BrexitLawNI Brexit and Northern Ireland: The

slide2. BrexitLawNI Brexit and Northern Ireland: The Constitutional, Conflict Transformation, Human Rights and Equality Consequences<br>
slide3. BrexitLawNI Format:
Keynote address by Tony Connelly, Europe Editor, RTE
Presentations by the BrexitLawNI team
About the project
Context
Six Themes
Questions
Reception<br>
slide4. BrexitLawNI About the Project
This is a collaborative ESRC-funded research project between the Law Schools of Queen’s University Belfast and Ulster University and the region’s leading human rights organisation, the Committee on the Administration of Justice (CAJ).

Our project examines the constitutional, conflict transformation, human rights and equality consequences of Brexit for Northern Ireland<br>
slide5. BrexitLawNI Professor Colin Harvey
c.harvey@qub.ac.uk |+44 28 9097 1004
Professor Rory O’Connell
r.oconnell@ulster.ac.uk | +44 28 9036 6693
Professor Kieran McEvoy
k.mcevoy@qub.ac.uk | +44 28 9097 3291 Dr Anna Bryson
a.bryson@qub.ac.uk | +44 28 9097 3453
Dr Amanda Kramer
a.l.kramer@qub.ac.uk | +44 28 9097 3451
Brian Gormally
brian@caj.org.uk | +44 28 9031 6000
Daniel Holder
daniel@caj.org.uk | +44 28 9031 6000 Who are we?<br>
slide6. BrexitLawNI Our approach
20 Semi-structured interviews
6 Town hall meetings
44 Stakeholder meetings
Comprehensive literature review
Conference presentations & Brexit Cafés<br>
slide7. BrexitLawNI Our Outputs
6 preliminary reports and analysis of the Joint Report and the draft Withdrawal Agreement and Protocol
Written evidence, including to the House of Lords Constitution Committee, Northern Ireland Affairs Committee, Joint Committee on Human Rights (Westminster); and the House of Lords EU Home Affairs Sub-Committee
BrexitLawNI blogs: including recent contributions on ‘The Implications of Brexit for Asylum in NI’, ‘The EU (Withdrawal) Bill’ and ‘Equality of Citizenship’
BrexitLawNI on twitter
See our website (below) for further details and additional outputs<br>
slide8. BrexitLawNI Context
Northern Ireland/Ireland matters at the heart of the negotiations
Northern Ireland enjoys a measure of constitutional distinctiveness within the UK and flowing from Belfast/Good Friday Agreement and subsequent agreements
The power-sharing institutions are not functioning at present (and Brexit is a factor in this)
Northern Ireland has not consented to Brexit and there is evidence that the Remain vote has risen
The two main parties (DUP and Sinn Féin) are divided on Brexit (DUP – Leave; Sinn Féin – Remain)
The UK Government is in a ‘confidence and supply’ agreement with the DUP (that embraces Brexit)
Four political parties (Sinn Féin, SDLP, Alliance Party, Green Party) have now issued two Joint Statements on Brexit (one on the single market and customs union and one on human rights and equality)<br>
slide9. BrexitLawNI Context
Questions remain over the legal and practical implementation of the commitments in the Joint Report
Proposals for possible amendments to the Protocol
Continuing discussion on what ‘no diminution’ means?
What will be in the Annex to the Protocol?
How, for example, will the EU citizenship rights of Irish citizens in Northern Ireland be maintained over the long term?
How will human rights and equality guarantees for everyone in Northern Ireland be protected?
How will guarantees be implemented and enforced given the nature of the UK’s constitutional arrangements and the current political context?<br>
slide10. BrexitLawNI The EU and Brexit

