12th April 2021
Before the Brexit referendum, one British politician made an emphatic statement about the impact of Brexit on the position of Northern Ireland:
‘Relations between London and Dublin are by far the warmest they have ever been since Irish independence, and the people of Northern Ireland are among the beneficiaries of that.
‘For that, the credit goes to a whole succession of British and Irish leaders, and to the tireless diplomacy of the United States. Yet it has also partly been facilitated by both countries being part of a common framework.
‘If the UK were not in the EU, the impact on such close relations, though hard to quantify, would certainly not be positive.
‘The Good Friday Agreement was based on the assumption that the two countries would be in the EU together, and the various cross-border institutions it established are built on that.
‘Hundreds of millions of euros of European funds are currently diverted into the border region through a special peace programme.
‘Most important of all, the open border between Northern Ireland and the Republic would be called into question.’
The key sentence of that passage bears repeating:
‘The Good Friday Agreement was based on the assumption that the two countries would be in the EU together, and the various cross-border institutions it established are built on that.’
Who was this politician?
Was it some starry-eyed Europhile writing in some left-wing magazine?
No, it was former Conservative foreign secretary William Hague writing in the Daily Telegraph on 9th May 2016.
Hague’s warning was not the only one – and he was also not the only one to make the connection between the European Union and the Good Friday Agreement.
The then Taoiseach Enda Kenny said, just days before the referendum:
‘When the Good Friday agreement was concluded 18 years ago, the detail of the negotiations and the agreement itself were brought about as a result of intensive engagement by the British and Irish governments in conjunction with the Northern Irish political parties.
‘But often underestimated was the international support for the process, not least that of the European Union.’
And if one looks at the Good Friday Agreement itself, you will see the following recital:
‘The British and Irish governments […]
‘Wishing to develop still further the unique relationship between their peoples and the close co-operation between their countries as friendly neighbours and as partners in the European Union’
The agreement also expressly provided that the north-south ministerial council ‘consider the European Union dimension of relevant matters, including the implementation of EU policies and programmes and proposals under consideration in the EU framework. Arrangements to be made to ensure that the views of the Council are taken into account and represented appropriately at relevant EU meetings’.
Indeed, there are eight mentions of the European Union in the agreement.
Of course, an agreement made in 1998 did not and could not have anticipated the United Kingdom voting to leave the European Union in 2016 and then leaving in 2020.
But that shared membership of the European Union was a presupposition cannot be sensibly denied.
As Hague also points out about Gibraltar, shared membership of the European Union was a handy and effective solution to tricky cross-border issues.
The European Union was a useful geo-political work-around for many otherwise insoluble problems.
And so be departing from the European Union, such advantages of membership were removed.
This should not have been a shock.
Hague set this out plainly in the Brexit-supporting Telegraph, and the Taoiseach also put his name to articles explicitly stating this.
Brexit, of course, is not in and by itself a contradiction of the Good Friday Agreement – in that the Good Friday Agreement still is in force now that the United Kingdom has departed the European Union.
In the first Miller case, the supreme court was asked to rule against the Article 50 notification, and they stated in respect of the legislation implementing that agreement:
‘In our view, this important provision, which arose out of the Belfast [Good Friday] Agreement, gave the people of Northern Ireland the right to determine whether to remain part of the United Kingdom or to become part of a united Ireland.
‘It neither regulated any other change in the constitutional status of Northern Ireland nor required the consent of a majority of the people of Northern Ireland to the withdrawal of the United Kingdom from the European Union.’
As such continued shared membership of the European Union may well have been a presupposition of the Good Friday – but it was not (as a lawyer may say) a condition precedent.
The Good Friday Agreement is, in terms of its practical importance, perhaps the most significant single constitutional instrument in the politics of the United Kingdom.
It is of far more practical importance than, say, Magna Carta.
It shapes what is – and is not – both politically permissible and politically possible.
It largely explains the curiously elaborate – and, for some, counter-intuitive – nature of Brexit in respect of Northern Ireland.
It meant that the clean absolute break with the European Union sought by many Brexit supporters did not happen.
The Irish border was to be kept open.
But the Good Friday Agreement does not only protect the nationalist community, it also should protect the unionist community.
And the Brexit arrangements – with a trade barrier effectively down the Irish Sea – is seen as much as an affront to the unionists as a visible land border infrastructure would have been an affront to the nationalists.
There is no easy answer to this problem – perhaps there is no answer, easy or hard.
It took membership of the European Union to make the Belfast Agreement possible.
Perhaps there is no alternative geo-political workaround to take its place.
Had the United Kingdom stayed within the single market and the customs union, even if as a matter of legal form it would not technically be a member of the European Union, then perhaps this problem could have been averted.
But the fateful decision by then prime minister Theresa May in the months after the Brexit Referendum that Brexit would mean leaving the single market and the customs union meant that problems in respect of the position of Northern Ireland would become stark.
And as nods to the articles by Hague and Kenny show, it cannot be averred that the United Kingdom government was not warned.
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