Brexit: UK-Irish relations Contents

Chapter 4: The impact on the peace process and on North-South and East-West relations

The impact of Brexit on the peace process

158.One of the principal concerns of our witnesses was over the impact of Brexit on the Northern Ireland peace process. In September David Davis told us that, based on his conversations with interlocutors in Belfast and Dublin, there was “nervousness about the peace process because of the prior involvement of the EU in it”, but it was “not a particularly well-specified nervousness”.225 We therefore sought to clarify the nature of the concerns.

159.The positive role played by the EU in relation to the peace process can be encapsulated in four areas: the safeguards that EU membership provides in underpinning the Belfast/Good Friday Agreement; the role that common UK-Irish EU membership played and continues to play in transforming relations between the two countries; the effect of common EU membership in diluting cross-community tensions in Northern Ireland; and the positive impact of EU funding in Northern Ireland.

The role of the EU in underpinning the Belfast/Good Friday Agreement

160.Box 4 sets out the terms of the Belfast/Good Friday Agreement, as they pertain to the European Union, and also to the European Convention on Human Rights.

Box 4: The Belfast/Good Friday Agreement and EU membership and the ECHR

The International Agreement between the British and Irish Governments underpinning the Belfast/Good Friday Agreement expresses the two nations’ intentions as follows: “Wishing to develop still further the unique relationship between their peoples and the close co-operation between their countries as friendly neighbours and as partners in the European Union”.

The Agreement itself contains a number of references to the EU, including, at paragraph 31 of Strand One (the status and system of government of Northern Ireland within the United Kingdom), that “terms will be agreed between appropriate Assembly representatives and the Government of the United Kingdom to ensure effective co-ordination and input by Ministers to national policy-making, including on EU issues”.

Paragraph 3 of Strand Two (the relationship of Northern Ireland with the Republic of Ireland) states that the North/South Ministerial Council will meet “in an appropriate format to consider institutional or cross-sectoral matters (including in relation to the EU) and to resolve disagreement”. Paragraph 17 states that the North/ South Ministerial Council is “to consider the European Union dimension of relevant matters, including the implementation of EU policies and programmes and proposals under consideration in the EU framework. Arrangements to be made to ensure that the views of the Council are taken into account and represented appropriately at relevant EU meetings.” The Annex to Strand Two states that areas for North-South cooperation and implementation may include “relevant EU programmes such as SPPR, INTERREG, Leader II and their successors”.

Strand Three (the relationship between the Republic of Ireland and the United Kingdom) states that suitable issues for early discussion in the British Irish Council could include “approaches to EU issues”.

The Agreement also contains references to the European Convention on Human Rights, which is cited as a safeguard to ensure all sections of the community can participate and work together successfully. It establishes, for instance, “Arrangements to provide that key decisions and legislation are proofed to ensure that they do not infringe the ECHR and any Bill of Rights for Northern Ireland”. The Agreement further states that if the courts find such arrangements to have been breached by devolved legislation, then the legislation would be rendered null and void.

Paragraph 2 of the section on rights, safeguards and equality of opportunity states that “the British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), 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”. It states in paragraph 4 that the new Northern Ireland Human Rights Commission will be invited to consult and advise on the scope for defining in legislation rights supplementary to those in the European Convention on Human Rights to reflect the particular circumstances of Northern Ireland.

Source: The Belfast Agreement, Agreement reached in the multi-party negotiations (10 April 1998): https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/136652/agreement.pdf

161.Patricia King argued that both the EU and ECHR elements of the Good Friday/Belfast Agreement, noting the assumption of common European identity and the incorporation of the European Convention on Human Rights into Northern Ireland law, provided “crucial confidence” to the Nationalist community.226

162.Bertie Ahern, who was Taoiseach at the time of the Belfast/Good Friday Agreement, and who played a pivotal role in delivering the Agreement and in subsequent developments in the peace process, emphasised the EU aspects of the Agreement. He told us that such references were vital, in particular those that provided a framework for dealing with differences over EU matters.227

163.The Supreme Court will shortly hear a case brought by political parties and community groups in Northern Ireland, and a campaigner for victims of paramilitary violence, on the UK’s withdrawal from the EU. In October the High Court in Belfast, in the judgment now being appealed, found that:

The royal prerogative powers of the UK Government to issue the notice of the UK’s withdrawal from the EU, under Article 50 of the Treaty on European Union, were not displaced by the Northern Ireland Act read together with the Belfast/Good Friday Agreement.
The Northern Ireland Act read together with the Belfast/Good Friday Agreement could not be construed as requiring the consent of the people of Northern Ireland before the UK could issue the notice of withdrawal.
If UK legislation were required to issue the withdrawal notice, that legislation would not need the consent of the Northern Ireland Assembly as it would not relate to a devolved matter.228

164.John Bruton, on the other hand, stressed the European Convention on Human Rights aspects of the Agreement, which fall outside the ambit of the EU. The Convention was, in effect, “the written constitution of Northern Ireland as far as the activities of the devolved Administration are concerned. They may not do anything that is in conflict with the European Convention.” He accepted that there was currently no suggestion that the UK Government would seek to leave the European Convention on Human Rights,229 though we note the recent confirmation by the Secretary of State for Justice that the Government is “committed to scrapping the Human Rights Act and introducing a British Bill of Rights”.230 The Human Rights Act (HRA) incorporates the ECHR into UK law, including in Northern Ireland.231

