Island of Ireland – The Law and Policy Blog

A close look at the law and policy of holding a Northern Ireland border poll – and how the law may shape what will be an essentially political decision

10th February 2024

This week Prospect posted something by me on the issue of a potential border poll in Northern Ireland.

This post unpacks that Prospect post – a sort of “behind the scenes” perambulation of how that post came together – and a further discussion of the issues.

The starting point is that a potential referendum in Northern Ireland has been in the news.

On one hand:

On the other hand:

The Sinn Fein quote was:

“What I firmly believe is – in this decade – we will have those referendums, and it’s my job and the job of people like me who believe in reunification to convince, to win hearts and minds and to convince people of that opportunity – part of which, by the way, will be really consolidating our relationship with Britain as our next door neighbour and good friend.”

Asked if she meant before 2030, Ms McDonald said “yes”.

The Prime Minister’s quote was:

Rishi Sunak has told Sinn Fein to focus on the “day to day” concerns of people in Northern Ireland rather than a referendum on Irish reunification.

The PM said “constitutional change” should not be a priority for the Irish nationalist party, after newly appointed first minister

Now we will look at the relevant legislation – the Northern Ireland Act 1998.

There are two key provisions.

First, there is section 1, which should be read carefully:

(And legislative and literary purists will react pleasingly to that “But” at the start of the second sub-section.)

That section 1 needs to be seen in the context of, well, other sections 1s.

Here is section 1 of the Ireland Act 1949 – and look especially at sub-section1(2):

You will see at sub-section 1(2) what can be called the “consent” principle – though it would be for the then parliament of Northern Ireland to give that consent (which at the time would seem very unlikely).

By 1973 that parliament was suspended, and so the Northern Ireland Act 1973 switched the giving of consent to a majority of the people of Northern Ireland:

And as my Substack has set out at length before there had been such a border poll, just before the 1973 Act was passed.

The 1973 poll was heavily in favour of the union – and the nationalists largely boycotted the vote.

At the time the poll seemed pointless from a nationalist perspective, and it was also seen as a sop from the London government to the unionist majority.

However, sometimes, things change – and demographics change.

Those seeking the unification of the island of Ireland no longer see border polls as a necessarily unionist device.

Indeed, the roles are somewhat reversed: it is now the unionists that are wary of a border poll.

Having set out that context, let us go back to the text of section 1 of the 1998 Act:

Here there is a declaration – and you will note similar wording was used in the 1949 and 1973 Acts. The use of a declaration is not new. And it really has to be a declaration (or affirmation) as it describes something as it stands, rather than providing for something new. Section 1 does not make Northern Ireland part of the United Kingdom – that status rests on other legal instruments.

The sub-section also repeats the requirement that consent is required for this declared status to change – and like the 1973 Act it then refers to a schedule to the Act.

But.

There is that second sub-section, beginning with a “But”.

And this is where it becomes interesting and departs substantially from previous legislation:

The word “shall” in that provision is highly significant.

For sub-section 2 creates an obligation. If the majority in such a poll supports unification, then the government of the United Kingdom has to bring forward the legislation that would make this so.

If you read carefully, however, you will note that the obligation only goes to putting legislation before parliament. It does not actually place an obligation on the government of the United Kingdom to ensure such legislation is passed. In this technical way, the supremacy of the Westminster parliament is maintained.

But if there was such a poll majority, it is difficult to see how the Westminster parliament would reject such legislation – though presumably some unionist and conservative MPs would oppose it, regardless of the “will of the people” on this one inconvenient occasion.

So much for section 1 of the 1998 Act – for it is in the first schedule that the real excitement begins.

(Oh, for what it is worth, lawyers tend to call them sh-edules, not sk-edules when they are in legal documents, I do not know why.)

Here are the first two paragraphs of the schedule:

The two paragraphs are doing different things.

The first paragraph confers a discretion on the government of the United Kingdom (acting through the Secretary of State for Northern Ireland). The key word is “may”.

The Secretary of State may direct there to be a vote; or, then again, the Secretary of State may not do so. It is a choice.

On the face of it, it is an absolute discretion – the Secretary of State may direct as many such border polls as he or she would like. One poll a day, every day even.

But in invisible ink, so to speak, there are limits to be discretion that are implied by law.

The discretion has to be exercised in the public interest and for the purpose of section 1. And given it is part of a statutory scheme implementing the Good Friday Agreement, it would also be necessarily implicit that the discretion should be not be exercised in the selfish interests of the United Kingdom government in maintaining the union.

But those are very wide parameters, and the courts would not intervene if the paragraph 1 discretion is never exercised in favour of holding a border poll.

