After Brexit #7
Brexit Needs a Border Poll
11 November 2020
Remainers’ hopes that Joe Biden will squeeze Britain over the Good Friday Agreement should convince British democrats that, if Brexit is to deliver its democratic potential, we need to support Ireland’s reunification.
British Remainers have been very excited by Joe Biden’s election victory. Much is being made of his hostility to Brexit and his Irish roots. They believe that Biden will cite concerns for the Good Friday Agreement (GFA) to put pressure on the UK government to agree a trade deal on the EU’s terms. Tony Blair’s former spin doctor, Alistair Campbell, spelled it out when he tweeted that “@JoeBiden thinks Brexit and @BorisJohnson are a threat to the Good Friday Agreement, about which he cares deeply”, adding that without US backing the British are too weak to stand up to the EU, with the result that “Johnson will get a deal. The one the EU tell him to take. Total failure of statecraft.”
Biden’s victory has stiffened Remainers’ already noisy resistance to the British government’s Internal Market Bill. In the event of no free trade deal being agreed with the EU, some clauses of the Bill would allow the UK government to assert greater control over trade between Britain and Northern Ireland than was envisaged by the EU when the Withdrawal Agreement was signed last year. The government has apparently included these measures in an effort to strengthen the UK’s negotiating position with the EU, something Remainers are, as ever, keen to undermine. Elite Remainers are once again raising the threat that without a free trade deal the EU would be compelled to put in a “hard” land border to protect its Single Market with the consequent possibility of sparking dissident republican violence in the North. Their accusation is that the British government undermines the GFA if it does not agree to whatever the EU demands to protect its Single Market. Now Remainers hope to recruit the US President-elect to their unholy alliance.
Remainer hopes that American domination will force the British government into a deal on the EU’s terms may be overplayed. But, whether they are well-founded or exaggerated, the political speculation over using the GFA in this way should remind all British democrats that the union with Northern Ireland is not only a denial of national sovereignty to the Irish people, it is also a critical weakness in the sovereignty of the British people.
The Brexit process has repeatedly demonstrated that the United Kingdom of Great Britain and Northern Ireland is afflicted with an institutionalised vulnerability to the demands of foreign governments because it continues to incorporate a territory where its state lacks adequate authority. The solution to this problem is to do what Britain should always have done: stop standing in the way of Ireland’s unity and facilitate it instead (see Analysis #40 - The Flaw in the Crown: Why Popular Sovereignty in Britain Means Reunification in Ireland). Under the terms of the GFA, the British government is entitled to call a “border poll” in Northern Ireland, asking the population if they wish the six counties to be reunited with the Republic of Ireland. Any British government that is serious about achieving a successful Brexit should call a border poll, and it should get behind the campaign for reunification.
The effectiveness of Remainer/EU scaremongering over the GFA as a means to pressurise Britain in the Brexit negotiations relies on the fact that the UK authorities are deeply committed to the Agreement. The GFA represents the achievement of Britain’s long-term strategy for pacifying the six counties of Northern Ireland, a strategy that it pursued from the early 1970s onwards. By drawing northern Nationalists into a power-sharing regime underwritten by the cooperation of the Irish Republic, Britain sought to end the conflict without having to admit defeat at the hands of Irish “rebels”. British governments certainly have no other strategy for running Northern Ireland.
It is this commitment to the GFA in Whitehall that gives the EU leverage over Britain. After the Brexit vote, the Varadkar government in Dublin along with British and Irish Remainers emphasised the supposed threat to the GFA arising from any significant border installations being put in place. Under Theresa May, the British government responded by agreeing to the “backstop”, promising that should no free trade deal follow from Britain’s withdrawal from the EU, the whole of the UK would remain in the EU’s Customs Union. This would have been very much to the UK’s disadvantage and would have given the EU huge advantages in any trade negotiations.
May’s agreement to the backstop was a sign of just how deeply committed to the GFA British governments are. Wholly unacceptable to most Leavers, the backstop played a big part in ending Theresa May’s government. When Boris Johnson renegotiated the Withdrawal Agreement in late 2019, he succeeded in having the backstop replaced by a Northern Ireland Protocol that was significantly less disadvantageous to Britain. Nonetheless, the new protocol remained firmly embedded in the structure of the GFA, reproducing all the political vulnerabilities that come with that.
On the face of it the Protocol provides an ingenious solution to avoiding border controls between Northern Ireland and the Republic in the event that a trade deal cannot be negotiated. It allows Northern Ireland to remain effectively within the EU’s single market and customs union so that there are no tariffs or checks required on cross-border trade, but also in the UK’s customs union so that there are no tariffs on trade between Northern Ireland and the rest of Britain, either. The UK government would collect tariffs on behalf of the EU on any goods leaving Great Britain that are “at risk” of entering the Republic via Northern Ireland, and it would do this before those goods get to the international border. The Protocol puts customs and regulatory checks at ports on the Irish Sea or within Britain rather than on the contentious Irish land border.
