The December Joint Report which signalled the end of Phase One of the Brexit negotiations raised some significant issues regarding EU citizenship rights for Irish citizens in the north and in Great Britain.

The key section of the report, in this regard, reads:

“52. Both Parties acknowledge that the 1998 Agreement recognises the birth right of all the people of Northern Ireland to choose to be Irish or British or both and be accepted as such. The people of Northern Ireland who are Irish citizens will continue to enjoy rights as EU citizens, including where they reside in Northern Ireland. Both Parties therefore agree that the Withdrawal Agreement should respect and be without prejudice to the rights, opportunities and identity that come with European Union citizenship for such people and, in the next phase of negotiations, will examine arrangements required to give effect to the ongoing exercise of, and access to, their EU rights, opportunities and benefits.” Joint Report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom’s orderly withdrawal from the European Union, 8 December 2017.

It did not take long after the deal was struck for many pro-Remain British voices to articulate their displeasure with this particular section. This, from LBC radio host James O’Brien, was fairly typical of the response:

Such reactions have more or less missed the point. As reaffirmed by the Joint Report, quoted above, and by a recent UK court judgement against the Home Office, the Good Friday Agreement recognises:

“the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose.” Good Friday Agreement, 2. Constitutional Issues, 1. (vi), 10 April 1998.

Irish or British or both. You can be born in Belfast and not be British. Likewise, you can also be born in Belfast and not be Irish. British children born in Belfast will enjoy no more rights than those born in Birmingham after Brexit, unless they also hold Irish citizenship.

Of course, there are plenty of British children born in Birmingham, and indeed throughout England, Scotland, and Wales, who similarly qualify for Irish citizenship. A brief check of Passport Office statistics for 2017 will show the scale:

“More than 160,000 Irish passports were issued to people in Northern Ireland and Britain in 2017. At the same time, the number of people born in Britain registering as Irish rocketed by 95%.” Lisa O’Carroll for the Guardian, 29 December 2017.

All of these British-Irish dual nationals will continue to enjoy EU citizenship post-Brexit (in addition, of course, to the non-British citizens of Ireland, and other EU countries, living in the UK). So, British citizens born in Birmingham will have exactly the same rights, post-Brexit, as those born in Belfast. If they also hold citizenship of Ireland or another EU country, they will be EU citizens; if not, they won’t.

However, Irish citizens born in Birmingham may be treated differently to those born in Belfast, or indeed Ballina, after Brexit.

They key line of the Joint Report is:

“The people of Northern Ireland who are Irish citizens will continue to enjoy rights as EU citizens, including where they reside in Northern Ireland.”

The unstated corollary is that these rights as EU citizens would not be enjoyed by Irish citizens resident in Great Britain, meaning Irish citizens will be treated differently in different parts of the UK.

Moreover, for the Irish in the north, in the next phase of negotiations, both the EU and the UK:

“will examine arrangements required to give effect to the ongoing exercise of, and access to, their EU rights, opportunities and benefits.”

This is where it gets interesting. One of those rights is the right to be represented in the European Parliament.

The Treaty on the Functioning of the European Union entails the right:

European Commission website

Here, we open a minefield – one of several buried in vague terms within the Joint Report. There are hundreds of thousands of Irish citizens in the north. How will they be treated with respect to European Parliament elections?

 

The North and the European Parliament: the options

1024px-European_Parliament_Strasbourg_Hemicycle_-_Diliff

The European Parliament in Strasbourg. (Source)

Three options seem possible:

  1. They will no longer be represented in the European Parliament.
  2. They will be represented in the European Parliament through a Northern Ireland constituency.
  3. They will be represented in the European Parliament as part of an Irish constituency, with a proportional increase in the number of MEPs.

All of these options are problematic.

Option 1 would be at odds with the guarantee of enjoyment of EU citizenship rights where they reside in the north. Some will likely suggest that European Parliament voting rights don’t apply to citizens resident in third countries (non-member states) but in fact this isn’t true. Several member states allow citizens to continue voting in European Parliament elections despite residence abroad. By European Council Directive on European Parliament elections:

Article 1 (2). Nothing in this Directive shall affect each Member State’s provisions concerning the right to vote or to stand as a candidate of its nationals who reside outside its electoral territory.