(If such a poll is held, however, and a majority is in favour of unification, that would mean section 1(2) applies and legislation would have to be brought forward.)

Now let us look at the fascinating and significant second paragraph:

This is distinct to and separate from the discretion conferred in the first paragraph, for this paragraph imposes an obligation.

The government of the United Kingdom has to hold a border poll if the condition in that paragraph is met: the government of the United Kingdom cannot choose not to do so.

The condition is framed in wide terms and contains two elements, which I will call (A) and (B): the Secretary of State shall exercise the power under paragraph 1 if (A) at any time it appears likely to him [or her] that (B) a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland.

The first element (A) is about as wide as you can have as a ministerial discretion under public law (the law governing public bodies). This means a court will not intervene readily to gainsay what the Secretary of State considers to be the position.

But.

Element (B) limits that subjective discretion.

Consider the following: that there is, over a period of time, an accumulation of evidence that the nationalist parties are securing majorities both of the popular vote and of the seats on representative bodies, in successive elections, and especially for seats in the Assembly and the Westminster parliament. And that such support is not a blip but a sustained trend.

There will come a point – a tipping point – where it will be come impossible for a Secretary of State to plausibly maintain that it is unlikely that a majority would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland.

It would become literally incredible.

At that point, the so-called Wednesbury doctrine (named after this case which my Substack has examined before) will apply.

The Wednesbury rule is that, as a matter of law, it is not open for a public law decision-maker to make a decision so unreasonable that no reasonable public law decision-maker would make it.

A refusal by a Secretary of State to direct that a border poll take place in certain circumstances would be Wednesbury unreasonable.

And that would then make it potentially a matter for the courts.

The courts will not want to deal with it.

The courts will view this as a political question.

And the two judgments in the McCord litigation (here and here), where an application was made to make the government of the United Kingdom publish (and thereby abide by) a policy on when it would call a border poll, show that judges really REALLY do not want to get involved.

But.

The judges may not get to duck out of it, as much as they would like to do so.

For that second paragraph was placed on a statutory basis deliberately, so that it could have effect in a certain situation.

Here we need to look at the Good Friday Agreement.

The parties to that agreement, including the governments of the United Kingdom and Ireland, agreed the following:

Section 1 and Schedule 1 of the 1998 Act are both express parts of the Good Friday Agreement.

And the United Kingdom undertook to place the provisions on the statute book as part of their obligations under the agreement.

The sentiments behind the provisions could have been put in a mere political declaration, or a recital, or something else without any (real) legal effect – but no. The other parties to the Good Friday Agreement required the United Kingdom to place these provisions into law, and the United Kingdom freely accepted that requirement.

The other parties were wise to do so.

For by placing the obligation into legislation, a legal backstop was created where, if – if – the point was eventually reached where there was simply an abundance of evidence that a majority supported the unification of the island of Ireland, the United Kingdom could not maintain an unreasonable refusal to hold a border poll.

Of course, in that extreme scenario, the judges may still wish not to get involved – and it is unlikely that the courts would grant a so-called mandatory order requiring the Secretary of State to direct a border poll.

But there would be no reason why the court could not grant a declaration saying instead that a refusal would be Wednesbury unreasonable.

Another ground on which the courts may intervene is if the second paragraph was used by the government of the United Kingdom to cynically hold a snap border poll hoping that they would win, so as to gain the protection of the stipulation that another such poll could not be held within seven years.

Such a ploy would be in bad faith, and for a collateral purpose, and this would mean that a court could quash such an order.

Wednesbury and bad faith are among the very widest parameters in the public law of the United Kingdom – and they only apply in exceptional cases. But they are there, and this means that paragraph 2 of the schedule is not a law-free zone – as much as politicians (and judges) may want it to be.

There will be circumstances where nationalists can and will apply to the courts to enforce a provision freely agreed to and legislated by the British state. And so the government of the United Kingdom cannot just refuse a border poll forever, regardless of what happens in Northern Ireland.

Of course, the condition in paragraph 2 may never be met. It may well be that the evidence never becomes that overwhelming and stark, and that support for unification (like support for independence in Scotland) never solidifies into an ongoing, sustained majority.

But that a condition is not (easily) met does not make it any less of a condition at law. The government of the United Kingdom knows it is there, and the nationalist community knows it is there.

It is no longer an absolutely free choice by the government of the United Kingdom whether there is a border poll or not.

Holding a border poll for Northern Ireland is essentially a political matter.

And in the real world, it is a matter that will undoubtedly be decided by politics, and not by courts.

Yet it is not a situation where the law is entirely absent. The 1998 Act sets a longstop where, if a certain condition is ever met, a border poll has to be held – even if the United Kingdom does not want to do so – and that a majority in that poll for unification has to be respected.