However, the new Protocol came at a price. It enables significant EU interference in internal UK trade with Northern Ireland. Specifically, it potentially gave a great deal of influence over what goods would be regarded as “at risk” of entering the EU’s single market to the EU, with possibly serious consequences for Northern Ireland’s consumers. It would also have allowed EU state aid rules to be enforced across the whole of the UK where any trade with Northern Ireland might be involved. The Johnson government has tried to mitigate these effects in the Internal Markets Bill as part of the on-going Brexit negotiations with the EU.
The main problem with the Northern Ireland Protocol agreed last year is that it reinforces the “constructive ambiguity” that is at the core of the GFA. It envisages that Northern Ireland will be de jure in the UK’s custom’s territory, but de facto will also remain in the EU’s customs’ territory and in its Single Market. This arrangement is very much in the spirit of the GFA. Under the GFA’s terms, Northern Ireland remains legally a part of the UK. But politically the settlement incorporates Irish republicans who reject British rule into the territory’s governing structures, and it concedes real authority to the government of another state, that of the Republic of Ireland through the institution of the North/South Ministerial Council. The result of this is that ultimate political authority over the territory rests with the diplomatic arrangements of two governments over which the people of Northern Ireland have very limited influence. The parties they vote for in Northern Ireland either do not sit in the Westminster parliament (Sinn Fein) or, where they do, have minimal influence over British governments formed by different parties that do not organise in Northern Ireland (the Conservative and Labour parties). Northern Ireland’s voters have no representation in the Republic (although they can at least vote for Sinn Fein, a party that also represents voters in the Republic). The Northern Ireland Protocol furthers this supranational scheme of low-accountability government by leaving the power to regulate Northern Ireland’s economy with EU institutions in which, after Brexit, the people of Northern Ireland will have no representation of any kind.
The fact that the protocol reproduces the GFA’s constitutional ambiguity indicates once again the depth of commitment to preserving the Agreement in Westminster. Indeed, the unilateral tweaks to the Protocol proposed in the Internal Markets Bill are explicitly justified by the Bill’s supporters as necessary to protect the GFA’s guarantee that the constitutional status of Northern Ireland will not be altered without the consent of Northern Ireland’s people. Nevertheless, they have generated the usual anxiety and pressure over the possible breakdown of the GFA. The reason for this is that the opportunity for constant scaremongering about the prospects of the GFA is a structural feature of that Agreement.
This pressure point exists, notwithstanding the commitment of UK governments to the GFA, because the GFA institutionalises the authority of the Dublin government in the constitution of Northern Ireland, and of parties loyal to a unified Irish Republic within the government of Northern Ireland. Dublin can constantly raise doubts about the future of the GFA because it is authorised to do so by the Agreement to which it is a party. For as long as the British government is committed to the GFA, the hand of the EU and its supporters is strengthened, and even more so if it can be tied into the conditions of a future US-UK trade deal.
This feature of the GFA reveals that Brexit and the GFA are fundamentally at odds with one another. Brexit is a test of the UK’s national sovereignty that arises from the British electorate’s rejection of the supranational intergovernmental arrangement that is the EU (see Analysis #1 - The EU's Democratic Deficit: Why Brexit is Essential for Restoring Popular Sovereignty). But the GFA is also a supranational intergovernmental arrangement - one that binds the UK to another government that is militantly pro-EU.
What should be clear by now is that Britain is unable to assert its sovereignty over Northern Ireland without the agreement of Dublin. If it could do so, it would not have agreed to the backstop or to the current Protocol, both of which effectively cede extensive control of Northern Ireland’s economy to foreign governments. Indeed, it would not have agreed to the GFA in the first place if it could simply have asserted its authority in the six counties without having also to invoke the authority of the Republic. The GFA itself is not the reason for Britain’s lack of authority but rather the effect of it. Britain has never had sufficient political authority to rule in Ireland and up until the GFA, it had to rely on oppression and armed force, in one form or another, to maintain its institutions there (see Analysis #40 - The Flaw in the Crown: Why Popular Sovereignty in Britain Means Reunification in Ireland). By repeatedly wielding the GFA to help the EU to promote its interests over those of the UK, the Dublin government has demonstrated to all its very real power in the affairs of Northern Ireland and the weakness of Britain’s authority in the territory.
The only way to bring this weakness in the sovereignty of the British state to an end is for the British state fully to relinquish its destructive claims to the territory of another people by offering them the opportunity to unify their island. The British people and government should also actively back the campaign for reunification.
Ending the union with Northern Ireland would not only benefit the British people. It would release Northern Ireland from the political and economic stasis that has accompanied its constitutional limbo. Politically the GFA may have drawn the former enemies into government together but, in so doing, it has chained Northern Ireland to the sectarian politics that were nurtured by partition. Every aspect of political life in the North is now interpreted through the rivalry of the opposed identities: Protestant-Unionist vs Catholic-nationalist. Housing and education are as segregated as they ever were. The urban population of Northern Ireland shelters behind literal walls that divide them into two tribes living separate lives. Paralysed by sclerotic cultural identities, going nowhere slowly, Northern Ireland has never experienced the “peace dividend” that was anticipated when the GFA was signed. On the contrary, it has stagnated. Its economic growth has been the poorest of all UK regions, its per capita GDP increasing by an average of just 0.5% per year between 2000 and 2014. Despite enjoying the highest level of per capita public spending, Northern Ireland is the UK’s third poorest region, exhibiting weak productivity and very poor levels of educational attainment, with the lowest share of graduates in the UK.