‘I couldn’t see any good arising out of a hard Brexit, certainly in this part of the world, and that’s a fact. I think whatever we have at the moment, which isn’t much, we will be worse off for a number of reasons. And secondly, I would have thought the EU, you know for all its faults, and there are many, it has done more good than harm, and certainly, I haven’t heard a lot of argument from people about the fact that it is the biggest peace process in the last 50 years, it kept peace in Europe, I haven’t had to go to war, neither have my children. You can’t take these things for granted. I hear very little about that aspect of it.’ [Enniskillen Townhall Respondent]<br>
slide11. BrexitLawNI Six themes

Brexit and the peace process

North-South relations

Border controls and free movement

Xenophobia and racism

Socio-economic rights

Wider human rights and equality issues<br>
slide12. BrexitLawNI Brexit and the peace process
Concerns that leaving the EU has thrown into sharp relief some of the political and social tensions hitherto mediated by EU membership
For Republicans opposed to the peace process, Brexit is broadly viewed as ideological confirmation of Britain’s imperial attitude to Ireland
Widespread consensus among dissident Republicans that Brexit (and the prospect of a hard border in particular) is a potential mobilising agent for violence and protest but also illegal smuggling activity
Security professionals also identify security risks posed by dissident Republicans<br>
slide13. BrexitLawNI Brexit and the peace process
Interviewees have emphasised the importance of the European Arrest Warrant
Security and policing experts interviewed have also stressed importance of Europol and information sharing arrangements with EU for NI
It is also viewed as a political opportunity for dissident Republicans and has renewed discussions of Irish unity
Since the referendum, there has been quite a remarkable shift in prominence of political conversation on possible reunification of Ireland – an issue which had largely been settled as a result of the Belfast/Good Friday Agreement
Emphasis on ramifications for the Belfast/Good Friday Agreement<br>
slide14. BrexitLawNI Brexit and the peace process
‘It has introduced a huge element of tension that has not been around for… maybe twenty, twenty-five or thirty years I think.’ [UUP MLA]

‘I mean the Good Friday Agreement  is mortally wounded.’ [SDLP MLA]<br>
slide15. BrexitLawNI Brexit and the peace process

‘My sister lives about twelve miles from here, right? On the border. Right beside a memorial, a JCB digger, which these border campaigners have put in place as a permanent reminder to their border road reopening campaign. I could tell you that those people that are twelve miles away, there would be men waiting for a border, for any physical manifestation of a border, or a mobile manifestation of personnel on the border; it would be conflict transformation mark 2. It would be a recipe for pure disaster. And I’m sure that there are non-mainstream republicans that would be waiting for an opportunity that Brexit provides, for an opportunity to strike up again. That’s how dangerous the Brexit argument eh places our border communities, that’s my main fear …’ [Enniskillen Townhall Respondent]<br>
slide16. BrexitLawNI Brexit and the peace process

‘One only has to go, to Portlaoise jail today, and see that people have been willing to, young, mainly young men, have been willing to take up violence, and that’s not in the Brexit environment, so you know. Mm, in that context…’ [Enniskillen Townhall Respondent]

‘Brexit was manna from heaven from our perspective.’ [Senior Dissident Republican 1]

‘Brexit has the potential to break up the British state… with the inevitable infrastructure of a hard border imminent, this will drive home to the Irish people the partition of our country… and as history teaches us it will inevitably stoke the fires of resistance against British rule in Ireland.’ [Senior Dissident Republican 2]<br>
slide17. BrexitLawNI North-South relations

The clear majority of those we engaged with believe the EU framework has played a supportive role in North-South cooperation

There is wide concern throughout Northern Ireland about the impact of Brexit on current and future North-South relations

Familiar themes emerging from the interviews and stakeholder meetings included anxiety about the re-emergence of a hard border, deteriorating North-South relationships and the practical problems that Brexit will bring (for example, for cross border workers)<br>
slide18. BrexitLawNI North-South relations

We heard many practical examples of successful North-South cooperation facilitated by EU membership, including the supportive role of EU funding

The Belfast/Good Friday Agreement mechanisms were proposed by a number of participants as one solution to post-Brexit problems and as a reason for the better relations since 1998 – but a sense these have been underused thus far

