The road to influencing the Brexit future isn’t closed. But is Adams now detaching Brexit from the future of the Assembly?

Why are staunch defenders of the  GFA  not rejoicing since the UK Supreme Court found that  nothing about Northern Ireland’s removal from Europe breaches any law, treaty or part of the constitution and there will now be a UK parliament vote on article 50?  Newton Emerson puts the question in the Irish Times with his tongue firmly in his cheek.

Any failure to accept the finality of the judgements against them not only perpetuates a false impression of damage to the peace process but undermines the power of the courts to correct it…..

There was a demonstration of how dangerous this can be last Saturday, when Gerry Adams told a Sinn Féin conference that Brexit is a “hostile action” that will “destroy the Good Friday Agreement”.

His comments were not a one-off. They were echoed by Michelle O’Neill, Sinn Féin’s new Northern leader, on her appointment by Adams two days later. O’Neill added that Brexit contravenes the consent principle….

But writing the agreement’s epitaph was as irresponsible as it was groundless. Given the challenges ahead, political leaders should be assuring supporters that at least the legal basis of peace is not threatened. No single party owns the agreement – especially Sinn Fein.

 

But of course it was always about politics and only briefly and tactically about law. With the Assembly’s future at issue it’s over to Westminster  where Sinn Fein do not take their seats. However less transparently but arguably more importantly, it’s also over to the joint ministerial committee of UK and  ministers from the three devolved governments convened  to monitor Brexit developments. NI ministers  have a whole month to make their divided presence felt.   In the Belfast Telegraph, Prof Rick Wilford describes the machinery

 So, the focus is well and truly on our MPs (and peers) as Parliament plays out this high political drama. Apart from debates in the Commons and Lords, our MPs are enabled to scrutinise government proposals via Parliament’s extensive committee system, including the 21-strong ‘Exiting the EU’ Select Committee, on which both Mark Durkan and Sammy Wilson serve. As for Sinn Fein, its abstention from the UK Parliament means that it has to exert its influence by proxy, lobbying the Secretary of State, trusting that its voice will be heard, and pressuring the Irish government to act on behalf of NI’s interests, many of which, not least the vexed border question, are shared by Dublin. The inter-governmental forum in which our ministers, with the exception of the First and Deputy First Ministers, do have a voice on Brexit is the Joint Ministerial Committee (JMC) of the UK, which brings together the UK government and the devolved Executives. Although Stormont is now dissolved, the NI ministers remain in post until midnight on election day, March 2, and so can participate in any JMC meetings that are scheduled between now and then.

The Supreme Court rejected the notion that the Sewel Convention  legally requires Parliament to get consent from the devolved bodies before legislation is passed.  While it acknowledges that “the convention operates as a political constraint on the activity of the UK and therefore plays an important role in the operation of the UK constitution…  a convention is not a law and the courts do not enforce conventions”. Professor Rory O’Connell, the professor of human rights and constitutional law at the UU bridles at the ruling.

The Supreme Court approach is in many ways very traditional. This lends strength to its main ruling that the Government cannot trigger Article 50 without an Act of Parliament.

The traditional suggests that neither the process of devolution to Scotland, Wales and Northern Ireland, nor the adoption of unique constitutional arrangements in Northern Ireland, has changed how the courts decide constitutional questions.

This judgment, or rather and more importantly the Brexit vote itself, has exposed serious tensions between the traditional UK constitution and the constitutional settlement in Northern Ireland.

In the short and medium term, Northern Ireland political parties and civil society will have to develop political strategies to ensure that Northern Ireland’s interests are represented at all stages and levels as the Brexit process moves forward.

Boycotting the Assembly will hardly help.  Gerry Adams has been musing about it to the Irish Times. What is this?  As far as Sinn Fein is concerned, does the future of the Assembly now depend only on the outcome of the RHI inquiry?

“It’s a standalone issue which is above and beyond whatever programme we put together to proceed with . . . That has to be sorted. It’s in the process of being sorted now. It’s not subject to negotiation. Or anything else. It needs to be dealt with. The confidence needs to be restored. And then we’ll proceed.”

Adams rejected the idea that Sinn Féin seized the opportunity afforded by the cash for ash scheme to collapse the Executive because it suited its broader political purposes of responding to grassroots disenchantment with the DUP, managing the transition to the post-McGuinness era and reorienting its political strategy in both parts of the island. “No, that is the only reason why they were called. All the other issues which were the backcloth to this we could have dealt with.”

I’m blowed if I know what to make of this one. Meanwhile Enda has been tying himself in knots about an coalition with Sinn Fein which he wouldn’t be around to form anyway. I’m blowed if I know what that’s about too. Which one is the spider and which is the fly?   No doubt somebody will be eager to explain.

Brian Walker

Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London