1. Introduction
1. The Agreement on the withdrawal
of the United Kingdom from the European Union,
which entered into force on 31
January 2020, acknowledges the need “to establish durable arrangements
addressing the very specific situations relating to Ireland/Northern
Ireland”. The appended Protocol on Ireland/Northern Ireland (“Protocol”)
provides that Northern Ireland shall continue to benefit from the
European single market, while remaining part of the customs territory
of the United Kingdom.
2. In September 2020, draft legislation in the United Kingdom,
entitled the Internal Market Bill,
called certain provisions of the
Protocol into question and, according to the Secretary of State
for Northern Ireland, broke international law “in a very specific
and limited way”.
This controversial bill prompted
a motion for a resolution
which was later referred to the
Committee on Political Affairs and Democracy for report.
3. Although these contentious provisions were initially removed,
the United Kingdom recently deposited another similar bill, forcing
the European Union to launch infringement proceedings for breaking
international law.
Regardless, the Parliamentary
Assembly cannot ignore the events that have occurred since the Protocol entered
into force on 1 January 2021. More than twenty years on from the
Good Friday Agreement, Brexit is a weight placed on the scales that
risks upsetting a delicate balance. It lays bare deep-rooted tensions
that have not healed over time in Northern Irish society.
4. The Assembly has had occasion to address the situation in
Northern Ireland in the past, in its Resolution 859 (1986), which
was adopted following the signing of the Hillsborough Agreement,
and subsequently in its Resolution 1163 (1998) in the wake of the
Good Friday Agreement. Lastly, Resolution 1389 (2004) stated that the
Council of Europe and its Assembly had a moral obligation to do
everything in their power to help advance the peace process.
5. Although it does not fall within my remit as rapporteur to
retell the history of the conflict in Northern Ireland, I would
nonetheless like my report to follow on from the work done by my
predecessors and not merely analyse the situation based on the Withdrawal
Agreement alone. To do the latter would be to exclude part of a
reality whose ramifications are far more complex and must be assessed
on the basis of the implementation of the Good Friday Agreement.
6. In line with the committee’s broad mandate, I would like my
report to support the efforts of reconciliation made since the Good
Friday Agreement and examine the way the existing institutions operate
in practice. The impact of Brexit on this equation must be understood
in terms of not only political and legal considerations, but also
socio-economic and human rights factors. My report also focuses
on certain themes that illustrate the difficulties in this territory
and highlight the need for strong political governance, such as
the fight against residential and school segregation, the promotion
of the Irish language in Northern Ireland, ways of addressing the
legacy of the Troubles, and the battle against paramilitarism.
7. In order to inform the development of the report, in December
2021 the Committee on Political Affairs and Democracy held a hearing
with the participation of Ms Alyson Kilpatrick, Chief Commissioner
of the Northern Ireland Human Rights Commission, and Mr Daithí Ó
Ceallaigh, Director General of the Institute of International and
European Affairs, Ireland, whom I wish to thank for their valuable
input. Further, I conducted fact-finding visits to Dublin, Belfast,
and London in February 2022, where I met with government officials
and members of parliament and civil society to get a sense of the
situation first-hand. I wish to thank the delegations of Ireland
and of the United Kingdom to the Assembly, as well as colleagues
from the Northern Ireland Assembly, for their invaluable support
in organising the visits and my meetings.
2. Brexit: a catalyst for deep-seated
tensions in Northern Irish society
8. The Good Friday Agreement described
the United Kingdom and Ireland as “partners in the European Union”.
Six years since voters in the United Kingdom chose to leave the
European Union, Brexit has called this delicate balance into question.
2.1. The
Protocol: an attempt to minimise Brexit’s adverse economic consequences
9. The Protocol annexed to the
Withdrawal Agreement aims to preserve all the components of the
Good Friday Agreement, respect the constitutional order of the United
Kingdom and maintain the integrity of the EU single market and customs
union. It provides that while forming part of British customs territory,
Northern Ireland enjoys special treatment in matters of trade, health,
tax and certain forms of State aid.
A
direct consequence of the entry into force of the Protocol, which,
it is important to recall, is itself a result of Brexit, is the
intensification of checks at the Irish Sea border.
10. A Trade and Cooperation Agreement, which was implemented on
a provisional basis from 1 January 2021 and entered into force on
1 May 2021, also states that trade between the United Kingdom and
the European Union will be free from tariffs and quotas provided
that products comply with appropriate rules of origin and introduces
export health checks and physical inspections.
11. Several Protocol-related incidents have dented trust between
the United Kingdom and the European Union. The desire expressed
by the European Commission in January 2021 – in the context of a
shortage of Covid-19 vaccine doses – to trigger Article 16(1) of
the Protocol
(under which either party can unilaterally take
appropriate safeguard measures), aroused general indignation. The
unilateral announcement in March 2021 by the Secretary of State
for Northern Ireland that the Scheme for Temporary Agri-food Movements
to Northern Ireland would be kept in force until 1 October 2021,
thereby delaying the full application
of the Protocol, spurred the European Union to commence infringement
proceedings against the United Kingdom.
