Important elements of the Northern Ireland settlement will go if the United Kingdom leaves the European Union, according to a former legal adviser to the Stormont government.
Brian Doherty said Brexit would lead to a "substantial removal" of provisions for asserting human rights, which are an important part of the overall agreement that brought peace in Northern Ireland.
This is because the settlement provides for two “routes” for asserting rights associated with the European Convention of Human Rights, one of which is by way of EU law.
This “route” would disappear with Brexit and would constitute a “major loss” for those wishing to assert rights associated with religion, sexuality, gender, as well as matters more directly economic.
Speculation
Mr Doherty is a solicitor who is on the board of the Irish Centre for European Law at
Trinity College Dublin
.
He said it was his view that the devolved governments in Northern Ireland and Scotland did not have any legal powers to prevent a Brexit. There has been speculation since Friday's shock referendum result that the provisions of an agreement called the Sewell Convention might give such veto powers.
The Belfast Agreement and the Northern Ireland Act 1998 both assume continuing membership of the EU for the Republic and the UK. Mr Doherty said it was his view the Northern settlement would remain in place and the North-South and British-Irish bodies put in place as part of the settlement could remain post-Brexit. "They could even be more important post-Brexit," he said. However, the departure of the UK from the EU would mean the agendas of the bodies established under the settlement would change substantially.
The European Convention on Human Rights is an international treaty to which all Council of Europe members are party. It is not an EU treaty and disputes concerning it are ruled upon by the European Court of Human Rights in Strasbourg. As part of the Belfast Agreement, it was accepted that the convention would be completely incorporated into Northern Ireland law.
Second legal avenue
However, the Treaty of the European Union and EU law also make the rights covered in the convention part of the UK’s laws and give people seeking to assert these rights a second legal avenue through which to assert them. “That lane closes post-Brexit,” Mr Doherty said.
“EU law is influenced by convention rights. Accordingly, if the UK leaves the EU, that feed-through of convention rights would also cease in Northern Ireland,” he said.
The convention was an “important strand” of the Belfast Agreement and the 1998 Northern Ireland Act.
The 1998 Act makes the Belfast Executive subject to EU law. There are very specific provisions in the Act stating that anything done which is in breach of either EU law or the convention is not valid.
The issue of human rights can be important in the economic sphere as well as in areas such as sexuality and religion. It played a part some years ago in a dispute over efforts to suppress cross-Border shopping and the right of shoppers to shop, and traders to trade, became part of the debate. “It can be a protection against protectionism,” he added.
