Borders or Bridges: How leaving the EU will impact Northern Ireland
By Bronagh Kieran
When John Hume, noted Northern Irish activist, jointly won the Nobel Peace Prize, he provided the following reflection in his acceptance lecture:
“In my own work for peace, I was very strongly inspired by my European experience […] On my first visit to Strasbourg in 1979 […] I went for a walk across the bridge from Strasbourg to Kehl. Strasbourg is in France. Kehl is in Germany. If I had stood on this bridge […] after the end of the Second World War […] and if I had said: “Don’t worry. In 30 years’ time […] we will be working together in our common interests”, I would have been sent to a psychiatrist. But it has happened and it is now clear that European Union is the best example in the history of the world of conflict resolution.”
According to Hume, if membership in the European Union advanced harmony in German French relations, then the same EU values could contribute to meaningful peace in Northern Ireland. But now, the UK is leaving the EU, with Northern Ireland included.
Commentators have speculated that the UK’s withdrawal could lead to the stoking up of tensions within NI. In this blogpost, I will look into the merits of this claim. I will also address the legal framework for protecting human rights in NI.
Brexit, the Border & the Backstop
As Brexit looms, the question of how the border between Northern and Southern Ireland will operate remains undecided. The reason this border is so contentious is because it will be the only land crossing between the UK and the EU. As a crossing point between the two jurisdictions, one scenario would see customs and regulatory checks installed along the border. This would be “a hard border”. However, London, Dublin and Brussels have all rejected this possibility for a number of reasons.
Firstly, a hard border would impose costs and delays on trade and travel. At the moment, people move freely across the border; my family and friends routinely cross for work, sport, shopping and more. Border checks would obstruct this.
Secondly, a hard border could destabilise peace in the region. If border checks were reintroduced, it could act as a daily reminder of the legacy of British rule in Ireland, something which could add fuel to the nationalist cause.
What solution is on the table? The Irish backstop is the idea that special status should be given to Northern Ireland, such that they will maintain the same or similar custom and regulatory standards as the EU. This would allow for people and goods to pass through the border without being stopped or checked. Despite most parties recognising that a hard border should be avoided, the House of Commons recently voted to change the backstop agreement[1] negotiated by Theresa May.
The Democratic Unionist Party (DUP) from NI influenced this decision. The Conservatives rely on the DUP to prop up their majority, and the DUP are staunchly opposed to the backstop agreement. Ultimately, they want NI to stay as a part of the UK and in their view, the backstop undermines the constitutional integrity of the Union.
Peace & Violence
In the years since the Troubles ended, much work has been done to entrench peace. Any projections of a return to widespread violence are speculation at this point.
For the past two years, the Stormont Assembly has been suspended as a result of a political fallout due to a scandal concerning a renewable heat scheme. In this time, peace has broadly been maintained. The ability of a state to withstand a serious political crisis, without descending into conflict, has been used by democratization experts as a positive indicator of the democratic stability of that state. On the other hand, the dispute means that the spirit of cooperation is already compromised, and this political climate could provide fertile ground for more division in the wake of Brexit.
Widespread aversion to violence is demonstrated by the fact that when violent acts do occur, they have been condemned by parties across the political spectrum. For example, a bomb planted outside the (London)Derry courthouse in January of this year was condemned by Arlene Foster, leader of the unionist party, the DUP, and Mary-Lou McDonald, the head of the republican party, Sinn Féinn. Furthermore the dissident republican group “Óglaigh na hÉireann” declared a ceasefire in 2018, stating that the environment is not right for armed conflict.
Nonetheless, underlying tensions prevail. To this day, NI hosts its own regional center of MI5. Moreover, 2012 saw the formation of the New IRA (Irish Republican Army) which is comprised of several major dissident republican groups, and which has since been implicated in a number of violent incidents, including the murder of prison officer Adrian Ismay.
The police service of Northern Ireland are not taking the prospect of a disorderly Brexit lightly. They have requested that 1.000 additional officers be sent from the rest of the UK in the event of a no-deal Brexit. This is double the amount that is sent to support local officers during the annual marching season.
Notably, paramilitary activity is most prevalent in economically disadvantaged neighbourhoods. Poverty rates in NI are amongst the highest in the UK. Notwithstanding sizeable economic development and a growing tourist industry, the region still relies heavily on subsidies. Economists predict that across the UK, Brexit will negatively impact poorer districts the most. In NI, this could foreseeably result in more of the youth turning to violence.
Brexit & the NI Human Rights Framework
Currently, residents in NI enjoy the protection of the UK Human Rights Act, the European Convention on Human Rights (ECHR) and, in certain contexts, the EU Charter of Fundamental Rights. How could this change in a post-Brexit UK?
The ECHR is an instrument of the Council of Europe, rather than the EU, so membership will not be revoked when Brexit takes place.
The UK Human Rights Act, which is based off the template of the ECHR, is a central tenet of human rights protection within the UK. In the Conservative Government’s 2015 election manifesto, they proposed that the Human Rights Act should be replaced by a British Bill of Rights. This would mean that the ECHR would no longer have direct effect in UK Courts. However, the Justice Secretary confirmed that consideration of a British Bill of Rights has been shelved until after the conclusion of Brexit.
For NI, the Human Rights Act has a special significance. Under the Good Friday Agreement, the British Government incorporated the Human Rights Act into NI domestic law. The courts were also granted the additional power to strike down legislation from the Stormont Assembly if it does not comply with the Human Rights Act. In this way, the Human Rights Act has been essential in building institutional confidence amongst the population of NI.
A further point to note is that by leaving the EU, the EU Charter of Fundamental Rights will no longer be effective in the domestic law of the UK[1]. This is significant because the EU Charter of Fundamental Rights provides explicit protections which are not present in the ECHR, including a right to data protection (Art 8).
Conclusion
As with all things Brexit related, who knows what is going to happen? But regardless of what does take place, the peace and human rights protections which have been painstakingly built up in NI ought to be protected.
Bronagh studied Law with Philosophy at University College Dublin where she was active in the university philosophy society. Since graduating in 2017, she has completed a legal internship and a traineeship in the Council of Europe’s liaison office to the EU. In this time, she also performed as a part of Nolla Theater Collective. Bronagh’s interests include the rule of law, jurisprudence, and environmental protection.
Further reading:
http://www.nihrc.org/publication/detail/discussion-paper-on-brexit
https://www.theguardian.com/news/audio/2019/jan/31/protecting-the-good-friday-agreement-podcast
[1] “The provisions of the Charter are primarily addressed to the EU institutions and then to the national authorities only when they are implementing EU law.”
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