Written evidence from Professor Christopher McCrudden (DEU 13)

Public Administration and Constitutional Affairs Committee

Devolution and Exiting the EU Inquiry Devolution and Exiting the EU Inquiry

In this brief submission, I would like to make six broad points.

First point: Northern Ireland is marginal to Westminster, and most at Westminster seem anxious not to allow not least because there are no MP’s representing Irish nationalist voters participating in debates, and the DUP position is now to support the Government and not generate public discussion (although that could change at any moment, of course). Given that the Westminster village seems to regard issues as important only when MPs are shouting about them, the current silence on Northern Ireland in debates on the Withdrawal Bill may mislead the uninformed to believe that Ireland-Northern Ireland is unimportant in that process. That is a mistake, not least because the inevitable UK government climb-down that will have come if there is to be an overall deal will come as a considerable shock.

Second point: collapsing Scotland, Wales and Northern Ireland into one, composite “devolution” issue is a mistake. The politics, the law, and the consequences of getting Brexit wrong are significantly different in the different nations. Northern Ireland requires a radically different response from that which may be acceptable in Scotland and Wales. This is so because the radical instability that Brexit brings in its train may lead to the collapse of the Good Friday Peace Agreement.[1] The EU, bizarrely, seems more aware of this that the rest of the UK. That is why the EU-27 required getting “sufficient progress” on Ireland as a condition for allowing the next stage of the Article 50 negotiations on future relations (in particular trade) to start. The implications for Ireland (North and South) are issues for the EU-27 in a way that is simply not the case as regards Scotland and Wales. At the moment, incidentally, I can see very little prospect that “sufficient progress” on Ireland will have been made by early December.

Third point: commentators and most UK Ministers seem to view the issue of Ireland-Northern Ireland as all about the Border, customs, and trade in goods. That is a mistake.  There are three major issues, not one.  What to do about Border trade is, of course, one of these. But there are two others. The second is how to secure the continuing operation of the Common Travel Area – essentially the question of free movement of peoples across these islands. It is easy to forget the importance of this because we have never, in living memory, been without it. The third has received little serious attention on this side of the Irish Sea, and is critical – how to preserve the Good Friday Peace Agreement within Northern Ireland, an agreement which assumes Ireland’s and the UK’s common membership of the EU.[2]

Fourth point: the devolution arrangements in Northern Ireland are governed not only by Westminster legislation but, significantly, by an international treaty between Ireland and the UK, concluded as part of the Good Friday Agreement negotiations. In international law, these arrangements cannot, in the main, be changed without the consent of Ireland. Ireland is clearly unwilling to agree to these changes. I return to the wider implications of this below.

Fifth point: discussing Brexit in London is a remarkably different experience from equivalent conversations in Berlin, Rome, Brussels, and Dublin. There seem to be two parallel universes in existence – a London perspective, and the perspective in other European capitals, and the differences seem to be widening rather than narrowing. This is particularly the case as regards Ireland-Northern Ireland. In London, the understanding is that these issues will not be a major stumbling block because the Commission and Ireland will not risk the collapse of the negotiations -- the UK is thought to have a strong negotiating hand to play, and can afford to reject every initiative so far proposed to break the Irish logjam. That is not my understanding from other European capitals, particularly Dublin, where the UK’s hand is perceived as weak (as well as chaotic) – and the UK is seen as really in no position to dictate terms. On Ireland-Northern Ireland, my guess is that the EU-27 is increasingly moving to a position in which it will tell the UK what it must do, essentially on a take-it or leave it basis. If I am correct, the Withdrawal Bill is, as far as Ireland-Northern Ireland is concerned, something of a side-show to the main action, which is increasingly in Brussels.

Sixth point: the decision of the Supreme Court on “devolution issues” in the Miller case. Daniel Halberstam and I have argued that the decision has exacerbated the UK’s Brexit negotiating difficulties in three important ways.[3]

(i) By considering the devolution arguments raised in Miller as an afterthought, the Supreme Court encouraged Parliament and the government do so as well. Having happily triggered Article 50 with the quick blessing of Parliament, the UK Government is now stumbling through the devolution issues without proper guidance, let alone warning, from the UK’s highest court. A potential constitutional crisis is in the offing, further contributing to the sense in Brussels of a British government staggering from crisis to crisis.

(ii) For the EU-27, Brexit in Northern Ireland involves not only domestic legal arrangements within the UK, but the (potential) breach of an existing international agreement between the UK and another EU Member State, Ireland. This has put the UK on the defensive, upping the Ireland/Northern Ireland issue to one of three issues on which “sufficient progress” must be made before future trade relationships can be negotiated.

(iii) Most broadly, the Court’s heavy emphasis on the doctrine that Parliament can quickly do whatever it wants, signals to the EU-27 that any supposedly binding international agreements the UK enters into can be easily ignored by a future Parliament, without any domestic judicial remedy. This, in turn, has given special urgency in Brussels to the need to find creative ways in the Withdrawal Treaty to limit the ability of the UK to renege on future commitments – hence the standoff over the future role of the Court of Justice of the European Union.

November 2017