LIES AND CONSENT
As the antagonism over the protocol simmered among unionists in the North, and between the UK government and EU, various elements of civil society were deepening their engagement in discussions for a unity referendum and its possible consequences.
In October 2021, the ICTU, at its biennial conference in Belfast, unanimously supported a motion put forward by the Waterford Council of Trade Unions (WCTU) regarding the debate surrounding the timing and potential outcome of the referendums envisaged in the Belfast/GFA Agreement. As outlined in the agenda and list of motions for the event:
Conference is mindful of the unity of the trade union movement and the necessity of ensuring that the pursuit and maintenance of the rights, interests and concerns of workers are part of any such debate. In this context, conference mandates the Executive Council of Congress as the steering body of the largest civic body across the island, in liaison with affiliate unions and trade councils to identify the priorities of working people and their communities across the island of Ireland and to develop a policy on the referendums, consistent with the ‘No Going Back’ objectives.
The ICTU also passed a motion rejecting the plans of the British government to introduce a statute of limitations ‘that would not only stop current and future criminal prosecutions, for all troubles related crimes committed before the Good Friday Agreement but would also bar the police and Police Ombudsman from investigating them’. This would lead to the ‘ending of all other judicial activity and inquiry in relation to the legacy of the conflict, including civil cases and inquests’.
Seconding the motion by her union, Unison, Patricia McKeown was quoted in the Irish Times as saying that the plan was ‘about one thing and one thing only: impunity for the British government. They want impunity for their actions past, present and yet to come in relation to the conflict.’
The biennial conference, representing over 45 trade unions across the island, also passed a motion calling for the harmonisation of an all-island health service, free at the point of delivery, and for the two governments to fund a new university in Derry.
The women’s movement, which played such a central role in the successful campaigns for marriage equality and abortion rights, has also engaged with the growing debate on a unity referendum. In July 2021, the National Women’s Council (NWC) – which represents over 190 women’s organisations across the island – set up an all-island women’s forum. Funded partially by the Shared Island Unit, the forum invited women from communities on both sides of the border to join in discussion on the role of women in forging a new Ireland.
Orla O’Connor, Director of the NWC, explained that the forum is an organised effort to bring together women from both sides of the border to address the under-representation of women in North–South discussions on the future of the island and to further develop women’s role in peace building and civic society.
We thought the best place to start was to bring together women from the North and South to come together and identify the issues they want to talk about. It came from NWCI members highlighting in the course of consultations on our new strategic plan, ‘No Woman Left Behind’, the need for women to be part of the conversation about the future of Ireland and asking – where are women in those conversations and where are marginalised women? There was a real concern, for example, that so much of the discussion about the impact of Brexit was a very male discussion. Also, women are looking back to the Women’s Coalition and thinking there needs to be a similar focus on women now.
She said that the work on the Repeal the Eighth campaign, the solidarity shown by women in the North and the absence of women’s reproductive rights in the North brought women’s organisations closer together. In addition, the conversations on Brexit raised serious concerns on what will happen to women’s rights in the North and the impact of losing the protections of EU agreements and laws: ‘For example, there are implications for the future protection of women under the European Convention on Human Rights, which women felt could be lost for women in the North.’
O’Connor said those women at the forefront of campaigns for workers’ rights and in organisations confronting violence against women, or poverty in border areas, or for an all-Ireland health service, are among those influencing the debate within the NWC: ‘There is that sense of there’s all these conversations happening, North and South, but we are predominately hearing men on the media. It’s quite a male debate.’
The forum has met monthly since it was announced in July 2021. It has also held public webinars on topics including peace building, the experience of the Northern Ireland Women’s Coalition – a cross-community, all-female political party which ran from 1996 to 2006 – and its key role in the negotiation of the GFA, the impact of Covid-19 on women and the social media abuse directed at some women active in loyalist communities in the North.
