The Northern Ireland Act 1998 and Brexit: Can the Good Friday Agreement Survive in the Absence of EU Laws and Safeguards?

The decision by Westminster to invoke Article 50 presents profound challenges for the 1998 Good Friday Agreement (GFA). The Northern Ireland Act 1998 established power-sharing as the principle internal mechanism to protect the Unionist and National communities. The second mechanism of protection is the focus of this paper – those provisions of the Northern Ireland Act that require the Assembly to respect European and Community law in the form of the UK’s Human Rights Act, 1998. In this respect, Brexit poses a serious external challenge to the GFA, as many of the rights guarantees in the Northern Ireland Act 1998 are dependent on the continued application of EU and Community law in the Northern Ireland context. This paper will explore Northern Ireland’s Brexit challenge in the following manner. First, it will outline features of the 1998 agreement tied directly to EU and Community law. Known as ‘legislative compliance’ obligations, they require the Northern Ireland Executive (section 9), the Presiding Officer of the Assembly (section 10), the Attorney General (section 11), and the Secretary of State for Northern Ireland (section 14) to certify that bills introduced in the Assembly are consistent with Convention rights and Community law. The second part of this paper focuses on the post-Brexit context, and argues that the Northern Ireland Act cannot be sustained, as the power-sharing characteristics of the Assembly are insufficient to support the human rights commitments in the GFA. The third part of this paper focuses on a potential solution that may allow the GFA to survive Brexit – the introduction of a Northern Ireland Bill of Rights modelled after the ECHR. This would allow EU commitments to endure, in a new form, and thus sustain the legislative competency requirements that underpin the EU-dependent Northern Ireland political settlement.