Why the border matters: Thinking about Brexit and Northern Ireland

Charlie Larkin is Director of Research at the Institute for Policy Research (IPR), University of Bath.

It is difficult to understand Northern Ireland without understanding history. Seamus Mallon, on the architects of the Good Friday Agreement, quotes William Faulkner at the beginning of his new memoir, reminding us that in Northern Ireland “The past is not dead. It is not even past.”

It is in that context that all matters political, economic and social are framed within the unique historical circumstances of Ireland. To understand the position of the Northern Ireland Catholic and the complexities of Brexit you need at first to look back.

A history

The island of Ireland was historically a fractured polity. The Roman Empire may have occasionally visited Ireland but it never established colonies. Christianity came to Ireland at the same time that the Empire began its process of collapse, and evolved along a different track to the rest of Europe, with strong linkages to the rule of Anthony of Egypt and local traditions. The Vikings were to invade during this period and establish themselves in Dublin, Waterford, and other parts of the country accessible by river. In this mixture of Hiberno-Norse culture, politics, and religion, came the Normans from England and Wales.

The conquest of Ireland began in 1169 and with it the authorisation of Pope Adrian IV to bring the Irish church back to Rome. From 1169 to about 1500 the native Irish and the Norman English lived under the conditions of the colonized and the colonizer. The Statutes of Kilkenny in 1367 placed the native Irish in an inferior position to the English but there was a limited reach for these laws, as they only applied to “the Pale” - a small region of Ireland. With the majority of the country being Brehon Law, the native legal system was adhered to by all of the different minor principalities and kingdoms of Ireland.

This all came to a dramatic halt when the English Reformation by King Henry VIII of England began, and resulted in the 1534 Act of Supremacy. The monasteries were dissolved and their lands seized and sold, but the native population and a large proportion of the Hiberno-Norman aristocracy refused to convert to the new religion. Dublin remained the focal point of this conflict until the Plantation of Ulster in 1609, with the defeated and dispossessed Catholic chieftains of Hugh O’Neill, Hugh Roe O’Donnell and Hugh Maguire lands being granted to Scottish and English settlers. The Plantation of Ulster is the starting point for the conflict between the native Catholic population and the planter Protestant (mostly Scottish Presbyterians as opposed to Anglican) population.

The remainder of the 17th Century was not good. The English Civil War spread to Ireland and was subjected to extensive sectarian violence. Ireland then became the battleground for European dynastic wars between the French and the alliance led by the Holy Roman Empire, and assisted in Ireland by King William III of England who also happened to be Prince of Orange (now France), the Stadtholder of Holland (now the Netherlands), and became King of England in the largely bloodless “Glorious Revolution” of 1688. This monarch’s success at the Battle of the Boyne in 1690 - over the forces of the deposed Catholic James II of England and Louis XIV of France (also Catholic) - has made him a perpetual hero to the Northern Irish Unionist movement and the rationale behind the “Orangeman” fraternal societies of Northern Ireland Protestants. The Penal Laws of William III eliminated most of the rights of the Catholic community all over Ireland, and were not reversed until 1829. This suppression of the majority Catholic population was at first legal and then cultural in Northern Ireland.

During the Liberal government of Lord Asquith in 1912, the advancement of the Third Home Rule Bill in the House of Commons resulted in the declaration of the Ulster Covenant. This was a statement of position of the Ulster Unionists, led by Dubliner Edward Carson. Paramilitary activity began on both the nationalist and unionist sides of the divide culminating in the 1916 Rising in Dublin. The 1918 elections returned Sinn Fein (“ourselves alone” in translation) as the major party with a unionist majority in the future entity to be known as Northern Ireland.

By 1922 the Government of Ireland Act brought about a fragile peace between the newly formed Irish Free State and Britain. The entity that would be known as Northern Ireland was created in this treaty with its own government at Stormont. The arrangement was to be temporary, and it was only after a bitter civil war that the Irish Free State stabilized. But partition had taken hold of the country and the temporary division of the country solidified.

