Brexit Impact on Northern Ireland

Doug has lost the small ‘u’ Unionists to Alliance, so his only option is to go hardline now. Pretty pointless with the DUP/TUV already in that space.

This means:

more possible dilution of the Unionist vote leading to

MON being back as First Minister designate resulting in

another refusal by Jeffrey to go into government.

Next time though, with their economy racing toward recession, the Tories will not be inclined to indulge the DUP any further and will come to some arrangement with the EU over the heads of the Unionists, and Stormont will be mothballed.

Mmm. I'm not so sure.

Fact of the matter is that, if the UK were to invoke Art 16 instead of proceeding with the NIP Bill, this would be a positive as far as the EU is concerned. (A) It's not illegal. (B) It comes with requirement for intensive negotiations and a commitment to finding a solution. (C) The solution is not the replacement of the NI Protocol, but making it work. From where we are now, this would be confidence-building.

This could break a logjam. Fairly clear that the new PM has no great interest in NI, but won't want to have a trade war with EU over it. UK's current course, if persisted in, leads to a trade war; he doesn't want that. Current course can very easily be identified with Liz Truss; these are opportune times for taking anything associated with Liz Truss out into the desert, burying in in a deep mineshaft, filling in the shaft and agreeing never to speak of it again. Problem is that Rishi doesn't have any replacement strategy to address the issue; he's not sufficiently interested in NI to have come up with one, or sufficiently knowledgeable about NI to be capable of coming up with one.

So, a prize for the clever boy or girl who can come up with an NI strategy to replace the Lets Violate Our Treaty Obligations And Put The Kibosh On Our Reputation For Good! Bill. Doug may be competing for that prize. Hardliners can't really object since they have been calling for the invocation of Art 16 pretty much from day 1. UK government hasn't done it because it won't achieve the aim of displacing the protocol, and it would require them to engage with the EU, start talking and stop posturing. But Rishi might be open to being persuaded that now is quite a good time to stop posturing and start talking, lance the boil and get on with the project he's really interested in of turning GB into a libertarian playground.

Yes, he can decide to start talking at any time. (In fact there are talks under way right now.) The point about invoking Art 16 is that the UK would then be committed to talking, and also committed to the object or purpose of the talks, which is the limitation or abolition of the emergency measures taken by the UK. The UK would also be committed to justifying their actions, and their objectives, by reference to "serious economic, societal or environmental difficulties that are liable to persist" by reason of the Protocol; they couldn't justify emergency measures, or a desire to replace the protocol, simply on the grounds that they had changed their minds about what they signed up to. The whole discourse would become much more limited and focussed.

I'm not saying that this is the plan, by any means, but if Sunak did want to substantially climb down from the rather absurd position the UK has talked itself into, Art 16 might provide a framework for doing so. And as Brexiter headbangers have been demanding the invocation of Art 16 pretty much since the get-go it would be hard for them to criticise it now.

I probably am trying to bang a square peg into a round hole, I agree.

But bear with me. Whatever about May, the reason Johnson and Truss didn't invoke Art 16 had nothing to do with negative effects on diplomatic relations; the steps they did take showed they cared bugger all about that. I think the reason they didn't invoke it was because, far from being the get-out-of-jail free card that Brexiter headbangers believed, it simply wasn't capable of producing the outcome that they wanted; it would lock them into a process whose end-point was very much not where they wanted to go.

I'll say two things about invoking Art 16:

1. If the UK ever does invoke it, it will be because either (a) the UK government is in the hands of Brexiter headbangers or of people who have bought into Brexiter headbanger delusions, or (b) the UK government has changed its views about the outcome it wants.
2. Invoking Art 16 would be less offensive and inflammatory than what the UK is currently doing — the NIP Bill, which is blatantly and admittedly illegal. Art 16 is right there in the treaty; it's a process to which the EU has agreed for resolving issues that arise from the implementation of the protocol. If the UK government were to invoke it in good faith, that would certainly be a lot better, from the EU's point of view, than what they are doing now.

Obviously the "in good faith" bit is not something anyone would take for granted, given the record of perfidy to date. But the only way the current mess gets unmessed is if the UK changes course in some significant way. Invoking Art 16 isn't in itself the necessary change of course, but if the UK were minded to change course then invoking Art 16 would provide a mechanism for doing this which might enable them to save some face (which the EU is generally happy to enable its negotiating counterparties to do) and also give them some temporary cover from the aforementioned brexiter headbangers.

Signals looking encouraging.

I agree that Art. 16 could be used as a smokescreen to get the UK government off the hook. But first, we must try and work out what they want . Or, more importantly, the UK government must work out what they want.

So far it seems it has been UK policy to maintain a level of tension with the EU. For that purpose, the NIP and the DUP have been useful. We are assuming that now the UK want to reduce tension with the EU and have a better relationship. And, while on the surface that appears to be the case, it is not certain. A first step would be to stop the NI Protocol Bill, 2022. A second would be to abandon the Brexit Freedoms Bill. Both steps would reduce tensions and signal a real intention to forge a working relationship with the EU.

I know this is very, very, farfetched but (theoretically at least), if the EU were to agree to reopen negotiations on the NI Protocol it would mean reopening negotiation on the Withdrawal agreement. In turn that could lead to both sides agreeing to nullify that agreement with the resutl that the UK would be back into the EU on the terms it left it. Agree it is all fairly farfetched and probably not legally possible now.

The NIP is part of the WA and can't be renegotiated.

The NIP includes the 'Joint Committee' where some problems and almost all practical problems can be negotiated and agreed.