Emma DeSouza, NWC Leadership Co-ordinator, and Ailbhe Smyth who, with O’Connor, played a key role in the successful campaign to repeal the eighth amendment on abortion, have important organising roles in the forum. Eileen Weir of the Shankill Women’s Council and Dr Joanna McMinn of Ulster University are also members, along with a range of other activists across the island. A key demand is for the inclusion of civic society in the debate on the future of Ireland, said O’Connor.
I think a citizens’ assembly is a really good idea. It has the potential to be an important space to both engage people and to have thorough and informed discussion on the future of the island. Our learning from our work is that we need to engage people in a discussion that advances equality and rights in the formation of a new Ireland. The Shared Island Unit has created an important space to facilitate conversations and there is a need now to take it to the next stage on how to address the issues that concern people North and South such as poverty, public services, equality and a new approach to peace building that includes civil society at its core.
Women’s and community organisations in the North have raised the extent of poverty for women in the North, the inadequate social protections and how the impact of Covid has made the economic situation worse for women and families. In the North, there was less protection for people from the impact of the pandemic as there were no wage subsidy payments. Poverty among women is continually raised as a core issue for women in the North.
Another challenge is for women who are dealing with all of the long-term impact of conflict and trauma within families, communities and society. It’s women who are and have been dealing with that and there needs to be more appropriate supports.
In addition, issues of migration, racism and discrimination are key issues of concern and the inclusion of marginalised women, including disabled women and Traveller women are regularly addressed in the forum discussions.
O’Connor described how many NWC members are concerned about the continuing role of the Church in education and healthcare, which is so important in discussions on a future Ireland. ‘There is definitely a huge concern and push in terms of separation of church and state,’ she said, ‘where NWC members want to see religion as being a private matter and not having a role in our public services, particularly our education and health systems.’
O’Connor argued that there is not enough talk about workers’ rights and women’s rights in the debate on the national question and suggested that the recent citizens assembly in the South on gender equality provided a useful roadmap on these issues:
If you look at what the citizens’ assembly on gender equality did, it gives a very clear roadmap for what you would do and a lot of that is about the need to invest and advance our public services. It’s about public childcare, universal healthcare, public housing and a really decent social protection system. In the North, there was a better infrastructure around public services including childcare than there was in the South. However, economic poverty is deeper in the North now than in the South as a result of austerity in the UK, where basic social welfare rates are lower.
At a public meeting of Ireland’s Future in the Mansion House, Dublin in early November 2021, the nature of a united Ireland was addressed by a panel which included FF TD Jim O’Callaghan, FG TD Neale Richmond and SF president Mary Lou McDonald. Also addressing the meeting was DCU professor John Doyle and Shaykh Dr Umar Al-Qadri, a leader of the Muslim community in Dublin and chair of the Irish Muslim Peace & Integration Council. Chaired by RTÉ journalist Audrey Carville, the meeting was attended by 300 people and watched by thousands more on YouTube as the speakers set out their stalls on the benefits of a future unified Ireland.
For his part, Doyle argued at the meeting that a cross-party Oireachtas committee should be tasked with preparing the ground for a referendum by setting out detailed proposals for what a united Ireland would look like. Similar to the cross-party committee that reached consensus and proposed the Sláintecare model for healthcare in 2017, Doyle proposed that it should hear from representatives of civil society, North and South, and from informed specialists across the range of issues, including health, education, the economy and constitutional change, before issuing its report.
Accepting that unionist politicians are unlikely to join the debate until, ‘after a referendum has passed’, Doyle said that it was disrespectful to their position, and to voters across the island, for government and politicians in the South not to advance details on the substance of the proposed new Ireland: ‘I think only an Oireachtas committee with membership of senior government politicians who can speak for their political parties, who have authority with the media, with the public, is the next big step we need to make in moving this forward,’ Doyle said.
During his speech at the event, Dr Umar Al-Qadri said that the Irish Muslim experience in the South ‘is one of the best, if not the best, in the whole of Europe. … In the six counties, however, the narrative is completely different.’
