The UK-wide discussions on Brexit have largely focused on trade, immigration and the EU budget, with little consideration given to the potentially profound impacts on Northern Ireland. Until recently, the UK government positioning on issues relating to Northern Ireland was largely focused on maintaining frictionless border with Ireland and the ‘common travel area’.
The government set out its priorities in a white paper in August 2017 which reiterated a high level commitment to the Belfast/Good Friday Agreement, but which lacked any detail on how this would be practically applied. The ‘unique circumstances’ of Northern Ireland, and its relationship with Ireland, were given prominence in the negotiations, with the EU making it clear that ‘flexible and imaginative solutions’ would be required.
The complexity and seriousness of Brexit impacts on Northern Ireland was highlighted in the political manoeuvring and eventual outcome of the Phase 1 negotiations between the UK government and the EU Commission.
The combined impacts of the increased cross-community tensions created by the Brexit vote, together with the breakdown of our power sharing executive and ongoing negotiations to restore devolution mean that Northern Ireland is facing its most challenging environment for its peace agreements since 1998.
Our devolution settlement is founded on the Belfast/Good Friday Agreement which, alongside the Northern Ireland Act 1998, is the constitutional framework for Northern Ireland. Therefore, the settlement for Northern Ireland is founded on constitutionally distinct process from that in Scotland and Wales.
The three-strand approach adopted under the Belfast/Good Friday Agreement covers the formation of the power-sharing Assembly and Executive in strand one; strand two embeds North-South institutions to encourage cross border co-operation; and strand three establishes on ‘East-West’ institutions to encourage co-operation and good relations between the UK and Ireland.
Common membership of the EU by both Ireland and the UK facilitated these arrangements by providing a neutral platform on which to build these relations. The common platform of rights established and advanced in EU law ensured shared standards, laws and redress mechanisms on both sides of the border on the island of Ireland. Membership of the EU was essential to detoxifying North-South and East-West relations and creating the environment upon which the peace process is founded.
Brexit presents a distinct challenge to Northern Ireland. Outreach with our member organisations has underlined the cross-cutting and diverse impacts that Brexit will have on rights here. The EU has had a progressive role in pulling Northern Ireland towards greater human rights protections.
For example, when faced with a political blockage in the Northern Ireland Executive, which resisted extending the legal protections against discrimination to trans people, the UK government progressed the issue at Westminster as ‘the most effective way of securing UK wide compliance with our European Community obligations’.
In the absence of a single Equality Act for Northern Ireland, many equality protections here are directly reliant on the decisions of the Court of Justice of the EU, including protections for carers of disabled people. The legal framework of EU human rights law set out in the treaties, the Charter of Fundamental Rights and directives and regulations underpins human rights standards in Northern Ireland and has immediate implications for the recognition of same sex marriage and worker’s rights.
This direct link between EU law and rights enjoyed in Northern Ireland makes any change to the current legal framework very worrying, a worry that is amplified by the decision of the UK government not to carry the EU Charter of Fundamental Rights into UK law through the EU (Withdrawal) Bill.
In addition, as the only part of the UK with a land border, rights enjoyed by people in Northern Ireland risk being disrupted by the removal of common EU frameworks to address things like access to education and health across border areas, mutual recognition of family law arrangements – such as maintenance and custody, and the enforcement of legal protections for victims of harassment and domestic violence.
Ongoing security cooperation is also a serious concern in Northern Ireland, both in the context of ordinary criminality and the ongoing terrorist threat from dissidents.
Without common membership of the EU, new frameworks of cooperation will need to be developed either between the UK government and the EU or on a bilateral basis between the UK and Irish governments to ensure that the promise of no diminution of rights is to be achievable post-Brexit.
Another area of particular concern that was raised with us as part of our research has been the threat of removal of EU funding and its impact on the NI economy overall and on vulnerable groups, especially where they rely on EU funding to support ongoing projects.
In addition, access to pan-EU networks has been an important support for groups here to learn from, and share, best practice with the other 27 member states, and to coordinate and campaign for changes to law and policy, both domestically and on an EU-wide basis.
One of the most significant impacts in Northern Ireland is the impact of Brexit on identity, in particular on the polarising impact that it has had on community identity. Under the terms of the Belfast/Good Friday Agreement it is the birthright of everyone in Northern Ireland to identify as British or Irish or both.
In the aftermath of Brexit, there is a real risk that people living here will have access to different rights on the basis of their British or Irish citizenship – a differentiation which risks increasing tensions between the two main communities.
Our report on ‘Rights at Risk’ highlights the many ways in which rights risk being destabilised in Northern Ireland after Brexit. The report looks specifically at the impact of Brexit on our peace settlement and the impact of Brexit on citizenship rights.
It explores how it could destabilise rights for children and young people, women, LGBT people, disabled people, workers and the environment. Despite assurances from the government that there will be no lowering of human rights standards when the UK leaves the EU, there is very little evidence that it is tackling these issues head on.
The uncertainty and disruption of Brexit, together with the ongoing threat the to the Human Rights Act, highlights the current human rights gap in Northern Ireland.
There is an outstanding commitment in the Belfast/Good Friday Agreement for a Northern Ireland Bill of Rights, and in light of the destabilising impact of Brexit on the enjoyment of rights here, it is time for this commitment to be met.
By Dr Claire McCann, Human Rights Officer with the Human Rights Consortium.