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Brexit and the North and whose problem is it really? October 28, 2016

Posted by WorldbyStorm in Uncategorized.

There’s a not bad point at the heart of this from Newton Emerson on the issue of potential breaches of human rights agreements due to Brexit. He dismisses the idea – but I’m not entirely heartened by the detail of his dismissal. For example:

The Belfast Agreement only requires the British government to put the European Convention on Human Rights into Northern Ireland law, not UK law.
In the event, the European convention was enacted across the whole UK by the 1998 Human Rights Act – but the North’s separate legal system means the Act can be left on the statute book when it is repealed in Britain. If a British bill of rights is extended to Northern Ireland, it will be supplementary to the Human Rights Act.


The Belfast Agreement also requires “direct access to the courts, and remedies for breach of the Convention”.
This would remain unaffected. People could still bring a case under the 1998 Act in Belfast and appeal it to the UK’s supreme court, which has primacy over Northern Ireland law.
The Act created this role for the supreme court, replacing the need to go to the European Court of Human Rights in Strasbourg, although the supreme court can still refer a case up to Strasbourg for further consideration.


While campaigning to become prime minister last June, Theresa May said she will not withdraw the UK from the European Convention when she enacts Britain’s bill of rights. In other words, the UK will still be signatory to the treaty, so the supreme court will still be able to refer Northern Ireland cases to Strasbourg.

Is that all clear now? I’m not sure it is. I’d love to see how this would work in practice – I’m not convinced that there wouldn’t be considerable tension between parallel and overlapping and arguably competing ‘supplementary’ bills and acts outlining rights. We’ll see.

And, of course, the pragmatist in me recoils entirely from the sheer cack-handed stupidity that we now face in this instance – the pointless complexity and room for problems.

Still, that not bad point is as follows:

There is a fascinating contrast here with the 2014 merger of Ireland’s human rights and equality bodies. The Belfast Agreement required Ireland to establish a Human Rights Commission “with a mandate and remit equivalent to that within Northern Ireland.”
The merger breached this requirement, as Dublin was repeatedly warned. Nor was this breach a mere technicality. Cross-Border institutional equivalence in rights protection is a specific aim of the Belfast Agreement, and was seen as important by nationalists. Yet apart from those who lost their jobs at both quangos, nobody gave a hoot. It is tempting to see a cultural difference in this, with the British cynically following the letter of the law while the Irish observe a spirit they make up as they go along.

Or perhaps it’s not so much cultural as a function of the power relationships at play.
Though it would be interesting to hear a defence from the government of this state in relation to that… wouldn’t it?

Emerson, though, to his credit notes the key dynamic in play here:

A more objective explanation is that the Irish see rights as something only Britain breaks, at least in a Northern context. Meanwhile, the British are just not thinking of Ireland at all.

It is only by accident that the human rights protections of the Belfast Agreement are not about to be sabotaged. Discussions on the proposed bill of rights reached a ludicrously advanced stage without the effect on Northern Ireland ever being raised. Ministers and senior officials in London appeared oblivious.
The real threat to the peace process is not a legal breach, but this toxic combination of British apathy and Irish mistrust. The same damage can be witnessed around Brexit, which is also almost certainly not a contravention of the Belfast Agreement. Such a slippery problem will be hard to address, but a good start would be not making up more problems than we have already.

I’m not entirely convinced. Let’s be honest, this is a process that was initiated and is being sustained by the British government. British indifference – indeed outright ignorance – of the situation relation to Northern Ireland is almost appallingly bad. No, it is appallingly bad. For those of us who are nationalists and republicans and republican socialists this isn’t news. This is precisely why we believe that matters on this island are best dealt with on this island by those on this island whatever links are retained eastward over time.

What’s perhaps striking is how peripheral despite all else, despite a conflict of thirty years, despite the enormous political capital invested in bringing that to a halt and establishing structures that would move beyond it, despite the fact it continues to have a power and sway, the British genuinely appear at best laissez-faire about it all. Sure, we can say that these are Tories (though that holds a lesson as to what the character of this actual Brexit is and is going to be) but that’s not quite enough by way of explanation. The unpleasant truth that Brexit points up in almost an exaggerated way is that is that Ireland is hardly even an afterthought in British thinking and any talk of cultural, social and political ties – well, for the most part the latter, is belied by what is actually taking place as against occasional rhetoric in the past (on this let me recommend another BBC disUnited Kingdom podcast, this on Scotland where the narrator, herself Scottish, opens with the line ‘here people actually voted to stay in the EU against the tide in the rest of the UK’ – no mention of the North there – and it is framed as ‘it was a reminder that Scotland’s relationship with the UK has often been difficult’ which is also telling).

Perhaps part of the problem in relation to Emerson’s analyses is that they seem to be made from a position that all is fine, even if it’s not it will be okay and underlying that a sense that the status quo and the relationships are fundamentally sound, as well as strenuous efforts to try to paint London and Dublin as largely equals in the overall relationships (with Dublin all too often slipping into atavistic behaviours – or rather he paints its responses or behaviours in general as atavistic before hedging somewhat). He did something very similar in his last column on the topic which sought to portray the efforts for an all-Island forum as pointless and suggest that the only proper structures within which to engage with the issues was through the GFA/BA institutions. Which is – on paper – fine. But what of the reality – is the DUP willing to engage through those institutions and secondly what of the voices of those who aren’t represented through the GFA/BA institutions – that is non-political or other actors in all this? The first proposition is nowhere near as clear as he attempts to present it, the second is clearly an issue.

Beyond that the ‘problems’ Emerson details in relation to Brexit are almost entirely of British making. The Irish government should have its feet held to the fire in relation to any breaches of the GFA/BA, but those breaches are of markedly less weight by contrast with near existential threats such as those facing the current dispensation. And it is those current threats that have to be tackled now and in the near to medium term.

BTW, it has to be said that whoever wrote the headline should think again about the day job. They wrote ‘Irish mistrust is the real threat to North’s peace’
But as can be seen Emerson’s argument is a bit more complex than that.


1. CL - October 28, 2016

‘Northern Ireland’s High Court on Friday rejected an attempt to block Britain’s exit from the European Union, saying that neither the province’s parliament nor laws could override a decision by the British government….

the triggering of Article 50 itself was not a “devolved matter”…

The UK Parliament has retained to itself the ability to legislate for NI without the need to resort to any special procedure,” Maguire said.


2. gendjinn - October 28, 2016

Actually Newton is being particularly mendacious here. The EHRC will no longer be operant outside of NI which will terminate any and all investigations into murders the UK state got away with during the Troubles.

Go ahead and sue all you want in NI, all the documents, people and institutions will be located in England so good luck to you.


3. EWI - October 28, 2016

For all Newton’s studied non-chalance, I can see the doctrine of ‘appalling vista’ quickly trumping the ECHR if British law lords, rather than the European Court, are the ones to decide on cases.

Not convinced at all. The unrestrained glee of Unionism at Brexit tells me that they see an escape hatch from the GFA (I’m sure Fealty will swing by to ‘do a Newt’ soon enough).


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