He cited a devastating arson attack on the Belfast Multi-Cultural Association (BMCA) in Belfast in January 2021, which the police described as a deliberate hate crime, as evidence of a deep racism evident among some communities in the North.
BMCA was not just a mosque or an Islamic centre. They ran a soup kitchen, they provided shelter to the homeless, they provided essential supports to the frontline workers and health service, they provided food parcels throughout the pandemic.
Al-Qadri asserted that despite having no historical or familial connection to the constitutional question in Ireland, black people, Muslims and other minority groups living in the North may well decide that partition is not working for them.
Recent polls have shown the nationalist and unionist split in voting is approximately 45 per cent each. The constitutional question … in all likelihood, will be decided by the 10 per cent who remain undecided. A large proportion of those are people that are new arrivals, migrants or people of colour.
May Lou McDonald in her speech agreed it was likely that ‘unionism won’t formally engage with this conversation until we have had a referendum’, but said it was critical that they are invited to participate:
I still believe it is critical that we invite that perspective and make it clear that nobody is handing down a new Ireland on tablets of stone. As the leader of Sinn Féin and the republican movement, I’m not doing that. I will lead, and we will lead, those of us who are republicans in delivering our perspective, our ideas and commanding and marshalling all of our energy to make this process succeed. But we are very, very well aware that it will take all of us to make this right. They say that it takes the village to raise the child. It takes the nation in all of our parts, in all of our diversity, whether we had grannies in the GPO, whether we had relatives in the H-Blocks, whether that’s not part of our experience and our people served and fought in the First or Second World War, all of that is in the mix but it’s not really the point. The point is that Ireland must advance and the question for us is what does that look like and what contribution do we make.
In McDonald’s view, the conversation should start with the health service:
We have the Bengoa process in the North, we have Sláintecare in the South: two platforms for radical change. The smart money would join those up; the smart money would work together for a single-tier, universal [health service] for all of our people across the island. …
The healthcare system should be absolutely free at the point of entry and whatever about there being a role for private health, what we really need to knuckle down on is what the state will sponsor.
McDonald argued that the challenges facing the health service in the North are replicated south of the border, including over-reliance on agency workers, in diagnostics and with capacity. For McDonald, the first priority is workforce planning:
However technically we will assemble our new health system, the one thing we know is we are not doing it without doctors, nurses, therapists, care workers, and the truth is, North and South, we are running up short. The conversation around healthcare has to include third-level institutions of education and we need to figure out how do we produce enough GPs to ensure we don’t endure the shortage we’re living with now; and how do we hold on to our nurses and midwives. I’m all for travel and broadening the mind, but we need to say to those workers, we need you here at home because we need to build this system. Let’s make room for the next generation to deliver the thing that we dream of.
McDonald agreed with the proposal for an all-party Oireachtas committee but also called for a citizens’ assembly in order to democratise the discussion on the nature of a united Ireland. She said there needs to be a government in place to prepare for change and drive preparation. She called on the British government to make clear what threshold is required for it to call a unity referendum.
During his talk, Jim O’Callaghan insisted that it is perfectly legitimate to pursue Irish reunification but also to oppose it. The real question to ask, he said, is ‘what is the benefit of Irish reunification?’ He argued:
The reason to vote for Irish reunification is because it would transform the island and it would create a new country in which there would be greater opportunities for people living in both jurisdictions. It would create a stronger country that would have much more influence throughout the world. It would create a country with a much bigger economy that would increase the standard of living for everybody on the island. It would create a country with a much more diverse population.
Brexit, he continued, was the reason the debate has moved up ‘a number of gears’ in the past five years:
I used to think Brexit was a political event that took place in 2016. It’s not, Brexit is a political ideology that demands constantly that there is tension between the British government and the European Union. At some stage it’s the protocol on Northern Ireland, at another stage it’s going to be fisheries policies, but this is going to continue endlessly. We need to recognise that the opportunity for everyone on this island lies on us ourselves developing and agreeing our own future.
