115.The Belfast/Good Friday Agreement created a unique constitutional framework for Northern Ireland. It sets out governance arrangements for Northern Ireland in two interrelated documents; one is the Belfast/Good Friday Agreement, which is an international agreement between the British and Irish governments and which was subsequently incorporated into UK domestic law by the Northern Ireland Act 1998. The Agreement answered the constitutional question about whether Northern Ireland should remain in the UK, or become part of a united Ireland, with agreement there would be no change without majority consent. It was approved by concurrent referenda in Northern Ireland and Ireland on the 22 May 1998. The Agreement has been described as the “bedrock” or “corner stone” of the peace process. In practice, it established three strands of institutional governance in Northern Ireland:
116.In this chapter, we consider the implications of the UK’s decision to leave the EU for all-island cooperation under the Belfast/Good Friday Agreement and citizenship rights.
117.The Belfast/Good Friday Agreement contains three references to the EU. A reference in the introduction to Ireland and the UK as “partners in the European Union”, an instruction for the North-South Ministerial Council to consider “the European Union dimension of relevant matters” and EU issues as a proposed topic for discussion in the British-Irish Council. The UK and Ireland’s joint accession to the EU in 1973 also provided an additional forum in which British and Irish officials could meet informally to discuss matters of mutual interest and build trust.
118.A number of stakeholders emphasised the importance of the EU context for the functioning of the Belfast/Good Friday Agreement, claiming that implementation of various aspects of the Agreement could be compromised by the absence of an overarching EU legal framework. Katy Hayward told us that EU integration had an “enabling influence” on the peace process because it facilitated the development of normal cross-border relations. In January 2017, the Supreme Court rejected a legal challenge which argued that Brexit represented a constitutional change to the Belfast/Good Friday Agreement. The judges found that the Agreement covers Northern Ireland’s place in the UK, not its place in the EU.
119.A survey carried out by the Irish Central Border Area Network found that most respondents credit the Belfast/Good Friday Agreement, rather than EU membership, with “fundamentally changing their experience of crossing the border” and “facilitating cross-border cooperation”. We also heard that success in building positive community relations in Northern Ireland is grounded on the “constructive attitudes” of people in Northern Ireland and the UK and Irish governments. In the Joint Report, the EU and the UK commit to uphold the Agreement “in all its parts” and affirm that the achievements and commitments of the peace process will remain of “paramount importance”. However, the Joint Report also identifies that citizenship rights and North-South cooperation will require special consideration in the next stage of the negotiations.
120.The UK’s decision to leave the EU does not change Northern Ireland’s unique constitutional framework under the Belfast/Good Friday Agreement, however it changes the environment in which it operates. The UK, the EU and Ireland have all made clear and strong commitments to upholding the Agreement, and all subsequent agreements, and protecting the peace process. The institutions and safeguards created to manage cross-border and cross-community relations will remain the corner stone of peace and stability in Northern Ireland after Brexit. However, the EU has a duty under article 8 of the Lisbon Treaty to promote close and peaceful cooperation with its neighbours. The EU’s proposals for what this means in practice should be encouraged by the Government.
121.The Belfast/Good Friday Agreement recognises the birth right of the people of Northern Ireland to identify themselves as Irish, British, or both, irrespective of any future change in the status of Northern Ireland, and to equal treatment irrespective of their choice. Census data from 2011 shows that approximately 59% of people habitually resident in Northern Ireland hold a British passport, 21% hold an Irish passport and 19% hold no passport.
122.On leaving the EU, British citizens will no longer be EU citizens. The Joint Report states, however, that people in Northern Ireland who can also choose Irish citizenship will “continue to enjoy rights as EU citizens, including where they reside in Northern Ireland”. However, we heard that nearly all rights stemming from the EU’s four freedoms are conditional upon an individual living within an EU member state. Sylvia de Mars told us that once the UK leaves, the rights of EU citizens in Northern Ireland will become dormant in the same way that an EU citizen living in the United States today has dormant EU rights.
