Analysis #40

The Flaw in the Crown: Why Popular Sovereignty in Britain Means Reunification in Ireland

Peter Ramsay

11 October 2019

Long Read: The wrangling over the Irish backstop proves that Britain lacks the political authority in Northern Ireland that it needs to make a success of Brexit. If British Leavers want to strengthen popular sovereignty in Britain, they should join the campaign for Irish reunification.

“The British government has responsibilities on the island of Ireland and Brexit must recognize them.” These were the words of Ireland’s foreign minister, Simon Coveney, as he responded to yet another British proposal for the organisation of customs and regulatory checks on the Irish border. These checks will be required by the EU in the event that Britain leaves the EU without a trade deal. So far, the EU and the Irish government have been insisting that the Good Friday Agreement (GFA) means that Britain’s responsibilities include ensuring that there are no customs checks on the Irish border. The “backstop” arrangement is the result, and this has proved to be a critical obstacle to a Brexit deal.

 

Coveney is obviously correct that the British government has responsibilities on the island of Ireland. Under the terms of the GFA, the United Kingdom of Great Britain and Northern Ireland retains legal sovereignty over the Six Counties of north-eastern Ireland.  However, Coveney’s bald assertion overlooks the deeply paradoxical character of Britain’s responsibilities under the GFA.  One paradox is that Britain is obliged to deny that it has ultimate responsibility for the territory. This contradictory constitutional arrangement is praised by its supporters as “constructive ambiguity”, but it has paralysing consequences for Northern Ireland, which may now spread to the rest of Britain. A further contradiction is that the UK state also has unambiguous responsibilities to the people of Great Britain and, following the referendum decision to leave the EU, these responsibilities come into conflict with the GFA.

 

Above all, Britain’s responsibility is to resolve these contradictions. It can do this by offering rather more than Dublin is asking for. The British people should get behind the reunification of Ireland in a single republic, and give Northern Ireland the chance to enjoy truly responsible government, an opportunity that has long been denied it.

 

There is rich irony in the fact that it should be the obscure political boundary that winds its way through the Irish countryside that has proved to be the most significant obstacle to Britain’s attempt to reassert its sovereignty by leaving the EU. For decades the existence of that border, and the enforcement of British sovereignty to its north, denied real self-determination to the Irish nation. In 1918, following their victory in a general election, Irish nationalists declared independence from Britain, then fought a War of Independence against Britain. That war only ended when the nationalist leadership agreed with the British government that the Empire could retain six counties of its oldest colony, in which a loyal majority could be gerrymandered. The partition of Ireland led to decades of instability and violence and, ever since, internationalists, democrats and socialists have agreed with Irish republicans that Ireland should be reunited in the cause of the self-determination of the Irish people.

 

That argument remains valid. The unity of Ireland is still a condition of the sovereignty of its people. However, the Brexit debacle is proving that the division of Ireland also amounts to a major weakness in the sovereignty of the British people. Brexit is a test of the sovereignty of the British state. The difficulty that the British state is experiencing in leaving the EU has exposed just how weak that sovereignty has become. Britain’s continuing rule in Northern Ireland is making a particularly significant contribution to that weakness. This should not surprise us, because British rule in Ireland has always entailed weak sovereignty.

 

Making a success of Brexit requires the end of the union with Northern Ireland precisely because Brexit is an assertion of the sovereignty of the British people. To see why this is so, let’s begin with the backstop and work back from there.

 

The Irish Backstop

The backstop is intended to guarantee that, in the event that the UK and the EU fail to agree a trade deal during the implementation period after the UK has formally left the EU, there will be no changes to existing arrangements on the Irish border unless both parties agree to them. For as long as it lasts, the backstop requires that the UK remain within the Customs Union for goods and that Northern Ireland effectively remains within the Single Market. The backstop would, therefore, give the EU an effective veto on whether or not the UK can leave the Customs Union and make its own trade deals, yet since Britain would have left the EU it would not have a say in EU trade policy. An alternative version keeps Northern Ireland alone in the Single Market and Customs Union, entailing a trade border within the “United” Kingdom.

 

The anxiety this generates among British Leavers is exacerbated by the EU’s refusal to consider a number of technological solutions to take customs and regulatory checks away from the border area that have been proposed by the British government. Technical experts have long argued that these solutions already exist and are used elsewhere, requiring nothing like the border posts and guards conjured up by talk of a “hard” border.[1] The EU’s rubbishing of these proposals, and its unwillingness or inability to compromise, raises the prospect that, in the absence of a trade deal, the UK would be in the Customs Union forever (see May’s Deal Threatens Popular Sovereignty: It’s Time for a Full Brexit).

