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Northern Ireland and Brexit

Available Open Access under CC-BY-NC licence. How does Brexit change Northern Ireland’s system of government? Could it unravel crucial parts of Northern Ireland’s peace process? What are the wider implications of the arrangements for the Irish and UK constitutions?

Northern Ireland presents some of the most difficult Brexit dilemmas.

Negotiations between the UK and the EU have set out how issues like citizenship, trade, the border, human rights and constitutional questions may be resolved. But the long-term impact of Brexit isn’t clear.

This thorough analysis draws upon EU, UK, Irish and international law, setting the scene for a post-Brexit Northern Ireland by showing what the future might hold.

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To provide UK business with guarantees of full and equal access to the single market without equal acceptance of EU regulatory structures would require not so much a skilled negotiating team as a fairy godmother specialised in trade law. (Martin Donnelly, Former Permanent Secretary of the Department for International Trade, 2018)

Prior to Brexit, shared membership of the European Union (EU) had eliminated most major restrictions upon the trade in goods and services between Northern Ireland and Ireland. A ‘frictionless’ or ‘open’ border has existed since the completion of the EU Single Market in the 1990s, without customs checks or the associated infrastructure. Since the Brexit vote, the future of arrangements at this border has been uncertain. This chapter asks what is so ‘special’ about the EU Customs Union and the Single Market, and considers to what extent the future trade relationship outlined in the Phase 1 Joint Report of December 2017 compensates for being out of the Customs Union and the Single Market. In that report, the UK government pledged a baseline of regulatory alignment with EU law (at least in terms of Northern Ireland) to facilitate cross-border trade in Ireland. This chapter examines the UK government’s subsequent proposals and assesses whether they can satisfy both the commitments that the UK has made to the EU and the ‘red lines’ that it has set for itself: no land border between Ireland and Northern Ireland; trade that is ‘as frictionless as possible’; but also no membership of the Single Market and the Customs Union.

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I’m not lost for I know where I am. But, however, where I am may be lost. (A.A. Milne, Winnie-the-Pooh, 1926)

For some people, citizenship is little more than a logo on the front of a passport or a dropdown box on a form. It is possible to go through the whole of life without really thinking about what it means to be ‘British’ or ‘Irish’, let alone what it is to be a European Union (EU) citizen. Indeed, about 19% of Northern Ireland’s population have no passport (The Northern Ireland Statistics and Research Agency, 2012, p 16). However, even within that group, many continue to attach symbolical importance to their national identity. For others, whose livelihood and residency depend on their status, rules around citizenship assume pressing practical significance.

Since the Brexit referendum, however, questions of citizenship have become more pressing for more people within Northern Ireland; there has been a growing realisation that different passports carry with them distinct benefits. When speaking about EU citizenship, derived from being a national of one of the EU’s Member States, the most prominent of these advantages is the freedom to move and work across the EU. Post-Brexit, Irish citizenship will continue to confer EU citizenship rights, but UK citizenship will not. Calculations about the value of EU citizenship have moved many in Northern Ireland to apply for Irish citizenship, even when they would not previously have considered doing so. For some Unionists, such steps can be difficult to reconcile with personal identity; Ian Paisley Jr famously, and not entirely convincingly, sought to explain away an Irish passport as merely ‘a European document with an Irish harp stuck on the front posing as a passport’ (Rogers, 2016).

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The peace process was built on a shared vision of equal rights and equal respect on the island of Ireland, as framed by the Belfast (Good Friday) Agreement.… We are now seeking assurances from the UK and Irish Governments that no rights are diluted as a result of Brexit. (Emily Logan, Chief Commissioner of the Irish Human Rights and Equality Commission, 2018)

Many commentators acknowledge that Brexit will have implications for trade and economics, as well as for citizenship and their ability to live in the European Union (EU). However, what does the EU and Brexit have to do with human rights protections? This chapter explains how Brexit will impact the intricate human rights protections in Northern Ireland. Human rights were a contentious part of Northern Ireland’s governance even before Brexit. The Good Friday Agreement (GFA) provided a baseline of domestic human rights protections, drawn from the European Convention on Human Rights and put into operation through the Human Rights Act 1998 and Northern Ireland Act 1998 (NIA). The ambitions of the GFA were also greater, requiring the development of Northern Ireland-specific human rights and a – so far, unmet – requirement that a Northern Ireland Bill of Rights should be prepared. Finally, the GFA introduced rights to ‘equivalence’ and ‘non-diminution’ of rights across the island of Ireland. Equivalence means that rights across the island must largely be the same (though there are obviously some differences, such as marriage equality, which have been accepted as not breaching the GFA). Non-diminution requires that these rights must retain their current levels of protection and evolve positively in future.

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I always maintained that our loyalties had an order – to Ulster, to Ireland, to the British Archipelago, to Europe; and that anyone who skipped a step or missed a link falsified the total. (John Hewitt, 1964)

Brexit will not simply reshape the UK’s relationship with the European Union (EU); it will upset what the Belfast poet John Hewitt understood as multiple interdependent layers of governance and identity. In so doing, it could trigger wholesale reform in the legal and political rules by which the UK and Ireland are governed. This chapter examines these constitutional implications and explores how these countries’ constitutions are shaping the negotiation and delivery of Brexit. We first examine how a narrative of friction between the UK Constitution and EU membership produced ideas of the UK ‘taking back control’ through Brexit, and the ramifications of this mantra for the UK’s future relationship with the EU. We then assess how Brexit impacts upon the ‘territorial’ aspects of the UK Constitution: its devolution arrangements, and the shared rules holding the UK together. Finally, in relation to the UK, we consider how well the UK Constitution protects the terms of the Good Friday Agreement (GFA) that are threatened by Brexit.

