John McGarry and Brendan O’Leary write that, contrary to the DUP’s claims, the draft Withdrawal Agreement does not violate the provisions of the Good Friday Agreement when it comes to consent. Instead, the proposals regarding Northern Ireland are reasonable and balanced

McGarry, John

O’Leary, Brendan

English

LSE Research Online

Matters	of	consent:	the	Withdrawal	Agreement	doesnot	violate	the	Good	Friday	AgreementJohn	McGarry	and	Brendan	O’Leary	write	that,	contrary	to	the	DUP’s	claims,	the	draft	Withdrawal	Agreementdoes	not	violate	the	provisions	of	the	Good	Friday	Agreement	when	it	comes	to	consent.	Instead,	the	proposalsregarding	Northern	Ireland	are	reasonable	and	balanced.	Conference	2014	–	Nigel	Dodds.	Picture:	DUP	Photos/(CC	BY-NC-ND	2.0)	licence	Many	criticisms	have	been	made	of	Prime	Minister	Johnson’s	draft	Withdrawal	Agreement	with	the	EU,	but	themost	inaccurate	is	the	claim	that	it	‘drives	a	coach	and	horses	through	the	provisions	of	the	Good	FridayAgreement’	(GFA).	The	claim	has	been	made	by	the	DUP’s	Westminster	Parliamentary	leader,	Nigel	Dodds;	hiscolleague,	Jeffrey	Donaldson	MP	similarly	maintains	that	the	consent	principle	of	the	GFA	is	‘not	adequately’reflected	in	the	draft	agreement.	Since	Donaldson	walked	out	of	the	Good	Friday	negotiations	on	the	morning	theywere	concluded,	and	Dodds	vigorously	opposed	it,	they	are	perhaps	not	the	most	credible	sources	on	the	legalfacts	of	that	Agreement.Sadly,	however,	the	‘coach	and	horses’	claim	was	first	made	by	Jonathan	Powell,	a	man	with	far	greater	standing	inthese	matters,	as	Tony	Blair’s	former	chief	of	staff,	and	to	whom	an	extraordinary	debt	of	gratitude	is	owed	for	theeventual	implementation	of	much	of	the	GFA.	Powell’s	complaint	is	that	Johnson	has	driven	the	said	coach	andhorses	‘by	allowing	a	simple	majority	to	decide	whether	[Northern	Ireland]	stays	in	the	single	market	and	customsunion.’Matters	of	consentWe	disagree	with	Powell,	respectfully.	The	law	on	these	matters	is	not	contestable.	Properly	understood,	theconsent	principle	included	in	the	Good	Friday	Agreement	requires	that	whether	Northern	Ireland	re-unifies	withIreland,	or	remains	in	the	UK,	is	to	be	decided	by	a	majority	of	the	people	of	Northern	Ireland.	UK	legislationprovides	that	the	majority	will	is	to	be	expressed	in	a	future	referendum.	That	is	the	consent-to-sovereigntyprinciple.	A	simple	majority	suffices.If	one	believes,	incorrectly,	that	the	so-called	‘frontstop’	arrangements	proposed	in	the	new	Withdrawal	Agreementmodify	the	sovereign	status	of	Northern	Ireland,	then	the	correct	procedure	would	be	to	have	a	simple-majorityreferendum	on	whether	Northern	Ireland	accepts	these	arrangements.Democratic Audit: Matters of consent: the Withdrawal Agreement does not violate the Good Friday Agreement Page 1 of 5		Date originally posted: 2019-10-29Permalink: https://www.democraticaudit.com/2019/10/29/matters-of-consent-the-withdrawal-agreement-does-not-violate-the-good-friday-agreement/Blog homepage: https://www.democraticaudit.com/But,	if	one	thinks,	correctly,	that	the	proposed	arrangements	do	not	alter	the	sovereign	status	of	Northern	Ireland,then	the	question	is	whether	the	‘cross-community	consent’	procedures	set	out	in	the	Good	FridayAgreement	(Strand	One:	Safeguards),	and	incorporated	in	the	Northern	Ireland	(1998)	Act,	should	apply	to	thesearrangements.Contrary	to	what	Jonathan	Powell	suggests,	and	the	DUP	insists,	no	such	constitutional	or	legal	requirement	is	inorder.	That	is	because	the	functions	concerned	–	namely,	customs,	EU	single	market	regulation,	and	VAT	–	are	notNorthern	Ireland	Assembly	or	Executive	functions,	under	the	GFA,	or	the	NI	(1998)	Act,	or	the	treaty	between	theUK	and	Ireland	annexed	to	the	GFA.	