Background

Northern Ireland and the Good Friday Agreement have been recognised in the Guidelines adopted by the European Council:

“The Union has consistently supported the goal of peace and reconciliation enshrined in the Good Friday Agreement in all its parts, and continuing to support and protect the achievements, benefits and commitments of the Peace Process will remain of paramount importance. In view of the unique circumstances on the island of Ireland, flexible and imaginative solutions will be required, including with the aim of avoiding a hard border, while respecting the integrity of the Union legal order. In this context, the Union should also recognise existing bilateral agreements and arrangements between the United Kingdom and Ireland which are compatible with EU law.”

The British Prime Minister, Theresa May, has further highlighted the importance of avoiding a hard border, stating in her speech at Lancaster House that “[n]obody wants to return to the borders of the past, so we will make it a priority to deliver a practical solution as soon as we can”.

The British priorities focus more on the Common Travel Area, but the importance of a seamless border and its impact on North-South relations has been acknowledged by many.

The Committee believes it is important to note that in the UK’s EU Referendum, a majority of the people who voted in Northern Ireland, voted to remain in the EU: 55.77% of the valid votes or 440, 707 votes to remain, out of a total of 790,149 valid votes. This represented a 62.7% turnout.

Citizenship

Good Friday Agreement

In the Good Friday Agreement, both the British and Irish Governments committed to:

– recognise the birthright of all the people of Northern Ireland to identify themselves and be  accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland.

– The Agreement defines the people of Northern Ireland as “all persons born in Northern Ireland and having, at the time of their birth, at least one parent who is a British citizen, an Irish citizen or is otherwise entitled to reside in Northern Ireland without any restriction on their period of residence”.

Under the Good Friday Agreement, those born in Northern Ireland are entitled to British citizenship and / or Irish citizenship. This creates a unique situation where after the UK’s withdrawal, around 1.8 million residents of a third country would either hold, or be entitled to, EU citizenship. Exercising that right to dual citizenship in Ireland has already seen a spike in applications for Irish passports, resulting in the hiring of additional staff to address the increased demand.

The Good Friday Agreement also confers the right on the people of Northern Ireland to selfdetermination on the issue of reunification:

The economic situation in Northern Ireland presents additional challenges. Northern Ireland could be described as a net beneficiary of EU funds in its own right. In sectors such as agriculture, withdrawal from the EU will mean the end of payments to farmers under the Common Agricultural Policy. An all-island economy has developed in certain sectors, most notably in the areas of energy and tourism. The withdrawal of the UK will have significant implications for developments built on work done on promoting all island cooperation.

Summary and Potential Solutions – Funding and the Border

The provisions of the Good Friday Agreement are the bedrock for peace and stability in Northern Ireland and the wider island. It is imperative that any agreement respects this and ensures the continuance of its provisions.

The PEACE and INTERREG programmes should be retained to support the continuance of crossborder and cross-community initiatives following Brexit. This is vital to the peace process and ensuring political stability in Northern Ireland. A continued financial support for the two schemes will have to be explored with the UK along the model that already exists for INTERREG programmes with third countries.

Some witnesses and Members of the Committee suggested that no border poll under the Good Friday Agreement should occur until it is clear that a respectable or sizeable number of all communities are in favour and such a poll follows the principle of consent.

Other witnesses and Members of the Committee were clear in their desire to ultimately see Irish reunification, and for the principle of consent, contained in the Good Friday Agreement, to be respected and that a poll be held when it is likely that ‘a majority of those voting would express a wish that Northern Ireland should cease to be a part of the United Kingdom and form part of a united Ireland’.

Environmental legislation and mechanisms may diverge post-Brexit. To address this, effective

mechanisms and minimum common standards should be explored, including the treatment of the island of Ireland as a single bio-geographic area.

Unique Arrangements for Northern Ireland

At the time of the Committee’s work, the Northern Ireland Assembly was not in a position to engage and neither were elected representatives in Westminster. This absence was disappointing. A number of Northern Ireland’s political parties and many others have endorsed a special status for Northern Ireland. Different parties have different solutions in mind when they consider how to structure such a unique status.

