EU Special Status, and ignoring the Northern Ireland Assembly…

As Mick noted this morning, Micheal Martin has joined the list of party leaders calling on the Irish and British Governments to negotiate for EU special status for Northern Ireland post-Brexit.

At the recent All-Island Civic Dialogue on Brexit, there was the Sinn Féin president Gerry Adams

Sinn Féin president Gerry Adams said in his speech that the Government needed to uphold the wishes of the Northern Ireland people and secure a special status for the region.

“The overriding and principle objective of our deliberations are in Sinn Féin’s view about securing the position of the island of Ireland within the European Union in line with the democratically expressed wishes of citizens in the north. That means openly, and meaningfully, exploring options through which Ireland in its entirety can remain within the European Union,” he said.

“There should not be a hard Brexit or a soft Brexit, our discussion should be about moving beyond the consequences of Brexit and looking at alternatives.

“A referendum on Irish unity should not be ruled out, that’s clearly Sinn Féin’s preference, but we should also look to already unique arrangements in place in the European Union.”

…and the SDLP leader Colum Eastwood…

SDLP leader Colum Eastwood also made the case for getting a bespoke deal for Northern Ireland.

“We haven’t given our consent to leave the European Union, that’s why we have to fight tooth and nail to protect the people of Northern Ireland – the 56% who voted to remain within the European Union,” he said.

“Theresa May said that she’s arguing every day for a bespoke deal for Britain, well we need a bespoke deal for Northern Ireland, we need to protect the freedom of our citizens around this island and within the European Union.”

…and the new Alliance Party leader Naomi Long.

Alliance leader Naomi Long told those gathered that her party would also support campaigning for a special deal for Northern Ireland.

“We would obviously prefer a soft Brexit, or indeed no Brexit at all, but we also need to confront the notion of a one size fits all Brexit, and in this regard we do support consideration of some sort of special status for Northern Ireland,” she said.

“What is meant by that needs to be developed over the coming weeks and months by governments, political parties, the business community, academia and civil society.

“It could see Northern Ireland as a region remaining inside the European Union or outside with some form of special recognition, a full spectrum of detailed options and scenarios should be considered.”

Which is fine…  Except that those comments all came after the Northern Ireland Assembly, on 17 October, had already rejected EU “special status” for Northern Ireland.

Now, arguably, an opposition party might have more leeway to ignore an Assembly vote than a party in Government.  But still…

Particularly when both the SDLP and Sinn Féin are party to a case heading for the UK Supreme Court in which they are arguing that the NI Assembly should have a veto on triggering Article 50 and, possibly, should also have a veto on any resultant Brexit deal for Northern Ireland.  [A ‘veto’ which everyone can then ignore? – Ed]  Indeed.

Meanwhile, the Irish Times reports today that

Sinn Féin in launching the document, Towards a United Ireland at Stormont said the only way to uphold the wishes of the people of Northern Ireland who voted by 56 per cent to remain in the European Union was through a united Ireland.

The document contends that “Brexit changes everything”.

Aha!  Which united Ireland though?  Not one with a new constitution.  Because that would could make it a successor state.  And that would require it to apply to join the EU.  At which point certain parties may have a re-think about the benefits of membership…

And that is what Enda Kenny has been talking about for some time…

  • Brian Walker

    The behaviour of the party leaders arguing for special status proves the obvious point, that Northern Ireland’s future relationship with the EU is not in its own hands. This is hard to swallow for those who put so much store on our self determination on the constitutional question. But there are excellent arguments for some sort of special arrangements. They’ll be in the details of the final deal Discussion should concentrate now on the practicalities with both governments rather than tilting at windmills. This has an air of embarrasing futility about it , as if none of them have the slightest idea of what to do, except sing an old song.

  • Kevin Breslin

    They rejected an SDLP motion on this issue, partially for face saving tribal reasons.

    I think eventually both the DUP and to a much lesser extent the UUP are going to have to look at some sort of status for Northern Ireland and how to deal with the post-Brexit freight and travel barriers across these islands.

    There may well be a Wisdom of Solomon approach, freight barriers on land between independent states, travel barriers by sea between most of a state and a constituent part of said state.

    The DUP does not seem to have anything to offer in terms of a coherent trade policy or managing border trade legally outside the Single Market.
    It’s been ignorance is bliss pretty much eternally. DUP MPs have cheered David Davies speak about WTO terms but not a single DUP rep has the specialized intelligence to explain how it would be enforced in Northern Ireland.

    The laissez-faire approach we’ve seen will see the UK driven ratcheting back of customs posts with no grounds of deniability.

