Rights at Risk: mapping the human rights concerns of Brexit in Northern Ireland Guest Post by Dr Claire McCann

The human rights and equality safeguards in Northern Ireland which support our peace agreement are built on a complex web of interlocking legal frameworks.  Local, national, European and international law all have an important role to play in providing the groundwork upon which the constitutional settlement for Northern Ireland is founded.  Brexit risks destabilising the human rights safeguards which underpin our peace process.  In January the Human Rights Consortium launched its report Rights at Risk which addresses the unique ways in which Brexit will impact the rights of people living in Northern Ireland.

Northern Ireland will be uniquely impacted by Brexit.  This was recognised by the former First Minister and deputy First Minister in a letter sent to the Prime Minister in August 2016 prior to the collapse of the Executive.  This letter set out their concerns about the NI interests being represented in the negotiations as a ‘fundamental pre-requisite of a meaningful and inclusive negotiation process’.  As Brexit progresses, it is clear that we are moving away from a situation where power in the UK is dispersed between the supranational EU-plane and locally through devolution, towards a system of recentralisation, at least in the short term.  The EU (Withdrawal) Bill provides for a sweeping concentration of legislative power in the hands of Ministers, with very few safeguards.  Even the recent amendments to include ‘sifting committees’ to scrutinise the use of Henry VIII powers in the Bill offer little in way of safeguards against excessive use.

Engagement with our members has highlighted the profound uncertainty and fear that Brexit has created.  Despite high level assurances from the government about its commitment to the Belfast/Good Friday Agreement, these concerns have been aggravated by a lack of detail about how protecting the Agreement and other safeguards will be achieved in practice.  The EU provides a framework for good relations between the UK and Ireland, a neutral platform upon which to build north-south relations and a conduit for access to enhanced human rights protections that became integrated into the fabric of how the Agreement was implemented. There is a risk that when these scaffolds are removed that it could fundamentally destabilise some of the building blocks of our peace agreement.

The EU referendum campaign at a UK level was built on a narrative of Britishness and ‘taking back control’ of our laws, borders and sovereignty. Many of these arguments and approaches to Brexit have also been subsumed into the community/identity politics of Northern Ireland and have fuelled further community and political here. This tension and community differential is increased in the context of the potential for differences in access to rights for UK-identifying and Irish-identifying people living here. The Belfast/Good Friday Agreement makes it clear that it is the birthright of everyone here to identify as British or Irish or both. This is a very real risk that needs to be addressed, especially in light of assurances in the Phase 1 agreement between the UK and EU 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’.

In addition to the heightened tensions between the two main communities in Northern Ireland, there has also been increased hostility from some ‘locals’ directed towards EU and EEA migrants living here, which is perceived as a direct result of Brexit.  This feeling of being unwelcome is exacerbated by a lack of clear information from the government regarding the rights EU migrants will have post Brexit.  This insecurity has led some participants in our research to question whether or not they should stay in Northern Ireland as they no longer feel they have a long term future here.

Our report attempts to demystify how EU law works to support the enjoyment of rights in Northern Ireland.  EU law and policy has been a progressive force for human rights here, pulling our laws towards higher levels of the protections and more robust remedies for the rights of LGBT people, children and young people, disabled people, workers, environmental protection and women’s rights.

EU human rights law has provided important safeguards for the rights of LGBT people in Northern Ireland, from the implementation of the EU protections against discrimination and the ongoing litigation which could be instrumental in the recognition of marriage equality in Northern Ireland.  EU law has also ensured that carers for disabled people are not discriminated against in terms of how they are treated.  EU common frameworks mean that victims of domestic violence and harassment can have their civil injunctions recognised across the border and that family law arrangements, including custody, maintenance and access are enforceable on both sides of the Irish border and across the EU.  EU law facilitates the coordination of health, access to social security and education in border areas and ensures security cooperation and the protection of personal data shared between agencies of different member states.

Despite the assurances from the Prime Minister and other Ministers that there would be no diminution of rights post-Brexit, the government has made it clear that it will not be carrying the EU Charter on Fundamental Rights over into UK law.  This means that the robust human rights safeguards provided for in EU law will be undermined by Brexit.  When this is combined with the ongoing threat to the Human Rights Act, which the UK government has only put on hold to deal with Brexit, there is a very real risk of our rights framework being hollowed out in the coming years.

Our report on ‘Rights at Risk’ emphasises the many ways in which the EU supports the enjoyment of rights in Northern Ireland and the unprecedented threat that Brexit poses to our peace settlement and rights. In the context of the multiple threats to our human rights from Brexit, it is time to revisit an important undelivered element of the Belfast/Good Friday Agreement.  A Bill of Rights for Northern Ireland was designed as an important mechanism to shore up confidence in our institutions and it is now more urgent than ever.