Northern Ireland, Brexit, Consent, and the need for Special Status.

Tick tock, tick tock. The countdown to the triggering of Art 50 is slowly but surely winding down. We have merely two months until the UK Prime Minister’s self-imposed deadline of March 2017. I must confess I feel rather nauseous at the prospect.

As a young person living in Northern Ireland, who identifies as Irish and European, I dread the inevitable, prolonged negotiations. The uncertainty surrounding the outcome of same worries me, and I am less than impressed or reassured with the response of the British government towards Northern Ireland. Whilst we have genuine fears about the potential of an imposed border between the North and South, we are treated to something akin to a shoulder shrug and the ever-present comment of faux comfort: “we do not want a return to the borders of the past”. In Northern Ireland, this comment from the British government is on a par with the now infamous “Brexit means Brexit” (i.e. mockery and parody).

I had been involved in canvassing during the EU referendum in Belfast. I spoke to many people as they went about their day, and had noticed the general view was Northern Ireland would suffer a more negative impact from a potential withdrawal from the EU than the rest of the UK. True, there were those who believed withdrawing from the EU would save the UK money, and there were those who believed that the EU “interfered” in the UK. I remember explaining the role the EU played during The Troubles when it was still called the EC, providing funding and support for investment, peace projects, and cross-community work. The EU’s financial assistance continued to this day, I explained. Did they know our buses and trains benefited from EU funding? No, came the reply.

What was also noticeable was there were those who said to me, “what does it matter how we vote here? Everyone knows England will take us out”. This was a statement ringing with truth. The size of the potential electorate in England outmatched Northern Ireland. The majority of us might desire one outcome, but our vote would be a drop in the ocean compared to the overall vote from England. So whilst I felt strongly confident that both Northern Ireland and Scotland would vote remain, I was always nervous about the results in Wales and England. When the dust cleared and the result became known, I realised I had been right: 56% voted Remain in Northern Ireland, but it was smothered in the larger-than-expected Leave mandate from England and Wales.

I had watched throughout the campaign as the polls narrowed, but I was conscious of not pinning my hopes to the polls, given their performance in the 2015 General Election. Watching the polls narrow and spike, I asked myself how we had ended up in this mess, why David Cameron had gambled on the pledge to hold a referendum on the UK’s membership of the EU in the Conservative manifesto n 2015, and how could this ever provide a fair playing field, given how all regions in the UK had different views, relationships and benefits when it came to the EU.

I voted on the 23rd June 2016, and came home with a sudden, sinking feeling. I did not feel optimistic about the results. It was foreshadowing in motion. I stayed up all night, and throughout the morning of the 24th June. I can recall watching with increasing nervousness the decisions across the UK flashing across my television screen, and soon realised that the UK had overall decided to leave. It was a surreal feeling. I felt shocked and disappointed at the decision; my friends felt the same way. My mobile screen was ablaze with messages and texts from friends wondering what on earth would happen to us in Northern Ireland. I suppose we felt uncertain: uncertain of the future, uncertain of Northern Ireland’s status and future, and simply uncertain in ourselves as a strand of our identity had essentially been voted away. I personally felt frustrated at the state of affairs which had been brought about to appease Eurosceptics, without any consideration for the devolved regions, their own history and political landscape. I was frustrated too that Northern Ireland and Scotland had voted to remain, but would have to leave regardless. Watching as the main broadcasters- ITV, the BBC and Sky News – announced the projected Leave result one by one in a parody of a domino effect, I realised I was watching an historic moment. And I felt sick to my core.

My Remain leaflets are still in my bedroom. I kept them, along with the leaflets posted fromm England and the official Leave campaigners. Sometimes I look at them, with their comments of “The UK gives £350m a year to the EU. Let’s fund our NHS instead”. I look at them, and I wonder whether faux facts and inaccurate statements are what is needed to win in politics.

