How Designated Special Status for Northern Ireland within the EU can be delivered: Legal Opinion Caoilfhionn Gallagher QC and Katie O’Byrne 18 October 2017

Setting the scene: Northern Ireland, the UK and the EU Brexit: Thorny questions; unparalleled complexity Northern Ireland: A unique case; a range of risks Democratic tensions: 55.7% majority for Remain ‘Westminster’s blind spot’: No model; no workable proposals; no timeframe The need for “flexible and imaginative solutions” So first of all, what do we know about these proposals for repeal? This can be a very potted summary, because in fact we know very little. The Conservatives have long planned to scrap the Human Rights Act. Plans now, apparently, shelved until July Poor communication – we find out from the Daily Mail. There seems an inherent contradiction between Cameron’s anti-Europe human rights campaign and his pro-Europe anti-Brexit campaign. Not surprisingly, no consultation until after the 23 June referendum.

Setting the scene: Northern Ireland, the UK and the EU European Parliament Resolution of 3 October 2017 on the state of play of negotiations with the United Kingdom (2017/2847(RSP)), [9]: “in her speech of 22 September 2017 the Prime Minister of the United Kingdom excluded any physical infrastructure at the border, which presumes that the United Kingdom stays in the internal market and customs union or that Northern Ireland stays in some form in the internal market and customs union” So first of all, what do we know about these proposals for repeal? This can be a very potted summary, because in fact we know very little. The Conservatives have long planned to scrap the Human Rights Act. Plans now, apparently, shelved until July Poor communication – we find out from the Daily Mail. There seems an inherent contradiction between Cameron’s anti-Europe human rights campaign and his pro-Europe anti-Brexit campaign. Not surprisingly, no consultation until after the 23 June referendum.

Key features of the legal framework The Good Friday Agreement (Belfast Agreement 1998): Compatibility with Brexit? Devolution: The UK’s relationship with the EU and its termination is an excepted power, retained by Westminster (Northern Ireland Act 1998, Sched 2, item 3) Individual rights: The GFA; the Human Rights Act 1998; the Charter of Fundamental Rights; the Withdrawal Bill The Sewel Convention: Legislative consent? Memorandum of Understanding between the UK Government, Scottish Ministers, Welsh Ministers, and Northern Ireland Executive Committee (October 2013): “The United Kingdom Parliament retains authority to legislate on any issue, whether devolved or not. It is ultimately for Parliament to decide what use to make of that power. However, the UK Government will proceed in accordance with the convention that the UK Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature. The devolved administrations will be responsible for seeking such agreement as may be required for this purpose on an approach from the UK Government.”

Challenges for Northern Ireland Examples include: Geography: the land border; the Irish Sea Free movement of people and goods: 93,300 daily border crossings All-Island markets The rights of EU citizens North / South institutions Loss of EU funding

Key priorities for special status Jurisdiction of the CJEU Membership of the customs union and the single market, Maintenance of the four freedoms Avoidance of regulatory divergence Retention of citizens’ rights and political rights associated with EU membership Continued operation of the Common Travel Area Involvement in EU programmes Proportionate contribution to funding by the UK Government

The way forward Northern Ireland is a special case The EU has a history of being willing to agree to a range of differentiated packages with individual states or parts of states in order to reflect particular legal, political, historical, economic and / or geographical circumstances Any solution must address, first, the urgent need for special arrangements for Northern Ireland once the UK leaves the EU, and second, the need to safeguard the future possibility of a united Ireland

The way forward: Possible models ‘Reverse Cyprus’: the UK as a whole remaining in the single market and customs union with the option to suspend the operation of European law for part of the territory ‘Reverse Greenland’: Northern Ireland remaining in the single market and customs union separately from the rest of the UK Transitional / future arrangements to safeguard the position of Northern Ireland in the event of the future reunification or Ireland and to protect the Good Friday Agreement in the interim

Conclusions Workable solutions are urgently required EU bodies and the Irish Government should not wait, but should craft creative solutions The UK has a duty to provide clarity on its own policy and to engage constructively with other proposals.