 

The backstop remains the most significant obstacle to getting a Withdrawal Agreement that is acceptable to parliament. The backstop is far from the only problem with the Theresa May’s Withdrawal Agreement. However, more than any other part, the backstop made a mockery of Leavers’ central demand to “take back control”, as the referendum campaign slogan put it. Pro-Brexit MPs’ rejection of it has created the political impasse that Remainers have since exploited with a vigorous fear campaign over the idea of leaving the EU without a deal, which they now hope will allow them to block Brexit completely.

 

Last year, I co-authored two articles arguing that for the UK to leave the EU’s trading system would require the UK government to drop its agreement to the backstop and to exercise its sovereignty in Northern Ireland.[2] Even if this meant no more than some cameras and areas for spot checks near the border, the UK government would have to say to the EU that the UK electorate had decided that the UK was leaving, that Northern Ireland was part of the UK and that that was that. Our point, then, was that Brexit was a “test of sovereignty”. Whether we liked it or not, the people of Ireland North and South had voted for the GFA, and that had left legal sovereignty over the Six Counties with the UK. The UK had now decided to leave the EU. If the government was unable to drop the backstop, that would prove that the UK was not able to exercise its sovereignty – not politically capable of leaving the EU’s legal regime without the EU’s agreement.

 

We also pointed out that while Britain may still be legally sovereign in Northern Ireland, its political sovereignty there has always been weak, and that we thought that reunification of Ireland was the best solution. At that time, there was little public discussion of reunification as a realistic option and we did not explore the weakness of Britain’s sovereignty in Ireland, nor the connection between this and Britain’s broader difficulty with asserting its sovereignty with respect to the EU. As Brexit reaches another critical moment, with the Irish border again at the heart of the political impasse, and with some opinion polls in Northern Ireland starting to show small majorities in favour of reunification, it is essential to consider the weakness of British sovereignty in Ireland in more detail.

 

The EU has an underlying interest in the backstop insofar as it makes leaving the EU very difficult, demonstrating to all EU member states just how painful and difficult leaving the EU would be. Nevertheless, the explicit reason given for the backstop is that any possibility of customs checks on the border would threaten the GFA. Upholding the GFA is what Simon Coveney means by Britain’s “responsibilities” in Ireland. But if the GFA leaves sovereignty over Northern Ireland with Britain, why are customs checks regarded as such a critical threat to the GFA?

 

The Good Friday Agreement

The purported threat to the GFA does not consist in any legal violation of the precise terms of that agreement.[5] The GFA says almost nothing explicitly about the border. The Agreement does state unequivocally that “Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll”.

 

The claim of Brexit’s opponents, however, is that Brexit undermines the political settlement underlying the Agreement. As the Irish premier Leo Varadkar put it:

 

To me, Brexit is a threat to the Good Friday agreement simply because it threatens to drive a wedge between Britain and Ireland, between Northern Ireland and the Republic of Ireland, and potentially between the two communities in Northern Ireland. And that’s why we must do all that we can to make sure that those wedges, that that risk, does not become reality.

 

But why would some cameras and customs checks “drive a wedge” between Britain and Ireland or between nationalists and unionists in Northern Ireland?

 

Firstly, border controls may involve at least some, and possibly significant, inconvenience and economic cost to the people who live, work and do business in border areas. In that sense, border controls represent a threat of disruption to the local economy and way of life. In normal circumstances local inconvenience would not necessarily be a reason to prevent the implementation of a major constitutional decision like Brexit, and economic costs could be compensated for in other ways. But this local inconvenience would be freighted with important symbolism because it is likely to be more of a problem for northern nationalists, who are more likely to have cross-border family and work connections, than it would be for unionists.[4]

 

The second fear is that the small minority of republicans who have never been reconciled to the GFA will use the appearance of border controls to step up their campaign of violence. Dissident republicans have stated that they intend to do this. However, both the capacity of republican paramilitaries to do this and their wider political influence is limited. There is no real prospect of a return to the war conditions of the 1970s and 1980s. Sinn Fein has ruled it out and veteran border republicans have poured scorn on the idea of anybody doing anything more than taking “pot shots” at border installations. Fears of an increase in violence are nevertheless real enough and this could sharpen entrenched sectarian divisions in the North. Opponents of Brexit have continuously reiterated these fears as a reason to avoid any change.

 

Underlying these fears is a deeper issue of identity.[5] The reassertion of any sort of border, even a very high-tech border with limited practical day-to-day consequences, is regarded by many nationalists as unacceptable. Part of the point of the GFA was that it was supposed to allow nationalists to enjoy an “all island” culture in which they could live as Irish citizens, despite the fact that their homes were in a part of Ireland that remained, legally and politically, a province of the United Kingdom. The GFA allowed a depoliticised Irish identity to flourish in the North. And as one Northern nationalist put it: “A border will force us, once again, to choose sides.”

