Following the result of the EU referendum there was much concern about what Brexit would mean for the peace process in Northern Ireland. Brian Walker writes that, although the full ramifications of Brexit are as yet unclear, at this early stage it seems that post-Good Friday Agreement relationships will in fact survive the severe stress tests of Brexit quite well.
In the Irish Republic, the Brexit result reawakened some of the worst nightmares and revived a familiar debate. The nightmare acted on an already volatile situation in which the Fine Gael Taoiseach Enda Kenny is under internal challenge as leader of a minority coalition supported by a confidence and supply arrangement with the main (and now reviving) opposition party Fianna Fáil, with Sinn Féin as a third force trying to exploit differences between them. Not a stable situation. At Stormont the new two party coalition of the DUP and Sinn Féin split Leave to Remain respectively, while the newly created opposition outside the Executive mainly supported Remain.
Federating the Brexit verdict
As in Scotland demands were made that Northern Ireland should remain within the EU as a consequence of the local majority for Remain. It is hard to see how this could apply retrospectively. In any case the demands will not make headway as neither government will support them. Indeed they seem more of a tactic to press the British government to include the devolved administrations not only in consultations but in the actual negotiations over Article 50. Legal action is threatened to try to ensure Stormont’s as well as the Westminster parliament’s approval for the UK’s eventual negotiating position.
Brexit and the Good Friday Agreement
Because the Good Friday Agreement (GFA) is an international treaty the hare is raised that Irish permission would be necessary to amend it. My informal legal guidance suggests probably not. Moreover the Irish government are unlikely to make it a point of legal challenge. The GFA has little to say about the EU, therefore there would appear to be little to negotiate about in it. However, like all other relevant UK law the Northern Ireland Acts which implement the GFA are EU compliant and are therefore liable to repeal. The repeal of EU legal compliance in the GFA’s enabling legislation might be used to bolster an argument to try to keep Northern Ireland within the EU. An attempt to block it would fail to win cross-community support and no devolved administration has a formal veto. But maintaining EU compliance might form a basis for some sort of associated status with the EU for Northern Ireland (and Scotland), if that were to emerge as a possible solution.
The GFA proclaims a British-Irish partnership but does not give Ireland a veto on a matter which involves the whole UK. Claims that the Brexit verdict violates the Irish citizenship rights for people in Northern Ireland introduced in the GFA remain to be tested. Although the Agreement has created a British-Irish partnership beyond its formal terms, the Irish government would not claim that it has extended to become ‘a dual sovereignty question’ as recent comment has suggested. The robust and increasingly warm British-Irish relationship is the natural context for managing a UK withdrawal that affects the Republic at least as much as it does Northern Ireland. Political negotiation rather than legal challenge is likely to be the more fruitful approach.
Brexit and Irish unity
Although the DUP supported Leave, Remain won 56 per cent to 44 per cent, a majority which included a fair sprinkling of unionists. This sparked speculation about setting a precedent for forming a new majority in favour of Irish unity.
Seeking to protect their flanks from Sinn Féin, which had demanded a border poll provided for in Good Friday Agreement, the leaders of the two main parties in the Republic began to think aloud separately about Irish unity at a summer school where such jeux d’esprit are encouraged. But support for the EU and support for Irish unity are clearly different things. Realising the potential for creating instability in a febrile atmosphere, the leaders hastily issued clarifications that they did not mean any time soon. Even so, some say ‘the genie is now out of the bottle’, but most admit there is no evidence that a border poll would be won under likely circumstances.
On the role of the GFA and a border poll one of the clearest analyses was made by the Anglo-Irish academic Martin Mansergh who was adviser to successive Fianna Fail taoisigh and therefore not expected to have much tenderness towards Brexit or a pro-Union position:
‘It’s a complete misinterpretation to suggest a border poll is suddenly more viable’, says Mansergh. ‘Although I don’t think Sinn Féin are misinterpreting it, I think they are using it to push an agenda for a united Ireland. I think it’s very disruptive and destabilising to get people going back into the trenches in a fundamentalist sort of way, unionism versus a united Ireland.’
Brexit and the two governments
After Theresa May held meetings with the First and deputy First Ministers in Stormont and with the Taoiseach in London, the prospects for keeping the border open – or nearly open – look a little brighter. Both premiers pledged not to return to the border of old. Electronic data screening of transport movements already agreed between the two governments might provide alternatives to border checks. Immigration control could rely on a system of administering work permits and welfare entitlements within Northern Ireland which is in any case thought to be an unlikely back door into Great Britain, when would be immigrants can make for London directly.
As they say, when there’s a will there’s a way. The full ramifications of Brexit are as yet unclear but early indications are that post-GFA relationships – ritually described as fragile – look like surviving the severe stress tests of Brexit quite well and will make the best of it.
About the author
Brian Walker is an Honorary Senior Research Fellow and Press Officer at the Constitution Unit. He is a former political editor for BBC Northern Ireland.
The Constitution Unit Blog 
is Mr Walker a constitutional research law graduate thus providing readers with expert legal opinions such as we are accustomed to ? Or is he a press officer and former political editor, thus providing readers with his opinions?
I would appreciate distinguishing between the diverse professional profiles so that readers can understand whether this is “an opinion piece” or an “intellectual legal argument piece”.
One must hope that the genuine potential problems raised by those of us who viewed the Irish situation as one of the outstanding reasons to vote “remain” prove to capable of at least partial solution. However in this piece Brian Walker seems to be wearing glasses of particularly rose-tinted hue.
The Good Friday Agreement contains several important references to the common EU membership of the UK and Ireland but I agree that these are capable of appropriate amendment, given the clear willingness of all parties to approach this with goodwill. However the other issues of trade and border depend very much on what form Brexit takes – something which still seems very much in doubt. If the UK retains virtually untrammelled access to the single market (no doubt involving a substantial degree of freedom of movement of both goods and people) then Mr Walker’s scenario is largely feasible but not if the loud and proud “Forget the EU, we want total British independence” version holds sway. Bear in mind that as a member of the EU Ireland cannot negotiate separate trade arrangements with Northern Ireland or the UK as a whole. And if those in the UK who demand the pure version of “taking back control” prove to be in charge I cannot see them accepting an open Irish border.
And what about the substantial contribution direct EU grants have made to the Northern Irish economy, including the crucially important agricultural sector? Does anyone seriously expect any British government, to whom Northern Ireland is already a large financial burden, to replace completely all this EU funding?