The negotiations in Brussels on Brexit seem to have reached an impasse. It is not yet clear whether the deadlock on the backstop can be resolved at prime ministerial level; or whether that will remain an obstacle to an agreement on the terms for the departure of the UK from the EU next March.
Two kinds of issues are at play in the discussions. On the one hand there are serious practical difficulties – how to handle cross-border trade and regulatory issues – customs, tariffs and so on. These have been the subject of long and intensive negotiations and it is difficult from outside to know exactly how far they can be resolved with good will, and whether some real progress has been achieved.
I can only say that having worked long ago with some of those now advising the Taoiseach and his Ministers I have every confidence in their creativity and their abilities; and, having sat across the table from Michel Barnier for over a year in the drafting group for the Amsterdam Treaty in the mid-90s, I am well aware of his integrity and his commitment to achieving a fair agreement.
A second source of difficulty, however, is deeper and more visceral because it has its roots in our troubled history
A second source of difficulty, however, is deeper and more visceral because it has its roots in our troubled history. It is understandable that Arlene Foster, as a unionist, and her colleagues in the DUP, should want to ensure that whatever is done to avoid a hard border after Brexit will not affect the constitutional position of Northern Ireland within the United Kingdom. It is understandable, too, that Theresa May, as prime minister of the United Kingdom, has similar concerns.
Far less knowledge
Boris Johnson, one of the most prominent Brexiteers –with less justification and far less knowledge – goes much further in affecting outrage in his weekly column in Monday's Daily Telegraph. The backstop, would, he says, "mean violating the Act of Union of 1800, and the very basis on which this country is founded".
In the public debate in the UK – and most notably in Johnson’s column – there seems to be little or no understanding of just what is the constitutional position of Northern Ireland within the United Kingdom; and certainly no awareness of how radically it changed 20 years ago following the signature of the Belfast Agreement.
That agreement – an international treaty between the UK and the Irish Government, registered at the United Nations – recognised "that it is for the people of Ireland alone, by agreement between the two parts", voting concurrently, to bring about a united Ireland, if that is their wish"; it recognised the right of all the people of Northern Ireland to be "Irish or British, or both, as they may so choose"; and, most notably, it specifically provided for "changes" in British legislation and in the Constitution of Ireland "relating to the constitutional status of Northern Ireland" (emphasis added).
Unionists should not feel threatened by this or fear that it erodes their position by stealth
To give effect to the agreement on the UK side, parliament passed the Northern Ireland Act 1998. Its first article provides that Northern Ireland “shall not cease” to be part of the United Kingdom without the consent of a majority of the people there.
It also provides that, if a majority in a poll do express a wish to form part of a united Ireland, proposals to that effect agreed between the British and Irish governments will be put to parliament. Furthermore, Article 2 repeals the Government of Ireland Act 1920 and – as Boris should know – stipulates that the new act is to have effect “notwithstanding any other previous enactment”.
A ‘united Ireland’
To implement the agreement on the Irish side we changed our Constitution so that it now provides that “a united Ireland shall be brought about only by peaceful means” and with the consent, democratically expressed, of a majority in both jurisdictions in the island.
These back-to-back provisions – agreed by all participants in prolonged and arduous negotiations following years of conflict, incorporated in an international treaty registered at the UN, ratified in concurrent referendums by the people of Ireland North and South and, from a legal point of view, enshrined in law by an Act of the United Kingdom Parliament and, in Ireland, by an amendment to the Constitution – which, since 1998, ought properly be described as “the constitutional status of Northern Ireland”.
As a settlement, this, so far as I know, is unique. And it creates a constitutional status for Northern Ireland which is distinctive and quite different from that of any other part of the United Kingdom.
It is not surprising that the EU which, over the years, contributed several billion euro to programmes which support the settlement, should now be willing to consider some arrangement particular to Northern Ireland which will reflect its unique status.
Unionists should not feel threatened by this or fear that it erodes their position by stealth. They have the assurance of the 1998 agreement that Northern Ireland will remain part of the United Kingdom for as long as a majority there so wish. That principle is enshrined, not only in British law but, now, for the first time, in the Irish Constitution; and one new condition is added – there will be Irish unity only if a majority in both jurisdictions vote concurrently to support it.
I cannot believe that a majority in either – let alone both – jurisdictions would want a united Ireland imposed by a bare majority vote at the cost of creating a large new resentful minority.
That would fall far short of the commitment in the 1998 agreement that “whatever choice is freely exercised by a majority in Northern Ireland” must ensure “parity of esteem and just and equal treatment for the identity, ethos and aspirations of both communities” .
Noel Dorr is a former Irish diplomat. He served as Irish ambassador to the UN and was secretary general of the Department of Foreign Affairs, among other roles