In early 2014, Siobhan McLaughlin, a 44-year-old from Armoy in Co Antrim, applied to the Department of Communities in Belfast for a Widowed Parent’s Allowance (WPA) after her partner John Adams died.
The couple had four children and had lived together for 23 years.
John had made sufficient contributions to the WPA so Siobhan would have been entitled to claim the allowance.
The authorities, however, refused. The couple weren’t married.
Siobhan challenged the decision in the Northern Ireland courts claiming it contravened the European Convention on Human Rights (ECHR), in particular its ban on discrimination on the basis of marital or birth status.
The case went all the way to the UK Supreme Court.
On 31 August, the court ruled 4-1 in favour of Ms McLaughlin. Denying her and her children the widow’s allowance breached the European Convention.
Those who fear that Brexit will destabilise a hard-fought set of overlapping rights point to the McLaughlin case as a salutary reminder of what is at stake.
While most of the heat around Brexit concerns the Irish backstop, some law experts and activists are worried that when Britain leaves the EU, taking Northern Ireland with it, it will undermine those rights deriving from the EU and Good Friday Agreement (GFA).
This week RTÉ News reported that the Committee on the Administration of Justice (CAJ), had lodged a formal complaint with the EU Ombudsman Emily O’Reilly to the effect that a promise to uphold those rights was being watered down.
Ms O’Reilly is expected to announce if the complaint is admissible within the next fortnight.
What is at stake?
The question of rights in Northern Ireland is highly sensitive and political, and with Brexit it is even more complex.
This is because some of the rights enjoyed in Northern Ireland are overlapping, deriving as they do from the Good Friday Agreement, British acts of parliament (some of which are influenced by EU law), and landmark protections like the European Convention on Human Rights, and the EU Charter of Fundamental Rights.
Some of the complexities thrown up by the interplay between Brexit and citizens’ rights need to be resolved in the Withdrawal Agreement, others will have to be worked out in the future relationship.
But let’s start with the Belfast Agreement.
As a peace treaty, the GFA was unique in the way it elevated the importance of human rights, and underpinned those rights through direct reference to the ECHR.
The GFA rights include freedom of political thought, expression and religion, the right to pursue national and political aspirations democratically, and to seek constitutional change by peaceful and legitimate means.
Other rights include the ability to freely choose one’s place of residence, the right to equal opportunity regardless of class, creed, disability, gender or ethnicity, the right to freedom from sectarian harassment, and the right of women to full and equal political participation.
Those rights were fully copper-fastened when the UK incorporated the ECHR into Northern Ireland law.
That meant citizens like Siobhan McLaughlin could have direct access to the courts if there were any breaches of the Convention.
Critically, those courts could overrule the Northern Ireland Assembly and executive if their laws contravened the European Convention.
According to legal experts, the rights-heavy nature of the GFA was a major selling point for nationalists. It also created a vibrant culture of rights awareness within the Northern Ireland legal system and beyond.
"In terms of civil society, which covers an immense range of issues," says Chris McCrudden, a Professor of Human Rights and Equality Law at Queens University, "this was important. It was the major difference between the Good Friday Agreement and [the 1974] Sunningdale [agreement], this very strong rights dimension. It enabled a lot of people to support it, so that the Agreement was not seen as just a political carve up."
The new rights culture enjoyed widespread support.
In 2010, the Northern Ireland Chief Justice Declan Morgan told a Law Society audience in Dublin: "The rights and freedoms protected by the ECHR represent the values of democratic societies throughout Europe. It is the function of courts in our jurisdiction to ensure that those rights are protected and the corresponding duties enforced."
On September 7, 2016 the Chief Constable of the PSNI George Hamilton described the ECHR as follows: "I actually perceive it is as a tool, as a framework, as an instrument of upholding fundamental rights and freedoms that are actually, never mind the decision making model for me as a police officer, it protects me and my family and my community and I think that is something that needs to be cherished."
It is important to emphasise at this point that the ECHR flows from the Council of Europe, the 47-member human rights and democracy organisation based in Strasbourg, and not the European Union.
However, there is a political obligation on all EU member states to incorporate the ECHR into national law. When Britain leaves, that obligation will no longer apply.
Conservative Party hardliners have always loathed of the European Court of Human Rights, which upholds the Convention.
Indeed, two months before the Brexit referendum, one Theresa May, the then Home Secretary, said: "Regardless of the EU referendum, my view is this: if we want to reform human rights law in this country, it isn’t the EU we should leave but the ECHR and the jurisdiction of its court."
It is not clear if the Prime Minister still holds that view.