EU referendum campaign

The EU referendum campaign in Northern Ireland was limited, and had commenced at a late stage. Whilst the South of Ireland had started drafting reports to examine the potential ramifications of a UK withdrawal in late 2015, Northern Ireland did not really seem to become engaged with the campaign until the spring of 2016. I think the politicians here were preoccupied with the Assembly election in May 2016; party leaders were unhappy at the decision of David Cameron to hold the EU referendum so close to the Assembly election. When the debate did get under way, it became a discussion along the traditional political lines of Unionism and Nationalism. Unionists generally favoured to leave, and Nationalists favoured to Remain. Most political parties supported the Remain campaign, from the SDLP and Sinn Féin to Alliance and the Green Party. The anti-austerity, socialist People Before Profit were the main advocates of ‘Lexit’.  The Ulster Unionists did not really seem clear on their position: the party stated it advocated Remain, but party MPs urged their supporters to vote Leave. The DUP, the largest party, argued for Leave, espousing the same lines from the British Leave campaigners regarding ‘taking back control of the UK’s future’. They were joined in the Leave camp by the TUV, the more hardline Unionist party led by ex-DUP member and former MEP, Jim Allister.

The SDLP were probably the most engaged party during the campaign, officially registering with the Electoral Commission, with canvassing and leaflet drops, and a strong social media presence. (It was with the SDLP that I took part in canvassing around Belfast, it was with the SDLP that I outlined the benefits of EU membership for NI and the need for NI to adopt an internationalist stance, and it was the SDLP I would soon come to officially call ‘my party’ when I joined in the summer after years of quietly supporting the party.)

The tone was perhaps not as divisive as it was across the water, but there was still sniping between the DUP, the main voice for Leave, and the rest of the parties. The campaign was simply incorporated into the Assembly election campaign, in that canvassing door-to-door included the candidate explaining their stance on the referendum. The main issue was the border, and there was a very real concern that it would be implemented if the UK voted to leave, triggering stark reminders of the past. The impact on trade, agriculture and business was discussed, but it was the SDLP who provided statistical evidence of the negative impact to the economy.

The campaign in Northern Ireland may have arrived late, but at least it arrived. Northern Ireland barely featured in the main, UK-wide coverage of the EU referendum, and the potential impact of Leave outcome. The referendum in my opinion had the effect of reinforcing the belief of many NI citizens that wesimply do not feature in UK-wide matters. The referendum coverage, via both the press and the televised media, focused on arguments pertaining mainly to England, and then sometimes Scotland. British politicians who were predominantly involved in campaigning and media coverage tended to be English. The sole UK Parliamentary report focusing on the consequences of withdrawal for NI was only finalised and published in late May, mere weeks before we would go to the polls. Our then Secretary of State, Theresa Villiers, actively and openly campaigned for Leave, knowing full well the majority in Northern Ireland favoured Remain. Neither Ms Villiers, nor any of her fellow Leave campaigners could answer clearly whether border controls would be implemented in the island of Ireland. It was evident that no Leave campaigner had truly considered the issue. This very valid concern was simply dismissed, even as Ministers in the Republic commented on the possibility of same. The whole affair can be summarised in one point: the entire campaign centred around ‘Britain’s membership’ of the EU, and how ‘Britain’ would vote. The term ‘Britain’ both legally and politically referes to Scotland, England and Wales. Northern Ireland is only included in the UK. No one bothered to include Northern Ireland in the discourse and debate then. No one outside Northern Ireland bothers to do so now, not whilst reporters, politicians etc refer to ‘Britain’s exit’ and ‘Brexit’.

The fact that Theresa May has not appointed the Secretaries of State for all the devolved nations – Scotland, Wales and Northern Ireland – as permanent members of her Brexit War Cabinet, informing them they will sit in when relevant, worries me.

