Northern Ireland and Brexit

NORTHERN IRELAND AND BREXIT

Gráinne Popen

Introduction

‘Brexit’, an abbreviation for British Exit from the European Union, officially occurred on the 31st of January 2020. Roughly two years later, its irrevocable impact on international politics remains apparent. 2021 not only marked the first full year of Brexit, but also 100 years of partition between Northern Ireland and the Republic. This has slowly settled into an established legal doctrine and a dependable relationship between the Republic of Ireland, Northern Ireland, the European Union, and the United Kingdom. However, Northern Ireland has become a confounding variable in Brexit, raising profound legal and procedural challenges to contemporary political arrangements. Northern Ireland and the Republic are inextricably intertwined regions, making Brexit especially disruptive. Court cases, constitutional challenges, and political antagonisms serve as testimonies to the complex nature of Northern Ireland’s departure from the European Union.

Status Quo

Brexit is facilitated by the Withdrawal Agreement and the EU-UK Trade and Cooperation Agreement, both signed in 2020.1 The legal mechanics of separation relied upon Article 50 of the Lisbon Treaty.2 The unique position of Northern Ireland is outlined by the Northern Irish Protocol, an agreement reached between the UK and the EU.3 Northern Ireland is considered “a place apart,” from the UK, resulting in severe political and socioeconomic detachment.4 Significantly, a 2016 EU membership referendum indicated that the majority of Northern Irish citizens would prefer to remain

1Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community [2020] OJ L 29. 2 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community [2007] OJ C 306, Art 50. 3 Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union (n 1). 4 Mary C Murphy, Europe and Northern Ireland’s Future: Negotiating Brexit’s Unique Case (Agenda Publishing, 2018) 97–122.

within the EU.5 The protocol therefore leaves Northern Ireland in a unique position where both EU and UK law is applicable, which disturbs economic, political, and cultural arrangements. The UK has made numerous commitments to maintaining benefits and stipulations unique to EU membership. Crucially, one of the White Papers produced by the UK guaranteed ‘continued adherence to the constitutional framework, rights and institutions provided for in the Belfast Agreement’.6 However, legal and political change becomes inexorable, raising complex quandaries.

Constitutional Questions

Some constitutional uncertainties have arisen as a result of Brexit. Although Northern Ireland does not have a codified constitution, the Northern Ireland Act of 1988 serves as the overarching framework for the Northern Irish government. The Northern Ireland Act of 1988, the basis of the Good Friday Agreement, is contingent on the UK’s membership of the EU, demonstrating that EU law is intrinsic to the very foundations of the Northern Irish State. Brexit reveals that Northern Ireland lacks autonomy in their relationship with the European Union.7 The separation of these entities poses a severe threat to democracy, as the UK is led to make decisions that contradict the Northern Irish constitutional law without regard to the interests of Northern Irish citizens. The precarious balance of authority between the EU and the UK and its constitutional implications has been tentatively codified. The Withdrawal Agreement provides that Northern Ireland remains de jure of UK customs, but de facto of EU customs.8 This dichotomy becomes the general rule when considering division of powers.

Although the UK would like for Northern Ireland to be estranged from the EU, it is near impossible given the structure of the Northern Irish state. Thus, Northern Ireland is nominally distinct, but in practice, still closely linked to the EU. For example, Northern

5 Government of the.United Kingdom , ‘EU Referendum’ <https://www.gov.uk/government/topical-events/eu-referendum/> Accessed 11 March 2022. 6 Department for Exiting the European Union, The United Kingdom’s Exit From and New Partnership With The European Union (GOV.UK, 2 February 2017) < <https://www.gov.uk/government/publications/the-united-kingdoms-exit-from-and-newpartnership-with-the-european-union-white-paper/>. 7 Jonathan Tonge, ‘The Impact and Consequences of Brexit for Northern Ireland’ (Policy Department C: Citizens’ Rights and Constitutional Affairs European Parliament, 2017) < <https://www.europarl.europa.eu/RegData/etudes/BRIE/2017/583116/IPOL_BRI(2017)583116 _EN.pdf/>. 8 Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union (n 1) Arts 4 and 5.

Ireland will still receive money from the EU through PEACE and INTERREG, despite the UK insisting upon its financial independence from the EU.9 The European Court of Justice will continue to hold influence, especially with regard to the enforcement of protocol.10 Furthermore, Irish citizens within Northern Ireland retain the rights of EU citizens.11 It is evident that the UK will never be fully removed from the EU as long as Northern Ireland remains a territory of the UK. However, the Withdrawal Agreement creates a means by which further separation can occur. Article 18 indicates a democratic consent process where the Northern Irish government can ostensibly suspend aspects of EU intervention.12 This democratic consent process will be held in 2024, meaning that further severance could be imminent. It would be unlikely as the Northern Ireland Assembly dismissed Brexit in conjunction with the Welsh Assembly and the Scottish Parliament.13

Case Law

The most recent case addressing these issues was McAllister v Secretary of State for Northern Ireland. 14 The case, heard in the Northern Ireland High Court, considered the issue of judicial review. Colton J delivered the judgment on the validity of the Protocol by relying on legal precedents of The Acts of Union 1800, s.1 of the Northern Ireland Act 1998 (‘the 1998 Act’), s.42 of the 1998 Act, the Protocol and its intersections with the European Convention on Human Rights (‘ECHR’). Mr Peeples, contended the Good Friday Agreement could constitute domestic Northern Irish law.

