NORTHERN IRELAND CIVIL SOCIETY BRIEFING NOTE ON THE IMPACT OF EU EXIT ON THE GOOD FRIDAY AGREEMENT, RIGHTS AND EQUALITY PROTECTIONS AND DEVOLUTION
The Good Friday Agreement
An ongoing serious concern for civil society organisations within Northern Ireland is the potential for the United Kingdom’s exit from the EU to undermine the Good Friday Agreement. The Good Friday Agreement is an international peace treaty co-signed by both the UK Government and the Irish Government and lodged with the United Nations. The two Governments are expected to act as co-guarantors of the Agreement, ensuring its implementation. The potential for a UK exit from the EU to undermine the Good Friday Agreement can be seen across a number of its provisions, including:
The Good Friday Agreement and the peace process as a whole was conducted with both the UK and Ireland sharing membership of the EU. An assumption of continued membership of the EU is something that permeates through the Good Friday Agreement and forms part of the legislation that established devolution in Northern Ireland. Therefore anything that alters that agreement, or the conditions in which it operates, must be taken very seriously indeed.
The Good Friday Agreement includes a principle of equivalence between human rights protections in Northern Ireland and the Republic of Ireland. This principle is now at serious risk due to an EU exit, as the Republic of Ireland will remain subject to EU law and rights derived from EU law will undoubtedly change and develop over time. By contrast, if Northern Ireland is outside the EU and is not subject to EU law, rights here will not develop in the same way.
The Good Friday Agreement sought to protect human rights in Northern Ireland through requiring that the UK Government incorporate the European Convention on Human Rights (ECHR) into domestic law. This was done through the Human Rights Act 1998. An exit from the EU undermines the status of the Act, as EU member states are required to be members of the European Convention on Human Rights, a requirement that would no longer apply to the UK. The repeal of the Act would be a devastating blow to the protection of human rights and to our peace process.
A core principle of the Good Friday Agreement is equality of citizenship, with the Agreement recognising it as the birthright of ‘the people born of Northern Ireland’ to identify as Irish or British or both and accordingly to hold British or Irish citizenship or both, without differential or detrimental treatment. The UK Governments position paper on Northern Ireland and Ireland (Aug 17) reaffirms the right to identify “and be accepted as British or Irish or both, as they may so choose; to equal treatment irrespective of their choice” (paragraph 12). Despite this regular reiteration, in contradiction, there has been an acceptance in the official positions that British Citizens in Northern Ireland will have fewer rights and entitlements than Irish citizens by the acceptance that Irish citizens will retain EU rights and British Citizens will lose them. At the same time Irish citizens in Northern Ireland may also lose entitlements to services. An EU exit creates an immediate inequality of citizenship and disadvantages those who choose to hold British citizenship, as Irish citizens in Northern Ireland will continue to enjoy rights as EU citizens, including where they reside in Northern Ireland. This fundamentally contradicts the purpose of the Agreement in this regard.
The open border arrangements between Northern Ireland and the Republic of Ireland are enabled by common membership of the EU and have in turn been a significant factor within the peace process. A return to a ‘hard’ border across the island would have a significant detrimental effect on trade and the economy and on the ability of persons to move easily between the two jurisdictions for work, study or family reasons.
In addition, the EU has had an important function in pulling Northern Ireland towards better and more progressive human rights compliance. When our local institutions have been unable to progress rights due to a lack of cross party agreement or for other institutional reasons, EU law obligations have ensured that the UK government does not allow for Northern Ireland law to fall behind the rest of the UK. For example, when there was no agreement between the First Minister and deputy First Minister in relation to implementing the EU Gender Directive on equal access to goods and services (Directive 2004/113/EC), the UK government took action to remedy this as ‘the most effective way of securing UK-wide compliance with our European Community obligations’.
EU law, including the case law of the Court of Justice of the EU (CJEU), continues to be an important mechanism to ensure that human rights and equality law continue to progress in Northern Ireland. For example, in Northern Ireland carers for disabled people are protected against discrimination on the basis of EU case law, whereas in the rest of the UK, this protection is codified under the Equality Act. Similarly, court decisions of the CJEU have been instrumental in progressing women’s rights, the rights of disabled people and workers’ rights. For this reason it is important that compliance with EU human rights law is not static, but that any mechanism to ensure compliance of Northern Ireland law with EU human rights provisions continues to keep pace with developments in EU law.
Phase 1 Agreement
The UK Government and EU Commission negotiators agreed that ‘sufficient progress’ had been made on the three issues required (citizens rights, the financial settlement and the unique circumstances of Northern Ireland) in phase 1 of the negotiations in December 2017.
