The Windsor Framework was adopted in 2023 in the wake of Brexit to regulate affairs in Northern Ireland. Until recently, it had been unclear what freestanding EU rights were conferred on individuals through the Framework.
A recent judgment of the Supreme Court has shed new light on what rights are available to, and enforceable for, people in Northern Ireland through the Windsor Framework. The Framework’s potential constitutional effect had once been compared to the European Communities Act 1972. However, this judgment suggests it is much more limited as a constitutional provision than previously thought.
EU Law under the European Communities Act
Across the EU, when EU law conflicts with a domestic provision, domestic courts have an obligation to enforce EU law as supreme, even without intervention by the domestic legislature. As a dualist country, the UK had to pass primary legislation to confer power on the Union. s. 2(1) of the European Communities Act 1972 gave legal effect to all EU “rights, powers, liabilities, obligations and restrictions…provided for by or under the Treaties” of the EU “without further enactment”. As this provision empowered future rights and obligations under EU law enforceable without “further enactment”, it has been said that s. 2(1) operated as a constitutional provision, giving new EU law of broad variety ‘direct effect’ without further legislative intervention.[1] At the time, EU law’s capacity for ‘direct effect’ was fraught for the UK, because it appeared to undermine parliamentary sovereignty.[2] After the Brexit vote, s.2(1) was repealed, thereby preventing new EU law from being continually incorporated in Britain. Owing to its unique circumstances, Northern Ireland required a different approach.
The Windsor Framework and EU Law in Northern Ireland
Northern Ireland shares a land border with the Republic of Ireland. To prevent the formation of a hard border, the 2020 Withdrawal Agreement via the Protocol on Ireland/Northern Ireland created special provisions, including unique trade agreements, establishing a unique relationship between Northern Ireland and the EU. The Protocol was intended to limit the corrosive effect on Northern Ireland of the UK being outside the EU customs regime and single market. The Protocol continued to be rejected by the Democratic Unionist Party.
The Windsor Framework, which amended the Protocol, was announced in February 2023 to address issues arising out of the Protocol’s implementation. It principally focused on tax and customs. Among the various solutions posed was a system intended to reduce checks and red tape on goods arriving from Great Britain. However, the DUP continued to have concerns about the Windsor Framework as announced.
It is outside the scope of this blog post to explore the effects of the Framework on trade and customs, but worth noting that the recent jurisprudence discussed hereafter has highlighted the underlying ambiguity of the Framework’s application.
EU Rights and the Windsor Framework
The 1998 Belfast/Good Friday Agreement created provisions for a new kind of devolution in Northern Ireland, giving the regional government the ability to legislate over key issues, including rights afforded to Northern Irish people. It contains a chapter on “Rights, Safeguards and Equality of Opportunity”, the substance of which required the incorporation of rights and privileges under the ECHR into Northern Irish law. For our purposes, the relevant portion of the chapter outlines the shared commitment to a series of rights and ensuring “the civil rights and religious liberties of everyone in the community.”
Advocates have used a complex web of post-Brexit and Northern Irish legislation along with this chapter to re-introduce rights solely available under EU law back into Northern Ireland. The route is as follows: Article 4 of the Withdrawal Agreement confirmed that the UK would use domestic law to ensure that the Protocol was given effect, including through the disapplication of domestic provisions where appropriate.[3] The 2018 EU (Withdrawal) Act created the initial basis to protect those rights: s. 7A of the EU (Withdrawal) Act 2018 enables certain “rights, powers, liabilities, obligations, restrictions, remedies and procedures” that arise out of EU law that has continuing effect in the UK under the Withdrawal Agreement to be recognised and enforced in domestic law.[4]
Together with s. 7A in the 2018 Act, the 2023 Windsor Framework appeared capable of preserving EU rights and privileges in Northern Ireland as a way of maintaining the peace in post-conflict Ireland. Annex 1 of the Framework outlined which Directives would continue to have effect in Northern Ireland. Art. 2(1) of the Windsor Framework, which first appeared in the Protocol, goes beyond that.
Article 2(1) of the Windsor Framework provides that the UK “shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the [1998 Belfast/Good Friday] Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union”. Importantly, these rights-based protections apply to anyone in Northern Ireland, not just those who are members of Unionist and Nationalist communities.[5]
Art. 2(1): Potential and Application
For some time, Art. 2(1) of the Windsor Framework has been considered “full of potential”, as a possible “conduit” for EU law, akin to s. 2(1) of the European Communities Act. Indeed, judges in Northern Ireland had previously noted that the protections under Article 2(1) were “generous”.[6] In the official government explainer[7], it was confirmed that where diminution did occur, individuals should be able to bring challenges related to those rights before domestic courts.[8]Elsewhere on this blog, Stuart Wallace highlighted the challenges this might cause.
Up until recently, Art. 2(1) of the Windsor Framework appeared to have teeth, including when it was used, alongside arguments regarding rights under the 1998 Human Rights Act, to successfully argue for the disapplication of an Act of Parliament.[9] It appeared capable by the same measure of leading to disapplication of Acts of Parliament when they created a diminution of civil rights beyond those in the 1998 Human Rights Act.
