As Brexit looms, we must hold both unionists and British to the terms of the Good Friday Agreement
There is nothing like a deadline to concentrate the minds of politicians and propel them into action.
Budget 2017 was comprehensively sidelined this week by the British prime minister's declaration of intent to trigger Article 50 next March.
The Taoiseach brought a memo to Cabinet and announced an all-island 'Civic Dialogue on Brexit', to meet on November 2, involving politicians north and south, trade unions and civic society. But already the First Minister Arlene Foster has said she will not attend, citing her view that she does not see the need for "another superstructure". She has a point.
In my view, a more appropriate official forum for such serious debate is the North South Ministerial Council, established under Strand 2 of the Good Friday Agreement. The last meeting of the council was in July. The fall-out from Brexit is an ideal agenda item for that forum, involving as it does border control, common travel, security, economic and political matters.
Using the institutions established under the Belfast Agreement (strands two and three), such as the British Irish Intergovernmental Conference and the British Irish Council, would locate the Brexit discussions in the appropriate formal context. A broadly based, all-island talking shop which does not include the DUP and which has no statutory or legal basis is a poor substitute. Unionists are obliged to attend the North South Council and East West Institutions.
The Good Friday Agreement and the British Irish Agreement anticipated that the North South Council would meet in various formats, including specifically "to consider institutional or cross-sectoral matters, including in relation to the EU and to resolve disagreement". The agreement specifically "provides the Council to 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 at relevant EU meetings".
Meanwhile, in the Belfast High Court, there is a legal challenge to the constitutional authority of the British government to take Northern Ireland out of the EU following Brexit. While such a proposition may appear far-fetched, given the separation of powers and the reluctance of the courts to meddle in political and parliamentary decisions, it is arguable that Brexit does constitute a material change to the status quo ante in Northern Ireland.
The Good Friday Agreement, endorsed in referenda North and South, confirmed the status of Northern Ireland as part of the United Kingdom but this was conditional on the principle of consent. In return, the electorate in the Republic voted to change Articles 2 and 3 of our Constitution removing the constitutional territorial claim to the six counties.
But crucially it was agreed that while the Border still existed, it would be blurred or perforated by a North/South Ministerial Council and bodies with executive powers for cross-border cooperation and joint action. These interlocking institutions took some time to become established until the Executive was stabilised and decommissioning was achieved. But certainly since 2008, these cross-border institutions have functioned and are serviced by civil servants from both jurisdictions.
If a 'hard Brexit' means a hard border, that is a material change to the status quo ante which cannot be breezily waved away by the British government. The fact that the DUP favours Brexit and all the nationalist parties supported remaining in the EU constitutes a new and substantive source of instability and discord between the political parties in government in Northern Ireland.
It is disturbing, given three decades of joint effort by the two governments to bring peace and political stability to Northern Ireland, that the new British government seems indifferent to Brexit-related difficulties for Ireland. Theresa May is talking a new political and populist language. "Change has got to come," she bellowed from the podium of the party conference. Does this include a high-handed disregard for Ireland in what looks like a startling about-turn in Anglo-Irish relations?
Brexit-tasked government ministers are at pains to assuage Irish qualms but they lack conviction and logic. If Brexit now turns out to be all about immigration, it is delusional for them to be in denial about the inevitable trade and travel implications for the land border with the Republic.
Moreover, they seem to attach little importance to the political aspiration towards a united Ireland at some future point, validated in the Good Friday Agreement. How could this be operationalised if Northern Ireland is decoupled from the Republic and out of the EU? Would voters in the Republic have changed our Constitution if Brexit was on the cards? The British government appears to be taking for granted the historic compromise of the Good Friday Agreement and the peace process. Nowhere in Anglo-Irish discourse these days is there a mention of the "totality of relationships" which underpinned the North/South and East/West arrangements agreed by the two governments and the parties in Northern Ireland in 1998. The great prize for all of this was a lasting peace, which is now 'eaten bread' as far as the British government is concerned.
So, 20 years on, our Government needs to revisit and remind the British prime minister of the substantive legal elements of the British Irish Agreement and the institutions established in 1998. It is unacceptable for Ms May to wash her hands of inconvenient terms which do not suit the new little England nationalist ideology. Ireland is by far the most affected EU country because of Brexit and we cannot be satisfied by being part of the crowd in EU-Brexit discussions. Ireland has to be in the driving seat in protecting our national interests.
It is now time for the Government to assert the primacy of the Good Friday Agreement and hold both unionists and the British government to its essential terms and dispensation. An intensified use of the North/South and East/West institutions is now needed to explore and resolve the complex challenges of Brexit.
Agreements between sovereign governments carry weight, particularly when they mark the end of a bloody conflict and frame an historic political settlement.