‘Full alignment’ with the EU Internal Market and Customs Union for Northern Ireland, both now and in the future, has been agreed to in the absence of other solutions, but only in relation to those rules which are viewed as supporting North-South cooperation, the all-island economy, and the protection of the Good Friday Agreement (para. 49). This follows a mapping exercise within the negotiations of those areas of North-South cooperation which are reliant on EU law and policy. The potential exists for a minimalist interpretation of this clause to be taken, to the exclusion of those areas not viewed as supporting North-South cooperation, the all-island economy, or the protection of the Good Friday Agreement, with potentially serious consequences for rights and equality protections. The experience of Northern Ireland in relation to the unimplemented rights and equality protections promised by the UK Government within the Good Friday Agreement and subsequent agreements flowing from it is relevant here, particularly the continuing unimplemented commitment to a Bill of Rights for Northern Ireland.
The Agreement specifically recognises that EU law and practice has provided a ‘supporting framework’ in relation to rights and equality in Northern Ireland and across the island of Ireland and states that the UK will not allow any diminution of rights as a result of exiting the EU (para.53). This commitment is reaffirmed by the UK government agreement in principle to the wording of the Protocol on Ireland and Northern Ireland of the latest draft of the Withdrawal Agreement which states that the UK will ‘ensure that no diminution of rights… results from its withdrawal from the EU’. However it should be noted that this is subject to the yellow colour coding, meaning that whilst the policy direction is agreed, drafting changes or clarifications are still required. In particular, the related Annex to this part of the Protocol specifying relevant rights relating to protection from discrimination has not yet been released.
Diminution appears inevitable over time where the Republic of Ireland remains bound by EU law, whilst the UK does not, unless ‘full alignment’ also extends to this clause. The process of diminution has in fact already begun with the provisions of the EU Withdrawal Bill currently specifically removing the EU Charter of Fundamental Rights from the body of EU law that will be retained in UK law after the UK exits the EU (clause 5). The Government’s own analysis of the Charter highlights the human rights gap created by not carrying the Charter over into domestic law, whilst stating it does not intend that the substantive rights protected in the Charter of Fundamental Rights should be weakened. The Charter has created a codified human rights framework within the UK constitutional structure. Removing it will create further complexities and complications in understanding the relevant human rights law applicable. In addition, by replacing actionable ‘rights’ with ‘general principles’ as interpretative tools, the government is making it harder for individuals to bring cases to vindicate their rights. Moreover, by removing the Charter the government removes it as a consideration in the development of laws, policies and other mechanisms. If human rights are not explicitly considered at an early stage of development it may lead to a situation where these rights safeguards are inadvertently undermined.
The commitment made by the UK to ‘full alignment’ must be tested against the desire of the UK as a whole to leave both the EU Internal Market and Customs Union. At the same time as making this commitment to ‘full alignment’, the UK has also stated that it will ensure that no regulatory barriers will develop between Northern Ireland and the rest of the UK, unless the NI Executive and Assembly agree that such divergence should occur (para.50). Whilst this is potentially contradictory with the earlier commitment to ‘full alignment’, it is stated that in any event, NI businesses will continue to enjoy unfettered access to the UK internal market. A serious concern here is that if Northern Ireland is outside of the current structures of the Customs Union and Internal Market this will inevitably lead to a hard border, unless ‘full alignment’ is effectively continuing membership in all but name.
It is also important to recognise that most of the discussion in relation to the border to date has related to the freedom of movement of goods not people. The UK Position paper only rules out ‘routine’ border controls within the Common Travel Area, risking the deployment of ‘ad hoc’ selective controls that in practice will entail significant racial profiling of travellers. In the Committee debate on the EU Withdrawal Bill, the Government for the first time has ruled out mobile patrols on the land border, but not selective controls at Northern Ireland ports and airports. It is also unclear if customs officers will be debarred from using immigration powers in light of the governments’ assurance. There will also be a heavy reliance on ‘in country’ checks by a range of public services, landlords and employers. This takes place in an environment whereby there have been campaigns of violence and evictions against migrants by loyalist paramilitaries. The law will be enforced by the UK Border Force and Home Office directorate staff who have no accountability to the Pattern accountability architecture, such as the Northern Ireland Policing Board.
The ability of Northern Ireland to ‘diverge’ from UK policy and legislation in future must also be tested against the current provisions of the EU Withdrawal Bill and the ongoing debate as to how it interferes with the devolution settlement, particularly in Northern Ireland. The devolution settlement in Northern Ireland is distinctive within the UK constitutional structure. While there are similarities in some areas of powers and institutions, the very nature of the constitutional settlement for Northern Ireland is different. It is the result of a peace process which involved civil society, cross party agreement and a unique agreement between the UK and Irish governments. Our devolution settlement is constructed with clear counter-majoritarian safeguards to ensure cross-community cooperation and to protect against any actual or perceived abuse of power. The EU Withdrawal Bill is an exercise in the concentration of power into the hands of UK ministers. Prior to the Brexit process, executive and legislative power within the UK constitutional structure was dispersed between the EU plane, Westminster and our devolved institutions (with their institutional safeguards) which created a balance between how power was concentrated and exercised. The EU Withdrawal Bill is pulling powers back from the EU and from devolved institutions and these will instead fall into the hands of UK ministers with very little oversight possible by Parliament.