A recent judgment handed down by the Supreme Court on Art. 2(1) of the Windsor Framework has clarified the limits of its use: the Court held that Art. 2(1) could only create rights that were ‘directly effective’ (namely, EU law with no further domestic statute passed) where, when read with the EU law, it contains a “clear and precise” obligation.[10] This includes those rights referenced in Annex 1 of the Framework. The portion of the chapter cited here, which referenced “civil rights”, as a general rule could not be used to create directly effective rights because it was simply too broad.[11]Accordingly, rights that appear exclusively in the Charter of Fundamental Rights (e.g. the right to human dignity, Art.1) cannot be enforced under this provision. This is contrasted with other portions of the chapter, enshrining the “right of free political thought” or “the right to freedom and expression of religion”. The Supreme Court pointed to the oft-complained-of Human Rights Act 1998 as being the most essential instrument of law which individuals should look to for civil rights protections.[12]
The Supreme Court did not shut the door entirely on creative uses of Art. 2(1).[13] The Court suggested it may be possible for Art. 2(1) to create directly effective EU law rights in the UK in other circumstances, but the reach of these criteria in practice is, at best, ambiguous.
The reality is that as a consequence of this judgment, creating enforceable rights under the creative application of Art. 2(1) together with the 1998 Belfast/Good Friday Agreement’s generic civil rights non-diminution provision will be an “up-hill struggle” and at worst a “functional impossibility”. Given the existing ambiguity around these provisions, and in light of this judgment, it is suggested that lower courts will be inclined to treat any such creative arguments with scepticism, leading them to fail.
Conclusion
One is reminded of that old Latin adage: pacta sunt servanda, or: agreements must be kept. The UK Government made significant efforts to negotiate post-Brexit legislation that would prevent disparity between Northern Ireland and Ireland. The Windsor Framework, read together with the relevant provisions that preceded it (1998 Belfast/Good Friday Agreement, the 2018 Act, etc.) appeared to create constitutional protection in the equality of rights across Northern Ireland and Ireland.
The Supreme Court, in enforcing the will of Parliament, appears to have removed the protections once afforded in Northern Ireland in an attempt to insulate the United Kingdom from the continual developments of EU law. It seems, save for elusive, exceptional cases heretofore unidentified, that principal rights that are explicitly enforceable in Northern Ireland are those which exclusively and explicitly appear in EU law and interact with the commitments made in the 1998 Belfast/Good Friday Agreement. Whether this is true in practice, time will yet tell.
On its most conservative reading, this limits the extent to which individuals in Northern Ireland can rely on EU law, traced through subsequent provisions, as enforced through UK courts. One wonders if this is what drafters of the 1998 Agreement, who created a broad-ranging non-diminution of rights clause, intended. At the very least, this author might hazard it seems unlikely that in drafting a provision intended to enshrine indefinite peace, the drafters expected to identify and explicitly name in one document every right that would lead to ongoing peace and equality of rights across that troubled border.
Ananya Kumar-Banerjee.
Ananya Kumar-Banerjee is a Lincoln’s Inn Lord Denning Scholar and current BVS student. She has written for the UK Admin Court Blog, the UK Constitutional Law Association, Strasbourg Observers and for the University of Oxford’s Border Criminologies Blog.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.
[1] See e.g. Thoburn v Sunderland City Council [2003] QB 151, Laws LJ at [62, 69]
[2] Though this was of course solved by the agreement that Parliament had, through the exercise of its sovereignty, conferred EU law with supremacy in areas of competence.
[3] Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community [2020] OJ L 29/7, Art 4.
[4] S. 7A(2) European Union (Withdrawal) Act 2018; e.g., ongoing effect of Art. 21 of the Charter of Fundamental Rights.
[5] In re NIHRC and JR295 [2024] NIKB 35 at [68]
[6] In the matter of an application by Martina Dillon, John McEvoy, Brigid Hughes and Lynda McManus for Judicial Review [2024] NIKB 11 at [532-535].
[7] Which has since been taken down, a notable rescindment on the part of the UK Government post Dillon.
[8] Explainer, n. 19, para. 6 per the citation in Anurag Deb and CRG Murray, “Article 2 of the Windsor Framework, the Legacy Act and the Illegal Migration Act: Adjusting to Post-Brexit Realities” Public Law (March 2025) accessed 11 July 2026.
[9] In re NIHRC and JR295 [2024] NIKB 44. See also the test in In re SPUC Pro-Life Ltd (Abortion) [2023] NICA 35 at [54] and In the matter of an application by Martina Dillon, John McEvoy, Brigid Hughes and Lynda McManus for Judicial Review [2024] NICA 59 at [92-96].
[10] In the matter of an application by Martina Dillon, John McEvoy, Brigid Hughes and Lynda McManus for Judicial Review [2026] UKSC 15 at [117].
[11] In the matter of an application by Martina Dillon, John McEvoy, Brigid Hughes and Lynda McManus for Judicial Review [2026] UKSC 15 at [116].
[12] In the matter of an application by Martina Dillon, John McEvoy, Brigid Hughes and Lynda McManus for Judicial Review [2026] UKSC 15 at [146].
[13] In the matter of an application by Martina Dillon, John McEvoy, Brigid Hughes and Lynda McManus for Judicial Review [2026] UKSC 15 at [118, 125].