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Imposing a ‘backstop’ on Northern Ireland will infringe the human rights of its citizens.

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Written by Robert Tombs

The arguments contained in this article have been read and fully endorsed by Rt Hon Sir Richard Aikens, former member of the Court of Appeal, and former Vice-President of the Consultative Council of European Judges

The EU’s proposals for Northern Ireland violate the rights of citizens in that Province, as defined in the European Convention on Human Rights: namely the right to vote. In democracies, where there is the power to legislate for a population, that population must have the right to vote.  This is not only a basic democratic right, it is a human right specifically guaranteed by the Convention, of which the United Kingdom is a signatory. Legislation giving effect to such a denial would be open to successful challenge in the courts. 

In the proposed Northern Irish arrangements, Northern Ireland is likely to be in the Customs Union, much of the Single Market for Goods, and subject to other conditions considered by the EU to be necessary for north-south cooperation, such as regulations on state aid. To judge by recent demands, the Common Fisheries Policy may be added to the EU’s demands made in the name of keeping the North-South border unpoliced. There will be a considerable EU legislative presence, but Northern Ireland will be unrepresented in the European Parliament and in the Council of Ministers by a government it elects. The backstop itself might be circumvented for a time by giving the EU these powers (and more) over the entire United Kingdom. However, the point of the backstop is that in all circumstances – unless the EU agrees an alternative, which appears unlikely – the EU will have significant power in Northern Ireland.

This creates a human rights issue. Voters have a human right to participate in legislative decisions governing them. This right was recognised in respect of EU legislation in the European Court of Human Rights decision of Matthews v United Kingdom (1999) 28 EHRR 361, which held that Gibraltar could not be subject to a large part of European Union legislation without a right to vote in the European Parliament.

The Matthews Case concerned not the rights of states or territories, but those of their citizens. Article 3 of Protocol 1 to the European Convention guarantees the right to vote in legislative elections. Gibraltar is subject to EU law on such matters as free movement of persons, services, capital, health, the environment and consumer protection. The European Court of Human Rights ruled that, if the EU has significant legislative power, those subject to that power must have a vote, as the people of Gibraltar now do in consequence of the judgment. Given the casual approach shown by many to the democratic implications of “rule-taker not rule-maker” solutions to Brexit, the Matthews Case is important in taking such issues away from international relations, and translating them into the more powerful terms of human rights, which the EU claims to champion.

Northern Ireland’s position as a rule-taker will be more anti-democratic than that created for the citizens of Norway, Iceland and Liechtenstein under the EEA Agreement. Those countries agreed to join the EEA, may leave the EEA, and have veto rights over any EU rule that they consider unacceptably harmful. In contrast, Northern Ireland’s consent is not sought, it will not be allowed to renounce the backstop under any circumstances, and it will have no rights of veto. As we recently saw, the idea of Northern Ireland having any sort of say in how the EU exercises its sovereignty over much of the Province’s economic governance was treated with contempt by the EU and the Republic of Ireland.

Proportionality

Under the Matthews decision of the European Court of Human Rights, denial of the right to vote must be specifically justified. Even to deny convicted prisoners the right to vote requires cogent justification. The same must surely apply to Northern Irish voters. A legal challenge in the British Courts or at Strasbourg to such an unjustified denial must succeed, and for the following reasons.

To justify the EU’s assumption of legislative and executive jurisdiction over a non-voting territory, several conditions are required to meet the European Convention. Firstly, the state of affairs must be Northern Ireland’s choice. It is not for the EU and the United Kingdom to trade the Convention rights of the citizens of Northern Ireland for mutual convenience – or under economic duress. Secondly, Northern Ireland must be entitled to remove itself from the position in which it will be placed. Thirdly, the EU must have no more jurisdiction than is necessary to meet shared aims. The EU must therefore consider in good faith whether there are solutions which will be less restrictive of Northern Ireland’s voting rights. In other words, the EU must negotiate: it must consider alternatives and not just dismiss them out of hand as “magical thinking”. Fourthly, the EU must enfranchise Northern Ireland as far as is possible.

At present there is no sign of democratic consultation with the people of Northern Ireland on the diminution of their Convention right to vote. There is no sign of the EU being willing to negotiate alternative solutions – other than making the reduction of citizens’ voting rights a general UK problem and not just a Northern Ireland problem. The EU certainly has not considered whether it is asking for a disproportionate sacrifice for a limited gain. Its attitude appears to be that as Brexit was not created by the EU, its negotiators need not even address this problem. If the UK cannot design a solution that deals with all their issues entirely, then the EU need not worry about the onerousness of its own demands. Under the EU proposals, Northern Ireland must take the consequences of whatever the EU decides to do, with no remedy in any election or through constitutional change if it goes badly wrong. Under the backstop, Northern Ireland would be bound simply to accept the resulting economic damage. 

Conclusion

The EU’s proposals as they have so far appeared hugely diminish the voting rights of the citizens of Northern Ireland. There is no attempt to address whether this prima facie violation of Article 3 of Protocol 1 of the Convention is proportionate. It is ironic, given how far the EU proclaims its own democratic values, and given how far many of its staunchest supporters in the United Kingdom proclaim themselves keen supporters of the European Convention, that there has been a total disregard of the Convention’s guarantee of the voting rights of Northern Irish citizens.  Expediency for the EU and rest of United Kingdom cannot justify a backstop that permanently disenfranchises Northern Irish voters.  The British Courts should be asked to declare any legislation attempting to do this to be incompatible with the Convention. 

However, there is perhaps one clarification that needs to be offered.  It is not quite true to say that the Northern Irish will lack any constitutional remedy to this position created at the behest of the Irish Republic and the EU.  Northern Ireland could be readmitted to the democratic world.  It could do this by unification with the South.  After all, an obvious consequence of the backstop is that Northern Ireland will look to Dublin to represent its interests in Brussels.  Despite all the protests, it can hardly have passed the notice of Irish nationalists on both sides of the border that the backstop creates a democratic abomination for which reunification is the only answer – even if that creates a new and even more dangerous situation.

  1. Such an involvement need not include the Assembly’s “Petition of Concern” procedure, which allows a minority of Assembly members a veto providing they represent a majority of Unionist or Nationalist members, it could be by an ordinary majority. If the EU’s concern was to prevent a DUP veto on all EU measures, then there was a perfectly democratic way around that issue. The EU preferred to reject a role for Northern Irish democracy as a matter of principle.
  2. It is true that Sinn Fein, SDLP, Greens and Alliance strongly support the backstop (Guardian, Blog, 12 November 2018, 17:15, https://www.theguardian.com/politics/blog/live/2018/nov/12/brexit-may-cabinet-labour-starmer-contradicts-corbyn-and-says-brexit-can-be-stopped-politics-live). Setting aside that many of those supporting these parties would be happy for nationalist reasons to move away from the United Kingdom, neither the pronouncements of party leaders nor any opinion polls are an actual democratic replacement for consent given periodically at the ballot box.

About the author

Robert Tombs