Therefore,	as	a	matter	of	law,	in	the	absence	of	statutory	changes	in	UK	law,or	jointly	agreed	changes	to	the	GFA	and	the	treaty,	these	functions	are	not	subject	to	cross-community	consentprocedures.Customs,	EU	single	market	regulation,	and	VAT	are	‘reserved’	or	‘excepted’	matters	in	UK	constitutionalterminology,	and	therefore	the	Westminster	Parliament	may	legislate	in	these	domains	without	contravening	UKlaw,	the	GFA,	or	the	treaty	that	protects	it.Why	there	is	a	Revised	Protocol	for	Ireland	&	Northern	IrelandAs	most	people	understand,	the	proposed	future	management	of	customs,	single	market	regulation,	and	VAT	havebeen	negotiated	because	the	EU,	the	UK,	and	Ireland	seek	fully	to	preserve	key	features	of	the	Good	FridayAgreement.	The	most	obvious	of	these	is	the	assumption,	at	the	time	the	agreement	was	negotiated,	that	the	jointmembership	of	the	EU’s	customs	union	and	single	market	by	the	UK	and	Ireland	would	enable	a	‘border-less’Ireland.All	who	have	been	paying	attention	know	by	now	that	a	land	border	without	functioning	physical	infrastructure	didfollow	after	the	de-militarisation	of	Northern	Ireland.	That	could	not	have	happened	without	the	success	of	thepeace	process	wrapped	up	in	the	GFA	–	in	which	Jonathan	Powell	played	perhaps	the	most	significant	role	on	theBritish	side.Johnson	has	now	conceded,	through	the	frontstop,	that	he	must	protect	the	GFA	in	all	its	parts,	and	he	hasabandoned	his	previous	claim,	which	is	still	quoted	in	the	opening	of	each	episode	of	Ireland’s	most	famouspodcast	series,	‘Brexit	Republic’,	namely,	that	‘the	particular	problems	around	the	Irish	border	are	being	usedpolitically	to	frustrate	Brexit.’No	one	disagrees	that	Johnson	has	made	concessions,	and	performed	multiple	about-faces,	to	secure	the	UK’s	exitfrom	the	EU	with	a	withdrawal	agreement.	And	no	doubt	there	is	good	cause	to	suspect	each	of	his	maneuvers.	Butthe	new	arrangements	do	not	violate	the	GFA	–	at	least	not	yet.The	Sewel	Convention	–	a	veto	power?‘Consent’	may,	however,	be	thought	to	arise	in	one	other	sense:	if	the	EU	Withdrawal	Bill,	and	other	legislationimplementing	the	Withdrawal	Agreement,	were	to	change	the	powers	of	the	Northern	Ireland	Assembly	andExecutive.The	UK	Supreme	Court,	however,	has	unanimously	insisted	that	‘the	Sewel	convention’	that	Westminster	consultthe	devolved	legislatures	before	changing	their	powers	is	just	that	–	a	convention.	That	is,	no	veto	rights	are	held	byany	of	the	devolved	legislatures	over	Westminster	legislation	–	even	if	their	powers	are	modified.	That	isregrettable,	but	it	is	the	legal	status	quo.The	special	opt-out	for	Northern	IrelandDemocratic Audit: Matters of consent: the Withdrawal Agreement does not violate the Good Friday Agreement Page 2 of 5		Date originally posted: 2019-10-29Permalink: https://www.democraticaudit.com/2019/10/29/matters-of-consent-the-withdrawal-agreement-does-not-violate-the-good-friday-agreement/Blog homepage: https://www.democraticaudit.com/What	the	UK	and	Irish	governments	have	decided,	through	the	Withdrawal	Agreement,	is	to	allow	the	NorthernIreland	Assembly	to	opt-out	of	the	envisaged	changes,	after	four	years,	albeit	with	a	delayed	effect	of	a	further	twoyears.	The	UK	was	not	required	to	propose	this	idea	under	the	terms	of	the	GFA.	Indeed,	the	idea	of	providing	anyrole	for	the	Northern	Ireland	Assembly	was	initially	a	concession	to	the	DUP.	But	that	party,	it	should	not	beforgotten,	initially	sought	a	wholly	unacceptable	minority	veto,	one	with	no	foundation	in	the	GFA.	Indeed,	EUnegotiators	were	astonished	at	what	the	DUP	sought.The	DUP’s	unreasonablenessDespite	the	fact	that	Northern	Ireland	had	voted	decisively	in	favour	of	Remain		in	the	2016	referendum,	the	EU-27were	asked	to	accept	that	a	minority	in	a	regional	Assembly	–	one	that	had	not	been	functioning	since	February2017	–	should	have	the	right	to	decide	on	the	whole	Withdrawal	Agreement,	and	the	subsequent	maintenance	ofthe	‘frontstop’.	This	veto	was	demanded,	despite	the	fact	that	no	consent	from	the	Assembly	was	sought	(or	wouldhave	been	forthcoming)	to	the	entire	UK’s	exit	from	the	EU.	