123.The Joint Report also states that the EU and UK intend to discuss arrangements to give effect to the “ongoing exercise of, and access to, EU rights, opportunities and benefits” for people in Northern Ireland who choose Irish citizenship. Following publication of the Joint Report, Leo Varadkar, Ireland’s Taoiseach, said:
A child born in Belfast or Derry today will have the right to study in Paris, buy property in Spain, work in Berlin or any other part of the European Union. All they have to do is exercise the right to Irish and therefore EU citizenship
124.This statement highlights the benefits that may be open to people in Northern Ireland who choose Irish citizenship. How such rights will be funded and implemented after the UK leaves the EU remains unclear. For example, the Erasmus Programme is currently managed at a central European level with funding allocated directly from the EU budget through open competition. In the period 2014–2016, 7,837 Erasmus participants contributed to 180 projects in Northern Ireland at a total cost of 20 million euros. There are also 660,329 beneficiaries of the European Health Insurance Card (EHIC) card in Northern Ireland. When we questioned Robin Walker about what ongoing access to EU rights meant he told us:
The constitutional position for Irish citizens who are EU citizens and how they exercise their rights, is a question for the EU because they have to make the appropriate arrangements.
During a Liaison Committee session, the Prime Minister was questioned by the Chair about who would pay for access to these EU rights. The Prime Minister referred to the Joint Report and the examination of such arrangements in the next phase of negotiations.
125.It is also unclear how any new EU rights and benefits, created after the UK leaves the EU, may apply to those who choose Irish citizenship in Northern Ireland. For example, the European Parliament recently commissioned a report assessing the feasibility of a European unemployment benefits scheme. When questioned on this point, the Prime Minister said the commitment in the Joint Report refers:
Specifically to the current arrangements that residents have within the European Union. The citizens’ rights element of this is about ensuring the choices people have already made will continue to be respected in the future.
126.The Government should specify in its response to this report which existing EU rights and benefits will be available to individuals, resident in Northern Ireland, who choose to hold Irish citizenship, or both Irish and British citizenship. The Government should also set out how the rights, opportunities and benefits open to those who choose Irish citizenship, and therefore EU citizenship, will be funded after the UK leaves the EU.
127.Strand two of the Belfast/Good Friday Agreement established the North/South Ministerial Council which brings together ministers from both governments “to develop consultation, co-operation and action” on an all-island and cross-border basis. The Council agreed six areas of cooperation under the Agreement; agriculture, education, environment, health, tourism and transport. It is also responsible for six all-island implementation bodies which manage inland waterways, sea loughs and lighthouses, language, trade, food safety and the distribution of EU funds.
128.The Government acknowledged that other fora of collaboration have since developed, such as the Single Electricity Market, policing exchanges and the all-island hosting of sporting events. We heard that cross-border cooperation has been important for building trust and improving infrastructure in the border regions. In these areas, cross-border connections have become a means of overcoming the dual challenges of underdevelopment and geographical peripherality from Dublin and Belfast. The Northern Ireland Local Government Association told us that border councils rely on the free-flowing movement of “goods, workers, shoppers and visitors” from an economic hinterland which extends into Ireland. Paragraphs 128 to 133 set out two case studies on cross-border cooperation.
129.There has been significant development in the provision of all-island healthcare through the Cooperation and Working Together partnership (CAWT). The partnership is founded upon bilateral arrangements between health boards in Northern Ireland and Ireland, originating with the Ballyconnell Agreement of 1992. It provides an implementation structure for cooperation between health and social care systems in both jurisdictions. Access to a large cross-border catchment of patients is advantageous because it makes provision of specialist medical services financially viable. Sharing facilities also enables people from both jurisdictions to access care locally, thereby avoiding lengthy journeys to specialist centres in Dublin or London.
130.The EU contributed 40 million euros in funding to CAWT projects between 2003–2015. It sponsored projects such as; acute ophthalmology and ENT services, sexual health clinics, specialist care for eating disorders and diabetes education facilities. CAWT estimates that around 80% of these EU funded projects have since been either fully or partially mainstreamed into core services. The North-South Ministerial Council has also initiated cross-border health projects independently of EU funding. These include joint accident and emergency planning, the radiotherapy unit at Altnagelvin Hospital, and an all-island heart surgery centre in Dublin.
131.The British Medical Association highlighted that securing mutual recognition of medical qualifications is of the “utmost importance” as there is a large number of EU workers. Michel Barnier told us that continuation of cross-border ambulance services would require specific solutions for the regulation of medicines, blood products and hospital expenses reimbursement. Damien McCallion, Director-General of CAWT, said regulatory divergence between North and South could pose an obstacle because:
If a patient travels for cancer treatment in Northern Ireland and there is some divergence in the standards in some way, shape or form, and then they are travelling back for ongoing treatment in the south of Ireland, it is an integrated pathway.
132.We heard that the island of Ireland comprises a “single bio-geographic entity” with common geology, water catchments and flora and fauna which need to be managed in a consistent and coordinated way. Although environmental policy is devolved, the vast majority of environmental policy in Northern Ireland is governed by EU legal frameworks. There are over 650 pieces of EU environmental legislation in force. There are three cross-border water catchments, shared designated protection sites and two freshwater loughs which operate under joint management through the Loughs Agency.
133.Northern Ireland Environment Link told us that the UK’s departure from the EU’s common standards could lead to inconsistencies in the management of shared resources. In future, different regulatory regimes may apply to cross-border environmental sites. Northern Ireland does not have an independent environmental regulator which means:
It is not clear what governance arrangements will be put in place to replace the loss of the necessary oversight, accountability, and enforcement functions currently carried out by the EU institutions.
134.Northern Ireland Environment Link argued that Northern Ireland will need to balance alignment with EU environmental regulation over its shared land and sea borders whilst also maintaining alignment with UK-wide regulatory practice. They recommended that all-island forums, such as the North-South Ministerial Council, are required to “maximise the opportunities and minimise the threats to our natural environment.”
135.The continuation of North-South and cross-community cooperation under the Belfast/Good Friday Agreement is one of six commitments made by the Prime Minister to Northern Ireland. In the Joint Report, the UK and the EU commit to support North-South cooperation “across the full range of political, security, societal and agricultural contexts” including continued operation of the North-South Ministerial Council and all-island implementation bodies. However, it also states that the UK’s decision to leave the EU “presents substantial challenges” to this cooperation. The three distinct scenarios, set out in paragraph 49 of the Joint Report, reflect how the UK and the EU intend to ensure continuation of North-South cooperation.
136.Following publication of the Joint Report, debate has centred on the extent to which North-South cooperation is dependent on Ireland and the UK sharing EU regulatory frameworks and governance structures. The Government’s position is that the future UK-EU relationship will be sufficient to protect North-South cooperation. The full alignment scenario will, however, be drafted into the text of the Withdrawal Agreement. As discussed in paragraphs 83–90 in the previous chapter, the UK and the EU appear to have different interpretations of what full alignment means.
137.David Davis has said that in this context full alignment relates to the six areas of North-South cooperation and the implementation bodies identified in the Belfast/Good Friday Agreement. In contrast, the Commission’s Draft Withdrawal Agreement proposes a common regulatory area which extends to “telecommunications, broadcasting, inland fisheries, justice and security, higher education and sport”. The text states that EU legal and policy frameworks are necessary to maintain the “conditions for continued North-South cooperation”. Both the Joint Report and the Draft Withdrawal Agreement make reference to a “mapping exercise” carried out by the UK and the EU to determine where North-South cooperation relies on common EU policy frameworks.
138.The Government intends for the EU (Withdrawal Bill) to carry all existing EU law onto the domestic statute book. The Bill confers significant powers to Government Ministers to amend and repeal retained EU law once it is part of the UK statute book. The UK has also agreed to apply existing and new EU laws during the implementation period following March 2019. In the longer term, the Government will be able to leave EU regulatory and governance structures. Northern Ireland, due to its constitutional arrangements and shared sea and land borders, will have a particular interest in the extent to which UK rules align with EU rules in future. The Centre for Cross-Border studies told us:
EU directives and regulations which will be transposed into UK/Northern Ireland law should remain in place until such time as any proposed changes have been subject to comprehensive territorial, equality and environmental impact assessments.
139.Paragraph 50 of the Joint Report states that the Northern Ireland Executive and Assembly may agree “distinct arrangements” for Northern Ireland. It must be noted that these solutions are dependent on the existence of a functioning Northern Ireland Executive and Assembly. The opportunity for differentiation is tempered by clear commitments from the Government that Northern Ireland will have unfettered access to the UK internal market, in all circumstances. Government analysis identified 141 policy areas where EU law intersects with the devolution settlement in Northern Ireland. When the UK leaves the EU, if the statutory requirement to comply with EU law is removed, these policy areas could fall under devolved control. Devolution of EU regulatory powers would allow differentiation within the UK in areas where EU law has previously provided a common legal framework.
140.The Government and the devolved administrations, meeting in the Joint Ministerial Committee (European Negotiations), have agreed to work together to establish common approaches in some areas that are currently governed by EU law. It must be noted that, due to the collapse of the Northern Ireland Executive in January 2017, Northern Ireland has not been represented by Ministers but, instead, by senior Northern Ireland civil servants at these meetings. This may take the form of “common goals, minimum or maximum standards, harmonisation, limits on action, or mutual recognition” for UK wide standards. The Institute for Government described how common frameworks could operate:
there may be areas where coordination is required, but a binding legal framework is seen as unnecessary. In this case, powers might be devolved in full but with agreement about how the different governments will work together, perhaps to share best practice and data or to agree upon minimum standards, for instance in areas such as air or water pollution.
141.The institutions set up by the Belfast/Good Friday Agreement are designed to facilitate cross-border and Anglo-Irish cooperation, and some commentators have suggested that the existing North-South and East-West institutions could provide a “mechanism to address any emerging impacts of the withdrawal process”. It has been suggested that Brexit provides an opportunity to “breathe new life” into the institutions of the Agreement by repurposing them to manage regulatory change between the EU and the UK. The Centre for Cross Border Studies said the Agreement provides a framework through which flexible and imaginative solutions can be delivered. The Irish Parliament’s Joint Committee on the Implementation of the Good Friday Agreement said that “while the context and the issues raised may be different” the views of the North-South Ministerial Council could continue to be represented at EU meetings. A report commissioned by the European Parliament also noted that the Agreement contains a number of unimplemented institutional arrangements, such as the North-South Consultative Forum and Northern Ireland Civic Forum, which could play a useful role in giving civic society a voice in designing new arrangements.
142.The Committee welcomes the Government’s commitment to protect North-South cooperation under the Belfast/Good Friday Agreement. Cross-border initiatives have been particularly important in improving the infrastructure and public services available to individuals living in the border corridor.
143.North-South cooperation is facilitated by shared regulatory frameworks and governance bodies. The Belfast/Good Friday Agreement states that there should be “consultation, co-operation and action” on matters of mutual interest. We recommend that the Government publish the mapping exercise and put forward targeted proposals for how cross-border cooperation in policy areas dominated by EU law will continue after the UK leaves the EU. Where appropriate, and in the event of the restoration of the Northern Ireland Executive, EU competencies could be devolved to Northern Ireland so it can balance maintaining UK wide frameworks with EU alignment for cross-border policy areas. In their continued absence, alternative means of taking decisions will have to be devised.
144.Northern Ireland is a beneficiary of two European Structural Funds; the Interreg and Peace programmes. The Peace programme is aimed at promoting peace and stability in Northern Ireland and the border regions of Ireland. Funding has often been targeted at cross-border projects designed to build good relations between communities. The Interreg programme provides EU wide funding for projects designed to overcome issues which arise from the existence of borders.
145.A Special EU Programmes Boards (SEUPB) was set up under the Agreement to implement EU funding programmes across the island of Ireland. EU funding has supported projects such as the Londonderry Peace Bridge, internet connectivity under Project Kelvin and the development of the Northern Ireland Science Park. Interreg funding currently contributes to the development of all-island environmental policies and health provision under CAWT. We heard that these funds have brought important benefits to the socially and economically vulnerable border region. The Irish Central Border Area Network expressed concern that reduced funding for cross-border projects will diminish strategic regional development.
146.In a letter following the referendum result, the former First and deputy First Minister of Northern Ireland highlighted that since 1994 Northern Ireland has benefitted from 13 billion euros in EU funding. The letter expressed “real concern” about how the absence of future EU funding programmes might affect a range of sectors in Northern Ireland. The Chancellor of the Exchequer has committed to full funding of all Peace and Interreg projects which were signed before November 2016 or meet the UK’s value for money criteria, even when they continue beyond the UK’s departure. The Joint Report also states the EU and the UK will honour their commitment to the Interreg and Peace programmes under the current multi-annual financial framework (which runs until December 2020). It further states that “possibilities for future support will be examined favourably”.
147.It should be noted that between 1991–2020, the EU contributed 810 million Euros to the Interreg programmes and the UK contributed 323.9 million Euros. Between 1995–2020, the EU contributed 1.563 billion Euros to Peace Programmes and the UK contributed 702 million Euros. However, part of the EU’s contribution to these programmes could include the UK’s contributions to the EU budget. As such, some people have consequently seen EU funding as reliant on UK money that has been rebadged.
148.The Government’s position paper states the UK wants to work with the EU on how to continue implementation of the Peace programme via the SEUPB and the North/South Ministerial Council post-2020. Robin Walker, Parliamentary Under Secretary of State at the Department for Exiting the EU, told us that the Government has proposed a bilateral successor to the Peace programme which will be subject to negotiation with the EU. Previously, the participation of non-EU countries in EU funding programmes has meant that country accepting policy direction set by the EU.
149.The Government’s position paper makes no mention of continued funding for the Interreg programme. However, it does state that:
Notwithstanding the outcome of the negotiations on this specific issue, the UK government would remain committed to peace and reconciliation programmes and to sustaining cross-border cooperation
150.In a response to a written question on the continuation of Interreg funding, the Government said:
Decisions on the replacement of EU funding will be taken in light of wider UK strategic priorities and other domestic spending decisions.
However, Robin Walker told the Committee that the Government’s proposals for a UK Shared Prosperity Fund could provide a successor to some existing EU funding programmes. The Conservative Party Manifesto states that the UK Shared Prosperity Fund would be used to “reduce inequalities between communities across the four nations”. The Department for Communities and Local Government will be consulting on proposals for the fund in 2018. Anthony Soares, Deputy Director of the Centre for Cross Border Studies, questioned whether this funding could be used to support cross-border projects in the border regions of Ireland. The Northern Ireland Local Government Association has said that Northern Ireland needs a distinct fund for the continuation of community cohesion and cross-border projects.
151.The EU Commission has said that it believes both Peace and Interreg should continue beyond the current programming period and has stated its intention to propose their continuation, based on existing management structures, during the next Multi-Annual Financial Framework meeting. Jean-Claude Juncker, President of the European Commission, stated:
I see no more important use of our budget than guaranteeing and financing the peace process in Ireland, this is an unconditional European commitment. This is what the commission will deliver with our proposal for the next multiannual financial framework in May.
152.The Committee welcomes commitments from both the Government and the President of the EU on continuation of Peace funding. The Government should set out in more detail its proposals for a bilateral successor to the Peace programme, the level of contribution it intends to make to the fund, and its governance arrangements.
153.The Government should clarify in its response to this report whether it will seek to continue funding for cross-border projects under the Interreg programme post-2020. If it is the Government’s intention to replicate this funding through the UK Shared Prosperity Fund it should specify the amount of funding it will make available, whether this money could support cross-border projects in Northern Ireland and the border regions of Ireland and what its spending priorities will be.
284 The Secretary of State for Northern Ireland must hold a border poll if at any time it appears likely to him/ her that a majority of those voting would express a wish that Northern Ireland should cease to be part of the UK and form part of a united Ireland.
285 HM Government, , 16 August 2017
286 Sinn Fein ()
287 , Northern Ireland Office, 10 April 1998
288 , Professor David Phinnemore, Queen’s University Belfast, Dagmar Schiek ()
289 Dr Katy Hayward
290 BBC, , 24 January 2017, , Supreme Court Judgement, 24 January 2017
291 Irish Central Border Area Network ()
292 Sandelford ()
293 , 8 December 2017
294 , Northern Ireland Office, 10 April 1998
295 Northern Ireland Statistical Research Agency, , 11 December 2012, Since the referendum result, there has been a 15% increase in applications for Irish passports with over 20% of applications coming from Irish citizens in Great Britain and Northern Ireland, (see , Irish Department of Foreign Affairs and Trade, 29 December 2017). There has also been an increase in the number of Irish nationals applying for British citizenship (see , February 2017) Those born in the Ireland after 1949 and living in NI, irrespective of their length of residence there, do not enjoy the same UK Passport Rights as those who live in NI and choose to hold an Irish Passport (see on Gov.uk)
296 , 8 December 2017
297 Sylvia de Mars ()
298 Colin Murray ()
299 , 8 December 2017
300 Government Press Centre, , Friday 8 December 2017
301 , Research and Information Services, Northern Ireland Assembly, 14 January 2014
302 , Northern Ireland, 2014–2016
303 , 13 October 2016
304 [Robin Walker]
305 , Oral Evidence from Rt Hon Thersa May to the Liaison Committee, 20 December 2017
306 , 10 February 2017
307 Oral Evidence from Rt Hon Thersa May to the Liaison Committee, 20 December 2017
308 , Northern Ireland Office, 10 April 1998
309 HM Government, , 16 August 2017
310 Irish Central Border Area Network ()
311 Bordering on Brexit, , November 2017
312 Northern Ireland Local Government Association ()
313 British Medical Association ()
314 , 10 July 1992
315 [Michael Gallagher]
316 British Medical Association ()
318 [Damian McCallion] Oral Evidence to the House of Lords EU Select Commit, 15 November 2017
319 , North South Ministerial Council website
320 , Department of Health, 25 March 2016
321 , BBC, 14 October 2014
322 British Medical Association ()
323 [Michel Barnier]
324 [Damian McCallion] Oral Evidence to the House of Lords EU Select Commit, 15 November 2017
325 Northern Ireland Environment Link ()
326 , Research and Information Service, NI Assembly
327 Northern Ireland Environment Link ()
328 Northern Ireland Environment Link ()
329 [Patrick Casement]
330 Northern Ireland Environment Link ()
331 Northern Ireland Environment Link ()
332 Northern Ireland Environment Link ()
333 , 8 December 2017
334 , 8 December 2017
335 [David Davis] Oral Evidence to the Exiting the EU Committee, 24 January 2018
336 , European Commission, 28 February 2018
337 , European Commission, 28 February 2018
338 [Michel Barnier], , European Commission, 28 February 2018, , 8 December 2017
339 , 21 February 2018
340 Centre for Cross-Border Studies ()
341 , 8 December 2017
342 NI Assembly,
343 , Institute for Government, 22 November 2017
344 ), 16 October 2017
345 , Institute for Government, 22 November 2017
346 , August 2017
347 , November 2017
348 , Centre for Cross Border Studies, June 2017
349 , August 2017
350 , November 2017
352 Derry City and Strabane District Council ()
353 Northern Ireland Environment Link ()
354 INTERREG Press Release, , 25 January 2017
355 Irish Central Border Area Network ()
356 Irish Central Border Area Network ()
357 The Executive Office, , 10 August 2016
358 HM Treasury, , 3 October 2016
359 , 8 December 2017
360 North/South Inter-Parliamentary Association, 18 November 2016
361 North/South Inter-Parliamentary Association, 18 November 2016
362 HM Government, 16 August 2017
363 [Robin Walker]
364 North/South Inter-Parliamentary Association, 18 November 2016
365 HM Government, , 16 August 2017
366 , Department for Exiting the EU, Hywel Williams, 29 September 2017
368 Written Questions, , 18 December 2017
369 Anthony Soares, Brexit: Reciprocal Healthcare, House of Lords, EU Home Affairs Sub-Committee
370 Northern Ireland local Government Association ()
371 , 8 December 2017
372 , BBC, 17 January 2018
Published: 16 March 2018