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Triggering constitutional instability

A year on from the triggering of Article 50, many of the complex questions facing the island of Ireland remain unanswered and contested. The failure of the UK government to provide credible and practical solutions regarding the status of Northern Ireland, and particularly of the Irish border, has resulted in growing alarm in Ireland. There is a fear that the problems facing the island are either misunderstood in London or being wilfully ignored.

Brexit continues to generate an exhaustive level of analysis on the potential impact for the island. The result of the referendum was plainly a shock to many in Ireland and Northern Ireland, not least as a majority of people in Northern Ireland voted Remain. The argument to ‘move on’ does not resonate in a region where there is considerable anxiety about what lies ahead.

The concern about a lack of consent has persisted, precisely because the term has such a contested history: the constitutional status of the region rests only on ongoing democratic consent. If that position were to change, then Northern Ireland has a recognised right to leave the UK.

One consequence of Brexit has been the increasing discussion of Irish unity. The border on the island is both a fact and an ongoing fault line within the constitutional politics of these islands. Its existence is a result of wider British-Irish conflicts, and Northern Ireland is still a society radically divided over matters of ethno-national identity. Politics and public life are dominated by the continuing divisions between British unionists and loyalists and Irish nationalists and republicans. Recent elections in Northern Ireland largely confirmed this picture.

The main political parties on opposite sides of this divide (the Democratic Unionist Party and Sinn Féin respectively) also took different positions on Brexit: the DUP opted for Leave and Sinn Féin argued for Remain. Before the collapse of the Northern Ireland political institutions in January 2017, the then First and deputy First Ministers agreed a joint letter, in which they set out matters that were of ‘particular significance’ for Northern Ireland.

Given the political context, this letter has taken on added importance as a relatively isolated indicator of possible shared concerns. It makes clear that “the region is unique”, “the border should not become an impediment to the movement of people, goods and services” and that Brexit should not “create an incentive for those who wish to undermine the peace process and/or the political settlement”.

For the more optimistically minded, the letter does hint that some common ground might be carved out if the political institutions were once again operational. There is further limited evidence along these lines in the documents that were leaked from recent negotiated attempts to restore the political institutions. A disputed ‘draft agreement’ text contained reference to Brexit as a priority issue and possible structures for handling it.

However, these negotiations collapsed, and at the time of writing it looks unlikely that North-ern Ireland will have a government in 2018. It remains an open question whether the major parties in Northern Ireland would ever have forged a common position given their very different starting points. Agreeing that there are ‘special circumstances’ to be taken into account is relatively meaningless when the debate has advanced to a much greater level of specificity, and when the DUP and Sinn Féin remain so fundamentally divided on the subject.

At the UK level, the government’s ‘confidence and supply agreement’ with the DUP following the general election of June 2017 has given the party an influential role in the negotiations. It should be noted, though, that the party does not speak for the whole of Northern Ireland on Brexit or any other matter.

The UK’s current constitutional instability and political context, as well as the fact that there is no operational Northern Ireland Executive and Assembly, must therefore be factored into any assessment of what is both possible and desirable.

Agreement in the abstract?

Both the UK and Irish governments have indicated their desire to see the unique circumstances of Northern Ireland and the island of Ireland respected. The UK’s position has been to reiterate its commitment to the Common Travel Area (CTA), the Belfast/Good Friday Agreement, and the need to avoid a hard border, as well as the continuing role of north-south and east-west cooperation.

The problem remains that the UK has not been forthcoming with the required level of detail, particularly when it comes to reconciling the need to avoid a hard border and the government’s commitment to leaving the single market and customs union. The Prime Minister’s speech of 2 March 2018 provided little in the way of clarity on this score. There are clearly tactical issues in play here for both the UK and the EU.

The Irish government has also outlined its approach to the Brexit negotiations, and stressed the troubling potential impact on Ireland. It has been proactive, both before and after the vote, and has consistently insisted that it is fully aligned with the other 26 EU member states. But at the same time as both governments have found themselves on opposite sides in the Brexit negotiations, they have also had to find ways to work together over the restoration of the political institutions in Northern Ireland.

Negotiating a way forward?

There is little doubt about the centrality of the Ireland/Northern Ireland issues for these EU-UK negotiations. It is welcome that the Belfast/Good Friday Agreement is at the heart of negotiations, both in terms of protecting it and applying it in practice. When considering ways forward, there are three things to focus on. First, there is a common desire to avoid a hard border on the island of Ireland. Although everyone seems to agree with this as a principle, it is proving more difficult to find practical solutions.

In the Joint Report from December, a number of options were outlined: Option A is to achieve this through the overall UK-EU relationship; Option B is for the UK to suggest specific solutions that address these unique challenges; and Option C is to undertake (in the absence of an agreed outcome for the UK) to retain ‘full alignment’ with the rules of the EU’s internal market and customs union that are supportive of north-south cooperation, the island economy and the protection of the Belfast/Good Friday Agreement. The UK has also noted that it will avoid any new regulatory barriers within the UK, unless there is devolved agreement to do otherwise.

Despite some of the reactions in the UK, the Protocol produced by the European Commission in February 2018 did little more than formalise the prior agreements. Widely reported arguments based on the constitutional integrity of the UK appeared to neglect both the particular circumstances of Northern Ireland and the increasingly pluralist nature of existing governance arrangements.

Second, it is worth noting that human rights and equality are central to the Belfast/Good Friday Agreement and have featured prominently in the discussions on Brexit. There are several strands to this. The rights of Irish citizens in Northern Ireland, as both EU citizens and as persons who benefit from existing special arrangements in the UK, have been noted. Respecting agreements reached thus far around this will raise complex questions and may prove divisive if the issue is not addressed
comprehensively and appropriately.

Brexit has upset ongoing attempts to promote equal citizenship in Northern Ireland by opening a clear divide between British and Irish citizens, and by potentially undermining human rights and equality guarantees. The supporting role of the EU has also been acknowledged, and the agreement to ensure ‘no diminution’ in the areas of rights and equality is significant.

Again, however, this will raise immediate questions for the UK, including around the retention of the EU Charter of Fundamental Rights and other EU law derived rights in Northern Ireland. It may well be time to renew the conversation in Northern Ireland about a Bill of Rights.

Third, all sides are keen to provide reassurance around the CTA, with the EU accepting that the UK and Ireland can continue with this arrangement (within prescribed boundaries). The nature of the reciprocal bilateral special relationship between the UK and Ireland is in need of much further attention, and there is a strong case for enhanced codification to ensure that, for example, the rights of Irish citizens in the UK are protected over the long term and that the principles of human rights and equality are more securely grounded within the CTA.

Time to return to the constitutional fundamentals of the peace process?

Many predicted that Brexit would have a disastrous impact on relationships across these islands. The destabilising consequences may take a generation to mend, and the consequences for Ireland/ Northern Ireland remain worrying. In the negotiations still to come, both sides will need to find the constitutional imagination to deliver credible solutions.

Current suggestions from the UK government have notably failed to offer the sorts of specific proposals that are required, and once again Northern Ireland looks tragically like collateral damage, with long-term implications that are hard to predict.

By Colin Harvey, research leader at The UK in a Changing Europe and Professor in Law at Queen’s University Belfast.


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