North’s status under Belfast Agreement is an inconvenient truth

Brexit could not have been covered by 1998 accord but must be subject to its terms

Placards depict a gunman in a Protestant estate in Co Tyrone: the protocol is  an attempt to avoid the worst consequences of Brexit for the island of Ireland, both North and South.

Placards depict a gunman in a Protestant estate in Co Tyrone: the protocol is an attempt to avoid the worst consequences of Brexit for the island of Ireland, both North and South.

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Interpretations of the application of the protocol on Ireland and Northern Ireland to the Withdrawal Agreement have given rise to political controversy. The temperature needs to be lowered given some of the inaccurate statements that have been made.

Claiming the protocol undermines the Belfast Agreement by ignoring the principle that consent is required for a change in the status of Northern Ireland is false. The current problems originated from Brexit – a change in the status of Northern Ireland that was actively opposed by a majority of people who live in Northern Ireland – and the protocol is simply an attempt to avoid the worst consequences of Brexit for the island of Ireland, both North and South.

The rationale behind the protocol is not about the competing merits of having a border on the island of Ireland or in the Irish Sea. It is rather to reflect the reality of what was agreed on Good Friday in 1998 about the status of Northern Ireland.

Northern Ireland’s relationship to Britain is not the same as other regions in the UK

The whole point of the agreement is that it was a careful and delicately balanced compromise which sought to reconcile a whole range of complex issues, having regard to the contested perspectives of its two main communities, nationalism and unionism. The outcome was a proposition that took account of both – not just one.

This is crisply captured in the very first paragraph of article 1 of the treaty between the British and Irish governments, accompanying the Belfast Agreement, which deals with the status of Northern Ireland as follows: “[The two governments] recognise the legitimacy of whatever choice is freely exercised by a majority of the people of Northern Ireland with regard to its status, whether they prefer to continue to support the union with Great Britain or a sovereign united Ireland.”

Protocol and sovereignty

But there is one other vital factor in article 1 of the treaty that has largely been missed in the entire debate about the protocol, namely the way that sovereignty is exercised in Northern Ireland.

Article 1(v) of the treaty makes clear that regardless of the choice that is freely exercised by a majority of the people of Northern Ireland on its status, “the power of the sovereign government with jurisdiction there shall be exercised with rigorous impartiality on behalf of all the people in the diversity of their identities and traditions and shall be founded on the principles of full respect for, and equality of, civil, political, social and cultural rights, of freedom from discrimination for all citizens, and of parity of esteem and of just and equal treatment for the identity of, ethos and aspirations of both communities”.

In the negotiations between the EU and the UK, and the Irish Government, the very special position of Northern Ireland has had to be factored in from day one

Okay, Shakespeare it is not. But in my view those words are enormously powerful and important. Boiled down, they make clear that this is about taking account in every respect of both traditions and that, yes, a majority decides at any one time whether the UK or Ireland has overall sovereignty in Northern Ireland, but the way that sovereignty is exercised is qualified by this requirement for “parity of esteem and just and equal treatment for the identity, ethos and aspirations of both communities” (my italics).

Boiled down even further, it means that Northern Ireland’s relationship to Britain, including its constitutional relationship, is not the same as other regions in the UK. It simply is not. I appreciate that inconvenient truth has been ignored and written out of the equation by many unionist leaders and commentators over the last 5½ years since the fateful Brexit vote.

People’s will

Brexiteers like to say that Brexit is all about respecting the will of the people of the UK as expressed in a referendum on June 23rd, 2016.

But the paragraphs I have quoted above are part of another referendum – that of May 22nd, 1998 – when the people of Northern Ireland by a 71 per cent majority (19 per cent more than the overall UK majority for Brexit) declared the terms of the Belfast Agreement to be their settled will.

So this is a story of two referendum results, not one. And the outcome of the referendum of 1998 is just as legitimate and valid as that of June 2016.

It is true that Brexit was not prefigured or accounted for in the Belfast Agreement. But that does not mean that its outworking does not have to take account of the terms of the agreement. It must do so as a matter of constitutional law.

And that is what has happened in the negotiations on how Brexit affects Northern Ireland. In the negotiations between the EU and the UK, and the Irish Government, the very special position of Northern Ireland has had to be factored in from day one. The initial proposal was the famous backstop. But that was rejected by the DUP. So a different mechanism had to be found to reflect the particularity of Northern Ireland’s position and that was the Northern Ireland protocol.

As someone who was involved in the negotiation of the Belfast Agreement, it is deeply disappointing to hear arguments being deployed by some of the unionist parties that lack any acknowledgment of the perspective of the nationalist community or the many who now vote “Other”. The glib answer is that a majority in the UK as a whole has voted for Brexit and that’s it. I’m afraid that is not it.

I am saddened by the unionist voices that are offering comfort to those who are responsible for the situation that we currently find ourselves in.

Monica McWilliams is emeritus professor in the Transitional Justice Institute at Ulster University and was a member of the Women’s Coalition delegation to the Belfast Agreement negotiations in 1998

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