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Chapter 3

The Challenge of Brexit

The Good Friday Agreement presupposes continued EU membership. Indeed, one of the North/South bodies is specifically devoted to implementing EU programmes. However, presupposing membership is not the same thing as requiring membership, and, despite voting to remain in the EU, Northern Ireland finds itself having to submit to the overall majority for a leave vote within the UK as a whole. As it was put by Prof. Jonathan Tonge:

The [Good Friday] Agreement assumes continuing EU membership for both the UK and Ireland but binds neither explicitly to maintaining that membership. [A] 2016 Belfast High Court case1 … ruled that there was nothing in the Good Friday Agreement to prevent the triggering of Article 50. That High Court in Belfast declared in October 2016 that it would be an over-statement to suggest that EU membership was a constitutional bulwark central to the Good Friday Agreement, which would be breached by notification of Article 50. This, the Court asserted, would be to ‘elevate ... [EU membership] over and beyond its true contextual position’. In its January 2017 verdict, the UK Supreme Court2 … upheld the Belfast High Court position: the principle of consent for constitutional change contained in the Good Friday Agreement referred to whether Northern Ireland remained in the UK or unified with the rest of Ireland. It did not refer to EU membership or withdrawal.

He went on: ‘By far the most probable scenario is that the continuing cooperative bilateralism between the UK and Irish governments will allow the necessary rewriting and deletions required of Strand Two of the Good Friday Agreement.’3

The logic of this analysis is that there will be a separate bilateral British-Irish international treaty alongside the withdrawal agreement between the EU member states and the UK. That bilateral agreement will amend the British-Irish Agreement and the agreements regarding North/South bodies, in order to accommodate Brexit.

At the time of writing, the terms for Brexit remain unclear. Key staging-posts to date and into the future include the following:

• 23 June 2016 – Brexit vote

• 24 January 2017 – UK Supreme Court decision in Miller, Agnew and McCord cases that legislation is required to issue a notification of intention to withdraw from the EU

• 16 March 2017 – UK legislation enacted allowing for notification of withdrawal

• 29 March 2017 – Article 50 notification issued triggering the process of withdrawal from the EU4

• 29 April 2017 – European Council includes support for the Good Friday Agreement in its guidelines for Brexit negotiations;5 there was a declaration that a united Ireland can be part of the EU in its entirety

• 8 June 2017 – UK general election – followed by Conservative confidence and supply agreement with DUP

• 19 June 2017 – official start of Brexit negotiations

• 13 July 2017 – publication of European Union (Withdrawal) Bill, UK legislation to give legal effect to Brexit

• 28 February 2018 – European Commission publishes draft withdrawal agreement, containing a Protocol on Ireland/Northern Ireland6

• 19 March 2018 – EU and UK negotiators publish a partial agreement on the text of the withdrawal agreement, including agreement in principle to a backstop protocol avoiding a hard border, unless any alternative is agreed7

• October 2018 – EU deadline for finalisation of withdrawal agreement, commencement of ratification period8

• 30 March 2019 – Brexit takes effect, start of transitional period

• 31 December 2020 – end of transitional period

• 1 January 2021 – full disengagement from the EU.

Re-incorporation of Northern Ireland Post-Unity, Post-Brexit

The April 2017 European Council meeting adopted the following Statement to the Minutes (published after the minutes were approved at the June meeting):

The European Council acknowledges that the Good Friday Agreement expressly provides for an agreed mechanism whereby a united Ireland may be brought about through peaceful and democratic means; and, in this regard, the European Council acknowledges that, in accordance with international law, the entire territory of such a united Ireland would thus be part of the European Union.9

Following the April meeting,10 the Irish government stated: ‘The Government is pleased that the European Council statement of 29 April highlights the paramount importance of continuing to support and protect the achievements, benefits and commitments of the Peace Process, and states EU Treaties would apply to the entire territory of a united Ireland, if brought under the Good Friday Agreement.’11

This proposed declaration was supported by the Joint Committee on the Implementation of the Good Friday Agreement in its 2017 report:

