Politicians, officials and lawyers across Europe continue to peel away the layers of Brexit. Meanwhile, its proponents are playing catch-up. The British cabinet subcommittee overseeing the Brexit negotiations only this week held a special two-day meeting to discuss what kind of Brexit they want. Work which should have been done before the referendum is being done 19 months after it.
European and Irish lawyers are way ahead of British decisions-makers on excavating the texts of European treaties and indeed the Belfast Agreement to explore what the legal implications of Brexit are likely to be.
One of those well positioned to assess the route ahead, or lack of it, is Anthony Collins SC, who has been an Irish member of the Luxembourg-based General Court of the European Union since 2013.
Collins was back in Dublin last weekend to deliver the seventh annual Brian Lenihan memorial lecture at the Trinity College law school colloquium. His considered talk ranged widely on the legal environment shaping the post-Brexit scenarios.
Joint report
Among his key points was the need to have regard to the enduring rights which Irish citizens living in Northern Ireland will have after Brexit. Article one of the Belfast Agreement recognised that all Northern Irish persons have the right to choose to be Irish or British or both. Paragraph 52 of the joint report which marked the end of the first phase of Brexit negotiations last December committed Britain and the EU 27 to ensure that the people of Northern Ireland who are Irish citizens “will continue to enjoy rights as EU citizens, including where they reside in Northern Ireland”.
The most straightforward solution would be to permit the courts of Northern Ireland to make references for preliminary ruling to the European Court of Justice on the same terms as at present
This, Collins pointed out, appears to include “the full panoply of EU law rights including social rights” and indeed “such rights as may be discovered or created in the future”. Paragraph 53 of the joint report also refers to EU law and practice providing a “supporting framework” for what is described as important provisions on rights and safeguards of opportunity in the Belfast Agreement.
Collins raised questions about how the EU rights of Irish citizens in Northern Ireland would be given effect after the UK left. The rights are of no value if they cannot be enforced. The question now arises as to what court will Irish citizens resident in Northern Ireland have recourse to enforce their EU citizenship rights.
Three options are currently being suggested, Collins pointed out. The mildest is one whereby the UK would give EU law a standing in the law of Northern Ireland itself. The second suggestion is to establish a new EU-UK/Ireland-Northern Ireland court to hear such disputes. The most straightforward solution would be to permit the courts of Northern Ireland to make references for preliminary ruling to the European Court of Justice (ECJ) on the same terms as at present, including accepting the binding nature of answers received.
Obviously, any of these scenarios would have significant political ramifications in Northern Ireland and in Westminster. One only has to see the convulsions within the Conservative party over whether the ECJ would have jurisdiction in the UK during the Brexit transition phase to see how politically challenging the notion of European law continuing to be operational in Northern Ireland as part of the UK following Brexit would be.
Democratic representation
Article 10 of the Treaty on European Union provides that “citizens are directly represented at Union level in the European Parliament” and that “every citizen shall have the right to participate in the democratic life of the Union”. Collins cited a 2015 case in which the ECJ interpreted these provision as conferring on EU citizens a specific right to vote in European elections.
Currently, Irish citizens in Northern Ireland exercise that right by electing three MEPs in a Northern Ireland constituency. As thing stand, however, after Brexit they would be disenfranchised from exercising their right to participate in the democratic life of the EU.
Again, the scenarios whereby Irish citizens in Northern Ireland might be given access to their representational rights as EU citizens after Brexit present interesting challenges. One scenario is that Northern Ireland could continue to elect three MEPs. It would be interesting to see if a British government would organise or allow someone else to organise a European election in Northern Ireland beginning in 2019.
Another option would be to allot three additional European Parliament seats to Ireland to allow Irish citizens resident in Northern Ireland vote in an all-Ireland constituency, possibly by post or online.
Collins emphasised that he was speaking in a purely personal and non-judicial capacity. He speaks, however, from a very informed perch. He raised some fascinating scenarios with dramatic legal, diplomatic, political and even psephological implications. All of them are worthy of urgent consideration.