At the European Union leaders' first Brexit negotiations summit, the 27 leaders unanimously approved a declaration which stated that "the entire territory" of a united Ireland would be part of the EU in the event of a successful future referendum on unity, and that such a move would be "in accordance with international law". The declaration is designed to ensure that, if there is reunification of Ireland and Northern Ireland in the future, Northern Ireland would automatically rejoin the EU.
Some British politicians rushed to condemn this, accusing the EU of an “outrageous” attempt to threaten the future of the UK by using Northern Ireland as a Brexit bargaining chip. “STOP MEDDLING!” screamed the headlines in the Express and the Daily Mail.
Former Northern Ireland secretary Owen Paterson claimed the EU was interfering in issues that were "none of their business". Conservative MP Andrew Rosindell, chairman of the British-Irish Parliamentary Assembly, claimed: "This suggestion about a united Ireland is another ludicrous empty threat by an EU elite which still can't accept that they were rejected by British voters in the historic referendum."
Iain Duncan Smith, the former Conservative leader, said: "This is the European Union playing their usual games. They are attempting to bully the UK and threaten the union. This is a deliberate and outrageous attempt to meddle in the affairs of a nation state, just like they did in Gibraltar. . . It is a childish and ludicrous attempt to stir up trouble."
But Northern Ireland is the EU’s business, and these slurs are a gross mischaracterisation of the true position.
First, the declaration was no surprise. It simply reflects the 1998 Belfast Agreement – part of an existing international treaty between the UK and Ireland, registered with the United Nations – which states that Northern Ireland and the Republic have a right to unify if a majority agree north of the Border. This was not an issue to be freshly negotiated with the UK. Nor is this a novel measure: it is referred to as a GDR clause given the precedent of the arrangement which allowed East Germany to enter the European Community after the fall of the Berlin Wall.
EU partners
Second, the EU was critical to the success of the peace process. The agreement makes specific mention of the UK and Ireland being “friendly neighbours and partners in the European Union”, and membership of the EU was central to the negotiations. A superb report published in December by the EU committee of the House of Lords, Brexit: UK-Irish Relations, summarised the positive role played by the EU in relation to the peace process, including the safeguards that EU membership provides in underpinning the agreement and the positive impact of EU funding in Northern Ireland.
Several witnesses who gave evidence to the committee commented on the transformative effect common EU membership had on UK-Irish relations. According to John Bruton, the joint decision to join the EU had transformed the relationship from a "bilateral unequal relationship, which had all the difficulties that go with any bilateral unequal relationship, whether in a family, between states or between businesses" into an equal membership of something bigger than either of them.
Many witnesses emphasised that common EU membership helped to diminish cross-community tensions in Northern Ireland, and expressed concern that Brexit could have a destabilising effect. SDLP leader Colum Eastwood told the committee: "To take the common EU membership we had with the south of Ireland away has a tremendous destabilising effect on the Northern nationalist psyche . . . this shakes northern nationalism to the core."
Peter Sheridan said that whereas the Belfast Agreement had diminished “the tribal issue of identity”, Brexit threatened to resurrect it.
Practical issues
Third, while there is understandable focus on the ramifications for the peace process, and the totemic question of a hard Border, we must remember that Brexit could damage Northern Ireland in many other ways.
An estimated 23,000 people cross the Border for work every working day, and statistics on the numbers of people who cross the Border to access services are not available. Arrangements to use cross-Border childcare facilities are currently covered by the Treaty on European Union and the services directive.
The Northern Ireland Human Rights Commission has recently highlighted to a Westminster committee that it took a recent social security legal decision based on EU law to allow a lone parent on low-pay living in Northern Ireland to be able to use childcare facilities in the Republic and claim assistance within working tax credit. The implications of Brexit for the everyday rights of those living in the Border areas are far from clear and these practical issues must not be forgotten.
Fourth, Ireland is undoubtedly the EU member most at risk from Brexit, and the EU's Brexit chief negotiator, Michel Barnier, was quite right to reassure both houses of the Oireachtas that in the negotiations, "Ireland's interests will be the European Union's interests. We are in these negotiations together and a united EU will be there for Ireland." This is not meddling or game-playing or interference in the UK's internal affairs. This is the EU, quite rightly, supporting the Irish people and reflecting the international law commitments made by both the UK and Irish governments in 1998.
Caoilfhionn Gallagher QC is a barrister based in London