The next big Brexit issue- the future rights of EU/Irish citizens in the North

Another big Brexit theme has been overshadowed by the border conundrum – the future of citizens’ rights in Northern Ireland.   The contention is  that many of these will go unprotected when the UK withdraws from the EU Charter of Fundamental Rights and the rulings of the EU Court of Justice in Luxembourg, a key UK government aim.

The Charter has greater force than the non-EU European Convention on Human Rights which is written into UK law as the Human Rights Act 1998 and is a keystone of the Good Friday Agreement.

The Charter is stronger, as the constitutional expert Vernon Bogdanor explains in detail,  – ( Times article here) –  because the EU can extend and strengthen rights and allows British Acts to be disapplied if they are in conflict with them. He gives examples and argues for a new UK Bill of Rights.

The last Labour government tried and failed to get an opt-out from the Charter. Instead, the Charter has recently been used to great effect in the British courts. Last autumn, two employees sued foreign embassies for unfair dismissal, failure to pay the minimum wage and holiday pay, and breaches of Working Time Regulations. One embassy claimed immunity under the State Immunity Act but the Supreme Court overruled.

In 2014, David Davis, the Brexit Secretary, and Tom Watson, Labour’s deputy leader, used the Charter to appeal against the Data Retention and Investigatory Powers Act of 2014 which would, they believed, limit the confidentiality of communications with constituents. Though a leading Brexiteer, Davis sought to use the EU Charter to ensure the rights of MPs.

The Government proposes to incorporate almost all EU law into domestic law. It will then consider which to retain, which to modify and which to repeal. But the Charter is not being incorporated. There are good reasons for this. Some provisions of the Charter, for example the right to vote for and stand in European Parliament elections, will be irrelevant after Brexit. Others, such as the right to free movement in the EU, go against government policy. Nevertheless, Brexit will reduce our rights and the protection given by the courts.

Parliament needs to consider how our rights are guaranteed after Brexit. Dominic Grieve MP, a former Attorney-General, has argued for a British Bill of Rights with new rights added to those in the Human Rights Act. Many say the Human Rights Act protects unpopular minorities such as suspected terrorists and asylum seekers but rights that would be used by all, such as a right to healthcare, would give greater popular salience, and might, paradoxically, make it easier to protect unpopular minorities. So when Parliament “takes back control”, it should ensure we follow almost every other democracy by enacting our own Bill of Rights.

Why this is urgent

The huge EU Withdrawal Bill incorporates all EU law into British laws for the moment. But it gives ministers the power to amend them  as desired after Brexit, without going through full parliamentary scrutiny.

Why this matters to Northern Ireland.

Alarm bells are ringing because of the special circumstances of Northern Ireland where Irish citizen rights are recognised as  equal to British rights  in the GFA. This equality acquires greater salience because EU rights continue for Irish citizens in the North after Brexit. Exactly how this will work isn’t clear  and how the favoured  interpretation of rights under the  GFA can be reconciled with the essential  sovereignty of the Westminster parliament.

Unfortunately according to the eminent  human rights lawyers Christopher McCrudden and Daniel Halberstam, the Supreme Court’s ruling in the Miller case failed to give sufficient weight to the significance of the devolution  settlements, in particular Northern Ireland’s, when it too readily dismissed the significance of local Remain votes in the referendum and the issue of devolved bodies’ consent to Withdrawal Bill terms.

  The principal problems relate to the Court’s treatment of the British-Irish Agreement, an agreement underpinning the Good Friday Agreement and binding in international law, which was virtually ignored by the Court, and the unsatisfactory way in which the Court approached the Sewel Convention, which concerns the constitutional requirement that the government (if not Parliament) seek the consent of the Northern Ireland Assembly before effectively undoing the historic compromises in the Northern Ireland Act of 1998

The Court’s approach to the devolution arguments presented from Northern Ireland in Miller leave one to wonder whether much academic and political thinking in and about Northern Ireland on these issues is now fundamentally at odds with the understanding of the most senior members of the judiciary in the UK. That is not a healthy situation…

…. the Court’s heavy emphasis on the doctrine that Parliament can quickly do whatever it wants, signals to the EU-27 that any supposedly binding international agreements the UK enters into can be easily ignored by a future Parliament, without any domestic judicial remedy. This, in turn, has given special urgency in Brussels to the need to find creative ways in the Withdrawal Treaty to limit the ability of the UK to renege on future commitments – hence the standoff over the future role of the Court of Justice.

