Fears of joint authority surface as the Lords approve no border checks without Dublin consent

Sometimes –only sometimes – debates in Parliament tell us a lot more  than a dozen columnists or a week of Nolan. And with much greater courtesy than the latter, needless to say. One such took place yesterday when the House of Lords supported moves to prevent a hard border after Brexit under which no new checks or controls could be imposed without the agreement of the Irish Government.  If you think this would be innocuous enough you’d be wrong. Approval for Patten’s amendment  registers as a government defeat.

Although Irish nationalists are not represented in the Lords, the result shows that Leave orthodoxy supported by the DUP does not always prevail. Nobody rejected Patten’s support for close British-Irish relations as described in the GVA. But seeking Irish permission to carry out spot security checks – a sort of test case- was a step too far.

Old hands like former SoS Tom King and Paul Bew the former Timble adviser rejected a broad interpretation of the GFA  that gives Dublin a virtual veto over any unilteral British action, smacking of joint authority. And there was resentment that Ireland supported by EU 26 had somehow become the senior partner, leaving  Britain and by extension unionists feeling bruised by EU hardball negotiating tactics which include exagerrating the threat to  security from a hard border. This is a remarkable turnabout by the traditional defenders of the state. And it exposes a gap widened by the course of Brexit that has to be narrowed.

There were two basic objections to Chris Patten’s amendment. One, while nobody wanted a permanent border there should be no objections to spot security checks somewhere along the route.

The second is more fundamental. Patten’s amendment requires any such checks to be subject to agreement between the British and Irish governments and implies that this is required by the GFA. To some speakers this smacks of joint authority. In an Upper House which contains no Irish nationalist representatives this interpretation was powerfully disputed but failed to stop the amendment passing .

Chris Patten principal architect of the policing reforms and a former NIO junior minister   

“The first half puts in the Bill the Government’s commitment to the Good Friday agreement. The second part makes it clear what is meant by a frictionless, or seamless, border. Just in case anyone says, “You can’t rule this or that out for ever”, we have made it clear, after proposed new subsection (2)(b), that we are talking about things that did not exist before exit day and are not subject to an agreement between Her Majesty’s Government and the Government of Ireland. What we are doing in that part of the clause is recognising that the Good Friday agreement includes a specific commitment to the removal of security installations along the border.

There are some people who say, “But there have to be these security installations”. The paradox is that, today and in the past, security installations have produced the exact opposite of security. If anyone did not believe that, they might listen to the chief constable of the Police Service of Northern Ireland, which I am pleased to say has today probably the best relationship that there has ever been between the PSNI and Garda Síochána. The Government plainly understand the importance of the relationship between the border and the Good Friday agreement. In the Northern Ireland position paper, they quote with approval that the border is,“the most tangible symbol of the peace process”.

And in conclusion the debate..

Touching on the point made by my noble friend Lord Bridges about not having a border down the middle of the Irish Sea, I do not think I would have signed an agreement in Brussels that accepted that. I know enough about “one country, two systems” to keep me going until I drop dead.

John Alderdice the former Alliance leader and first Assembly Speaker    wanted to preserve  the option of the UK to act  independently on cross border security  as cooperation  might be thwarted by a future Irish government of which Sinn Fein was a member.

“…. what would happen if our security services had good information that a real danger was coming from across the border, not just to Northern Ireland but to this part of the United Kingdom, and they needed to get into negotiations with the Irish Government to introduce certain kinds of security checks which had not existed for some years and do not exist now? Are we confident that that could be addressed promptly, and that Sinn Féin would say, “The British security services have said this—that is absolutely dependable; we know we should act with responsibility in that regard, and we will act promptly and immediately against other Republicans”? Maybe it would, but “maybe” is not sufficient.”

The former security adviser to the UK Government Alex Carlile QC was prepared to trust today’s Sinn Fein

There is absolutely no question that security checks will be required from time to time. I have been in security checks myself from time to time in Northern Ireland and they have been put in place and removed ad hoc extremely quickly. I have seen them happen at extraordinary speed within minutes.