And this is a key and express part of the Good Friday Agreement, that carefully crafted (and extraordinary) document which has had so many long-term effects on our polity.

Going back to the quotes at the top of this post:

The suggestion is that Sinn Fein believes they will be able to show a sustained majority for unification within ten years; while the British government wants the political majorities in Northern Ireland to signify other day-to-day things, unconnected with the unification question.

You can see why, for both, these are the lines-to-take.

An objective of the nationalists is to create a “majority” situation where it would be unreasonable for a border poll not to be held; while an objective of the British government is to have a situation where a Secretary of State in good faith can reasonably believe that no such majority (yet) exists.

But if and when a political decision is made for the poll to take place, there will be some regard to the ultimate legal position under the first schedule to the 1998 Act.

As always: law shapes policy and politics; and politics and policy shape law.

And the policy and politics that shaped the extraordinary and consequential Good Friday Agreement (and the 1998 Act) in turn continue to shape the policy and politics of the United Kingdom.

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The extraordinary newspaper column of the Home Secretary – and its implications

9th November 2023

The extraordinary newspaper column of the Home Secretary – the Home Secretary! – should be either consequential (in that the Home Secretary loses their job) or significant (in that it signifies something about the government that does not sack this Home Secretary).

But in neither situation, should it be treated as normal, and it should not just be shrugged off as an ambitious politician seeking advancement. It should matter, one way or the other.

This blog does not offer commentary on Israel/Palestine/Gaza – as this blog does not have any special knowledge or understanding about the Middle East.

But this blog does follow the constitutional (and operational) relationship between central government and the Metropolitan Police, and it also follows free expression issues and Irish matters.

And in respect of each of those things, the Home Secretary’s column is (at best) unfortunate and (at worst) horrific.

It is a rare Home Secretary who makes the Metropolitan Police – the Metropolitan Police! – look liberal.

If the Home Secretary keeps their job after this, their intervention should not be forgotten. It was a crass and illiberal assault on the constitutional (and operational) independence of the police, against freedom of expression, and based in part on a mangled and limited understanding of Irish history.

This intervention should not have any place in our polity, even in these unusual political times.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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Why the Northern Irish Border Poll of 1973 was both unimportant and profoundly important

(This post is a long excerpt from a fuller post at the Empty City substack for paying subscribers.)

This post is about the border poll that took place in Northern Ireland on 8 March 1973.

The choices in that poll were:

“Do you want Northern Ireland to remain part of the United Kingdom?

“Do you want Northern Ireland to be joined with the Republic of Ireland outside the United Kingdom?”

(Pic source.)

By 591,820 votes to 6,423 votes, on a 56% turnout, the result of the poll was in favour of Northern Ireland remaining part of the United Kingdom.

This result was not a surprise, given the electorate of Northern Ireland at the time.

And the low turnout was, in part, caused by a boycott of the exercise by the nationalist community.

This 1973 poll – or plebiscite or referendum, for the terminology varied – is not that well-known. Many histories of the period do not mention it.

When it is mentioned the poll is often regarded as a pointless exercise which did nothing to satisfy the unionists, and which certainly had no legitimacy for the nationalists.

And even at the time the poll was regarded as being fairly unimportant, almost trivial.

The poll was imposed by the United Kingdom government during a political and security crisis; the Northern Irish unionists had not asked for any such poll to take place; the nationalists did not campaign or vote; and, in any case, the result was a conclusion foregone.

The poll also had little-to-no direct impact on events: it did not seem to change anything that otherwise would have happened either in 1973 or the years that followed.

Soon the poll was pretty much forgotten about.

And none of the subsequent periodic polls in Northern Ireland which were then envisaged by the United Kingdom government took place.

As such, the poll can be seen as a minor detail, almost a footnote, to the story of Northern Ireland during “the Troubles”.

The 1973 poll was unimportant, at least in any direct sense.

But.

But the poll can perhaps now be seen as profoundly important in its implications and consequences, for two reasons.

First, this poll was the first referendum under a dedicated Act of the parliament of the United Kingdom, and this meant that it was far easier for the other referendums that followed.

Before 1973, there had been local polls by local councils on local matters in the United Kingdom, held under general and permissive Acts of Parliament that enabled local councils to hold such local polls on local matters.

But this border poll was different – radically different.

It was the first time a matter which would normally be for the parliament in Westminster (or the then Northern Irish parliament at Stormont) was put to the people directly, despite heady notions of parliamentary supremacy or sovereignty, in any or all of the four constituent parts of the United Kingdom.

