Europe is leaving out a key Brexit negotiator: Ireland

This week counts as the worst week in British-Irish relations since Britain voted for Brexit last June. Any enduring prospect of a soft Brexit dissipated on Tuesday as Theresa May turned the pages of her speech. All illusions that the impact of the split on Ireland might be limited are now shattered. We must brace ourselves for Britain and Northern Ireland being outside the European Union, outside the single market and most likely outside the customs union.

We also need to acknowledge the difficult possibility of a physical Border reappearing across the island of Ireland.

This week’s events put the precarious and frustrating position in which Ireland now finds itself into sharp relief. The shape of our future relationship with our nearest neighbour, who is also our largest trading partner and with whom, after a terrible history, we have negotiated a delicate peace process, is slipping beyond our control. Our input in the renegotiation of that relationship will, as things stand, be extremely limited.

Theresa May has set out her opening position for talks in which her government will negotiate on the one side and European Union will sit on the other. Ireland will not be at the table. We will be in an anteroom trying to make our voice heard, among 26 other member states, on instructions to the European Union negotiators.

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We can, of course, seek to influence the British stance in the negotiations but our capacity to do that is also limited. The Irish Government was this week busy overselling our impact in that regard. The warm words May used about our relationship and the prominence she gave to concerns about preserving the common travel area with Ireland is touching, but vague and notional. The key priorities she set out suit Britain, and England in particular.

Parliamentary approval

Next Tuesday the British supreme court will give its Brexit judgements and shortly thereafter, probably after having to get parliamentary approval, the May government will lodge notification of its intention to leave the European Union under article 50 of the Lisbon Treaty.

Article 50 is often cited but its provisions are seldom spelt out. It provides that once a member state has notified its intention to leave then, “In the light of the guidelines provided by the European Council, the union shall negotiate and conclude an agreement with that state, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the union.”

The provisions appear to give the European Council a free hand on the framework for those negotiations. The process currently proposed whereby a council appointed negotiator, Michel Barnier, negotiates with Britain on behalf of all the rest of us is fundamentally flawed. It is inadequate to address the scale of negotiating challenge involved and the political and institutional realities within which these will occur. It's 20th century diplomacy for an unprecedented 21st century challenge.

It is striking that there is no express provision in article 50 allowing for the countries actually bordering the exiting member state to be directly involved in the negotiations but there is no impediment to it either.

In 1995, the British-Irish framework documents set out the approach to the negotiations, which ultimately gave rise to the Belfast Agreement. They provided for a four-pillar structure within which a myriad of issues would be discussed: strand one within Northern Ireland, strand two between North and South, strand three between Britain and Ireland and a fourth strand dealing with constitutional issues. It was also a basic principle of the framework for those talks that nothing could be finally agreed in one of the strands until everything was effectively agreed in all strands.

Legal impediment

There is no legal impediment to Britain’s exit from the European Union being similarly negotiated in various strands and every political reason why it should. While article 50 provides that ultimately the European Council, with the consent of the European Parliament, will approve the final agreement by qualified majority, it leaves it to the council to set out the framework of the negotiations.

It is simply not adequate or appropriate that Ireland, when seeking to protect its position on something as important as Brexit, is asked to rely on its legendary diplomatic skills and the fondness other member states hold for our ways. Like May, Barnier and key voices in the European Parliament have been saying nice things about how our concerns should feature prominently in the negotiations. These fine words are no substitute for direct engagement by Ireland on its own behalf in these negotiations.

Throughout the Brexit negotiations there should be a separate strand focusing on the specific concerns which arise for Ireland and Northern Ireland. This strand should involve Irish Government representatives, British government representatives, input from Northern Ireland and representatives of Barnier’s negotiating team. Putting this into the framework for Brexit negotiations from the start is a political decision for the European Council. It should be Ireland’s first ask.