 

Brexiteers have complained about the “weaponising” of these concerns by Remainers, Dublin politicians and the EU. The accusation is that the GFA is being used as a cover for Irish and British Remainers and the EU to make Brexit as difficult as possible. Certainly, it is true that the GFA delivered a series of compromises in which republicans set aside their claims to Irish sovereignty in order to enter a government that they claim to want to do away with. These compromises have involved nationalists accepting as normal aspects of life in Northern Ireland that they would dearly like to be rid of, such as the presence of British police in nationalist areas. Moreover, the border itself has continued to be policed in respect of tax smuggling, drug trafficking and illegal immigration. However, Sinn Fein and the Irish government have both decided not to treat future customs control as another normal, if regrettable, aspect of life in Northern Ireland, as they have done in other areas. On the contrary, they have both promoted the idea of a return to a “hard” border, implicitly evoking images of the old militarised border that nobody is in fact proposing. The Irish government and Sinn Fein have decided that, unlike many measures taken in Northern Ireland since the GFA, customs or regulatory checks at the border cannot be treated as normal within the terms of the political settlement.

 

The politicisation of the border question by pro-EU interests is particularly striking when all the noise about a hard border in rural Ireland is put in the context of the regime maintained by the GFA in Northern Ireland’s urban areas. While the disruption of cross-border trade and business connections in rural areas is loudly declared to be a terrible threat to the GFA, almost nothing is said about the fact that much of Belfast’s urban working class population continues to live in communities that are literally walled off from each other by “peace walls” that have grown considerably in extent since the Agreement was signed.

 

Remainers’ political exploitation of threats of violence is a more disturbing sign of the times. The relentless reiteration of this possibility is a key element in the case for the backstop. Although the argument invokes the traditional English prejudice that the Irish are so mired in ancient sectarian hatreds that any change to existing arrangements risks a “return to violence”, the terms of this discussion are rarely questioned. All sides agree that a return to violence cannot be countenanced and so there should be minimal change to border arrangements. But it is worth analysing the meaning of this consensus. The agreed position is that if the EU will not agree any technical solution, and notwithstanding the vote of the British electorate as a whole, the EU should either be given a veto on when Britain can leave the Single Market or be permitted to divide the United Kingdom in order to avoid the materialisation of threats of criminal violence by tiny, unrepresentative groups. In effect, all sides appear to agree that by threatening violence the New IRA gets to set the terms on which a democratic decision of the entire UK will be implemented.

 

It is one thing for politicians to take seriously threats of criminal violence and work out how to deal with them. It is something else entirely when politicians invoke others’ threats of criminal violence as a reason why a democratic decision should not be implemented, especially when that is the outcome they prefer in any case. It is a marker of the decadence and profound authoritarianism of Remain politics. However, we should not underestimate the depth of the problem here.

 

Harping on threats of criminal violence is a strategy that relies on the assumption that British governments lack the political authority to say to people in Northern Ireland that terrorists should not be allowed to dictate political outcomes and must be resisted, even if that risks more violence. If Britain were able to say that, then the EU’s strategy for preventing any change to current arrangements would not work. The political effectiveness of reiterating threats of dissident republican violence as a reason to prevent Northern Ireland leaving the Single Market and Customs Union is a symptom of the weakness of British sovereignty.

 

The political choices made by the Irish government and Northern Ireland’s Remainer “nationalists” seem to be based on the calculation that the referendum result does not give the British government sufficient authority to exercise its sovereignty over Northern Ireland against the declared interests of local nationalists. Their argument fragments the UK to demonstrate the British state’s lack of authority across its entire national space: a Leave majority in England and Wales is not enough to impose a decision on Northern Ireland, which voted to Remain. Brussels and Dublin are thus banking on the political weakness of the union. Even without a trade border in the Irish Sea, conceding to EU demands for no change to border arrangements implicitly fragments the UK into its constituent regions, denying that it functions as a single political entity, such that a majority vote can bind the whole union, however individual provinces may have voted.

 

The argument for the backstop, then, is at root an argument that Her Majesty’s Government lacks sufficient authority to exercise its sovereignty in Northern Ireland. And, critically, this argument does find its ground in the GFA. The Agreement institutionalises (or, more precisely, constitutionalises) the limited authority of the British state in Northern Ireland. While the GFA maintains partition and leaves legal sovereignty over the Six Counties with the UK, its first article contains explicit recognition of the right of the Irish people to self-determination and of the fact that a “substantial section” of the population of Northern Ireland does not wish to remain in the UK. The Agreement reiterates the long-held British position that Northern Ireland should not be abandoned by Britain without the consent of a majority of its citizens. However, it also mandates the UK to organize a vote on reunification in the event that “it appears likely” that a majority would support it. In the meantime, the agreement establishes a power-sharing government for Northern Ireland. This requires the appointment of ministers from among nationalists, which necessarily includes individuals who are not loyal to the British Crown. It further establishes a ministerial council intended to ensure regular and detailed consultation between the governments of the Republic and of Northern Ireland on matters of mutual concern, explicitly encouraging all-island approaches to these matters.

