Northern Ireland election could become re-run of the EU referendum
An election here would inevitably delay Theresa May's plans to trigger Article 50 by the end of March, writes Ciaran McGonagle
As Martin McGuinness tendered his resignation as Deputy First Minister last Monday afternoon, one might have been forgiven for assuming that the looming election campaign would be litigated predominately on the basis of the First Minister's alleged fiscal negligence.
However, that would be to dismiss the very real possibility that any election might instead more closely resemble a vote of confidence in Theresa May's Brexit strategy.
Most immediately, the prospect of Assembly elections in the coming weeks has interesting implications for the Prime Minister's plan to trigger Article 50 by the end of March.
While Theresa May may not have anticipated the ensuing legal battles from interested parties across the political and geographical spectrum, High Court defeat nor the subsequent Supreme Court appeal, the government's ill-advised decision to so vigorously defend its right to the use of prerogative powers in unilaterally determining when Article 50 should be triggered, in addition to the setting of a seemingly arbitrary hard deadline for doing so, increasingly appears to have been a strategic error.
While the Supreme Court continues to deliberate over the relative merits of the arguments put before it during December's hearing, a determination that the Assembly must be consulted by the government prior to triggering Article 50 would, at the very least, render the end of March deadline virtually impossible.
In all likelihood, such a finding would delay the government's plans - irrespective of the current crisis engulfing the Northern Irish political landscape. However, the prospect of an election presents an interesting dynamic not entirely dissimilar to that which we have witnessed in recent parliamentary by-elections in Whitney and Richmond Park.
In Richmond Park, in particular, as the incumbent MP, Zac Goldsmith, discovered to his cost, attempting to frame the debate in your own narrow terms often proves impossible when caught up in the maelstrom of what Harold MacMillan once described as "events".
The by-election campaign in Richmond commenced ostensibly as a protest vehicle against the approval of a third runway at Heathrow. However, his closest challenger, the Liberal Democrat candidate, had long held the same view, which quickly rendered this particular debate pointless.
Recognising as much, the Liberal Democrats quickly seized upon the passions aroused locally by Brexit as a key differentiator between the candidates. Goldsmith quickly lost control of the narrative. Unable to respond, the ex-Conservative could not withstand a swing against him of almost 25,000 votes and suffered a crushing loss.
For Richmond Park, now read Northern Ireland.
While the circumstances giving rise to the election will likely dominate initial proceedings, the First Minister's statement last Monday evening is, perhaps, indicative of the DUP's strategy to pivot from this specific issue toward broader, more traditional unionist themes. Further statements, or pledges, aimed at neutralising the fall-out from "cash for ash" will no doubt be forthcoming, after which it is hard to imagine any party wishing to dwell too long on a scandal which might raise awkward questions concerning their own economic and fiscal competence.
Might this vacuum be filled by concerns surrounding Brexit? As I have written for this paper previously, the impact of Brexit, relative to the remainder of the UK, is likely to disproportionately affect Northern Ireland. From a purely constitutional perspective, the Good Friday Agreement was drafted and agreed on the basis of continuing membership of the European Union.
As such, withdrawal from the EU would tend to undermine not only the Northern Irish political framework, but perhaps even the basis upon which many of the rights and obligations created by that document are conferred upon the institutions and people of Northern Ireland.
More tangibly, the likely imposition of passport, or customs, controls along the Irish border, any material reduction in sectoral subsidies, the likely departure from the European Union's commons standard and regulatory framework, and the possibility of the imposition of tariffs lend themselves to an inescapable conclusion: any form of "hard" Brexit is likely to be a bad Brexit for Northern Ireland.
An election will give parties across the spectrum an opportunity to reopen the Brexit debate. They will be speaking to a captive audience and one which was largely supportive of staying in the European Union.
Again, the analogies with Richmond Park, which voted in favour of Remain, are interesting. Characterising the election as a proxy referendum on the government's Brexit strategy is likely to prove a fruitful endeavour, particularly for the SDLP, Alliance and independents.
Might we see the same kind of swings against pro-Brexit candidates that we have seen in England? If so, what does the Prime Minister do when faced with a new Assembly comprised of a substantial body of MLAs who have campaigned and won upon an anti-Brexit platform; MLAs who could now, irrespective of the Supreme Court decision, plausibly claim to have a refreshed and incontrovertible mandate to oppose Brexit?
How does the Prime Minister then politically, perhaps even morally, impose a hard Brexit upon a recalcitrant electorate who, when provided with time to reflect and finding no new money for the health service, no replacement of crucial agricultural subsidies, no guarantee of continued single market membership and the likely re-imposition of border controls, firmly and unequivocally rejected the entire proposition?
At Prime Minister's Questions last Wednesday, Theresa May, in response to a question from the SNP's Angus Robertson, seemed to suggest that a solution could be found. By liaising with the residual executive functions which will remain in place during the pre-electoral purdah period, May claimed that any requirement to consult the Northern Ireland Assembly on Brexit might be satisfied.
Some have even suggested that the re-imposition of Home Rule would allow the government to effectively rubber-stamp their own strategy on behalf of the people of Northern Ireland.
Either option would likely prove politically toxic and lend further credence to the increasingly widely held view that the government pays little regard to the concerns of Northern Ireland.
And so we wait for the judgment of the Supreme Court and, absent a last-minute volte-face from Sinn Fein by 5pm today, the upcoming Assembly elections.
That the Prime Minister may find herself knocked off course by either is a predicament entirely of her own making.
Stumbling into one constitutional crisis of your own making might be considered unfortunate; two seems like carelessness.
Ciaran McGonagle is a London- based financial services lawyer and commentator. He blogs at www.ciaranmcgonagle.com