We noted throughout our project increasing reference to Irish unity and the prospects of a ‘border poll’ (reunification as a way of remaining within the EU is becoming a mainstream discussion in Northern Ireland)<br>
slide19. BrexitLawNI North-South relations
‘… how many journeys are there across the border to work, to school, to college, to receive hospital treatment, what does it mean for Altnagelvin Cancer Centre?... What does it mean for the Children’s Heart Unit in Dublin? What does it mean for the Autism Centre? And I’m not saying that any of those are a panic, I’m just saying that those are things we have to figure out.’ [Anonymous Interviewee]

‘… it has injected … a severe tension that wasn’t there and the warming up of relationships … stopped after that but just any potential mellowing between unionism and Dublin has been jeopardised …’ [SDLP MLA]<br>
slide20. BrexitLawNI North-South relations
‘So there’s just all-Ireland, it’s there, it’s happening, the all-Ireland economy, communication, relationship, has been there and is built on, and what Brexit is going to do is just going to, not just undermine all of that but damage the entire island and the services that people get. It is unforgiving.’ [Sinn Féin MEP]<br>
slide21. BrexitLawNI North-South relations
‘I think largely though … a secondary … that what has advanced North-South relations has been the development of relationships since the establishment of devolution and an increased awareness that this [is] actually quite a small island and it’s to the benefit of both Belfast and Dublin that they work together, I think that realisation would exist whether or not we were in the European Union so in that sense I think its secondary. Its of secondary importance. What is of primary importance is the fact that politicians North and South realise the benefits of cooperating together.’ [DUP MLA]<br>
slide22. BrexitLawNI Border controls and free movement
Movement of people has been a marginal issue in discourse on ‘the border’
There is a lack of transparency in relation to post-Brexit planning for both CTA and internal immigration controls in Northern Ireland.
There is a lack of clarity as to what ‘non routine’ controls in the CTA will look like with concerns that there will be a resultant increase in selective checks that target persons on the basis of skin colour or other ethnic indicators – the form of discrimination known as racial profiling<br>
slide23. BrexitLawNI Border controls and free movement
‘I am very happy to reinforce the clear statement that there can be no racial profiling at a border, whether it be routine, quixotic or even accidental. That cannot be the policy or the direction; there cannot be even a hint of that going on at the border…There will be no checks whatever for journeys across the land border between Ireland and Northern Ireland, nor between Northern Ireland and Great Britain.’
[Minister Lord Duncan of Springbank in response to an amendment to EU (Withdrawal) Act from Baroness Kennedy of the Shaws  (HL Hansard 25 April 2018, clm 1609)]<br>
slide24. BrexitLawNI Border controls and free movement
‘I was queuing with approximately 15-20 people to board the boat. I was the only black person in the queue that I could see… I passed through the check-in area …and was called to the side by one of the officers who were present, immigration or police. I remember clearly that I was asked to produce my passport…’ [passenger on ferry on same day]

Home Office response: ‘Immigration Officers speak to members of the travelling public using these routes, regardless of appearance, and a consensual request for photographic ID can form part of that conversation.’<br>
slide25. BrexitLawNI Border controls and free movement

‘Well nobody has come up with a solution that works, nobody has come up with a solution that means the border is not hardened in some way. They talk about frictionless, well that’s what we have, we have a frictionless border now, and that’s because of the EU. … I can’t see how the UK is going to satisfy all those people who voted to leave the EU, when it leaves open the only land border it has, with an EU country, and allows free movement into NI and onto England, Wales and Scotland.’ [Anonymous Interviewee]<br>
slide26. BrexitLawNI Border controls and free movement
In-country immigration checks - the hostile environment and ‘One Big Border’ – concerns expressed throughout our project by participants
The increased role of the UK Border Force and Home Office Immigration Enforcement Directorate (highlighted publicly by the Brexit UK Border Force NI recruitment exercises), has provided a new focus on the extent such bodies sit outside the Northern Ireland specific framework for policing accountability
The ‘rights and privileges’ of the CTA – desire for clarification and codification<br>
slide27. BrexitLawNI Border controls and free movement