Post-EU referendum

In the immediate aftermath of the Brexit vote, Martin McGuinness, the deputy First Minister, demanded that a border poll be held. This however was swiftly rejected by the then-Secretary of State for Northern Ireland, Theresa Villiers. Again, it felt as though NI could not have a say in its constitutional status, or future, without the approval of the British government. The GFA 1998 and Northern Ireland Act 1998 state a border poll would be permitted to be held by the British government if it was the will of the citizens. This however was not acknowledged by the British government last summer, and I doubt if it will be in the years to come.

The DUP Leader and First Minister of Northern Ireland, Arlene Foster, was scathing of Mr McGuinness’ request for a border poll. She has said she would support a border poll, only so that it could put to rest “once and for all” Irish Nationalists’ quest for reunification. She believes a poll would result in a defeat for the reunification case.

The referendum has triggered new discourse on the future of Northern Ireland, and I have noticed more people discussing border polls and the potential case for reunification with the South. There is a feeling the British government in London does not understand or acknowledge the innate and natural differences in the states which comprise the UK. When Theresa May became Prime Minister, she stood outside Downing Street and spoke of the “precious, precious bond” of the Union. She later dismissed “divisive Nationalists” and their reaction to the Brexit vote at the Conservative Party Conference. This type of attitude, this type of rhetoric is evidence of the lack of understanding for the devolved regions and their genuine concerns and fears over Brexit. In my opinion, it serves only to alienate.

Impact of Brexit outcome

Ever since the vote, Brexit has dominated the discourse here. Nearly every week during plenary in the Assembly, Brexit is mentioned in some form. From discussing the impact it will have on funding for projects and schemes, particularly the impact on cross-community work funded by the EU peace fund, to implications for infrastructure, the economy, education and travel, MLAs are constantly asking questions and demanding answers and clarity. The Executive (comprised of the DUP and Sinn Féin) came under scrutiny last year when it was revealed that a report which assessed the impact of Brexit on Northern Ireland was not published during the referendum campaign. It has been subjected to criticism for its lack of a unified position, which is complicated given the Executive is actually divided on the issue of Brexit, as the two parties promoted contrasting outcomes. Moreover, the Executive faced derision when it became apparent the only discourse it has engaged in with the Prime Minister was a short letter asking her to take note of the unique position of Northern Ireland. It has also been accused by the Opposition (UUP, SDLP and Alliance) that it has failed to act since the decision, given the work and consultations being carried out in Scotland and Wales in comparison. I think this brings the issue of how to clarify Northern Ireland’s position, its interests and issues relevant to negotiations, when the Executive is divided on the subject.

Special Status

Last year, the SDLP brought forward a motion in the Assembly about having a special status for Northern Ireland recognised by the EU given its history and Remain vote. The motion in full readThat this Assembly notes the current public concern arising from the European Union referendum vote; endorses the proposal of the Irish Government and others that there should be legal recognition of the unique status of Northern Ireland and the circumstances on the island as part of the arrangements to leave the European Union; believes that this is one mechanism that can safeguard the interests of the people of Northern Ireland, including future access to European Union funding opportunities; and calls on the British Government to fully endorse, and to negotiate for, this outcome in discussions on leaving the European Union.’ 

SDLP Party leader Colum Eastwood moved the motion, and argued:

The British Treasury, which is beginning to implement Brexit, has told us that a hard Brexit will cost the British Exchequer between £38 billion and £66 billion a year. What will that mean for Barnett consequentials and the Executive’s already tightened and straitened financial opportunities? What will that mean for us when it happens? People need to understand that, no matter how many glasses of champagne are poured, the British Tory party has no interest and does not care one jot for people in Northern Ireland. I am surprised that people have not learnt that lesson.

Since this happened, we have made it clear that our job here is to stand with the people who voted to remain in the European Union. Our job here is to protect their interests, not the interests of people anywhere else, not the interests of people on a different island or in a different jurisdiction. Our job is to protect people here. That is why we have to ensure that we maintain the four freedoms on the island of Ireland. That is why we have to ensure that our people have the right to move freely around this island and around the European Union. That is why we have to ensure that our businesses can trade freely without tariffs, borders or any impediments to business and growth around this island and the European Union.