However, the focal point of the discussion and decision remained on McAllister. The plaintiff reasoned that the Protocol was invalid insofar as it was incompatible with the Acts of Union. In adjudicating this scenario, Colton J noted that the protocol did infringe upon the ‘same footing’ clause of the Acts of Union.15 The Judge proceeded to note that the Withdrawal Acts would have interpretative supremacy.16

9 ibid, Preamble. 10 ibid, Article 12. 11 ibid, Article 2. 12 ibid, Article 18. 13 BBC News “Brexit: Welsh Assembly joins Holyrood and Stormont in Rejecting Bill” (21 January 2020) < https://www.bbc.co.uk/news/uk-wales-politics-51181641/> 14 McAllister v Secretary of State for Northern Ireland [2021] NIQB 64. 15 ibid. 16 ibid.

The second argument concerned s.1 of the 1998 Act. The Act includes a mechanism whereby Northern Ireland could be unified with the Republic. Immediate legal quandaries arise regarding the conflicts of Brexit and this provision. It was found that s.1 did not infringe the guarantee of consent since it was a matter separate to the Northern Irish Constitution.17 Therefore, this ground was rejected.

The third issue of law concerned s.42 of the 1998 Act, as outlined by the 2020 Regulations and Domestic Consent.18 The authority of Articles 5-10 were called into question. Typically, the Northern Irish Assembly would have a majority vote on their continued application. The 2020 Regulations amend the original Acts by ensuring that claims under the Northern Ireland Act cannot interfere with the Articles of the Protocol. This ground was ultimately refused because the Secretary of State had been given the ability to exert jurisdiction over implementation.19

The fourth argument centred on the ECHR, Article 3 Protocol 1 concerning the matter of free elections as a basic principle of democracy. Applicants pointed out that Northern Ireland had no electoral influence over Brexit. However, judicial review was denied, seeing as the protocol was produced by a democratic parliament.20 Obliging the democratic will of the UK Government satisfied the impulse for democratic consent dictated by the ECHR.

The fifth concern related to EU Law and the Treaty on the European Union (‘TEU’), specifically articles 10 and 50.21 Article 50, although outlining the basis for withdrawal, neglected to reference future developments and agreements. It was argued that the Withdrawal Agreement breached the TEU itself using Northern Ireland’s unique status as a justification. However, the law and relevant analysis of the fourth question involving the ECHR was applied to the TEU and it was found that the Withdrawal Agreement did not infringe upon any existing EU law.

Colton J ultimately favoured the Withdrawal Agreement over potentially compromising precedents.22 Time will tell whether the Protocol can withstand further scrutiny to its constitutional and political standing.

17 ibid. 18 ibid. 19 ibid. 20 ibid. 21 ibid. 22 ibid.

Further Conflicts and the UK

McAllister was significant as it rejected the argument that the Withdrawal Agreement is in opposition to the Acts of Union 1800.23 Having examined a few of the concerns presented by forces opposed to Brexit, it is necessary to consider the legal defences that enabled Brexit. In order to justify Brexit, Northern Ireland’s autonomy was constrained further. Article 50 of the Lisbon Treaty was specified as strictly under the power of the UK government.24 Northern Ireland was quoted as only having influence over devolved legislatures, and to have no ‘parallel legislative competence’ with regard to their relationship with the EU.25 Further, the Northern Ireland Agreement asserts that the UK has final jurisdiction over all forms of legislation.26 The 1988 Act, which supports the Good Friday Agreement, can be overcome by the protocols of Brexit. However, the UK holds that the Good Friday Agreement only concerns whether Northern Ireland would remain within the UK or form a United Ireland, and not whether Northern Ireland would be positioned outside the EU. Brexit has moved forward irrespective of its uncertain legal status. It is no longer a question of whether Brexit is legally valid; rather, how can the law protect citizens and institutions in the wake of Brexit?

Conclusion

Numerous jurisdictions have attempted to produce a Brexit that mutually benefits the UK and the EU. Unfortunately, more work must be done to achieve that reality. Special attention must be paid to Northern Ireland, as they remain in a uniquely compromised position. Cooperative bilateralism remains achievable, but further advancements are necessary. Three crucial pieces of legislation could make or break the chance Northern Ireland has at improving its position. The most principal of these the Withdrawal Act.27 It is paramount that the Withdrawal Act be amended to include a more holistic

23Alan Erwin, ‘NI Protocol Conflicts with Acts of Union, Court Told During Legal Challenge From Unionists,’ (Belfast Telegraph, November 29 2021). 24 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community [2007] OJ C 306, art 50. 25 Judicial Communications Office, ‘Court Dismisses Challenge to EU Exit Protocol’ (30 June 2021) <https://www.judiciaryni.uk/sites/judiciary/files/decisions/Summary%20of%20judgment%20%20In%20re%20Jim%20Allister%20and%20others%20%28EU%20Exit%29%20%20300621.pdf> . 26 Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union (n 1) s 5(6). 27 ibid.

understanding of provisions relative to Northern Ireland. It would also be advisable in the absence of a pre-existing legislation that codifies human rights, to institute a Bill of Rights for Northern Ireland that would establish protections for citizens. Further, the EU Charter of Fundamental Rights must be acknowledged, preserved, and enforced as Northern Ireland navigates post-Brexit politics. Finally, the Northern Ireland Act of 1988 must be similarly upheld, specifically section 75, which references equality and human rights.28

28 Northern Ireland Act 1988, s 75.