93/109/EC

So, there are no legal blocks.

Option 2 would be astonishing, creating an European Parliament constituency outside the EU. Unionist politicians are likely to object to this: they have repeatedly stated that the north should leave the EU on the same terms as Great Britain – and remember that the DUP strongly supported Brexit. They have repeatedly argued against any suggestions of any special status for the north, and would likely consider this such a special status, and object.

Not only that, but most of the unionist voting-age population would not be able to vote for the MEP representing this constituency. As discussed above, the idea that everyone in the north will retain EU citizenship post-Brexit is a misconception. Restating the Joint Report once again:

The people of Northern Ireland who are Irish citizens will continue to enjoy rights as EU citizens

Not everyone in the north is an Irish citizen. The right to claim Irish citizenship – and thus EU citizenship — is automatic, but it must be claimed, and many choose not to claim it. Those who choose not to claim it are British and not Irish, and so will not have EU citizenship rights, including the right to vote in European Parliament elections.

A possible solution to this would be to extend the right to vote in the European Parliament elections to anyone in the north who would have a right to claim Irish citizenship. The problem with this approach is that it would treat some British citizens in the north differently to others – British residents who have moved to the north from Great Britain do not have the same right to Irish citizenship, claimed or not, and so would not have the right to vote. It is very hard to imagine the DUP being happy with a solution that treats them differently from other British citizens because they have the right to claim Irish citizenship!

It is hard to see these problems being overcome.

Option 3 would also almost certainly be objected to by unionists, in that it could be – and almost certainly would be – viewed or framed as creating an all-Ireland constituency – and if it was established on such a geographical basis, would also have the problems of Option 2. However, if it was legislated for based on citizenship, instead of geographic area, none of these problems would apply.

Basing voting rights on citizenship in this manner also has precedent, with a referendum already planned to accommodate all Irish citizens voting in Presidential elections (see also this article by Naomi O’Leary for Slugger O’Toole).

 

A single European Parliament constituency for Ireland?

At present, Ireland elects MEPs from three constituencies – a three-seat constituency for Dublin, a four-seat South consituency (Munster plus Wexford, Wicklow, Carlow, and Kilkenny), and a four seat Midlands North West constituency (Connacht, the rest of Leinster, plus Cavan, Monaghan, and Donegal), as well as the existing 3-seat constituency for the north. It would be difficult to see how to bring Irish citizens in the north into this present structure – which constituency would they vote in?

As such, it was very interesting to see Senator Grace O’Sullivan (Green Party) propose an amendment to the Electoral (Amendment) (Dáil Constituencies) Bill 2017 at Committee Stage in the Seanad (on December 15, 2017), which would have replaced the current three Irish constituencies for the European Parliament with a single national constituency.

The amendment was withdrawn after the Government suggested a separate and more thorough exploration of the issue in early 2018, so it hasn’t happened yet, but it’s on the table. Such a change could easily accommodate Irish citizens in the north voting.

Of course, if this were to be restricted to Irish citizens in the north, those Irish citizens living in Great Britain would then be left without a vote in the European Parliament elections, for the first time. At present, Irish (and other EU) citizens resident in a British European parliament constituency can vote where they live. Unless accommodation is made post-Brexit for Irish citizens resident in Great Britain to vote in Irish European Parliament constituencies – which would be at odds with the current restrictions on Irish emigrant voting (a future post on this topic in general is planned) – this would raise the prospect of Irish citizens being treated differently in different parts of the UK.

However, allowing such Irish citizens in Great Britain to vote in Irish European Parliament elections, although not considered in the Joint Report, would neatly dispose of this concern, and would have the additional benefit of further defusing potential unionist concerns over the creation of an all-Ireland constituency.