As my Substack has previously set out, senior British politicians since late Victorian times had sometimes called for referendums, usually to help them out of knotty problems.

But this was the first referendum to actually take place on a matter usually reserved for parliament.

As such, this was the first actual exception to the hitherto hard doctrine of parliamentary supremacy.

Other exceptions would soon follow.

Following this first dedicated referendum there was then the referendum in 1975 on the United Kingdom remaining part of the then European Communities, and then referendums in Scotland and Wales on devolution in 1979.

And those referendums, in turn, meant that by the late 1990s referendums were seen as a valid means for dealing with renewed calls for devolution.

In 1998 a referendum was seen as the obvious means for endorsing the Good Friday Agreement.

Also, from the early 1990s, referendums were frequently demanded in respect of the European Union, and one was finally granted in 2016.

There was even a referendum on electoral reform.

Referendums went from being a constitutional exception to being, at least for certain matters, a constitutional rule.

Yet without the Border Poll of 1973 the referendums of 1975 and 1979 and many of those thereafter may never have taken place.

Perhaps the vote on the Good Friday Agreement would have still occurred, but even then the precedent of 1973 was perhaps instrumental in it being recognised that it was for the people of Northern Ireland (and not their politicians) to make this key decision.

After 1973 the old doctrine of parliamentary supremacy became undermined in reality, if not in strict constitutional theory.

There were certain matters which it became parliament should refer to the people.

Second, not only was the border poll an exception to one fundamental principle, it was also an important practical assertion of what was to become another fundamental principle.

For the border poll of 1973 was the first application of what is now a fundamental principle which can be stated as follows: that it is for the people of Northern Ireland to decide whether Northern Ireland is to become part of a unified island of Ireland or to remain part of the United Kingdom.

And note the reference here to “the people” – and thereby the decision is not for the politicians of Northern Ireland or any representative body, such as a Northern Ireland parliament.

This is significant.

The principle – which was first canvassed by the United Kingdom government in the late 1960s – informed and shaped what has happened in Northern Ireland since 1973, via the Good Friday Agreement, to the present day.

And it is this fundamental principle that explains why it is probable there will be a further border poll in Northern Ireland in the next few years.

The 1973 Border Poll, however, came about almost by accident, as one of many novel improvisations in a difficult political situation.

Here we need to go back to the United Kingdom’s Ireland Act of 1949 that provided that in no event would Northern Ireland cease to be part of the United Kingdom without the consent of the parliament of Northern Ireland.

It was a matter for the parliament of Northern Ireland, and not the Northern Irish people directly.

See section 1(2):

But by 1973 there was no parliament of Northern Ireland.

The parliament of Northern Ireland had been suspended.

And so when the government of the United Kingdom, facing the escalation of the Troubles, decided that there should be some affirmation of Northern Ireland’s position in the United Kingdom a decision was made that there should be a direct poll instead.

What had been, under the 1949 Act, a matter for the elected parliament of Northern Ireland was, at a stroke, made a matter for the people of Northern Ireland directly.

The 1949 Act had not said the consent of the people was needed or even should ever be sought on the place of Northern Ireland in the United Kingdom. It was not an issue for any popular vote.

But in 1973 it was made a matter for the people of Northern Ireland directly, and it has been ever since.

See section 1 of this 1973 Act, which followed the border poll:

And then section 1 of the 1998 Act that gave effect to the Good Friday Agreement:

Never again would an Act of Parliament say the place of Northern Ireland in the United Kingdom was a decision to be taken on behalf of the people of Northern Ireland.

So in terms of the immediate politics of 1973 the border poll may not have been important, but the use of a referendum for such a question was profound in its implications and consequences.

And as we approach a probable new border poll in Northern Ireland, it is a story that is perhaps worth knowing.

Over at my Empty City Substack I have posted a fuller account of the 1973 border poll for paying subscribers.

The fuller article has also been posted at my Patreon.

Any PayPal subscribers wanting access to the fuller article should leave a message below marked private with their email address.

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Why the United Kingdom government cannot leave the ECHR without either breaching or re-negotiating the Good Friday Agreement

1st July 2023

The overlooked obstacle to the United Kingdom withdrawing from the ECHR

From time to time the demand comes from a government minister, or from one of their political and media supporters, for the United Kingdom to leave the European Convention of Human Rights.

This short blogpost sets out the most obvious obstacle for the government in doing this.

The obstacle – if that is the correct word – is the Good Friday Agreement.

That thirty-six page document – which is not as read as widely as it should be – contains a number of express provisions in respect of the ECHR:

“The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.