12. In the second half of 2021, successive extensions
of “grace periods” for customs checks
and announcements made by the European Commission, including the
temporary staying of its infringement proceedings, calmed the situation
down and reduced the risk of a “sausage war”,
but despite this, the very UK Government
which had negotiated the Protocol continued to express concerns
about the arrangement.
13. These concerns came to the fore in the Command Paper of July
2021,
much of which was rejected by the European
Commission.
This document called for the revision
of large sections of the Protocol, including demanding the abolition
of customs formalities for goods destined solely for Northern Ireland
and challenging the authority of the Court of Justice of the European
Union over the application of the Protocol. In October 2021, in
a reconciliating effort, the European Commission proposed a package
that included reducing by 50% customs formalities on goods moving
from Great Britain to Northern Ireland and an 80% reduction in checks on
food, plant and animal health.
14. In this difficult context, it would have been important for
the political and technical discussions between the United Kingdom
and the European Union to result in a negotiated solution, in line
with the joint statement by EU Commission Vice-President Maroš Šefčovič
and UK Foreign Secretary Elizabeth Truss following the February
2022 Withdrawal Agreement Joint Committee meeting. Regrettably,
the tone in the spring of 2022 did not follow this constructive
spirit, with no tangible progress achieved in direct talks and Foreign
Secretary Truss telling the House of Commons in May 2022 that the
government intended to unilaterally make changes to the Protocol.
15. Following through on the Foreign Secretary’s indication, on
13 June 2022 the UK Government introduced the Northern Ireland Protocol
Bill to parliament, with the stated goal to “fix” parts of the Protocol
and “address practical problems” it had created, including with
regards to “burdensome customs processes, inflexible regulation,
tax and spend discrepancies, and democratic governance issues”.
16. A majority of members of the Northern Ireland Assembly wrote
a letter to Prime Minister Boris Johnson rejecting the bill, and
Irish Prime Minister Micheál Martin called it a “low point” which
was “very regrettable”.
Noting how the Protocol was the only
solution the two parties could find to protect the Good Friday Agreement while
addressing the challenges created by Brexit, European Commission
Vice-President Maroš Šefčovič expressed significant concern with
the bill, which disapplied core elements of the Protocol. The European Union
subsequently decided to launch two new infringement proceedings
against the UK Government for breaking international law and to
restart the infringement one it had put on hold in September 2021,
while also providing additional details on the October 2021 package
to facilitate the movement of goods between Great Britain and Northern
Ireland.
17. During my fact-finding visits to Ireland and Northern Ireland,
I heard from many interlocutors, including business representatives,
civil society organisations and government officials, that all that
is needed is a practical solution for goods set to stay in Northern
Ireland and coming from other parts of the United Kingdom. Otherwise,
the general population is not really worried about the Protocol,
and businesses are generally happy with, or at worst unaffected
by, what it could bring if the remaining practicalities are sorted.
18. While initially the new arrangements established by the Protocol
led to some problems with trade and supply chains between Northern
Ireland and Great Britain,
mainly due to additional paperwork,
economic trends are encouraging. Trade between Northern Ireland
and Ireland has increased notably since Brexit, with the value of
goods imported from Northern Ireland into Ireland rising by 153%
between 2019 and 2021, and exports increasing by 69%.
While
total trade volumes for the United Kingdom have been suppressed
since January 2021, also as a result of the Withdrawal, analysis
has suggested that Northern Ireland will be the UK regional economy
least impacted by Brexit, partially due to the Protocol.
2.2. Brexit:
a flashpoint of tensions between unionists and nationalists
19. Beyond the economic consequences,
Brexit’s repercussions have also heightened existing tensions. The
attempts to intimidate dockers in the ports of Larne and Belfast
in relation to the Protocol signalled the beginning of some violence
in the spring of 2021.
20. Starting on 29 March 2021, violent clashes on a scale not
seen for many years broke out across several cities and towns, concentrated
in areas where criminal gangs linked to loyalist paramilitaries
have significant influence. The violence, which mainly targeted
law enforcement officers and vehicles on the streets, left over 50
riot police officers injured.
21. The responsiveness and responsibility shown by party leaders
of all political hues, who issued a joint appeal for dialogue in
April 2021, restored calm. The visit made in May 2021 by the Prince
of Wales and the Duchess of Cornwall to County Armagh, a former
bastion of support for the Provisional IRA, was also seen as highly
symbolic.
No major disturbances
were reported during the Orange marching season and the celebrations
of 12 July in particular.
22. However, on the political stage, the resignation on 28 April
2021 of Ms Arlene Foster as leader of the Democratic Unionist Party
(DUP) and First Minister of Northern Ireland
was just the first in a series of destabilising
developments where Brexit loomed large. The current leader of the
DUP, Sir Jeffrey Donaldson, has taken a very firm political line
on the Protocol,
warning several times in the fall
of 2021 that his party would pull out of the governing coalition
if the Protocol was not substantially revised.