    Honestly it would be better for the UK to stay in the Customs Union, Single Market, EEA and whatever else is necessary until a practical arrangement by a comprehensive UK-EU bilateral treaty or a United Ireland. Whichever is first.

    As I said before the DUP are doing nothing. Other than signing Irish passports I guess in the hopes it allows some NI people to export services as “normal” to ROI and the EEA-Switzerland region, despite Brexit. In terms of freight, the party is either oblivious or obfuscating the matter of trade and the border. Not realizing the “trade borders of the past” existed for a reason and the EU is the reason they are mostly gone.

  • eamoncorbett

    I have reservations about the Irish passport scenario , after all Mike Pence can claim an Irish passport through his Sligo grandfather but could he claim EU citizenship , I’m not sure.

  • Smithborough

    The Republic of Ireland will also need to get a special deal from the EU & UK for the huge percentage of its imports and exports which go through the UK.

  • Smithborough

    EU citizenship isn’t (yet?) free standing. It is an automatic consequence of citizenship of EU member state. What happens when the state leaves the EU seems to be an open question however.

  • eamoncorbett

    What happens if the EU passport holder only ever lived in a country that was never in the EU eg. US citizen claiming Irish citizenship through one or more Irish grandparents.

  • Jollyraj

    “Which united Ireland though? Not one with a new constitution. Because that would make it a successor state. And that would require it to apply to join the EU”

    A new Ireland would have to apply to join the EU? Hmmm…since being given a green light in that case would be far from a given, SF would in essence be asking Ireland to exit, too, then unite with us, and gamble that the EU would want to take the new nation in?

    My goodness… I guess that ends the talk of a united Ireland for another generation then. Can’t see why on earth the Irish would want to risk it, frankly.

  • BonaparteOCoonassa

    There may be “excellent arguments for some sort of special arrangements” but the UK government show absolutely no signs of offering such a thing to the Scottish Government, so why would the offer NI any?

    There is also no sign of any “final deal Discussion” being offered, despite promises to involve Scotland and NI in the negotiations. It has hard to avoid mention of “headless chickens”, and having seen such a thing, and it’s inevitable end, I succumb to the temptation.

  • Kevin Breslin

    I’m going to the experts in Football Manager, I managed Manchester United in game and I did not need a work permit for my Yankee goalkeeper Tim Howard after Hungary joined the EU/EEA … As T’Ho was of Magyar ancestry.

    So unless rules have changed much since the early 2000’s that may actually be the case.

  • “They’ll be in the details of the final deal”

    Indeed, Brian.

    And that will be in the details of the deal between the UK and Ireland, which the EU will endorse.

  • George

    “Not one with a new constitution. Because that would make it a successor state. And that would require it to apply to join the EU.”

    That line of reasoning has absolutely no basis in EU law. Ireland engaging in radical constitutional reform (including the drafting of an entirely new constitution) as a result of Northern Ireland becoming part of the State would not result in it automatically leaving the EU.

    Remember in order to have to apply to join the EU it would first have to be out of it. Perhaps you could point out the relevant Treaty article that backs up your assertion? You seem to be confusing the concept of a rump state remaining (Scotland v UK) with that of a member state expanding (Ireland + Northern Ireland).

    In the former, the UK would have left as it has ceased to exist. In the latter, Ireland still exists but is merely larger.

  • There’s no confusion, George.

    The difference is between a continuing state and a successor state.

    If it’s a successor state then it’s not yet an EU member.

    Which is why Enda Kenny has been using the example of the merger of West and East Germany – which involved minimal constitutional change.

    That would be minimal constitutional change for West Germany – the EU member state at the time.

  • Croiteir

    There are differences which makes the two cases not identical, notably the interest of the Republic, who are one of the bodies with which the British have to negotiate.

  • Croiteir

    Why would a new constitution make a new successor state?

  • Skibo

    Interesting position to argue from but tell me did Germany have to negotiate to rejoin the EU? No you say then I suppose we still have an East Germany and a West Germany? No you say! how did this happen/ Did we sleep through it?
    Perhaps the talks of a new Ireland can stay on track and we won’t bring that yo again. Silly boy!
    Sorry about the sarcasm, I am learning fast!

  • Skibo

    Now you have the reason why the Irish parties are making so much blow about NI. The trade they have with the north is small change to the trade they have with GB. They may however let the cat out of the bag on reunification and we all know how hard it will be to put that one back in again.

  • BonaparteOCoonassa

    True, but if May offers NI something, it will be extremely hard for her to not offer similar to Scotland. Not doing so would make the break-up of the UK certain, instead of probable.

