Henry Hill

The hollowing out of the Belfast Agreement

The hollowing out of the Belfast Agreement
(Photo by iStock)
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There is a lot to unpack in Sir Keir Starmer’s suggestion that he would campaign for the Union in the event of a future border poll in Northern Ireland. It’s a welcome repudiation of decades of Labour policy, which has been to support Irish nationalism. Would-be members in the Province were directed to join the separatist ‘sister party’ the SDLP instead.

But just as interesting is the reaction of the many commentators who sallied out to suggest that the Labour leader had somehow breached the Belfast Agreement, the Anglo-Irish Agreement, the Downing Street Declaration or any other of the peace’s sacred texts.

According to the Irish nationalist interpretation, somewhere in these documents the United Kingdom made a commitment to be neutral about whether or not Northern Ireland remained part of our country.

We did no such thing. Sir John Major famously declared that the UK had no ‘selfish or strategic interest’ in Ulster, but all that means is that the mainland will not try to hold onto the Province for colonial reasons. The Downing Street Declaration does not preclude taking a patriotic interest in Ulster, something every unionist should do.

What the Belfast Agreement does commit the government to is the impartial exercise of sovereignty over the different communities of Northern Ireland. But nowhere does it stipulate that London must remain neutral on whether it ought to possess that sovereignty in the first place. That clause was about preventing the re-establishment of the ‘Protestant state’ that prevailed under the old parliament of Northern Ireland. Not neutrality on the Union itself.

Yet arguments to the contrary are just the latest in a long line of egregious revisionism that has been on full display throughout the post-Brexit negotiations over the Irish border.

This is most obvious in the way that the Belfast Agreement’s narrow and specific provisions for protecting certain north-south issues — handily summarised in the Annex to Strand Two of the treaty — have been allowed to metastasise into a commitment to an invisible economic border on the island of Ireland.

Such a commitment is nowhere in the text of the deal. Lord Trimble, the Nobel Prize-winning co-author of the treaty, has told us explicitly that this isn’t what he was signing up to. Yet Theresa May, and a hapless or culpable Northern Ireland Office, ended up getting memed into believing that an invisible land border was an obligation under the Belfast Agreement.

Likewise, the recent defeat of the unionist legal challenge to the Protocol also bears the whiff of a double standard. First, the special protections courts normally afford to 'constitutional statutes' such as the Act of Union were neatly sidestepped by the discovery that the Withdrawal Agreement legislation is also a 'constitutional statute'. This allowed the government to successfully argue that it had overridden its provisions protecting free trade within the UK while insisting they hadn't. This is problematic because this status is wholly an invention of the judiciary — it has never been endorsed by parliament and no definitive list of which laws qualify exists.

But more serious was the discovery that overturning a key provision of the Act of Union regarding free and equal trade didn’t breach the Belfast Agreement. Remember that the Belfast Agreement is supposed to protect Northern Ireland’s British status unless and until a referendum changes it. Yet Ulster’s constitutional position inside the UK has clearly changed. Why?

Because apparently the protections afforded to unionists in the Agreement extend only to the question of top-level sovereignty — that is, to whether or not Northern Ireland is formally part of the United Kingdom. Such an incredibly narrow reading may be defensible in its own terms. But not when set alongside the extraordinarily expansive approach taken to discovering nationalist entitlements in the same text. The overall impression is of a treaty woefully skewed towards one party.

We can already see how this might go badly wrong. The Loyalist Communities Council, which represents various pro-Union paramilitary organisations, has already withdrawn its support for the deal. If the Belfast Agreement’s defence of the UK continues to be hollowed out, it is not impossible to imagine mainstream unionists following suit — and being justified in so doing.

This is the problem with insisting on treating treaties as ‘living documents’. It is basically a mechanism for trying to smuggle into law things that have not been agreed and bludgeoning opponents into submission with appeals to sacred words even as the meaning of those words is continually changing.

Labour is proud of delivering the Belfast Agreement. But if they want it to endure, they as much as the Conservatives need to act to correct the impression that it is a one-sided pact intended merely to ease Ulster’s path out of the Union. Starmer’s commitment to campaign for the UK is a small, but extremely welcome, step in the right direction.