April 10 is the 20th anniversary of the Good Friday Agreement. To mark the occasion, the DCU Brexit Institute blog is publishing pieces by several authors on Brexit and the Good Friday Agreement. This is the first. See also: Colin Murray, Policing and Security on the Island of Ireland Post-Brexit; David Phinnemore, Protecting the Good Friday Agreement from Brexit: Is the ‘Backstop’ Proposal Enough?; Mary C. Murphy, Reclaiming the Spirit of the Good Friday Agreement
Rights in Northern Ireland after Brexit: The Devil is in the Detail
Ben Warwick (University of Birmingham)
It almost seems unkind, what with the number of Northern Ireland shaped problems on Brexit negotiators’ desks, to pile in with more. But some of the most contentious problems which Brexit generates for Northern Ireland and the Good Friday Agreement remain to be addressed, as a new joint paper from the human rights Commissions in Ireland shows.
How, in a Northern Ireland still recovering from the divisions of conflict, do you sell the idea of there being nine different categories of rights holder? Are immigration checks by schools, hospitals and landlords a sustainable or appropriate way of managing migration into Northern Ireland? And is the approach to the negotiations as a whole undermining the Good Friday Agreement?
Look to the detail of the existing guarantees that have been made about Northern Ireland and you will see that the protections are at best partial. The combination of nationality and the place of residency at the end of the transition period is being used to determine people’s rights post-Brexit. This means the emblem on a person’s passport and where someone happens to be on the day of Brexit could determine their rights to access the NHS, be part of the social security system, and access certain employment rights.
If the final agreement shakes out anything like the drafts that currently exist, different communities in Northern Ireland could enjoy radically different rights. Within Northern Ireland there are residents with Irish passports, those with UK passports, and those with other EU and non-EU passports. But after Brexit these groups could have radically different rights and entitlements. This creates a recipe for tension. And it’s the reason that the Joint Committee of Irish human rights bodies – set up under the Good Friday Agreement – is calling for an equalisation and simplification. This could be easily achieved. The EU has already agreed to give EU citizenship to the ‘Irish who are part of the people of Northern Ireland’; this just needs to be extended to other groups of people in Northern Ireland.
Allocating rights in Northern Ireland according to the passport a person holds would be a bad idea both in principle and in practice. It would undermine the Good Friday Agreement, which affirms the right of the people of Northern Ireland to choose their national identity without suffering consequent disadvantage. Subverting this principle would reignite the sense that national identity matters in everyday life in Northern Ireland. In practice it would be an administrative nightmare in the UK and across the EU to distinguish between individuals all born in Northern Ireland. Irish law currently recognises that some Irish citizens don’t need to have any documentation. So how is a small village employer in France to tell which workers from Northern Ireland are entitled to work in the EU and which are not?
The Brexit negotiations have, unsurprisingly, been fractious and have tested the relationship between the UK and Irish governments. And all of this comes against the backdrop of a collapsed Stormont. The Good Friday Agreement is well constructed to withstand much of this, with a binding international agreement between the UK and Ireland, and a multiparty agreement between the Northern Irish parties (except the DUP).
But twenty years on, greater substantive support for the Good Friday Agreement – think of it as a birthday present – would be welcome. Back in 2004 when the Irish citizenship referendum was set to make changes to the Constitution that would have a bearing on the Agreement, the Irish government issued a simple affirmation of its continuing respect for its obligations. With changes in progress to the UK constitution of a much grander nature, a similar declaration by the UK would be a welcome restatement of its intention to continue respecting the Agreement in good faith.
With a year to go until Brexit day, it’s time for the details of how the post-Brexit rules will affect the Good Friday Agreement to get some attention. There are numerous places where these details are not minor and will have significant implications. Addressing these details will require politicians in Dublin, Belfast, Brussels, and London to look out for the Agreement and all of the citizens of Northern Ireland. But mostly, negotiators need to move past the preliminary border and trade issues and start working through the very large remaining ‘to do’ list. Without doing so risks frictions in Northern Ireland, administrative chaos, and a breakdown in respect for the Good Friday Agreement.
These ideas are expanded in more detail in a short book forthcoming in August 2018; Sylvia de Mars, Colin RG Murray, Aoife O’Donoghue and Ben TC Warwick, Bordering Two Unions; Brexit and Northern Ireland (Policy Press).
Dr Ben Warwick is a Lecturer in Law at Birmingham Law School, University of Birmingham. He researches international systems for the protection for human rights, with a particular focus on how these rights interact with resource questions. He can be contacted at b.t.warwick[at] birmingham.ac.uk and tweets @btcwarwick.