On 3 February 2022, First Minister
Paul Givan (DUP) announced his resignation, blaming the Protocol
for breaking the delicate balance created by the Good Friday and
St Andrews’ agreements.
This move paralysed the Northern Ireland Executive
just two years after the reopening of the institutions at Stormont.
23. Since the Northern Ireland Assembly elections on 5 May 2022,
which saw Sinn Féin and the DUP receive the most and second-most
seats respectively, the DUP has blocked the appointment of a Speaker
on two occasions to pressure the UK Government to take action on
the Protocol.
Without a Speaker, the Assembly
cannot fully function and the power-sharing executive cannot take
office.
24. While holding the Northern Ireland Executive hostage over
the Protocol was previously rebuked by other unionist leaders,
a joint
declaration of 28 September 2021 made clear that the four main unionist
parties are united in their staunch opposition to the Protocol
– this notwithstanding multiple
surveys which indicate that the Protocol is not a top priority among
people in Northern Ireland,
who largely favour inter-community consensus
for practical resolutions to outstanding EU-UK disagreements. This
is the case among unionists as well: little more than one in 10
unionists regarded the Protocol as the most important issue leading
up to the May 2022 Assembly election.
25. And yet, political actors I spoke to in Northern Ireland worried
that Brexit had contributed to an accepted wisdom that there will
not be an Executive after the May 2022 elections, something which
is unfortunately happening. This context of institutional uncertainty
is at least partly the result of the fact that the British Government
overpromised and underdelivered to unionists vis-à-vis the advantages
of Brexit, leading to the opposition to the Protocol by some parties
we see today.
26. Indeed, speaking with interlocutors in Northern Ireland, it
was hard to escape the sentiment that the UK Government had not
fully taken into account the very specific dynamics in this province
when considering the implications of Brexit. Discussions on the
withdrawal were framed around nationality and identity – themes which
have much stronger and divisive effects in Northern Ireland.
3. Preserving
peace and stability and strengthening human rights in Northern Ireland
27. The consequences of Brexit
have also underlined the urgent need for reforms in Northern Ireland
to preserve peace and stability and strengthen human rights. Full
implementation of the “New Decade, New Approach” deal of January
2020, which restored Northern Ireland’s institutions after a three-year
hiatus, is of paramount importance in this respect.
3.1. Ensuring
respect for human rights in post-Brexit Northern Ireland
28. In the aftermath of Brexit,
there is a confluence of three trends that could significantly affect
human rights in Northern Ireland and on the rest of the island:
the stall over the Northern Ireland Bill of Rights, the proposed revision
of the UK Human Rights Act, and the fragility of the Protocol’s
guarantor role.
3.1.1. Northern
Ireland Bill of Rights
29. As highlighted by the Chief
Commissioner of the Northern Ireland Human Rights Commission during
a December 2021 hearing of the Committee on Political Affairs and
Democracy, the adoption of a Bill of Rights remains a key unimplemented
part of the Good Friday Agreement. The Human Rights Commission delivered its
advice to the Secretary of State for Northern Ireland already in
December 2008, but the lack of political will has prevented any
progress. In Belfast, the
Ad Hoc Committee
on a Bill of Rights of the Northern Ireland Assembly
concluded
its work in December 2021 with a sobering report,
which noted how it
could not take any relevant decision or recommendation because the
Panel of Experts meant to assist them in their work was never appointed
by the Executive, due to opposition by the largest unionist party,
the DUP. This, in turn, has led the UK Government to confirm in
February 2022 that it will not move forward with legislation on
a Bill of Rights unless there is consensus, including between the
Northern Ireland parties, on what a Bill of Rights should include.
30. This stall does not help the people of Northern Ireland and
does not reflect the fact that there is broad consensus about the
need for a Bill of Rights. 80% of people polled by the
Ad
Hoc Committee said it would be important or very important
to have one,
and
four out of the five main political parties support it. Even unionist interlocutors
have expressed to me their bewilderment at the DUP’s opposition
to any progress on this, if for no other reason than demographic
trends, which indicate unionists may soon be a minority.
3.1.2. Proposed
revision of the UK Human Rights Act
31. In parallel to these Northern
Ireland-specific discussions, the UK Government launched a consultation in
December 2021 on a proposal to revise the 1998 Human Rights Act
and replace it with a Bill of Rights. Full protection of human rights
is paramount for the implementation of the Good Friday Agreement,
which explicitly requires “equivalence” between human rights protection
in both jurisdictions on the island of Ireland. Both Ireland and
the United Kingdom have thus incorporated the European Convention
on Human Rights (ETS No. 5) into domestic law through the European
Convention on Human Rights Act 2003 and the Human Rights Act 1998
respectively.
32. The effort to revise the Human Rights Act, presented as a
way to “restore common sense to the application of human rights
in the UK,” strengthen the role of the UK Supreme Court and of parliament,
and reinforce specific rights,
was met
with fierce opposition from civil society and rights groups, who
saw it as a misleading exercise to make the State less accountable,
weaken the jurisdiction of the European Court of Human Rights, and
thus undermine the Good Friday Agreement.
