Róisín Shortall (Dublin North West, Social Democrats) | Oireachtas source

In the few minutes I have I wish to concentrate on aspects of the agreement reached last week in respect of Brexit. It is remarkable and unfortunate that we have not had Dáil time this week to express our views on the agreement and I hope this will be corrected early in the new year.

I have concerns that differing perspectives as to what the Brexit agreement actually means will undoubtedly cause problems over the coming year or so. The deal references the Good Friday Agreement in several parts and on several occasions. While the idea of a fudge in the Good Friday Agreement may have been a necessary evil in allowing people from a number of different sides to claim victory, the same does not apply in respect of the Brexit agreement. We need to know at an early stage exactly what the deal means and that is far from clear at this point. David Davis's "statement of intent" comments over the weekend show that there is some degree of malleability in the understanding of the phrasing being used, in particular given that the DUP has been placated, as it were, by Article 50 of the agreement. A particular issue in Article 49 of last Friday's agreement now also needs to be clarified. Article 49 states, "In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement." In the context of "a guarantee" of no hard border, the use of the weasel phrase "those rules" is quite worrying as it is open to interpretation, particularly when read in the context of the preceding part of Article 49, which states, "[T]he United Kingdom will propose specific solutions to address the...circumstances of the island of Ireland" if a hard border cannot be avoided through the future relationships between the EU and the UK. We know that the UK had 18 months to come up with these solutions in the context of phase 1 and failed to do so, so where is the succour there regarding the ability of the UK to do so in the future? The concern is that we could be left with four or more radically different interpretations of what "those rules" that support North-South co-operation and so on actually mean. Different interpretations are possible from Dublin, London, Brussels and, at least potentially, Belfast. The Government needs to clarify what it understands by the phrase "those rules". What does it actually mean? The Government also needs to ensure that its understanding is the same as that of the European Commission and the 26 other member states.

Let us be clear as to what rules we are talking about. While the main focus of the sections on Ireland and Northern Ireland is trade and the prevention of a hard border, there are aspects of Articles 52 and 53 that need to be examined in much more detail. Article 52 states, "The people of Northern Ireland who are Irish citizens will continue to enjoy rights as EU citizens, including where they reside in Northern Ireland." Furthermore, Article 53 states, "The United Kingdom commits to ensuring that no diminution of rights is caused by its departure from the European Union, including in the area of protection against forms of discrimination enshrined in EU law." The text of the Good Friday Agreement states, "The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights, ECHR, with direct access to the courts and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency." However, that is all changed now, so it is very difficult to envisage a situation whereby people will have rights as European citizens, including access to the courts, if they hold Irish passports. What about people in Northern Ireland who do not hold Irish passports? What about their rights in terms of what they understood those rights to be under their previous status as members of the European Union? Article 56 of last week's agreement states that the issues related to Ireland will be examined in a distinct strand in phase 2 of the negotiations. It seems to me that in the rush to nail down a deal, some very difficult issues were parked and left open to interpretation. We need to bring clarity to all those areas I have identified and others before too long because we cannot continue with this level of uncertainty surrounding such critical issues, neither in respect of how the Border might actually work nor in respect of the rights of all citizens within Northern Ireland. That circle still has not been squared and we need clarification as we go forward.

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