Brexit and Rights Engagement Network
One of the biggest difficulties facing the UK government in the current Brexit negotiations is how to resolve the problems that Brexit has created for Northern Ireland. Of these problems, the UK is facing increasing pressure to resolve one in particular: the potential borders that might arise between the North and South of Ireland, as well as between Northern Ireland and the rest of the UK. Interestingly, the creation of this problem has led to much public debate surrounding the impact of Brexit on the constitutional status of Northern Ireland and its future relationships with the UK and the Republic of Ireland – which will be the focus of this blog post.
UK Constitutional Trends
Prominent academics working in the area of constitutional law, such as Professor Colin Harvey, have argued that one of the main constitutional trends in the UK over the past twenty years has been differentiation. To borrow from Colin, this has involved a ‘significant dispersal of public power around the UK through the asymmetrical processes of devolution’.
This trend can be seen within the recent analysis conducted by the UK government which identified the policy areas where EU law currently intersects with devolved powers in each of the devolved nations. The list of intersecting areas was longest for NI, where 141 areas of overlap were identified. In comparison, there were 111 policy areas identified for Scotland and 64 for Wales. It is evident just from this one example, that there are a number of significant variations in relation to the policy areas under the control of the devolved nations.
In relation to the future (post-Brexit) arrangements for the devolved nations, the UK government has made public commitments to continue flexibility. The UK government has stated that in relation to devolved policy making areas, the result of the Withdrawal Act will be a ‘significant increase in decision making power of each devolved administration’. Of course, exactly how this would happen (and if this will be the case) remains to be seen.
Northern Ireland and Brexit
As outlined above, Northern Ireland (and in particular) the complexities of the Irish border have become one of the key issues in the Brexit negotiations. The UK, EU, and Republic of Ireland all recognise this, and have made public commitments to avoiding a hard border on the island.
In the December Joint Report, the EU and UK agreed to an arrangement (referred to as the ‘backstop’) whereby ‘in the absence of agreed solutions, the UK will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement’.
Following on from this Report, the EU’s draft Withdrawal Agreement states that ‘[a] common regulatory area comprising the Union and the UK in respect of Northern Ireland is hereby established. The common regulatory area shall constitute an area without internal borders in which the free movement of goods is ensured and North-South cooperation protected in accordance with this Chapter’. As Dr Katy Hayward has pointed out, this protocol is intended to act as an insurance policy in case the future UK-EU relationship does not meet the commitments made in the December Joint Report.
The UK government has since stated that this ‘backstop’ arrangement is unacceptable because (a) the UK has committed to leaving the Single Market and Customs Union and (b) it threatens the ‘constitutional integrity of the UK’. First, the UK has already agreed to these terms in the Joint Report. Second, it has so far not made any realistic proposals detailing how it plans to avoid a hard border if it remains committed to the whole of the UK (including NI) leaving the Customs Union and the Single Market. Third, this arrangement does not threaten the constitutional integrity of the UK.
As outlined at the outset of this blog, the trend over the past 20 years in relation to the UK constitutional arrangements has been one of divergence and differentiation. The differentiation that would result with the ‘backstop’ arrangement would fit into this trend. Further, NI would remain a devolved nation within the UK – as it would take a referendum to change this arrangement. If anything, based on the research conducted by BrexitLawNI, it could be argued that leaving the EU potentially threatens the constitutional integrity of the UK – for reasons that will be returned to.
The Constitutional Status of NI
It is important to point out here that NI has a unique constitutional arrangement with the UK. Northern Ireland’s constitutional status it set out by both the Northern Ireland Act and the Belfast/Good Friday Agreement (B/GFA). The primary reason for this unique constitutional arrangement was the troubles and the peace process.
The B/GFA brought an official end to the troubles over 20 years ago. Since then, Northern Ireland has experienced a period of relative peace and stability – something which is threatened by Brexit. One of the ways in which this peace settlement was accomplished was through the careful navigation of the complex constitutional questions raised throughout the troubles. The B/GFA recognises the important relationships that existed both North and South, and East and West and sought to strike a balance through measures and institutions designed to sustain and facilitate both of these relationships.
Of particular importance here, the B/GFA also provided NI with a constitutional settlement that meant that NI would remain part of the UK, but with the important caveat that it would be the only region of the UK that effectively has the right to secede. Under Constitutional Issues 1(ii) of the B/GFA it states that ‘it is for the people of the island of Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right to self-determination on the basis of consent, freely and concurrently given, North and South, to bring about a united Ireland, if that is their wish, accepting that this right must be achieved and exercised with and subject to the agreement and consent of a majority of people of NI’. The inclusion of this right to a vote on Irish Unity was an essential component for winning the support of the nationalist and republican communities and ensuring that Northern Ireland remained part of the UK by consent.
Returning to the earlier point about the constitutional integrity of the UK – what the Brexit referendum results more broadly, and many of the positions taken by the UK government since have done is to potentially threaten the constitutional integrity of the UK – just not for the reasons put forward by the Theresa May.
Future Constitutional Status of NI
Our research has revealed that people’s frustration with both the Brexit referendum result, as well as the UK government’s positions taken during the negotiations have led to a destabilisation of the peace process and a re-emergence of a mainstream Irish unity debate in Northern Ireland. The issue of Irish unity was largely considered to have been settled with the signing of the B/GFA, but the Brexit process has caused the Irish unity debate to become part of a mainstream discussion, in a way that it has not been for the past 20 years.
It is clear that, throughout the Brexit process the EU has taken these complex constitutional issues into careful consideration. Evidence of this can be found in the ‘backstop solution’ and the draft Withdrawal Agreement outlined above. This solution effectively allows NI to retain similar kinds of relationships with both the UK and the Republic of Ireland – thereby attempting to respect the arrangements that were agreed in the B/GFA. Unfortunately, the UK government’s response has not struck the same kind of balance that was modelled in the B/GFA. The combined rejection by Theresa May and others of the ‘backstop’ arrangement for threatening the constitutional integrity of the UK and the failure to propose an adequate alternative solution is evidence of this disregard. Unfortunately, the failure of the UK government to take the same kind of careful approach as was taken in the B/GFA, has resulted in much of this destabilisation of the peace process and re-emergence of debates surrounding Irish Unity – something that is bringing a lot of fear and anxiety to people who lived through the conflict and are worried that Brexit will mean for the future of peace in Northern Ireland.
Queen’s University Belfast
Dr Amanda Kramer is a Research Fellow in the School of Law, Queen’s University Belfast. She is currently working on an ESRC funded project, ‘Brexit and Northern Ireland: The Constitutional, Conflict Transformation, Human Rights and Equality Consequences’.
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