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23 Sep 2020

Devolution and the Union

Since the furore erupted over the release of the Internal Market Bill, and the admission that it breaches the UK’s commitments under the Protocol on Ireland/Northern Ireland, an increasingly intense debate has raged over whether or not this move also threatens the Belfast/Good Friday Agreement 1998 (the GFA).

This agreement, and the bundle of subsequent deals which have built upon it, have sustained Northern Ireland’s peace process for over two decades.

This debate has focused on the consequences of this proposition. Leading US politicians have expressed their dim view of any moves by the UK government which are seen as jeopardising the peace process, and with Congress having to approve US trade deals, this poses a direct threat to US-UK trade negotiations.

When this was the position articulated by leading figures in the Democratic Party, it triggered a partisan pushback by conservative politicians and commentators in the UK. When President Trump’s Northern Ireland envoy, Mick Mulvaney, made much the same point, much of the air went out of these complaints.

Partisan attacks have since given way to a disconsolate groan that the GFA is somehow being misunderstood by US politicians (or that they are being manipulated, and in the words of one DUP politician, are ‘parroting lines without thinking or knowing any better’).

There is no doubt that politicians across the US see electoral opportunity in appealing to Irish American votes, but that doesn’t mean that they are being duped.

Those who see no threat to the peace process in the Internal Market Bill rely on two main claims. First, the peace process requires that interests of Unionists must be accommodated alongside those of Nationalists; and, second, that UK legislation addressing state aid and exit summary declarations is unconnected with the GFA. Both are questionable.

The suggestion that such a broad swathe of US politicians somehow don’t understand the GFA misses the point.

In committing to the Protocol, the UK government accepted that it is ‘to be implemented so as to maintain the necessary conditions for continued North-South cooperation, including for possible new arrangements in accordance with the 1998 Agreement’.

It doesn’t matter that some US politicians might not have mastered all of the details of the GFA and successor agreements –  the UK government has publicly accepted that the terms of the Protocol protect the GFA.

The GFA is not a trade deal. But then, it didn’t have to be, because the UK and Ireland’s shared EU membership meant that its negotiators could concentrate on other issues.

When those negotiators concluded that arrangements could be put in place for North-South bodies under Strand 2 of the GFA, tying together aspects of Northern Ireland and Ireland’s governance, those bodies’ cross-border operations were facilitated by the rules of the EU single market.

The EU was thus able to map the ways in which EU law, including the single market for goods, sustained the work of North-South bodies.

Once the UK accepted the accuracy of this ‘factual discussion’, back in the Autumn of 2017, it essentially accepted that imposing additional restrictions on the movement of goods across the land border in Ireland would contravene the GFA’s Strand 2.

The UK position has consequently alternated between Theresa May’s attempts to create an arrangement which would keep the entirety of the UK in a customs union with the EU (the backstop in her version of the Withdrawal Agreement) and making separate arrangements for Northern Ireland, under Johnson’s renegotiation of the Protocol.

Both versions, however, provided for extensive state aid rules as a precondition for the deal. This was not a rushed element of the bargain; special access for Northern Ireland to the EU single market for goods is necessary to protect Strand 2, and these ‘level playing field’ provisions are a prerequisite of that access.

Some Unionist politicians see threats in any distinct arrangements for Northern Ireland, and (alongside pro-Brexit commentators) maintain that the Protocol’s terms threaten ‘Northern Ireland’s constitutional status as a full part of the United Kingdom’.

These claims draw upon the GFA principle that Northern Ireland’s constitutional status can only be changed through majority consent of its people.

Under such accounts of the GFA, ‘what is sauce for the nationalist goose must also be sauce for the unionist gander’, and post-Brexit arrangements must therefore be accepted by Unionists. The concept of consent, however, only applies the constitutional status of Northern Ireland as part of the United Kingdom (the UK Supreme Court recognised as much in its first Miller decision).

If the principle extended further, then a majority of Northern Ireland’s electorate would be able to block any change to Northern Ireland’s governance arrangements, and this patently is not the case when its majority of 56:44 against Brexit did not prevent Northern Ireland being pulled out of the EU.

Northern Ireland remains part of the UK; the Protocol’s Article 1 affirms Northern Ireland’s status as part of the UK.

Beyond that, the UK is able to organise its internal governance arrangements as it chooses in light of the international obligations it has freely assumed. Countries, such as China, maintain multiple WTO memberships for different parts of their territory without this calling their statehood into question (and the Protocol’s arrangements are explicitly more restrictive than this).

Such complexity, moreover, has been part of Northern Ireland’s constitutional settlement for decades. There is an important argument that the GFA’s ‘East-West’ relations (Strand 3 – covering Ireland, the UK and the Crown Dependencies) must be part of the picture, but the Protocol doesn’t pose any specific threat to Strand 3’s intergovernmental mechanisms.

The UK Government’s open admissions of breaking international law are difficult to square with traditional accounts of how the UK regards itself as a country, leaving some Unionist commentators at a loss; ‘for anyone in the UK government to expressly say they are going to breach international law … is extremely unusual. I can only guess that the Johnson government is adopting a very particular pose here’.

Johnson’s willingness to adopt such a negotiating stance has many in Northern Ireland questioning the reliability of his other Protocol commitments, including its human rights and equality protections.

The EU did the work of mapping the connections between the single market and the GFA; this isn’t ‘aggressive reliance’ upon parts of the GFA, it is a recognition of the reality of how North-South cooperation has developed since 1998.

Its negotiators could thus identify specific aspects of the 1998 arrangements which were threatened by Brexit. In attempting to justify its creation of legislative powers to breach the Protocol, by contrast, the UK government insists that it is acting to protect the GFA.

But vague “GFA talk” makes for a thin smokescreen when the UK government is the actor which is suddenly tearing up commitments which were supposed to allow the people of Northern Ireland to get on with life after Brexit.

By Colin Murray, Reader in Public Law, Newcastle Law School.


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