The Legal Implications of Brexit: mechanics, criminal repercussions, and perhaps enhanced protection of rights #EUDebateNI

Lord Alderdice introduced the conference on The Legal Implications of Brexit, the third of a series of EU Debate NI events to look at different aspects of the debate around whether to remain or leave the European Union. In his opening remarks he expressed his worry that the current level of debate was not “a thoughtful engaged conversation” about the consequences.

The conference was organised by the Irish Centre for European Law (ICEL) and the Centre of Democracy and Peace Building.

03 Sir David EdwardSir David Edward spoke at length about David Cameron’s agenda for negotiation and the results of his deal under the four headings of economic governance, competitiveness, sovereignty and immigration.

He went on to examine Article 50 and the mechanics of withdrawing from the European Union. He noted that while the UK will be chair of the European Council in 2017, they wouldn’t be allow to participate in its discussions if they were in the process of withdrawing. And there is neither provision for change of mind during negotiations, nor provision to withdraw your notice of withdrawal (should a state change its mind).

He briefly examined the Norway, Swiss, Turkey, Korea/Mexico and the WTO options for Brexit, finishing with a quote from Exodus chapter 8 verse 28 “I will let you go into the wilderness to offer sacrifices to the LORD your God. But don’t go too far away.” (Later someone quipped that while the Promised Land was found, that might not be the case for the UK leaving the EU.)

Brian Doherty is the former head of the NI Government Legal Service (devolved) and he spoke about how Brexit would affect NI’s devolved settlement. Currently, the NI Executive can only legislate and act in a manner which is compatible with EU law, the Human Rights Act (including ECHR standards) and anti-discrimination laws (again legislation from EU).

He noted that the introduction of physical checkpoints along the 499km land border would “almost inevitably” lead to a resurgence in smuggling activity. A full border would “be anathema to the notion of operating in a single European market and to progressing an all-island market, both established long term areas of endeavour for the NI Executive in tune with the basis of the Good Friday Agreement”.

Claire Archbold (Deputy Head NI Government Legal Services) spoke about how extradition and cross-border criminal cooperation might be affected by the a change in UK’s relationship with the EU.

In a trans-national world, criminal justice problems cross borders.

IMG_7093The European Arrest Warrant “on balance … provides a faster, simpler surrender processes”. There’s no ability to refuse to surrender a state’s own nationals (though conditions can be impose). There’s a time saving: 6 months of process instead of 12 months). Though the EAW is perhaps overused by some countries (eg, chasing up the theft of piglets).

Between 2009 and 2014 the UK requested extradition of 103 Irish nationals, resulting in 94 arrests. Ireland made 247 requests for extradition of individuals in the UK. PSNI made 49 requests for the extradition of individuals from other countries in that period.

She also outlined implications on deportation, smuggling (of goods and people), human trafficking and civil justice.

After a Q&A, Hon Ms Justice Fidelma Macken introduced the second set of speeches with some claims to illuminate our understanding of the EU.

Almost every piece EU regulation is passed by all the legislatures (including the UK).

  • In the event of Brexit: in the 40,000 pieces of legislation accumulated over the years since 1973 that will have to be reviewed to see if they’ll continue as national legislation, need to be amended, or got rid of.
  • Of the 500 million population of EU countries, 55,000 people are employed by the EU institutions; [0.011% and not 0.05% as she stated]
  • Wouldn’t people in NI who have adopted Irish citizenship retain all kinds of rights as EU citizens post Brexit, while those who haven’t taken up Irish citizenship would remain without those same rights.

08 John LarkinAttorney General for NI, John Larkin QC, began his address with the stark statement:

I think that not only would the protection of fundamental rights and liberties not be diminished by a United Kingdom withdrawal form the European Union, but I think there is a prospect that the protection of fundamental rights and freedoms would actually be enhanced by such a withdrawal.

He went on to discuss Opinion 2/13 of the European Court of Justice, which is about the access of the EU to the ECHR [background]. In John Larkin’s view, Opinion 2/13 is “riddled with errors” and legal wonks will enjoy his treatise on five of the errors that he highlighted and examined in the course of his speech.

Finally lawyer John Temple Lang discussed the creation of a customs and immigration frontier.

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