Brexit and Devolution: A Legal Perspective from Northern Ireland

ALBA Summer Conference London, 22 July 2017 Brexit and devolution: A legal view from Northern Ireland David A Scoffield QC

The Constitution of Northern Ireland • Significance of the Northern Ireland Act 1998 (NIA) • See Robinson v SS for NI [2002] UKHL 32; [2002] NI 390: • The NIA “does not set out all the constitutional provisions applicable to Northern Ireland but it is in effect a constitution” (Lord Bingham at [11]) • “The 1998 Act is a constitution for Northern Ireland, framed to create a continuing form of government against the background of the history of the territory and the principles agreed in Belfast” (Lord Hoffman at [33])

The Belfast Agreement • The Belfast Agreement (BA) was agreed on Good Friday 1998 between the UK and ROI Governments and the main NI political parties • It is the background to, and an aid to construction of, the NIA • It is accompanied by a British-Irish international agreement between the two Governments. • The BA has three “interlocking and interdependent” strands: • Strand One: Democratic Institutions in NI • Strand Two: North-South Ministerial Council • Strand Three: British-Irish Council and Intergovernmental Conference

The Northern Ireland Act 1998 Strand One • Section 1 sets out the status of Northern Ireland • Parts II to IV make provision for the Northern Ireland Assembly (its legislative competence and powers) and for Departments, Ministers and the Executive Committee (the exercise of executive power) Strands Two and Three • Part V provides for the North-South Ministerial Council; North-South Implementation Bodies; and the British-Irish Council and British-Irish Intergovernmental Conference, with a Ministerial duty to attend • Interestingly, international relations is a transferred matter insofar as it relates to the NMSC or Implementation Bodies: see NIA, section 4(1) and Schedule 2, para 3(b)

Political impact of the Brexit referendum • The electorate in Northern Ireland voted – by 56% to 44% - to remain within the EU • A driver towards unification? • An indication has already been given by EU leaders that, in the event that (a ‘Brexited’) Northern Ireland unified with the Republic of Ireland, it could thereby automatically rejoin the EU

The legal dimension to the unification issue • NIA, section 1(1) sets out the principle of consent • But this is subject to the outcome of a referendum in NI on the constitutional position: • “… the Secretary of State shall exercise the power [to direct the holding of a poll for the purposes of section 1] if at any time it appears likely to him that a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland” (Schedule 1, paragraph 2) • “… if the wish expressed by a majority in such a poll is that Northern Ireland should cease to be a part of the United Kingdom and form part of a united Ireland, the Secretary of State shall lay before Parliament such proposals to give effect to that wish as may be agreed…” (section 1(2))

The (Strand One) constitutional dimension • NIA, sections 6(2)(d) and 24(1)(b): Acts and actions are outside legislative and executive competence respectively if they are incompatible with EU law. • NIA, section 4 and Schedule 2, paragraph 3(c): Observing and implementing obligations under EU law is a ‘transferred matter’ within the legislative and executive competence of the Northern Ireland Assembly and Ministers. • EU law is defined as the rights, powers, etc. which arise under the EU Treaties (see section 98(1)).

The (Strand One) constitutional dimension • So, to remove the content of EU law both widens the competence of the NI Administration but also removes transferred responsibilities. • See Miller/Agnew [2017] UKSC 5: • “The removal of the EU constraints on withdrawal from the EU Treaties will alter the competence of the devolved institutions unless new legislative constraints are introduced. In the absence of such new restraints, withdrawal from the EU will enhance the devolved competence” (Lord Neuberger at [130])

“Mr Scoffield QC, who appeared for Mr Agnew, is unquestionably right… to claim that the NI Act conferred rights on the citizens of Northern Ireland. Sections 6(2)(d) and 24(1), in imposing the EU constraints, have endowed the people of Northern Ireland with the right to challenge actions of the Executive or the Assembly on the basis that they are in breach of EU law. As already explained, it is normally impermissible for statutory rights to be removed by the exercise of prerogative powers in the international sphere. It would accordingly be incongruous if constraints imposed on the legislative competence of the devolved administrations by specific statutory provisions were to be removed, thereby enlarging that competence, other than by statute. A related incongruity arises by virtue of the fact that observance and implementation of EU obligations are a transferred matter and therefore the responsibility of the devolved administration in Northern Ireland. The removal of a responsibility imposed by Parliament by ministerial use of prerogative powers might also be considered a constitutional anomaly… The EU constraints and the provisions empowering the implementation of EU law are certainly consistent with our interpretation of the 1972 Act but we refrain from deciding whether they impose a discrete requirement for Parliamentary legislation” (Lord Neuberger in Miller/Agnew at [131]-[132])

