BrexitLawNI Policy Report: Brexit and the Peace Process

Brexit and the Peace Process

The European Union has provided significant financial and political support for the peace process in Northern Ireland (NI) since the 1980s. UK and Irish membership of the European Union (EU), formerly the European Economic Community (EEC), has been crucial to improved Anglo-Irish relations since both joined the EEC in 1973. The EU has also featured prominently in the key agreements between the two governments from the Anglo-Irish Agreement (1985) onwards and it is embedded in the architecture of the Good Friday Agreement (1998). The decision by the UK government to exit the EU has quite profound potential consequences for the peace process in Northern Ireland.

The improvement in Anglo-Irish relations which has evolved as a by-product of both the UK and Irish governments being members of the EU has been crucial in embedding ‘habits of cooperation’ between the two governments as co-guarantors of the Good Friday Agreement and as stewards of the broader peace process.

Brexit has had significant consequences for political relations in NI. 56% of the overall electorate of the jurisdiction voted to remain in the EU. Almost 90% of nationalists voted to remain, whilst 66% of unionists voted to leave. Brexit contributed to the collapse of the power-sharing executive in (NI) and remains a formidable obstacle to it being re-established. As one unionist MLA told the BrexitLaw NI team, Brexit has provoked Irish nationalists in NI in particular, with a sense that ‘English nationalists have come in over their heads and denied a part of their identity which was critical to them feeling comfortable about living here.’

Brexit has had a political impact across the island of Ireland in ‘mainstreaming’ discussion on Irish reunification – an issue that appeared to have been ‘settled’ by the Good Friday Agreement. The Irish government successfully argued for the inclusion of provisions in the EU’s negotiation guidelines to permit NI to re-join the EU as part of a united Ireland similar to the process deployed by unified Germany after the fall of the Berlin Wall. Former DUP First Minister Peter Robinson has cited the lack of planning associated with Brexit as an example to highlight the need for contingency planning on this issue – referring to debates on reunification as ‘the elephant in the room that is positioning to squat on their [unionist] laps.’ Concerns have also been expressed by some unionist politicians and others that the increased focus upon Irish reunification may have an unsettling effect on loyalist paramilitaries.

To date in the Brexit related discussions, there has been very little detailed attention given over to the human rights, equality and political identity concerns of the unionist community in Northern Ireland as part of the renewed focus on Irish reunification.

A number of failed legal challenges to the out-workings of Brexit in NI have highlighted the limits of law as a means of redress for those opposed to Brexit. In addition, the removal of the human rights and equality protections associated with the EU Charter on Fundamental Rights and Freedoms, enforceable through the European Court of Justice, has been cited by some nationalist commentators as an additional factor in nationalist disillusionment with Westminster.

Brexit is widely regarded as having been (as one spokesperson described it) ‘manna from heaven’ for republican dissidents opposed to the peace process and the Good Friday Agreement. From their perspective, particularly if Brexit results in some form of ‘hard border’, Brexit will bring home ‘the reality of partition’ previously obscured by a largely invisible border and the constitutional settlement of the Good Friday Agreement. Concerns about a hard border as a result of Brexit are widely shared including by the Chief Constable of the Police Service of Northern Ireland because any such installations would be ‘fair game for attack’ in the minds of republican dissidents.

There are also significant concerns amongst the PSNI and other security officials that Brexit will have a deleterious effect on their capacity to counter organised crime and cyber-crime
as well as dissident republican violence. Much of the information sharing and other practical cooperation between the PSNI and Garda Síochána is currently done through Europol and other EU regulatory structures.

Recommendations:

• Avoid a hard border on the island of Ireland at all costs. Any such border would further deteriorate political relations within NI, between NI and the ROI, and
  between the UK and Irish governments. It would also, inevitably, become a target for dissident republicans opposed to the peace process.
• As suggested by the Tánaiste, Simon Coveney, the UK and Irish governments should revisit and enhance existing bilateral cooperation mechanisms
  between the governments to safeguard ‘habits of cooperation’ linked to their responsibilities as co-guarantors of the Good Friday Agreement and stewards of the peace process.
• Agreements need to be reached between the UK government, the Irish government and the EU with regard to continued funding on peace process related work in NI and the border region beyond Brexit. In particular, the British government needs to be specific about how their commitments to such funding will be enacted.
• Ensure that future intergovernmental relationships within the UK fully respect the constitutional fundamentals of the NI peace process and the principles embedded in its founding Agreements.
• The UK, Irish government and EU negotiators should recognise that NI is already supposed to enjoy a special constitutional status within the UK and on the island of Ireland and work to ensure that this status is respected and protected in the EU-UK (and Ireland-UK) negotiations and in their legal and political outcomes.
• The UK government should make a reciprocal agreement with the EU to maintain all the existing rights of EU citizens in NI in return for all those born in the North, whether British or Irish citizens, having the rights of EU citizenship.
• The UK government should guarantee equality of rights of Irish and British citizens.
• The two governments and local political parties in NI and the Republic should ensure that any future discussion on Irish reunification, including the conduct
  of a border poll, is conducted in a way that foregrounds the human rights, equality and political identity concerns of all – in particular those in the unionist
  community.
• As part of the renewed focus on the importance of human rights and equality for all in the wake of Brexit, a Bill of Rights for NI should be enacted that will
  guarantee a rights-based society and regulate the fair operation of the devolved institutions as well as a Charter of Rights for the island of Ireland that would help to underline the fundamental importance of human rights and equality in both jurisdictions.
• The UK government should prioritise continued membership in Europol and should take steps to ensure the continuation of data sharing with the EU, including the European Investigation Order. In addition, the UK must continue to allow jurisdiction of the CJEU to maximise law enforcement and security cooperation with the EU and ensure effective oversight.

*For a black and white version of the report, please email us: brexitlawni@qub.ac.uk*