Ireland, or Eire, as it was termed in Irish, would evolve to have a new constitution in 1937 and then in 1948 declared itself an independent republic, outside of the Commonwealth of Nations. The 1937 Constitution created a state that formed a special place for the Catholic Church and was overtly republican, nationalist, internationally neutral, and briefly embraced an economic policy of “burn everything British but their coal”.

This policy stance severed all ties to the King of England and installed a popularly-elected president, the first of which was a close personal friend of Edward Carson, Douglas Hyde, and a member of the Anglican religious community. Éamon de Valera, the architect of the 1937 constitution, while presiding over a demographically Catholic state, was keen to highlight the importance of the “parity of esteem” for the treatment by the new Irish state in matters of education and social policy between the majority Catholic institutions and minority Protestant institutions. This was in contrast with Northern Ireland, where the Protestant majority took on a siege response, with the systematic process of Gerrymandering of electoral districts and civil rights abuses. Ireland, north and south, settled into their respective political positions with re-unification disappearing into nothing more than a dream.

Partition was damaging for the Northern Irish Catholics and for the population of the Republic of Ireland. The civil rights movement in the United States (US) and the changing demographic and educational opportunities in Northern Ireland created a new generation of Catholics pursuing civil rights. While this began peacefully it descended into three decades of violence, with approximately 3,500 people killed.

The Irish, British and American authorities began to unpick the problem. While negotiations thought of power relations in terms of weak and strong, the communities in the North were caught in a deadly calculus where all thought they were weak and besieged. The nationalist Catholics of Northern Ireland feared the Protestant Unionists and the London Government. The Protestant Unionists feared the demographic decline of their community in conjunction with a Catholic nationalist majority on the island of Ireland, and with that what they perceived as a sectarian government in Dublin.

London and Dublin suffered a trust gap as well. US Senator George Mitchell and work by officials and advisors, such as Sir Roderic Lyne and Martin Mansergh, delivered an approach that allowed trust to develop between the parties and to cease the United Kingdom (UK) government perceiving Northern Ireland as a security problem to be managed, but as a political problem to be solved.

The 1998 Good Friday Agreement was to be the solution, but it was not. The legislation created a stalemate and the Northern Irish Assembly created processes that prevented progress. The 2006 St Andrew’s Agreement and subsequent 2007 legislation created the “Petition of Concern”, which continues to limit the progress of legislation on controversial issues to this day. With the Assembly now suspended since January 2017 it is clear that the 1980 description by former Irish Taoiseach (Prime Minister) Charles J. Haughey of Northern Ireland as a “failed political entity” may just be true.

Power sharing did not exist, and was instead split into silos. There was a failure of politics to mature, justice systems were not fully reformed, and the Historical Enquiries Team was a way of investigating the past atrocities but forced politics to remain in the past, and for growth between the parties in the matters of everyday policymaking to stall. Political groupings were not allowed to share power and instead comfortably live in power silos, perpetuating the conflict mentality and continuing to ruminate upon the past. The communities of Northern Ireland, Catholic and Protestant, did not reconcile, nor did they have to reconcile. The status quo was one of economic and political stagnation.

Since 1998 Northern Ireland has suffered a brain drain. Productivity levels have declined year-on-year since, and a new generation of citizens have grown up with a “dialogue of the deaf” as a norm. The horrors of the violence so vividly described by Seamus Mallon in his memoir, and suffered by Jean McConville and her family, and more recently by Lyra McKee (murdered by a dissident republican during the Derry riots this year), have been allowed to be forgotten or ignored.

The Brexit crisis

In the context of Brexit, this is a crisis. The Democratic Unionist Party (DUP) approached a policy they felt would copper-fasten the union, and the English nationalists ignored the fact that the Good Friday Agreement was built out of the foundations of the European Union treaties. Tony Blair’s address to the Irish Parliament (Oireachtas) in November 1998 highlighted how the European Union had created the space and the human rights framework that allowed for peace in Northern Ireland. Both the DUP and the English nationalists have forgotten or ignored the reality that the European Union, supporting human rights, and Northern Ireland, are all impossible to disentangle.