  • BonaparteOCoonassa

    Your clarification causes even more confusion. The article stated:

    “Aha! Which united Ireland though? Not one with a new constitution. Because that would make it a successor state.”

    “George” then pointed out that as far as he knew, having a new constitution would not result in Ireland being a ‘successor’ state. (i.e. that it would still be a ‘continuing’ state).

    You have pointed out, as ‘George’ did, the fact that there are at least two possible kinds of state which might either be in, or be eligible for, EU membership, but you have not supplied any evidence that his statement is wrong and that the article is right. Your mention of “minimal constitutional change” is a red herring – where is the criteria for the degree of change which turns one kind of possible state into another?

    Whether this would be the case for Ireland must surely be a matter for discussion and argument.

  • George

    I refer to the statement in the post that seems to imply that the creation of a new constitution equals a successor state. It doesn’t and there is no basis in law for this argument. I note you still haven’t pointed to any legal basis for your hypothesis. Yes, a successor state may have a new constitution but a state that invokes a new constitution does not necessarily become a successor state.

    Ireland could decide to draft a new constitution in the morning but this would not make it have to re-apply to join the EU. It would simply be the state continuing but under a new constitution.

    You cite West Germany as an example. West Germany considered drafting a new constitution but decided against it as the negotiations would have taken too long and wanted unification to happen quickly. Instead a simple law was passed that FRG laws became operable in the new Bundeslaender.

    Ireland and Northern Ireland could negotiate a new constitution and this constitution could then be passed by a vote in the Republic and then Northern Ireland simply cedes into the Republic (or whatever it decides its constitutional status is to be) and we have a continuing state. No need to re-apply to the EU. That is just one of a number of possible solutions.

    I hope that has solved the confusion for you.

  • There is no confusion on my part, George. My short-handed references may be to blame

    “I refer to the statement in the post that seems to imply that the creation of a new constitution equals a successor state.”

    That may be what you inferred. But it wasn’t implied.

    “It doesn’t and there is no basis in law for this argument. I note you still haven’t pointed to any legal basis for your hypothesis.”

    Because that wasn’t my hypothesis. It was yours.

    I cited the reunification of Germany because that’s the specific example Enda Kenny used when he first brought this issue up. It’s linked in the original post – to avoid going through it all again.

    Here’s the quote, and the post from July, again.

    Speaking to the audience at the summer school, he said he had “not favoured the holding of a border poll” because the necessary conditions, set out under the Good Friday Agreement did not exist.

    However, he added that the forthcoming negotiations should foresee the possibility that support for joining the Republic “in an all-island situation” could grow in Northern Ireland as a result of Brexit.

    He added: “It may be, in the eyes of some, a fanciful theory but who knows what happens in 10, 20 years time?”

    The taoiseach also referred to the reunification of Germany as an example of how the process could be considered.

    In the same way as it was possible for the former East Germany to be associated with West Germany, and not to have to go through a very long and tortuous process to join the European Union – and these negotiations should take these kinds of things into account as well,” Mr Kenny said. [added emphasis]

  • “Interesting position to argue from but tell me did Germany have to negotiate to rejoin the EU?”

    No, because in that case they simply extended the reach of the West German constitution.

    See the conversation above.

  • Croiteir

    And the reasons for me to vote for Brexit just keep on being justified. I am certain that Brexit will push the British constitution, and constitutional arrangements, to breaking point and hopefully destroy them, at least in present form and from that nationalism should prosper.

    Scotland is different from Ireland, the border makes that difference. To me that is an easily argued point. Whether it convinces the Scots is another matter but I cannot see the Tories fully grasping that.

    O happy days.

  • billypilgrim1

    That’s a remarkable claim, Pete, and not one I’ve seen before.

    If I understand you correctly: if a member state drafts a new constitution for itself (and let’s assume there’s nothing in that constitution which is repugnant to EU obligations) then the EU would in effect expel it?

    Do you have any further information on this? It’s an extraordinary claim.

  • billypilgrim1

    It wouldn’t.

    Pete has just been called on his bullshit.

    Well done George!

  • “If I understand you correctly”

    You don’t.

    Read the linked post.

    And, to avoid further confusion, I’ll amend the original text.

  • Skibo

    Pete, looks like that could be another one for the lawyers to make some coin out of. What constitutes substantial change when it comes to the constitution.
    I believe the Irish Constitution was substantially changed as a result of the GFA. Articles two and three have been rewritten. Ireland didn’t have to reapply to join the EU.
    Me thinks thou dost protest too much.

  • BonaparteOCoonassa

    It’s an ill wind . . .

  • BonaparteOCoonassa

    You are not addessing properly the point both George and I are making. Try reading the associated posts again.