33. The Northern Ireland Human Rights Commission, for its part,
“robustly reject[ed] the proposal for reform and its purported premise,”
in particular the divisive framing of certain groups of rights holders
as less entitled than others. In recommending that the Human Rights
Act is retained, it also urged the UK Government to fully consider
the complexities and realities of devolution in the context of these
proposals, including the history of rights in Northern Ireland and
how any changes would affect implementation of the Good Friday Agreement.
34. These comments are all the more relevant given the role of
the Human Rights Commission, along with the Equality Commission,
as the “dedicated mechanism” set up in the Withdrawal Agreement
to oversee the UK Government’s commitment to protecting equality
and human rights in a post-Brexit Northern Ireland.
35. Notwithstanding these concerns, on 22 June 2022 the Ministry
of Justice introduced in Westminster a British Bill of Rights, which
follows the widely criticised approach outlined by the government
during the consultation. It would add hurdles for those seeking
redress in courts, strengthen specific rights over others, and challenge
the authority of the European Court of Human Rights. Human rights
watchdogs warned that the bill would significantly reduce rights
across the board and lead to a situation where certain types of
rights violations are deemed acceptable.
The bill would essentially limit
access to justice and would therefore be in breach of the Good Friday
Agreement’s requirement to have access to remedies for violations
of the European Convention on Human Rights. Of note, the bill was
introduced just days after the European Court of Human Rights issued
an interim measure blocking the deportation of asylum seekers from
the UK to Rwanda, a move criticised by numerous British Government
officials and which led some members of the Conservative Party to call
for the UK to pull out of the European Convention on Human Rights
– rhetoric eerily reminiscent of that which
led to Brexit.
36. During a current affairs debate in the Assembly in June 2022,
dozens of MPs from across the political spectrum and from a wide
range of countries denounced the introduction of the Bill as a departure
from the European Convention of Human Rights and as a dangerous
decision that could systematically undermine the legal protection
of individuals in the United Kingdom. Similarly, the Council of
Europe Commissioner for Human Rights expressed worry that the proposed
reforms could weaken human rights protection and undermine one of
the foundations of the Good Friday Agreement.
3.1.3. The
fragility of the Protocol’s guarantor role
37. A further critical piece of
the puzzle regarding human rights safeguards is the Protocol, of
which economic and trade impacts are well known, but which also
has an important human rights component. In Article 2, the UK Government
committed to ensuring that no diminution of rights, safeguards,
or equality of opportunity, as set out in the Good Friday Agreement,
results from its withdrawal from the European Union, and Article
3 relates to freedom of movement.
38. During my fact-finding visit, interlocutors regularly brought
up fears that current negotiations on the Protocol, the related
negative rhetoric by some political actors, and the UK Government’s
recent proposals on human rights reform, are jeopardizing these
important provisions. Immigration legislation currently being considered
in Westminster, which would require non-Irish EU citizens to obtain
approval before crossing from Ireland to Northern Ireland, has raised
more alarm bells.
There is concern that this legislation
would be an additional potential breach of the Protocol, especially
due to new requirements for Electronic Travel Authorisation, a pre-entry
clearance system, which would create a hard border on land for persons
resident in the south and travelling north.
39. The UK’s withdrawal from the European Union has cast a shadow
over important provisions of the Good Friday Agreement, specifically
relating to birthright and just and equal treatment of both communities.
Article 2 of the Protocol
currently stands as the guardian of certain rights, as well as of
important EU anti-discrimination commitments.
Nonetheless,
new EU human rights and equality directives – other than those which
amend or replace directives in Annex 1 to the Protocol – will automatically
apply only to part of the island of Ireland, potentially leading
to a significant misalignment north and south of the border.
Instead of living
in a shared human rights space, Northern Ireland will need to rely
on specific action in Westminster or Stormont to keep up with European
standards.
3.2. The
adoption of a law and a strategy to promote the Irish language in
Northern Ireland
40. The promotion of the Irish
language in Northern Ireland is an issue that has long been bound
up with a claim to identity, carries strong political overtones
and represents a core element of cultural expression.
41. The Good Friday Agreement played an important part in the
formal recognition of the Irish language in Northern Ireland. In
the St Andrews Agreement of 2006, the Government of the United Kingdom
pledged to introduce domestic legislation on the Irish language
and work with the Northern Ireland Executive to support and protect
its development.
42. Despite the many cross-community efforts made to promote the
teaching of Irish and incorporate it into school curricula in recent
years, the issue remains deeply divisive. A prominent feature of
the “New Decade, New Approach” deal was the proposal of official
status and legal protection for this language and the appointment
of a Commissioner with responsibility for recognising, supporting,
protecting and developing the Irish language in Northern Ireland.
43. However, it is regrettable that to date, more than 15 years
on from the 2006 Agreement, no legislation on the Irish language
has been passed. This issue resurfaced in June 2021 when a new Northern
Ireland Executive came in office, prompting the British Government
to make a political commitment that the Westminster Parliament would
pass a law in October 2021 if the Stormont Assembly had not done
so by then and appoint Commissioners in March 2022. In May 2022,
the UK Government introduced the Identity and Language (Northern
Ireland) Bill, which largely reflects draft legislation published
alongside the “New Decade, New Approach” deal.
