Sinn Féin is moving its Brexit objections swiftly on from a hard border to a loss of rights for northern nationalists. Logically, this is an argument that ends not in Belfast, London and Brussels but exclusively in Dublin.
The shift in focus represents a recognition by Sinn Féin of a tactical error in making border infrastructure the acid test of Brexit as a breach of the Belfast Agreement.
It has been evident since last December’s draft backstop publication that a hard border is unlikely, neither triumph nor disaster in London seem destined to make it any more likely, and nobody has ever cooked up a satisfactory explanation as to why it would breach the agreement in any case.
Loss of rights by nationalists (republicans are not mentioning the identical loss to unionists) is a cannier issue, yet look closely and it is not what it seems.
There is a strong case that Brexit threatens no Belfast Agreement rights – the problem boils down entirely to Irish citizenship and the European Union citizenship that comes with it. The agreement frames rights in terms of the European Convention on Human Rights – an instrument of the Council of Europe, a separate body to the EU, which the UK is not leaving.
Bill of rights
Signing up to the convention is a condition of EU membership, for new members at least, so Brexit increases the chance of the UK replacing it with the proposed British Bill of rights, still lurking in the political undergrowth. However, the agreement only requires the convention to be enacted in Northern Ireland law, so it could be left on the North's separate statute book along with guarantees of continued access to the UK supreme court and the convention's court in Strasbourg.
The remaining rights affected by Brexit fall under the EU's Charter of Fundamental Rights, which restates the convention and adds the economic and social rights – effectively, the single-market rights – of living, travelling, working and claiming benefits around the EU, plus the democratic rights of engaging with the European Parliament. All are ultimately enforceable through the European Court of Justice (ECJ).
Questioning the validity of their citizenship will inevitably lead northern nationalists to ask why they cannot access rights and services in the Republic in a more direct and general fashion
The UK has an opt-out from the charter but this is widely viewed as meaningless, as charter rights apply to EU laws the UK has signed up to, such as free movement and voting in European elections.
Preserving access to the ECJ will be contentious but not difficult. Northern Ireland’s small coterie of hardline Brexiteers may add it to the list of things they will just have to live with.
Preserving EU democratic rights will be the toughest nut to crack, although precedent for extra-territorial voting exists in northern Cyprus (not that the government there assists anyone in exercising it.)
Economic and social rights are causing most northern concern, driving the surge in applications for Irish passports. But these rights will be maintained within the UK and Ireland – the Belfast Agreement’s territorial extent – by the Common Travel Area.
Exercising single-market rights across the EU beyond Ireland is the challenge, and it raises the question that will come to haunt Dublin: to what extent can Irish passport holders in Northern Ireland continue to be second-class Irish citizens?
This question has so far mainly arisen over voting for the Irish presidency. Shared EU citizenship covers almost everything else, enabling the Belfast Agreement to get away without distinguishing between Irish nationality and Irish citizenship. The agreement merely states that everyone in Northern Ireland has the “right to hold both British and Irish citizenship”.
Free-movement deal
London and Brussels can work out a post-Brexit free-movement deal – in fact, they almost certainly will. But that can only highlight how the EU rights of Irish citizens in Northern Ireland are contingent on British generosity.
With a great eye for explanation, Sinn Féin has made the European Health Insurance Card a new acid test of Brexit. Will this still be available to Northern Ireland residents? Again, a deal seems likely and Brussels is clearly prepared to guarantee a whole range of such provisions in the final Brexit deal. However, that will not get Dublin off the hook for issuing passports in the North that are not worth the same as those in the Republic. The scope for similar issues appears endless – European programmes for students have already been raised.
Questioning the validity of their citizenship will inevitably lead northern nationalists to ask why they cannot access rights and services in the Republic in a more direct and general fashion. Telling them it is because they do not pay southern taxes will hardly be accepted as the end of the matter.
Brussels treats every crisis as an opportunity to drive ever-closer union, to the point where it is suspected of taking a cynical approach to crisis in the first place. Citizenship rights and Brexit promise republicans an equally open road to ever-closer unity – and Brussels will have surprisingly little to do with it.