Brexit and Your Rights webinar

10 Dec 2020 Déarbhla Sloan    Last updated: 10 Dec 2020

With the deadline of 31st December just around the corner, our recent webinar “Brexit and Your Rights” examined how the rights of people living in Northern Ireland could be impacted by the exit of the UK.

Les Allamby, Chief Commissioner with the Northern Ireland Human Rights Commission started the webinar by providing an informative and comprehensive overview of the impact Brexit will have of the rights of people living in Northern Ireland as well as the rights, safeguards and equality of opportunity in the Ireland/ Northern Ireland protocol. Speaking about the role of NIHRC, Les explained that they had been working hard with other organisation across all sectors to ensure human rights are protected following the UKs decision to leave the UK. The two particular collaborative working systems that the Commission have been involved in since the decision to leave the EU was taken, the Joint Committee which comprises of NIHRC and The Irish Human Rights Commission and the Dedicated Mechanism which is the Joint Committee in partnership with The Equality Commission for Northern Ireland, have been pivotal in championing human rights and negotiating for a post Brexit Northern Ireland.

The Joint Committee met with the EU, the Irish Government and the UK Government and provided information based on three key ways in which Northern Ireland is different to other parts of the UK and should be taken into consideration during negotiations:

  1. It is the only part of the UK that has a land border with an EU member state, which in turn creates all kinds of practical issues, specifically around movement of people, use of services and movement of goods.
  2. It is a post-conflict society.
  3. Human Rights have long been a contested space politically and publicly, with specific issues still to be addressed by the devolved government.

The committee researched several areas of contention including cross border justice, data sharing and the common travel area and possible impact on healthcare, social security, and education, noting how many of these services have been built over the years through memorandums of understanding and informal agreements. The committee also provided a citizenship and legal analysis on how to resolve the question of identity.

The presentation also discussed the dedicated mechanism created within the Ireland/Northern Ireland protocol and effectively provides powers to ECNI and NIHRC to monitor, advise, and report on the implementation of the UK Government’s commitment not to reduce equality and human rights in Northern Ireland.

Les highlighted that although rights under EU law are not going to disappear come January 1st 2021, the supremacy of EU law over domestic law will. This in turn provides a climate in which the UK Government can unpick EU law already implemented in the UK when they are provided with the opportunity to do so.

Immigration project co-ordinator at the Committee on the Administration of Justice (CAJ), and Chair of the Law Society of Northern Ireland’s Immigration Practitioners’ Group, Úna Boyd conducted the second session of the webinar providing a presentation looking at Brexit and the immigration regime in Northern Ireland. Setting the context for the presentation, Úna demonstrated that Northern Ireland is unique compared to the other devolved nations in the UK in two ways. Firstly, citizens born in Northern Ireland have the right to claim to be Irish, British or both, through the mechanisms laid out within the Good Friday Agreement; and Northern Ireland is also the only part of the UK that has a land border with an EU member state. The Committee of Administrative Justice have highlighted their concerns that there is going to be an increase in immigration controls and policies linked to creating a hostile environment, essentially moving the border into banks, GP surgeries, landlords’ offices and turning Northern Ireland into one big border area. Providing the narrative whereby, at present, there is an open border on the island of Ireland and the reality that people live, work and access services across the border on a daily basis, Úna demonstrated how the idea of a common travel area and rights related to this, will have a significant impact in Northern Ireland that simply aren’t even on the radar for the rest of the UK. Schemes that have come out of the immigration regime post-Brexit will have a unique impact in Northern Ireland, like the Frontier Workers Scheme.

Discussing the lack of flexibility of the ‘one size fits all’ approach to the changes in immigration legislation and policy, Úna highlighted that given the unique nature of Northern Irelands geographical position, these policies will most likely not work when implemented in Northern Ireland.

Brexit will be the biggest overhaul to the UK immigration system in decades. Discussing the Immigration Act 2020, which ended free movement in the UK, Úna discussed how the Act itself is relatively short and does not provide the necessary detail of changes. Rather a Statement of changes to Immigration Rules (Nov 2020), sets these changes out within a 500+ page document with many of these changes effective from 1st December 2020. The presentation further detailed the EU settlement scheme and the introduction of the Frontier Workers Permits, for those already living in the UK pre-December 2020 and the changes that will be introduced to the points-based immigration system for those whishing to move to the UK post-December 2020.

With regards to the Frontier Workers Scheme, CAJ acknowledged a severe lack of awareness raising and provision of resources for NI advice organisations by the Home Office. A Joint Letter was issued to the Home Office raising those concerns.

Ending the presentation with a visual comparative table detailing the categories that will make up the new immigration system (13+) in comparison to the current system (2), Úna left the participants with the question, if the Windrush scandal can happen under the current system, then what wrongdoing could the new system result in?

Rory O’Connell, Professor of Human Rights and Constitutional Law at Ulster University, provided the final presentation in the examination of The Good Friday Agreement after Brexit and the UK Internal Market Bill. The UK has formally left the EU and is currently coming to the end of the transition period which had kept most rights and obligations untouched so far. Highlighting that this however will come to an end in a matter of weeks, Rory pointed to the increasing uncertainty on the detail of an agreement or even if there will be an agreement is further compounded by a degree of constructive ambiguity. Reflecting back on the Belfast/Good Friday Agreement, the presentation listed sovereignty, identity and borders as not only key themes within the 1998 agreement but also three areas that Brexit has now unsettled.  Reenergising debates on the border, Brexit has now called to the forefront the questions of hard borders, land borders and sea borders posing the question - Where do you put a border that has to exist if NI and the UK are no longer party to the single market and customs union within the EU? The Ireland/NI Protocol highlights this but it is evident that is and will be a difficult balancing act to get right. TJI recently produced information on the reenergised border debate and the constitutional future of Northern Ireland which can be accessed here.

Examining the concept of consent, Rory looked at the introduction of a consent mechanism to approve special arrangements. This mechanism, which requires a vote within the NI Assembly, is due to take place in 2024 and will address if article 5-10 of the protocol should continue or come to an end.

Discussing sovereignty, identity, borders and consent, the presentation explored The Internal Market Bill. Rory presented various arguments describing how the Bill had become shrouded in controversy including the NI Secretary of State’s claim that the Bill “does break international law in a very specific and limited way”. The publication of the Bill also led to the resignation of two high profile government legal officers and has also faced numerous defeats within the House of Lords. The Bill as introduced contained 11 wide ranging powers that enabled Ministers to legislate without getting an Act of Parliament passed, 7 of which have been recommended to be removed by the Delegate Powers committee in the House of Lords.

The presentation further highlighted the potential impact of the Bill on rights and equality, especially with regards to affecting the processes for Judicial Review and the Human Rights Act in the UK. Finishing the presentation, Rory questioned the UK Government’s openness to legal and political accountability through various actions including the introduction of ‘Peoples’ Prime Ministers Questions and the use of prorogation powers to shut down parliament.

 

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