Former Taoiseach, Mr Bertie Ahern proposed the establishment of a Common Trading Area (discussed in Chapter 3 concerning the Common Travel Area). While Trade is an EU competence, there may be a willingness to make special arrangements for Northern Ireland.

In his appearance before the Committee, Professor Colin Harvey of Queen’s University Belfast made the following observation:

“[W]e have the habit of talking about some outlandish or suggested special status that is somehow odd but from a constitutional legal position with regard to Northern Ireland, what we are asking the guarantors to do is recognise what is supposed to be an existing special status already”.

The Committee believes this is a very important point. Northern Ireland already has special provisions which apply to it, examples of which include its unique position on citizenship (discussed above and in Chapter 5 concerning citizens’ rights) or the unique PEACE programmes established by the EU, which only concern Northern Ireland.

The Committee heard that while there may be difficulty in referring to a special status in broad terms, if the discussions focused on practicalities, it may be possible to develop a shared understanding and agreement.

The Committee also heard that a special status would not have to extend to every area, but to areas where it is practical, e.g. disease control and the economy.

Border Poll and Re-joining the EU

As has been noted by the Joint Committee on the Implementation of the Good Friday Agreement ,Brexit has implications for the principle of consent.

On the issue of a border poll, the Committee heard that the UK’s withdrawal from the European Union should not in and of itself be a catalyst for a border poll by some witnesses, including Former Taoiseach, Mr Bertie Ahern who suggested:

“The only time we should have a border poll … is when we are in a situation where the Nationalists and republicans and a respectable or sizeable number of Unionists and loyalists are in favour, and on the basis of consent.”

At the same time other witnesses and Members of the Committee were clear in their desire to ultimately see Irish reunification, and for the principle of consent, contained in the Good Friday Agreement, to be respected and that a poll be held when it is likely that ‘a majority of those voting would express a wish that Northern Ireland should cease to be a part of the United Kingdom and form part of a united Ireland’. Members of the Committee welcomed the declaration of the European Council in April 2017 on the possibility of a future united Ireland being entitled to full automatic EU membership.

The Committee considered suggestions it is very important to depoliticise Brexit discussions, this was noted by Dr Mary Murphy:

“To some extent it can be unhelpful to talk consistently about the possibility of having a Border poll. It is very unhelpful to the process because it politicises the Brexit issue. In order to achieve some kind of solution to the Brexit issue, depoliticising the issue is imperative.”

Solutions predicated on the German precedent, where reunification led to automatic membership of the EU, may also be possible. The Committee considers it important to ensure the possibility of this scenario forms part of the negotiated agreement.

In relation to all of the issues contained in the Good Friday Agreement, the Committee noted its importance in underpinning the Northern Irish Peace Process, and the Committee is concerned at suggestions contained in the recent study  for the European Parliament’s Constitutional Affairs’

(AFCO) Committee suggesting that the Good Friday Agreement “will need alteration” as a result of the UK’s withdrawal.

The Environment

The Committee was told that there has been little discussion of the environment, environmental protection or sustainable development in the context of Brexit to date. As Ireland and Northern Ireland share a land border and that following Brexit, UK and EU regulation may fall out-of-sync, this may be problematic.

As solutions, the Committee believes the following should be explored:

– That the Government, Northern Ireland Executive, UK Government and EU partners work together to enable effective long-term management of the environment;

– That the island of Ireland be considered a single bio-geographic unit post-Brexit;

– That effective mechanisms are put in place to resolve and manage cross-border environmental issues post-Brexit;

– That minimum common standards and approaches are sought between England, Scotland, Wales and Northern Ireland and in the context of Northern Ireland, those standards are aligned as closely as possible to Ireland;

– That new funding arrangements should be established to replace current sources of EU funding.

Central to this, the Committee considers that a mechanism should be put in place to ensure the environmental regulation is aligned between Ireland and Northern Ireland and that post-Brexit, common minimum standards are maintained. This could be reinforced by, for example, access to the Single Market could be dependent on adhering to environmental law standards.

Special EU Programmes Body (SEUPB) and EU Funding

The Committee heard that the current cross-border EU funding programmes are PEACE IV and INTERREG VA, which follow on from previous programmes completed over the last two decades.

These programmes are critical to fostering cross-border partnerships and understanding, which are in turn, key in developing the peace process.