[…]

“There will be safeguards to ensure that all sections of the community can participate and work together successfully in the operation of these institutions and that all sections of the community are protected, including: […]

“(b) the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission

[…]

“The Assembly will have authority to pass primary legislation for Northern Ireland in devolved areas, subject to: (a) the ECHR […]”

And so on.

The ECHR is not just mentioned in passing in a recital.

Instead the ECHR is integral to the Good Friday Agreement.

Rights under the ECHR that can be relied upon in Northern Ireland are a fundamental part of the agreement.

It was important to Ireland – and to the nationalist community – that there were rights beyond the reach of Westminster and Whitehall (and Stormont) that could be enforced directly against the state of the United Kingdom, including against the police and security services.

When this obstacle is pointed out, sometimes the response is “Aha! Why not just have the ECHR applicable in Northern Ireland?”

Of course, there is nothing in the Good Friday Agreement which expressly requires rights under the ECHR to be directly enforceable elsewhere in the United Kingdom.

But.

Article 1 of the ECHR provides:

It may thereby not be open to the United Kingdom to be a party to the ECHR and pick-and-choose who within its jurisdiction can have the benefit of the rights.

This would be in addition to the political issues about having a further legal “border down the Irish Sea”, which presumably would not be welcome to unionists.

Perhaps the government of the United Kingdom could seek to renegotiate the Good Friday Agreement?

This would mean Ireland agreeing that those – especially nationalists – in Northern Ireland should have their existing legal rights against the United Kingdom state removed.

It would also mean Ireland agreeing that it would not be able to take the United Kingdom to court in Strasbourg.

And it would also mean – in practice – the United States and the nationalist community agreeing that legal rights and protections are removed.

This is not at all realistic.

And the difficulty cannot be resolved by simply copying and pasting the Convention rights into a domestic statute for Northern Ireland.

For unless the rights are as constructed and interpreted by the Strasbourg court, and unless a disappointed party can petition the Strasbourg court directly, they are not “convention rights” – even if identically worded.

(This is partly why even Dominic Raab’s “Bill of Rights” that was to repeal the Human Rights Act had the convention rights in a schedule and a duty on public authorities to comply with those rights.)

Part of the difficulty of Brexit was because some did not know or did not care about the particular situation of Northern Ireland. Some also pretended it was not an issue, but as we now know it needed special care and attention – and it still has not been fully resolved.

Similarly those who believe just leaving the ECHR would be easy may again be overlooking the Irish and Northern Irish dimensions.

And unless the Good Friday Agreement is re-negotiated, the United Kingdom leaving the ECHR would place the United Kingdom in breach in Good Friday Agreement.

Well, at least as long as Northern Ireland remains part of the United Kingdom.

And that would be another story.

This post is partly drawn from this earlier blogpost.

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Is the “Stormont Brake” an instrument or an ornament? And does it matter?

28th February 2023

Here I will pose the question whether the proposed “Stormont Brake” is an instrument or an ornament.

In other words: is the brake something which can actually be used – and be useful – in practice?

Here are some preliminary views, based on my first reading of the extensive documentation published yesterday for the “Windsor Framework”.

There is no doubt that, in theory, the brake is a very powerful instrument.

If the brake is applied then specific new European Union legislation will not apply in Northern Ireland, notwithstanding the Northern Irish Protocol agreed in 2020.

But.

Even in describing this (potential) potency you will see limitations.

The brake will only apply to new European Union legislation, not existing legislation.

There will be only a short period to challenge the legislation.

And the brake does nothing about the jurisdiction of the European Union courts in interpreting the law of the European Union when it applies in Northern Ireland.

So even taking the brake at its most powerful, its effect will be limited.

And there is another but.

The small-print of the documents published yesterday show that the conditions and process for the brake are such that, in practice, it will be difficult-to-impossible to apply.

The documents expressly describe it as an “emergency” brake.

For it to be used, the Northern Irish executive needs to be be in place and functioning.

There would then need to be thirty members of the Northern Irish legislative assembly, from more than one party, who are concerned about the proposed measure.

But mere expressions of concern will not be enough.

The MLAs will need to show:

(A) “most exceptional circumstances and as a last resort, having used every other available mechanism” and

(B) a significant impact specific to “the everyday life of communities in Northern Ireland in a way that is liable to persist”.

And if you read that last requirement carefully you will see that it is comprised of three component conditions:

(i) scope – “everyday life of communities” (and note the deft plural);

(ii) significance of impact; and

(iii) duration – “in a way that is liable to persist”.

The MLAs also need to show (C) that they have consulted businesses and civic society, as well as (D) they have participated in any prior consultation exercises for the measure.

