BREXIT= BREAKUP? by Niall Murphy KRWLaw LLP

This is a draft of the lecture to be delivered to the Brehon Law Society in New York tonight. 

INTRODUCTION

On 23rd June 56% of the people in the north of Ireland voted to remain in the EU. They did so because it is in their best interests politically and economically. Yesterday Theresa May ignored that democratic mandate and triggered Article 50, thereby commencing the process of leaving the EU.

There is growing concern in the north and on the entire island of Ireland about the economic consequences of Brexit, the negative implications of which are already becoming clear.

What is certain is there is no good outcome from Brexit and there is no way to manage or minimise the negative impact of Brexit. It runs entirely contrary to Irish national interests.

The North being forced to leave the EU against the expressed wishes of its people will also represent a major set-back for the political process in the north, and directly challenge the integrity of the Good Friday Agreement and will have huge consequences for protections contained within it. It also fundamentally undermines the principle of consent.

Under the terms of the Good Friday Agreement there is an inherent right for those born on this island to Irish citizenship, and by virtue of that right, citizenship of the European Union as well. It is illogical that citizens who enjoy that right would not be afforded the benefits of that citizenship.

Without recognition at Westminster of the changed context we may be heading into a period of (necessary) constitutional confrontation. Despite notional formal adherence to the core concepts of our peace process this is a Westminster government that is in reality hostile to many of the values that underpin our Agreements.

Brexit is only one example; its impact and the implications for the north, combined with the strong signal that consent is not present here, illustrate how unhelpful and destabilising it is. The detrimental impact for human rights and equality is plain and much was done to draw attention to the consequences. Question marks are now routinely being placed over taken-for-granted ideas, for example on movement between these islands and on this one.

The response to Brexit, and to the agenda it represents, should not be passive acceptance. There must be a co-ordinated effort to ensure a dedicated challenge function. NGOs, community activists, lawyers, statutory bodies, politicians, civil servants and others must not acquiesce in a policy agenda that has questionable legitimacy, and is so fundamentally contrary to our interests.

1: ‘Who’s next?’ – the threat to the ECHR

Whilst many have looked on at some attempts to portray the Leave vote in England and Wales as a grassroots uprising I do find this bemusing given the Leave campaign was led by powerful elements of the political and media establishments – including the Daily Mail and Express, and figures including the former Secretary of State Theresa Villiers and others.

On the back of the referendum many of these campaigners are very much in the ascendency, and have a number of other issues in their sights which should concern human rights activists. At the very top of this list and often a twin, conflated and confused demand alongside EU withdrawal, are moves to repeal the domestic incorporation of the European Convention on Human Rights (ECHR). The new cabinet has now said it will press ahead with plans to essentially dis-incorporate the ECHR. At home this would be a prime facie breach of the Good Friday Agreement and would dismantle, for example, the entire legal framework for human rights compliant policing within the PSNI. Abroad if other countries with worse human rights records than the UK follow suit such a move risks unravelling the whole system of post-WWII human rights protection in Europe.

The Good Friday Agreement, in addition to being overwhelmingly approved by referendum, in Ireland North and South, was also incorporated as a treaty between the UK and Ireland and lodged with the United Nations. Article 2 of the treaty binds the UK to implement provisions of the annexed Multi-Party Agreement which correspond to its competency.

Indeed paragraph 2 of the Rights, Safeguards and Equality of Opportunity section states:

“The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.”

This commitment was given legislative effect through the Human Rights Act 1998. The ECHR was regarded as so important that the Agreement also committed the Irish Government to incorporate the ECHR under the “equivalence” provisions.

The Human Rights Act 1998 is also critical to providing the framework for human rights compliance of the new Policing dispensation in the North. A key aspect of the Policing Boards oversight role is to monitor compliance of the police under this legislation. The PSNI code of ethics for police personnel is also designed around the framework of the ECHR as provided for by the Act.

The Parades Commission also operates within a human rights framework, while adjudicating on competing rights as outlined in the ECHR. Accordingly, any attempt to repeal the Human Rights Act or derogate from the ECHR will have serious consequences for our new governance, policing and parading dispensations, and is detrimental to the integrity of both the Good Friday Agreement and St Andrews Agreement.

