Tuesday , November 13 2018
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Northern Ireland Constitutional Settlement: A Brexit Booby Trap?

Summary:
Today we’ll stick our noses into Northern Ireland politics, which it turns our matters more than it might appear in Brexit. And I don’t mean the DUP’s position in the UK parliament or the fact that on Monday, the Taoiseach Leo Varadkar told Theresa May that the UK could not push the Republic around on the topic of the backstop. Per the Guardian: Varadkar’s office released a statement shortly after May had called him on Monday morning, which said that while Ireland was open to the possibility of “a review mechanism” for the backstop, “the outcome of any such review could not involve a unilateral decision to end the backstop”. An issue that appears to have been widely ignored, but our alert Brexit experts have picked up on, is that the UK does not have the authority to alter the

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Today we’ll stick our noses into Northern Ireland politics, which it turns our matters more than it might appear in Brexit. And I don’t mean the DUP’s position in the UK parliament or the fact that on Monday, the Taoiseach Leo Varadkar told Theresa May that the UK could not push the Republic around on the topic of the backstop. Per the Guardian:

Varadkar’s office released a statement shortly after May had called him on Monday morning, which said that while Ireland was open to the possibility of “a review mechanism” for the backstop, “the outcome of any such review could not involve a unilateral decision to end the backstop”.

An issue that appears to have been widely ignored, but our alert Brexit experts have picked up on, is that the UK does not have the authority to alter the constitutional arrangements of Northern Ireland, which includes the Good Friday Agreement and the St. Andrews Agreement. It’s not clear how the UK can obtain the needed approvals, given that Northern Ireland has had no functioning government since 2017 and is effectively under direct rule by the Government.

This is a particularly tortured topic and I hope my from-the-other-side-of-the-pond attempt at recapping it is reasonably accurate, given that messy situations don’t lend themselves well to simplification. Bear in mind that this is an area where our Clive deems the normally reliable and detail-oriented Richard North to be “clueless”.

And before you assume that the EU can bulldoze Northern Ireland, recall that Wallonia held up the approval of the Canada-Europe Trade Agreement for two weeks because its parliament nixed the pact, forcing the Commission to negotiate with Wallonia. But it’s even worse here. As Clive pointed out:

But an unelected and unaccountable EU ladling out do’s and don’ts to unionists in NI over which they have no control (which is what “NI remaining under Single Market rules” means in practice) is not what the Good Friday Agreement permits.

To see what it’s so hard to square this circle, we need to look at the train wreck that is Northern Ireland politics.1 Any change regarding Norther Ireland’s border and customs arrangements and/or regulatory supervision needs to be approved by the Northern Ireland Assembly. On the devolution settlement for Northern Ireland, “transferred matters” which are under the Northern Ireland Assembly’s jurisdiction include agriculture, economic development, local government, transport, environmental issues, and justice and the police. Constitutional changes are also agreed, or at least proposed, in the Assembly. Having Northern Ireland subject to enough EU trade and other rules to allow for an open border between the Republic and Northern Ireland would require the Assembly’s approval. As Clive put it:

We have Direct Rule in all but name. The UK cannot make constitutional settlement changes for the province via Direct Rule. For, say, the Brexit Border in the Irish Sea “solution” this would be a constitutional settlement change for NI (putting the province in a totally different legal jurisdiction than the rest of the UK. is the very definition of a constitutional change, which is why I knew it was nevah gonna happen absent support at the Assembly, which was impossible because currently there ain’t no Assembly).

Aha, but what of this Assembly, which is also called Stormont? It’s been suspended since January 2017. In theory, it could fire back up at any time with the same Members of the Legislative Assembly (MLAs) that it had back then; no new elections are required. But why is this not going to happen? Again to Clive:

Post the 2017 General Election (remember, this happened after the Assembly disappears into the constitutional twilight zone) the DUP suddenly finds it holds the balance of power for the entire UK. So Stormont now seems like the parish backwater it is and the DUP, which up until then maybe would have liked to resurrect and repair it, now doesn’t give a stuff about it. It gets even better for the DUP.

