As organisations and academics working for the protection and advancement of human rights in Northern Ireland and Ireland, there is much to welcome in the draft withdrawal agreement protocol, published by the European Commission last week. It translates the political agreement from December 2017 between the UK and the EU into legal form.
The recognition that the Belfast /Good Friday Agreement must be protected, “in all its parts”, and the explicit reference to its human rights and equality provisions are significant grounding principles. The draft protocol also states that North-South cooperation, and the guarantee to avoid a hard border, are “overarching requirements” for any future arrangements.
At the same time, the contradictions presented by the competing objectives of the parties to the Brexit process are becoming increasingly apparent.
It is now essential that guarantees achieved to date, in relation to human rights and the position of Northern Ireland, are clarified.
Outstanding, difficult issues must now be confronted and apparent contradictions resolved.
We welcome the restated commitment in the draft protocol to no diminution of rights in Northern Ireland and the explicit reference to protections against discrimination, as guaranteed by EU law, which must clearly include the EU Charter of Fundamental Rights and all EU-derived legislation that currently protects human rights in Northern Ireland.
We also need greater clarity about the manner of retention of those specific rights and how they will be enforced post-Brexit.
As we move into a more technical phase of the process, it is crucial that principles of human rights and equality inform all the emerging processes, standards, and institutions. This applies to any newly formulated arrangements for the Common Travel Area and freedom of movement across these islands.
These principles must also apply to the economic and social rights of citizens to access services. The stated purpose of the draft protocol is to create a “common regulatory area” of the island of Ireland. The debate has too often focused on regulations applying to goods; we need urgent clarity about what regulatory alignment means in relation to all those living on the island.
The draft protocol raises issues of respect for equal citizenship in Northern Ireland and on the island of Ireland. The draft protocol makes reference to the “rights, opportunities, and identity that come with citizenship of the Union, for the people of Northern Ireland who choose to assert their right to Irish citizenship”.
We believe in the equal rights of all the people of Northern Ireland. We believe that the rights currently available to all the people of Northern Ireland, as EU citizens, should continue to be available to them under any new agreement.
These rights should not be conditional upon a requirement to declare Irish citizenship, in line with the guarantees of equality under the Belfast/Good Friday Agreement. In the context of ensuring that human rights continue to be universal, in both principle and practice, this may prove to be divisive and unhelpful.
The protocol is largely concerned with setting out the details of a ‘backstop’ scenario — the situation that would prevail if no agreement was reached between the parties.
As a starting point, or baseline position, we must ensure that rights and equality remain at the centre of any alternative agreement that might now follow.
There remains a real risk that human rights and equality will be airbrushed out of this process.
Finally, we must plan for the complicated future that lies ahead. We must take this opportunity to strengthen the protection and promotion of human rights and equality on this island. This is the moment to renew our focus on a bill of rights for Northern Ireland and a charter of rights for the island, as ways to mitigate the messy rights and equality challenges that may emerge as a consequence of Brexit.
Human rights were given a central place in the peace process, and the agreement of April, 1998, precisely so that the all those who live in Northern Ireland, and on the island of Ireland, could move beyond historic divisions and build a future based on shared values.
This powerful idea is even more compelling in our present circumstances.
Brian Gormally, Director, Committee on the Administration of Justice
Liam Herrick, Executive Director, Irish Council for Civil Liberties
Eilis Barry, Chief Executive, The Free Legal Advice Centres
Kevin Hanratty, Director, Human Rights Consortium
Paddy Kelly, Director, Children’s Law Centre
Tanya Ward, Director, Children’s Rights Alliance
Michael Farrell, Solicitor
Dr. Suzanne Egan, Assistant Professor, Sutherland School of Law, Director, UCD Centre for Human Rights
Colin Harvey, Professor of Human Rights Law, Queen’s University Belfast, Head of School of Law, University of Limerick
Professor Siobhán Mullally, Established Professor of Human Rights Law and Director of the Irish Centre for Human Rights, NUI Galway
Rory O’Connell, Professor of Human Rights and Constitutional Law, Ulster University