 

This relativisation of British authority was matched by an equivalent move by the Republic, which repealed its longstanding claim to sovereignty over the Six Counties as part of the GFA settlement. The result is that the location of final responsibility for Northern Ireland is ambiguous, shared between the Crown, the Republic, the power-sharing institutions in the North and an entity called the “people of Northern Ireland”, which appears to have the final say (and to which we will return). According to one fierce opponent of Brexit, the “genius” of the GFA is that it created “a political space that is claimed by nobody”. The irony is that Coveney’s demand that Britain live up to its responsibilities in Ireland is actually a demand that Britain continues not to claim ultimate responsibility for Northern Ireland.

 

Nevertheless, Irish critics of Brexit clearly do have a point when they say that Brexit is at odds with the GFA. The political substance of the GFA includes a recognition by Britain that its claim to sovereignty over Northern Ireland is weak. Britain’s continued rule in the Six Counties now depends on a formal dilution of that claim, its formal acceptance of the role of a foreign power (the Republic) in the government of Northern Ireland, and its acknowledgement that many of the North’s inhabitants are loyal to this foreign power. However, Brexit requires that for the UK to leave the Single Market this weak sovereignty must nevertheless be exercised in some practical form: it is, as we argued previously, a test of sovereignty. By creating a customs border, the difference between north and south of the border, and the “Britishness” of Northern Ireland, would be emphasised. Two of the parties who share in the ambiguous constitution of political authority in the North—Dublin and northern nationalists—have decided that this is not acceptable.

 

Theresa May’s government was unwilling to disrupt the ambiguity of the GFA with an assertion of British responsibility for Northern Ireland, and so agreed to the backstop. Boris Johnson has tried to come up with an alternative, but even his “two borders” proposal is itself a reflection of Northern Ireland’s special status and of Britain’s weak sovereignty. Johnson differs from May only in threatening to exercise British sovereignty fully by departing with no deal should Dublin and the EU not play ball. However, there is widespread doubt about how willing Johnson really is to leave with no deal and, in any case, parliament appears to have tied his hands for now with the Benn Act.

 

The inevitable conclusion is that one of the main reasons why the United Kingdom is finding it difficult to exercise its sovereignty with respect to the EU is that it remains the United Kingdom of Great Britain and Northern Ireland. If the UK proves to be unable to exercise its sovereignty over Northern Ireland, it will either have to relinquish sovereign control of its relationship with the EU to the EU (by accepting the backstop or remaining in the EU wholesale) or relinquish its control of Northern Ireland (by accepting a Northern Ireland-only backstop or reunification). Hence, divesting itself of Northern Ireland may be a precondition for the British state truly exercising its sovereignty over Great Britain by leaving the EU and the Single Market. For British sovereignty to be revived in Britain, the UK will not only have to leave the EU but Northern Ireland as well.

 

The Flaw in the Crown

It is important to explain the fundamental character of the weakness of British sovereignty in Northern Ireland, which the GFA constitutionalises. For the GFA is not the cause of that weakness, but the result of it.

 

From its beginning, the incorporation of Ireland into the British state has been a weakness in the latter’s sovereignty. In the early modern period, Ireland was always seen as a place from where England’s French enemy could make trouble, and it was occupied by England from the Tudor period onwards. Once Britain had been formed from the union of the two Protestant kingdoms of England and Scotland, Catholic Ireland became a still more potent threat. Until 1801 the Crown ruled Ireland as a separate colony, relying on a local Anglican Anglo-Irish ruling class. But in 1798 the United Irishmen were inspired by the French Revolution to rebel against the British occupation with French support. Britain put down the revolt and decided to end the separate colonial government of Ireland by formally incorporating Ireland into Britain. In so doing, the entity we now call the United Kingdom was created. However, the union only incorporated what had been an external vulnerability into the British state itself.

 

During the 19th century Britain just about managed its Irish problem, but it never managed to integrate the Irish people into a true union with the British people. On the contrary, for most Irish people the union entailed religious discrimination, starvation and emigration. Episodic political violence persisted, and the demands for devolution or independence grew. Eventually, in the second decade of the 20th century, the fundamental tension that had been caused by incorporating another nation into the British state against its will came to a head. During the Home Rule crisis of 1912-14, Ireland split into armed camps of nationalists and Unionists. At its peak, British army officers mutinied against government orders to disarm the Unionists, while the British Conservative leader of the opposition threatened a coup d’état. Civil war was averted only by the greater emergency of the First World War. But Ireland’s involvement in the world war then triggered the Easter Rising in Dublin in 1916. The British crushed the rising, but in so doing only spurred the Irish people into a wider rebellion and the War of Independence of 1919-21.

