Robert McCartney QC: To Leave or not to Leave, that is the question
With just 27 days left until the UK exits the EU, Robert McCartney QC cuts through the smoke and mirrors to establish just how we got here
At the very heart of the Brexit debate lie two essential principles of national government: the sovereignty of the state and the state's economic welfare. It is the conflict between them and the attempts to resolve it that constitutes the fundamental cause of the present impasse between the United Kingdom of Great Britain and Northern Ireland, and the European Union.
Sovereignty of a state has been defined as "that area of conduct in which a state is autonomous and is not subject to control by any other state". If a government, therefore, surrenders to any other state or agency effective control over any of the essential functions of government, its sovereignty is diluted, for its legal control is diminished by placing factual power in the hands of that other state.
It is by the application of these principles and their definition that the pro-Union people of Northern Ireland are placed in their greatest constitutional danger.
British central government, in order to deal with republican terrorism and avoid the threat to mainland Britain, has been cavalier with its claims to exercise sovereignty over Northern Ireland. The Anglo-Irish Agreement of 1985 and the 1998 Belfast Agreement are prime examples of this betrayal. Both granted to the Irish Republic areas of effective power over economic, social and cultural issues. The United Kingdom, on entry to the European Economic Community, also agreed for allegedly economic benefits to accept a diminution of its sovereign powers over, for example, national fishing rights. In the early Brexit debates, sovereignty was a major theme of the Leave campaign with its mantra 'Take back control'.
For many years, unionist politicians have rightfully suspected that central government's interests, whether of security or economy, would always top its view of sovereignty in Northern Ireland. In fact, their influence over any diminution of the strength of the Union was limited. In the present situation, parliamentary numbers have made such influence much more extensive.
Some political analysts are of the opinion that if Theresa May had not been dependent on the DUP's support, an agreed backstop and all would have occurred.
If the backstop had been agreed then the rest of the United Kingdom would have left the EU, but Northern Ireland would have remained under the control of the EU on indefinite terms; the borderless "island of Ireland" desired by Taoiseach Leo Varadkar under the control of the EU would have placed Northern Ireland symbolically and practically under a similar power and distinct from the rest of the UK, which would have exited the EU.
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At an early stage, when the sovereignty issue had not been pushed aside by the economic fears engendered by the Remain lobbyists in Parliament, the media and big business, Mrs May had declared in Parliament that any measure such as the backstop which weakened the Union was unacceptable. Gradually, however, this stance was worn down by the EU's support for Mr Varadkar's position and his increasingly verbal republicanism, fuelled no doubt by the Sinn Fein electoral threat to his coalition government and the need to burnish his unity credentials.
In negotiating terms, Mrs May's performance had been lamentable. Aware of her desire for a deal at almost any cost and of the divisions in her party, the EU simply sat on its hands while her terms crumbled and the EU's position in the face of her weakness became ever more inflexible.
On Boris's election as leader of the party amid the rising electoral threat of the Brexit Party, he was forced to demonstrate a more strong and decisive role on Brexit. He stated that he would not apply for any extension beyond October 31 and Britain would leave on that date with or without a deal, though he was desirous of obtaining one.
His objectives were to unite the Leave vote behind him and to paint the Remainers' real objectives as not a deal, but to prevent Brexit from happening at all, thereby frustrating the result of the referendum.
In presenting the EU with proposals supported by the DUP, directed towards removing the backstop that had no time limit and replacing it with conferred powers on the NI Assembly to monitor its continuance, and the concessions that Northern Ireland would remain under EU regulations, he was anticipating to some degree the EU's refusal. Such a refusal would put the blame on the EU and pave the way for an inevitable election. Such an outcome, he hopes, will give him a workable majority in Parliament.
It is likely in such an election that he will develop the theme of the people and democracy against the elitist establishment that is hell-bent on frustrating the democratic will expressed in the referendum. Boris, who has written a biography of Churchill, likes to think that he has some similarities with that great man. In 1938, Neville Chamberlain pursued a policy of appeasing Hitler, which was largely endorsed by the elite aristocratic and big business establishment who adopted a policy of fear in the prospect of a war where "the bomber would always get through". In a similar way, the EU is engendering fear by suggesting that a hard border will cause a recommencement of the IRA terror campaign, a suggestion encouraged by utterances from Mr Varadkar and the showing on RTE of bombed customs posts in the early 1970s.
The real danger to the present stability of Northern Ireland is the reaction of the unionist majority to the threat of Britain abandoning them to the control of the EU linked with the Republic, while the rest of Britain exits.
While for the present the EU has shown little enthusiasm for the PM's proposals and the probability is that they will be rejected, the possibility remains that Angela Merkel will use her influence on the European Commission to persuade an immediate start to detailed negotiations with the aim of presenting any agreement to the Council of Ministers for ratification. On the parliamentary front it is just possible that, with the support of the DUP and the ERG, any deal obtained might be approved.
Boris, however, has some immediate problems. The Benn Cooper Act compels him to request an extension beyond October 31 and his refusal to do so may be unlawful. Remainers are already applying to the courts in England and Scotland for him to declare his intentions. Ultimately, only an election will resolve an issue which increasingly looks like a contest between the people's desire for an end to uncertainty and Parliament's intention to prolong it.
As the Brexit debate has continued in ever more complex terms, some of the major issues like sovereignty and unlimited immigration have been overwhelmed by the alleged benefits of remaining in Europe and the dire consequences economically of leaving.
The rise of multinational corporations, the economics of scale, and global markets all dedicated to commercial effectiveness and profit have brought commerce and industry into conflict with other principles and values considered equally if not more important by the great majority of ordinary people within the electorate.
These principles and values are such that elected representatives ought to be concerned with, such as political allegiance, cultural identity and the basic principles of elective democracy. For an elite establishment of liberal politicians and captains of major industries, to say nothing of the media, to regard those who democratically voted in a referendum, offered by Parliament, to leave the EU as uneducated, politically ignorant pond life does not make for social peace or stable government.
Robert McCartney QC is a barrister, former Member of Parliament and former leader of the UK Unionist Party