Colin Murray

How does Brexit change Northern Ireland’s system of government? Could it unravel crucial parts of Northern Ireland’s peace process? What are the wider implications of the arrangements for the Irish and UK constitutions?

Northern Ireland presents some of the most difficult Brexit dilemmas.

Negotiations between the UK and the EU have set out how issues like citizenship, trade, the border, human rights and constitutional questions may be resolved. But the long-term impact of Brexit isn’t clear.

This thorough analysis (available in a free open-access electronic format at http://www.oapen.org/search?identifier=1000392) draws upon EU, UK, Irish and international law, setting the scene for a post-Brexit Northern Ireland by showing what the future might hold.

Speculation is rife as to the impact of the Good Friday/Belfast Agreement upon the Conservative Government’s plans to repeal the Human Rights Act 1998. In the face of this speculation, the UK’s Conservative Government has provided little detail as to how UK human-rights reform will address the requirement for incorporation of the European Convention on Human Rights in the Northern Ireland settlement. We therefore analyse the Agreement as both an international treaty and peace agreement and evaluate its interrelationship with the Human Rights Act and the Northern Ireland Act. Once the hyperbole surrounding the Agreement and its attendant domestic legislation is stripped away, the effects of the 1998 settlement are in some regards more extensive than has to date been recognised, but in other respects are less far-reaching than some of the Human Rights Act’s supporters claim. The picture that emerges from our analysis is of an intricately woven constitution dependent on devolution arrangements, peace agreements, and international relationships.

Theories of fragmentation and constitutionalisation have long been presented as antagonistic accounts of the global legal order. Fragmentation theorists posit a non-hierarchical order explained in terms of the relationships between general and specialised areas of international law. Constitutionalisation’s adherents, by contrast, identify the global legal order’s ongoing transformation from horizontal and consent-based roots towards a hierarchal structure grounded upon fundamental principles. The proliferation of international tribunals has long been recognised as a factor muddying the picture of constitutionalisation and pointing towards fragmentation within international law. We argue, however, that this proliferation enhances the global order’s potential for constitutionalisation. The current state of fragmentation within the uncodified global order is comparable to long periods when the UK’s uncodified constitution exhibited the hallmarks of fragmented development. We bridge these supposedly rival explanations for the development of legal orders by re-evaluating the role played by competing courts in the UK’s constitutionalisation process, reassessing developments familiar to common-law historians through the prism of fragmentation theory. The UK example indicates that fragmentation is not, of itself, an insurmountable obstacle to constitutionalisation within the global order and may even mark a stage within this process. We employ lessons derived from this comparison to evaluate current flashpoints in relations between international tribunals, including the European Court of Justice’s Opinion 2/13 which has for now stymied the European Union’s efforts to accede to the European Convention on Human Rights.

Engaging democratically elected assemblies in national decision-making over the extraterritorial use of force seemingly provides a secure check on executive abuses of power. Many liberal democracies therefore maintain constitutional requirements that their elected national assembly must authorise decisions to use military force. By comparison, the UK Parliament has historically played a limited and often indirect role in authorising the use of force. From the vote on the Iraq War in 2003 onwards, however, the UK Parliament’s role has increased to the point where, in August 2013, the defeat of a Government motion seeking approval for the use of force undermined efforts to build an international coalition to intervene in the on-going Syrian conflict. Whilst debate regarding this shift has hitherto concentrated on the degree to which parliamentary oversight of the war prerogative is desirable, in this article we consider what Parliament’s evolving role heralds for the general relationship between domestic and UN mechanisms. We challenge the underlying assumption that Parliament’s interventions mark an indisputably positive development in constraining the use of force. When coupled with the focus upon the doctrine of humanitarian intervention which has accompanied many controversial exercises of UK military force since the end of the Cold War, the involvement of Parliament in the decision-making process risks hollowing out UN Charter safeguards. Arguably, successive UK Governments have acquiesced to the extension of Parliament’s role in an effort to shift the locus for legitimating uses of force away from UN institutions, where the UK cannot control the actions of other states, and towards domestic processes which are more susceptible to the Government’s influence.