So HMG use the flexibility which is already there, and please stop politicize the border.

Lars 😀

The party that championed a narrow victory for Brexit regardless of the fact NI didn't want it. now running scared of a similar result in a border poll? Allying with those in the south who want the same same thing...'democracy, but on our terms'😁

Supermajority = Gerrymandering 2.0

@Peregrinus Does b apply though realistically?

As in, NI by majority to leave then does the balance of power not shift to UK/Ireland horsetrading to give effect to that wish, with NI being a minor subset of the UK gov position by then? Any proposed agreement doesn't NEED NI political support seperate (but obviously would be a barrel of problems without)

I have to agree with this analysis. In order to avoid the mistakes of Brexit, it will in effect be necessary to have two referenda. The first one to determine the principle of reunification, which will include some outline of how it will work, the second one, on the practical details. People may have different views when they see the practical outcome of discussions which is what has happened post-Brexit.

What he actually said:

Had the UK asked, we could have shown them how to run a proper referendum.

The Irish government will produce a White Paper (a plan) for unification as happened in Scotland during their independence referenduim. As you say, the British will largely leave that to us and whatever Unionists take part in the consultative process leading up to that. I don't believe moderate Unionism will ignore it if it comes to a ref being called. Moderate Unionism is also pragmatic.

It simply won't be left up in the air and there will be very little left to decide or add.

I also wouldn't be surprised to see somebody challenge the 'consent' requirement here as we already have given approval by virtue of the aspiration clause in the Constitution.

I think a 'second' referendum that undos the first would be hugely destabilising.

The aspiration clause in the Constitution - Art 3.1 - itself explicitly envisages a future consent to reunification by a majority in both jurisdictions, so I don't think you can really argue that the referendum to adopt Art 3.1 constitutes the necessary consent. If it did, Art 3.1 would be differently worded. Besides, it's almost certain that reunification would required constitutional amendment - Art 3.1 itself would need rewriting or replacement, for one thing - so a referendum in the Republic would be needed.

I take your point about an white paper in advance of any NI border poll. That might be a very good idea, but the GFA doesn't require it. And it would have the disadvantage that the the white paper would have to be prepared at a time when the level of support in NI for reunification was unknown. For the reasons already pointed out, it might be desirable to do this after the border poll, rather than before.

The other question you have to ask is, who would prepare the white paper? You suggest that "the Irish government will produce a white paper", but the GFA says that the proposals for reunification must be agreed between Dublin and Westminster. I think that means that the white paper would have to be a joint IRL/UK production, or at the very least that the IRL government would have to get Westminster signoff on the white paper before issuing it. Either would give Westminster an effective veto over the reunification decision (by simply not agreeing to any White Paper) which is contrary to the whole point of the GFA.

I think what the IRL government could do is (if they thought it a good idea) is issue a white paper saying "if the border poll passes, this is the framework for unification that we will propose to Westminster". (And that is pretty much the status which the Scottish government's 2014 white paper had.) But there would be no guarantee that Westminster would accept it without alteration, or indeed that the IRL government might not themselves want to modify their proposals in the light of the border poll outcome, or developments after the border poll, or representations made to them by stakeholders.

At best, what NI voters would have before them when voting in a border poll would be a framework proposal from one side for the terms of reunification to be agreed with Westminster after the border poll.

And actually proceeding to reunification would almost certainly require a referendum in the Republic, conducted after terms for reunification had been agreed between Dublin and Westminster.

In that scenario, it would be all but impossible to refuse a parallel referendum in NI.

(And why would anyone want to refuse it? The democratic legitimacy of reunification would be pretty much cast-iron if approved twice by the people of NI, once in principle and a second time in detail. Conversely, if NI only gets a referendum on the in-principle question but IRL gets a referendum on the detailed, legally effective terms of reunification, that puts a major question-mark over legitimacy, which the IRL government would very much not want. Plus "unequal" referendums like this would be constitutionally questionable, given the terms of Art 3.1.)

GFA says that the reunification proposals are to be agreed between IRL and UK governments. Are you repudiating the GFA, Francie? 😉

There's no problem with a second referendum that can reverse the first - we've done that a couple of times in IRL already. It's not remotely comparable to a supermajority requirement. Plus, the GFA explicitly contemplates that there can be more than one border poll, and it's absurd to argue that a border poll is final if Francie likes the outcome but not if he doesn't.

Only Brexiters think that the purpose of a referendum is to put some question beyond democratic review. Don't be like a Brexiter, and don't aspire to a Brexity united Irish Republic.

As I see it, it'll be part of point 6 - proposals for reunification will include changes to be made to the Irish constitution, which will require a referendum. Or, even if there is by some miracle to be no amendment to the Irish constitution, the proposals will include a referendum in IRL anyway, to satisfy Art 3.1 of the Constitution.

The GFA also says “it is for the people of Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right of self-determination on the basis of consent, freely and concurrently given, North and South, to bring about a United Ireland, accepting that this right must be achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland”.

The UK government will not be making proposals on how a UI might work. I would expect them to be involved at official and consultative level as we prepare a plan though and to agree as that reaches a conclusion.

And a second referendum is a veto. All Unionists have to do in that scenario is sit back, refuse to engage and vote down any proposals. See the problem?

This is extremely strange and bizarre. If the first vote passes, how will the unionists sitting back and refusing to engage result in a second referendum being defeated? The only reason a second referendum would be defeated would be if the practical arrangements are such as to give the people who voted yes first time to a milk and honey proposal reason to change their mind. The unionists who voted no the first time are irrelevant to the second vote as they won't change.