As outlined in the below table, the PEACE Programme has contributed a total of over €2.2 billion to initiatives in the border region, with over €1.5 billion of this figure coming from the EU: The PEACE Programme is only operated in the border region of Ireland and Northern Ireland and the Committee was told it was a unique solution in itself. Similarly, the INTERREG Programmes have contributed over €1.1 billion to projects, with €810 million contributed by the EU.

Funding through the PEACE Programme has played an important role in addressing the trauma and legacy mental health issues that have remained as a result of the conflict. These effects can be longstanding and enduring if not adequately addressed. Representing the Special EU Programmes Body (SEUPB), Ms. Gina McIntyre noted that as part of the PEACE III (2007-2013) round of funding thousands of people received direct support related to post-conflict recovery. This included events aimed at assisting victims and survivors, conflict resolution workshops, trauma counselling, and initiatives designed to address barriers (physical and non-physical) to fully acknowledging and dealing with past trauma.

In total, 6,999 people received trauma counselling, and 189,007 people attended events focused on sectarianism, racism or conflict resolution.71 This highlights the importance of EU funding for crossborder reconciliation, support and empowerment post-conflict. Given the uncertainty already generated by Brexit, the Committee feels that such supports must be maintained for individuals, families and communities once the UK leaves the EU.

With regard to INTERREG funding across the EU, the Committee heard that there are examples of cases where projects are engaged in by an EU Member State and a non-EU state. Representing the Special EU Programmes Body (SEUPB), Ms Gina McIntyre highlighted that expenditure on the INTERREG Programme comprises a 60% contribution from the UK side and 40% from Ireland (as detailed below), with each Government’s contributions including the EU element.

The Committee heard that the SEUPB will seek continued funding from the UK post-withdrawal from the EU. If models used in other programmes with non-EU Member States were to be followed the funding for the UK contribution would have to come entirely from UK funds, as the UK could no longer rely on EU funding.

In addition to the table, INTERREG IVA included a programme with Scotland which amounts to €20.47 million (€15.35 million of which came from EU funding) and INTERREG VA which costs €26.58 million (€22.59 million of which came from EU funding).

A more general issue highlighted to the Committee was the awareness of EU-funded programmes and the benefits they bring. The Committee heard that many of these projects permeate through the local communities. The PEACE IV Project has four core themes:

1) shared education;

2) children and young people;

3) shared spaces and capital (shared across eight areas including health and victims); and

4) building positive relations at regional level.

INTERREG is focused on four core objectives in the research and innovation area and includes environmental initiatives in the areas of protected habitats, water management and sustainable transport.

To date, such environmental initiatives and funding have aligned closely with the broad range of environmental protections and objectives established by EU legislation. Depending on the terms of any potential withdrawal, the possibility that the UK would no longer be bound by core EU environmental directives has introduced a degree of uncertainty regarding the continuity of environmental legislation, and therefore funding, in Northern Ireland and the border region.

A challenge therefore will be ensuring that environmental standards in Northern Ireland are maintained post-Brexit. To this end, the Committee welcomes the commitment from the British Prime Minister, Theresa May, that the UK intends to remain a “leading actor” on environmental policy and climate change and ensure that current EU environmental regulations are included in EU law after withdrawal.

This is particularly important given the strong cross-border dimension to environmental issues, which by nature transcend boundaries. There is a big overlap on issues such as biodiversity loss, climate change and air and water quality and this requires a coordinated, consistent approach across the island of Ireland. Again, EU funding has played an important role in this regard. If an arrangement is put in place where the UK remains within the Single Market and maintains a contribution to the EU Budget, then arguably, the present funding arrangements could remain in place. However, in the event of a hard Brexit, the question of future EU funding needs to form a key part of the negotiation process.

This Article draws on Seanad Special Select Committee Withdrawal of the United Kingdom from the European Union Brexit: Implications and Potential Solutions June 2017. Irish public sector information is reproduced pursuant to PSI Licence; Conditions of Re-Use of Public Sector Information. The Legal Materials contain Irish Public Sector Information licensed under the Irish Licence which is at http://circulars.gov.ie/pdf/circular/per/2016/12.pdf.

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