 

As that war dragged on, the working class in both countries was increasingly radicalised by the wave of revolutions that swept Europe after the 1917 Russian Revolution. With social revolution threatening, the leaders of the Irish nationalists did a deal with the British government to bring the destabilising conflict to a quick end. Under the Anglo-Irish Treaty 1921 Ireland was partitioned. Britain retained six counties in the north-east, where most of Ireland’s heavy industry was located and where Unionists were in the majority; the other 26 counties became the Irish Free State (later renamed the Irish Republic). Partition and the creation of the Free State provoked a short but bitter civil war in Ireland between pro- and anti-Treaty republicans that was won by the Treaty’s supporters (and which defined the politics of the southern state for decades). But partition did not solve the basic underlying problem for Britain: that Britain’s legal sovereignty over any part of Ireland lacked sufficient authority to stabilize its rule politically. Its sovereignty was weak. Northern Ireland was based on a gerrymander. It artificially created a Unionist majority and nationalist minority, and it could only survive through oppression of the latter.

 

For half a century after partition, Britain devolved government in Northern Ireland to the Unionists, who maintained the loyalty of Protestants to Britain through a regime of systematic discrimination against Catholic nationalists in jobs and housing. This regime was backed up with a sectarian police force and paramilitaries. The essential political weakness of the “Orange state” was legally institutionalised in the Special Powers Act of 1922, which granted the Secretary of State for Northern Ireland unlimited powers to do anything “necessary for preserving the peace and maintaining order”. From a legal point of view, Northern Ireland was in a permanent state of emergency throughout the period of devolved government. Britain’s rule in Northern Ireland was premised on the assumption that, at any time, there could be widespread and serious disobedience of the ordinary law; in other words, that Britain’s sovereignty was weak.

 

The Orange state eventually collapsed as nationalist demands for equal rights were met with violence and resistance to official repression turned into open civil war in the early 1970s. The Provisional IRA fought to end British rule in Ireland entirely. The British government abolished devolution and took over directly from London. The war lasted for a quarter of a century. Although the long war with the Provisionals never threatened the coherence of the British state to the extent that the Home Rule crisis had done, the internal threat was still significant. Britain was wracked with domestic class conflict in the early 1970s and the civil war in Ireland loomed large as a destabilising factor. By the late-1970s Britain had succeeded in isolating the political effects of the conflict to Northern Ireland itself. Nevertheless, on two later occasions the IRA came close to seriously disrupting the British state at moments of crisis: when it narrowly failed to assassinate first Margaret Thatcher during the 1984-85 miners’ strike and then the entire British War Cabinet during the first Gulf War in 1991. British rule in Northern Ireland remained a source of potential instability for the state as a whole.

 

Defeat in Ireland was unthinkable for UK governments and they were never willing to concede to the IRA’s force of arms. Nevertheless, from early on in the war, British governments recognized the underlying problem of their limited political authority, and repeatedly sought to find ways in which to integrate Irish nationalists into the state, and to involve the Irish Republic in the government of the North. In 1972, government ministers met secretly with the IRA leadership in London but the talks came to nothing. As early as 1973 Britain and the Republic attempted a deal similar in content to the GFA when they signed the Sunningdale Agreement. The agreement met with fierce resistance from northern Unionists and was abandoned in 1974. In 1985, the two governments signed the Anglo-Irish Agreement, a cooperation and devolution plan that created the basis for future cooperation but had limited political impact in Northern Ireland itself. Only when the war ground to a stalemate in the 1990s—the IRA being unable to drive Britain out, and Britain being unable to defeat the IRA—was Britain finally able to settle the conflict through the GFA.

 

With the GFA, Britain stabilised Northern Ireland by legitimising its legal sovereignty but, as we have seen, only at the cost of formally recognizing and institutionalizing the longstanding political weakness of that sovereignty in the constitution of Northern Ireland. At the time, this did not seem to be a problem. Indeed, it was barely noticeable. On the one hand, the IRA had given up fighting while, on the other, Britain and the Republic were both members of the EU so that, once the fighting stopped, the border had little practical significance.[6] However, having made the concessions that it made in the GFA, the UK is struggling to find a way to row back on them 20 years later. The GFA did not create the weakness in British sovereignty. For a long time, Britain had been forced to counter its weak authority in Ireland with repression and violence. However, by writing that weakness into the constitution, the GFA has made it extremely difficult for Britain to now act in a way that is opposed by Irish nationalists.

 

Sovereignty in Britain and Ireland

What the sorry story of British rule in Ireland tells us is that sovereignty is more than the either/or question of who makes the law, of who is legally sovereign (e.g., the British Crown or an Irish Republic). It is also a question of the extent to which the legal sovereign enjoys political sovereignty.[7] A sovereign enjoys more of this sovereignty when their laws are habitually obeyed because the law’s subjects accept them as the laws of their government. A strong sovereign rules a state whose power derives from its relation of authority with the people.