165.Our EU Justice-Sub-Committee took evidence on the impact of repealing the HRA on the Belfast/Good Friday Agreement in its inquiry into The UK, the EU and a British Bill of Rights. Professor Christopher McCrudden, Professor of Human Rights and Equality Law, Queen’s University Belfast, said that the incorporation of the ECHR into the law of Northern Ireland had “brought about greater stability and reconciliation than has been possible since the foundation of Northern Ireland in 1920. The repeal of the Human Rights Act, therefore, risks destabilising the peace agreement by removing a critical part of that agreement”. He considered that the HRA had played a role in Northern Ireland that was significantly different from that of the rest of the UK, particularly “in addressing issues from the past that continue to dog the path to complete transition, such as the alleged complicity of security forces in paramilitary murders”. He thought that the repeal of the HRA “risks at least breaching the UK’s legal obligations” under the Belfast/Good Friday Agreement.232

166.In the present inquiry, the Secretary of State for Northern Ireland simply stressed that the Government stood behind its commitments in the Belfast/Good Friday Agreement, and “in our judgment the EU referendum does not change that at all.”233

167.The Belfast/Good Friday Agreement assumes that the co-guarantors are both Member States of the EU. We note the case on appeal to the Supreme Court arguing that Brexit infringes the Belfast/Good Friday Agreement. While the evidence we received did not suggest that the legal framework of the Belfast/Good Friday Agreement would be substantially undermined by Brexit, we note the potential psychological impact of Brexit in undermining confidence in the Agreement and in subsequent agreements.

168.We note also that the European Convention on Human Rights, which falls outside the ambit of the EU, is a crucial safeguard to the Agreement. While we welcome the Government’s statement that it stands by its commitments under the Belfast/Good Friday Agreement, we note that any proposal to withdraw from the European Convention on Human Rights would put that commitment under threat.

169.We also note that the incorporation of the ECHR into the law of Northern Ireland is an obligation of the Belfast/Good Friday Agreement. The Government’s intention to repeal the Human Rights Act will put it at risk of breaching this obligation unless the ECHR is incorporated into the law of Northern Ireland by means of the Government’s proposed Bill of Rights.

The transformative effect of common EU membership

170.Several witnesses commented on the transformative effect that common EU membership had had on UK-Irish relations. According to John Bruton, the joint decision to join the EU had transformed the relationship from a “bilateral unequal relationship, which had all the difficulties that go with any bilateral unequal relationship, whether in a family, between states or between businesses”, into an equal membership of something bigger than either of them. He noted that no serving British Prime Minister visited Ireland from 1922 until 1973, but that common EU membership helped to dispense with “some of the psychological difficulties that had prevented us from engaging”. This made all the progress that followed possible.234

171.Bertie Ahern reflected on the way he had built good working relationships with UK ministers over the years in EU meetings,235 and Fianna Fáil argued that these bonds were intrinsic to the success of the peace process.236 Ambassador Mulhall told us that common membership had aided the Irish understanding of the UK:

“There are probably 25 meetings taking place today at various levels in Brussels. At each meeting, there will be a British delegation and an Irish delegation. In most cases, they will probably have a word together in advance or afterwards. They might have a discussion about the rugby or whatever other topic. Friendships and connections have been developed over the past 40 years.”237

172.Common EU membership has been a vital ingredient in the positive transformation of UK-Irish relations in recent years, and in helping lay the groundwork for the development of the peace process. It is incumbent on all sides to ensure that the relationship does not atrophy as a result of Brexit.

Common EU membership and community identity

173.Several witnesses suggested that the UK and Ireland’s common EU membership had also helped to diminish cross-community tensions in Northern Ireland, and expressed concern that Brexit could have a destabilising effect. SDLP leader Colum Eastwood told us:

“This is a huge constitutional change that is happening without our consent. For us, the Good Friday Agreement was about breaking down borders, further integrating across the island and working democratically in the absence of violence or intimidation towards our political aspirations. To take that away—to take the common EU membership we had with the south of Ireland away—has a tremendous destabilising effect on the Northern nationalist psyche … this shakes northern Nationalism to the core.”238

174.Ulster Unionist Party leader Mike Nesbitt compared the impact of the Brexit vote on Nationalists with the “seismic shock” of the 1985 Anglo-Irish Agreement being “imposed above [Unionist] heads”: “This is English nationalism saying … ‘Despite the assurances of the Belfast/Good Friday Agreement 18 years ago, this is being imposed upon you. You voted to stay, but you’re going to have to come out’.”239

175.David Ford agreed that these concerns were a “huge psychological issue” and “absolute realities for a significant section of our community”.240 Peter Sheridan said that whereas the Belfast/Good Friday Agreement had diminished “the tribal issue of identity”, Brexit threatened to resurrect it.241

176.Dr O’Connor observed that Brexit had already had a psychological effect in widening the gulf between Northern Ireland and the Republic, including because of the perception (by Nationalists in particular) that Northern Ireland was being taken out of the EU against the clear majority will of the population. Any imposition of border checks, dilution of the Common Travel Area arrangements, or new administrative requirements placed on Irish passport holders would be seen as favouring one side in the Northern Irish Unionist-Nationalist divide.242

177.The Secretary of State for Northern Ireland acknowledged that “a number of communities are concerned and have been unsettled, so we as the UK Government need to give … assurances and to continue to work on them”.243

178.Common EU membership laid the groundwork for the development of the peace process, as the border diminished both visibly and psychologically. In particular, it allowed Nationalists in Northern Ireland to develop a sense of common identity with fellow EU citizens across the border. The loss of EU membership thus threatens to undermine this sense of identity.

Is Brexit a threat to the peace process?

179.Does Brexit therefore place the peace process itself in jeopardy? Notwithstanding his concern, Colum Eastwood told us:

“I studiously avoid saying that the peace process is under threat because I do not think our peace is under threat. We have to be honest about that … The hard work and the hard-won changes that have been agreed on peace and violence are protected because the public will make sure they are protected and so will we.”244

180.Bertie Ahern did not foresee a return to disorder, although he did think Brexit could lead to tensions within the Northern Ireland Executive and the Assembly and between North and South.245 John Bruton noted that a sense of isolation, of being disregarded or in a permanent minority, lay behind some of the aggressive tactics used by both sides in the Troubles.246 He feared that negative symbolism and language around Brexit could act as a generator of violence, and said that the death of at least one person as a result of terrorist violence in Northern Ireland this year stood as a warning against complacency.247

181.Peter Sheridan also warned against complacency.248 While the risk of civil unrest should not be overstated, Northern Ireland was a fragile place, and it was incumbent on organisations such as Co-operation Ireland to build formal and informal cross-border and cross-community relationships.249

182.The Secretary of State for Northern Ireland noted that a majority of people in Northern Ireland supported the political settlement, and stressed his commitment to continue work on confronting paramilitarism and tackling legacy issues from the conflict.250

183.The peace process is supported by a majority of people from across the communities, and it would be irresponsible to overstate the threat posed by Brexit. Nevertheless, Brexit is already proving politically divisive. All sides must remain vigilant to ensure that the momentum behind the peace process is maintained.

EU funding

184.Northern Ireland, and the border regions in particular, have benefited substantially from EU funding. Tables 1 and 2 below set out the various strands of EU funding from which Northern Ireland has benefited, and its allocation within the 2007–2013 and 2014–2020 Multiannual Financial Frameworks.

Table 1: European co-funded programmes in Northern Ireland 2007–2013

Programme	Managing Authority	EU allocation (€m)
European Sustainability Competitiveness Programme (European Social Fund (ESF))	Department for Enterprise, Trade and Investment	€306.8
Northern Ireland European Social Fund Programme (ESF)	Department for Employment and Learning	€165.7
PEACE III (European Regional Development Fund (ERDF))	Special EU Programmes Body (SEUPB)	€224.8
INTERREG IVA (ERDF)	Special EU Programmes Body (SEUPB)	€192.0
Common Agricultural Policy: Direct Payments (Pillar I) (European Agricultural Guidance and Guarantee Fund (EAGGF))	Department for Agricultural and Rural Development	€2,231.0
Common Agricultural Policy: Rural Development Programme (Pillar II) (EAGGF)	Department for Agricultural and Rural Development	€329.5
European Fisheries Fund in Northern Ireland (European Fisheries Fund (EFF))	Department for Agricultural and Rural Development	€18.1.
Total		€3,449.3

Source: European Commission, ‘European co-funded programmes in Northern Ireland 2007–2013 and 2014–2020’ July 2016: https://ec.europa.eu/unitedkingdom/sites/unitedkingdom/files/eu_funding_in_ni_2007–2013_and_2014–2020_1.pdf [accessed 30 November 2016]

Table 2: European co-funded programmes in Northern Ireland 2014–2020

Programme	Managing Authority	EU allocation (€m)
Investment for Growth and Jobs (ERDF)	Department for Economy	€308.0
Northern Ireland European Social Fund Programme (ESF)	Department for Economy	€205.2
PEACE IV (ERDF)	Special EU Programmes Body (SEUPB)	€229.1
INTERREG VA (ERDF)	Special EU Programmes Body (SEUPB)	€240.3
Common Agricultural Policy: Direct Payments (Pillar I) (European Agricultural Fund for Rural Development (EAFRD))	Department for Agricultural, Environment and Rural Development	€2,299.0
Common Agricultural Policy: Rural Development Programme (Pillar II) (EAFRD)	Department for Agricultural, Environment and Rural Development	€228.0
European Maritime and Fisheries Fund	Department for Agricultural, Environment and Rural Development	€23.5
Total		€3,533.1

185.The First Minister and deputy First Minister’s joint letter to the Prime Minister in August 2016 highlighted the significance of EU funds to Northern Ireland: “The current uncertainty around the ability to draw down a proportion of these funds, and the absence of EU programmes in the future is of real concern to a range of sectors.”251

186.Fianna Fáil noted that the EU cross-border PEACE Programme for Peace and Reconciliation in Northern Ireland and the Border Region of Ireland “was the direct result of the EU’s desire to make a positive response to opportunities presented in the Northern Ireland peace process during 1994”. Fianna Fáil estimated that by 2020 the EU would have contributed €1.56 billion in PEACE funding alone.252 The Tim Parry Johnathan Ball Foundation for Peace agreed that the EU PEACE programme had been pivotal in transforming Northern Ireland, and stressed the focus of the new PEACE IV programme, launched in January 2016, on creating opportunities for young people.253

187.Shane Campbell noted that the border regions had received approximately €3.5 billion from EU programmes under the current Multiannual Financial Framework, not counting funding received under the Common Agricultural Policy. He added that approximately 8% of the GDP of Northern Ireland came in through EU funds, much of which was spent on cross-border cooperation.254

188.Pamela Arthurs told us that many cross-border projects were reliant on EU funding for their survival, and suggested that uncertainty over Brexit was already proving an obstacle to accessing EU funds. As we have seen, cross-border health and social care cooperation has been greatly assisted by the availability of INTERREG funding in particular. In the 2003 to 2008 period of the INTERREG IIIA programme, a total of €10.45 million was invested in cross-border health via CAWT. In the 2009 to 2015 period of the INTERREG IVA programme, €30 million was allocated to CAWT.255

189.Bertie Ahern agreed that Northern Ireland benefited from the Common Agricultural Policy, the European Regional Development Fund, the European Social Fund and the European Maritime and Fisheries Fund, as well as the PEACE IV and INTERREG programmes. He expressed scepticism that a Brexit funding gap could be filled by the UK Exchequer.256 John Bruton agreed, and added that some of the most deprived communities in Northern Ireland could be most at risk.257

190.Patricia King noted that the economic challenges already facing Northern Ireland meant that the loss of EU funding could be particularly damaging.258 Mike Nesbitt suggested that any savings from the UK’s EU budgetary contribution accruing to Northern Ireland would not be enough fully to compensate farmers, the voluntary and community sector and Northern Ireland’s universities for their combined loss of EU funding.259

191.The Secretary of State for Northern Ireland confirmed that HM Treasury would guarantee programmes entered into prior to UK withdrawal, including the PEACE IV and INTERREG funding lines, amounting to €469 million over the 2014–2020 period. His ministerial colleague Robin Walker added that HM Treasury had also promised to underwrite the payments of any awards won by UK organisations that had made bids directly to the EU for competitive funding prior to Brexit. So far as the period after Brexit was concerned, Mr Brokenshire told us that the UK Government was considering its position and had not yet reached any conclusions.260

192.This uncertainty is causing considerable trepidation. Declan Billington, noting that 87% of farm income in Northern Ireland comes from the single farm payment, sought clarity about what would happen after 2020.261 Similarly, Angela McGowan noted that current EU programmes deliver £144 million per annum to Northern Ireland, and sought decisions on how they would be replaced. She cited the uncertainty over the future of the York Street transport interchange project in Belfast, which was scheduled to be 40% part-funded by the EU.262

193.The Centre for Cross Border Studies argued that, even though it would involve a UK contribution to EU funds, Northern Ireland should continue to have access to EU funding programmes, along the lines of the European Partnership Programme model, in support of cross-border cooperation and transport and energy infrastructure programmes.263

194.EU funding has had a positive transformative effect on Northern Ireland, and on the border regions in particular. The Northern Ireland economy is more dependent on EU funding than any other nation or region of the UK, and its loss could have a devastating effect. Brexit is already giving rise to uncertainty about the availability of future funding, and there is some scepticism over the Government’s undertaking that the post-2020 funding gap will be filled. In view of Northern Ireland’s unique circumstances, we call on the Government to explore during the course of Brexit negotiations means by which it might continue to be eligible, post-Brexit, to apply to some EU funding programmes, in particular for cross-border projects.

The impact on North-South and East-West relations

195.Strand Two of the Belfast/Good Friday Agreement deals with the relationship between Northern Ireland and the Republic of Ireland (North-South relations), and Strand Three deals with the relationship between the United Kingdom and the Republic of Ireland (East-West relations). Box 5 below sets out the main institutional elements of Strands Two and Three.

Box 5: The main institutional elements of Strands Two and Three of the Belfast/Good Friday Agreement

Strand Two (North/South relations) provides for a North/South Ministerial Council to be established to bring together those with executive responsibilities in Northern Ireland and the Irish Government, to develop consultation, cooperation and action within the island of Ireland—including through implementation on an all-island and cross-border basis—on matters of mutual interest within the competence of the Administrations, North and South.

Northern Ireland is represented by the First Minister, Deputy First Minister and any relevant Ministers, the Irish Government by the Taoiseach and relevant Ministers. The Council meets in different formats: (i) in plenary format twice a year; (ii) in specific sectoral formats on a regular and frequent basis; (iii) in an appropriate format to consider institutional or cross-sectoral matters (including in relation to the EU) and to resolve disagreement.

Strand Two further states that the Northern Ireland Assembly and the Oireachtas are “to consider developing a joint parliamentary forum, bringing together equal numbers from both institutions for discussion of matters of mutual interest and concern” (since established as the North-South Inter-Parliamentary Association).

It also states that consideration is to be given to “the establishment of an independent consultative forum … representative of civil society, comprising the social partners and other members with expertise in social, cultural, economic and other issues”. This forum is yet to be established.

Strand Three (East/West relations) states that a British-Irish Council (BIC) will be established “to promote the harmonious and mutually beneficial development of the totality of relationships among the peoples of these islands”.

Strand Three also states that there will be a “standing British-Irish Intergovernmental Conference … The Conference will bring together the British and Irish Governments to promote bilateral co-operation at all levels on all matters of mutual interest within the competence of both Governments.”

Strand Three also states that “the elected institutions of the members will be encouraged to develop interparliamentary links, perhaps building on the British-Irish Interparliamentary Body” (since renamed the British-Irish Parliamentary Assembly).

Source: The Belfast Agreement, Agreement reached in the multi-party negotiations (10 April 1998):https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/136652/agreement.pdf

North-South relations

The role of the North/South Ministerial Council

196.Ambassador Mulhall noted that at the 4 July North/South Ministerial Council in Dublin, the Irish Government and Northern Ireland Executive agreed to work together to ensure that Northern Ireland’s interests were protected and that the importance of North-South cooperation was fully recognised in any new arrangements emerging from the Brexit negotiations. Ten specific actions were agreed to optimise North-South joint planning and engagement, including a full audit of work programmes in key North-South strands to establish risks and likely impacts arising from Brexit. He also stressed that the North/South Ministerial Council would continue to be the location of discussions about the North-South issues arising from the Brexit negotiations.264 The North/South Ministerial Council subsequently met on 18 November to discuss the implications of Brexit further. This followed two meetings between the Taoiseach and the First Minister earlier in the week.

197.Bertie Ahern agreed that, rather than setting up another structure, the North/South Ministerial Council should be the forum to discuss EU matters, as envisaged in the Good Friday Agreement.265 John Bruton added that the views expressed in the North/South Ministerial Council could be represented appropriately at relevant EU meetings—a responsibility that would fall solely on the Irish Government after Brexit.266

198.On the other hand, Dr Etain Tannam suggested that the North-South institutions might need to be strengthened.267 Professor McCall also thought there was a question mark over how cross-border institutions such as the North/South Ministerial Council would develop.268

199.The Consultative Committee of Accountancy Bodies—Ireland highlighted the important role that existing cross-border implementation bodies, including Tourism Ireland, InterTradeIreland, Waterways Ireland, and the Special EU Programmes Body, which manages cross-border implementation of EU peace funds, would play in promoting cross-border dialogue post-Brexit.269

The all-island Civic Dialogue on Brexit

200.Ambassador Mulhall told us that the Irish Government believed that there needed to be “the widest possible conversation on the implications of the referendum result for Ireland North and South, and for North-South relations”.270 Subsequently, on 2 November, the Irish Government staged the first meeting of an all-island Civic Dialogue on Brexit. This followed an abortive proposal for an all-island forum, which was abandoned because of a lack of support from the First Minister of Northern Ireland. In the event, neither the DUP nor the UUP participated in the Civic Dialogue.

201.Bertie Ahern thought that the importance of the Civic Dialogue was that it gave people, including people from Northern Ireland, a voice,271 and was not unduly concerned that the Unionist parties were not represented.272 John Bruton agreed that the Civic Dialogue was important, because “the sense of shock is quite substantial and people need to know that they can be heard in a structure”.273

202.Peter Sheridan suggested that one reason why the Unionist parties were reluctant to engage in the Civic Dialogue was because of the unfulfilled commitment in the Good Friday Agreement to the establishment of an all-island civic forum. Unionists would be “lukewarm to anything that feels and smells like a civic forum”.274

203.Dr Soares welcomed the Civic Dialogue as an opportunity not only to discuss the consequences of Brexit, but also to bring forward concrete proposals for how to respond.275 Ruth Taillon argued that the Civic Dialogue’s value lay in the participation of wider civil society, and noted that it was likely to include Unionists and/or leave voters in their capacity as members of the farming sector, business people or civic society organisations.276

Conclusions

204.We welcome the engagement of the North/South Ministerial Council in Brexit discussions. We agree that the existing structures established under the Belfast/Good Friday Agreement should be utilised and maximised rather than new ones being created, but given the serious cross-border implications of Brexit, the quid pro quo is that all sides must engage effectively in the structure.

205.We call on the Irish Government and Northern Ireland Executive to affirm the continuing role of the existing cross-border implementation bodies in the post-Brexit environment.

206.The all-island Civic Dialogue is, we believe, a useful format for discussion. While we respect the decision of the Unionist parties not to engage, and their concern about the establishment of any new formal cross-border mechanisms, it is important that politicians on all sides pay due account to any proposals emerging from the Civic Dialogue.

East-West relations

The impact of Brexit on bilateral UK-Irish relations

207.As we have seen, common EU membership has had a transformative effect on the UK-Irish bilateral relationship. When questioned on the impact of Brexit, Ambassador Mulhall said that it would represent “a new era for both our countries and for our bilateral relations … we have never conducted our relations in a situation where one of us was outside and the other inside the European Union”. Although Ireland’s EU membership was not in question, he said that the Irish Government was determined to do everything in its power to protect Ireland’s political, economic and people-to-people links with the UK. Ambassador Mulhall conceded, however, that “we will have to work harder on a bilateral basis, as we will no longer have the blanket of being partners within the European Union”.277

208.Dr O’Connor agreed that information-sharing and cooperation between the two Governments would be helpful in making Brexit as smooth as possible.278 Professor O’Brennan, on the other hand, questioned whether it would be possible to replicate the intensity of formal and informal dialogue in the EU context through the current North-South and East-West institutional framework.279

209.David Davis told us in September that he had already met the Irish Taoiseach, Tánaiste (Deputy Prime Minister), Minister for Foreign Affairs and Europe Minister. He felt that, “if I wanted to right now, I could pick up the phone to [Minister for Foreign Affairs] Charlie Flanagan”. He was uncertain at that stage whether more formal machinery for consultation was required, but was confident it could be created if necessary.280

The British-Irish Council and the British-Irish Intergovernmental Conference

210.Ambassador Mulhall predicted that the British-Irish Council (which comprises representatives of the Governments/Executives of the UK, Ireland, Northern Ireland, Scotland, Wales and the Crown Dependencies) would play a valuable role in the coming years, given that all the component parts of the British-Irish Council were affected by Brexit. He cited the debate that had taken place at the extraordinary meeting of the British-Irish Council in July 2016.281 The British-Irish Council subsequently met in November 2016, when Brexit was again the main agenda item.282

211.Bertie Ahern stressed the need to make use of the British-Irish Council rather than setting up any new bilateral structures.283 John Bruton, on the other hand, thought that the British-Irish Council would need to “raise its game. It is rather a diffuse chamber and the main players do not always represent themselves at the top level, which they ought to henceforth.” He also stressed the importance of more frequent meetings of the bilateral British-Irish Intergovernmental Conference, and noted that the Good Friday Agreement required the two Governments to have regular and frequent meetings on non-devolved matters.284

212.Mr Bruton said that these structures, as well as the North/South Ministerial Council, should be seen as “safety valves for difficulties”. Given that negotiations on Brexit were likely to become fraught, he thought that they could be a useful way to “buy time and get into a situation where whichever issue has been a source of difference between London and Dublin, or Dublin and Belfast, it can be discussed somewhere else in a week’s time when tempers have cooled”.285

213.Dr Gillespie agreed that the British-Irish Council had “suffered from a rather limited and unambitious agenda and … usually, from an absence of high representation from … London, compared with the other places”. He also noted that the 2012 Joint Statement between the Prime Minister and Taoiseach286 (and the collaboration between departmental UK Permanent Secretaries and Irish Secretaries-General) depended to some extent on the strength of the personal relationship between the two leaders.287 Professor McCall agreed that the intensity of the Taoiseach-Prime Minister relationship had tailed off, and argued that, in light of Brexit, consistent engagement at that level was required.288

214.On the parliamentary side, Robin Walker shared his experience as a former member of the British-Irish Parliamentary Assembly (BIPA). BIPA was founded (as the British-Irish Inter-Parliamentary Body) in 1990, as a link between the Irish and UK Parliaments. In 2001 membership was opened to the Scottish Parliament, the National Assembly for Wales, the Northern Ireland Assembly, the High Court of Tynwald and the States of Guernsey and Jersey. Mr Walker reminded us of the “complete transformation in attitudes during the period over which BIPA has been meeting. That is something we have to build on.”289 We note that Brexit has been the main agenda item at the two most recent BIPA plenary meetings, and that its committees are undertaking inquiries into the implications of Brexit for British-Irish relations.290

Conclusions

215.We welcome the dialogue between the two Governments, and support the continuing work of the British/Irish Council and British-Irish Intergovernmental Conference. We note concerns over the level of engagement by UK ministers in these fora, and therefore urge the Government to show the fullest possible commitment to supporting intergovernmental dialogue, especially with regard to Brexit. The bilateral link between the Taoiseach and Prime Minister in particular must be sustained and developed. The fact that UK and Irish ministers and officials will no longer meet in the EU context makes it all the more important that both sides devote the time and attention necessary to ensure that the bilateral UK-Irish relationship continues to prosper.

216.We applaud the work of the British-Irish Parliamentary Assembly in forging closer links between parliamentarians throughout these islands. Interparliamentary dialogue will become increasingly important once the UK is no longer part of the EU.

The political context in Northern Ireland

The role and responsibility of the Northern Ireland Executive

217.In August 2016 the First Minister and deputy First Minister of Northern Ireland wrote to the Prime Minister to set out their concerns surrounding the implications of Brexit for Northern Ireland. They reiterated their “full commitment to achieving the best possible outcome for the people of Northern Ireland”, and welcomed the Prime Minister’s commitment “that we will be fully involved and represented in the negotiations on the terms of our future relationships with the EU and other countries”. As we have seen, the letter set out five issues of particular significance:

The land border, in particular the need to ensure that the movement of people, goods and services is not impeded, that criminal justice and crime-fighting are not compromised, that Brexit does not provide an incentive for those who wish to undermine the peace process, and the need to bear in mind the consequences for the agri-food sector and for cross-border workers;
The need to retain business competitiveness and to retain as far as possible the ease of trade with EU Member State and access to labour;
The need to ensure that the Irish energy market is not undermined;
Uncertainty around the future of EU funding; and
The importance of the agri-food sector, which is “uniquely vulnerable both to the loss of EU funding, and to potential tariff and non-tariff barriers to trade”.

The letter also stressed the importance of proactively seeking opportunities in any new arrangements “that would be of benefit to the UK and its regions. No doubt each region will have its own priorities.”291

218.Although the Northern Ireland Executive was not able to give evidence to this inquiry, the leaders of the three main opposition parties in the Northern Ireland Assembly were able to do so. They felt that the Executive was not doing enough to respond to Brexit. The Ulster Unionist Party leader, Mike Nesbitt, observed that the difficulty was that the DUP and Sinn Féin were “poles apart” on Brexit. The two governing parties had held separate meetings with the Secretary of State for Exiting the European Union, and as a result had no collective leverage in negotiations. The Northern Ireland Executive was in “a terrible position” compared with the governments in Scotland, Wales, Dublin and London: “The only group that does not seem to be putting together processes, plans, resource and intellectual capacity is the Executive … We do not seem to be anywhere in terms of a plan, a strategy, a vision, a set of mechanisms and having the intellectual capacity in the right place at the right time to push our case.”292

219.SDLP Leader Colum Eastwood said that the problem was not so much that the DUP and Sinn Féin took different views, but rather that they had only begun to make contingency plans after the referendum. Outgoing Alliance Party leader David Ford saw no sign of cooperation between the governing parties, beyond the letter to the Prime Minister.293

220.While it may not be surprising that the three opposition parties should criticise their political opponents’ approach, such concerns were shared more widely. David Phinnemore, Professor of European Politics, Queen’s University Belfast, questioned whether there was the political inclination to engage in the necessary analysis and consideration of options. He argued that the Brexit debate in Northern Ireland, both before and after the referendum, was “highly polarised but at the same time it was not particularly well developed. There was a sense that everything would remain the same and Brexit would be easy, and a reluctance to go down the path of looking at the issues.”294

221.Katy Hayward observed that identifying common interests across Northern Ireland was less of a priority for politicians than setting out the Unionist and Nationalist positions. This made it difficult to achieve clarity on negotiating objectives, which was a particular concern given that Northern Ireland’s interests might diverge from those of Great Britain on a range of issues.295

222.Dr Lee McGowan, Senior Lecturer in European Politics, Queen’s University Belfast, noted that the EU was a marginal issue in Northern Ireland, and bemoaned the lack of leadership: “For the leaders of Northern Ireland time is moving too quickly. The danger is that they could find themselves left behind. It will have moved on and they are playing catch-up, but it may be too late to play catch-up.”296

223.Shane Campbell warned that, as Northern Ireland represented just 3% of the UK’s population and 2% of its economic output, its voice might get lost. There needed to be “not just a united political voice but a united Northern Ireland voice”. The history of dealing with cross-community division was that “we get there in the end, but the challenge is time”.297

224.Others were more sanguine. Bertie Ahern believed that the First Minister and deputy First Minister had made a clear effort to deal with the substantive issues.298 Peter Sheridan agreed that political leaders recognised the need to elucidate the priorities for Northern Ireland, but believed that the real challenge would be to ensure their voice was heard as negotiations progressed.299 He believed that the Executive parties agreed on the need to strengthen BritishIrish relationships and NorthSouth relationships, to minimise the impact of the border, and to continue the peace process.300

225.Brexit poses significant challenges for Northern Ireland, which transcend the traditional dividing lines of Northern Ireland politics. While we appreciate that the DUP and Sinn Féin were on opposing sides during the referendum campaign, as the two constituent parts of the Northern Ireland Executive both parties have a duty to the communities they represent to work together and show leadership. They need to ensure, as Brexit negotiations begin, that Northern Ireland’s interests are effectively communicated to the UK Government, the Irish Government, to the EU and to other Member States.

The relationship between Belfast and the UK Government

226.A number of witnesses expressed concern over the channels of communication between Belfast and the UK Government in London. Peter Sheridan said that there was a danger of political and economic isolation for Northern Ireland. Notwithstanding the good intentions of David Davis, the reality was that “the negotiations will largely happen between the EU Council and the UK, even to the extent that the Irish Government will be one27th of that in those negotiations”.301 Professor Phinnemore also feared that “we are just one small part of the UK and are not particularly high up the priorities of the London Government”.302

227.Angela McGowan was concerned that the Northern Ireland Office and the Northern Ireland Executive were undertaking information-gathering in parallel rather than in concert. She called for a joined-up approach, suggesting that senior Northern Ireland Civil Service officials should be seconded to the Department for Exiting the EU.303 Mike Nesbitt called for the office of the Northern Ireland Executive in Brussels to be utilised to engage in direct lobbying there.304

228.Professor Phinnemore saw signs that the process would be London-led, with only lip service being paid to the concerns of the devolved administrations. The fact that the Secretaries of State for Northern Ireland, Wales and Scotland would only be involved in the Brexit Cabinet Committee “as required” was “a very poor signal about the extent to which there is going to be effective engagement with devolved administrations”.305

229.The Secretary of State for Northern Ireland pointed out that he held regular meetings with the First Minister and the deputy First Minister, who had also met the Prime Minister and the Secretary of State for Exiting the EU. He said that the Executive would be undertaking sectoral analysis that would feed into the process of setting the UK’s negotiating position. He had also set up a Business Advisory Group, which had begun to examine the implications for the agri-food sector, and the Northern Ireland Office was conducting a number of sectoral meetings.

230.Mr Brokenshire stressed that the Joint Ministerial Committee (JMC) provided the formal mechanism for engagement between the devolved Administrations and the UK Government.306 The JMC duly met on 24 October 2016, and “the Prime Minister restated the UK Government’s commitment to full engagement with the Scottish Government, the Welsh Government and Northern Ireland Executive on the UK’s exit from the European Union”.307 The JMC agreed to take forward multilateral engagement through a new Joint Ministerial Committee on EU Negotiations, charged with:

Discussing each government’s requirements of the future relationship with the EU;
Seeking to agree a UK approach to, and objectives for, Article 50 negotiations;
Providing oversight of negotiations with the EU, to ensure, as far as possible, that outcomes agreed by all four governments are secured from these negotiations; and
Discussing issues stemming from the negotiation process which may affect or have consequences for the UK Government, the Scottish Government, the Welsh Government or the Northern Ireland Executive.

The Joint Ministerial Committee on EU Negotiations held its first meeting in November 2016, and will meet monthly henceforth.308

The devolution settlement

231.Finally, we note that section 6(2) of the Northern Ireland Act 1998 binds the Northern Ireland Assembly to act in a manner compatible with EU law. It follows that, as a logical consequence of Brexit, the devolution settlement will have to be amended. We note that Sir David Edward KCMG, QC, PC, FRSE, giving evidence to the European Union Select Committee on 30 March 2016, believed that the Scottish Parliament, which is similarly bound, would be required to give its consent to any legislation to any measures extinguishing the application of EU law in Scotland.309 Similar considerations would apply in respect of Northern Ireland. Although we did not receive evidence on this point in the present inquiry, we note that this question is likely to become current once the Government publishes its forthcoming Great Repeal Bill.

Conclusions

232.We urge the Government to enhance the role of the Joint Ministerial Committee for the duration of the negotiations, to ensure that the interests not only of Northern Ireland but of all the devolved nations and regions are properly understood and respected. We welcome the establishment of the new Joint Ministerial Committee on EU Negotiations, though it remains to be seen how effective this new mechanism will be.

233.While the UK Government’s engagement with Northern Ireland stakeholders over Brexit is welcome, as far as it goes, there also needs to be more effective coordination between the Northern Ireland Office and Northern Ireland Executive, and between officials in London and Belfast, as they gather information on the implications of Brexit.

225 Oral evidence taken on 12 September 2016 (Session 2016–17), Q 26 (David Davis MP)

226 Q 108

227 Q 121

228 Court Dismisses Brexit Challenge, Summary of Judgement (28 October 2016): http://www.courtsni.gov.uk/en-GB/Judicial%20Decisions/SummaryJudgments/Documents/Court%20dismisses%20Brexit%20challenge/j_j_Summary%20of%20judgment%20-%20Brexit%20JRs%2028%20Oct%2016.htm [accessed 23 November 2016]

229 Q 121

230 HC Deb, 6 September 2016, col 614

231 Public Law for Everyone, The new Justice Secretary, Elizabeth Truss, on a British Bill of Rights (undated): https://publiclawforeveryone.com/2016/09/09/the-new-justice-secretary-elizabeth-truss-on-a-british-bill-of-rights/ [accessed 23 November 2016]

232 European Union Committee, The UK, the EU and a British Bill of Rights, (12th Report, Session 2015–16, HL Paper 139), paras 168–170

233 Q 29

234 Q 120

235 Q 120

236 Written evidence from Fianna Fáil (BUI0005)

242 Written evidence from Dr Nat O’Connor (BUI0004)

251 Letter to the Prime Minister, The Rt Hon Theresa May MP from the First Minister and deputy First Minister of the Northern Ireland Executive, dated 10 August 2016: https://www.executiveoffice-ni.gov.uk/sites/default/files/publications/execoffice/Letter%20to%20PM%20from%20FM%20%26%20dFM.pdf [accessed 30 November 2016]

252 Written evidence from Fianna Fáil (BUI0005)

253 Written evidence from the Tim Parry Johnathan Ball Foundation for Peace (BUI0007)

254 QQ 68–9

255 Written evidence from Cooperation and Working Together (BUI0013)

261 Q 54

262 Q 54

263 Q 57 (Ruth Taillon) and written evidence from the Centre for Cross Border Studies (BUI0012)

269 Written evidence from The Consultative Committee of Accountancy Bodies—Ireland (BUI0009)

278 Written evidence from Dr Nat O’Connor (BUI0004)

279 Q 86

280 Oral evidence taken on 12 September 2016 (Session 2016–17), Q 26 (David Davis MP)

281 Q 10

282 See British-Irish Council, ‘Communiqué: 25th Summit: Cardiff’, (25 November 2016): https://www.britishirishcouncil.org/sites/default/files/communiqu%C3%A9s/9%20%20Communique%20FINAL_0.pdf.

283 QQ 123–4

284 Q 123

285 Q 133

286 In 2012, the then British Prime Minister, David Cameron, and the Irish Taoiseach, Enda Kenny, agreed a Joint Statement. See Prime Minister’s Office, British Irish relations, the next decade, 12 March 2012: https://www.gov.uk/government/news/british-irish-relations-the-next-decade [accessed 30 November 2016]

287 Q 88

288 QQ 34–5

289 Q 27

290 British-Irish Parliamentary Assembly, ‘53rd Plenary to take place in Cardiff 28-29 November’, (undated): http://www.britishirish.org/ [accessed 30 November 2016]

291 Letter to the Prime Minister, The Rt Hon Theresa May MP from the First Minister and deputy First Minister of the Northern Ireland Executive, dated 10 August 2016: https://www.executiveoffice-ni.gov.uk/sites/default/files/publications/execoffice/Letter%20to%20PM%20from%20FM%20%26%20dFM.pdf [accessed 30 November 2016]