Reunification is obviously a process fraught with difficulty. But it is the only way out of Northern Ireland’s stasis because British rule has provided only oppression and violence followed by stagnation and paralysis. The Republic of Ireland is also beset with numerous problems. Like most of Europe, it is governed by an exhausted political establishment, deeply dependent on the EU, which does not even pretend to want Northern Ireland. But the Republic is also undergoing significant change as the dominant historical position of the Catholic Church recedes and Sinn Fein emerges as a new political force. Reunification would have a huge political impact: it would create an opportunity for democratic renewal in the Republic, testing the claims of a resurgent Irish republicanism and providing an opportunity for a real reconciliation that the GFA has patently failed to achieve.
The success of reunification will be greatly assisted if the British people play a constructive role in the process. The British government could make a clear political declaration that Brexit is a reassertion of Britain’s own national sovereignty, the full realisation of which requires an end to the union with Northern Ireland. And this could be a truly internationalist declaration, explaining that the sovereignty of each gains from the sovereignty of the other. Such a declaration will make it plain to Unionists that the British people have finally come to realise the true territorial limits of the authority of our political association. All interested parties could then work out a clear proposal for transition in advance of a poll. The longstanding Common Travel Area with Ireland should be maintained so that those few northern Unionists who really could not abide the idea of living in a united Ireland would be welcome to live in Britain if they wished. Britain should also offer full cooperation with the Republic in suppressing any violence by Loyalist paramilitaries. Northern Ireland businesses that currently ‘export’ goods to the rest of Great Britain could be offered special status, in the event that wider free trade negotiations with the EU do not succeed. And a generous time-limited scheme of British financial support for the significant costs of the reunification process could be devised.
There is, of course, no guarantee that a majority of voters in the North would back the reunification of Ireland even with full British support for it. However, if the vote went against reunification, then at least the good faith of the British government with respect to the Irish people as a whole would be firmly established and the constant fearmongering over border relations would lose its credibility.
Critics of this proposal will say that it is not realistic: Boris Johnson’s Tory government is never going to campaign for the reunification of Ireland. If that is correct, then too bad for Boris Johnson’s government - and too bad for Brexit. The fundamental antagonism between a successful Brexit, on the one hand, and Britain’s union with Northern Ireland and its Good Friday Agreement, on the other, reminds us of the weakness of the conservative case for Brexit. In reality seceding from the European Union was always a radical political challenge to the status quo: in Britain, in Ireland and in Europe as a whole. A border poll would not only promote the sovereignty of the British people but would extend the radical politics of sovereignty and democracy from Brexit Britain to Ireland. It would be a demonstration of the power of democracy and national sovereignty that would electrify the peoples of Europe. If Britain was seriously to propose backing such a poll, Ursula von Der Leyen and Michel Barnier would be calling Whitehall with alacrity and with charming offers. They should be politely entertained, but the poll should go ahead. As for the US, a border poll would be one British initiative that Joe Biden might find difficult to oppose.
 For a brief explanation see Graham Gudgin, “Submission to Northern Ireland Affairs Committee Inquiry: Brexit and the Northern Ireland Protocol”, Briefings for Britain, 26 September 2020.
 These suggestions differ sharply from an earlier proposal that I co-authored in 2018 (see Proposal #6 - The Irish Border: Passing Brexit’s Acid Test of Sovereignty). There we concluded that since the level of border installations could in fact be very minimal and that with the GFA the Irish people had formally vested sovereign power in Northern Ireland in the British state, the British government should abandon the backstop, assert its right to impose whatever border installations it thought necessary, and negotiate a solution to the border problem with the Republic on that basis. At that time, although we recognised that British sovereignty in Ireland had always been politically weak, and we personally preferred a united Ireland, there had been little public discussion of the possibility of reunification. Crucially, I did not recognise, as I should have, that although the GFA left formal legal sovereignty with the UK, it also constitutionalised Britain’s longstanding deficit of political authority in the six counties, compromising the UK government’s position so completely that it had become all but impossible for Britain to act independently in Northern Ireland, without the agreement of the government of the Republic. Understanding that has made it clear to me that enhancing the sovereignty of the British people entails retrenching its legal sovereignty to its true territorial limits, by bringing about a long overdue end to the union with Northern Ireland.
 In UK law the Secretary of State for Northern Ireland should call a border poll “if at any time it appears likely to him that a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland”. Arguably, British backing for such a reunification process would itself make the emergence of a majority for that outcome more likely.
About the Author
Peter Ramsay is Professor of Law at the London School of Economics and a co-founder of The Full Brexit.
This work represents the views of the author only. It is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.