Making social science accessible

16 Nov 2018

Constitution and governance

Whatever spin is placed on it, one thing is now plain: a special arrangement for Northern Ireland has been achieved. The Protocol on Ireland/Northern Ireland has evolved since the earlier draft, but much of the substance remains; and that is a good thing.

The constitutional fireworks were never merited: it should not be hard to accept that Northern Ireland is different. The region is not just like any other part of the UK. All that this draft Withdrawal Agreement really does is to try to conserve and protect much of what is there now.

There is a risk, however, that some of the constitutional, rights and equality matters will get neglected or distorted. So, the purpose here is to highlight those issues (as they relate to the Protocol).

First, it is a special arrangement that is intended to address the agreed unique circumstances of Northern Ireland and the island of Ireland. The aim (as spelled out in the text) is to maintain North-South co-operation, avoid a hard border and protect the Good Friday Agreement in all its parts (including the equality and human rights components). It will be there ‘unless and until’ it is superseded (‘in whole or in part’).

Everyone hopes that something much better will come along, but a solid guarantee is needed until then. That has always seemed sensible.

Second, there is explicit recognition of the constitutional status provisions of the Good Friday Agreement, and the associated ‘principle of consent’. Their inclusion is strictly unnecessary, but they have been added to placate unionist opposition; and that has not worked. Respect for the territorial integrity of the UK is also underlined, for good measure.

Again, however, many unionists still do not appear convinced. The strategic wisdom of that unionist position is being increasingly questioned by prominent figures from across the community in Northern Ireland. Turning your back on a much envied special deal seems incomprehensible to many (including observers in Scotland).

Third, rights and equality remain in the Protocol, and there is recognition of the ongoing value and significance of the Common Travel Area (CTA). The commitment to ‘no diminution’ is limited to aspects of the Good Friday Agreement, and a restricted range of EU law measures.

There are to be ‘dedicated mechanisms’ to implement this. The work of the Human Rights and Equality Commissions in Northern Ireland gets a mention, and they will have a role (as will the Joint Committee of the two Commissions on the island), for example, in relation bringing matters to the attention of the Specialised Committee.

There will be disappointment that the EU Charter of Fundamental Rights is not explicitly there, and at the relative weakness of the implementation and enforcement dimensions.

The CTA needs to be put on a proper legal footing, and it is to be hoped that both governments will get to that soon. In addition, many Irish citizens in Northern Ireland will feel that the promises made to them in December 2017 have simply not been kept, and more will need to be said about that soon (including from the Irish Government).

Fourth, the machinery wrapped around this Agreement is complex and many new institutions/bodies will emerge (for example, Arbitration Panel, Joint Committee, Specialised Committee on the Implementation of the Protocol; and the Joint Consultative Working Group).

Close attention will be paid to their establishment and how they incorporate rights and equality considerations into their work (including on questions of participation, engagement and individual redress).

Finally, there will be understandable and merited frustration that the Protocol does not go further on rights and equality (remember: disappointment does not all flow one way).

However, it is also worth noting what has been accomplished. It was not always evident that these matters would feature at all; it is no accident that they have forced their way on to the agenda and into the text. So, Northern Ireland has secured what looks (in the context of Brexit) like a sensible package of mitigating measures that embraces some human rights and equality commitments.

Questions will remain, and there is much still to tease out. One thing is plain: any attempt to shut human rights and equality out of this conversation clearly failed.

By Professor Colin Harvey, Brexit research leader at The UK in a Changing Europe.


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