The EU and the UK legal orders possess the necessary flexibility to accommodate such a special status that will respect and protect the unique constitutional status of the region as provided by the Good Friday Agreement. The question is whether the current political elites have the necessary political will as the ones that signed the peace agreement 20 years ago.
By Nikos Skoutaris
20 years ago, the Good Friday/Belfast Agreement (GFA) put an end to the sectarian violence that had plagued Northern Ireland for decades. The GFA highlighted that Northern Ireland is an integral part of the United Kingdom but established its constitutionally recognised right to secede. Such unique constitutional status was ‘accompanied by unusual multi-level governance: regional, north/south and British/Irish.’ In a way, the Agreement embraced politics as the continuation of the conflict of the two communities by other means. The institutions established by the GFA created fora of metaconstitutional debate, a debate as to what type of constitutional vision should prevail.
20 years later, the fragile balance struck by GFA is facing one of its biggest challenges: Brexit. Why is that?
Although the text of the GFA does not include many references to the EU, the late Elizabeth Meehan has explained that EU membership has facilitated the design of the GFA: ‘The sharing of sovereignty within the EU has spilled over into some sharing of sovereignty over Northern Ireland’. In a way, the GFA ‘was premised on the assumption of common policies and interests across a wide range of policy areas’, which the EU membership of both the UK and the Republic of Ireland had secured. In that sense, Brexit puts all three Strands of the GFA at risk of deep fissures. In fact, the December UK-EU Joint Report recognises that ‘the United Kingdom’s withdrawal from the European Union presents a significant and unique challenge in relation to the island of Ireland’ It challenges ‘the narrative of a shared and interdependent Northern Ireland’ and impedes the sharing of sovereignty across the region, since the UK and (by extension) Northern Ireland will no longer be part of the EU. By definition, this situation will change the balance of power in the East-West dimension. At the same time, the EU framework will no longer be providing its much-needed paradigm of power-sharing between the two main communities. One particular danger is that at least part of the segmented post-conflict society of Northern Ireland will not welcome the strengthening of more UK-centric notions of sovereignty that Brexit might lead to.
Finally, the creation of a customs border – at a minimum – will pose a significant threat to the island of Ireland as a single economic area. In particular, such a development ‘would not only require a massive investment by Ireland, as the EU Member State required to enforce the EU external customs border with the UK at this point, but also bring back painful memories of the times of conflict on the island, when the trade border was not only (ab)used for intimidation through its harsh enforcement, but also had a real impact on livelihoods’.
Last summer, the GUE/NGL Parliamentary Group of the European Parliament (EuropeanUnited Left/Nordic Green Left) approached me to write an Independent Opinion about how the future relationship of Northern Ireland with the EU could be structured in order to provide for effective answers to the challenges to all three Strands of the Agreement. The main thesis of the Report (you can download it here) is that the very institutional framework which has been set up by the GFA and is threatened by Brexit can provide for the much-needed imaginative solutions that could solve the current Gordian knot.
In particular, concerning the internal dimension, the future relationship should take into account the principle of consent and the right of self-determination by providing for a legal route for the reintegration of Northern Ireland into the EU, should the majority of the people on both sides of the Irish border so decide in democratic and legally binding referendums. For the North-South dimension, the post-Brexit relationship with the EU should allow for the effective membership of Northern Ireland in the single market and the EU customs union. The easiest and most effective way for this to happen entails the whole UK remaining in the single market and the customs union. Should the UK government insist, however, on the red lines described by Prime Minister May in her speeches in Lancaster House, Florence and Manor House, an arrangement similar to the ‘backstop’ option provided by the draft UK Withdrawal Agreement should be established. At the same time, the North-South institutions could be used to ensure that the voice of Northern Ireland is heard within the EU. Finally, the East-West institutions should be strengthened in order to absorb the tensions that remaining in the single market might cause to Northern Ireland’s economic integration with the rest of the UK.
The EU and the UK legal orders possess the necessary flexibility to accommodate such a special status that will respect and protect the unique constitutional status of the region as provided by the GFA. The question is whether the current political elites have the necessary political will as the ones that signed the peace agreement 20 years ago.
An earlier version of this article was published in the Political Studies Association Blog on 10 April 2018.
Dr Nikos Skoutaris, University of East Anglia, has written extensively on this subject and has just produced an Independent Opinion for the GUE/NGL Group of the European Parliament on a Special Designated Status for Northern Ireland post-Brexit.
This post was first published in the QPol blog on 15 May 2018. The views expressed in this piece do not necessarily reflect those of TransConflict.