The leaked Full ‘Draft Agreement Text’ was published on Eamonn Mallie’s website on 20 February 2018 and can be found here. It passed from DUP to Sinn Fein on 9 February 2018 – just five days before the talks collapsed and Arlene Foster asked the Secretary of State for Northern Ireland to set a budget and ‘take key decisions impacting on our schools, infrastructure and hospitals’.
It is clear from the draft that Brexit is a priority issue. It is mentioned both in the first section, ‘Improving the Operation of Assembly and Executive’ and the Third Section, ‘Rights and Respect’ of the Draft Agreement. It demonstrates a recognition of what BrexitLawNI, many academics and community organisations have been repeating – that Brexit is going to have serious consequences for Northern Ireland, and particularly the human rights protections available post-Brexit.
Brexit is highlighted as one of two ‘main priorities’ for the incoming Executive, along with health (although the brackets surrounding this paragraph suggest that it was not yet signed off). The Draft Agreement identifies the multiplicity of challenges that the Parties will face, and highlights dealing with the impacts of Brexit for Northern Ireland as one of the most pressing. In order to facilitate this, a Ministerial Sub-Committee of the Executive was to be set up that would focus solely on ‘Brexit-related issues’. Further, the Junior Ministers in the Executive Office were to be ‘given specific responsibility for Brexit’.
Concerns surrounding Brexit and the EU Withdrawal Bill were also identified in the third section of the Draft Agreement. Interestingly, this appeared within a discussion on the creation of a Bill of Rights for Northern Ireland. Section 3.2 stated, ‘[t]he Parties agree to establish an Ad-Hoc Assembly Committee before the end of the year, to consider the creation of a Bill of Rights that is faithful to the stated intention of the 1998 Agreement in that it contains rights supplementary to those contained in the European Convention on Human Rights, which are currently applicable and “that reflect the particular circumstances of Northern Ireland”.’ This Committee is instructed in the Draft Agreement to work with a Panel of four experts towards the creation of an Interim and Final Report that would be completed, it appears, sometime in 2018.
Interestingly, there is specific mention within Section 3 of the Draft Agreement that the Committee should ‘make recommendations on how the EU Withdrawal Bill may impact our “particular circumstances”’. This clause may refer to the potential loss of important human rights protections that appear likely to occur with Brexit. For example, Section 5(4) of the Withdrawal Bill removes protections contained in the Charter of Fundamental Rights as domestic law on exit day. One of the proposed ‘solutions’ made by BrexitLawNI, CAJ, the Human Rights Consortium, and many others, has been to consider the Bill of Rights as a mechanism to ensure that Northern Ireland authorities respect the range of rights found in EU law.