Nevertheless we are no so naïve as to expect HMG to abide by its commitments – we saw this with the Bill of Rights for Northern Ireland, a Commitment to implement an Irish Language Act as well as measures agreed at Stormont House and the Fresh Start Agreement to Deal with the Past.

2       Racism: the rise and legitimisation of anti-migrant racism

A second compelling and portending issue is racism and its rise. A number of you will have seen the recent comments of the UN Committee on the Elimination of all forms of Racial Discrimination (CERD), which raised the increased number of hate crimes but also expressed deep concern “that the referendum campaign was marked by divisive, anti-immigrant and xenophobic rhetoric…which created and entrenched prejudices”.

Despite a section of the establishment leading the Leave campaign, the bulk of who voted leave in England and Wales were among the more disadvantaged sections of the population who have seen their living standards eroded over the last 30 years. It is more compelling now, than ever before, that legitimate grievances against regression in socioeconomic rights should best be channelled into the politics of collective type-action for improved rights for all. In the alternative there is the risk, which should be unfamiliar to those of third generational Irish American heritage, that grievances can be turned into the type of politics which scapegoats some other ethnic group for a country’s problems. Let us not deny that it is the latter that is clearly in the ascendency in the context of the referendum.

Fixed passport controls the length of the land border are politically and economically untenable and hence unlikely. However if not a ‘hard’ border for all we are concerned there is a real risk of a ‘racist’ border emerging with selective checks which single out persons for questioning and potential detention on the basis of skin colour and other ethnic identifiers.

The Home Secretary’s speech and briefing note to the 2016 Conservative Party Conference have been widely interpreted as urging employers to ensure they are prioritising British workers, and providing for a duty to be introduced to oblige firms to disclose the proportion of ‘non-British’ workers they employ. Such policies, reminiscent of ethnic registration, have already caused deep alarm and if proceeded with would fuel racial prejudice in a northern context where there is already paramilitary involvement in racist violence.

It would be remiss also not to point out that such policies would be incompatible with the Agreement, and would directly clash with Fair Employment legislation and monitoring. Given the strong correlation between national identity and community background in Northern Ireland, any preferential treatment of British workers by public authorities or subordinate legislation would appear unlawful under anti-discrimination legislation or in the alternative, Section 76 of the Northern Ireland Act 1998.

3       Economic Catastrophe

Whilst the UK is a net contributor to EU funds, the north is by contrast a net beneficiary. An official paper raises concerns about losing access to €862million of structural funds in the (2014-20) period and €2.5 billion of CAP funding in the same period. The north received £340million in agriculture and fisheries funding in 2015, along with £160 million in structural and investment funds and £270 million in Peace funding. These bring massive economic and social benefits in helping to consolidate peace and securing reconciliation and must be continued. It is of course the case that the British Treasury could step in and replace this funding, but will they?

• Will they recognise that proportionately there are far greater numbers of farmers at home than over the water, or will pro-rata funding be provided to the devolved institutions regardless? Also who decides the criteria?
• Trade restrictions would threaten cross-border production as well as sales, putting farmers out of business. About a third of milk from cows in the north is transported across the border for production into butter, cheese and infant formula[1]. More than 25% of the region’s raw milk went south of the border to be processed but a hard Brexit would close down that flow, not just because of tariffs and customs checks, but because of the burden of paperwork relating to issues including traceability, animal welfare and food standards.
• Brexit could put an extra 10c on the price of a loaf in Ireland, causing job losses in Britain because Irish producers would quickly look to source flour inside the European Union.[2] Eighty per cent of the flour used in the Republic for baked goods and other products currently comes from the UK.
• Britain is Ireland’s largest export partner, while Ireland is Britain’s fifth biggest trading partner, with €1.5bn (£1.35bn) in transactions each week. The London-Dublin route is Europe’s busiest airlink.
• A mushroom factory in the small rural town of Tipperary that closed in August was an early warning sign, a canary in the coalmine. An estimated 90% of mushrooms are exported to the UK, bringing in about €120m each year. The Tipperary factory relied heavily on British sales and closed with the loss of 75 jobs as a direct result of Brexit, with the owner blaming the drop in sterling against the euro[3].

Matters which were dealt with far away will now be thrown into the local political dynamic, with potential adverse impacts on equality if criteria are not designed around objective need. This is the same with any replacement for peace process funding – where some groups, such as ex-prisoner organisations, have been heavily dependent on EU funding that could now either disappear or be put within the local political-decision making context. The economic implications are multifaceted and will only become clear over time.

