Irish citizenship may open the door to an extended role for Dublin and Brussels in the North after Brexit

In the Irish Times, Noel Whelan peers into the can of worms that is EU citizenship for Irish citizens in Northern Ireland after Brexit. I’ve long been wondering about this. Successive taoisigh have sworn to uphold these rights once the supposed protection of EU membership is removed after Brexit in little over a year’s time. But they haven’t yet explained what they are and how they may be defended. The threat to rights is vaguely invoked to argue for a Dublin role in direct rule. But the scope of the citizenship argument seems to extend much further and more permanently as a consequence of Brexit.  Just now nobody in government wants to pursue it too far until the future of Stormont and the Brexit outcomes are more settled.

But  for the rest of us, maybe now is the right time to think harder.

The EU may be taking a lead here in its present hardball stance for the next round of Brexit negotiations over the transitional arrangements,  which Brexit secretary David Davis has complained is “discourteous”. But  to others,  it might seem a fair response to the UK cabinet’s failure yet again this week to agree its own terms for an open border. As the Guardian reports:

UK negotiators have been warned that the EU draft withdrawal agreement will stipulate that Northern Ireland will, in effect, remain in the customs union and single market after Brexit to avoid a hard border.

The uncompromising legal language of the draft agreement is likely to provoke a major row, something all parties to the negotiations have been trying to avoid.

British officials negotiating in Brussels were told by their counterparts that there could be a “sunset clause” included in the legally binding text, which is due to be published in around two weeks. Such a legal device would make the text null and void at a future date should an unexpectedly generous free trade deal, or a hitherto unimagined technological solution emerge that could be as effective as the status quo in avoiding the need for border infrastructure.

London would surely reject the proposal for violating the essential unity of the UK to which it has consistently been committed. Brussels would retort it is merely setting out in legal terms as promised, the conclusions  of the joint Report.

In practice though I’m not clear why special status would be necessary other than as negotiating pressure.  During the transition the UK is indicating pretty full compliance with EU law except for some attempt to restrict open entry for EU citizens during the period. This wouldn’t affect Irish citizens because  the common travel area will continue uninterrupted.  It remains to be seen therefore  how special status  would rely as much on arguments based on EU citizenship as on the nature of the border. But it would  give Dublin another platform  on which to  bid to become  champion the North’s interests inside the EU, once the UK withdraws.

Whelan quotes from a lecture  in TCD given by  Anthony Collins SC, who has been an Irish member of the Luxembourg-based General Court of the European Union since 2013.   His starting point is Article 52 of the joint Report (a.k.a. the fudge) ensuring “that the people of Northern Ireland who are Irish citizens “will continue to enjoy rights as EU citizens, including where they reside in Northern Ireland.”

The rights are of no value if they cannot be enforced. The question now arises as to what court will Irish citizens resident in Northern Ireland have recourse to enforce their EU citizenship rights.

Three options are currently being suggested, Collins pointed out. The mildest is one whereby the UK would give EU law a standing in the law of Northern Ireland itself. The second suggestion is to establish a new EU-UK/Ireland-Northern Ireland court to hear such disputes. The most straightforward solution would be to permit the courts of Northern Ireland to make references for preliminary ruling to the European Court of Justice (ECJ) on the same terms as at present, including accepting the binding nature of answers received.

Obviously, any of these scenarios would have significant political ramifications in Northern Ireland and in Westminster.

These remedies of legal process put the cart before the horse. The essential questions are:  what are those rights? And are they threatened by Brexit?  

Before Brexit in my simple way, I assumed calling yourself an Irish citizen in the North was really a courtesy title, except for the duty of the Dublin government to help you out in trouble abroad if you had an Irish passport or you upped stakes for the south with your rights intact.

Otherwise you were a full citizen of the state you were probably born and  currently lived in, however you chose to describe it. Your British rights (don’t let’s forget these) were “as British as Finchley” as indeed they are . British and Irish citizenship were really interchangeable; the EU dimension was held in common.

The rights spelled out in the GFA are guaranteed comprehensively under British law with four important qualifications, the overview with British courts “ taking account of” the articles and rulings of the (non-EU) European  Convention on Human Rights and its court at Strasbourg, a limited role for the separate ECJ  adjudicating on EU law , the GFA as an international treaty and the partnership of the British and Irish governments as described – but never quite codified  – in the GFA,  in which the Irish describe themselves as “ co-guarantors.”

London doesn’t quite accept this last description. In her recent statement on the course of the Stormont talks for instance, you may have missed Karen Bradley throwing in the usual reservation describing Simon Coveney’s role as  “within the three stranded process; i.e. technically, strand one, devolved government, is a matter of  only UK domestic responsibility  although in reality as we all know,  Dublin’s role is comprehensive, despite occasional DUP objections. But it is consultative and transacted  through politics rather than law.

Brexit implies real change.   Despite the common travel area which is really supposed to benefit people from the Republic, EU citizenship will differentiate Irish from British citizenship potentially more fundamentally. Or will it in practice? What rights may differ?

You can’t expect half a million little islands of the EU single market and the customs union  to be set up within the North.  “Rights” to trade are not really rights but agreements between states. Free travel all round seems just about guaranteed.  But employment and state welfare  rights for individuals under the ECJ which is anathema to the current UK government?  Not at all clear. Could an Irish citizen from the North challenge welfare cuts as a denial of her social rights?

So how far do these arguments extend? Northern Ireland remains under UK sovereignty qualified by  the GFA  which was underpinned by the assumption of  continuing  joint EU membership but not otherwise defined. British law and British government with regional variation apply. Any continuing role for the EU has not yet been described in the sketchy case for special status.

As far as institutions outside the UK are concerned, we might invert the old battle cry of the American revolution, “ no representation without taxation.” What if the EU continues indefinitely to allocate peace funding to the North and structural funding via the Republic for the North under the cross border label  – not  to mention some other “special arrangements” within EU rules? Would it not be reasonable for the North to have some representation in the European Parliament?

There is a barely suppressed dispute over the essential character of the GFA. Is it essentially domestic and bilaterally British and Irish and are all essential rights guaranteed already? Or with grim thanks to Brexit, does Irish /EU citizenship  open a whole new channel of authority for  Dublin and Brussels  to intervene in the North in the name of “ the ever closer (European)  Union” which could pass  new laws affecting NI in which Westminster has no say, thus  further qualifying UK sovereignty? What would have  happened to “taking back control ” then? What line will all parties take  in the next stage of negotiations?

And a late thought.. Relying on courts to enforce rights is an indispensable element of modern democracy. But rights are constructs like any other applied idea and are best reserved for basic principles in my opinion. The weakness of the whole EU project is it reliance on rules and regulation rather than the more flexible methods of political democracy. You can see this distinction being acted out painfully between the UK and the EU over Brexit,  The EU has no choice; as  even its strongest advocates admit, so far it  lacks a “demos,” a united European people constituting a single European democracy.

Transferring the point to our own situation, it would be a grave mistake, and a seriously divisive one, for the Irish state to seek to increase its influence in the North  through the back door of the courts  on the basis of  EU law. The political route, using the institutions we have in the GFA is by far the better course, rather than arguing for special status for EU/Irish citizens. Who would be the ones discriminated against then?