Judging Brexit Solutions
By Professor Colin Harvey
Much of the focus of the Brexit debate, with respect to N. Ireland/Ireland, has moved to ‘solutions’. Many are now on offer (‘reverse’ this and ‘plus’ that). How should these proposals be judged with reference to some of the values that are informing the BrexitLawNI project? There is scope for differing views but there are five issues I want to highlight (with the aim of promoting discussion).
First, there must be appropriate levels of clarity. People need to know what rights they will have, N. Ireland (like Scotland and Wales) requires a firm understanding of what legislative and executive competence will mean (and that this has been worked out inclusively and properly) and judges will want to know what to do about judgments of the Court of Justice of the EU. There are many other examples. The point is that the negotiations must lead to clear outcomes that are principled and workable. In N. Ireland this additionally means a result that does not destabilise even further an already fraught situation. The first point then is that people must know what the position is and what it means; clarity and certainty will be essential. This is no time for destructive ambiguity.
Second, any solution for N. Ireland should be respectful of the complex constitutionalism that has evolved here. This seems relatively simple but not widely grasped. There is a distinctive logic to our political constitutionalism that follows power-sharing principles, all the way up and down. It is not apparent that Whitehall and Westminster get this; the current arrangement with the DUP probably does not assist. N. Ireland is already supposed to ‘enjoy’ a special constitutional status within these islands.
Third, how proactively will solutions ensure no falling backwards on human rights and equality? There is a real risk that the negotiations may result in a compromise that continues the now established trend of discarding the progressive promises of peace. That will mean holding on to a human rights framework in a world of withdrawal and retreat into conceptions of exclusionary citizenship; the rise of global and micro versions of ‘us and them’ politics. How comfortable should people in N. Ireland really feel if the solutions to Brexit entrench discrimination against new communities here? A contextually sensitive approach should be founded on ‘both/and’ and not ‘either/or’ thinking; human rights are for everyone, the clue remains in the title.
Fourth, will the solutions provide for effective implementation and enforcement, particularly if rights are infringed in the future? The lesson from nearly 20 years of the Good Friday Agreement is precisely the significance of careful thought on enforcement (perhaps the weakest element of that agreement). If we in N. Ireland are left lamenting breached principles with no remedies then whose fault will that be? Without meaningful oversight, including but not limited to judicial mechanisms, it will simply be more platitudes for the next generation.
Finally, what might be termed a BrexitLawNI filter is needed. All proposed solutions need to be screened and assessed for their human rights, equality, constitutional and conflict transformation consequences for N. Ireland. It is essential that we all know the impact of what we are getting into. Whether people act on that knowledge is a separate question.
You may agree or not with a ‘check list’ approach to life, but a version of it is useful now. There is a real risk that ‘Brexit solutions’ on N. Ireland with be neither flexible nor imaginative. Once again, the lowest common denominator will be reached for and unsurprisingly achieved (or not). If the conclusion is that (in order to get a bespoke N. Ireland/Ireland solution worth the name) we need a new negotiated way forward on this island then so be it. Better that than an unimaginative and unambitious fudge that fails to appreciate the depth of our current constitutional crisis. For many (but certainly not all) in N. Ireland and Ireland the UK’s decision to leave the EU is senseless; an outcome that lacks the agreement and consent of this island. Those who sneer at anyone making this point should be more cautious; setting the consent of N. Ireland aside so casually sets an unsettling precedent. The ‘consent principle’ is rather taken for granted now; that was not always the case.
Answers to the questions posed by Brexit are not straightforward; it has created an awful mess (not least for the unfortunate civil servants who have to deliver the practicalities). It is worth taking the time needed now to forge genuinely participative, creative and effective solutions. If we do not, we are storing up triggers for instability and passing our woes on to another generation.