Post Segments
In recent weeks we have seen the publication of three important reports, from the Prosperity Institute, the Policy Exchange and yesterday Lord Wolson, demonstrating that it would be possible for the UK to leave the ECHR while remaining compliant with the Belfast Good Friday Agreement (BGFA). The underlying premise of these reports has been that the Agreement is sacrosanct and that it is consequently necessary to go to considerable lengths to explain why leaving the ECHR would not violate the BGFA.
While the reports have been well argued and I have no issue with them, I have struggled somewhat with the underlying premise that the Belfast Good Friday Agreement is sacrosanct such that its violation is obviously unthinkable.
The extraordinary thing about the Windsor Framework is that while the EU and UK Government have said repeatedly that its purpose is to protect the Belfast Good Friday Agreement, it is in fact violating the Agreement on multiple bases every day. This is an ‘Elephant in the Room’ whose presence has far-reaching consequences which must be acknowledged.
In this article I want to briefly consider three examples of the violation of the Agreement (I have examined these and others elsewhere in much more detail) and reflect on their ECHR and wider implications:
First, while domestic law only protects Northern Ireland from one change in constitutional status, the complete removal of Northern Ireland from the UK and into the Republic of Ireland, the Belfast Good Friday Agreement protects Northern Ireland from ‘any change’ in the constitutional status of Northern Ireland that moves NI away from the rest of the UK, save with the consent of the majority of the people of Northern Ireland. The Windsor Framework changes the constitutional status of Northern Ireland on multiple fronts including, for example, making the rest of the UK a ‘third country’, that is a foreign country, in relation to Northern Ireland in matters of trade, and rendering the province a partial rather than a full democracy. We can no longer stand for election to make the laws to which we are subject in a staggering 300 areas because these are now made for us by a foreign parliament. And this change was made in such a way that Northern Ireland no longer meets the definition for being part of a self-governing country in international law under UN Resolutions 567, 648 and 742. There was, however, no prior referendum to ensure these changes in the constitutional status of Northern Ireland were supported by the majority of the people of Northern Ireland.
Second, the Windsor Framework violates the requirement in the BGFA that Stormont votes must have access to ‘cross community consent’ if either community feels that a proposal constitutes an existential threat to itself. (This means that a proposition can only pass if it enjoys the support of a majority of both communities). Amazingly the Framework imposed the first majoritarian vote at Stormont in over fifty years and on a matter of huge controversy: that for four years Northern Ireland be subject to a foreign legislature in which it is not represented, but wherein the Republic of Ireland is represented, for the purpose of generating legislation in 300 areas of law the most immediate effect of which would be to relocate it in an all-Ireland internal market for goods. Moreover, one would be asked to vote for this arrangement knowing that the all-Ireland internal market for goods would be protected by the imposition of an international customs and SPS border, with Border Control Posts, dividing NI from the rest of the UK. This was in December 2024 (and will be every subsequent four years) the most controversial proposition to come to Stormont, not just since 1972, but since the creation of Northern Ireland in 1921.
Finally, the Windsor Framework violates the Belfast Agreement obligation to protect the rights of the people of Northern Ireland ‘to pursue democratically national and political aspirations.’ The purpose of the agreement was supposed to be to encourage people who had previously been drawn into terrorism to commit to exclusively democratic means going forward in the context of which it was the mission of the agreement to dignify and celebrate the ballot box. The right to ‘pursue democratically national and political aspirations’ can only be upheld in a meaningful way if it is upheld from the level of its enjoyment when conferred in 1998/9, at which point the people of Northern Ireland had the right to ‘pursue democratically national and political aspirations’ in relation to all the laws to which they were subject. The operation of the Windsor Framework is affecting a full-frontal assault on that right, subjecting it to a dramatic truncation which means that we can no longer ‘pursue democratically national and political aspirations’ not just in relation to one law or 300 laws but 300 areas of law. Rather than affording special respect and dignity to the ballot box, Northern Ireland has become the place where, uniquely in the British Isles, it has been devalued as significant aspects of our lives have been placed beyond the ballot box. This right to ‘pursue democratically national and political aspirations’ has been violated to the point that this supposed additional democratic protection has been made an absurdity by the operation of the Windsor Framework.