 

Understood in this way, the weakness of British sovereignty in Ireland and its weakness as a member-state of the EU can be compared, even if the precise character and historical reasons for the weakness in the two cases are not the same. In both cases, those who are subject to the law do not experience the law as the law of their government.

 

Northern Ireland is certainly the more extreme case. For a long time, the Protestant Unionist majority of the sovereign’s subjects in that territory experienced the government as their government precisely because it systematically excluded a large Catholic nationalist minority. That minority experienced a government that was not only not theirs, but was institutionally hostile to them. Rather than forming a single people (that might nevertheless have disagreed on specific political issues), Northern Ireland’s state was based on institutions that constructed the two sides of the sectarian divide as each other’s enemies: hence the need for permanent emergency power. The GFA eventually stabilised the state, but did not solve the problem. The GFA’s much-vaunted “constructive ambiguity” only serves to institutionalise the old sectarian division in a new way. The GFA guarantees that neither side really feels the government to be its own, because it incorporates the representatives of its enemies.

 

One result of this institutionalised sectarianism is that the power-sharing executive that is mandated under the GFA, with ministers from both republican and unionist sides, has ceased to work. There has been no devolved government in Northern Ireland since 2017, when Sinn Fein withdrew from the executive. Among other things, the two sides find themselves implacably opposed on the status of the Irish language and the prosecution of crimes committed during the war. These issues strikingly echo and replay the conflicts that divided the two sides in the past. The GFA regime has created a “political no man’s land”, ruled by parties preoccupied with the sectarian politics of identity, where many working-class people are literally corralled behind walls and policed by brutal paramilitaries. Sectarianism is so ingrained in the structures and justification of the GFA that, as we saw above, the Agreement is now defended by invoking the colonialist view of Irish history as an intractable conflict of religious and cultural identities. And it is under this regime that government action on the local economy, infrastructure, and public services has ground to a halt.[8] The GFA, having removed any unambiguous source of ultimate political authority, provides no way of resolving the impasse.

 

The experience of Britain in the EU has not been as dramatic or violent as that of Northern Ireland in the United Kingdom. Nevertheless, during the period of EU membership, the majority of citizens in Great Britain itself have experienced a significant loss of influence over government. Although the EU is not the only cause of this development, it institutionalises remote, unaccountable government and has long been a focus of popular resentment.

 

For sovereigntists, the fundamental problem with the EU is not that it forcibly deprives member states of their legal sovereignty, as Britain did historically to Ireland. From the strictly legal point of view, the EU is a voluntary arrangement which any member state can, in theory, terminate at will. The problem with the EU is that the governments of its legally sovereign member-states undermine their authority with their own populations by voluntarily out-sourcing law-making powers to an entirely unelected supranational bureaucracy and to secretive diplomatic forums called councils of ministers, made up of the executive branches from every member state. In this structure the attention and effort of policy-makers and political actors is drawn outwards, away from the ordinary citizens and voters and towards other governments (see Analysis #1 - The EU's Democratic Deficit: Why Brexit is Essential for Restoring Popular Sovereignty).

 

Both Northern Ireland as a province of Britain and Britain as a member-state of the EU have experienced regimes of diminished political authority. The causes and mechanisms are not identical but, interestingly, one effect of the 2016 Brexit referendum has echoed the experience of Northern Ireland’s nationalists. The majority who voted to Leave have discovered the depth of the hostility towards them among most of Britain’s “governing class” (i.e., its parliament, civil service, legal profession, propaganda organs, intellectuals and experts, etc). In the event that Brexit is prevented, that basic enmity between the governing class and a majority of the population will be institutionalized in Britain’s continuing member-statehood.

 

Leavers’ demand to “take back control” by leaving the EU, is a demand that the political attention and concerns of law-makers is reoriented to their relationship with the governed rather than towards the governments of other states. The majority of British citizens want a government that is our government because it is responsive and accountable to us as a people. And it is precisely this form of government that Britain has never been able to maintain in Northern Ireland, in or out of the EU, with or without the GFA.

 

The tension between making a success of Brexit, on the one hand, and British rule in Ireland, on the other, is therefore a fundamental one. It is British Remainers, not Leavers, who have the stronger interest in maintaining the Union in its present form. In the twentieth century, defending Britain’s sovereignty in Northern Ireland was essential to guaranteeing the integrity of the British state as a whole, and its authority over the whole of Britain, because Britain claimed the province not as any old colony but as part of its own metropolitan territory.[9] For that reason, British governments were never willing to concede to the demands of Irish republicans. However, the rule of the British governing class no longer depends on the claims of imperial nationhood. Now it depends on participation in supranational institutions like the EU and international treaties like the GFA.