This centralisation of power at a UK level risks undermining rights in Northern Ireland through lack of appropriate scrutiny, and risks destabilising the delicately balanced peace agreement by moving powers from the ‘neutral’ supranational field of EU law making and concentrating it in the hands of UK ministers to the detriment of local accountability. It is essential that the current safeguard which prohibits local ministers and the assembly from making laws and policies contrary to EU human rights law remains in place to maintain confidence in our local institutions and the important role of EU law in supporting the human rights and equality safeguards which are essential to the Good Friday Agreement.
Clause 11 and Schedule 2 of the Bill will effectively prevent devolved authorities in Northern Ireland from amending retained EU laws in a way that is not consistent with UK Government policy. Devolved government in NI currently has the power to make its own laws regarding equality for example. This Bill will undermine the ability of devolved Government to do so in future. If retained equality protections are weakened by UK Government Ministers in future, the Bill would require the devolved authorities in Northern Ireland to do the same. This is an unacceptable approach to the devolution settlement created under the terms of the Good Friday Agreement.
The Phase 1 Agreement provides that “The people of Northern Ireland who are Irish citizens will continue to enjoy rights as EU citizens, including where they reside in Northern Ireland.” (para.52) Whilst no detail has been set out it would not be a good faith interpretation to strip Irish citizens of rights normally associated with residency in a Member State. Yet without equivalent provision for British citizens in Northern Ireland this creates problematic differentials. For example Irish citizens in Northern Ireland could retain rights to vote in EU elections, but British citizens do not – in essence there are only MEPs for the nationalist community. In addition, the UK has given assurances that the existing legal framework will ensure equal access for Irish citizens as much as British Citizens in Northern Ireland to services. However, as things stand in numerous areas this is simply not the case, with many entitlements for Irish citizens only provided for by virtue of EEA treaty rights, such as in accessing home help or residential care. For example, if an Irish citizen Mrs X has lived almost all her life in Northern Ireland (although born in a Donegal hospital) and requires a home help, after the UK exits the EU her health trust is debarred from providing this as she is not a British citizen. There is no duty under the present EU Withdrawal Bill to ensure that EU treaty rights references are modified to ensure continued equivalence for Irish citizens in Northern Ireland. Whilst regulations may be able to rectify this, the DUP’s opposition to the Belfast Agreement, and the array of mutual vetoes within the devolved institutions, will not make such modification of the statute straightforward.
Civil society organisations within Northern Ireland therefore submit that in order to avoid the potential negative impacts on the Good Friday Agreement, rights and equality protections and devolution in Northern Ireland that exiting the EU may bring, the UK Parliament could take the following actions:
1. Parliament could legislate to protect the Good Friday Agreement in all its parts, and in particular support an amendment to the European Union (Withdrawal) Bill which will give enforceable legislative effect to the British-Irish Agreement 1998;
2. Parliamentarians could support the amendments to the European Union (Withdrawal) Bill that are designed to protect the Good Friday Agreement and its legislative embodiment, the Northern Ireland Act 1998;
3. Noting the context of the conflict in Northern Ireland and the fact that human rights protections were central to the peace process and the Good Friday Agreement, we would request that Parliamentarians take all necessary steps to ensure and future proof rights protections in Northern Ireland, including by retaining the Charter of Fundamental Rights. In addition, Parliament could legislate to guarantee the equivalency of human rights protections on the island of Ireland and implement a Bill of Rights for Northern Ireland, both of which are core human rights protections provided for in the Agreement
4. We would also welcome Parliamentarians visiting Northern Ireland and in particular the border, to increase their understanding of the reality of how people in Northern Ireland live their lives on a daily basis across the border; and therefore the significant potential for adverse impact on people's lives of an EU Withdrawal Bill and EU exit settlement which hollows out the Good Friday Agreement and diminishes their rights.
For further information, please contact:
UNISON Northern Ireland - John Patrick Clayton, Policy Officer -email@example.com
Children’s Law Centre – Paddy Kelly, Director – firstname.lastname@example.org
Committee on the Administration of Justice – Daniel Holder, Deputy Director – email@example.com
Human Rights Consortium – Kevin Hanratty, Director – firstname.lastname@example.org