44. Both the Committee of Ministers of the Council of Europe,
in relation to the Framework Convention for the Protection of National
Minorities (Resolution of 7 February 2018), and the Committee of
Experts of the European Charter for Regional or Minority Languages
(evaluation of 22 March 2021), have called on the United Kingdom
to adopt appropriate legislation protecting and promoting the Irish
language. In its latest mid-term evaluation (from March 2021), the
Committee of Experts further expressed concern that proposed amendments
to the Northern Ireland Act are limited in scope vis-à-vis a dedicated
Irish Language Act. The progress of the Identity and Language (Northern
Ireland) Bill through parliament will be important in this respect.
3.3. The
fragility of Northern Ireland’s institutional framework
45. The recurring threats of shutdowns
of Northern Ireland’s institutions, including the current deadlock, serve
as a reminder of the limitations of the power-sharing model established
by the Good Friday Agreement.
The Northern
Ireland Assembly has already been suspended five times since 1998,
most recently from 2017 to 2020, and has not yet been able to elect
a Speaker following the May 2022 elections, due to the DUP’s veto.
46. The model, which was originally designed to bring the two
communities closer together, has been misused over time and has
accentuated dividing lines, deepening sectarian rifts. It makes
it difficult to challenge political decisions without endangering
the operation of institutions. “Stormont could disappear forever”
if larger parties are allowed to blackmail the Executive’s ability
to function, a party leader warned during the February 2022 political
crisis when the First Minister resigned.
47. The fact that the 90 members of the Stormont Assembly must
define themselves in terms of community affiliation – as “unionists”,
“nationalists” or “other” – curbs their individual political freedom
and gives the group to which they belong greater veto power. A study
by The Guardian
of 871 motions and amendments debated since
2000 reveals that 51% (442) of them did not receive cross-community
support and only 32% were passed with at least one vote from a member
of the other community. Just 15% of the motions were passed by a unionist
and nationalist majority.
48. Previous abuse of the “petition of concern” procedure, which
requires a matter to be passed on a cross-community basis rather
than by simple majority,
has entrenched
these divisions and side-lined political groups classified as “other”,
hampering their efforts to establish themselves as an alternative
to the unionist/nationalist dichotomy in the political arena. This
procedure has not been used since the restoration of the Northern
Ireland Assembly in 2020, leading the UK Government to conclude
in January 2022 that no reform to the “petition of concern” was
necessary. Nonetheless, it is clear that the mere threat of the
procedure might sometimes be enough to block proposals.
49. Furthermore, while the appointment of the First Minister and
the deputy First Minister by the top two political parties, as well
as the arrangements for appointing ministers, guarantee a broader
representation in government, this setup precludes a more finalised
form of individual and/or collective responsibility by the Executive.
It also prevents the top two political
parties from opting out of government should they not want to enter
an agreement, as other parties have a right to do, thereby leading
to high risks of institutional impasse.
50. As I was able to ascertain directly while in Belfast, some
politicians do still see the value of a system based on the nationalist/unionist
designation. As one powerful interlocutor told me, Northern Ireland
is still at the point where it is better to guarantee inclusivity
at the cost of gridlock, where it is preferable to have checks and
balances rather than abuse. Others, however, note how the current
structures enhance divisions along increasingly irrelevant sectarian
designations, and allow one party to hold the institutions to ransom.
51. The United Kingdom Government recently took steps to limit
the instability of this system, by extending the period of time
between the resignation of a First or deputy First Minister and
the call for new Assembly elections, and by allowing ministers to
continue in their post in this period.
The Northern
Ireland (Ministers, Elections and Petitions of Concern) Act 2022
came into force on 8 February, but
was made to apply retroactively, therefore allowing the continuation
of some governance after First Minister Givan’s resignation on 3
February. While the new legislation prevents a complete collapse
of institutions as in the past, the impact of the lack of an Executive
remains severe: no new policy or budget can be agreed on, government
strategies on important topics such as gender equality and language
cannot be approved, and investments cannot move forward.
3.4. The
need to end residential and school segregation
52. Despite considerable budgetary
investments and political rhetoric in favour of religious mixing,
Northern Ireland’s population is still divided along sectarian lines.
Although the Northern Ireland Executive pledged in 2013 that peace
walls would be brought down by 2023 and described this measure as
a “decisive step forward” towards the integrated cohabitation of
communities,
the
fact is that more than 100 such barriers still exist today.
53. A majority of neighbourhoods are still segregated and mostly
inhabited by people who belong to the same community. Without clear
intervention by the authorities on several fronts – housing allocation
but also education and economic reforms – this phenomenon will continue
to grow, because clustering does not merely happen to communities;
people also actively choose to stay within their own communities
because of economic and social factors.
