Publication resulting from the UACES 2017 PhD and ECR Conference
The UK’s withdrawal from the European Union is bound to pose unique challenges for Northern Ireland, writes Clare Rice. Drawing on her research on anti-discrimination law in the region, she outlines the potential impact on the legal framework for equality and cross-community relations.
The potential impact of ‘Brexit’ has been widely debated since the historic referendum of 23rd June 2016, not least in Northern Ireland. However, the challenges ‘Brexit’ will present there are different to those that will be faced elsewhere in the UK. From the perspective of anti-discrimination law, this piece considers what some of these key challenges might be, given the contextual specificities of the region.
By way of summary, Northern Ireland is a devolved region of the United Kingdom (UK). While this in itself does not make it unique in the UK, the way in which its institutions are arranged does. They are arranged according to the principles of consociationalism, an outcome of deep-seated divisions and protracted conflict in the region.
The key protagonists to this conflict, the Protestant/unionist and Catholic/nationalist communities, are the groupings around which these arrangements are designed. The Good Friday (Belfast) Agreement 1998 (GFA), which gave rise to this power-sharing architecture in Northern Ireland, was a pivotal point in the region’s peace process which is still on-going today.
It is necessary to give this brief overview of the Northern Irish situation. This division has influenced the shape and somewhat nuanced conception of equality in the region, cast first and foremost in terms of the conflicting groupings. For historical, conflict-related reasons, equality from a ‘consociational perspective’ is a relative concept between the communities in Northern Ireland; as a vital underpinning to the peace process, equality between these two groupings must be ensured.
When approached from a legal perspective (if we assume it is possible to disentangle a ‘legal perspective’ on equality from one derived from political necessity as outlined above) it is clear that equality in legal terms is a much broader concept – while still inclusive of community-oriented equality, the legal equality framework in Northern Ireland extends far beyond this parameter.
European Union (EU) law is only one source of anti-discrimination law in Northern Ireland. It is incorporated into law in Westminster. However, much of the competence for creating anti-discrimination law in Northern Ireland rests at Stormont. It, too, is directly influenced by EU law, seen, for example, in employment legislation where discrimination must be prohibited on at least the same grounds as established in EU law. A noteworthy exception is the presence of a 50/50 recruitment policy for Police Service of Northern Ireland (PSNI) officers in the years following the GFA; this was necessary to legitimate the body across the communities.
So, what impact will ‘Brexit’ have on all of this? A consideration of the GFA and the Northern Ireland Act 1998 is a good place to start:
Firstly, the Act states that legislation made in Northern Ireland must be compatible with EU law. Secondly, those rights afforded to Northern Irish citizens under EU law as a result of dual-citizenship – a key feature of the GFA – are placed under threat by the UK exiting the EU. Furthermore, ‘Brexit’ arguably brings the danger of incurring amendment to the Act, which enshrines in law the hard-fought GFA peace accord. If badly handled, this could entail serious consequences, both politically and socially, in Northern Ireland.
A further point is that the Great Repeal Bill, if passed into law, will serve to reinforce existing EU law at first, but a process of unpicking this body of law may follow. For example, the UK Supreme Court will be the final authority, since it will not be possible to recourse to the European Court of Justice (ECJ), which has in the past been an effective way of advancing anti-discrimination law in Northern Ireland. With time, this could result in divergences between UK and EU anti-discrimination law.
The prevalence of identity in considering the Northern Irish case rises again here. For Northern Ireland, which will share a land border with the EU, a divergence in equality law would be most visible to citizens there compared to elsewhere in the UK. It, alongside any uncertainty in the discourse around the dual-national status of Northern Irish citizens (for instance), could ultimately contribute to further polarising the extremes within Northern Ireland. The divisive impact of ‘Brexit’ is already being witnessed in Northern Ireland, most clearly seen in the 2017 Assembly and Westminster election results. It would be remiss to rule out the damage such divergences could make to the peace process overall.
On the other hand, ‘Brexit’ may present an opportunity for Northern Ireland to become more creative with its anti-discrimination law. As most equality law is already shaped in Stormont, approaches could be taken which ensure that Northern Irish anti-discrimination law remains comparable with that in the Republic of Ireland.
It also, potentially, provides greater space for Northern Ireland’s specific anti-discrimination legislative needs to be met innovatively, as its post-conflict society continues to develop. This is particularly pertinent given the potential for increased tensions between the two main communities post-Brexit. To this end, a return to discussion on a Bill of Rights for Northern Ireland might well be prudent.
This piece by no means attempts to present a fulsome breakdown of all the potential outcomes of ‘Brexit’ in Northern Ireland. It aims to highlight the complexity of the legal framework for equality in the region, and provoke thought on some of the key issues that ‘Brexit’ raises in relation to this.
Only time will tell how this develops, but what is certain is that Northern Ireland is heading into a period of great upheaval which could present very real difficulties for the peace process. This in turn will require innovative thinking in many areas, not least in the equality law framework, if it is to remain robust and capable of adequately addressing some tensions that ‘Brexit’ could present for cross-community relations in the region.
- This article was written following the author’s presentation at the UACES Graduate Forum Conference in July 2017.
- Please note that this article represents the views of the author(s) and not those of the UACES Student Forum or UACES.
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Clare Rice is a PhD Candidate and Teaching Assistant at Queen’s University Belfast School of Law. Her research interests include Northern Ireland, Belgium, consociationalism, constitutional law, identity politics, equality law, EU law and employment.