We then examine the Irish Constitution and its relationship with Northern Ireland, particularly changes that have been made to the Irish Constitution by developments in Northern Ireland (including to the foundations of the state, citizenship and religion). These frequent adaptations to the Irish Constitution in light of Ireland’s relationship with Northern Ireland open up the possibility of changes to electoral laws post Brexit giving Irish citizens in Northern Ireland the ability to vote in European elections.

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[T]he exact same benefits. It’s bollocks. It always has been bollocks and it remains it … (Barry Gardiner, MP, quoted in BBC, 2018b)

The Phase 1 Joint Report sets up a special status for post-Brexit Northern Ireland, providing for distinct regulatory arrangements, citizenship rules and rights protections (which, in some instances, could be extended to cover the whole of the UK). These special arrangements are bolted onto a peace process that Tony Blair (2006) famously characterised as having no agreed end point. Nationalists and Unionists support irreconcilable constitutional futures for Northern Ireland; there must be either the reunification of Ireland or a continued place for Northern Ireland within the UK. All of which leads to one big question, colouring our entire discussion of Brexit: will the Brexit settlement advantage one of these end points?

The EU is a club made up of states, or it has been up to now. For some, the question is whether the EU can develop beyond this point: ‘the EU must be regarded as an organization of men and women as opposed to a simple union of states, and one that accommodates different kinds of representative institutions’ (Della Cananea, 2010, p 300). The flexibility demonstrated towards key concepts in EU law in its proposed Brexit solutions for Northern Ireland suggests that it is, indeed, embracing this challenge. Northern Ireland has amply demonstrated its capacity to reshape two national constitutions, and in Brexit, it is forcing a supranational body to confront what kind of organisation it aspires to be and what being one of its citizens means.

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‘We do not wish … [the referendum] to be used for their own purposes by those who wish to divide the United Kingdom.’ He [Edward Short, MP] went on to say, ‘We are not concerned with what Northern Ireland thinks,’ in words hardly felicitous for the occasion. (John Peyton, MP, 1975)

As the referendum results edged towards a conclusion on that fateful June night, Northern Ireland was, as expected, an outlier. Many Unionist MPs had castigated the European project ahead of the vote, whereas Nationalist politicians had tended to emphasise its benefits in diminishing the significance of the Irish border. The Democratic Unionist Party’s (DUP’s) Ian Paisley had thundered through the campaign about the perils of ‘a Roman Catholic super-state’ that should be ‘totally repugnant to freedom-loving Protestants’. When the tallies were finalised, a 52%/48% split loomed large, but Northern Ireland had voted in favour of membership.

That referendum, however, was in June 1975, not June 2016. Then, Northern Ireland had been considerably less enthusiastic about the European project than the remainder of the UK. Its 52% ‘yes’ vote contrasted with overall UK electorate support for membership of the-then European Economic Community of 67% (Dixon, 1994, pp 177–8). Whereas many Unionist politicians remained concerned over the dilution of UK sovereignty inherent in European membership, most Northern Ireland voters were swayed by more day-to-day concerns. Fast-forward to 2016 and Northern Ireland was one of the most pro-European parts of the UK. While the preceding quotes come from Ian Paisley Sr (Royce, 2017), in 2016, his son and namesake, who vigorously supported Brexit, happily declared his willingness to sign Irish passport forms for any of his constituents eager to maintain their European Union (EU) citizenship (Peyton, 2016).

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[I]t is better that we should not even mention Partition in international assemblies, for our doing so would savour of the old coercionist policy of enlisting outside support against our fellow-countrymen, and, like that policy, would merely irritate without effecting any useful purpose. (Donal Barrington, 1957, p 400)

Discussion of the challenges that the Irish border poses for Brexit has tended to quite literally size up the problem; the border, we are solemnly informed, is 310 miles in length, features over 200 formal crossings and is traversed by some 30,000 people daily for purposes of work alone (NIAC, 2018a, paras 5–7). Such approaches give the image of borders as narrow spaces at which checks on travellers and goods can occur, and the risk of a ‘hardening’ of the border between Northern Ireland and Ireland on Brexit comes to be seen solely in terms of extra checks and delays. Borders, however, also operate on a deeper level; partition in Ireland created separate political and legal orders where no formal divisions had existed before. When the European Union (EU) has done so much to standardise rules and regulations applicable on either side of the Irish border, any ‘hardening’ of this dividing line could produce increasingly pronounced divergences.

In this book, we approach the Irish land border as both a narrow space at which regulation happens (which could become much more highly regulated post-Brexit) and a deeper divide between two states (which could pursue increasingly divergent policies post-Brexit). Before we do that, however, we outline the legal topography of the border: the major concepts and laws that shape our understanding of this divide.

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