I disagreed with an awful lot of what they did before, but my observation from the time that I have spent with them (Sinn Fein) ,…, is that they have committed themselves to the constitutional arrangements which appertain in Northern Ireland. That is because of one event: the Good Friday agreement and all that has flowed from it…..  If we look at the membership of the legislative Assembly when it sits, particularly at the identity, experience and backgrounds of today’s Sinn Féin Members, most stand as elected representatives whose integrity could be compared to almost any other legislative body in Europe”

Robin Eames the former Anglican primate  shared unionist concerns about unfair pressure from Michel Barnier

“Did the chief negotiator mean that there will be a lot of give and take once we move on the border, or was he saying, “We will move if you move”? Was he going even deeper? Was he warning us that, “Unless certain requirements in the control and operation of our border are met according to our terms, we will not continue to help you to get Brexit”?

David Trimble agreed and went further..

 I think that it is a mistake to link this process, this legislation, with the maintenance of peace in Northern Ireland. I do not see a connection in the terms that have been said and I am dubious about whether this should be addressed as any more than scaremongering, and scaremongering on a fairly limited basis.

….pressure has been coming from Brussels and Dublin for some time for a significant change to be made to how Northern Ireland is governed. The drive is there to get Northern Ireland into a special situation: linked permanently to the European Union and with the union with the rest of the United Kingdom to that extent weakened. That is what Barnier openly called for a couple of days ago; it is implicitly what Coveney said in a newspaper article a week or two ago, where he called on the British Government to abandon some of their red lines in pursuit of peace and prosperity—so the threat is there as well.”

Objecting to limiting consent  for border arrangements to the two governments Trimble recalled  what he regarded as the failure to consult unionists over  Sunningdale in 1973  ( a disputed opinion)  and the Anglo-Irish Agreement of 1985 ( undeniable).

“Some people have gone around suggesting that Brexit might damage the Good Friday agreement. Brexit is not going to damage the Good Friday agreement; this amendment will, because it excludes the people of Northern Ireland. If future arrangements are to be made over the Northern Ireland border it is obvious that you have to have the people of Northern Ireland and their elected representatives closely involved in that. If not, you are going to make the same mistake.”

All it takes David, is to get the Assembly back up and running.  Then turning to Dublin..

“. the behaviour at the moment of the Irish Prime Minister and Coveney, backed up by the European Union, is actually destroying that relationship and doing considerable damage to it. I know that we cannot directly affect that, but the message should go out very clearly to Dublin and to Brussels that they are not to continue to damage the basis of our institutions in pursuit of some petty objective, such as getting yourself elected as the head of a European body in Brussels.”

(What’s that about?  One of Trimble’s irritating little squibs. And note those slighting references to ” Coveney.” Part of the John Taylor  tradition of political manners? )

The Irish defence is that they have to defend their own interests in a situation not of their making but Britain’s  – though Stephen Collins among many others believes  they must compromise for that very reason.

Alan Howarth a  former Conservative MP who defected to Labour in 1995

 “It would be entirely within the letter and spirit of the Good Friday agreement—would be for there to be a referendum in Northern Ireland, in which the people of Northern Ireland could decide for themselves whether they wished to be reunited with Ireland. After all, 56% of them voted to remain; it would be an opportunity to test how serious they are about that. If that was the decision that they took, that, too, would solve the problem of the border. I emphasise that it is not a resolution that I would like to see—but it is nonsense to say that there are no policy solutions other than staying in the customs union.

I finally note that it is a curiosity to me that Amendment 88 effectively gives the Government of Ireland a veto on the list of policy options in relation to the border that is set out in the amendment. Since this Government of Ireland take their instructions from the EU, it effectively gives a veto to the EU. The noble Lord, Lord Patten, mentioned in the debate on the customs union the other day that he has experience of international negotiations. I would just ask him whether he really thinks that it is wise to legislate to give to the people you are negotiating with a veto on crucial issues that you are negotiating on. I do not think that that is sensible, realistic or appropriate, and I do not think that we should support this amendment.”