Good governance requires the accommodation of multiple interests in the cause of decision making. However, undue regard for particular sectional interests can take their toll upon public faith in government administration. Historically, broad conceptions of the good of the commonwealth were employed to outweigh the interests of groups that resisted colonisation. In the decision making of the British Empire, the standard approach for justifying the marginalisation of the interests of colonised groups was that they were uncivilised and that particular hardships were the price to be paid for bringing to them the imperial dividend of industrial society. It is widely assumed that with the dismantling of the British Empire, such impulses and their accompanying jurisprudence became a thing of the past. Even as decolonisation proceeded apace after the Second World War, however, the United Kingdom maintained control of strategically important islands with a view towards sustaining its global role. In an infamous example from this twilight period of empire, in the 1960s imperial interests were used to justify the expulsion of the Chagos islanders from the British Indian Ocean Territory (BIOT). Into the twenty-first century, this forced elision of the UK’s interests with the imperial “common good” continues to take centre stage in courtroom battles over the islanders’ rights, being cited before domestic and international tribunals in order to maintain the Chagossians’ exclusion from their homeland. This article considers the new jurisprudence of imperialism which has emerged in a string of decisions which have continued to marginalise the Chagossians’ interests.

In the United States (US) student-run law reviews have long offered students the opportunity to develop their skills as editors and members of a publication team and to engage with new legal research. With law ordinarily taught as a three-year postgraduate degree, these reviews are normally staffed by a postgraduate editorial team. Similar efforts in the United Kingdom (UK) have largely been short-lived. Some venerable academic journals, such as the Cambridge Law Journal, started their lives as student-centred projects, but academics soon assumed control of the process due to the variable quality of undergraduate editing. This false start proved difficult to recover from, but a spate newly-founded student law reviews in the last decade suggests that these publications have increasing traction in UK legal education. This article evaluates the challenges and potential benefits of these efforts to translate US practice into UK law schools in light of the experience of creating and maintaining the North East Law Review, a student-led periodical based at Newcastle University which publishes student-generated content based on high-quality coursework submissions. This process potentially enhances the assessment process, with the student editorial team preparing essays for publication and student authors reengaging with their work in light of feedback. Publishing such essays furthermore allows all students to benchmark their own work against excellent coursework performance.

The scale of the injustice inflicted upon the Chagossians by the United Kingdom is self-evident, but their legal route to redress has proven opaque and fraught with difficulty, as illustrated by the House of Lords' majority decision in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61; [2009] 1 AC 453. This disconnect is, nonetheless, inherent in the UK's constitutional order. Constitutions outline the operation of governance orders, with constitutionalism injecting substantive principles into this picture, developing the relationship between the holders of power and those subject to its exercise. But not all constitutionalising projects are devoted to the same ends. The legal saga of the Chagossians throws into sharp relief the disparity between the imperial constitutionalism which was constructed to organise the governance of the United Kingdom's colonial possessions in the mid-nineteenth century and the principles which supposedly underpin its liberal democracy in the twenty-first. The denial of substantive protections for a * Senior Lecturer, Newcastle Law School and Lecturer, Sussex Law School. Our thanks to Henry Jones (Durham), Aoife O'Donoghue (Durham), Tanya Palmer (Sussex) for their encouragement and assistance with this contribution. A special note of thanks is due to the editorial team and anonymous reviewer for their detailed comments upon earlier drafts of this contribution. Any errors remain our own.

This evidence was prepared as part of the Performing Identities research project, supported by ESRC grant reference ES/S006214/1. Sylvia de Mars is a Senior Lecturer at Newcastle Law School, Newcastle University; Colin Murray is a Reader at Newcastle Law School, Newcastle University; Aoife O’Donoghue is a Professor at Durham Law School, Durham University; and Ben Warwick is a Lecturer at Birmingham Law School, University of Birmingham. This evidence updates our previous work done for the Irish Human Rights and Equality Commission and the Northern Ireland Human Rights Commission on the Common Travel Area, and draws upon our book, Bordering Two Unions: Northern Ireland and Brexit, published in August 2018. This evidence relates only to the situation of Irish citizens and to the Common Travel Area, and should not be taken as endorsing or commenting upon other aspects of the Bill.