Sinn Féin collapsed power sharing when it flounced out of the Assembly in a huff over some made-up outrage (it was a legitimate outrage, but a teeny tiny little turd in the great cesspool that is NI political and governance awfulness) so we have now the U.K. government in the bizarre position of trying to talk Sinn Féin, Sinn Féin of all people, back into power sharing in NI to get it, the UK, out of a constitutional pig-in-a-poke. (cue at this point the DUP in one of Lambert’s subliminal subscript fonts whispering maniacally “it was them who caused all this, them!, them!” in the UK government’s ear).

Brace yourself for more weirdness, if that were possible.

So, Sinn Féin, having done its turn at gesture politics, a NI speciality, finds itself having pushed power sharing under a bus just when it suddenly would have really meant something. Which makes sense, now, of something which seemed completely inexplicable earlier this year (March-ish time, I think, I’ll need to check the exact date) where Sinn Féin, the Republic’s government and the U.K. government were all desperate, just desperate, to restore a functioning Assembly. May went over to NI, I think Simon Coveney was there, too. There was a big stage-managed set piece for the cameras, times for the evening news etc. It was all supposed to end up in a grand bargain fudgey compromise.

The DUP, predictably, refused to play the game. I’ll say this for them, they’re certainly consistent. It played hard ball. Not even the Republic’s government could persuade Sinn Féin to eat any more of the fudge on offer. The Republic’s government has limited sway with Sinn Féin anyway. It’s like Hillary trying persuade Donald to donate his kidney to save Bill. To be fair to Sinn Féin, they gave a lot of ground. And for the DUP, leader Arlene Foster seemed prepared to have her slice of fudge, too, but the hardliners in the party told her they wouldn’t wear it. So everyone, the U.K. government, the Republic’s government, Sinn Féin and the DUP, shuffled off back behind their respective red lines and domestic power plays.

PlutoniumKun agreed:

Regarding the Assembly, the Sinn Fein leadership is desperate to get the Assembly back up again for precisely the reasons outlined. But their problem is that their support base is completely disillusioned with it, tired of seeing every concession gobbled up by the DUP with nothing in return. It could only work when you had strong secure leaders like Ian Paisley and Martin McGuinness, but they generation has gone. The Assembly is unworkable under the current circumstances where the DUP can torpedo everything they don’t like, which is basically anything that Nationalists want.

There is only one way that the Assembly could be put back together, and that is if the British Govt cut off all the salaries to DUP elected members and nominees. But because of May’s parliamentary situation, they can’t do this (yes indeed, dozens of senior DUP members are drawing fat salaries for doing nothing)….

It’s possible but unlikely I think that the Irish foreign office is not fully informed. I know they’ve put an enormous effort into educating other EU foreign ministers and Barnier on the complexities, including a lot of unpublicised visits to the border areas. So I would be very surprised if the EU was caught unaware, but it is possible that London and the DUP think they’ve come up with a clever legal wheeze which will checkmate the EU, at least as far as the border issue is concerned.

And from Clive by e-mail yesterday:

There is, suffice to say, zero, zilch, nada political will to resolve the devolved government issues. The DUP are delighted with the current situation. They never liked the GFA from the start. While Arlene Foster made some of the right noises to trying to negotiate a compromise, the well-orchestrated “hardliners won’t wear it” bust-up meant it never happened. Sinn Fein watered down as many of their demands as their base would let them get away with, but they were still pre-conditions on a resumption of the Assembly. So the DUP could simply reissue its “no power sharing under the threat of extra-procedural Sinn Fein demands” refusal.

