Having visited Belfast this week in the company of fellow independent members of Seanad Eireann with a view to engaging with a wide spectrum of civic society and political actors, I noticed an increasing gulf in political perception between those active in civil society and those temporarily inactive in political society as members of the suspended Assembly.
Put shortly, the chief movers and shakers in the commercial, business and voluntary sectors up North are both frustrated and dumbstruck at the failure of the UK political establishment, including the Tories, Labour and the DUP, to have any real regard for the economic, social and political wellbeing of the people of Northern Ireland.
The local political actors have allowed themselves to become fixated by the so-called constitutional implications of Brexit. Along with the Westminster DUP MPs, unionist politicians have circled the wagon mentally about the threat that the back-stop allegedly poses to the constitutional status of the North within the UK. Sinn Féin, for their part, prattle on about running a border poll.
Weirdly, they put consideration of the Brexit back-stop before consideration of the economic consequences of a no-deal Brexit.
I say “weirdly” because, the back-stop could only kick into effect if what they nearly all want most – namely, a soft Brexit embodying frictionless and tariff-free trade in goods and services between the EU and the UK - fails to materialize.
All elected unionists disavow any desire or tolerance for a hard border. They believe that there can and must be an invisible and impalpable economic border between north and south. Theresa May’s plan is for such an outcome not merely for the North but for the entire UK.
But now they put the cart before the horse. They object to the implementation of her plan because a failure to achieve it by agreement would somehow endanger the Union. It wouldn’t.
But is it that they fear a failure in a negotiated outcome along those lines? Or is it because the right-wing rump of the Tory party does not want a soft Brexit outcome and the northern unionists feel that that rump is their indispensable political ally?
Let’s get one thing straight. The Tory ERG group (including Rees Mogg, Johnson, Paterson and the Tory unionist peer David Trimble, group clearly do not want a soft Brexit.
They want no constraint on the capacity of the UK post-Brexit to freely conclude trade deals with any other state or bloc in the world as if their trading relationship with the EU did not exist or was one based only on WTO rules.
Such a freedom necessarily involves the freedom to impose a hard border on the island of Ireland.
They want to dine a la carte in the EU dining club without being a member and without paying the annual sub. They want the table d’hote menu in the club to apply only to the remaining 27 members.
This WTO based future for the UK is economically suicidal for the North. It would be the biggest threat to the Union.
The ERG members simply do not give a fig about the regional implications of their plans for the UK’s regions and especially for Northern Ireland. They never mentioned them in their Leave campaign. They brushed it all aside – aided and abetted by the bluer-than-blue DUP, a party which has simply never put forward any model that can sustain both an open Irish border and a WTO international trade regime for the UK.
Owen Paterson loudly and insistently asserts that there is a fool-proof technical solution available for squaring that economic circle.
If he is so certain of his proposal what is the problem with the back-stop – which would thereby be easily made redundant?
In any event, what further concessions can the Tories and the DUP demand on the back-stop issue? Do they want it to be time-limited? Is there to be a future time when the UK can choose to impose a hard border – or a time period after which they can threaten to do so?
If so, they are asking for a sell-by date on the Belfast/Good Friday Agreement and the open border, all-island economy on which it is built?.
And to those unionists and ERG members who argue that the back-stop undermines the constitutional order of the UK, I bring a little news.
The present constitutional order of the UK, based on the Belfast/Good Friday Agreement, a solemn international treaty, involves a commitment to there being no hard border in perpetuity.
That commitment is as much part of the UK constitutional order as the Queen or the sovereignty of parliament.
Northern Ireland remains part of the UK in accordance with the terms of that agreement. UK constitutional sovereignty in Northern Ireland is not absolute even in English law.. It has been made conditional. The people of Northern Ireland alone and by majority determine its future constitutional status in accordance with the terms of the Agreement. Britain has no right to impose a hard border. Its right to bring the UK out of the EU under Article 50 must be exercised in accordance with its obligations under international law to uphold the constitutional settlement it entered into concerning the North – including its commitment not to have a hard economic border on this island.
So when you hear ERG group members talking about maintaining the constitutional integrity of the UK, they need to be reminded that that the same constitutional integrity of the UK includes adherence to the Belfast/Good Friday Agreement and all its implications.
It does not include a right to hollow out the internationally agreed special status of Northern Ireland, which includes a right to choose by majority to be part of the united Ireland and, a fortiori, to be part of a united Ireland that is part of the EU.
It does not involve the right to reverse and set at nought the right of individual citizens in Northern Ireland to choose to be Irish citizens and to be EU citizens in international law.
So while it is foolish for the tribal politicians in Northern Ireland to use and exploit Brexit as a pretext for totemic re-ignition of the constitutional issue – and that includes the DUP and Sinn Féin equally – the constitutional status that each of them preaches is not simple or as straight forward as either of them portrays it.
The EU as co-guarantor of the Belfast/Good Friday Agreement is right to insist that its future relationship with the UK cannot be based on the Agreement becoming merely an optional obligation for the UK.
Everyone who is determined to keep an open border in Ireland should act in accordance with that determination. That includes the UK government, the Labour Party, the SNP, Plaid Cymru, and non-DUP unionists. All of them should reject a WTO outcome or a no-deal outcome.
Only those who put preserving the UK’s rights to choose its international trading rights ahead of its solemn international law obligations would rank the back-stop issue as more important than the pursuit of a close and soft Brexit at this point.
Theresa May was foolish to say “Brexit means Brexit”. That implied that Brexit could not mean different things.
She was foolish to say that “No deal would be better than a bad deal”. That was a feeble effort at politically bluffing the EU 27 into an acceptance of her red lines.
She was wrong to out-rule a de facto customs partnership of union,
But all of those errors were explained by a desire to placate the implacable within her own party. Futile endeavor.
There is no majority Commons support for the ERGs vision of Brexit. They are about 10% or 15% of MPs and have no right to impose it on the British people by contriving a crash-out for the UK for which the referendum gave no mandate.
They attempted to lure May into a killing zone. She survived.
She must now bring about a final, truthful choice for the people of the UK to make - do they want to choose between the soft Brexit she negotiated or remaining in the EU?
Image credit: By Dom0803 - Own work, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=4518947