 

The 20 years of the GFA have overlapped with almost 30 years of EU membership. In this period, the British state has ruled through institutions of attenuated sovereignty in which it has voluntarily shared its control with foreign governments, and done so over the whole territory of the UK. Ending the Union with Northern Ireland as one aspect of Brexit will destroy the already limited authority of the governing classes of Britain as a member-state of the EU. But the analysis offered here suggests that ending the Union would not represent a major loss of sovereignty for the British people. On the contrary, it would expand the British people’s room for political manoeuvre as we seek to assert our sovereignty. The willingness of even Conservative Party members to give up the union with Northern Ireland if necessary in order to achieve Brexit shows that many Leavers grasp this.

 

Sovereignty is not just power. It is power that arises from authority, from a political relation of trust between rulers and ruled. Both the GFA and the EU are forms of government that rest on attenuated sovereignty. Any attempt to invigorate national sovereignty cannot be contained within either of them. Brexit is a test of the sovereignty of the British state in this political sense. How much can its government rely on the power it derives from the political relation of trust between it and the population that it governs in order to achieve its aims? In Northern Ireland, the answer now appears to be: hardly at all. It will be difficult to revive the sovereignty of the British state while this weakness within it is retained.

 

What Now?

At the time of writing, Dublin and the EU have greeted Johnson’s proposed new border arrangements coldly but have continued to talk. The EU appears to be continuing to rely on the unwillingness of the majority of the UK’s political class to implement the popular vote of 2016. However, even if Johnson’s hands have been tied by parliament, some agreement with the EU may yet emerge before the deadline of 31 October. The EU still has an incentive to cut a deal at the last minute. The prospect of Britain remaining in the EU is hardly attractive. A large member state that is bitterly divided over EU membership, with future governments sending potentially hostile officials and representatives into the EU governing structure may be something the EU will decide to avoid. A deal may be a way of easing Britain out of the EU with minimum pain. On the other hand, there are obvious political reasons why the EU may still want Brexit to be as painful as possible for the UK or want to show the world that leaving the EU is impossible. EU leaders may therefore be willing to entertain further delay, despite the slight risk of a no deal exit.

 

Whatever happens, however, Brexit has exposed the fact that the union with Northern Ireland is an obstacle to reviving the sovereignty of the British people. Even if that obstacle proves not to be insurmountable, the past three years have shown that Britain’s lack of authority for independent action in Ireland is a severe handicap. One possibility is that Boris Johnson will try to get a deal by accepting the further fragmentation of the UK through some version of a Northern Ireland-only backstop.[10] He may hope that a tweaked version of May’s Withdrawal Agreement might be squeezed through parliament on the votes of increasingly desperate Brexiteers, on the one hand, and Labour MPs with Leave constituencies, on the other. But the further fragmenting of the Union that such a deal would involve can only worsen the political ambiguity, paralysis and stagnation in Northern Ireland, and further weaken the sovereignty of the British state.

 

Rather than shouting about the German chancellor, British Leavers should respond to EU demands that Northern Ireland be kept inside the Single Market by facing up to the underlying weakness of British sovereignty in Ireland.  Leavers should take the initiative and get behind the argument for a border poll, the reunification of Ireland, and an end to the GFA. Ending the union with Ireland is part of the critical reforms to the British state that are needed to enforce the sovereignty of the British people, in this case retrenching the state to the territory and population over which it has real political authority. It also creates at least the possibility of responsible government being established in Northern Ireland.

 

Ironically, this underlying positive relation between Brexit, the sovereignty of the British people and the reunification of Ireland provides another reason why the EU may yet cut a deal. Leo Varadkar complains that Brexit threatens the GFA. But it could equally be argued that a deal with Britain is the GFA’s last chance. If Britain leaves the EU without an agreement, Brussels will require Dublin to impose a customs border to defend the integrity of the Single Market, and this may increase support for a united Ireland in the North. Accordingly, if Dublin does not persuade the EU to drop the backstop, and cooperate with Britain to minimise the costs of border controls to local populations and isolate dissident republicans, then it runs the risk of a border poll, reunification and the end of the GFA. This is a prospect that the Dublin establishment views with alarm and foreboding.

 

The reunification of Ireland is not going to be a straightforward process. There was very little enthusiasm in the Dublin establishment for reunification even before the Republic dropped its formal claim on the North. The Republic of Ireland is constitutionally founded on partition. Reunification would be a fundamental challenge to its political structures. It would require the integration of hundreds of thousands of, at best, reluctant unionists. The economic costs of reunification for the Irish Republic could also be very significant.[11] Moreover, reunification is a condition of the Irish people asserting their own sovereignty by leaving the EU. This is something the Dublin elite would also wish to avoid, and it is a potential that wider Irish nationalism may in the future struggle to encompass, in so far as Irish “nationalism” has been transformed into one of the EU’s many cultural identities as opposed to a claim to national self-determination.