“The devolved governments were able to argue the point [about the Sewel Convention] because Brexit will undoubtedly change their legislative and executive competence. At present, they have to keep within the subject matter of their devolved powers, such as agriculture. But they also have two over-arching limitations: they have to act compatibbly with (a) the European Convention rights and (b) European Union law. Exiting the EU will remove the latter limitation, thus expanding the scope of their powers. This raises some interesting questions about the extent of the devolution settlement. Many devolved areas have been substantially governed by EU law, so the scope for individual maneouvre by the devolved institutions was limited. Once we have left the EU, that scope may become much greater.” (Lady Hale, ‘The UK Constitution on the move’ Speech to the Canadian Institute for Advanced Legal Studies, 7 July 2017)

The EU (Withdrawal) Bill • Clause 11, ‘Retaining EU restrictions in devolution legislation, etc.’ replaces the EU restrictions on devolved competence with a restriction based on “retained EU law” (see, e.g., clause 11(3) in relation to Northern Ireland). • In other words, restrictions on devolved competence are now to be determined by UK Ministers who make policy choices, on a UK-wide basis, as to how ‘retained’ EU law is to be given effect or modified • “Retained EU law” is defined by clause 6(7) as including EU law as “added to or otherwise modified by or under this Act”

The EU (Withdrawal) Bill • The Scottish and Welsh Governments have denounced the draft bill as a “naked power grab” and an “attack on the founding principles of devolution”– because the UK Government now proposes to impose a UK-wide framework, in place of EU regulation, in areas which are devolved • This issue should be hammered out in the Joint Ministerial Committee. The February 2017 HC Library Briefing Paper on the Great Repeal Bill says, with great understatement: “The JMC has attracted criticism from Scotland and Wales. (Northern Ireland is not currently represented because of the political hiatus there).”

The (Strand Two) constitutional dimension • The British-Irish Agreement accompanying the Belfast Agreement noted that the two governments wished: “… 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 (Strand Two) constitutional dimension • The Belfast Agreement states that the North-South Ministerial Council should, inter alia: • “take decisions by agreement on policies and action at an all-island and cross-border basis to be implemented” by implementation bodies” (Strand Two, paragraph 6); • “consider the European Union dimension of relevant matters, including the implementation of EU policies and programmes and proposals under consideration in the EU framework” (Strand Two, paragraph 17); and • have arrangements made “to ensure that the views of the Council are taken into account and represented appropriately at relevant EU meetings” (Strand Two, paragraph 17).

The (Strand Two) constitutional dimension • There are six implementation bodies established under section 55 of the NIA by the North/South Co-operation (Implementation Bodies) (Northern Ireland) Order 1999. • These cover: • Waterways • Food Safety • Trade and Business Development • Special EU Programmes • Language • Acquaculture and Marine Matters • There is obviously a high degree of EU regulation in many of these subject areas. The Special EU Programmes Body may simply become redundant after Brexit.

The (Strand Two) constitutional dimension The EU Council’s Guidelines for Brexit Negotiations (April 2017) state: “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 this context, the Union should also recognise existing bilateral agreements and arrangements between the United Kingdom and Ireland which are compatible with EU law” (paragraph 11)

The (Strand Two) constitutional dimension Michel Barnier’s comments to the press on Thursday, after the second round of negotiation meetings opened: “ On Ireland, we had a first discussion on the impact of Brexit on two key subjects: the Good Friday Agreement and the Common Travel Area. We agree that the important issue of the Good Friday Agreement, in all its dimensions, requires more detailed discussions. In particular, more work needs to be done to protect North-South cooperation between Ireland and Northern Ireland. Today, that cooperation is embedded in the common framework of EU law and EU policies. We need to better understand how the UK intends on ensuring the continuation of this cooperation after Brexit.”

The border issue The EU Council’s Guidelines for Brexit Negotiations (April 2017) state: “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.” (paragraph 11)

The border issue • Much depends upon whether the UK remains within the Single Market or Customs Union (each of which looks unlikely); or whether some ‘special status’ can be found for Northern Ireland, which the European Parliament has recently rejected • Tension remains between the two goals mentioned in the Council’s Negotiating Guidelines: “avoiding a hard border”versus“respecting the integrity of the Union legal order” • Whilst the Secretary of State has indicated a desire for a “frictionless” border, Michel Barnier has emphasised that “frictionless” trade is not possible outside the customs union • Although the EU recognises that “flexible and imaginative solutions will be required”, no-one yet knows precisely what these might be

North-South co-operation generally Other potentially difficult issues, post-Brexit, in relation to North-South co-operation include: • The Single Electricity Market (and operation of the SEM Committee) • Cooperation between the Police Service of Northern Ireland and An Garda Siochana (which again, unusually, is an element of international relations which is a transferred and therefore devolved matter: see NIA, Sch 2, para 3(aa)). What will happen to the European arrest warrant? • Whether EU funding for border, peace and infrastructure projects will continue (this is where some of the £1bn funding from the Tory/DUP deal now appears to be directed)

Thanks for listening

Brexit and Devolution: A Legal Perspective from Northern Ireland