With this week marking one year until Britain officially leaves the EU, HuffPost is running a series of blogs answering big questions still left unanswered about our Brexit future. Today, law professor and Irish native Dr Alan Greene asks when we will have a solution on the Irish border. Follow the series on #BrexitFuture
It is almost a year since Theresa May triggered Article 50 and the countdown clock for the UK to leave the EU began to tick. Since then, it has become clear that the issue of the border in Ireland has become one of the most difficult and intractable issues to solve. Of course, many had been warning about the ‘Irish question’ since before the referendum; however, such warnings fell on deaf ears, drowned out by promises to control immigration, invest in the NHS and make Britain a great international trading nation again.
The phrase ‘the Irish question’ perfectly encapsulates the UK’s and, in particular, Brexiteers’ attitudes towards Ireland. Ireland is a problem. It is a problem that is ignored at first, then batted away flippantly, only to come back as a major thorn in the UK’s side. The Irish question was not settled when Ireland was subsumed into the UK through the Acts of Union in 1800. It was not settled by the doomed Home Rule Act of 1914, and it certainly was not settled when Ireland was partitioned in 1921. If there is one thing, therefore, that is certain about Ireland’s relationship with the UK, it is that Ireland has always been a problem.
The Irish question was also not settled by Good Friday Agreement (GFA) in 1998 either; however, this was the very point. The GFA was all about parking the big questions to one side. It was all about ambiguity. It was about allowing the people of Northern Ireland to be Irish or British, or both, or Northern Irish. It was about reassuring unionists that Northern Ireland remained an integral part of the United Kingdom while, at the same time, establishing a path to a united Ireland that would be decided only by the people of Ireland.
The key to the GFA is that ultimately it is a utopian document. It is an expression of two competing promised lands: one of a united Ireland; and one of Northern Ireland’s future secure in the UK. What allows these two competing visions to survive is the same for all utopias: that their realisation is left for the future. It is something to be built towards. A united Ireland is something that can be achieved through peaceful democratic means enshrined by the GFA; simultaneously, peace in Northern Ireland can secure Irish nationalist acquiescence to the status quo, thus preserving the union. Similarly, like all good utopias, there is no set date for achieving this; utopian visions must be attainable but, at the same time, always just out of reach.
Brexit so far has ben just another example of the Irish can being kicked down the road. The difference this time, however, is that the road is a dead end
The GFA is certainly not perfect and jettisoning huge questions regarding justice, truth, and reconciliation have, at times, caused tensions to erupt and power-sharing to grind to a halt. Indeed, the current impasse at Stormont is arguably the most serious existential crisis the GFA has faced to date. Ultimately, however, the GFA was about peace and the twenty relatively peaceful years since its ratification have been a testament to this.
Brexit, however, has thrown an additional spanner in the works were there are already far too many spanners to begin with. Although the EU does not feature prominently in the Good Friday Agreement, Irish and British membership of the EU formed the foundations upon which the agreement could be built. EU membership, for example, made it possible for Ireland to amend its Constitution to drop its territorial claim to the whole island of Ireland. This assertion, contained in the old Article 2 of the Irish Constitution, was particularly contentious to unionists and was instead replaced with an expression of desire to see a united Ireland ‘brought about only by peaceful means with the consent of a majority of the people, democratically expressed, in both jurisdictions in the island’. EU membership meant that any contentious issues such as where to draw the border in the sea around Ireland and whatever rights would accrue from the drawing of this border were non-issues.
Brexitiers too are utopian in their vision for the UK outside the EU; however, unlike the Good Friday Agreement, their vision has a due date. The two-year time limit for achieving this has already proved impossible with the need for a transitional period now expressly conceded by the British Government. The publication last week of an agreement between the UK and the EU dealing with this transition period was progress to a degree; however, it still leaves the Irish question unresolved. This agreement would see Northern Ireland remain inside the customs area pending alternative proposals from the UK that would avoid a hard border—the so-called ‘backstop solution’. More ambiguity is built into this ‘backstop solution’ as it too is open to interpretation. The DUP who are propping up the Westminster government continue to insist that Northern Ireland (abortion and marriage equality aside) should not be treated any differently to the rest of the UK. Consequently, does the backstop agreement mean that all of the UK will stay within the customs are or will Northern Ireland be treated differently?
It is only when Brexit is understood in this constitutional context can the importance of a soft border be understood. This is not simply about technological solutions. Technology can perhaps solve certain infrastructure issues but it cannot solve the big constitutional questions. Thus while Brexiteers are busy throwing fish into the Thames in protest at the transition agreement preserving EU influence over fishing rights in British waters, they ignore the huge implications of drawing these borders on and around the island of Ireland. The only thing the transition agreement does settle is the fact that British government pledges about ‘no hard border’ are wholly insufficient.
As a result, Brexit so far has ben just another example of the Irish can being kicked down the road. The difference this time, however, is that the road is a dead end. The utopias created by GFA are coming into conflict with the Brexiters’ utopia and something has to give.
The clock is ticking.
Dr Alan Greene is an Assistant Professor at Durham Law School