He also agreed with other speakers that a citizens’ assembly was a potentially important tool in progressing the debate on the nature of the new Ireland, although he submitted that it would be premature to convene one immediately. He agreed that preparatory work should commence on constitutional change but that it was only one strand:
We also need a body of work done in terms of what the economy of a new Ireland would look like, what would the health service look like, what would the legal system look like, how would we approach climate change and also a recognition that just because we vote in favour of a united Ireland it doesn’t mean the irreconcilable differences and the grievances that exist in Northern Ireland are going to fade away immediately. We need a process of reconciliation to deal with that issue too.
Neale Richmond, in his speech, described his unionist background and how Brexit had reinforced his view that a united Ireland was not only essential but a way of healing divisions of the past:
The vast majority of my family living in Northern Ireland are unionists. I didn’t have a great-granny at the Easter Rising. I did have a couple of family members but I’m fairly sure they were shooting into the GPO rather than shooting out. But that doesn’t take away from my fundamental belief that an independent Irish state with a full membership of the European Union is something that we can and simply need to achieve. We need to achieve it, not just to fulfil historical aspirations but for our future generations to show a united and independent Ireland can and simply will be a better place than the two jurisdictions that we know on this island. When we look to build a united Ireland, we’re looking to build a new Ireland. A confident, mature state that can throw behind the divisions that separated so many of us in the past.
The Fine Gael TD said that the new Ireland should be:
a warm place, it’s a generous place, it’s not going to be a state that will all be about ‘Brits out’ … I fundamentally believe it is going to be a state that’s about Brits in: the 300,000 British citizens who live in this jurisdiction, and the near one million British citizens who live in the North. I don’t want anyone, of a unionist persuasion or other, to feel that they have to leave a united Ireland. Not just because it would make the dinner table at my family Christmas a lot smaller if they all left, but I want them to stay because this is their country as much as it is our country.
The ability to call a border poll is not in the gift of any of us, but the ability to state what the process will be, is. And that is the challenge for all of us who hold political office and everyone else to say this is what the process will be, this is how it will be inclusive and this is how we can achieve a better Ireland.
Neale stressed the urgency of preparation as what he described as this ‘untrustworthy’ British government could call a referendum at any time.
Later in the month, IF held another significant event in Belfast when they invited businesspeople from across the North to a lunch in the Crowne Plaza Hotel to listen to David McWilliams outline his views on developing the all-island economy. Among those in the audience from a unionist background was prominent hotelier, Bill Wolsey OBE, while Tina McKenzie, board member of the Federation of Small Business, Seamus Leheny of Logistic UK and Conal Henry chair of broadband provider, Fibrus, also attended. The CEO of Retail NI, Glynn Roberts, and CEO of Hospitality Ulster, Colin Neill, were present, along with politicians, journalists and sporting figures from North and South.
In mid-November 2021, as a round of negotiations over the protocol began between the EU and the British government – represented by Maroš Šefčovič and David Frost respectively – foreign minister, Simon Coveney, ruled out any compromise on the status of the ECJ in the discussions:
It is a black and white issue. Basically, what the EU is saying is that the European Court of Justice has to be the final arbiter on EU law and regulations.
Elements of the protocol rely on the implementation of EU law. I do not see how the EU can outsource the arbitration on EU rules and regulation to a court outside of the EU.
As he prepared to enter the talks, Šefčovič told the BBC’s Andrew Marr Show that the EU was doing everything possible to avoid the triggering of Article 16. ‘We are doing everything possible to avoid it because, of course,’ he said, ‘it will have serious consequences, first and foremost for the people in Northern Ireland, but also for the EU–UK relations.’