The astoundingly useless Karen Bradley (the UK Government’s NI Secretary) tried a ridiculous ruse a week or so ago to allow civil servants to make policy in the absence of the Assembly — without formal Direct Rule being introduced. This suggests that the UK Government does want to resolve the NI law-making issue because it realises that it is a landmine in any Brexit deal that no-one can skirt around and no-one can defuse either. It just landed the UK Government straight into court:

https://www.belfasttelegraph.co.uk/news/courts/karen-bradley-breaching-obligation-to-call-fresh-northern-ireland-elections-high-court-told-37293237.html

… this will have to end up wending its way, eventually, into the UK’s Constitutional Court (The UK Supreme Court). Who will no doubt throw out the UK Government’s attempt to finesse this away. There’s a near 600-year history on civil servants never, ever, being allowed to make political decisions. The UK Government has a well-established legal basis to step in and re-instigate Direct Rule to preserve the rule of law in the province. The fact that, politically, it is fraught isn’t the courts problem or the civil service’s problem to fix. They will, inevitably, decline to do so.

Now one solution, as Clive alludes to above, would be for the UK to impose Direct Rule for real, and not the provisional version it has operating now, and do whatever it thinks it needs to do Northern-Ireland-contitution-wise to deal with Brexit. But that means sweeping away the Good Friday Agreement. Hard to see anyone having the stomach for that.

PlutoniumKun raised some other possibilities:

There are two wild cards in this I think, which the Irish government may as a last resort seek to use, both of which launch into a legal unknown land. One is the right of the Irish government to call for the British Irish Intergovernmental Conference to sit again under Article 2 of the GFA and insist that as EU matters are in its competence everything must be agreed through it, so bypassing the Assembly. The other option, perhaps for the EU, is to appeal under the Vienna Agreement that the Irish government, and hence the EU, must be allowed a say in NI constitutional matters or the UK is in breach of its commitments.

Whether either of these would change matters if the UK dug it’s heels in I’ve no idea, but I suspect the EU could insist on either option if May insists that her hands are tied legally over the backstop.

Even though either of these could be a Hail Mary pass, it’s difficult to see how they could come to a conclusion before the March 29 Brexit date, particularly since no one as of now looks primed to tee either one up.

Vlade offered another ploy:

I think there’s an additional angle to this, although I don’t think it will be pushed hard at the moment, as it would drive DUP out.

That is, calling a unification referendum. As I wrote some time back, the support in NI for unification was hovering about 20% for a long time before Brexit, but started ramping up rapidly with Brexit. A poll in September was the first one which had unification winning in case of hard-border Brexit, and being too-close-to-call in case of Brexit anyways.

Now, in theory, it would take Stormont to call it, together with Westminster. But if GFA was dead, and there’s a return to Direct Rule, with devolution dead, then Westminster can do whatever it likes there, including calling a referendum. Which would be hard to see as undemocratic (not that DUP wouldn’t try their best to smear it).

Yes, Tories have “unionist” party in the name. But in reality, most of them would be very happy to throw NI under the bus if it means the impasse gets resolved. Most of the non ultras now hate DUP, so if it meant poking DUP into the eye, it would be even better (w/o NI seats Tories would have a majority. Wafer thin, one vote I think, but still). Oh, and it would pull one over Ireland, as while they talk unification, they fear it a lot.

Even NI staying in the UK would solve the impasse, as there would be a strong argument that the people of NI rejected the need for open border, so what’s the EU/Ireland about.

If I was a Tory, I’d offer this as a backstop to the EU, and watch them squirm.

This wee impasse isn’t getting anywhere near the attention it warrants. And before you assume someone has sorted this out, recall that even though it was obvious that the government was not going to bail out Lehman (too much public ire after the Bear Stearns rescue), no one in the officialdom talked to a bankruptcy lawyer to understand what it would mean. They didn’t even talk to Harvey Miller, the dean of the bankruptcy bar, who Lehman had retained. Miller had prepared nothing because the lack of contact by regulators and Lehman management told him there was no reason to gear up. The fact that Lehman filed with a short-form bankruptcy made its collapse even more destructive than it needed to be.

So in situation with way too many moving parts, don’t assume that the key players are on top of all the things they need to be watching. And that goes double for May’s government.

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1 Forgive the mixed metaphor, but an excuse is that train tracks can be laid out in squares and circles.

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