British rights activists fear that, post-Brexit, the Conservative Party will target the ECHR and replace the Human Rights Act (HRA) of 1998, which incorporated the ECHR, with a British Bill of Rights.
Before the HRA, British courts could simply take note of ECHR judgments, but not be bound by them.
In Northern Ireland, once the HRA came into effect, it not only allowed the courts to strike down decisions by Stormont, it also gave citizens a line of sight of Strasbourg, which was not the case before the HRA was enacted.
"If you wanted to take a case," says Michael Farrell, a former member of the Irish Human Rights Commission, "you had to go through the domestic UK courts, and only then to Strasbourg.
And the domestic courts would say, this is all very interesting but we’re not really bound by it.
With the Human Rights Act you could use that in any court, and it was a much more effective mechanism. And you didn’t have to wait eight years to get to Strasbourg."
So if Britain were to abandon the ECHR and replace the HRA with a Bill of Rights, that could, say critics, have serious implications for Northern Ireland, and the rights provisions in the GFA.
Of course, there are many other elements at stake.
Prof McCrudden has identified eight sets of rights that he says risk being undermined by Brexit.
As well as the rights associated with the ECHR and the GFA, these include the specific rights of Irish (and therefore EU) citizens in Northern Ireland, including EU equality rights, such as non-discrimination on the basis of ethnicity in the provision of goods and services, and non-discrimination on the basis of sexual orientation in employment.
There are other EU-derived rights, such as those which flow from the Working Time Directive, which entitles people to paid holidays, rest periods etc, as well as EU environmental and social welfare directives.
There are rights related to the ability travel, work and study in the other 27 member states.
Finally, there are the rights of non-Irish EU citizens in Northern Ireland, and those rights that relate to the EU’s Charter of Fundamental Rights.
It’s important to note at this stage that, following the referendum, both governments made preserving these rights a priority in the negotiations.
On December 8, the EU and UK signed the Joint Report, concluding months of tortuous negotiations over how to avoid a hard border in Ireland. While Paragraph 49 dealt with the backstop, other key paragraphs dealt with rights.
Paragraph 52 affirms that the GFA "recognises the birth right of all the people of Northern Ireland to choose to be Irish or British or both and be accepted as such."
It continues: "The people of Northern Ireland who are Irish citizens will continue to enjoy rights as EU citizens, including where they reside in Northern Ireland."
Furthermore, the divorce treaty "should respect… the rights, opportunities and identity that come with European Union citizenship for such people."
Both sides would "examine arrangements required to give effect to the ongoing exercise of, and access to, their EU rights, opportunities and benefits."
Paragraph 53 refers to the "Rights, Safeguards and Equality of Opportunity" enshrined in the GFA, and how EU provided a framework for those rights.
As such, the UK was promising "no diminution of rights" as a result of Brexit, even if these rights, and protection against forms of discrimination, derived from EU law – the law from which the UK was departing.
At the European Council one week later, EU leaders gave the green light for Brexit talks to enter the second phase of talks. But they warned that negotiations could "only progress as long as all commitments undertaken during the first phase are respected in full and translated faithfully into legal terms as quickly as possible."
The heart of the complaint lodged with the EU Ombudsman is that the generous protections laid down in the Joint Report have not been "translated faithfully" into the Withdrawal Agreement.
"You had the Joint Report, which made all sorts of commitments, and then you had the draft Withdrawal Agreement, which significantly waters them down," says Daniel Holder, deputy director of the CAJ and one of the named complainants.
However, some of these claims are disputed. In the fog of negotiations it is not clear which side is right. But is the case that in many instances, how the EU rights of Irish citizens in Northern Ireland are safeguarded relate more to the future relationship between the EU and UK, and not the divorce.
But the gist of the complaint is as follows:
Paragraph 42 of the Joint Report states that the GFA had to be "protected in all its parts." This, however, was enshrined in the preamble to the Protocol on Ireland and so, say critics, it’s non-binding.
Secondly, Article 1 of the Protocol, which front-loads the rights issue, states that the UK would make sure there would be "no diminution of rights, safeguards and equality of opportunity" as a result of Brexit. Yet, the rights referred to only relate to one part of the GFA, ie the section on "Rights, Safeguards and Equality of Opportunity."
"In other words," Prof McCrudden noted in a paper to the Royal Irish Academy, "there are no obligations on the UK if the rights and safeguards claimed are not set out in that particular section."
Article 1 also provides for EU equality legislation to be contained in an Annexe, but it is not yet clear what those protections will include.