That is why we clearly believe that, whilst the new mantra of the British Government is “We will not return to the borders of the past” — I think that that is the line that they keep trotting out — we need to ensure that we explain to people what that actually means. People who argued for Brexit need to be more honest about what that means. If we are not to have a border like we had in the past and if we are not going to control our border at Bridgend, Newry or anywhere across this island, where will we control it? My strong belief is that the only practical place and the best place to control the border into Britain is at Stansted Airport, Heathrow Airport or any port that you want to name, because it will not be possible to do it here.

SDLP Finance Spokesperson, Claire Hanna argued:

The Good Friday Agreement gave Northern Ireland supremacy in deciding our constitutional future. It recognised the dual identity — that people here can be British or Irish or both, as they so choose — and it gave equal status to those identities. Those who shout and roar about supporting this referendum can maybe update their response to the Good Friday Agreement, given that they believe that 52% is an overwhelming majority in this case. Under that interpretation of the Good Friday Agreement and recognising the 56% vote, only Northern Ireland can determine its constitutional status, and it is clear that a clear majority voted to remain.

The SDLP has always stood by the principle of consent, even when it supported a constitutional status that was not of our choosing or our liking. This is not just a technical issue. Please do not underestimate the importance, to nationalism in particular, of unimpeded access to the rest of this island and of the European Union, which was so pivotal in allowing sovereign Ireland and sovereign UK to work together as equals and as partners, underpinned a supernational link between the contracting parties to the agreement and provided validation to Northern nationalists that the two Governments were cooperating with equal status.

The motion was defeated by a single vote, with 46 MLAs supporting it and 47 against. All MLAs who are designated as Nationlist supported it, whilst all Unionist designated MLAs opposed it. The two PBP MLAs voted in both lobbies to have their votes negated. The two Green MLAs voted in favour, as did the Alliance contingent.

SDLP stance

The party had always made clear after the referendum result that it would use any legal, parliamentary and diplomatic options available had to try to protect the will and mandate of the people here. Since the referendum, the SDLP has used contacts in the Party of European Socialists, its sister parties across Europe, to try to make sure that the issues of Northern Ireland are realised and considered in Europe. The SDLP’s stance is that the future which was chosen by the English people was not that chosen by NI citizens. The First Minister in Northern Ireland and the Prime Minister in London must understand and respect this. Brexit will be considered with a determination to defend the Irish national interest, and to strongly advocate Northern Irish interests and needs. The NI Assembly must not consent to Brexit, given its uncertainty for NI and potential negative impact on the peace process and stability of the state. The Assembly should emulate its counterpart in Scotland, and resist any imposition of Brexit by the British government. The party argues for an Irish solution to the European problem. This Assembly and the Executive should now work with the Irish and British Governments to ensure that unique legal status is attained for Northern Ireland in the forthcoming negotiations. This status would ensure that any negative impact of a hard-Brexit would be minimised here.  It would mean that we would retain the four freedoms, including trade and movement, across the island. The party aims to ensure that any new border is around the island of Ireland, and not across it.  If Theresa May argues ‘Brexit means Brexit’, we argue that ‘consent means consent, and remain means remain’.

Issue of Consent

On that basis, the SDLP joined a cross-party legal challenge to Brexit in August 2016, submitting the principle of consent provided by the Good Friday Agreement was breached by the EU referendum. The legal challenge also argued that an equality impact assessment needed to be carried out regarding the impact of Brexit, and that the Assembly should be consulted and hold a vote on whether to invoke Art 50.

