By Colin Harvey
There remains something odd about the Brexit discussion on this island.
Continuing membership of the UK rests on the principle of consent. That is reflected in British and Irish domestic law and international law. It is supposed to be one of the fundamental pillars of the peace process. This was conceived as a debate about Irish unity or remaining in the UK; Brexit has now transformed the conversation into one that includes a viable way back to the EU. As the EU has confirmed, return will be automatic. The mechanism for testing the principle of consent is underpinned by law, agreed by both governments and was democratically endorsed on 22 May 1998. For those who cherish the equally legitimate constitutional goal of Irish unity this was always going to be the preferred solution to some, not all, of the Brexit-related problems faced by this island. As British politics fractures further, with little regard for people here, the calls to facilitate this choice are only likely to intensify. In the context of possible return, any form of Brexit will always be second best.
Scorn was directed at those who highlighted this early on. As the debate has steadily moved centre stage, outright rejection is now less common. The irritation has weakened but not vanished. The tactical focus in Ireland moved to mitigating the practical impact of Brexit, with energy directed to bundling the region out of the EU, but now in the least damaging way possible to the island. The ‘backstop’ became an insurance policy and a bridge to a future relationship that would be close enough to meet what seemed like agreed EU-UK objectives. Much careful and skilful work has gone in to building a broad and deep coalition in defence of the ‘backstop’ and what its provisions represent (with the boring, technical elements talked up and constitutional dimensions only permitted mention or inclusion if this served to assuage unionist anxieties). The effort is impressive as a rational and tactically astute attempt to safeguard this society from the consequences of Brexit. It continues to garner huge support, although there has been less success with unionist parties. Let there be no doubt: this is still about taking this region out of the EU without its consent (but with the benefit of a protective agreement); the second-best outcome. That is smart, of course. Especially given the alternative of a no-deal mess. Again, however, it is about getting the region out of the EU on reasonably decent terms. The wilful disregard for public opinion here should not lose its capacity to shock, however fervent the continuing efforts to retain the ‘backstop’. Most people here do not want to leave. If they are forced down this path, they want the negotiated guarantees in place. But what if there was a way back?
What is remarkable is that an option anchored in the Good Friday Agreement – that would give people in this region the chance of returning to the EU – is still strangely neglected. There are notable and courageous political and civic exceptions, and there has been much public comment, but this often feels sceptical, tentative and frequently hints at danger ahead. In a context where the will of a majority here is clear that seems like contempt for a concept that is intended to be at the constitutional heart of the Agreement.
There is much to commend in the response to Brexit on this island, and the levels of European and international solidarity it has generated. It is a great credit to all involved, and it is, of course, vital that the robust defence of the ‘backstop’ continues. However, Ireland has also witnessed a form of state-sponsored constitutional avoidance. The forces of separation and segregation on this island look to have prevailed yet again; there is no such thing as an acceptable Brexit. The damage will be significant and consent will remain absent. The risk is that the opportunity to offer people here a viable ‘remain/return’ option will now be squandered. The intense debate on timing, planning and preparation is well known and care is required but a start can and should be made now so that this island is ready for the constitutional choice of leaving the UK when it comes.
Every day that passes it is plain that people in this region must be offered the democratic option of determining their own constitutional fate: a future together within the EU or remaining in an increasingly disunited kingdom?
There is an agreed, viable and credible way for this region to return to the EU. Why are so many on this island still so afraid of endorsing this way forward?