Brexit, borders, and backstops: A hopeful display of despair

Brexit, borders, and backstops: A hopeful display of despair
by Lisa Claire WHITTEN for Shared Future News
6 November 2018

On Tuesday 7 November, the ESRC Festival of Social Science joined forces with Queen’s University Belfast’s Policy Engagement initiative, QPOL, to put on “Brexit, Borders and Backstops”, an event to discuss recent developments in the negotiations between the United Kingdom and European Union, and the implications of these on Northern Ireland.

Professor of Politics at Queen’s University Belfast (QUB), Lee Magowan opened the proceedings by welcoming participants to what was a one-off version of QPOL’s monthly “Brexit Clinic” sessions — a series of public events run by QUB academics to provide updates on Brexit developments. Professor Magowan said that this special “Brexit Clinic” came at a particularly challenging time in UK-EU negotiation process.

The substance of the afternoon began with a presentation from QUB Professor of European Politics, David Phinnemore, who gave an update on the progress made so far in UK-EU negotiations, stating that 95% of the UK-EU Withdrawal Agreement has now been agreed with the outstanding 5% of disagreement revolving around the so-called “backstop” for Northern Ireland. Arrangements designed to ensure there would be “no hard border” on the island of Ireland in the event of a “No Deal” scenario. Professor Phinnemore suggested that this must be reached by the end of December at the latest.

The second presentation was given by QUB Professor of Law, Dagmar Schiek, who offered a legal perspective on the negotiations. Schiek first made the point that Northern Ireland has been treated as a legal exception ever since the United Kingdom (UK) and Ireland joined the European Community (formerly, EEC) at the same time in 1973. Neither Ireland’s territorial claim on the province nor the known conflict with the British Government’s policies in Northern Ireland hindered the accession of either state. Schiek went on to highlight the importance of the EU as a guarantor for key aspects of the Good Friday/Belfast Agreement that underpins Northern Ireland’s’ legal structure. The unique provisions for citizenship, all-island economic integration, and constitutional future(s) provided for Northern Ireland in the Good Friday/Belfast Agreement are only possible in the multilateral context of EU law, Schiek argued. In closing, Schiek demonstrated a contradiction between the “red lines” of the UK Government’s negotiating position and the legal position of Northern Ireland, suggesting this as the reason for the current stalemate.

The next presentation, delivered by Dr Viviane Gravey, addressed the question: “What does ‘taking back control’ look like in practice?” Gravey first noted the overlap between areas of UK policy currently guided by EU law, and the powers that are devolved to the UK’s regional governments in Scotland, Wales and Northern Ireland. She also highlighted the myriad of questions raised about governance in these areas post-Brexit. Under the terms of the EU (Withdrawal) Bill, when the UK leaves the EU all policy areas influenced by EU law will be automatically transferred to the UK central government. This, Gravey emphasised, raises questions about whether or not devolved administrations will lose some of the powers they had prior to Brexit and/or if powers are transferred to the Scottish Parliament, Welsh Assembly and Northern Ireland Assembly, to what extent will the regions be authorised to diverge from what would be a UK-wide starting point.

The final presentation was given by Dr Katy Hayward, who gave an outline of what a “No Deal” scenario might look like for Northern Ireland. The UK government, she said, has been working hard since the UK referendum in 2016 to assess the impact of the UK leaving the EU without an agreement and attempting to put structures in place to mitigate any potential negative consequences. A budget of £3 billion has been allocated with this purpose, of which £15.2 million is devoted to Northern Ireland. Various pieces of legislation have also been introduced, Hayward said, to help prepare for the UK exiting the EU on bad terms. Both the UK and EU have issued Technical Notes that provide information on the potential consequences of “No Deal” in various affected areas and, Hayward commented, that in the UK government’s papers, mention of the particular vulnerability of Northern Ireland is both consistent and brief.

Following the four highly informative, if somewhat pessimistic, presentations the floor was opened for Q&A. The first query was about what had happened to the agreement seemingly made between the UK and EU on the Northern Ireland “Backstop” in the Joint Report signed by both parties in December 2017. In response, Hayward explained that controversy arose when the political Joint Report agreement was translated in legal language by the EU; speaking for the British government, Prime Minister May then said she “could not accept” the interpretation. Breakdown of this consensus has led to the situation today.

Another question was on the potential impact on other UK devolved administrations, of some form of special provision for Northern Ireland in a (still theoretical) UK-EU Withdrawal Agreement. Gravey affirmed what the questioner had implied, that there are/would be significant issues raised in UK domestic politics by such an outcome. Elaborating, she said that while central UK government had attempted to rejuvenate some domestic constitutional mechanisms since the referendum, they have simultaneously ignored calls from devolved administrations in Scotland and Wales for differentiated treatment similar to that being talked about for Northern Ireland.

In concluding the event, the Chair Professor Magowan asked for an opinion on the likelihood of a second referendum being called for by many. To this, both Professor Schiek and Professor Phinnemore said they did not think it feasible. Given the time required to organise a second referendum on the terms of a still hypothetical UK-EU Withdrawal Agreement, they said the two-year time frame of Article 50 would have to be extended. As both Professors Schiek and Phinnemore emphasised, this would be very difficult to achieve politically in either Brussels or London.

As is arguably common in debates about the position of Northern Ireland in the context of Brexit, the genuine engagement and passion of those presenting and participating was clear to see. As Northern Ireland lingers on without a functioning government, such a display of civic involvement is encouraging. The observation must, however, be somewhat bittersweet, as the picture that emerged from the various contributions was really rather bleak.

Yet people’s commitment to the future of Northern Ireland may still be a reason to hope, even when the common cause is articulating despair.

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