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There will be many voices raised over the constitutional implications of the EU’s draft agreement on the terms of Brexit in relation to Northern Ireland.
What needs to be understood is that what the EU sets out in its newly published legal draft is entirely consistent with what was agreed between Theresa May, on behalf of the British Government, and Michel Barnier, for the EU, on December 8 last year.
Here are the relevant extracts from their joint report:
Ireland and Northern Ireland
“The Belfast/Good Friday Agreement of 1998 (1998 Agreement) must be protected.
The UK remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border between Ireland and Northern Ireland. The UK’s intention is to achieve these objectives through the overall EU-UK relationship. Should this not be possible, the UK will propose specific solutions. In the absence of agreed solutions the UK will maintain full alignment with those rules of the EU Internal Market and the EU Customs Union which support North-South cooperation, the all-island economy and the protection of the 1998 Agreement.
In the absence of agreed solutions the UK will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the UK, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland. The UK will continue to ensure unfettered access for Northern Ireland’s businesses to the whole of the UK’s internal market.
The UK and Ireland may continue to make arrangements between themselves relating to the movement of persons between their territories (Common Travel Area).
Both Parties acknowledge that the 1998 Agreement recognises the birth right of all the people of Northern Ireland to choose to be Irish or British or both and be accepted as such. The people of Northern Ireland who are Irish citizens will continue to enjoy rights as EU citizens, including where they reside in Northern Ireland. Both Parties therefore agree that the Withdrawal Agreement should respect and be without prejudice to the rights, opportunities and identity that come with European Union citizenship for such people and, in the next phase of negotiations, will examine arrangements required to give effect to the ongoing exercise of, and access to, their EU rights, opportunities and benefits.”
This could hardly have been clearer. If the British Government now rejects what the EU is proposing as a backstop solution to the border question, it is rejecting precisely the undertaking to which its signature was attached less than three months ago. It will be recalled that the DUP, having previously threatened mayhem, also agreed to the form of words quoted above. In both instances, the question must surely be asked, were they dissembling then or are they dissembling now? Or or they just falling apart?
Ever since Day One, the UK side has refused to recognise the importance, still less the centrality, of the Irish border in their increasingly desperate search for a Brexit accord. Instead, ministers, pressured by party hardliners, have dismissed it as a side issue – most recently as no more complex than collecting the congestion charge in London. They were warned but chose not to listen.
If the Tories and the DUP now wish to avoid the imposition of a special EU economic area across the already disputed territory of Northern Ireland, then it is up to them to come up with a workable alternative. So far, despite frequent urgings, they have failed to do so. Either that or they could fall in behind their own backstop position by announcing that no deal is better than a bad deal and that Britain will leave the EU without any form of agreed settlement.
How would that go down with the British people?
But all is not yet lost. Or not altogether. Taking account of the fact that the EU accepts Britain’s determination to ensure “unfettered access for Northern Ireland’s businesses to the whole of the UK’s internal market,” is it not possible for Downing Street to propose a deal which keeps Northern Ireland as a member of both unions? Such a parallel approach ought not to be beyond the wit of man. The question is, is it beyond the capability of this uniquely inept British Government?