54. This intervention is all the more necessary because the gap
between the communities in terms of population growth is causing
tensions that impede residential mobility and are putting strain
on relations between neighbourhoods. The many urban boundaries (peace
walls, barriers, symbols of identity, etc.) limit access to public
services. While “shared neighbourhood” schemes are to be praised,
there are not enough of them.
55. This residential segregation is mirrored in classrooms. More
than nine in every 10 schoolchildren are educated in a single-faith
school, and in 85% of schools, fewer than 10% of pupils belong to
the other denomination.
In addition to integrated schools,
there is also a programme of shared education, where children from
different religious backgrounds come together in schools to participate
in classes and projects. Still, many children in Northern Ireland
do not meet peers from the other community until they are in university.
56. These statistics raise a more general question about the nature
of the education system, which perpetuates the historical separation
of Catholic and Protestant schoolchildren. Decisions about what
school a child will attend are based on parental choice. A recent
Ulster University research paper criticised the education system
for being “divided, splintered and overly expensive”,
while
other studies have drawn attention to the economic impact of segregation,
in particular due to the large amount of duplication (separate teacher
training colleges, separate education authorities, separate school
boards of governors, etc.). It has been estimated that over the
past decade, approximately £1 billion has been spent on bringing
young people into contact with each other in various cross-community
initiatives, and the cost of home-to-school transport is approximately
£81 million per year.
57. The “New Decade, New Approach” deal stated the need for a
“transformation” of the current education system, deeming it unsustainable.
A key commitment in the agreement was the establishment of an independent
review of the system, and in September 2021 the Northern Irish Minister
of Education announced the appointment of a panel of experts to
undertake such a review, expected to take a minimum of 18 months.
58. Since the 1980s, Northern Irish civil society has sought to
develop alternatives to single-faith education. Teachers and parents
have set up “integrated” schools to encourage social and religious
mixing. The first such school was opened in 1981 in South Belfast
(Lagan College). Although there are now 65 such schools,
which have the backing of parents
and receive financial support from the Education Authority, only
a tiny minority of children in Northern Ireland – 7% – attend them,
and groups of parents and non-profit
organisations are still the driving forces behind their creation.
59. In a bid to increase the number of integrated schools, the
Integrated Education Fund, one of the main organisations working
to end segregation, has launched a campaign called Integrate My
School,
which
has been relatively successful to date despite fierce political
and religious opposition. Both the DUP and the UUP voted against
a recent education bill designed to promote integrated education.
60. There is now increasing support for “shared” education, an
alternative system that implements joint teaching arrangements in
two schools of different faiths on a regular basis. Arrangements
of this kind are now in place in 76% of faith schools.
While shared education has undeniably
positive societal and cultural effects and can be seen as a pragmatic
response to the current divisions, civil society tends to support
more fundamental changes to education in Northern Ireland, with
a focus on integration.
61. When discussing segregation in Northern Ireland, it is important
not to overlook the social class component. Neighbourhoods are now
socially separated too – peace walls, for example, are mainly in
lower class areas – and this has a considerable impact on conflict
resolution. This applies also to the education sector, where the
grammar school selection exam at age 11 is as important as religion
in determining a pupil’s path, creating at a very early age a "system
of haves and have-nots.”
4. Healing
the wounds of the past in order to look to the future
62. Although the Good Friday Agreement
brought thirty years of war to an end, this peace is still fragile.
As well as improving the economic situation and increasing the number
of cross-community initiatives, the process of building a common
future and seeking a softer concept of identity must also involve
an institutional response to the legacy of the Troubles and an all-out
battle against the influence of paramilitary organisations.
4.1. Seeking
an institutional response to the legacy of the Troubles
63. While this report is focused
on the impact of Brexit, in May 2022 the UK government introduced
a bill on the legacy of the Troubles which will have a direct impact
on reconciliation and human rights on the island of Ireland. For
this reason, this theme cannot be overlooked when analysing the
context following the UK’s withdrawal from the European Union.
64. Even following the 1998 Good Friday Agreement, Northern Irish
society was left without much progress regarding the darkest chapters
of the conflict that had engulfed the island for decades prior.
In response to the failure to investigate the deaths and disappearances
of the Troubles, the Governments of Ireland and of the United Kingdom,
along with Northern Ireland’s political leaders, signed the Stormont
House Agreement in 2014, which set out a new framework and new institutions,
including an independent Historical Investigations Unit. This body
was to take forward investigations into outstanding Troubles-related
deaths through a victim-centred approach, while also meeting European
Convention on Human Rights Article 2 requirements.
65. In the “New Decade, New Approach” agreement of January 2020,
the UK Government committed itself to publishing and introducing,
within 100 days, legislation in parliament to implement the Stormont
House Agreement.
66. In an interim report of 21 October 2020, the Northern Ireland
Affairs Committee of the UK House of Commons expressed deep concern
over the lack of clarity in the government’s intentions since the
signing of the “New Decade, New Approach” agreement and called on
it to introduce legislation compatible with the six principles of
the Stormont House Agreement as soon as possible.
