How is any form of Brexit supposed to pass the test set by the so-called “mapping exercise” into impacts on the Belfast Agreement?
Perhaps Brexit does not deserve to pass any test but it would be madness for the agreement to be needlessly taken down with it.
The exercise was conducted by Westminster's Brexit select committee in 2017. Officials from the British and Irish governments, the Northern Ireland civil service and the European Commission identified 142 policy areas of North-South co-operation and examined the EU legal basis for each.
The final document was kept confidential until a freedom of information request forced its publication last week. It was immediately seized upon by the European Commission and the Irish Government to claim North-South co-operation and therefore the agreement depend on Northern Ireland remaining within the EU's full legal regime, for which read the backstop.
This is open to dangerous misinterpretation.
Of the 142 policy areas, only seven relate to the cross-Border bodies established under the agreement, covering topics such as inland waterways, food-safety promotion and languages.
The next 44 are “priority” or “potential” interests of the agreement’s North-South Ministerial Council (NSMC), covering topics such as health, education and benefit fraud.
The next 70 areas are “co-operation beyond NSMC” and therefore beyond the agreement. This includes the all-Ireland electricity market.
The final 19 are described as “avoiding a hard border” and include all customs union and single-market issues. This is again beyond the agreement, which says nothing about trade or the nature of the Border.
‘Underpinned or linked’
Despite widespread repetition of the 142 figure in public and media debate, the mapping exercise did not find all these areas to be affected: 46 are described as “not underpinned or linked” to EU membership, with no EU legal or policy base. Another 42 are only “partially underpinned or linked”.
Of the 40 areas actually covered by cross-Border bodies or considered a priority by NSMC, just 16 are described as “directly underpinned or linked”.
That might sound bad enough until you realise a lost underpinning or linkage does not prevent co-operation, let alone breach the agreement.
The entire purpose of the agreement’s architecture of North-South co-operation is to identity these kind of problems and work through them.
A common EU legal and regulatory regime may have been assumed but there is nothing in the agreement to require it, or even to harmonise what laws and regulations exist. Co-operation is to be about “action within the island of Ireland on matters of mutual interest and within the competence of the administrations, North and South”.
That can and has been delivered regardless of EU jurisdiction.
Where Brexit causes disruption to cross-Border co-operation, the answer will be more co-operation and the agreement is the framework to provide it.
A final context to the mapping exercise is that the agreement itself lists just 12 areas of North-South co-operation, in order to suggest them as remits for cross-Border bodies. The establishment and oversight of those bodies is left to NSMC, along with whatever matters it wishes to discuss. In other words, North-South co-operation is largely what North and South decide. Brexit cannot breach this – it becomes merely another challenge on the agenda, albeit a vastly difficult one.
Nationalists may have been led to believe cross-Border co-operation is an inexorable process of integration towards a united Ireland but unionists were led to believe the opposite, the agreement is silent on the subject and leaving the EU does not need to be a permanent change of direction for either cause.
Responding to publication of the mapping exercise, Taoiseach Leo Varadkar said it showed North-South co-operation runs "so much deeper than trade issues – when we talk about avoiding a hard border and also protecting the [Belfast] Agreement, they are not the same thing. It is both of those things that we seek to protect."
If one positive might come out of this, it would be taking North-South co-operation more seriously
Extending the definition of the agreement so widely instead imperils it.
A hard border might be avoided through a future trading relationship but demanding all conceivable forms of North-South co-operation be fixed in their exact present state makes the backstop truly inescapable.
Unionists will decry Irish bad faith as a result. Nationalists will perceive every cross-Border incompatibility as a British outrage. That will apply whatever happens with the backstop, unless London, Dublin and Brussels clarify they have only mapped out how Brexit relates to the agreement, rather than how Brexit breaches it.
If one positive might come out of this, it would be taking North-South co-operation more seriously. It has always been the Cinderella strand of the peace process, despite being supposedly as important as devolution and British-Irish cooperation. Unionists have got away with sidelining it and would deserve to be forced to regret it.
But first, the clearest breach of the agreement and North-South co-operation must be addressed. The North-South Ministerial Council has not met for three years due to the collapse of Stormont.
How telling that so few people have noticed.