Fintan O’Toole has a piece in the Guardian in which, after railing justifiably against how the British government ignored the concerns of Ireland over Brexit, he offers a glimmer of hope:
Before the war of words escalates and positions petrify into irreconcilability, Ireland should make an urgent and coherent effort to plead the virtues of equivocation. If nothing else, Ireland helping England out of a hole would be a historical irony worth savouring.
Here O’Toole is talking of the way in which the Good Friday Agreement was negotiated and worded in such a way as to allow both sides to interpret what they wanted from it. The same, he suggests, could happen over Brexit, though he does not provide detail.
Let me try to provide a little bit of that detail.
A creative solution, were there political will on both sides (and this may still emerge as economies start to tank), might come through a combination of a) the Good Friday agreement Strand II (para 17) on agreement on the powers of the North/South ministerial council; and b) Clause 355 para 3 of the Treaty on the Functioning of the European Union (which by virtue of the currently extant European Communities Act 1972) is automatically part of UK law.
Stand II para 17 of the GF agreement commits to
The [North-South ministerial] Council to consider the European Union dimension of relevant matters, including the implementation of EU policies and programmes and proposals under consideration in the EU framework. Arrangements to be made to ensure that the views of the Council are taken into account and represented appropriately at relevant EU meetings
TFEU 335/3 in turn states:
The provisions of the [EU] Treaties shall apply to the European territories for whose external relations a Member State is responsible.
While the TFEU agreement is aimed at small colonial dependencies like Guadeloupe, it is not beyond conception that with all sides willing, the N/S ministerial council could arrange for these specific “external relations” to go over fully to the Republic, in way which allows Northern Ireland to remain effectively within the EU.
It is a step further to think that this might act as legal precedent for, let us say, Scotland to argue it should do the same, though in England the availability of the Sustainable Communities Act 200/2010 might be utilized to some effect by large local authority areas
The important point here, though, is that Fintan O’Toole is right to hold out hope for, and interest in, unorthodox solutions to the elite-imposed fix we find ourselves, if we can nudge their elite successors towards a route in which their own self-preservation as elites might soon interest them.