Supplementary written evidence – Professor Jonathan Tonge (DEV0005)
Submission to the House of Lords European Union committee from Professor Jonathan Tonge, Department of Politics, University of Liverpool, 25 February 2017.
Note: This submission follows a request from the House of Lords EU Committee for more details regarding the status of the Good Friday Agreement following Brexit. The request was made during the oral evidence hearing attended by the author on 21 February 2017.
1.1 The Good Friday Agreement was concluded at Stormont, Belfast, on Good Friday 1998. It is also referred to as the Belfast Agreement, the Northern Ireland Agreement, or simply The Agreement.
1.2 The Good Friday Agreement comprises two treaties: a Multi-Party Agreement involving most of the political parties in Northern Ireland and the British-Irish Agreement, the accord between the governments of the UK and Ireland.
1.3 In Article 2 of the British-Irish Agreement, the two governments ‘affirm their solemn commitment to support, and where appropriate implement, the provisions of the Multi-Party Agreement’. The Article goes on to pledge the establishment of a North/South Ministerial Council and the ‘implementation bodies referred to in paragraph 9 (ii) of the section entitled “Strand Two” of the Multi-Party Agreement’. Strand Two is the all-island dimension of the Multi-Party Agreement.
1.4 The British-Irish Agreement to uphold the Multi-Party Agreement is a binding bilateral international legal treaty between the UK and Irish governments, registered at the United Nations.
2.1 The Good Friday Agreement assumes continuing EU membership for both the UK and Ireland but binds neither explicitly to maintaining that membership.
2.2 The High Court in Belfast ruled in October 2016 that there was nothing in the Good Friday Agreement to prevent the triggering of Article 50, the formal EU withdrawal process.
2.3 That High Court verdict declared that it would be an over-statement to suggest that EU membership was a constitutional bulwark central to the Good Friday Agreement, which would be breached by notification of Article 50 beginning the Brexit process. This, the Court asserted, would be to ‘elevate this issue [of EU membership] over and beyond its true contextual position’.
2.4 In its January 2017 verdict, the UK Supreme Court upheld the earlier position of the High Court in Belfast that the principle of consent for constitutional change contained in the Good Friday Agreement referred to whether Northern Ireland remained in the UK or unified with the rest of Ireland. The Agreement was not referring to EU membership or withdrawal.
2.5 The Good Friday Agreement confirms (Constitutional Issues, para vi.) the right of Northern Ireland’s citizens to hold British and Irish citizenship (and thus, by virtue of the latter, continuing EU citizenship) and that this ‘would not be affected by any future change in the status of Northern Ireland’.
2.6 Strand One of the Good Friday Agreement pledges close cooperation between the UK and Ireland as ‘partners in the European Union’, whilst Strand Three suggests EU issues as a possible discussion topic for the British-Irish Council created under its auspices. It is Strand Two of the Good Friday Agreement where references to the EU are more significant. This section assumes continuing joint UK-Irish membership of the EU and this shared belonging forms part of the background to institutional arrangements.
3.1 Strand Two of the Good Friday Agreement pledges that the North-South Ministerial Council, designed to promote and oversee all-island cooperation, will ‘consider the European Union dimension of relevant matters, including the implementation of EU policies and programmes and proposals under consideration in the EU framework’ (para. 17).
3.2 The same paragraph also requires ‘arrangements to be made to ensure that the views of the [North-South Ministerial] Council are taken into account and represented appropriately at relevant EU meetings’.
3.3 The Annex to Strand Two suggests areas for North-South cooperation and implementation which ‘may include’ (item 8) ‘Relevant EU programmes such as SPPR, INTERREG, Leader II and their successors’.
3.4 By far the most significant of the North-South bodies is the Special European Union Programmes Body (SEUPB), given how it has implemented the EU Programme for Peace and Reconciliation in Northern Ireland. Those four peace programmes have provided 2.3 billion euros of funding.
3.5 The UK Treasury has pledged to underwrite the remaining EU Peace IV and INTERREG programme money, to be paid up to 2020, in the event of prior EU withdrawal.
4. Brexit and changes to the Good Friday Agreement
4.1 Brexit may require deletion and/or revision of the references to the EU within the 1998 Good Friday Agreement, Northern Ireland’s peace deal.
4.2 If one of the signatories to the deal is no longer part of the EU, it is unclear how the required ‘implementation of EU policies and programmes and proposals under consideration in the EU framework’, as outlined in para. 17 of Strand Two, can continue.
4.3 References to ‘relevant EU programmes’ in the Annex may also require deletion as they may no longer apply.
4.4 It is also a moot point whether the ‘arrangements to be made to ensure that the views of the [North-South Ministerial] Council are taken into account and represented appropriately at relevant EU meetings’ in para. 17 could be deemed adequate if only one party to the Agreement, the Irish Government, can provide such representation.
4.5 The UK’s obligations in international law, via its commitment in the British-Irish Agreement to uphold the Good Friday Agreement, are owed to Ireland. A breach is also a breaking of the commitment to the people of Northern Ireland to uphold the arrangements contained in the Good Friday Agreement.
4.6 Article 27 of the Vienna Convention on the Law of Treaties declares that states cannot invoke domestic law – in this case the impact of a Brexit bill - as a basis for failure to undertake the obligations of a treaty.
4.7 By far the most probable scenario is that the continuing cooperative bilateralism between the UK and Irish governments will allow the necessary rewriting and deletions required of Strand Two of the Good Friday Agreement.
4.8 The Irish government would not challenge the UK. In any case, the International Court of Justice cannot hear any dispute between Ireland and the UK in relation to Northern Ireland. The UK’s exclusion in terms of permitting International Court of Justice rulings is in respect of any dispute with a country which is or has been a member of the Commonwealth. Citizens cannot bring cases.
4.9 The UK Government’s White Paper, ‘The United Kingdom’s exit from and new partnership with the European Union’ pledges ‘continued adherence to the constitutional framework, rights and institutions provided for in the Belfast Agreement’ (Annex B, para.5).
4.10 The White Paper also states that the government ‘remain fully committed to the Belfast Agreement and its successors’. The use of the plural ‘successors’ is curious. The 2006 St Andrews Agreement modified the Belfast Agreement and might possibly be considered a ‘successor’ deal but there have been no others. It might be concluded that the post-Brexit revisions to the Good Friday Agreement will form a ‘successor’ deal.
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