 

On the other hand, the material basis of Ulster Unionism as a mass political ideology has also passed away. The British Empire is long gone. The old system of economic discrimination that once gave working class Protestants in the north an advantage over Catholic workers is a thing of the past. With the rapid decline of the influence of the Catholic Church in the Republic, the old Protestant fear that a united Ireland meant “Rome rule” has lost any basis in fact. Unionism, too, has become a fragile cultural identity, a relic from another age, clung to for want of anything better. The challenge is to offer something better.

 

A sovereign Britain would plainly have both a responsibility to ensure that any transfer of sovereignty occurs as peacefully as possible and a powerful interest in that happening. Transitional arrangements would have to be worked out very carefully, given the dependence of Northern Ireland on huge subsidies from the British treasury, the desire for continued British citizenship of Northern Ireland’s unionists, the interdependence of the Irish and British economies, and the huge contribution of Irish citizens to Britain’s society and economy. Nevertheless, Brexit offers an opportunity finally to answer the Irish question.

 

It is worth noting that none of the issues raised here apply to the union of England, Wales and Scotland. The union of England and Wales predates the foundation of Britain. The union with Scotland that founded the British state was voluntary. Even the Jacobite rebellion of the eighteenth century was based on the Stuart claims to the British throne. The British Empire was as much a Scottish and Welsh affair as it was English. Any weakness in the sovereignty of the British state that is experienced in Scotland or Wales arises from different sources, and the arguments for Scottish independence are much more parochial.

 

If Irish nationalism will struggle to deal with a reunified Ireland, so too is British Euroscepticism struggling to find the political resources to mobilise the British people to meet the challenges posed by Brexit. Backing Irish unity may be too much for many British Eurosceptics. Be that as it may, Brexit is a test of national sovereignty, and national sovereignty is strengthened in Britain when it is strengthened other nations. The sovereignty of the Irish people is more important to the sovereignty of the British people than that of any other nation. The true responsibility of the British state on the island of Ireland is the same as it has always been: to stop pretending that it has enough political authority there to maintain a democratic government.

 

Some Irish nationalists might be tempted to complain about a British author backing Irish unity on the grounds of British sovereignty. But there is nothing new in the connection. It is no accident that most of us in Britain who have always backed Irish unity have also always been opposed to the EU (and the EEC before it), while the dominant view among those who prosecuted the war to maintain British rule in Ireland backed EU membership. There is a simple and deep connection. The self-determination of the Irish people and the self-determination of the British people depend on each other. They always have.

 

References

[1] See, for example, Graham Gudgin, “What you didn’t know about the Irish Border – how technology can resolve the issue of the North/South frontier post-Brexit”, Policy Exchange, 3 September 2018.

[2] Proposal #6 - The Irish Border: Passing Brexit’s Acid Test of Sovereignty; and Peter Ramsay and Chris Bickerton, “Brexit: Facing Up to Sovereignty in Ireland”, Irish Times, 16 July 2018.

[3] A view upheld in the Northern Ireland High Court: see R (McCord and Waring) v The Prime Minister and Others [2019] NIQB 78.

[4] See Katy Hayward, Brexit at the Border: Voices of local communities in the Central Border Region of Ireland/Northern Ireland (Irish Central Border Area Network/ Queens University Belfast: Belfast, 2018), pp. 68-70.

[5] For a typical example of the genre, combining dark forebodings about violence with the conflict of deep historical identities, see Fintan O’Toole, “The Irish Border Is A Matter of Life and Death, Not Technology“, The Guardian, 8 October 2019.

[6] Although a few conservative voices in Britain were alert to what was being conceded. See the discussion of the 1993 Downing Street Declaration (which paved the way for the GFA) in Mark Ryan, War and Peace in Ireland: Britain and the IRA in the New World Order (London: Pluto, 1994), ch. 6.

[7] See generally Martin Loughlin, The Idea of Public Law (Oxford: Oxford University Press, 2003).

[8] See, for example, Niamh Griffin, “How the Lack of Government is Affecting Healthcare in Northern Ireland”, British Medical Journal 364 (2019), p. 172.

[9] This is why the Provisional IRA’s campaign was a genuine emergency for the British state, as Lord Hoffman observed in his judgment in A v Secretary of State for the Home Department [2004] UKHL 56.

[10] This proposal would require a change to existing UK law and is very unlikely to make it through the House of Commons.

[11] See John Fitzgerald and Edgar Morgenroth, “The Northern Ireland Economy: Problems and Prospects”, Trinity Economic Papers 0619, Department of Economics, Trinity College Dublin, August 2019.

About the Author

Peter Ramsay is Professor of Law at the London School of Economics and Political Science.

Acknowledgement

My thanks to Pauline Hadaway for her good advice and leads. The errors are all mine.

This work represents the views of the author only. It is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.

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