The Good Friday Agreement was a peace agreement between the British and Irish governments, and most of the political parties in Northern Ireland pertaining to the governance of Northern Ireland. The negotiations dealt with issues that had caused conflict, most notably the constitutional status of the north. On the constitutional question of whether Northern Ireland should remain in the UK or become part of an united Ireland, it was agreed there would be no change without the consent of the majority of citizens. This was the ‘principle of consent’. This is laid down per para (1)(ii) of the Agreement regarding the constitutional status of Northern Ireland, and the only grounds upon which it might be changed: parties agreed to ‘recognise the legitimacy of whatever choice is freely exercised by a majority of the people of Northern Ireland with regard to its status’. This was provided as an ongoing commitment from both the British and Irish governments. Thus the legal challenge resides on the belief that the principle of consent might have been violated: the British government arguably did not uphold its commitment when holding the EU referendum. The majority of NI citizens did not wish to leave the EU, thus they did not consent to the change in constitutional status of Northern Ireland. The legal challenge was dismissed in the Belfast High Court, but the parties submitted their arguments before the UK Supreme Court in December 2016.

Ongoing quest for Special Status

In October 2016, as SDLP MPs questioned the UK Prime Minister about the impact of Brexit to Northern Ireland, Colum Eastwood went to Westminster to advocate for special status. He said:

“At Prime Minister’s questions today, we were once again subjected to Theresa May’s meaningless mantras on withdrawal from the European Union. She once again said that ‘Brexit means Brexit’ and suggested there would be ‘no return to the borders of the past’ in Ireland. Unfortunately, she once again declined to detail what the border of the future will look like.

The British Prime Minister also said that Northern Ireland’s future will be decided peacefully and by consent. She may not have noticed but the people of Northern Ireland have not and will not consent to being forced out of the European Union…

Despite the rose tinted glasses the British Government, and their cheerleaders in the DUP, are wearing, it is communities in Northern Ireland that will be worst affected by withdrawal from Europe.”

In November 2016, to mark 150 days since the referendum, the SDLP published 150 questions for the Executive to answer. The questions ranged from economic and business questions on NI’s place in the single market, social questions on the effects on community and voluntary sectors, education questions on the status and impact on universities, and questions around the security and future faced by the farming community.

As the New Year arrived, Mr Eastwood vowed the SDLP would continue to lead the campaign for Special Status:

“As we collectively look ahead, Brexit remains the most significant threat hanging over this island. The inertia and uncertainty which has characterised the British Government’s and the Executive’s response to the referendum result has crippled confidence. For too long we have all been asked to tag along with meaningless mantras and the singular tactic of ‘wait and see’.

The achievement of special status for Northern Ireland does not require waiting for the conclusion of the overall British negotiation. Working with European partners and in particular with the Irish Government, a deal can be reached to bring certainty and security to this island even if it remains absent in Britain.”

Tick, tock. March 2017 is comng upon us. And my worry about the uncertainty of the impact of Brexit in Northern Ireland increases. I worry about any decline in choice for all citizens, given that withdrawing from the EU and the potential of a ‘hard’ Brexit would result in leaving the single market. This would mean in the end of free movement of people and services.The prospect of losing access to the EU Charter of Rights and Freedoms is worrying. The ECHR as enshrined in the HRA 1998 provides rights protection, but the EU Charter gives wider rights recognition and protection. Equally worrying is that, once outside of the EU, only the HRA 1998 will be present, but the Conservative government is adamant it will be repealed. Human rights protection and equality recognition is essential in NI, given our history of conflict, discrimination and sectarianism. We cannot afford to lose rights protection measures.

Many pro-Leave politicans have waxed lyrical about the opportunities Brexit presents the UK.  Call my cynical, call me pessimistic, but I cannot help but focus on the uncertainity, the loss of EU citizenship, the potential border imposition, of the impact on the NI economy, agri-food industry and farming communities.

And when we know the British government barely has any idea of what deal it hopes to acquire for the UK outside the EU, I am not exactly filled with confidence for the next two years.

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