The Northern Ireland ‘backstop’: Stretching or snapping the UK elastic?
Theresa May’s vigorous articulation of her government’s position on Brexit in the aftermath of the informal Salzburg summit has profound implications for future British-Irish and British-EU relationships says Professor John Garry and Professor John Coakley.
Theresa May’s vigorous articulation of her government’s position on Brexit on 21 September 2018, in the aftermath of the informal Salzburg summit, has profound implications for future British-Irish and British-EU relationships. The PM staunchly re-iterated her opposition to the proposed ‘backstop’ arrangement for Northern Ireland, which seeks to avoid a hard north-south border by ensuring that Northern Ireland remains aligned to the EU for customs and regulatory purposes:
Creating any form of customs border between Northern Ireland and the rest of the UK would not respect that Northern Ireland is an integral part of the United Kingdom, in line with the principle of consent, as set out clearly in the Belfast/Good Friday Agreement. It is something I will never agree to – indeed, in my judgement it is something no British Prime Minister would ever agree to.
This statement understates the distinctiveness of Northern Ireland in the UK, and may be contested in three respects.
1. While Northern Ireland is a component part of the United Kingdom, it is not, and never has been, ‘an integral part’ of the UK.
The separate constitutional status of the Kingdom of Ireland before the Union of 1801 continued in important respects after the Union. A wide range of legislation, though now enacted at Westminster, still had exclusively Irish application.
The Irish civil service continued to administer these laws under the direction of the Chief Secretary, predecessor of the Secretary of State for Northern Ireland. The ceremonial life of the island was presided over by the Lord Lieutenant from his court in Dublin Castle. Much of this lived on in Northern Ireland after 1921.
The Government of Ireland Act of 1920 did nothing to bring Ireland’s northern counties closer to London. On the contrary, it transferred further functions to new institutions in Dublin and Belfast.
With the end of the government and parliament of Northern Ireland in 1972, ‘direct rule’ was reintroduced – but this was ‘direct’ only in the sense that the new ministers were based in Westminster rather than in Stormont. A separate tier of government for Northern Ireland survived.
Northern Ireland’s distinct constitutional status is not merely theoretical. It is expressed through a separate body of public law and administration. It is famously the case that Northern Ireland follows its own legislative path in areas that have a bearing on moral-religious values (such as abortion and same-sex marriage), but also in respect of bread-and-butter issues (such as environmental and welfare policy).
2. The creation of a customs border between Northern Ireland and the rest of the UK is not a violation of the Belfast/Good Friday agreement’s ‘principle of consent’.
The agreement is silent on trade and customs arrangements. It does give the Irish government a formal voice, through the British-Irish Intergovernmental Conference, in certain vital policy areas, but this mechanism was not used in one of the most crucial decisions of all, on British departure from the EU, including the single market and customs union, even though this implied a hardening of the north-south border.
The ‘consent’ provisions of the agreement refer primarily to the requirement that any change in the constitutional status of Northern Ireland be supported by a majority in a referendum there.
Should such a referendum endorse Irish unification, the British government (like the Irish government, and subject to democratic endorsement in the Republic too) has accepted a ‘binding obligation’ to legislate for this. Customs arrangements, though a quintessential element in state structure, should not be seen as defining sovereignty.
3. There is little evidence that a customs border between Northern Ireland and Great Britain is ‘something no British Prime Minister would ever agree to’.
Past prime ministers have contemplated a British withdrawal from Northern Ireland, as Harold Wilson did in late 1974. Three of Theresa May’s Conservative predecessors (Edward Heath in 1973, Margaret Thatcher in 1985 and John Major in 1993) formally and solemnly agreed to facilitate Irish unity by withdrawing from Northern Ireland should a majority there so wish. It is reasonable to assume that, a fortiori, they would have accepted some kind of customs/regulatory border should that have been the wish of the people of Northern Ireland.
Of course, the Prime Minister’s remarks may be interpreted differently – as a commitment to adhere to the current wishes of a majority in Northern Ireland. But her formula offers no hint of this; it suggests an absolute, unqualified and enduring commitment to the status quo, one that is hard to reconcile with the Belfast/Good Friday agreement.
It is true that the Prime Minister has reiterated the government’s commitment to do everything in its power to prevent a return to a hard border. She has also ruled out any new regulatory barriers between Northern Ireland and Great Britain ‘unless the Northern Ireland Executive and Assembly agree’. But the Executive and Assembly are not currently functioning and their resuscitation does not look imminent.
Overall, failure to recognise the full distinctiveness of Northern Ireland’s position in the UK is likely to hinder constructive discussion of the apparently intractable ‘backstop’ issue.
The UK is not a unitary state, and there are differences across all four of its territorial components. Northern Ireland, however, is an unusually detached part of the UK and plausibly deserving of special consideration – and there is no reason to see such consideration as fatally undermining the union.
Article originally appeared on the UK in a Changing Europe site.