Brexit has implications for the principle of consent. In this respect, the Committee welcomed the important declaration made by the European Council on 29 April 2017 in respect of the possibility of a future united Ireland being entitled to full automatic EU membership, without the need for any separate accession process:

As the Committee with responsibility for overseeing the implementation of the Good Friday Agreement, the importance of including explicit references to the need to uphold all aspects of the Good Friday Agreement in the EU’s negotiating guidelines cannot be overstated. While an important achievement, this is just the beginning of long and complex negotiations and there is no room for complacency. The Committee underlines the necessity of the Good Friday Agreement being kept to the fore at all times in the forthcoming negotiations. The additional declaration secured by the Government which allows for the entire territory of any future united Ireland being legally part of the EU is also strongly supported by this Committee.12

Current Terms of Draft Withdrawal Agreement

The draft Withdrawal Agreement published on 28 February 2018 includes a Protocol on Ireland/Northern Ireland which contains a number of key proposals relevant to the constitutional future of the island. While objections were initially raised, the British government subsequently accepted the inclusion of a backstop in the Withdrawal Agreement if nothing better is agreed, as reflected in a later, partially agreed text published in March 2018.13 The Commission’s draft preamble says that the signatories make the agreement:

RECOGNISING that it is necessary to address the unique circumstances on the island of Ireland in order to ensure the orderly withdrawal of the United Kingdom from the Union;

AFFIRMING that the Good Friday or Belfast Agreement of 10 April 1998 between the Government of the United Kingdom, the Government of Ireland and the other participants in the multi-party negotiations (the ‘1998 Agreement’), which is annexed to the British-Irish Agreement of the same date (the ‘British-Irish Agreement’), including its subsequent implementation agreements and arrangements, should be protected in all its parts; …

RECOGNISING the need to respect the provisions of the 1998 Agreement regarding the constitutional status of Northern Ireland and the principle of consent;

DESIRING to create a common regulatory area on the island of Ireland in order to safeguard North–South cooperation, the all-island economy, and protect the 1998 Agreement;

HAVING REGARD to the devolution arrangements between the United Kingdom and Northern Ireland in relation to the common regulatory area;

RECOGNISING that Irish citizens in Northern Ireland, by virtue of their Union citizenship, will continue to enjoy, exercise and have access to rights, opportunities and benefits, and that this Protocol should respect and be without prejudice to the rights, opportunities and identity that come with citizenship of the Union for the people of Northern Ireland who choose to assert their right to Irish citizenship as defined in Annex 2 of the British-Irish Agreement ‘Declaration on the Provisions of Paragraph (vi) of Article 1 in Relation to Citizenship’;

NOTING that Union law has provided a supporting framework to the provisions on Rights, Safeguards and Equality of Opportunity of the 1998 Agreement.14

The March text is colour coded – green as agreed, yellow as agreed as to the objective, and white as not agreed. These recitals are coded yellow in the March version, meaning agreed as to the objective although not as to the precise text.15 Dealing with rights of individuals, the draft provides:

1. The United Kingdom shall ensure that no diminution of rights, safeguards and equality of opportunity as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union, including in the area of protection against discrimination as enshrined in the provisions of Union law listed in Annex 1 to this Protocol, and shall implement this paragraph through dedicated mechanisms.

2. The United Kingdom shall continue to facilitate the related work of the institutions and bodies pursuant to the 1998 Agreement, including the Northern Ireland Human Rights Commission, the Equality Commission for Northern Ireland and the Joint Committee of representatives of the Human Rights Commissions of Northern Ireland and Ireland.16

Again, this is coded yellow in the March 2018 version.

The draft protocol goes on to provide for the continuation of the Common Travel Area with Ireland; coded green in the March 2018 version, meaning agreed.17 The protocol establishes a ‘backstop’ arrangement, consisting of a common regulatory area on the island of Ireland with a view to avoiding any hard border:

A common regulatory area comprising the Union and the United Kingdom in respect of Northern Ireland is hereby established. The common regulatory area shall constitute an area without internal borders in which the free movement of goods is ensured and North–South cooperation protected in accordance with this Chapter.18

This is coded white, meaning it is not agreed text as of March 2018.

But, crucially, the March 2018 partial agreement includes the following: