It may well be the height of summer, but Northern Ireland is enduring a political storm. We remain adrift and without an anchor as the tide pushes towards Brexit.
Negotiations may continue to stutter and start, but the Westminster government has introduced a key bill to prepare the legislative transition in anticipation of ‘exit day’.
The European Union (Withdrawal) Bill (or ‘Great Repeal Bill’) will repeal the European Communities Act 1972, which currently allows EU law to have effect as national law in the UK. Instead of the painstaking task of modifying each EU law individually, the bill will subsume all current EU laws operating in the UK into UK law.
The aim is to ensure a sense of continuity after exit day, in the hope of forestalling any potential legal or administrative pitfall on the day after departure.
Yet without a working Assembly, Stormont lies rudderless and incapable of keeping pace with recent events. Despite this, parliamentary hurdles may certainly await. As Theresa May tries to pass this legislation through parliament she may well face significant opposition.
Firstly, the proposed bill states that it shall not incorporate the charter of fundamental rights (which interprets EU human rights) into domestic law after exit day. This is a red line for Labour, failing one of Shadow Brexit Secretary Keir Starmer’s supposed ‘six tests’ that must be met before the party will support the bill. Not surprisingly, this is also a key issue for the Liberal Democrats. The possible dismantling of human rights in a post-Brexit era causes real concern.
Henry VII Clauses
Another area of contention is the use of so called ‘Henry VII clauses’ by ministers. These are powers designated to ministers to amend existing laws and institutions in order to assist the transition of EU law to UK law.
The bill specifies that these powers are to be used to ‘prevent, remedy or mitigate’ any deficiency in retained EU law to operate effectively. There are critics who suggest that such powers will enable ministers to alter primary legislation in a substantive way without parliamentary scrutiny.
More controversial still, is the fact that these powers are retained for two years after exit day, worrying commentators as to the effect on British democracy in such an unsettled time. The trade-off between parliamentary oversight for administrative convenience is one that should not be taken lightly.
In fact, the First Minister of Scotland and First Minister of Wales released a joint statement condemning the bill. Nicola Sturgeon and Carwyn Jones labelled it a ‘naked power grab’ by Westminster, and cited the threat to human rights.
Despite the fact that Westminster could push ahead on the legislation without consulting the devolved institutions, Prime Minister Theresa May will likely seek consent for those aspects which impact the Welsh and Scottish governments. This is more political than legal; to press ahead without involving the devolved institutions could further expose the political fault lines within Britain.
But what does this mean for Northern Ireland and its citizens? Without a functioning Executive, where is the voice for NI’s interests? The DUP’s tie-in with the Conservative government program could create a unique conundrum; a perceived seat at the table in Westminster, yet a severe curtailment of independent oversight in Northern Ireland.
The Great Repeal Bill is a critical legislative proposal for Brexit, and one which requires a local perspective from every part of the UK.
Only last week EU negotiator Michel Barnier met with members of Welsh and Scottish government, yet Northern Ireland lost out, having no representative.
The unending vacuum of leadership at a local level has placed NI at unique disadvantage on the national stage. Post-Brexit, Northern Ireland will be the only area of the UK with a land border of the EU. And yet we may witness crucial negotiations as bystanders without a local voice, without an advocate, and without a direction when it is needed most.
With Stormont’s collapse we have lost clarity of purpose and gained a petty squabble. The people of Northern Ireland can ill afford for Brexit to pass by, with their hopes and fears unheard. As things stand, that is exactly what will happen.