But even this is problematic, due in large part to the significant number of British citizens applying for Irish citizenship post-Brexit. Either the Irish public and the Oireachtas would have to accept the potential for tens or perhaps hundreds of thousands of the so-called Brexit Irish voting in an Irish election from overseas for the first time – many of whom may never have even visited Ireland, and certainly many of whom would be unfamiliar with Irish politics and the relevant issues – or, we would see some Irish citizens in Great Britain being treated differently to others, just not on a geographical basis.

Moreover, Irish citizens living elsewhere outside the EU would then find themselves being treated differently to those living in Great Britain. This could initially be explained as a continuation of current rights, since the Irish in Great Britain have previously been able to vote in European Parliament elections while those living outside the EU have not – but for how long can this distinction be justified? In 20 years, there may very well be Irish citizens in Great Britain who have never lived in the EU. Why should they be treated differently to those living, say, in Switzerland?

On balance, the most likely solution is the creation of a single Ireland constituency with MEPs elected by Irish and other EU citizens living in the 26 counties, plus Irish citizens living in the north. But there is no easy answer.

 

Other potential problems

The European Parliament is not the only problematic issue in this respect. The vague language used in the Joint Report leaves uncertainty in other areas as well, in that although EU citizenship rights are well-defined, the “opportunities and benefits” of EU citizenship are not specified.

Are farming subsidies, for example, under the Common Agricultural Policy considered to be a benefit? If the answer is yes, then farmers in the north with Irish citizenship would retain such subsidies, while British farmers would not. Clearly, this situation would be unsustainable, unjustifiable, and unfair – but affording those grants also to British farmers in the north would be similarly unfair to farmers in Great Britain, given the guarantee of unfettered access to UK markets for the north after Brexit. Considering the subsidies as outside the rights, opportunities, and benefits intended in the Joint Report would appear to end this problem. However, the complexity of the border, with some farms occupying land in both north and south, and the complex cross-border nature of what is essentially an all-Ireland agricultural sector (discussed excellently at length in RTÉ Europe Editor Tony Connelly‘s must-read book Brexit & Ireland) make this a somewhat intractable problem.

What about fishing rights, under the Common Fisheries Policy? This is not just a matter of subsidies – the UK Government has made clear that post-Brexit, they intend to restrict foreign fishing vessels operating in British waters, and they have already withdrawn from the London Fisheries Convention.

“When we leave the European Union we will become an independent political state and that means that we can then extend control of our waters up to 200 miles or the median line between Britain and France, and Britain and Ireland”. UK Environment Secretary Michael Gove, quoted by Frances Perraudin in the Guardian, 2 July 2017.

Will fishing vessels operated by Irish citizens in the north have access to British waters on the same basis as British vessels, as well as EU waters on the same basis as EU vessels? The obvious solution here would be an explicit statement that the CFP is not included within the rights, opportunities, and benefits considered in the Joint Report, and that vessels based in the north would be treated as British. But even this solution may not be as simple as it seems – again, as discussed at length in Tony Connelly’s book, including the difficulties introduced by the migration of fish, which, of course, do not respect international maritime boundaries.

fishborder

“Guy Verhofstadt thought the border was hard to spot on land?” (source)

What about university students on the ERASMUS programme? Will students at Queens and Jordanstown have the opportunity to go on ERASMUS only if they hold and travel on an Irish passport?

Or the plan to offer a free interrail ticket to all EU citizens on their 18th birthday?

Are we going to see tickets given to Irish 18 year olds, but not their British friends?

I hope the last two examples illustrate exactly how divisive this is about to become.

The future phases of the Brexit negotiations will have to solve these issues, but with just over a year remaining until the exit date of 29 March 2019, time is short. Nor can a decision on the European Parliament be delayed much beyond that – the next election is scheduled just two months later.

It is clear that although the Joint Report represents progress, much remains to be decided. Right now, it is far from clear whether the complexity caused by the unique situation of the north can be solved in time – if solutions are even possible.


Breandán MacGabhann

Dr. Breandán MacGabhann is a Geography lecturer at MIC/UL in Limerick.

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