It	was	demanded	even	though	the	DUP	had	noobjections	on	‘consent’	grounds	when	the	UK	government	triggered	Article	50	of	the	Treaty	on	European	Union,against	the	preferences	of	a	majority	in	Northern	Ireland.The	EU,	the	UK,	and	Ireland	have	not	breached	the	GFA	in	order	to	save	it	–	what	the	DUP	is	in	effect	suggesting.Rather,	what	the	EU,	the	UK,	and	the	Irish	government	have	proposed	is	something	very	reasonable	and	balanced.They	have	agreed	that	the	Northern	Ireland	Assembly	should	have	the	right	to	opt-out	of	the	arrangement	in	thedraft	Protocol,	after	a	period	of	four	years’	experience	and	reflection,	by	simple	majority	resolution.	And,	by	cross-community	consent,	the	Assembly	may	agree	to	extend	the	arrangements	for	a	longer	interval,	eight	years.Should	the	Northern	Ireland	Assembly	be	functioning,	this	new	provision	gives	no	veto	to	unionists	ornationalists.	That	is	because	both	are	now	minorities.	Instead,	the	provision	gives	the	‘others’,	those	who	do	notregister	as	unionists	or	nationalists	in	the	Assembly,	a	pivotal	role	in	future	decisions	on	this	matter.	A	majority	toopt-out,	or	to	stay,	can	be	achieved	by	support	across	all	three	groups,	or	by	the	others	aligning	with	eithernationalists	or	unionists.	That	seems	reasonable	to	us.	And,	if	there	is	widespread,	i.e.	cross-community	consent	tocontinuing	the	new	arrangements,	then	they	can	be	extended	for	eight	years	–	very	helpful	planning	horizons	forproducers	and	consumers.Those	who	object	to	Johnson’s	draft	Withdrawal	Agreement	may	want	to	say	that	cross-communityconsent	should	be	required	for	changes	of	such	significance,	and	that	that	would	be	in	keeping	with	the	‘spirit’	of	theGFA,	if	not	its	precise	texts.	We	have	good	reason	to	think	that	is	how	Jonathan	Powell	wishes	to	be	understood.But	consistent	application	of	this	idea	would	rule	out	the	DUP’s	proposed	alternative	to	the	Withdrawal	Agreement,which	is	to	withdraw	the	UK	fully	from	the	EU	customs	union,	with	no	de	facto	participation	of	Northern	Ireland.	Thatidea	is	not	only	unacceptable	to	Irish	nationalists	in	Northern	Ireland,	but	to	a	majority	of	its	people,	and	businesses.The	DUP’s	self-entrapmentThe	DUP	is	impaled	on	logical	contradictions;	the	sole	consistency	in	its	positions	has	been	that	it	wants	a	veto.Lest	that	be	considered	uncharitable,	consider	the	following.	The	DUP	insists	on	cross-community	consent	forNorthern	Ireland	to	stay	(effectively)	within	the	EU’s	customs	union,	but	rejects	applying	the	same	idea	either	to	theUK	seceding	from	the	entirety	of	the	EU,	or	simply	from	its	customs	union.	It	should	be	easy	to	see	that,	bywhatever	measure	of	consent	one	chooses,	simple	majority,	or	cross-community,	the	DUP’s	stance	breaches	thespirit	of	the	GFA	more	than	anything	in	the	draft	Withdrawal	Agreement.The	easiest	way	to	address	the	aspirations	of	the	two	principal	communities	in	Northern	Ireland,	would	have	beenfor	the	UK	to	remain	within	the	European	Union.	It	still	is.	That	would	have	assured	Irish	nationalists	in	NorthernIreland	there	would	be	no	physical	border	between	them	and	Ireland,	and	unionists	that	there	would	be	noregulatory,	customs	or	fiscal	border	between	them	and	Great	Britain.	The	DUP	emphatically	rejected	that,	however,and	went	with	the	majority	in	England	and	Wales	against	the	majority	in	Northern	Ireland	and	Scotland.Democratic Audit: Matters of consent: the Withdrawal Agreement does not violate the Good Friday Agreement Page 3 of 5		Date originally posted: 2019-10-29Permalink: https://www.democraticaudit.com/2019/10/29/matters-of-consent-the-withdrawal-agreement-does-not-violate-the-good-friday-agreement/Blog homepage: https://www.democraticaudit.com/A	compromise	proposal	emerged	in	Theresa	May’s	‘backstop’,	which	would	have	kept	the	UK	as	a	whole	within	theEU	customs	union,	and	Northern	Ireland	in	regulatory	alignment	with	the	EU,	until	such	time	as	(magical)technologies	finessed	the	attendant	difficulties,	or	a	future	treaty	between	the	UK	and	the	EU	resolved	the	samedifficulties.	