Once this step has been accomplished, the government of United Kingdom in turn has to show the European Union (E) why it considers the EU legislation is different from what went before, and – as above (B) again – that the United Kingdom itself considers that it “would have a significant impact specific to everyday life of communities in Northern Ireland in a way that is liable to persist”.

All of these conditions are defined, and presumably if the United Kingdom cannot show the conditions have been met then the Stormont Brake cannot be applied.

(I am still trying to work out how any dispute in any of this will be resolved.)

There is a see-saw problem as well.

If a thing is too difficult to be used then it will tend not to be used.

One reason the safeguard provisions under the existing protocol have not been fully used is that the sheer number of conditions and requirements that need to be ticked-off before they can be activated.

As such the provision has become an ornament rather than an instrument.

The same problem may be there with the Stormont Brake.

It may become an ornament, for it will be so difficult to use in practice.

Perhaps that is the intention: it will just be there for reassurance that such a button can be pressed.

But the same was said of the then-new Article 50, after the Lisbon treaty.

It is never safe to assume that an ornamental provision will never be used, and so it always should be capable of working for the intended purpose.

I am not a supporter of the ERG or the DUP – I support a united Ireland and for the rest of the United Kingdom being part of the single market.

As such, I think the Windsor Framework is a welcome step.

But if I were a supporter of the ERG or the DUP I would not be satisfied by the Stormont Brake – at least with all its current conditions.

Else there will just be another bout of political tension as and when, like the Article 16 safeguards, the Stormont Brake is not seen as a ready remedy.

And we will have to negotiate a new framework and find a new symbolic place to name it after.

Perhaps the brake does not matter.

Perhaps it is all politics.

Perhaps those involved just want cover for bringing this row to an end, and the Windsor Framework contains a raft of other practical measures to address practical problems.

And as someone observed on Twitter, it is somewhat fitting that a symbolic problem has a symbolic solution.

https://twitter.com/mathof1/status/1630510607647514624

But if it ever does matter, then the brake must be capable of working.

It cannot just be an ornament.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

The Windsor Not or a Windsor Knot?

27th February 2023

While we wait for the legal text of the new agreement between the United Kingdom and the European Union to be published, this is just a quick post about the optics.

It has been a long-standing joke that to get some European thing past government supporters and the popular media, all that would need to be done is to call it something like the “Winston Churchill Protocol”.

Calling this agreement the “Windsor Framework” – and getting the royal imprint – is a choreographically deft move.

But form, of course, is not substance, and the text – when it is published – will require hard scrutiny.

This is especially the case of the supposed “brake” which may or may not be really that different from the current dispute resolution procedures.

Here it is interesting that they have chosen the word “brake” – which is not a legal term of art – instead of, say, veto.

(Perhaps they thought they could make it sound like a “break clause” – which is a thing for property lawyers.)

Anyway, let us see.

But, for now, the politics is encouraging and refreshingly grown-up.

Even if this turns out to be more of a Windsor Not than a Windsor Knot.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

Beyond the bare “necessity” – the government’s supposed justification under international law for the Northern Irish Protocol Bill falls away

23rd February 2023

You may recall that the government of the United Kingdom, when it published the Northern Irish Protocol Bill also published a “legal position” in support of the Bill.

The purpose of that “legal position” was to provide a response to those troublesome sorts inside and outside the government who wanted to know if the proposals in the Bill would breach international law.

You may also recall that somehow it became known that the government’s external legal adviser – pleasingly known as the “Treasury Devil” – was not altogether comfortable with this legal position.

This all very exciting at the time – though like many things in our relentless post-Brexit politics, it now seems a long time ago.

The offered justification was the doctrine of legal “necessity”.

My post on this was “The bare “necessity” – how the legal position of the United Kingdom on the Northern Irish Protocol Bill makes no sense”.

As far as can be worked out, this remains the government’s sole justification under international law for the proposals.

This in turn means that if this justification falls away, there will be no basis for the proposals in international law.

The Bill’s key provision which would enable the United Kingdom to breach the Northern Irish Protocol would be a breach of international law.

You may not care that is the the case – and you may just shrug or even go “hurrah”.

But that nonchalant or merry response does not take away from the breach of international law, and that is what the government wanted to pretend was not going to happen.

The government now has a problem.

The Northern Ireland Bill’s lack of parliamentary progress evidences, if not demonstrates, a lack of urgency by the government.

Even the Bill’s supporters talk of it only as an option, to be used “if required”.

The PM’s spokesperson says the Northern Ireland Protocol Bill is an “important piece of legislation if required”

ERG and co think the passage of the bill *is* required, whereas no10 does not

— Adam Payne (@adampayne26) February 20, 2023

But something which is not urgent and optional cannot at the same time meet the international law test of necessity.