This evidence was prepared as part of the Performing Identities project, supported by ESRC grant reference ES/S006214/1. Sylvia de Mars is a Senior Lecturer at Newcastle Law School, Newcastle University; Colin Murray is a Reader at Newcastle Law School, Newcastle University; Aoife O’Donoghue is a Professor at Durham Law School, Durham University; and Ben Warwick is a Lecturer at Birmingham Law School, University of Birmingham. This evidence updates our immediate reaction to the publication of the Draft Withdrawal Agreement, produced in November 2018, and draws upon our book, Bordering Two Unions: Northern Ireland and Brexit, published in August 2018.

This briefing paper was prepared by Sylvia de Mars, Colin Murray, Aoife O’Donoghue and Ben Warwick, as part of the Constitutional Conundrums project. We have been supported in this work by ESRC grant reference ES/S006214/1. Dr Sylvia de Mars is a Senior Lecturer at Newcastle Law School, Newcastle University; Mr Colin Murray is a Reader at Newcastle Law School, Newcastle University; Professor Aoife O’Donoghue is a Professor at Durham Law School, Durham University; and Dr Ben Warwick is a Lecturer at Birmingham Law School, University of Birmingham. This Briefing Paper was finalised on 16 November 2018.

This Discussion Paper (commissioned by the Joint Committee of the
Irish Human Rights and Equality Commission and the Northern Ireland Human Rights Commission) examines the impact of the United Kingdom’s exit from the European Union (Brexit) upon human rights and equality issues. Brexit will significantly re-orientate both Northern Ireland’s established human rights structures and the inter-connected human rights’ infrastructure and relationships across Ireland and the UK.

This paper was written by Colin Murray, Aoife O’Donoghue and Ben Warwick for the Irish Human Rights and Equality Commission and the Northern Ireland Human Rights Commission. Mr Colin Murray is a Senior Lecturer at Newcastle Law School, Newcastle University, Professor Aoife O’Donoghue is a Professor at Durham Law School, Durham University, and Dr Ben Warwick is a Lecturer at Birmingham Law School, University of Birmingham.

This commentary is on the Draft Withdrawal Agreement that has been produced by the EU. The Draft largely reflects the agreements made at the conclusion of Phase One of the negotiations (when the EU and UK issued their Joint Report which agreed key issues such as citizens' rights, the NI border, and the divorce bill). The Draft, however, is aimed at putting those agreements from Phase One into hard legal terms. By producing the draft, the EU has 'seized the initiative' to an extent, but nonetheless the parties will negotiate on aspects of this text before it becomes final or binding.

In the annotations below, we mainly focus on the areas where there is potential or actual divergence from the Joint Report agreement, and mostly discuss the impacts on Ireland and Northern Ireland. This means of the very large Draft Agreement, we mostly discuss the appended Protocol relevant to Northern Ireland below (Protocol 1).

As part of an ongoing project on the impact of Brexit on Northern Ireland we have published our immediate reaction to the Phase One agreement in the form of an annotated account of the Report. Three key issues are central to understanding how this Report changes the dynamic of Brexit insofar as it impacts on Northern Ireland: they are, first, the categorisation of individuals, second, the difference between EU rights and freedoms, and third, the role of consent in any change to the status of Northern Ireland.

This policy paper is part of an extended research project examining the impact upon Northern Ireland of the UK’s changing relationship with Europe.  With October 2017 witnessing the beginning of consideration of amendments to the EU Withdrawal Bill and the culmination of efforts to address aspects of Brexit affecting the island of Ireland in Phase 1 of the UK’s withdrawal negotiations this paper is intended to focus on some of the emerging issues for Northern Ireland as the contours of Brexit become increasingly defined.

