Jim Allister QC is not the only one to spot the potential extension of north-south areas of cooperation under “the backstop”, the notorious Option 3 of the draft Withdrawal Agreement, as Newton Emerson reports. There’s quite a bit more from Professor Dagmar Schiek of Queen’s University and from human rights organisations north and south. With cooperation, authority follows. It is indeed a wonder that the DUP have not reacted more strongly. They seem to be putting their faith in a mix of the wrecking potential of their pact with the Tories and in Trusting Theresa‘s insistence that no PM would sign Option 3 as drafted. But on the face of it, she has less than three months to come up with a specific alternative on the border and a further four months until a Commons vote on the terms of withdrawal. And it’s about much, much more than the physical border.
First, Schiek believes that Chapter 1 and Art. 1 “ stressing in particular protection against discrimination under EU law set out in the 1998 Agreement goes beyond preserving any existing commitments and elevates the European Union to a formal co-guarantor of the 1998 Agreement.
As I posted last week, human rights NGOs north and south have reacted to the fact that British withdrawal from the EU means withdrawal from the EU Charter of Fundamental Rights and the protection of the EU Court of Justice. This Court has powers to disapply UK Acts not contained in the Human Rights Act of 1998 which is a cornerstone of the GFA. That protection would be removed by basic Brexit.
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.
The Joint Committee calls for Ireland to extend the franchise for EU Parliamentaryelections to all the people of Northern Ireland, post-Brexit.
(Note that they believe this would be a matter for Dublin. They don’t mention a role for Westminster).
Returning to Schiek’s analysis, the draft Withdrawal Agreement backstop creates an “entirely new” Common Regulatory Area which mainly aims at avoiding a physical infrastructure at the border and eliminates EU customs duties . It transforms the UK customs authorities competent for the territory of Northern Ireland into EU customs authorities. It would be run by a Joint Committee of the two governments and a sub-committee would collect and distribute revenue.
As Newton notes, continuing North-South cooperation in the areas explicitly covered by Articles 4-7, are extended to cover transport, health, education and tourism, telecommunication, broadcasting, inland fisheries, justice and security, higher education and sport. The implementation is entrusted to the Joint Committee. No explanation has been offered why this is so. I guess it was at the instigation of the Irish government. Schiek says the draft Agreement here is confusing because it “raises the question whether the implementation process may lead to extending the common regulatory area beyond free movement of goods”. You can say that again.
Although she is clearly strongly pro-EU, she believes that retaining EU restrictions on state aid for economic development in NI are “ disproportionate” as NI will remain excluded from the internal market, on top of the unfavourable effects of Brexit on the local economy .
However as an enthusiast both for the EU and the all-island economy Prof Schieck believes that the option of the extending the Joint Committee’s remit could lead to the extension of the single market to Northern Ireland, “ offering much potential”.
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