Northern Ireland is unique in the UK in that almost all its residents post-Brexit will continue to be or to be entitled to be EU citizens, by virtue of Irish citizenship, with consequent entitlements to EU rights including freedom of movement
Phase 1 Agreement explicitly provides for continuation of EU rights for Irish Citizens residing in Northern Ireland and examination of ‘arrangements required’ to give effect to their ongoing exercise, but concerning indications this commitment will not be honoured;
GFA provisions of equal treatment for British and Irish citizens in NI<br>
slide28. BrexitLawNI Xenophobia and racism
Whilst a significant problem already existed, including of paramilitary involvement in racist intimidation and violence, individual experiences of racist abuse and intimidation have been exacerbated.
We have encountered qualitative examples of racist abuse and intimidation that are directly linked, for example: we heard concerned residents in a care home telling migrant nurses ‘we have voted why are you still here?’
We heard testimony that migrants are more reluctant to report racist abuse following the referendum, given a perception that anti-migrant sentiment, that had hitherto been considered as the preserve of a few, had now become quite widespread.
There is deep concern about racism and xenophobia and the rise and further development of ‘racial profiling’. There is reason to continue to be worried about the content and shape of immigration and asylum law, particularly as this will develop in a post-Brexit environment (Northern Ireland as ‘one big border’)<br>
slide29. BrexitLawNI Xenophobia and racism

In our consultation events it became evident there had already been a significant shift in the treatment of EU26 nationals in Northern Ireland in relation to querying of entitlements and difficulties in accessing essential public services
We heard testimony from EU migrant workers around errors, injustices and unnecessary distress that existing ‘hostile environment’ measures had caused them, and that this had also deteriorated since the referendum
EU migrants have also reported significant changes in experiences when arriving home into Belfast airports from visits to home countries<br>
slide30. BrexitLawNI Xenophobia and racism

‘… well I think a lot of non-British or Irish people are feeling uncomfortable and I think anecdotally that things are being said to them a lot more and y’know we know all those incidents in the first few months, ‘are you still here’, and ‘we’ll get rid of you soon’ but yeah I just think that’s empowered and I think if you see the little undercurrents of the hard right and your Britain First and so on, maybe it’s coincidence but there’s a lot more of them and there seems to be a lot more open white supremacist stuff even locally on social media all that kind of stuff that maybe we just didn’t notice two years ago but yeah.’ [SDLP MLA]<br>
slide31. BrexitLawNI Xenophobia and racism

‘ … We see that anyway at Belfast City Airport and Aldergrove, certain flights attract attention, other flights there’s nobody to meet you anywhere, and people who are singled out on those flights tend to be people of colour. And I have one personal example of travelling with a friend, who’s more British than I am, whose family goes back more generations than mine do, who was singled out for a check with UK Border Force and asked all sorts of insulting questions and detained for about 45 minutes, purely based on her colour … [Anonymous Interviewee]<br>
slide32. BrexitLawNI Socio-economic rights

There is profound concern about the impact on socio-economic rights and equality over the short and long term (particularly within a post-Brexit UK), including the serious impact on the Northern Ireland economy
The sectors in Northern Ireland most vulnerable to the effects of Brexit will be the agricultural and food sectors, and many areas of manufacturing
Anxiety about the impact on EU funding and the fundamental significance of that funding
There are serious potential consequences for health care<br>
slide33. BrexitLawNI Socio-economic rights