The implications of these changes are far reaching.
In June the former Taoiseach, Leo Varadkar, came to Belfast to speak about his campaign to take Northern Ireland out of the UK and place it in the Republic. He talked about the critical role to be played by the Belfast Agreement’s border poll in securing this objective, stating that the ‘50 plus one’ threshold was sufficient but that he wanted a bigger majority. Then in September Sinn Fein said that there should be a border poll by 2030 and on Saturday the SDLP called for the creation of a dedicated Republic of Ireland ministry to prepare for a border poll.
There has, however, been something rather surreal about these border poll discussions because they have proceeded as if nothing has changed, and the Belfast Agreement’s border poll mechanism remains as it did before the Irish Sea border, but this is by no means the case.
To the extent that the border poll provision could claim credibility this was because it could be argued that it honoured the BGFA principle of ‘parity of esteem’, treating unionists and nationalists equally. This is set out in the Agreement as both a need to exercise: ‘rigorous impartiality on behalf of all the people in the diversity of their identities and traditions’ and to ensure that governance must be ‘founded on the principles of full respect for, and equality of, civil, political, social and cultural rights, of freedom from discrimination for all citizens, and of parity of esteem and of just and equal treatment for the identity, ethos, and aspirations of both communities.’
Until 1 January 2021 the border poll mechanism rose to the above challenge, offering unionists the opportunity of voting for full citizenship in Northern Ireland in the UK, and therein the right to stand for election to make all the laws to which they were subject, and nationalists the opportunity of voting for full citizenship in Northern Ireland in the Republic, and therein the right to stand for election to make all the laws to which they are subject. However, the Windsor Framework has effectively reconstituted the border poll, removing its parity of esteem with all that this means for its credibility and legitimacy. Henceforth, while nationalists are deemed worthy of the right to vote for full citizenship in Northern Ireland in the Republic, unionists can only vote for partial citizenship in Northern Ireland in the UK.
It is hard to overstate the importance of this development.
The point is not that the in their fervour for the Irish Sea border nationalists have lost sight of the importance of protecting the integrity of the border poll mechanism, such that the union is now safe. Every day the union is undermined as Northern Ireland is gathered up in ever growing quantities of imposed legislation whose purpose it is to progressively decouple Northern Ireland from the UK Internal Market for Goods, the economic foundation for the UK, and place it in an all-Ireland Internal Market for Goods. No one wanting to make the best possible case for Northern Ireland to remain in the UK can afford to acquiesce in such a process, especially as it is not just subversive of a UK economy but UK citizenship. This would involve settling for the progressive undermining of our citizenship even if there never was a border poll.
Rather the point is to recognise that it is no longer possible to talk about border polls as we did in the past. This is what happens when one entertains demands to circumnavigate the fullness of the border poll so that significant portions of citizenship are lost ahead of any poll and in terms that can only be regained if one votes for Northern Ireland to leave the UK.
This is something that strangely neither the EU nor the UK Government seems to have thought about.
None of this is to suggest that the provision of robust argumentation as to why departure from the ECHR would not violate the BGFA is unnecessary, but there is a need to recognise that the BGFA has already been placed in jeopardy by the operation of the Windsor Framework.
In this context, the only way forward is to recognise that a terrible mistake has been made and to replace the Irish Sea Border mechanism in the Windsor Framework with Mutual Enforcement.
This would provide a way of protecting the integrity of both the EU and the UK Single Markets for goods, without imposing a hard border across the island of Ireland and while respecting and protecting the Belfast Agreement.
Dr Dan Boucher
