by Frank Schnittger
Sun Dec 27th, 2020 at 02:16:07 PM EST
Draft Letter to the Editor
I'm sure most people breathed a sigh of relief that an EU UK Trade agreement was finally concluded just before Christmas, and everyone appears to assume it will be approved by the EU Parliament and ratified by governments on all sides within a matter of a few days or weeks.
But will there need to be a referendum in Ireland to approve the deal?
The Irish people gave up their territorial claim to Northern Ireland when Articles 2 and 3 were removed from our constitution by a 94% vote of the people in 1998 as part of the deal to ratify the Good Friday Agreement.
The peace process has survived for so long because the Good Friday agreement guaranteed "equality of esteem" for those who aspired to Irish unity and those who aspired to union with Britain. It was conceived in the context of both Ireland and Britain being members of the EU and of national borders and differences becoming ever less significant in the context of "an ever closer union" amongst the member states of the EU. There was no Article 50 procedure for any member state to leave the EU when the GFA was signed.
Under the Good Friday Agreement, there was to be no change in the constitutional status of Northern Ireland without approval by a majority by referendum there. In was in that context that 56% of the people of N. Ireland voted to remain in the EU in 2016.
Instead, with Brexit, Northern Ireland is out of the EU and all its people now have is a free trade deal on goods, some regulatory alignment, and a customs union with the EU. There is no agreement on trade in services, no Fundamental Charter on Human rights, no recourse to the European Court Justice. The Erasmus programme is gone too unless N. Ireland citizens opt for Irish citizenship and apply through the Irish scheme.
As the UK and EU diverge in the future, so too will Northern Ireland and Ireland - no doubt to the satisfaction of some unionists. But this is a far cry from the "equality of esteem" promised in the Good Friday agreement. Instead, a unionist minority got the Brexit they demanded, and the overwhelming majority who voted to remain in a Union with Ireland and the EU got little more than free trade in goods.
Surely this changes the relationship between Ireland and Northern Ireland in quite fundamental ways and requires that the people of Ireland have the opportunity to have their say as to whether the EU UK trade deal should be ratified and become the law of the land in this state?
If it took a referendum in this state to enact the changes required by the Good Friday Agreement, surely it will take another referendum to validate a situation where Northern Ireland is no longer part of a Union with this state and other member states of the EU?
The whole basis on which the people of this state gave up their territorial claim to Northern Ireland in 1998 has been fundamentally altered. The Government should not ratify the EU UK trade deal unless it is formally approved by a referendum of the Irish people.
Just to be clear: The case I make for a referendum in the Republic on the EU UK trade deal is primarily a political one, based on the changed relationship between Ireland and N. Ireland post Brexit Withdrawal and Trade deals and how this is different from the relationship which existed prior to and post the signing of the Good Friday Agreement.
Not being a constitutional legal scholar I cannot speak to whether there will be a technical legal requirement for such a referendum: That is an issue which may ultimately have to be decided by the courts if a legal challenge is taken to any government decision to ratify the deal without a referendum. Alternatively, the government can decide to hold a referendum to pre-empt any such legal challenge.
The legal question at issue will probably be whether the UK government had the right, under the Good Friday Agreement - which is an international Treaty lodged with the United Nations - to take N. Ireland out of the EU against the expressed will of the majority there. As the Good Friday Agreement expresses the need for a referendum to effect a change in the constitutional status of N. Ireland specifically in the context of any move towards a united Ireland, it is quite possible that a legal challenge on that basis will fail.
But there is a second basis for a legal challenge, and that is that the people of Ireland approved the removal of articles 2 and 3 from our constitution (our territorial claim to N. Ireland) specifically in the context of the "equality of esteem" provisions of the Good Friday Agreement, and the fact that the EU membership of both parties guaranteed "an ever closer Union" and reduced significance of any border or other differences between the two states.
The Irish people could justifiably feel cheated that Brexit has removed the basis on which they gave up their territorial claim to N. Ireland and replaced a gradual convergence with the promise of ever greater divergence between the UK and EU, and hence between N. Ireland and Ireland.
The UK government could mitigate this grievance by offering to hold a referendum on a united Ireland, under the terms of the Good Friday agreement, but this is somewhat beside the point. The Irish people didn't vote for a united Ireland when they approved the Good Friday Agreement in 1998, but for a peace process which recognised the status quo (of N. Ireland as part of the UK) in return for a promise of equality of esteem for Irish nationalists and ever greater convergence between N. Ireland and Ireland.
It is doubtful whether a majority in N. Ireland would vote for a united Ireland now, and even in the Republic a majority might only vote for it in the context of a comprehensive peace deal which specified in great detail how the transition would be managed, how a united Ireland would be governed, and how the costs would be funded.
Very few in Ireland want to take over a divided society, a failed economy, and the possibility of widespread violence in the absence of an agreed plan as to how these challenges and difficulties would be overcome. The consensus is probably that it is best "to let sleeping dogs lie" until such time as Brexit has been fully played out in perhaps 10 years time, the constitutional future of Scotland has been decided, and a clear majority for a united Ireland exists in N. Ireland.
This sort of long term thinking and planning may not fit well with short term media narratives and political imperatives, but is essential if any transition to a united Ireland is to be a peaceful and mutually prosperous one.
Your comments and views on this would be appreciated.