What does the 23 June mean for Northern Ireland specifically? Legal Perspectives no 2: Peace
In the second of three blogs on the legal implications of a Brexit on Northern Ireland, Professor Dagmar Schiek looks at the role of the EU in the Northern Ireland peace process and highlights the barriers for continuing this process without the common membership of the UK and Ireland in the EU.
On 23 June, citizens vote whether the UK should remain a member of the EU or whether it should announce its intention to withdraw. While this question has general consequences for Great Britain (i.e. England, Wales and Scotland) and Northern Ireland alike, there are also aspects which affect Northern Ireland specifically. This second blog considers the peace process – problems relating to the UK’s land border with Ireland were discussed in part one.
Legal frame of the peace process – from Belfast Agreement (1998) to Stormont House Agreement (2014)
The peace process in Northern Ireland and around the inner-Irish border is based on a series of agreements between the UK and the Republic of Ireland. The first of these agreements, the Belfast agreement in 1998, created the Northern Ireland Legislative Assembly, the North South Ministerial Council, the British Irish Council and triggered political reforms such as creating the PSNI. The last one, the Stormont House Agreement of 2014, established that reconciliation and accepting the realities of the past were still not achieved, and that enhanced efforts should be undertaken to ensure progress in this regard. It also reconfirmed the commitments of the former agreements, including the St Andrews agreement of 2006. As agreements between EU Member States – the UK and Ireland – these depend on implicit approval by the EU, and they were also supported by the EU, as evidenced by a specific EU Commission representation in Northern Ireland and specific funding programmes.
Practical barriers for continuing the peace process without common EU membership
There are immense practical barriers for continuing the peace process without the common membership of the UK and Ireland in the EU.
The 1998 Belfast Agreement, in its specific sections, partly makes reference to the shared EU membership of both partners. For example, it establishes an obligation of the North South Ministerial Council to consider the EU dimension of matters under consideration. This provision is inevitable, because any agreements between EU Member States must comply with EU obligations. It is duly mirrored in UK legislation relating to the second section of the Belfast Agreement: for example the Northern Ireland Act of 1998 requires that any secondary legislation issued by the Legislative Assembly must comply with EU law. As long as this legislation and the underlying international agreements are not changed, pockets of mandatory EU law compliance would remain in place for Northern Ireland, should the UK decide to withdraw from the European Union.
If the UK chooses not to remain bound by EU law after withdrawing from the EU, these agreements would have to be renegotiated. This would not be a matter for the UK and Ireland alone. After all, after withdrawing from the EU, the UK would no longer be a Member State. Any relations of Ireland to a non-Member State would be embedded in its EU membership. In the immediate aftermath of an announcement by the UK to withdraw from the EU, matters would be even more complex. The EU would, in the first place, negotiate the conditions of the UK’s future relation to the remainder of the EU (Article 50 TFEU). European Court of Justice case law suggests that entering into bilateral negotiations with non-EU states while the EU is already negotiating on the same issue violates the EU Member States’ duty of cooperation: when Luxembourg wished to conclude individual agreements with the Eastern European states when they were negotiating their accession to the EU prior to 2004, this was seen as a violation of EU law obligations. Accordingly, under Article 50 TFEU, Ireland as an EU Member State would be barred from entering into negotiations on bilateral relationships with the UK about the overhaul of the Belfast Agreement immediately after the UK has declared its intention of withdrawal.
Furthermore, EU funding has supported the various stages of the peace process. The current programme (PEACE IV) funds projects until 2020 and is dedicated to supporting reconciliation, and focuses on projects related to shared spaces, promoting reconciliation through engagement of young people, social inclusion especially in areas most affected by the conflict and shared education. While the volume of funding by the EU specific programmes has decreased, the prospect of discontinuing these programmes would be a concern for continuing the peace process.
In both fields the EU would have to be convinced that the wider agreement on the consequences of the UK withdrawal from the EU must address all these problems, or alternatively, that individual negotiations between the UK and Ireland should be allowed by way of special leave for Ireland to engage in these.
Withdrawal from the EU would create a number of insecurities related to the continuing peace process. Above all, maintaining the agreements underlying the peace process would not be a matter for the UK and Ireland to agree without taking into account the ongoing withdrawal process and the continuing membership of Ireland in the EU. Furthermore, the practical implementation of the peace process has profited from EU funding, the continuation of which is uncertain. Maintaining the momentum would depend on the quality of the withdrawal agreement. In any case, the UK’s withdrawal from the EU would add to the considerable hurdles to be overcome for driving forward the peace process.