67. In an interim resolution adopted on 3 December 2020,
the Committee of Ministers
of the Council of Europe emphasised that the United Kingdom had
an obligation under Article 46 of the European Convention on Human
Rights to abide by judgments of the Court. It expressed deep concern
over the lack of detail given as to how the government’s proposals
for the winding-up of all historical investigations within five
years will work in practice and whether they are consistent with
the obligation under Article 2 of the Convention.
68. In the summer of 2021, the British Government published Command
Paper 498,
which
proposed a statute of limitations that amounted to a
de facto general and unconditional
amnesty ending all Troubles-related “judicial activity”. A study
by several transitional justice experts underlined that the proposed
plan went further than the amnesty declared by the former Chilean
dictator Augusto Pinochet.
69. This proposal was rejected by all Northern Ireland’s political
parties, the Irish Government, the opposition Labour Party at Westminster
and the Northern Ireland Human Rights Commission. Two UN Special Rapporteurs
voiced their grave concerns over this plan in a statement and urged
the authorities to “refrain from regressing on their international
human rights obligations through the establishment of a statute
of limitations for conflict related prosecutions and barring all
related investigations, inquests and civil claims”.
70. In a letter sent on 13 September 2021 to the Secretary of
State for Northern Ireland, the Council of Europe Commissioner for
Human Rights likewise expressed concerns in this regard.
In his reply,
the Secretary of State for Northern Ireland stated that the Command
Paper should be regarded as a process of engagement with all stakeholders
and not as a final position.
71. A more definite position seemed to have emerged on 17 May
2022, when the UK Government introduced the Northern Ireland Troubles
(Legacy and Reconciliation) Bill. The proposed law would set up
an Independent Commission for Reconciliation and Information Recovery
(ICRIR), which would conduct investigations based on requests from
families, the government, or other actors. The ICRIR, which is envisaged to
be operational for five years, will be able to grant immunity to
alleged perpetrators who, in the eyes of the Commission, co-operate
to shed light on the truth; those who do not co-operate would instead
remain liable to prosecution. The legislation would cause all ongoing
criminal investigations and many ongoing civil action to cease and
prevent future inquests, civil actions and criminal investigations
by the Police Service of Northern Ireland or the Police Ombudsman
related to the Troubles.
72. The Secretary of State for Northern Ireland argued that the
proposal supported information recovery and reconciliation and would
help society look forward. Noting that “the current system is failing,
delivering neither truth nor justice for the vast majority of families,”
he said that the ICRIR would give people a reason to come forward,
“something which at the moment doesn't exist.”
73. Victims’ groups, all political parties in Northern Ireland
and the UK Labour Party came out in strong opposition to the proposal,
as did the Irish Prime Minister and
the Irish opposition leader, who both framed it as a unilateral
departure from the Stormont House Agreement.
74. Intervening as a witness during a 7 June 2022 hearing of the
Northern Ireland Affairs Committee, the Chief Commissioner of the
Northern Ireland Human Rights Commission expressed disappointment
that the Commission was not consulted by the authorities during
the preparation of the bill and highlighted numerous elements of
concern regarding its compliance with human rights standards. Noting
how the bill would essentially channel all investigations, prosecutions,
civil claims, inquests, and police complaints arising out of the
Troubles away from the police and judicial bodies into this one
Commission, she characterised it as a “very substantial interference
with the rule of law and with everything that the UK has signed
up to.” She characterised the immunity provisions as “
de facto amnesty”, given that no
type of crime seems to be exempt from potential immunity, and in
general given the lack of safeguards. Furthermore, victims and survivors
do not have any opportunity to challenge the assertions made by
the person trying to gain immunity, to ask for information to be
admitted, to appeal the decision, or even necessarily see a complete
report of the decision. Given that the procedures outlined in the
bill cannot meet obligations under articles 2 and 3 of the Convention, the
Chief Commissioner claimed the bill is in breach, among others,
of the Good Friday Agreement.
75. In the context of its work supervising the execution of judgments
of the European Court of Human Rights, on 10 June 2022 the Committee
of Ministers of the Council of Europe issued a decision asking for
additional information from the United Kingdom authorities on the
effectiveness and Convention-compliance of the Northern Ireland
Troubles (Legacy and Reconciliation) Bill, as well as on the process
of engagement undertaken and planned to gain confidence and bring
stakeholders on board.
76. A process which would lead to some form of amnesty would have
several unintended consequences, as the Northern Ireland Minister
of Justice Naomi Long told me during a meeting. First, it would
allow alleged perpetrators to present their side of the story publicly
without the chance for families to seek accountability in courts.
Second, taking legacy cases outside the modern justice system would
undermine trust in the new, reformed institutions of present-day
Northern Ireland. And third, one should consider the message it
would send to still-active paramilitary organisations.
77. While proposals leaning towards blanket amnesty are widely
condemned, as I also gathered during my fact-finding visit to Northern
Ireland, there is acceptance that the rule of law, effective investigations
and the emergence of the truth must be cardinal elements in any
credible process. In a recent poll, not only did more than two thirds
of respondents agree on the need to deal with the legacy of the
conflict, but importantly 85% accepted that all sectors of society
were harmed during the Troubles.