A similar Annexe is attached to the European Economic Area (EEA) Treaty, but it is quite limited. "That treaty has the equality acquis [body of EU law] listed," says Prof McCrudden, "but doesn’t include most of the relevant provisions that would be of particular importance in Northern Ireland. It does cover gender equality – but it doesn’t cover anything else."
EU sources insist that the equality Annexe will reflect the rights needs of Northern Ireland.
Article 15 of the Protocol says that if a future EU-UK free trade agreement managed to resolve the unique problem of Ireland, then the Irish Protocol as a whole "shall cease to apply."
Would the rights protections also fall away?
As we have seen, there are concerns about the survival of the ECHR in British law, but there are also concerns relating to the EU Charter of Fundamental Rights.
The Charter essentially sets out a series of political, economic and social rights that must be applied when the EU legislates and then applies its laws. The Lisbon Treaty made it binding for member states.
Following the Brexit referendum, the Conservative government decided to transpose the vast bulk of EU laws into British law, so that over time governments could keep what was useful or necessary, and repeal the rest.
However, the government did not transpose the Charter of Fundamental Rights, to the dismay of many legal observers in the UK.
"The EU has been a very significant platform for our rights," Schona Jolly QC told a Financial Times podcast, "a floor not a ceiling, so you could never fall below it.
It was particularly important for the UK because we’re one of only three democracies in the world not to have a written constitution, and in the absence of the EU has acted as a constitutional guarantee."
Because many EU laws will still exist in UK law, the Charter of Fundamental Rights would have acted as a constraint, and a legal reference point, on how those laws were applied. But that constraint will no longer be there.
Paddy Kelly, director of the Children’s Law Centre in Belfast, says this uncertainty is already being felt.
"Children enjoy all the rights in terms of EU directives, whether it’s sex discrimination or employment rights [for parents], but [EU membership] has also created a culture in terms of the development of children's rights, given that they’re not widely accepted or respected in the UK.
"The Charter [of Fundamental Rights] gives effect to some of the principles of the UN Convention on the rights of the child. The UN Convention isn’t incorporated into domestic legislation, so it’s not justiciable.
"Obviously Charter rights are justiciable, and the rights to education, family law rights that children enjoy as a result of the charter – those are going to be lost. But the principles of the Charter, which provide the backdrop in terms of the development of domestic legislation – again, we’re going to lose that."
A final gap in the Withdrawal Agreement, say critics, is what happens in case of disputes. In general the draft treaty sets out elaborate arrangements if there is a dispute between the EU and UK in the future.
However, the dispute resolution mechanism in the Irish Protocol appears weaker.
Currently, an individual can resort to EU law directly through national courts. However, under the draft Withdrawal Agreement, that could change.
"It looks like if the draft Protocol were to be agreed in the form it is at the moment," argues Prof McCrudden, "there wouldn’t be an individual right. It would have to be mobilised by the Irish government or another member state.
"But, there’s no way the Irish Government is going to take complaints on a daily basis."
There are further concerns about the rights issue which are of a more political nature, and they relate to the vexed question of EU citizenship.
What does Irish, and therefore EU, citizenship mean in practice when it comes to Northern Ireland?
What has disappointed activists is that the "citizenship" part of the Belfast Agreement is not expressly covered by the Article 1 promise of "no diminution of rights" in the Irish Protocol.
As we have seen above, it only covers "that part" of the GFA relating to "Rights, Safeguards and Equality of Opportunity…"
"What’s often missed about the citizenship rights thing in the GFA," says Daniel Holder of the CAJ, "is that everyone knows it lets you be British or Irish, but the whole point of what was structured around that was that no-one would be a second class citizen as a result of that."
Prof McCrudden adds: "This is clearly carving out an important part, but not the full range of rights, because the citizenship stuff is outside the bit of the agreement they specifically mentioned in Article 1."
Sinn Féin has long argued that those rights should include the right for people in Northern Ireland to, among other things, vote for, and be represented by, MEPs.
Going back to the Joint Report, Paragraph 52 affirms that the Belfast Agreement allows people in Northern Ireland to be Irish or British or both.
Those who choose to be Irish "will continue to enjoy rights as EU citizens, including where they reside in Northern Ireland," and therefore the "Withdrawal Agreement should respect and be without prejudice to the rights, opportunities and identity that come with European Union citizenship."
It calls on negotiators to "examine arrangements required to give effect to the ongoing exercise of, and access to, their EU rights, opportunities and benefits."
On April 20, Sinn Féin Foyle MEP Martina Anderson tabled a parliamentary question to the European Commission seeking clarification on what exactly that meant, and in particular whether it entitled citizens in Northern Ireland being able to vote for MEPs.