Evidence of the negative impact of Brexit on low paid workers in border regions and specifically the impact on women
EU law has played a significant role in the development and strengthening of employment rights in Northern Ireland
The EU Charter of Fundamental rights is a cornerstone for the protection of workers’ rights and we heard concerns about the loss of the Charter<br>
slide34. BrexitLawNI Socio-economic rights
‘I suspect that where ever we are economically in 5 or 10 years’ time, the idea that the cure to all our social and economic ills, to the increasing inequality we face, that will somehow all be resolved by getting out of the EU isn’t going to happen, and my concern is well, that level of discontent with society at large, if those levels of inequality are still there, then it means that that disgruntlement is still there, ripe for exploitation and this time it won’t be membership of the EU that will be the ground on which you can ferment that. And my terrible fear to be honest is that what will ferment it, will be around issues of race, migration and immigration. And I think if we are worse off economically as a result of leaving the EU, and there are some quite significant indicators that that might be the case, then I think it has all kinds of ramifications for us constitutionally in terms of the United Kingdom as a whole, but also then in terms of how that discontent manifests itself and that might well be around issues, as I say, about race etc.’ [Chief Commissioner, Northern Ireland Human Rights Commission]<br>
slide35. BrexitLawNI Socio-economic rights
‘We’ve got a shortage of GPs, already in the West, massive shortage of GPs, major. We’re already here, and the kinds of things people are saying; locums in Letterkenny, now, who are non-EU nationals, so this is another group, non-EU nationals in Letterkenny are saying, what about regulatory recognition of my qualifications, will I be able to go to Derry and work at the hospital at the weekends, as a locum and vice-versa…what will that look like what will we need to do to achieve that?’ [Derry Townhall Meeting Respondent]<br>
slide36. BrexitLawNI Socio-economic rights

‘I suspect if you live in London and you’re commuting to Paris, you’re not low paid. Donegal-Derry, Monaghan –Armagh, Cavan – Fermanagh …  you can see that there will be issues that will be very unique to the border, beyond the issues that we’re already discussing about whether you have a hard/soft border … And those issues won’t be picked up by common travel area, or by the social security general kind of provisions that are already in place. Those are the kind of nitty gritty things that are really important to people and are about economic and social rights.’ [Chief Commissioner, Northern Ireland Human Rights Commission]<br>
slide37. BrexitLawNI Wider human rights and equality issues

Evidence suggests significant potential impacts on human rights and equality in Northern Ireland
While rights are central to the Belfast / Good Friday Agreement, they have often been side-lined in the Brexit negotiation process in favour of arguments over economic issues
The EU legal framework has provided reassurance in the context of a failure to deliver on many human rights and equality issues during the peace process
Evidence indicates widespread fear of the equality consequences of Brexit given the supportive role of the EU legal framework in the particular circumstances of Northern Ireland<br>
slide38. BrexitLawNI Wider human rights and equality issues

‘A frightful mess’
Real risk of a divisive, complicated and confusing human rights landscape post Brexit (citizenship rights and human rights)
Concerns about the draft Withdrawal Agreement and Protocol re human rights and equality guarantees and possible amendment
The impact on equivalence of rights on island of Ireland
Bill of Rights and Charter of Rights – a renewed conversation
Increasing reference to revisiting the human rights and equality framework for Northern Ireland in light of Brexit<br>
slide39. BrexitLawNI Wider human rights and equality issues

‘We end up with a very confusing mix of common law, EU Law, Court of Justice jurisprudence, Court of Human rights jurisprudence, being applied by county court and high court judges in NI, which is going to be a frightful mess, I think. I know there are some people who think this can all be remedied, some sensible people, it can all be sorted out and actually we can build on it, and domestic law can be better than what we had before, but I doubt it (laughter). And even if they wanted to there is, I think, I can’t remember who it was, Lord Judge, said that this was a tsunami they were never going to be able to deal with, of legislation that would be required, just to protect what we currently have.’ [Anonymous Interviewee]<br>
slide40. BrexitLawNI For further information
Website: www.brexitlawni.org
Twitter: @BrexitLawNI
Facebook: facebook.com/brexitlawni
Email: brexitlawni@qub.ac.uk<br>
slide41. BrexitLawNI Thank you<br>