Although Brexit resurfaced in the weekend’s newspapers with the revelation that Britain’s exit from the EU could be delayed until 2019, the referendum has largely taken a backseat to other news. Even at the height of the Brexit fervour there was little to no substantive debate on the effect a potential EU exit would have on Northern Ireland (which voted remain by a majority of 56%).

This oversight notwithstanding, Northern Ireland’s ties to the European Union are significant and merit consideration, especially in the context of the Belfast/Good Friday Agreement. Europe has paid £1.3 billion to the Northern Irish PEACE programmes alone since 1995. This figure does not include farm subsidies or the economic gain from Northern Ireland’s food and agricultural exports to the EU. Monetary ties aside, I will focus on the proliferation of the European Convention on Human Rights in the Belfast Agreement, the important role it plays in the peace process, and the right to citizenship and self-determination in the context of a post-Brexit border poll.

 

Importantly, while the European Convention on Human Rights (ECHR) has no formal relationship with the European Union (see Article 6 of the EU Treaty), it plays a central role in the Belfast/Good Friday Agreement. In light of this Prime Minister Theresa May’s comments calling for withdrawal from the ECHR and its accompanying court ‘regardless of the referendum result’ in the days leading up to Brexit displays profound disregard for the Northern Irish peace process even despite May’s later back-peddling. The Belfast Agreement called upon the British Government to incorporate the ECHR into law ‘with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency’. The ECHR’s centrality to the Northern Irish peace process cannot be understated: Instead of regurgitating rights within the text of the Belfast Agreement, the parties involved purposefully looked to the ECHR to embed them.

Moving the ECHR to one side, citizenship and self-determination play a central role in the Belfast Agreement. The first substantive article premises Northern Ireland’s future on the will of the people, noting that

‘it is for the people of the island of Ireland alone… to exercise their right of self-determination on the basis of consent…to bring about a united Ireland’.

It further establishes the right to future referendum as to the status of Northern Ireland in relation to a united Ireland, in addition to granting all Northern Irish the right to both Irish and/or British citizenship. Accompanying British legislation stipulated that a united Ireland can come about only with ‘the consent of a majority of the people of Northern Ireland voting in a poll held for the purposes of this section’. The accompanying Irish law focuses more on the right of every individual born on the Irish island to be part of an Irish nation—harkening back to the right for an Irish passport—noting: ‘[I]t is the firm will of the Irish nation, in harmony and friendship, to unite all the people who share the territory of the island of Ireland’. The Irish legislation further highlights that this unification must be done peacefully and with the democratically expressed consent of peoples in both jurisdictions.

Indeed, in the days since Brexit the issue of citizenship has captured considerable attention. After the initial run on the Irish passport offices the Irish Minister for Foreign Affairs and Trade called for calm, promising that ‘the referendum has not in any way changed the entitlement to an Irish passport which extends to those born on the island of Ireland and those claiming citizenship through parents or grandparents born in Ireland.‘ Even the son of the infamous Loyalist Ian Paisley encouraged Northern Irish citizens to apply for Republic of Irish passports following the Brexit result. In July, Taioseach Enda Kenny hinted at the possibility of a border poll on reunification, evoking images of Eastern Germany before the fall of the Berlin wall and stating that absorption into a member-state could be simpler than applying for independent EU membership.

Despite the surge in passport applications, governments both north and south of the border have since decided that the ‘test’ for a poll has not been met, with the House of Lords assuring that the UK would fulfil its obligations to call a poll if the Secretary of State for Northern Ireland believed there was a majority support for a united Ireland. On this majority, the Earl of Courtown stated:

‘The UK Government remains fully committed to the Belfast Agreement. This includes the obligation for the Secretary of State for Northern Ireland to call a border poll if he believes there is majority support for a united Ireland. It is however the Secretary of State’s clear view that a majority of the people of Northern Ireland continue to support the current political settlement, including Northern Ireland’s position within the United Kingdom. As the Government’s Northern Ireland manifesto at the last election set out, the circumstances requiring a border poll are, therefore, not satisfied.’

Although the most recent survey in the Republic of Ireland indicated that two-thirds of voters would back a united Ireland, the latest similar survey in Northern Ireland—approximately a year old—indicated that 44% of voters preferred for Northern Ireland to remain part of the United Kingdom.

No such survey has been run in Northern Ireland since the Brexit result, and the referendum constitutes a significant intervening factor. It is plausible that Brexit will have swayed a large number of voters in Northern Ireland towards reunification with the Republic of Ireland. Only recentlly the newly appointed Secretary of State for Northern Ireland quietly announced a press tour with the intention of canvassing public opinion on Brexit.

Northern Ireland has blossomed in the years since the Belfast Agreement; a peer who had left Belfast some 20 years ago recently remarked on the surprising number of glass buildings in the city (once a stupid investment in light of frequent bombings). That is not to say that the peace is complete or unshakeable. Although the international media has grown bored with paramilitary violence in Northern Ireland, a quick skim of local newspapers reveals that it is very much still an issue.

There is much to celebrate about Northern Ireland’s progress, and its future will surely remain a topic of discussion—and hopefully not a bargaining chip—at the Brexit negotiating table. These discussions should, however, not be confined to closed door chats between politicians. The Belfast Agreement rooted the future of Ireland—on both sides of the border—in the will of the people. As such, academics, commentators, and others should be encouraging and facilitating robust public discussion about Northern Ireland’s future. Not because it is clear whether Northern Ireland is better off one way or another, but because the choice belongs to the peoples of Ireland. As Brexit unfortunately illustrated, a choice absent intelligent debate can hardly be considered a choice.

 

 

Post-script: it wouldn’t be an IntLawGrrls piece if we failed to take time to celebrate the fact that the three heads of state in the United Kingdom and Northern Ireland are currently women: Prime Minister Theresa May, First Minister of Scotland Nicola Sturgeon, and First Minister Arlene Foster. You go, girls!