The political and economic implications of Brexit for Northern Ireland are unique in terms of the nations and regions of the UK due to the land border with Ireland. Leaving the single market, in particular, would have the potential to complicate access to the EU market and restrict cross border trade. Brexit has also impacted upon the Executive’s flagship policy of adjusting corporation tax powers. The Northern Ireland Assembly/Executive have not to date displayed the capacity to cope with these additional responsibilities. In contrast to Wales and Scotland, most dealings with EU matters have to date been concentrated in OFMDFM and the Assembly has rarely considered EU issues. If substantial new responsibilities are devolved to Northern Ireland the Barnett Formula funding model will likely have to be reconsidered. Brexit will see pressure to extend the competences of the Northern Ireland Assembly/Executive by taking on a range of repatriated EU competences, but also makes it harder for Northern Ireland to make effective use of recent transfers of competence, including over corporation tax. The balance of power between the UK Government and Parliament and the devolved bodies has been called into question by Brexit. Brexit included no safeguards to protect the opinion of majorities in Wales and Northern Ireland, and the UK Government has to date proceeded on the basis that the Sewel Convention is not relevant to Brexit. The UK Government’s ability to reflect the interests of Northern Ireland in the forthcoming negotiations is hampered by the state of flux imposed by the collapse of the Assembly as a result of the RHI scandal. Even in the wake of the forthcoming Assembly elections stalemate seems likely and a return to direct rule appears possible. The UK Government must do everything in its power to prevent this outcome and to ensure that Northern Ireland’s Executive is involved in Joint Ministerial Committee (European Negotiations). This is preferable to ad hoc dealings with a range of Northern Ireland parties in which the participants can avoid responsibility for the outcome.

Maintaining the Common Travel Area that has existed between the UK, Ireland, the Channel Islands, and the Isle of Man has been set down by the UK Prime Minister as one of her government's 12 key negotiating objectives. In this note, some of the functions of the CTA are described, and the possible threats to it from Brexit are explored. It is concluded that the flexibility and informality of the CTA means that while maintaining it in name is relatively easy, changes to its substance are likely. Close scruntiny of any changes to the reciprocal nature and substantive provisions of the CTA are therefore essential to assessing the success of this aspect of the UK government's negotiations.

The overriding objective of Brexit negotiations should be to negotiate a settlement which is equally advantageous in all parts of the UK including the three devolved regions. The negotiations should ensure that the particular historical, political and social contexts of Northern Ireland are kept in mind as part of the Brexit negotiations alongside other broader constitutional changes. In this regard, the key objective for the negotiations from the perspective of Northern Ireland should be to conclude an arrangement for the land border between NI and ROI that reflects the particular economic relationships on the island, the nature of the border region and the historical significance of the border. Such an agreement will be particularly necessary should the UK leave the single market as a re-negotiation of the Common Travel Area will at that point be necessary. The impact on the business environment in NI needs to be considered if the UK chooses to leave the single market and complicate access to the EU market; particularly, the negotiations should have as an objective to minimise the negative impact on the agri-food sector and consumer costs in NI.

There are many very specific ‘Irish’ dimensions to current political debates surrounding potential ‘Brexit’ which are not being addressed in detail (if at all) by the Leave and Remain campaigns.  The project’s aim is to shed light on these aspects of Brexit, so as to inform interested voters.  The paper also engages directly with policy makers in Northern Ireland and the Republic of Ireland, so as to ensure that future negotiations with Westminster and/or Brussels regarding both the EU referendum take full account of the specific ways in which their jurisdictions will be affected by the changes.

Considerable speculation has surrounded the impact of the Good Friday Agreement’s provisions on human rights upon the Conservative Government’s proposals for repeal of the Human Rights Act 1998. This Policy Paper seeks to demystify this aspect of the debate over the future of the Human Rights Act, examining the terms of the Good Friday Agreement as an international treaty and peace agreement and explaining its interrelationship with both the Human Rights Act and the Devolution Acts. Once some of the hyperbole that surrounds the Agreement and its attendant domestic legislation is removed, it can be seen that the impact of the Agreement is in some regards more extensive than has to date been recognised, whilst in other respects the Agreement has less impact than some of the supporters of the Human Rights Act claim. Reform of arrangements so fundamental to governance in the UK should not be taken lightly, but at present the offhand treatment of the place of the incorporation of the European Convention on Human Rights in the Northern Ireland settlement generates just such a danger.