A necessary, but not sufficient, condition for future stability in Northern Ireland is a rethinking of the British constitutional underpinnings of the relationship between Britain and Ireland, one that explicitly transcends what appears to be the existing legal orthodoxy and tempers the doctrine of Parliamentary sovereignty (in the Northern Ireland context at least)

In particular, some fear that our special equality provisions could be eroded as a result  for example, of new external trading agreements and if any new EU rights  do not apply. But the big issue is how to protect the equal rights of EU citizens presently guaranteed under the Good Friday/Belfast Agreement.

Nobody is arguing that EU/Irish/mainly nationalist citizens in the North should have different rights from British/mainly unionist citizens. Besides, how would you prove you’re either one or the other? Compulsory passports?

One idea is to go the British route and adopt a new British Bill of Rights as suggested by Bogdanor and former attorney general Dominic Grieve. This would follow the successful precedent of the Human Rights Act 1998. Another is for Westminster to pass a Northern Ireland Bill of Rights.   I assume  this is not seriously considered as it continues to be blocked by unionists.

The  favoured idea for remedy by local HR bodies is for the EU Charter of Fundamental Rights to be incorporated for Northern Ireland into the EU Withdrawal Bill.  This would become UK legislation for Northern Ireland only, brought home from Europe. The lobby group the Administration for Justice in association with Unlock Democracy has launched a petition in support of it. The remedy is basically that supported both by the NI Equality Commission and by the NI Human Rights Commission in a joint report with its Irish opposite number.

But questions need to be asked:

Would fresh rulings of the European Court apply after Brexit? If so, who wins? New trading arrangements affecting NI or EU rules?  You can hear the politician’s question now.  Is this EU special status by the back door?  In the McCrudden analysis there is plenty of room for political dispute over the scope of the GFA and the rights of Brussels, Luxembourg  and Dublin to intervene in Northern Ireland affairs after Brexit.

The two NI  rights  bodies as far as I can make out, are as one except over one recommendation in the joint report by the Northern Ireland and Irish Human Rights Commissions 

Given that the United Kingdom has committed to maintaining EU citizenship for ‘the people of Northern Ireland who are Irish
citizens – or who hold both British and Irish citizenship’, any suggestion that Northern
Irish citizens should be entitled to a lesser
form of EU citizenship without the right to
fully participate in the democratic institutions
of the EU would appear to conflict with the
principle of equivalence.

At present Ireland does not enable nonresidents
to vote in elections, although there is no legal obstacle to extending votes to emigrants

The Joint Committee recommends that
all the people of Northern Ireland retain the right to stand and vote in European Parliament elections

The Joint Committee calls for Ireland to extend the franchise for EU Parliamentary
elections to all the people of Northern Ireland, post-Brexit

This would be a matter for the Oireachtas would it?  Discuss.  Here is the summary in a joint statement.

The policy statement directed to the UK and Irish Governments outlines six requirements for the final EU withdrawal agreement to meet the obligations of the Belfast (Good Friday) Agreement:

  1. Ensure no diminution of rights within the withdrawal agreement.
  2. Safeguard the North-South equivalency of rights on an ongoing basis.
  3. Guarantee equality of citizenship within Northern Ireland.
  4. Protect border communities and migrant workers
  5. Ensure evolving justice arrangements do no water down rights.
  6. Ensure continued right to participate in public life for EU citizens in Northern Ireland.

 

The Joint Committee’s recommendations include that:

  • the Withdrawal Agreement to provide for the continuing North-South equivalence of rights, post-Brexit, as established under the 1998 Agreement.
  • the EU seek a legal commitment to retaining the Charter of Fundamental Rights and that rights can be enforced by the Court of Justice of the EU in Northern Ireland.
  • all the people of Northern Ireland retain the right to stand and vote in European Parliament elections.

The proposal to continue Northern Ireland membership of the  European Parliament needs further exploration before it really reaches   the political front line. It will be difficult enough for the other recommendations to gain acceptance without it.

Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London