The UK government will trigger Article 50 of the Lisbon Treaty on Wednesday. This will serve as a formal notification of the UK’s intent to withdraw from the European Union. It will set off two years – or more – of negotiations on the conditions of “Brexit” and future trade relations.
In “Miller’s case”, litigants disputed the claimed prerogative power of ministers to withdraw from the treaties binding the UK to the EU. The UK Supreme Court was persuaded that cabinet lacked the sole authority to trigger Brexit.
Instead, the court found, a vote in parliament was needed to authorise:
… a fundamental change in the constitutional arrangements of the United Kingdom.
The change will be fundamental because EU treaties are a source of domestic laws and individual legal rights for the UK and its citizens.
UK Prime Minister Theresa May received the necessary parliamentary confirmation on March 14.
Brexit and human rights in Ireland
In the frenzy of focus on Brexit, insufficient attention has been given to its implications in Ireland, north or south. Yet Brexit creates nothing less than a human rights crisis for the island of Ireland.
In the Brexit case, the UK Supreme Court was also asked to consider if the Northern Ireland Assembly or people of Northern Ireland ought to have a say on withdrawal from the EU. After all, 55.8% of the people there voted to “Remain” in the EU.
The court found that the Good Friday (or Belfast) Agreement – the basis for the peace process in Ireland – created no rights for Northern Ireland in relation to EU membership.
This ruling left no space for the collective human right of self-determination of the Irish people. This right is expressed in the Good Friday Agreement to permit continued union with Great Britain or a sovereign united Ireland, subject to the will of a majority of the people.
It would also remove the option for Northern Ireland residents to make rights claims before the European Court of Human Rights, and leave them subject to a severely weakened domestic human rights structure.
Brexit and borders
Meanwhile, the EU is demanding a resolution of the Irish border issue before it will begin exit negotiations.
The twin forces of EU-mandated free movement of people between member states, and the peace process, have done away with the “hard” border between the Irish jurisdictions.
The freer flow of people and goods across the now-invisible border has been an essential factor in maintaining peace post-agreement.
However, May continues to chart a course towards a “hard” Brexit. This approach emphasises Britain’s separation from the EU, particularly by tightening restrictions on immigration into the UK. The logical outcome is the restoration of some form of border control between the Irish jurisdictions.
Brexit and peace
These are not insignificant issues. Both former Irish taoiseach Bertie Ahern and former British secretary of state for Northern Ireland Peter Hain have warned that Brexit poses a risk to peace itself in Ireland.
The perpetually tenuous state of the devolved government in Belfast has been especially clear in recent months.
In January, Sinn Féin Deputy First Minister Martin McGuinness resigned from the Northern Ireland Assembly. He cited the failure of the Democratic Unionist Party (DUP) to tackle a scandal of massive over-spending of public funds on a poorly designed energy scheme.
McGuinness’ resignation triggered a snap election in Northern Ireland, held on March 2. For the first time, British unionists lost their overall majority in the assembly.
Irish republican party Sinn Féin gained significant ground and claimed a mandate for its demand that Northern Ireland have special status in the EU after Brexit.
Following the election, newly elected members of the assembly had three weeks to form a power-sharing coalition. They did not reach consensus in that time, leaving the British government with the options of offering more time for talks, reimposing direct rule from Westminster, or calling new elections.
Rights issues are important in the current stalemate. Sinn Féin have said that the DUP is intransigent in refusing to honour long-standing rights claims, including in relation to a Bill of Rights for Northern Ireland, an Irish Language Act, and equal marriage.
The British government has failed to attend to its obligations, arising from the Good Friday Agreement, to facilitate truth and reconciliation processes. This failure is evident in the persistent refusal to conduct proper inquiries into killings involving British state forces during the conflict in Ireland.
McGuinness died on March 21. A former IRA commander, McGuinness eventually took a pivotal role in the long and tortured process of peace negotiations. He became a central figure in the shift of mainstream Irish republicanism from militant action to political activism.
Former US president Bill Clinton eulogised McGuinness, calling on Irish and British leaders and people to “finish the work there is to be done” for lasting peace in Ireland:
The world in every period of insecurity faces a new wave of tribalism … Believe me; when the people who made this peace did it, every single one of them decided to take a flying leap into the unknown against their better judgement.
It is hard to escape a conclusion that Britain has lost sight of the work that peace in Ireland has taken and will take. Instead, in withdrawing from the EU, the UK is re-establishing its stake in the constitutional future of the island of Ireland.
This is contrary to both the conditions of the peace accord and the rights of the Irish people, north and south.