On June 22, the European Commission replied that, following Brexit, "Irish citizens in Northern Ireland will no longer reside in a Member State."
They would "nevertheless continue to enjoy their rights as Union citizens under the Treaties." However, they would "no longer benefit from United Kingdom’s participation in [European] Union programmes, policies and activities."
On the question of voting for, and standing in, Euro elections, the rules were determined by the Irish government, although they required "Irish citizens to be ordinarily resident in Ireland."
The Commission also said that in general the "no diminution" of rights promise "should apply to both British and Irish nationals in Northern Ireland."
In other words, the question of whether people in Northern Ireland could vote in European Parliament elections was largely up to Dublin.
EU rights, meanwhile (or at least the ones that support the GFA), should apply to everyone in Northern Ireland, British or Irish.
But there are a lot of unanswered questions, once you break down these rights.
EU officials, when asked if Irish citizens in Northern Ireland could vote for MEPs because they hold Irish passports, reply that an Irish person living in Canada also holds an Irish passport - but that doesn’t mean the Canadian government has to facilitate an MEP for them.
The response of the CAJ is that, true, if you live in Canada those rights become "dormant". But if you live in Northern Ireland, you should, according to the Joint Report, be able to enjoy that right because Paragraph 52 states that Irish citizens should be able to "exercise" their EU rights, and that "arrangements" should be made to facilitate this.
Other questions arise. Irish citizens, by virtue of their passport, should have the right of freedom of movement, ie to live, work, study, seek healthcare etc in another member state.
But, activists ask, would they still enjoy subsidiary rights? Under EU law, if a citizen cannot get the healthcare he or she needs in their own country, they can avail of that treatment in another member state, with their own government picking up the tab. Would someone from Derry qualify for treatment in Sweden? And if so, who would pay for it – the UK, which is no longer a member state, or Ireland?
If you were from Belfast and wanted to study in Munich, would you pay an EU fee, or an international student fee?
Overall, then, rights groups have two concerns: one, that the hard fought rights stitched into the GFA are protected; secondly, that Irish citizens in Northern Ireland don’t become second-class EU citizens.
This is where it gets complicated.
Dublin believes that the GFA "in all its parts" is being safeguarded in the Withdrawal Agreement, and that Article 1 is a solemn promise from the UK that the equality and non-discrimination rights enshrined within the GFA will be protected.
However, subsidiary rights are more complex. Firstly, when it comes to the freedom to work, travel and study etc, member states often have discretion in how these rights are applied, so there may not be a blanket entitlement.
In terms of study, the UK could still decide to opt in to the Erasmus+ programme (paying for the privilege), meaning all citizens in Northern Ireland could avail of third-level study elsewhere in Europe.
But that would be sorted out under the future relationship - not the Withdrawal Agreement.
Ultimately, the UK may not be able to guarantee forever and a day that such EU rights – beyond the equality rights in Article 1 – are guaranteed, not least because the UK will no longer be an EU member state.
"Rights related to citizenship are not necessarily within the gift of the UK after Brexit," says one EU source. "So the UK can’t agree to certain things that are not within its competence, certainly when it is no longer an EU member state. It can’t be making promises to confer EU rights when it won’t own the EU rights to confer."
The same goes for whether or not Irish citizens in Northern Ireland should be entitled to vote in European Parliament elections. Sources say this is not an issue for the Withdrawal Agreement, but for the Irish government to address in the future.
But it is politically sensitive right now. Ireland has been granted an extra two European Parliament seats as a result of Brexit, so it is irresistible for Sinn Féin to demand that Dublin uses at least one for some kind of Northern constituency.
It also gives Sinn Féin useful leverage. The party has been largely supportive of the Government over the backstop; if Dublin gets the backstop over the line unscathed, then Sinn Féin could use the citizenship/rights issue as a further and productive bone of contention.
An Irish Government spokesman was at pains to point out that Dublin was not party to the CAJ complaint.
"After Northern Ireland leaves the European Union," the spokesman said, "everyone in Northern Ireland will still have the right to be an EU citizen. The Irish Government is determined to ensure that the Withdrawal and Future Relationship Agreements protect citizens’ rights, both the rights of EU citizens living in the UK, and particularly EU citizens in Northern Ireland."
Rights organisations and legal academics in Northern Ireland have aimed high in prioritising the rights issue.
The importance of human rights in the Irish conflict no doubt informs that determination.
Emily O’Reilly, the EU Ombudsman, who is now studying the rights complaint, has her work cut out.