In a commentary “Brexit and Northern Ireland” on the EPC discussion paper( see below) the legal academic Chris McCrudden asserts the primacy of the Brexit question and laments the “ tone deafness” of the UK government to Northern Ireland’s interests. But while he rightly sees the need to set priorities in the interparty talks, he doesn’t discuss here the reasons given for SF’s withdrawal from the Assembly such as an Irish Language Act and the legacy and other issues SF insist were agreed at either the GFA or St Andrew’s but on which the DUP have stalled.
While the nationalist parties have indeed called for special EU status (which the British government have rejected in the terms suggested) it is not in fact a Sinn Fein red line.
Moreover the Brexit agenda McCrudden and his colleagues have described would require a wider context than that offered by the present local talks and much more time to reach an agreement than the governments envisage. There are also political problems here such as modifications to the border and checks on movement between Northern Ireland and GB that are complex and controversial. EEA membership in whatever form would require more powers to the Assembly, (so good luck with that!)
Nevertheless the EEA exercise and McCrudden’s separate treatment of it are the first serious attempts locally that I’ve noticed to grip the Brexit issues for Northern Ireland. So far virtually nothing has come from the “ sovereign government” which the author in polite language obviously deplores.
Selections from McCrudden’s slides
- Hard to overestimate the extent to which EU membership brought significant conceptual flexibility into discussions in Northern Ireland, and between Ireland and the UK.
- Difficult to conceive of alternative mechanism that can fill the vacuum, particularly where that exit was brought about by an increased concern with British (better: English) identity, resurgent English nationalism, and a perceived need to strength national sovereignty.
- Brexit has thus become a central question in the continuing conversation in Northern Ireland about national identity, and that is a dangerous situation.
- The potential for moves to be made in London that have unintended but disastrous consequences in Belfast is high, particularly given the current tone-deafness of those in power, and the vast majority of those in Parliament.
- Irish/EU citizens resident in Northern Ireland
- Belfast/Good Friday Agreement
- Police/security co-operation
- EU Peace-dividend grants
- Devolution of EU powers
- Human rights
Priorities for the interparty negotiations
- Needs to be more than detailed wish list which essentially seeks to preserve the existing status quo without addressing any of the main issues that arise from attempts to preserve that status quo.
- Problems of how to achieve the objectives identified must be identified, and addressed. Problem solving would give strong impression of seriousness of purpose to negotiators.
Absence of any detailed plan
Filling the vacuum
- UK government
- Irish government
- EU Commission
- NI Assembly/Executive
- Aim must be more than securing agreement between the Northern Ireland parties on a lowest common denominator basis
- There must be a ranking of priorities proposed when the objectives sought conflict
- Need to identify the net increase in the NI block grant from the UK Treasury that would be necessary to maintain the existing status quo is identified.
- Must identify how to fill the gap that will be left by the non-application of the EU Charter of Fundamental Rights
- Must identify what dispute settlement procedures might be available
- Must consider whether north-south openness is more or less important economically than east-west openness, and for which sectors of the economy.
- Must identify the priorities for the devolution of powers from the EU to Northern Ireland; which powers should be devolved and which should not; and the impact this choice will have on the Agreement, and the Northern Ireland Act.
- Must acknowledge the operation and importance of the Sewell Convention on future discussions between Northern Ireland and the devolved assemblies.
- Must indicate how the Northern Ireland civil service is to cope with the work required to deliver on the agenda set, and how the Northern Ireland Institutions need to accommodate to the need for speedy decision making over next few years.
- Free movement of persons from the EU, including the Republic of Ireland, into Northern Ireland. Accordingly, access to migrant labour would be maintained, as well as the right of tourists from other EU Member States to come to Northern Ireland
- Northern Ireland would withdraw from the EU, be outside the customs union and outside the jurisdiction of the Court of Justice of the European Union
- EEA is a known quantity, well established, and obligations and benefits are clear
- Dispute resolution, where necessary, would be through mechanisms already provided for in the EEA Agreement. For Northern Ireland, outside the EU, this would involve reference to the EFTA Court.
- EEA option for Northern Ireland would achieve much of what the First Minister and deputy First Minister were seeking in their August 2016 letter to the Prime Minister.
- It would retain current arrangements regarding the movement of goods, services, capital and labour.
- It would also allow existing levels of market integration on the island of Ireland to be largely maintained
- Would allow the existing regime relating to the bespoke single electricity market on the island to be maintained — Northern Ireland would remain a member of the Internal Energy market
- The EEA would go some way to safeguarding the status quo as regards maintenance of the spirit, if not the letter, of the Belfast/Good Friday Agreement, in providing membership of both Northern Ireland and the Republic of Ireland in a common European economic entity
- Other than continued EU membership, the EEA is the only existing arrangement that can achieve this
- A modest payment into the EU budget would need to be made on behalf of Northern Ireland
- EEA option would require UK legislation and Northern Ireland legislation to allow for Northern Ireland’s participation.
UK legal/ constitutional changes necessary
EEA option would require UK legislation and Northern Ireland legislation to allow for Northern Ireland’s participation
- Would involve an increase of the powers devolved to the Northern Ireland authorities.