Peter Hain former Labour secretary of state

In their joint report with the European Union of December last, the UK Government repeated their commitment to protecting the operation of the 1998 agreement and to the avoidance of a hard border. Indeed, they went so far as to preclude,

“any physical infrastructure or related checks and controls”.

The amendment would bring into legal effect the commitments the UK Government have already made to the European Union and to everyone. In Brussels, ​a means of doing so in legally operable terms in the withdrawal agreement is currently being negotiated. It is essential that we do likewise in passing this amendment to the Bill”.

Tom King Conservative secretary of state at the time of the Anglo-Irish Agreement in 1985

” I spent a lot of my life persuading and assuring people in the Province that we would not have joint authority, but we seem to have it here. This is exactly the problem that I tried to raise on the meaningful vote issue and I raise it on this as well. Although the intention is good and the ambition absolutely right, we now start the complication of drawing up a very specific and long, detailed amendment. That is not the way to go.”

Robert Carswell, former Lord Chief Justice of Northern Ireland  1997-2004, later a law lord

“People of good will all agree on the ideal of the smoothest possible operation of the passage of people, goods, livestock and vehicles across the border. However, that good will needs something more: it needs good sense. When that criterion is applied, I fear that it is rather more difficult to accept the portion of proposed new subsection of (2)(b) that deals with this. It would, in effect, have the consequence of fixing everything in aspic: not a stone to be moved, not a blade of grass to be bent unless the two Governments agree.

Recent history does not give us any great confidence in that. I say with regret that the approach of the EU negotiators to this issue has been rigid and intransigent to the point of being obstructive. I am equally sorry to say that the Government of the Republic have thrown themselves in line with that. That is most regrettable because their predecessors were taking a very much more constructive, co-operative and sensible line. When the present Government took over, they immediately reversed that policy to being equally difficult—if I may put it as politely as possible—as the EU.

What the amendment really appears to involve, if the Governments do not agree, is the status quo, which in effect means a full customs union: either the whole United Kingdom with the EU or Northern Ireland alone with the EU. I am afraid that I would find it equally impossible to support them…

I am sorry to say that those who talk up the risk of a resumption of violence are misguided. It is an emotive argument, another project fear, which was roundly described a few days ago by a highly respected, very experienced and very independent-minded commentator in the Belfast Telegraph as “quite simply scaremongering”.

 

Paul Bew, Queens’ politics professor and adviser to Trimble at the time of the 1997 negotiations

“… if we do not at some future point live up to the terms of what apparently is in these amendments, with their strong hint of joint authority between the Irish Republic and Great Britain, we can be certain that Irish public ​opinion will take the view that, once again, we have betrayed them and raised expectations. You can be absolutely certain about that. I absolutely accept the good faith of those Peers who have said that, no, it does not mean that, if you read it this way—but it does not matter, because you are dealing in this case with Irish politics.

although there is a great deal of spirit behind this amendment which one can fully respect, the failure to mention the actual Good Friday agreement as opposed to the Act is a problem, because the Act does not signal in a way that the Good Friday agreement does that the Good Friday agreement was dependent on the agreement between the parties.

One great achievement of that agreement between the parties was, for example, the new north-south arrangements for co-operation in agriculture, and one of the most remarkable things about the current moment is the tacit and explicit acceptance by the Democratic Unionist Party, which opposed these things at the time and now accepts them. When they say that they do not want a border in the Irish Sea, they have no opposition whatever to the ongoing north-south co-operation that has carried on. It is, therefore, hobnail boots to put it into this amendment; it is unnecessary and over the top and, once again, has the flavour of joint authority. As the noble Lord, Lord King, says, the whole success of policy since 1985 has been based, at least partly, on separating out the British Government’s intentions from the concept of joint authority”.​

 

Onora O’Neill, Cambridge philosopher, niece of politicians Phelim, and distant cousin Terence.She raised  the question which intrigues me of how if you need to, you prove you are a citizen of the UK, Ireland or both.