The backstop

Inadvertently, the DUP, seeking to push Northern Ireland towards Great Britain, has in fact pushed it further away. The “soft border” was a cornerstone of the Good Friday Agreement and is why the European Union, as a party to that Agreement, is working so hard to ensure it continues to exist.

The “Backstop” if triggered would make Northern Ireland a special case: a single UK-EU customs territory; a potentially level playing field between the European Union and UK; the EU Customs Code (allowing Northern Irish businesses to place products on the EU Single Market); and Northern Ireland would remain aligned to a limited set of rules relating to the Single Market, to avoid a hard border on the Island of Ireland - this gives Northern Ireland the best of both worlds economically, and has been recognised by the farming and business community. It is certainly better than “No Deal”.

As it stands, the opportunities to progress on an Irish solution to an Irish problem were lost prior to the triggering of Article 50, despite the existence of Strands 2 and 3 of the Agreement allowing for bilateral negotiations on matters of mutual concern between Dublin and Belfast, and Dublin and London. The extent of the North-South bodies is somewhat staggering with 147 progammes in total. Solutions that are satisfactory to both the UK government and the Irish government are difficult to discern, especially since the current positions of both governments are anathemas to their counterparts.

Common Travel Area

It is important to note that the Common Travel Area (CTA) is a product of not treaties, but the synchronisation of regimes between Ireland and the UK. The CTA did not exist until 1953, and the period of 1939-1946 saw the complete suspension of it. The major articulation of the CTA in EU law is in Protocols 19 and 20 of the Lisbon Treaty and even there it is ill defined. Ultimately the question will be who will be let or not let into the country, and that has not been articulated by the UK.

The simple reality of the CTA is that the Northern Irish border is impossible to police, at 280 miles long with 180 roads that cross it. The existing treaties of the European Union envision a unification of Northern Ireland and the Republic at some point in the future, with the Irish authorities in the past providing provisions in the treaties for German re-unification style treatment of a newly united Ireland.

The CTA is recognised in EU law by Protocol No. 20 to the Treaty on European Union and Treaty on the Functioning of the EU stating:

“The UK and Ireland may continue to make arrangements between themselves relating to the movement of persons between their territories (‘the Common Travel Area’) …”

This is further complicated by the fact that the Good Friday Agreement recognises:

“… the birth right of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland”.

Therefore, the CTA is necessary to keep the Good Friday Agreement operational.

The 1922 definition of an Irish citizen did not encompass most UK citizens, and UK citizens in Ireland were not treated as ‘aliens’ under Irish law. It was only with the introduction of the Irish Nationality and Citizenship Act 1935 that provision was made to allow for the granting of statutory reciprocity. This was eventually provided for by the Citizens of the United Kingdom and Colonies (Irish Citizenship Rights) Order 1949, which provided that UK citizens would enjoy in Ireland similar rights and privileges to those enjoyed by Irish citizens in the UK.

In 1948 Ireland declared itself a republic and revoked any role for the British monarch. Ireland was then regarded under British law as having left the Commonwealth. However, wishing to maintain the Common Travel Area arrangements, the British Parliament enacted the Ireland Act 1949. Section 2 (1) of that Act provides:

“It is hereby declared that, notwithstanding that the Republic of Ireland is not part of His Majesty’s dominions, the Republic of Ireland is not a foreign country for the purposes of any law in force in any part of the United Kingdom …”

The status of Irish nationals was maintained under the Immigration Act 1971 and the British Nationality Act 1981. A Memorandum of Understanding (MOU) to maintain this status was signed on 8 May 2019 and can be found here. It is important to note that under a “No Deal” scenario, it is not entirely clear if this MOU would continue to have standing.

Further Good Friday Agreement complications

The sunk costs of the Northern Ireland peace process are clear to the European Union. Support under the PEACE and INTERREG programmes, and the UK-Ireland partnerships in three EU-funded cross-border Cooperation Programmes, have a total value of €650 million over the period 2014-2020.

