Discussion Paper on Brexit

Joint Committee of the Irish Human Rights and Equality Commission and the Northern Ireland Human Rights Commission, 2018

87 Pages Posted: 26 Nov 2018

See all articles by C. R. G. Murray

C. R. G. Murray

Newcastle University - Newcastle Law School

Aoife O'Donoghue

Durham Law School

Ben T. C. Warwick

Birmingham Law School, University of Birmingham, UK

Date Written: January 23, 2018

Abstract

Brexit significantly disrupts the current human rights framework in the UK and Ireland. This disruption will affect both substantive human rights provisions and the structures that support their operation. The impact of this disruption upon Northern Ireland’s unique international, constitutional and human rights infrastructure demands particular attention. Several contextual factors are significant in understanding the current human rights framework, the risk factors of Brexit, and the steps necessary to prevent the diminution of rights. The Good Friday/Belfast Agreement, the Human Rights Act, the Common Travel Area and the Northern Ireland Act provide the main international and domestic imperatives for human rights provision in Northern Ireland that will remain post Brexit. These, coupled with EU goals and values, which are heavily based in human rights language, had created an interdependent system of rights and remedies. One piece of this complex tapestry, EU law, will now be removed or significantly modified.

The Phase 1 Joint Report includes language on citizen’s rights – with a single reference to human rights – and specifically refers to preventing diminution of rights. Nonetheless the EU (Withdrawal) Bill, the specifics of devolution following the repatriation of EU competences, the content of the Withdrawal Agreement and the future – if any – trade deal leaves key human rights issues unanswered and in some instances, creates new problems. For instance, the potential for nine categories of residents in Northern Ireland establishes a particularly burdensome administrative system that will be difficult for all individuals to comprehend and access effectively to ensure continued and enhanced human rights protection.

The Good Friday/Belfast Agreement envisaged ongoing membership of the EU. While the GFA does not prevent Brexit, to ensure ongoing compliance with its terms and the sustainability of the ECHR-plus system in Northern Ireland and Ireland, the UK and Irish Government must ensure sustained dialogue with the political parties, human rights bodies and civil society organisations in Northern Ireland. Sustained GFA proofing of all international and domestic legal changes should be conducted. The Irish Government should also seek an Interpretative Declaration from the UK to ensure its ongoing implementation of the GFA. The Phase 1 Report para 53 specifically states that there is to be no diminution of rights in Northern Ireland. A Northern Ireland Bill of Rights would ensure that para 53 is fully implemented.

The Common Travel Area has long provided a safety value to ensure that movement of people between Britain and Ireland for any purpose remains relatively straightforward. All parties agree that this should continue. Nonetheless in a period of considerable legal change the CTA must be put on a more assured footing. At present, it is a mix of legislation, statutory instruments, limited treaties and practice. Currently, the EU provides further certainty as it guarantees many equivalent rights. Now that this will end, it will be essential to place the CTA on a treaty footing to secure family, resident, welfare, social, political and civil rights continue.

The Phase 1 Report will create up to nine categories of residents in Northern Ireland. This ought to be reconsidered in the context of reciprocity and equivalence, and greatly simplified. Without alteration, uncertainty as to an individual’s ability to live, work, access essential services, and be joined by family members will exist. Such categorisations may also have a chilling effect on access to services and could lead to economic hardship for those uncertain of their rights. The practical nature of non-diminution of rights and its implications need to be made explicit, and should include guarantees that the people of Northern Ireland with Irish citizenship will be entitled to full and evolving access to EU citizenship rights and opportunities. Mechanisms to ensure those rights are reflected in UK law as EU standards develop need to be enshrined and practical guidance to all Northern Ireland residents made available.

Cooperative justice arrangements which have become fundamental to cross-border policing in Ireland will be profoundly disrupted by Brexit. The UK stands to be locked out of arrangements covering the cross-border transfer of suspects in criminal cases, prisoner transfers, data and information sharing and the work of the EU’s coordinating Agencies. The negotiation of any replacement arrangements to take effect post-Brexit must be focused on the need to ensure equivalent safeguards for fundamental rights and judicial oversight mechanisms.

How Irish EU citizens in Northern Ireland are represented in the EU democratic institutions will be of critical importance after Brexit. Ireland should consider extending the franchise in EU Parliamentary elections to those individuals resident in NI who are not only granted EU citizenship but are also entitled to exercise those rights. This would prevent the creation of a democratic deficit within the European Parliament.

The EU (Withdrawal) Bill will impact on the competences of the Northern Ireland Assembly, specifically under section 6(2)(d) of the Northern Ireland Act 1998. This needs to be examined in detail in the context of the GFA and human rights guarantees, particularly if the Northern Ireland Assembly continues to be suspended.

The Phase 1 Report’s favourable language toward PEACE and INTERREG funding to continue to assist Northern Ireland and the border regions in their recovery as part of the ongoing peace process is important in preventing economic hardship. Nonetheless, the impact of the loss of the Common Agricultural Policy on the farming and agri-food sector and the potential for economic hardship needs to be seriously reflected upon and systems put in place by the UK to prevent reduced living standards. While estimates of the impact of Brexit on the UK economy and Northern Ireland vary, the more uncertainty that subsists around residential status and frontier workers, the greater the impact is likely to be.

Keywords: Brexit, European Union, Northern Ireland, Joint Report, Good Friday Agreement, Common Travel Area

Suggested Citation

Murray, C. R. G. and O'Donoghue, Aoife and Warwick, Ben, Discussion Paper on Brexit (January 23, 2018). Joint Committee of the Irish Human Rights and Equality Commission and the Northern Ireland Human Rights Commission, 2018. Available at SSRN: https://ssrn.com/abstract=3260497

C. R. G. Murray (Contact Author)

Newcastle University - Newcastle Law School ( email )

Newcastle upon Tyne, NE1 7RU
United Kingdom

HOME PAGE: http://www.ncl.ac.uk/nuls/staff/profile/colin.murray

Aoife O'Donoghue

Durham Law School ( email )

Palatine Centre
Stockton Road
Durham, County Durham DH1 3ET
United Kingdom

HOME PAGE: http://https://www.dur.ac.uk/law/staff/?id=5868

Ben Warwick

Birmingham Law School, University of Birmingham, UK ( email )

Birmingham B15 2TT
United Kingdom

HOME PAGE: http://www.birmingham.ac.uk/benwarwick

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