In his eloquent contributions to the Mount Stewart conversations, (warm thanks to Alan), Fintan O’Toole in terms stated as fact that the people had exercised an irreversible act of sovereignty in approving the Good Friday Agreement enshrined in international treaty. This had been violated by the “reckless” imposition of Brexit on the Northern Ireland. The UK government had no right to try to take Northern Ireland out of the EU, because a majority voted to Remain. Not only that, his argument implies that the UK had no right to hold the referendum in Northern Ireland in the first place. If so why wasn’t it legally challenged in advance? It is surely too late to argue that the local Remain votes give retrospective vetoes to Scotland and Northern Ireland against leaving the EU.
What Fintan asserts as fact is – in fact- contested. A different version says that the GFA and the enabling Northern Ireland Act shows Irish self determination being exercised to approve the three stranded institutions, various human rights provisions and the principle of northern consent to Irish unity, supported by a parallel referendum in the Republic. Brexit leaves the GFA intact. Its achievements were bilateral, between the British and Irish with US help and support from the EU in the form of peace funding. Irish unity would be decided by the people of Ireland north and south, not the British, whose role is limited to allowing a referendum in the north if they believe a majority in favour of unity might exist. The trigger remains with Westminster.
But of course the framers of the GFA never contemplated an end to British EU membership. It is not the GFA which has been violated but the context of EU membership, approved by successive Irish referendums ( notoriously only the second on the Lisbon Treaty,) and confirmed by the British referendum of 1975 which has now been reversed.
True, the GFA gives equal rights to Irish and British citizens resident in Northern Ireland. Irish citizens may therefore be regarded as continuing citizens of the EU after Brexit . But the exercise of such rights is limited according to the territory they live and work in, as is the case for citizens of any state living in another.
The rest of British constitutional architecture remains in place for Northern Ireland. Arguably the GFA did not it set any further limitations on the sovereignty of the British parliament. In theory that sovereignty remains absolute. Westminster could repeal the NI Act and seek derogation from the international treaty. By the same argument Parliament could overturn the Brexit referendum, as it can only be advisory according to the sovereignty of Parliament argument, as the Lib Dems, some Labour and a throng of pro –Remain lawyers argue.
In practice however the referendums – on the GFA, the EU and Brexit – are treated as binding and the NI Act is entrenched. That does not mean however that there never ever could be another referendum as Irish and now British experience confirms.
The McCord case is one of three cases which seek to test the validity of applying Brexit to Northern Ireland. The intention is to refer it to the UK Supreme Court to be heard along with comparable English cases by the end of the year. The immediate aim is to require the formal consent of the same sovereign Parliament before triggering Article 50. But behind the literal case is a view that Brexit cannot legally apply to NI at all because of the majority for Remain. The SNP might agree.
For what it’s worth my belief after consulting experts is that the Supreme Court will decide that this is a matter for Parliament not the courts. If so, we would return to arguing the politics of the case where I am at one with Fintan.
The danger of his exaggerated argument is that it might create a new Irish nationalist grievance against the perfidious British for “moving the goal posts.” Jonathan Powell put it better when he said that Conservative Brexiteers never took Ireland into account at all – a characteristic of British political behaviour throughout the ages.
There are also dangers in the heightened rhetoric of the new young SDLP leader Colum Eastwood about the referendum result. His rather hysterical dark hints of unspecified action are made against a historic background of political boycott and abstention by both unionists and nationalists. This could only widen the political vacuum for dissidents and other mischief makers to fill. It is unwise for a party leader to go further into a cul de sac without trying to find a way out.
Finding solutions to soften Brexit is surely what all parties and governments north and south, east and west should be doing rather than playing up grievances. If you can reverse one referendum result as both the UK and Ireland have done, presumably you can reverse another. As I and others have commented there may be other get -out- of- gaol cards through developing devolution. Spreading fears of Armageddon gets us nowhere.
Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London