating to:
• the impact of Brexit on equality groups; and
• Parliamentary and NI Assembly scrutiny mechanisms in
relation to Article 2.
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Action Required by Commissioners
Commissioners are asked to note the update and the planned next
steps.
C McCann/R Mallon
Dedicated Mechanism Unit
January 2021
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