Brexit, the EU (Withdrawal) Bill and Northern Ireland

Following on from a recent debate hosted by the IWA, Wales Governance Centre and All Party Parliamentary Group on Devolution in the House of Lords, we share a series of reflections from leading academics on the implications of the EU Withdrawal Bill on the devolved Nations.

First in the series, Professor Colin Harvey reflects on Northern Ireland’s central role in the debate.

Professor Colin Harvey is a Professor of Human Rights Law at Queen’s University Belfast

Brexit has brought the position of Northern Ireland to the centre of an intense EU-wide debate that at present is circling around the nature of the border on the island of Ireland. The EU (Withdrawal) Bill, currently making its way through Westminster, is only one part of a bigger picture. It is the piece of Brexit legislation that aims to bring clarity and certainty but which seems to have succeeded in creating widespread confusion and disharmony. The focus here is on Northern Ireland, and I will concentrate on three themes: context; the Bill; and ways forward.

First, let us reflect on context. There is currently no government in Northern Ireland, in the sense that there is no functioning Executive or Assembly. Northern Ireland does have a Secretary of State, of course, and the Westminster Parliament is currently stepping in when required (for example, on the budget). Since the resignation of the late Martin McGuinness in January 2017 as deputy First Minister there have been ongoing attempts to re-establish the institutions. The latest effort failed, so at the time of writing there is much consideration of what next for power-sharing government.

Brexit has re-opened the British–Irish national identity fault line at the heart of Northern Irish politics in problematic ways. The majority voted to remain but the two main communities were notably divided. The Democratic Unionist Party (DUP) supported the Leave campaign and Sinn Féin argued for a Remain vote. The outcome means that Northern Ireland did not consent to leave, and given the contentious politics and history of that concept that fact still matters (in ways that transcend debates over the Sewel convention). There is a wider constitutional imbalance that also requires careful thought; the DUP has reached a ‘confidence and supply’ arrangement with the Conservative Party. In this deal the DUP has agreed to support the Government’s Brexit legislation. In this the DUP is departing from the majority view in Northern Ireland. At a time of heightened anxiety about the future of the peace process, the agreement with the Conservative Party has done little to reassure those who are worried that the Westminster Government can act impartially with respect to Northern Ireland. When you add to this general scene the fact that nationalism/republicanism in Northern Ireland opted for candidates who stood clearly on an abstentionist platform and that unionism lost its overall majority in the Assembly elections of March 2017 then the complexities multiply. This all now combines to create a real risk of upsetting the fragile cross-community balances that exist in Northern Ireland. Although many will be reflecting on the Good Friday Agreement this year (2018 is its twentieth anniversary) it increasingly seems as if the fundamentals of the peace process are steadily being abandoned.

Second, many of the questions raised by the EU (Withdrawal) Bill are now well known.  These include clarity around the status of retained EU law, the power of Ministers (both devolved and Westminster), the claim of a ‘power grab’ by the centre, the decision to exclude the Charter of Fundamental Rights of the EU and a concern that insufficient recognition has been given domestically to the Good Friday Agreement (and subsequent agreements). There is some protection in the Bill for the Northern Ireland Act 1998, and it has been amended, but many of the concerns remain. It must be recalled that this will not be the only piece of legislation dealing with Brexit, and it seems increasingly clear that Northern-Ireland-specific legislation may be needed to address a range of issues emerging from Brexit and the collapse of the recent political negotiations. The elements noted above do need to be considered in this Bill but thought must also turn now to the sort of measures that may be required to secure the special arrangements for Northern Ireland that may flow from the EU–UK negotiations. There is additionally the matter of trust. The UK’s flexible constitution comes under strain when trust breaks down to the extent that it now has, particularly between the constituent parts of the territorial constitution. The current efforts to secure a negotiated way forward, on common frameworks and Clause 11, are revealing the flaws in the UK’s system of intergovernmentalism. This requires urgent attention.

Finally, what about ways forwards? An obvious point is that the Bill should be amended to reflect devolved concerns. The work around this will send an important signal about the sort of UK that might evolve on the other side of Brexit. Given the continuing discussions regarding the position of Ireland/Northern Ireland it would make sense to prepare the ground for the sort of special arrangements that logically follow the agreements reached thus far between the EU and the UK. In general, and with much reflection on the state of the Northern Ireland peace process, it may well be wise to return to the spirit of the Good Friday Agreement. That document has a determined focus on relationships across these islands and the sorts of values that would provide helpful guidance (including on human rights and equality). Recall the scale of the current constitutional imbalance within this ongoing process. There is a need to ensure voices are heard at Westminster across all communities, however this is achieved. On this issue, among others, the DUP (with its impressive electoral mandate) simply does not speak for Northern Ireland. A question for the Westminster Parliament is how it can mitigate the problems identified and show genuine respect for the power-sharing principles that are central to the peace process. There is also the urgent need for enhanced British-Irish intergovernmental cooperation, and on this the Good Friday Agreement provides an answer: the British-Irish Intergovernmental Conference. It is time for a meeting of this body to be arranged.

These are challenging times for Northern Ireland but concerns have plainly been heard in Dublin and Brussels. If it is to demonstrate respect for the peace process the Westminster Government will have to take care that it acts with ‘rigorous impartiality’ and that the fundamental principles flowing from the Good Friday Agreement are central to whatever happens next.

All articles published on Click on Wales are subject to IWA’s disclaimer.

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