The	DUP	warmly	favoured	the	magical	technologies,	and	indeed	claimed	that	they	existed	already,	butotherwise	the	party	rejected	the	backstop	on	the	same	grounds	as	the	Conservative	‘Spartans’,	because	itpotentially	kept	the	UK	inside	the	backstop	sine	die.	Now,	of	course,	they	reject	technological	solutions	to	exitdeclarations	on	goods	going	from	Northern	Ireland	to	Great	Britain.Another	compromise	proposal	has	been	offered	by	the	Labour	party.	It	proposes	staying	in	the	EU’s	customs	union,or	the	equivalent,	and,	in	effect,	also	favours	substantial	alignment	with	the	Single	Market,	which	would	obviate	theneed	for	hard	borders	in	the	Irish	Sea	and	across	Ireland.	The	DUP	has	not,	so	far,	followed	this	option.What	the	DUP	did,	however,	to	the	astonishment	of	many,	was	to	accept	the	idea	of	two	hard	borders	–	aregulatory	border	between	Great	Britain	and	Northern	Ireland,	and	a	customs	border	across	Ireland.	This	bizarreidea	was	a	compromise,	for	the	DUP	with	the	Johnson	government,	but	manifestly	against	any	objectiveassessment	of	the	interests	of	Northern	Ireland,	and	it	would	have	been	bad	for	all.But	having	seen	the	DUP	move	on	the	location	of	one	border,	Johnson	knew	it	was	more	flexible	than	it	hadsuggested,	and	effectively	agreed	with	Ireland	and	the	EU	to	put	all	the	effective	borders	in	one	locus,	at	ports	andairports,	and	none	on	the	land	border	across	Ireland.	We	are	not	being	rude	when	we	point	out	that	this	final	movereturns	us	to	something	very	close	to	the	original	backstop,	which	the	DUP	rejected,	obliging	Theresa	May	todevise	another,	one	that	proved	to	be	her	undoing.The	DUP	has	therefore	made	its	own	predicaments.	Had	it	played	its	cards	differently	it	could,	today,	be	celebratinghow	it	negotiated	to	get	Northern	Ireland	the	best	of	both	worlds	–	the	best	of	the	EU	and	the	best	of	the	UK.Instead	it	finds	itself	outplayed,	claiming	imaginary	violations	of	an	agreement	which	it	had	sought	to	strangle	at	itsbirth	in	1998.	In	due	course	we	shall	see	what	its	voters	think.This	articles	gives	the	views	of	the	authors,	and	not	the	position	of	Democratic	Audit.	It	was	first	published	on	theLSE	British	Politics	and	Policy	blog.About	the	authorsNote:	The	authors	have	written	widely	on	the	Good	Friday	Agreement,	notably	in	their	The	Northern	IrelandConflict	(Oxford	University	Press:	2004).John	McGarry	is	Canada	Research	Chair	in	Nationalism	and	Democracy	at	Queen’sUniversity,	Canada.Brendan	O’Leary	is	Lauder	Professor	of	Political	Science	at	the	University	of	Pennsylvania,USA.	O’Leary’s	A	Treatise	on	Northern	Ireland	(Oxford	University	Press)	was	published	in2019,	and	reviewed	here.Similar	PostsThe	DUP’s	extremist	links	make	it	unfit	to	join	a	Conservative	allianceNorthern	Ireland	and	the	Withdrawal	AgreementGoverning	without	ministers:	Northern	Ireland	power-sharing	should	be	a	priority	for	the	UK	governmentBrexit	has	blown	open	the	unreconciled	divisions	in	Northern	IrelandAfter	the	2	March	election,	the	Northern	Ireland	settlement	needs	a	rethinkDemocratic Audit: Matters of consent: the Withdrawal Agreement does not violate the Good Friday Agreement Page 4 of 5		Date originally posted: 2019-10-29Permalink: https://www.democraticaudit.com/2019/10/29/matters-of-consent-the-withdrawal-agreement-does-not-violate-the-good-friday-agreement/Blog homepage: https://www.democraticaudit.com/Democratic Audit: Matters of consent: the Withdrawal Agreement does not violate the Good Friday Agreement Page 5 of 5		Date originally posted: 2019-10-29Permalink: https://www.democraticaudit.com/2019/10/29/matters-of-consent-the-withdrawal-agreement-does-not-violate-the-good-friday-agreement/Blog homepage: https://www.democraticaudit.com/

Matters of consent: the Withdrawal Agreement does not violate the Good Friday Agreement

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Matters of consent: the Withdrawal Agreement does not violate the Good Friday Agreement

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