By their own (lack of) conduct the government has undermined the only argument they (said they) had.

And this is not just the view of a liberal legal blogger, but also that of a former Lord Chancellor and member of the cabinet during during Brexit, Robert Buckland:

📝 Former Secretary of State Robert Buckland wrote in @TheHouseMag: "The Northern Ireland Protocol Bill has outlived its political usefulness and no longer has any legal justification."https://t.co/ye5xZz4S4r

— PoliticsHome (@politicshome) February 22, 2023

Buckland avers in the magazine of the House of Commons itself:

“The Northern Ireland Protocol Bill has outlived its political usefulness and no longer has any legal justification. It is the proverbial dead letter.”

One may question if it ever really had any legal justification.

But even taking the government’s position at its highest, that purported justification has now gone.

What was a bare “necessity” argument is now just, well, bare.

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The seven ways the matter of Brexit and the island of Ireland can be ultimately resolved

21st February 2023

A few days ago I tweeted that there were only two ways the matter of Brexit and the island of Ireland can be ultimately resolved.

But that was wrong, there are seven.

By “ultimately resolved” I do not mean any of the work-arounds and quick-fixes being currently negotiated or proposed.

I mean instead that there is a situation where such work-arounds and quick-fixes are not needed, and that there is a settled and sustainable situation that means Brexit is not a problem.

These are the seven ways.

One: the European Union and/or the Single Market ceasing to exist.

This is highly unlikely.

Two: Ireland leaving the European Union and/or the Single Market.

This is also highly unlikely.

Three: the United Kingdom rejoining the European Union.

This is unlikely at least for a political generation – and it would require the European Union wanting the United Kingdom back, which given our ongoing political psycho-drama is difficult to envisage.

Four: Northern Ireland not sharing a Single Market with Ireland.

This is unlikely, as it would mean a trading border, and perhaps even border infrastructure, on the island of Ireland. Some would say that such invisible and visible borders would be a breach of the spirit, if not the words, of the Good Friday Agreement.

Five: the United Kingdom as a whole sharing in the Single Market, even if formally outside the European Union.

This was the preference of some “liberal” Brexiters and it was also pretty much the (infamous) “backstop” position of the withdrawal agreement negotiated by Theresa May, the last-but-two of our recent prime ministers. That agreement was voted down by Parliament and led to a change of Prime Minister.

Six: Northern Ireland sharing a Single Market with Ireland, but not the rest of the United Kingdom.

This is the current position under the Northern Irish Protocol, negotiated and promoted as an “oven-ready” agreement by Boris Johnson, the last-but-one of our recent prime ministers: the trade border down the Irish Sea. This is not acceptable to the Democratic Unionist party and some government backbenchers.

Seven: a united Ireland.

This would at, a stroke, resolve the matter of Brexit and the island of Ireland.

Given the first two options are literally incredible, the third is unlikely in the short-to-medium term, and the fourth is politically impossible, that leaves the final three. As the fifth and sixth do not have settled political support, that leaves only the seventh.

In my tweet I thought the third and the seventh are now the only real options of resolving ultimately the matter of Brexit and the island of Ireland.

The others were unlikely-to-impossible or politically unacceptable.

Many of you will prefer the United Kingdom to re-join the European Union, or at least the Single Market; and my own first preference is for a united Ireland, with participation in the Single Market for Great Britain by means of a close association agreement.

But whatever your preference, the ultimate resolution has to be one of these seven.

And until and unless one is accepted, there will be an ongoing problem in the matter of Brexit and the island of Ireland.

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Imagine what would happen if – if – the Northern Irish Protocol issue is resolved

16th February 2023

The news is promising:

NEW: A special restricted meeting of EU ambassadors has been called for tomorrow to discuss “#EU–#UK relations” as a deal on #NorthernIreland Protocol appears to be edging closer

— Jessica Parker (@MarkerJParker) February 16, 2023

So let us think what would happen if – and it is an if – the Northern Irish Protocol issue is ever resolved.

(And some of you will doubt it ever will be.)

As it stands the focus of the post-Brexit relationship is Northern Ireland and the protocol.

The government of the United Kingdom is seeking to be able to break international law for the sake of doing something about the protocol.

The government is also telling its political and media supporters that it will withdraw from the European Convention on Human Rights as a distraction, it seems, from any compromise on the protocol.

Everything in UK-EU relations – at least on the United Kingdom side – appears to be governed by the protocol.

So imagine: what if that issue was no longer there?

What then?

The cynical will think that there would have to be a new issue for the governing party to rally support of Brexiters: that a new dispute with the European Union will be raise, even contrived, and off we will go again.

Maybe.

