The challenges of Brexit threaten to disrupt a whole suite of arrangements and presuppositions that have existed on the island in the 45 years since the UK and Ireland joined the European Communities (EC) together on 1 January 1973. High Court Judge Richard Humphreys writes.
Whether Brexit is a good idea or not can be left to political debate. But legal commentators can legitimately point out some of the implications. The challenges of Brexit for Ireland’s relationship with the North can be viewed under at least six headings:
1. threatening the invisible border;
2. the risk of divergent rights protections;
3. the risk of social divisions;
4. undermining the agreement;
5. the threat to the Human Rights Act; and
6. transforming attitudes to a united Ireland.
The invisible border
The Centre for Cross Border Studies has made the point that even a border that remains invisible may not be what it was before Brexit. The Irish Government’s perspective is that the Good Friday Agreement and shared EU membership “resulted in the effective disappearance of any border on the island of Ireland. This most tangible gain from the Peace Process has allowed commercial, political and social relationships to develop and thrive across the island”.
In Tánaiste Simon Coveney’s words: “We are determined to ensure that, no matter what else, Ireland-UK relations do not suffer as a consequence. This involves protecting perhaps the greatest UK-Ireland achievement of recent times: The Good Friday agreement of 1998. The Agreement removed barriers and borders – both physically, on the island of Ireland; and emotionally, between communities in Ireland and between our two islands.”
The draft Withdrawal Agreement between the EU and the UK provides a mechanism for regulatory alignment on the island to avoid a hard border. The UK has agreed in principle to the concept of a backstop, which is acknowledged in the recent British White Paper. How the detail will be shaped remains to be negotiated in the coming months.
Divergent rights protections
The UK Supreme Court’s decision in the 2016 Brexit case, Miller vs. Secretary of State for Exiting the European Union, meant that the provisions of the Good Friday Agreement are not an impediment to Brexit as far as British law is concerned. The North/South Joint Committee of Human Rights Commissions has expressed concerns as to the impact of Brexit on human rights protections in Northern Ireland. Most obviously, the loss of EU citizenship and member state status would bring with it the loss of rights under the EU treaties. The February 2018 draft Withdrawal Agreement does include strong protections for the retention of rights, although this has yet to be agreed.
The risk of divisions
The very fact of Brexit, no matter how sensitively handled, creates the risk of a significant psychological, cultural and legal barrier along the border. Duncan Morrow, former head of the Community Relations Council, commented in respect of improved community relations that ‘Brexit puts all of this at risk, because it is framed as putting up barriers, moving away from common values and rules and ending common membership of a shared project.’
Similarly, Dennis Kennedy has commented: “Damaging as the return of any such border might be, there remains a more important border that has been hardening as the physical one has been disappearing. This is the divide between identities, between nationalist and unionist, between Irishness and Britishness, as politicians on both sides have chosen to distort those identities.”
Such considerations perhaps also explain the phrase once used by Former Taoiseach Charles J. Haughey about a united Ireland in the context of a united Europe; or in other words, that joint membership of the EU by Ireland and the UK had abolished much of the significance of the border. Magnifying the effect of the jurisdictional divergence now being put in place is the markedly different voting patterns on Brexit of the two communities – 89 per cent of nationalists were remainers as against only 35 per cent of unionists. Thus, as described by Jonathan Tonge of Liverpool University, “the binary divide is being reinforced in Northern Ireland by Brexit”.
Creating an incentive to undermine the Agreement
It has been suggested by some unionist opinion that the collapse of the Executive is related to the uncertainty created by Brexit. David Trimble’s view in December 2017 was that: “The real reason why the border has become such an issue is that Sinn Féin is trying to exploit Brexit to break up the UK.”
Indeed, the very perception that Brexit is being used to push the case for a united Ireland seems from one point of view to be undermining the exploration of possible solutions that might help in managing Brexit constructively, such as in enhancing North/South co-operation. This is one of many potential ironies of the post-Brexit situation.
The risk of repeal of the Human Rights Act
There seems little doubt but that repeal of the UK Human Rights Act has been an objective of many interested parties on the leave side of the equation, once Brexit is out of the way. Indeed, some such interests have been associated with a three-step programme – Brexit, then repeal of the Human Rights Act, and ultimately denouncing the European Convention on Human Rights itself. Without equivalent replacement legislation, or Irish consent, such a development would be a contravention of the Good Friday Agreement’s commitment to entrench the Convention.
Attitudes to a united Ireland
The other significant effect of Brexit would be to change the perception of the pros and cons of a united Ireland. Taoiseach Varadkar has suggested that Brexit ‘creates risks for the union itself’.
As it is put by economist Paul Gosling: “It would take a very optimistic Brexit supporter to believe leaving the EU will be good for Northern Ireland.” Matt Carthy, Sinn Féin MEP, took up this theme: “Brexit is creating an entirely new dynamic in the debate on Irish unity. The prospect of the North of Ireland being removed from the European Union against the will of the people who live there, and a reinforcing of the border, has brought the issue of Irish unity firmly to the centre of the political agenda.” In short, Brexit has changed the debate on unity from a previously deadlocked Irish-vs-British conflict to a broader question of an outward looking EU vs. a perceived to be inward looking UK.
Profile: Richard Humphreys is a judge of the High Court. His latest book, Beyond the Border: The Good Friday Agreement and Irish Unity after Brexit is available now from Merrion Press.