by Frank Schnittger
Wed Oct 17th, 2018 at 09:42:59 PM EST
I don't like saying "I told you so" and I have a policy of not simply replicating stuff I have read elsewhere, so where do you begin when the Brexit negotiating process is panning out precisely as you expected? It's like watching a supposed thriller where every new twist has been so well flagged in advance it all gets boringly predictable. I have avoided Hollywood movies for years because the script always seems to follow the same formula to the point where you cannot identify with any of the characters and you just don't care what happens to them. The scriptwriters are just playing with your emotions and seeking to manipulate your fears.
And so we have Theresa May continuing to play out her role as the designated fall-girl, seeking to bring home a deal you just know will be rejected by the House of Commons. You have the EU Commission and Council playing out their role as the big, inflexible, bad, pack of wolves seeking to bully and disrespect the game and pugnacious Mrs. May. You have May continuing the fight even as some of her supposed warriors fall by the wayside - only to betray her by sniping at her from the ditches.
And you have the cantankerous Irish only itching for a fight and being as awkward as possible. Why can't everybody just be reasonable and get along? My sociology lecturers used to joke that "common sense" was rarely common and almost never sensible. What is obvious to some can be very difficult for others. What works in one context can be sheer madness in another.
And so we have the DUP extolling the virtues of new technologies and how they can create friction less borders with the Republic but are absolutely impossible to implement at sea and airports or "in the Irish Sea". Boris Johnson rails against proposals which he says are in "in violation of the Act of Union of 1800, and the very basis on which this country [the UK] is founded". But as Noel Dorr, former Irish ambassador to the United Nations patiently explains, that act of Union was amended by the Good Friday agreement:
That agreement - an international treaty between the UK and the Irish Government, registered at the United Nations - recognised "that it is for the people of Ireland alone, by agreement between the two parts", voting concurrently, to bring about a united Ireland, if that is their wish"; it recognised the right of all the people of Northern Ireland to be "Irish or British, or both, as they may so choose"; and, most notably, it specifically provided for "changes" in British legislation and in the Constitution of Ireland "relating to the constitutional status of Northern Ireland" (emphasis added).
To give effect to the agreement on the UK side, parliament passed the Northern Ireland Act 1998. Its first article provides that Northern Ireland "shall not cease" to be part of the United Kingdom without the consent of a majority of the people there.
It also provides that, if a majority in a poll do express a wish to form part of a united Ireland, proposals to that effect agreed between the British and Irish governments will be put to parliament. Furthermore, Article 2 repeals the Government of Ireland Act 1920 and - as Boris should know - stipulates that the new act is to have effect "notwithstanding any other previous enactment".
To implement the agreement on the Irish side we changed our Constitution so that it now provides that "a united Ireland shall be brought about only by peaceful means" and with the consent, democratically expressed, of a majority in both jurisdictions in the island.
These back-to-back provisions - agreed by all participants in prolonged and arduous negotiations following years of conflict, incorporated in an international treaty registered at the UN, ratified in concurrent referendums by the people of Ireland North and South and, from a legal point of view, enshrined in law by an Act of the United Kingdom Parliament and, in Ireland, by an amendment to the Constitution - which, since 1998, ought properly be described as "the constitutional status of Northern Ireland".
As a settlement, this, so far as I know, is unique. And it creates a constitutional status for Northern Ireland which is distinctive and quite different from that of any other part of the United Kingdom.
In theory it should be easy to insert clauses in the Backstop wording of the Withdrawal Agreement which explicitly reiterate these points, and thus enable Boris Johnson and Theresa May to get off their high horses about the EU trying to break up "their" Union and effect constitutional change in Northern Ireland. But in practice neither May nor Johnson are as yet "solution seeking" and working to find a practical solution. They are still at the grandstanding stage when they should be closing in on the deal.
Simply put, N. Ireland remaining in the Single Market and Customs Union is an economic arrangement of no constitutional significance whatsoever. Indeed it merely maintains the status quo established by the Good Friday agreement.
My fear is that it may be some time after a hard no-deal Brexit has actually happened before they realise that all this posturing has been in vain. The EU was never going to allow the UK cost free and unfettered access to the Single Market indefinitely. Norway has to pay a sum not dissimilar to what the UK pays per capita for complete EU membership. For N. Ireland they were prepared to make an exception - as they have for Greenland, Jersey and Gibraltar - but as usual the DUP can't even recognise a gift horse when they are being offered it.
I have responded to Noel Dorr's article (in the comments) as follows:
And yet, to a extent, Noel Dorr misses the point of DUP opposition. The DUP is aware that "the backstop" doesn't change the constitutional status of N. Ireland and that it, indeed, maintains the status quo of no customs border within Ireland.
Their opposition is part economic: N. Ireland trades more with Britain than it does with Ireland, and therefor any impediments to trade across the Irish sea could have serious economic consequences. It is also in part political: as it feeds into their paranoia of any kind of new political distinctions being made between Britain and N. Ireland.
Little matter that there are already legislative and regulatory differences between N. Ireland and the UK when it suits them - e.g. on marriage equality, access to abortion, phyto-sanitory controls, animal exports, and the rules governing the transparency of political donations. They can argue that these are devolved matters, whereas continued membership of a Customs Union may not be.
The answer to their concerns can be found in Greenland, which left the EU even though it remains part of the Kingdom of Denmark proving that even full membership of the EU doesn't have to apply uniformly to all parts of a sovereign state. Jersey and Gibraltar also have anomalous relationships with the EU that may survive Brexit.
But Brexit has become the DUP's revenge against the Good Friday Agreement - a chance to get one back against their nationalist antagonists - and to give ground now would be to lose face and perhaps their leading position within Unionism.
The logic of the British position is far less clear: to risk a no-deal Brexit for want of an agreed back-stop makes no sense whatsoever. But perhaps a no deal Brexit actually has to happen for that to become clear to the BoJos of this world.
Reading the pages of the The Telegraph still gives the sense of a country living in a time warp unrelated to present day reality. There is a sense of entitlement which no other non-member of the EU presumes - not even the USA. It may take a very long time for the penny to drop for the UK to actually realise that merely having been a member of the EU doesn't entitle it to continued benefits other non-members do not enjoy. Indeed, if the EU were to give those benefits to the UK, the EU would be required, under WTO 'most favoured nation' rules, to give the same benefits to all other non-members of the EU.
There is only so much you can achieve across the negotiating table, and changing a whole national elite's sense of entitlement is not one of them. That can take many years of hard and bitter experience. Increasingly, it looks like we are going to have to get used to a prolonged period of no deal antagonism with the UK, only to finally arrive at a deal that could have been agreed yesterday. Seamus Mallon famously described the Good Friday Agreement as "Sunningdale for slow learners" - in reference to an 1973 agreement to resolve the N. Ireland conflict which was quite similar to the Good Friday Agreement and which had been sabotaged by violent unionist opposition.
A return to the dark days of conflict in and around N. Ireland will never be tolerated by Ireland and the EU. It remains a question of how long it will take the UK to realise this. Perhaps the Irish Backstop will come to be known as "The Good Friday Agreement for slow learners".