But there would also be the possibility of the pragmatists and realists to guide policy and move on to what needs to happen next: a sustainable basis for a close UK-EU relationship.

The preference of this blog (ever since the referendum result) has been for the United Kingdom to leave the European Union and to move quickly into the closest possible association agreement, with as much participation in the single market as the European Union will allow us and which the United Kingdom government can also get past its supporters.

Negotiations for such an ideal arrangement should ideally have started by now, and discussions need to start by the time the periodic review of the relationship begins under the withdrawal agreements.

A deal on the Northern Irish Protocol will enable this grown-up and sensible discussion to (finally) take place.

Ho, ho.

Of course, this side of a general election there is little prospect of the government openly seeking a closer relationship with the European Union.

But such a close relationship would necessarily require the Northern Irish Protocol to be practically settled first.

(By “practically settle” I mean that the tensions and frictions occasioned by the protocol have viable work-around solutions – for, as this blog has averred before, the ultimate issue of there being a post-Brexit trading border on the island of Ireland can only be solved by Irish unification – or by the United Kingdom rejoining the European Union.)

And there would then need to be a period where the United Kingdom approach to policy is – frankly – less crazy than seeking to break international law as leverage so as to get its way in a dispute.

United Kingdom policy and politics on Brexit would need to calm down for a while.

Any deal in the coming weeks on the protocol between the United Kingdom and the European Union will also need to survive attacks from the Democratic Unionist Party and some of the government’s own backbenchers.

These attacks may delay the issue being practically resolved – but these attacks may be time limited in their potency.

But until such attacks do become politically impotent, it may be that practical resolution of the Northern Irish Protocol issue will happen, but not just yet.

We will have to wait.

(In the longer term, of course, the issue of there being a trading border on the island of Ireland probably will be resolved by Irish unification.)

And if the Northern Irish Protocol issue is practically resolved then we perhaps can have fresh and interesting conversations about our post-Brexit relationship with the European Union.

Gosh.

Imagine that.

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Will there be a deal on the Northern Irish Protocol? And what then?

14th February 2023

The negotiations for the final shape of Brexit continue, even though the United Kingdom departed the European Union three years ago.

Of course: it would have been more sensible to have concluded these negotiations before the United Kingdom departed (as some of us pointed out at the time), but both the United Kingdom and the European Union wanted to press on and get the formal departure over with as soon as possible.

But the price of that speed has been a lack of finality.

The current news reports indicate that a deal may be on the offing about the dispute over the Northern Irish Protocol.

You may recall that this dispute was once so urgent that the United Kingdom government, with a straight face if not a straight bat, maintained last year that its envisaged domestic legislation that would enable the United Kingdom to breach the protocol even met the test of “necessity” under international law.

That was balderdash, as anyone sensible at the time knew – and it is no surprise that the enabling legislation has been frozen.

The one sticking point appears to be something that is both fundamental and trivial: the role of the European Court of Justice.

Fundamental because, to the extent that the laws of the European Union apply in respect of Northern Ireland being inside the single market, the European Union understandably want those laws to be interpreted in accordance with the European Union treaties and consistently across the single market.

And the only entity that can ensure such authoritative and consistent interpretations is the European Court of Justice, for that is what that court does.

But for Brexiters this smacks of the European Court of Justice having jurisdiction in Northern Ireland, which it should not have, because of Brexit.

And it is also trivial, because few other than obsessives care and in practice it would not make much difference.

Given all this, there will be some fancy choreography and packaging.

What will probably happen is that the substance of European Union laws being applied in accordance with the European Court of Justice’s jurisprudence will be maintained, but it will somehow look as if this is not the case.

The reason for such a compromise is that Brexit and completely open trade borders on the island of Ireland are not ultimately compatible – they never have been, and never will be.

And this predicament of the Irish border – although obvious – was not thought through by those who clamoured for Brexit.

Other problems may be addressed – if not resolved – by the establishment of “lanes” and the use of technical “real time” data.

However, getting the two sides to a sort-of-agreement is one thing, getting the endorsement of the United Kingdom parliament is another.

And unless the deal can be framed as a great British victory (and Brexiters swallow this) then either the deal will not pass parliament or the passage of the deal relies on opposition support and thereby breaks (further) the governing party.

No wonder the Prime Minister’s circle are making noises about quitting the European Convention on Human Rights and persisting with its daft legislation on repealing retained European Union law.

The Prime Minister needs all the distractions he can muster, as getting this deal past his own backbenchers is not going to be easy.

And we may even end up – as with 2017 and 2019 – with the run-up to a general election being dominated by parliamentary splits and rebellions over the question of Brexit.

Brace brace.

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