Why direct rule would mean Northern Ireland loses another Brexit bargaining chip
With the EU responsible for everything, including what we define by 'food', disentangling its legal framework will take years, writes Ciaran McGonagle
As the UK moves inexorably toward the triggering of Article 50, beginning the process for exiting the European Union, much of the debate has understandably centered upon the terms of departure. The process of passing the Article 50 Bill in parliament has, from the Government's perspective at least, been fraught with difficulty. Opposition parties attempt to impose a range of pre-conditions on the Prime Minister's ability to unilaterally dictate not only provision of the required notice, but also the terms of any deal formalising the UK's future relationship with the remaining member states.
While parliament remains pre-occupied with the finer points of the exit deal, the more tangible effects of the UK's departure are likely to be found, not in the terms of the departure, but rather within the legislative and regulatory framework implemented by the Government once we have done so.
Disentangling the UK's laws from those of the EU, dual-bodies of law which have effectively co-mingled, developed and operated in tandem since 1973, is likely to prove one of the most complex and contentious legislative tasks ever embarked upon by parliament.
The outcome will rely not only on the outcome of the Brexit negotiations, but more fundamentally upon the extent to which the UK is prepared to maintain and replicate agreed legal frameworks across the range of areas over which the EU currently retains legislative competence.
The proposed Great Repeal Bill, announced at the Conservative Party conference last year, represents the Government's attempt to ensure that the current body of EU law is transposed into domestic law. The intention is to avoid a legal "cliff-edge" scenario, whereby, upon EU law ceasing to apply, there remains in place a cogent and suitably robust legal framework.
The theoretical simplicity of the proposal betrays the staggering degree of both political and practical complexity involved. Across a vast range of areas, from national security to the environment and from pensions to consumer protection, the Bill presents an opportunity for parliament to reshape the United Kingdom's legal, regulatory and political landscape for decades to come. The sheer magnitude of the task at hand raises serious questions around democratic oversight and accountability.
As generally seems to be the case with Brexit, Northern Ireland will likely require special consideration. A simple example might prove illustrative.
Take the Food Hygiene Rating Act (Northern Ireland) 2016, a rather non-contentious piece of legislation passed by the Assembly in order to provide for the operation of a food hygiene rating system in Northern Ireland.
A cursory glance through the Act demonstrates the extent to which European law has permeated our body of laws. Even the meaning of the word "food" is prescribed by EU law, specifically by the EU regulation which seeks to harmonise standards on food and animal welfare throughout the continent.
Taken at face value, it would appear that the Government's plan would be to simply transpose the terms of this EU regulation into domestic law, providing that its terms would continue to be valid within the UK's post-Brexit legal framework.
However, consider the scenario where an existing EU law cannot be so neatly transposed.
What if the offending law delegates some type of functional responsibility to an EU agency (such as the European Food Safety Authority) that will no longer have any operative remit within the UK?
New agencies will need to be created, or existing agencies provided with fresh mandates and resources to execute those new responsibilities.
What if negotiations on a free trade agreement with President Trump's administration necessitate the liberalisation of food and animal welfare standards?
The Foreign Secretary, Boris Johnson, is on record as stating his preference for a flexible regulatory system, one which fundamentally protects British interests.
Given the oft-stated ambition of Mrs May's Government to recast the UK as a global leader in free trade, it seems difficult to conceive a scenario where the UK deems it desirable to implement a broadly comparable, much less an identical, regulatory framework to that of the more protectionist European Union.
What if the Assembly refuses to conform to the Government's proposals in areas (such as agriculture) in which legislative authority has been devolved?
All of this begs the question: to what degree is the Government prepared to consult with the Northern Ireland institutions on this? To listen to Northern Ireland's concerns? To allow its agenda to be influenced by the people of Northern Ireland?
And to what extent are our political representatives prepared to challenge the Government? The typically raucous back-and-forth during Prime Minister's Questions highlighted a rather striking juxtaposition between the respective positions of the two most prominent political parties operating within the United Kingdom's devolved framework, namely the Scottish National Party and the DUP.
Angus Robertson, of the SNP, asked a pointed question concerning the repatriation of powers from Brussels in those areas over which the devolved Scottish government has legislative competence.
Would the Prime Minister, Robertson demanded, be able to offer assurances that the Scottish government would retain authority over those existing devolved areas?
Nigel Dodds, of the DUP, took a markedly different approach. Beginning by making a fairly contrived joke at Jeremy Corbyn's expense, Mr Dodds served up a rather pandering question to the Prime Minister, gently inquiring as to whether she was still on track to trigger Article 50 on schedule.
While the Labour leader needs little assistance in self-ridicule, Mr Dodds' reluctance to challenge the Prime Minister on these important questions ought to invite derision from those in Northern Ireland who are potentially threatened by the impact of the Government's Brexit strategy.
While it may be a topic of considerable joviality to him and his colleagues that Northern Ireland risks being disproportionately and adversely impacted by the terms of any deal struck by the Government has been largely established.
Yet, Mr Dodds' party have yet to articulate any positive, substantive vision of Brexit to the people of Northern Ireland.
This is despite it being self-evidently incumbent upon them doing so for an electorate voting comprehensively to reject it.
Should direct rule be re-imposed in the wake of the Assembly election, Northern Ireland will lose yet another bargaining chip with which to influence both the terms of the Brexit deal and the Government's repeal Bill.
Decisions on, for example, food safety would be taken by the Secretary of State.
They would essentially be imposed upon the people by central Government.
Of course, parliament will have a role to play in scrutinising and providing oversight.
However, for so long as the majority of our elected representatives either abstain, or play cheerleader to Mrs May's hard Brexit strategy, it is unlikely that anybody in Northern Ireland will be paying too much attention to Mr Dodds' painful punchlines.
- Ciaran McGonagle is a London-based financial services lawyer and commentator. He blogs at www.ciaranmcgonagle.com