4       GFA provisions on citizenship in the north

The passage through the Oireachtas of the Republic of Ireland Act 1948 formally declared Ireland a Republic and removed the last functions of the British monarchy from Executive power in Ireland’s external relations. This meant Ireland ceased to be a member of the Commonwealth. In response the Westminster passed the Ireland Act 1949. This essentially ensured that Irish citizens would continue to have the same entitlements as Commonwealth citizens in the UK.

In relation to the position of the two Governments on citizenship, the British-Irish treaty which forms part of the Good Friday Agreement guarantees that the two governments will:

… recognise the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland. [Article 1(Vi)]

Post-Agreement Irish law was amended after the GFA to guarantee an entitlement to Irish citizenship to all persons born in the north, rather than automatically bestowing such citizenship. However, the Irish government regressed this entitlement in 2004 by the two governments agreeing to re-interpret their understanding of the above GFA phrase the “the people of Northern Ireland” to restrict the birthright to Irish citizenship to babies with one parent who was a British or Irish citizen or otherwise a permanent resident in the north.

In contrast UK law providing for British citizenship as an entitlement– the British Nationality Act 1981 – continues to automatically bestow British citizenship on all babies born in NI whose parents are British or otherwise settled in NI, the latter category almost always including Irish citizens. This means that persons born in the nortj choosing to carry an Irish passport who have never had a British passport are usually also British citizens under UK law. (save in the uncommon event where a fee of £272 has been paid to renounce British citizenship). It is fair to say this is not common knowledge.

Notwithstanding this, the vast majority of persons born in the north are, or are entitled to be Irish citizens, and hence EU citizens Irish citizens have had rights to settle, work and related matters in the UK for some time but much of this is now provided for on the basis of exercising EU treaty rights.

In the post Brexit event of the north being outside of the EU, legislation which grants entitlements on the basis of EU treaty rights will cease to have effect. The direction of travel from government may be to further link entitlements to British citizenship. On the face of it this will not per se remove entitlements of Irish citizens who are also British Citizens. However, as alluded to earlier it would not be compatible with the Good Friday Agreement to oblige those who chose to identify as Irish, to identify as British to obtain entitlements.

5       Unintended Consequences – Rights Denied.

Access to the NHS. At present in general terms full free access to the health services is available to those who are ‘ordinarily resident in Northern Ireland’. Whilst this test is on residency rather than nationality, in practice it is much more straightforward to meet the test if you can demonstrate you are an EU/EEA national, with more onerous proofs being usually requested for non-EEA/EU nationals. Should this change and the test remain straightforward for those who are and identify as British citizens but not as Irish citizens, then there are compliance questions with the Agreement.

Student Tuition fees –– Ireland becomes a ‘foreign country’?        

In terms of other areas of regulation one of interest will be student tuition fees. At present there is a situation whereby student fees in QUB and UU are charged at around £3k for Northern Ireland residents – and the same rate for Republic of Ireland based students, and indeed any other EU resident nationals. As this is an EU right is likely to end with BREXIT (unless there is a reciprocal agreement) RoI students would fall to be treated as ‘overseas’ students, and charged at much higher rates.

For example QUB undergraduate annual tuition fees for NI domiciled students are £3,925; the same figure is applied for EU students – whereas the figure for international students is between £13k (classroom based courses) and up to £34k for clinical medical courses.

CONCLUSION

In the constitutional legal and political arguments to come there must be recognition and firm acceptance of the ‘special status’ of what has been achieved at home, and what remains unfinished business. In these discussions there must be no retreat from the human rights and equality gains.

Brexit is one part of a sustained attack on the concept and the practice of human rights, and one further contribution to the attempted erosion of the core constitutional values of our peace/political process. The attitude to this must be one of legal policy and political challenge and constitutional confrontation. Human rights and equality must remain central to our new dispensation.

[1] www.theguardian.com/politics/2017/jan/11/brexit-barriers-would-ruin-northern-ireland-dairy-farms-mps-told

[2] http://www.independent.ie/business/brexit/how-brexit-could-add-10c-to-the-price-of-a-loaf-of-bread-35546551.html

[3] https://www.theguardian.com/world/2016/oct/16/irish-pm-calls-brexit-summit-to-confront-looming-crisis