The preamble of the Good Friday Agreement states that they “develop still further the unique relationship between their peoples and the close co-operation between their countries as friendly neighbours and as partners in the European Union.”

The Good Friday Agreement also provides that one of the tasks of the North/South Ministerial Council is to “consider the European Union dimension of relevant matters” and to make arrangements “to ensure that the views of the Council are taken into account and represented appropriately at relevant EU meetings.”

The citizenship provision applies to approximately 1.8 million people born in Northern Ireland. Those born in Northern Ireland who currently hold, or in the future choose to exercise their entitlement to, Irish citizenship under the Good Friday Agreement are therefore also EU citizens. The exercise by Irish citizens in Northern Ireland of these EU rights are an important component of the citizenship provision of the Good Friday Agreement.

Under the Good Friday Agreement, the British Government committed and is under a continuing obligation to provide for the “incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.” All protected and enforced by connection to the wider framework of the European Union, European Court of Justice and the ECHR.

The European Commission published a paper as part of the Article 50 process on 21 June 2019 as a mapping exercise of North-South connections. The Commission continues to highlight the importance of North-South cooperation and the need ensure a soft border. The report states:

“However, it was consistently recognised that virtually all areas of North-South cooperation are predicated on the avoidance of a hard border, including related customs or regulatory checks and controls. Similarly, it was acknowledged that the free movement of people underpins many areas of North-South cooperation as well as access to services on both sides of the border. The continuation of the Common Travel Area between Ireland and the UK is therefore vital in this regard.” (European Commission, 2019: 5)

Stephen Rae best articulates the complexity of the Northern Irish border, and the lack of understanding shown by London and the depth of the commitment of the EU-27 to the predicament of a member state. The video highlights the fragile peace that exists in Northern Ireland and the trauma that communities on both sides of the border suffered as a result of the Troubles. For Catholic communities the fluidity of that border is a regular fact of life but now it speaks to a wider group.

Looking ahead

The European Parliamentary elections and the recent UK local elections have shown that Brexit has allowed pure sectarian politics to be outgrown. The success of the Alliance Party and showing of the Northern Irish Green Party, which are both religiously non-aligned is a cause for hope. Brexit has forced people to decide to be Europeans and embrace a 27-member state future, or a future as UK alone. For those that were unionists, embracing the European Union is much easier than embracing the Republic of Ireland - even if you need to shake hands with Dublin along the way to Brussels, it is as small price.

In many ways, Tony Blair’s description of the importance of the European Union as the midwife of peace in Northern Ireland is now returned to deliver a less sectarian Northern Ireland, than is now seriously considering a unified future within a European Ireland. This poses serious challenges to the Republic of Ireland but recent polls indicate broad support for a united Ireland in the Republic. The Republic will have to change, find new methods of governance, new symbolism, and new national identity stories, but there exists a growing appetite for starting that conversation.

The challenge now is what to do in the face of the pressures of the Border. Ireland doesn’t want a border. Most in Northern Ireland do not want a border. The European Union doesn’t want a border. Only a certain group of Brexiteers in London desire a border and the undoing of 20 years of relative peace.

Perhaps Rea was right when he said you had to live there, so I leave the final words to Seamus Heaney on the terrible side of the Troubles and murder of his cousin Colum:

I turn because the sweeping of your feet

Has stopped behind me, to find you on your knees

With blood and roadside much in your hair and eyes,

Then kneel in front of you in brimming grass

And gather up cold handfuls of dew

To wash you, cousin. I dab you clean with moss

Fine as drizzle out of a low cloud.

I lift you under the arms and lay you flat.

With rushes that shoot green again, I plait

Green scapulars to wear over your shroud.

I guess if you asked someone in Northern Ireland why the border matters - that is why.

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Parts of this article have appeared in the Italian political economy journal Limes and commentaries on the Irish economy for Trinity Business School. The author thanks officials from the Oireachtas for their advice on technical matters. These are personal opinions and do not reflect the opinions of the IPR, University of Bath, Trinity College Dublin or Oireachtas Éireann. All errors are my own.