This shows that a blanket amnesty
is not an acceptable solution. A solid basis for a process anchored
on the truth, centred on all victims, and which provides closure
is required.
78. The numerous concerns expressed regarding the Northern Ireland
Troubles (Legacy and Reconciliation) Bill come at a time when several
initiatives have made significant headway in terms of investigations
that comply with the relevant provisions of the Convention and are
based on an approach centred around victims’ families. Examples
include the Ballymurphy Massacre Inquest, which found in May 2021
that the 10 victims of a 1971 Army operation were innocent, and
Operation Kenova, an independent investigation led by a former Chief
Constable that has shown that the truth can come to light in many
unresolved cases.
79. The Police Ombudsman has also carried out important work to
shed light on what happened, with more than 428 cases currently
within the office’s Historical Directorate. She recently issued
two thematic reports outlining significant investigative and intelligence
failures and “collusive behaviours” by the Royal Ulster Constabulary
in relation to a series of murders and attempted murders in the
late 1980’s and 1990’s.
Given the role of the police in past
events, and in particular of what has been described as a “force
within a force”,
it is important for such investigations
to be given appropriate support and resources.
4.2. An all-out battle against the influence
of paramilitary organisations
80. The peace process set in motion
by the Good Friday Agreement did not spell an end to the existence
of paramilitary organisations, which still have thousands of members,
a number of them active. The announcement of 4 March 2021 by the
Loyalist Communities Council, a group of loyalist paramilitaries,
that it was withdrawing its support for the Good Friday Agreement
in protest over the Irish Sea border illustrates this vividly.
In a February 2022 interview, the
group’s Chairperson warned that if the UK Government were to reach
another agreement with Brussels on the Protocol, “the message it
would send is that the only thing that works is violence.”
81. Although the number of security-related incidents has fallen
over the past decade, increasing the credibility and recognition
of the Police Service of Northern Ireland, there has been something
of a resurgence in paramilitary-style attacks. The death of the
journalist Lyra McKee served as a cruel reminder of this in 2019.
82. In its latest report of December 2021, the Independent Reporting
Commission
indicated
that reactions to Brexit, including to the Protocol, have led to
new complexities and to increasing prominence of paramilitarism.
It reiterated that while policing and justice measures are essential
in bringing paramilitarism to an end, they are not enough in themselves
and need to be complemented by actions to tackle the deep and systemic
socio-economic issues facing communities. The Independent Reporting
Commission further called for a dedicated, formal process of group
transition, to engage directly with paramilitary groups with the
end goal of disbandment.
83. During my fact-finding visit, I was reassured to hear that
interlocutors were not worried about a return to the violence of
the Troubles. There is no appetite among the population to reverse
the trend towards peace. The situation requires, however, careful
management, if not it could slip back into small-scale violence.
In particular, socio-economic factors and a sense of political detachment
were brought to my attention: the combination of decline in economic
opportunities, brain drain, and the consequent feeling of disconnect
with the political class, can lead certain groups to find greater
affinity with the paramilitary calling.
84. The ongoing smear campaign against a Belfast-based Human Rights
Law professor focusing on the constitutional future of Northern
Ireland following the UK’s withdrawal from the European Union, which
has included physical threats, and which drew the condemnation of
four UN Special Rapporteurs in March 2022,
demonstrates the real dangers of
further radicalisation related to the impacts of Brexit.
5. Conclusions
85. While circumstances have somewhat
changed since the motion for a resolution at the origin of this report,
recent developments have confirmed the timeliness for the Assembly
to examine the impact of Brexit on human rights, peace, and reconciliation
on the island of Ireland.
86. The contentious provisions of the 2020 Internal Market Bill
were ultimately scrapped, but 2022 saw the introduction of the similarly
controversial Protocol Bill. As relevant institutions and non-governmental organisations
were calling attention to the potentially damaging effects on human
rights of the UK’s withdrawal from the EU, the UK government introduced
legislation this summer to override the Human Rights Act, calling into
question its commitment to the European Convention on Human Rights,
one of the main anchors of the Good Friday Agreement. And as Brexit-related
policy complications made the political discourse in Northern Ireland
increasingly divisive, a brief unifying factor was the near universal
rejection of British plans to address the legacy of the Troubles
in a way that undermined the rule of law and led to de facto amnesties.
87. Taking all these elements together, it is clear that the United
Kingdom’s withdrawal from the European Union has shaken the delicate
balance created by the Northern Ireland peace process and threatened
the common human rights space previously shared by all people on
the island of Ireland. The danger of having one island with two
distinct human rights realities, and the related repercussions for
the preservation of an open border, is real.
88. The Good Friday Agreement lists the European Convention on
Human Rights among the safeguards to ensure that all communities
in Northern Ireland are protected and can work together in the democratic institutions.
While Brexit is not strictly related to the Convention, this report
has looked at ways in which post-withdrawal developments risk undermining
it, thereby posing a serious threat to the long-term implementation of
the peace process.