” I believe that, if we are thinking about the principles of the Good Friday agreement, it is the movement of people and respect for people that is really much more important. That answer of “passports”, illuminating as it was, does not tell us who has to have a passport or when they have to show it and to whom. We will need answers to these questions ​if that “no hard border” intention is to be redeemed. In short, I do not believe that the intention is adequately served by talking about technologies for observing the movement of goods. we have to think about those people who cannot document that they are Irish. If Brexit happens, I presume that we will not wish to extend the same rights to work, to NHS treatment and to vote, which Irish people get here, to people from other countries who come perhaps via the Irish Republic.

Therefore, we need to have—I am sorry—passports or ID cards for everybody in this situation. This is the human rub that we need to think of before we start wondering about new technologies for the goods which, after all, do not move independently. So let us go back to thinking that the point of this amendment, ultimately, is respect for the principles of the Good Friday agreement, which has made such a difference to life in Northern Ireland, and which means respect for all the people who might be affected by change. We do not want another version of Windrush for Irish citizens living here”.

Reg Empey former UU leader

“We are saying on the one hand that we want regulatory alignment for Northern Ireland as this backstop and on the other that we do not want any difficulties between Northern Ireland and the rest of the United Kingdom. Unless Brexit does not take place and we reverse our decision to leave the European Union, those two things will be mutually exclusive. We have to get our heads around that.

Lord Mackay of Clashfern, said in an earlier debate that he believed that one part of the solution could be a new treaty between the United Kingdom and the Republic of Ireland which would be recognised by the European Union. Part of the solution could lie in the north-south bodies that we set up under a treaty which have certain specific functions.

There is no reason why those bodies cannot change and vary over time. One of them, the SEUPB, which looks after special European programmes, will have to be dissolved. We may need to look at the functions that some of those bodies perform and whether the United Kingdom Government and Parliament might devolve to them specific matters where they could negotiate on details, particularly around agriculture, animal health and other issues, and where regulations—because we are one land mass—are better, on the same scale or equivalent. If we are looking at the way ahead, we have to look at solutions. That is one possibility, but the idea of a new treaty is something that we should look at.

Paul Murphy for Labour, former secretary of state

“I do not think for one second that this amendment refers to or is about joint authority. What it is about is the recognition that both the British Government and the Irish Government are joint guarantors in international law of the Good Friday agreement. That is what it is about. Also, the agreement itself set up the British-Irish Intergovernmental Conference, which meets from time to time in order to deal with matters of common concern.”

Finally out of pure serendipity, an exchange of quotations from the MacNeices father and son.

Chris Patten

In the middle of the 1930s, a great Church of Ireland Bishop, Louis MacNeice’s father—an Orangeman, a huge opponent of fascism and anti-Semitism—said this to his diocese:

“It would be well to remember and to forget, to remember the good, the things that were chivalrous and considerate and merciful, and to forget the story of old feuds, old animosities, old triumphs, old humiliations”.

He concluded:

“Forget the things that are behind that you may be the better able to put all your strength into the tasks of today and tomorrow”.

Lord Duncan of Springbank, junior NIO minister winding up

I also listened to the noble Lord, Lord Patten, when he spoke of Louis MacNeice’s father, Bishop MacNeice. I am a passionate supporter of Louis MacNeice and a great lover of his poetry. I am aware of the line where he said:

“My father made the walls resound,

He wore his collar the wrong way round”.

He was an extraordinary poet but if your Lordships will forgive me, I will bring to you the words which I believe in this instance might be slightly appropriate, although very cryptic. They are from the poem by Louis MacNeice called “Snow”, in which he was confronting two seemingly difficult and different things coming together: broadly, large flowers in a window and snow outside. He simply said:​

“The room was suddenly rich and the great bay-window was

Spawning snow and pink roses against it

Soundlessly collateral and incompatible:

World is suddener than we fancy it.

World is crazier and more of it than we think,

Incorrigibly plural”.

 

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