Days earlier, on 18 November, Coveney and Šefčovič participated in a discussion for the Brexit Institute at Dublin City University (DCU) where they outlined in detail the background to the protocol row and their objectives in the negotiations. Also participating was Brendan O’Leary whose paper for the discussion, ‘Three Great Lies amid the Perfidy over the Protocol’, was considerably less diplomatic than the approach of the two politicians. In the paper, O’Leary asserted that the 65 former colonies that celebrate independence from Great Britain know that ‘treaty breaking, threatening to break treaties and making treaties insincerely, are not novel British activities peculiar to Lord Frost, Brandon Lewis and Boris Johnson.’ He wrote:
The official UK lie, hardly a noble lie, is that Her Majesty’s government negotiated and intended to implement the protocol in good faith, and would have done so but for the EU’s ‘legal purism’ in its roll out. This ill-considered phrasing unintentionally implies that the UK specialises in legal impurity.
O’Leary recalled how, in 2020, British Tory MPs, including Steve Baker and Michael Gove, suggested voting for the Withdrawal Agreement ‘without reading it’ and on the basis that ‘we could change it later’. He continued:
This October [2021], Philip Rycroft, former Permanent Secretary at the Department for Exiting the EU (2017–2019), told the BBC’s World at One that, ‘The government knew absolutely what it was signing up to when it signed up to the Protocol.’ The government means the cabinet, its ministers, its senior civil service advisors, and its prime minister.
Turning to the role of the DUP, O’Leary suggested that by defeating Theresa May’s attempt to achieve a softer exit from the UK, the unionist party was seeking ‘to recreate a hard border on the island of Ireland’. He wrote:
They sought to make the EU’s future border with the UK coincident with the historic partition line. No other explanation makes sense of their conduct. They had a cover-story: tall and ever-changing tales of ‘alternative technologies’ with near-miraculous regulatory, customs, and VAT-assignment and collection capacities.
The DUP, he said, then supported the ousting of May by Boris Johnson who went on to:
use and abuse their switch of allegiance by agreeing the protocol with the then Taoiseach, Leo Varadkar, and with the EU … as the fastest route to accomplishing his allegedly ‘oven-ready’ Brexit. …
The DUP’s biggest lie has become the claim that the protocol violates the principle of consent embedded in the Good Friday Agreement of 1998 (which they never endorsed).
O’Leary recounted how, in October 2019, then DUP MP Nigel Dodds claimed that the protocol ‘drives a coach and horses through the Belfast Agreement by altering the cross-community consent mechanism,’ and that, ‘In a garbled reply, Johnson concluded, correctly, that the protocol “is fully compatible with the Good Friday Agreement,” but did not indicate how.’ O’Leary continued:
The law on these matters is clear. The consent principle in the Good Friday Agreement applies solely to the transfer of sovereignty over Northern Ireland. Whether Northern Ireland re-unifies with Ireland, or remains in the UK, is to be decided by the people of Northern Ireland in a referendum. A simple majority will suffice, as stated three times in the Good Friday Agreement.
If the protocol modified Northern Ireland’s constitutional status as part of the United Kingdom, then unionists would have a point. … The protocol does not put Northern Ireland outside the UK. Rather the UK’s sovereign parliament has decided to take Great Britain, not Northern Ireland, out of the EU’s single market, and out of its customs union, while leaving Northern Ireland within the single market’s regulations, and subject to the EU’s customs code for imports from Great Britain. The enacting legislation comes from Westminster. …
No constitutional, legal, or even conventional requirement of cross-community consent is required for the matters related to the protocol. That is because the functions addressed in the protocol – mostly customs, EU single market regulation, and VAT – are not Northern Assembly or Executive functions, under the GFA, or the Northern Ireland Act (1998), or the treaty annexed to the GFA. They are Westminster functions. …
The way the big lie about consent works rhetorically is simple. Unionist leaders assert that the 1998 arrangements give unionists a veto on any change in Northern Ireland’s political arrangements. Loyalists choose to believe this falsehood, judging by posters, wall-slogans, and the burning of buses.
Unionists do not even have a veto over Irish reunification. That veto rests with the people of Northern Ireland who are not identical with unionists, though that is the premise of much unionist and loyalist political rhetoric.