Brendan Howlin (Wexford, Labour) | Oireachtas source

It is worth putting on the record that the commentary down here which says that an election will change nothing in the North is misguided. It is true that an election that does not deliver political change and puts the same crowd back is unlikely to change much, but as is the case with elections in every jurisdiction, change is always an option for voters. We should not take the people for granted. A change in government will always lead to other changes – for good or for ill. The parties in the North will obviously campaign night and day over the coming weeks and for my part, I have made clear my party's determination to support the SDLP in the campaign.

Despite that, and despite the clear possibility of change that exists if people vote in a certain way, there is at least a possibility that it will not be immediately possible to form a cross-community coalition in the aftermath of the coming election. Such an outcome would leave us facing, once again, the prospect of direct rule from Westminster, this time in the midst of the Brexit debate - the most crucial and critical time for the peoples of this island, North and South. This morning, Theresa May made abundantly clear that her Brexit will be a hard Brexit. Talk of staying within the Single Market is dead in the water and a British exist from the European Union customs union also seems inevitable. No assurances about avoiding a return of the borders of the past can be in any way reassuring in that context and reality. As Denis Staunton noted this morning, even along the border between Norway and Sweden, one of the most technologically advanced and co-operatively managed borders, goods must be cleared for customs and lorries are checked as they cross from one country into another. Such an arrangement would amount to a hard border, no matter how one describes it and would constitute a significant change from the current situation.

We now know that cutting taxes and diminishing workplace standards and workers' rights will be the weapons the British Government will threaten to deploy in negotiations. I remain to be convinced that such threats will be persuasive to the EU negotiators but from experience, I doubt very much that they will. However, at least we now have some idea of how the British Government is going to approach the issue. Having listened very carefully to Theresa May's speech, it should give us all serious food for thought. The prospect of another hung assembly, leading to the suspension of devolved government and a return to direct rule, recreates a set of uniquely difficult issues in terms of how we in this State should respond. Indeed, it causes us to consider whether we have a constitutional capacity to respond adequately to that unique set of challenges.

This is because the institutions of the Good Friday Agreement within Northern Ireland, North-South and east-west are interlocking and inter-dependent. The package as a whole has been endorsed by the Irish people and enshrined in the Constitution.

Fourteen years ago, the British-Irish Agreement (Amendment) Act 2002 was passed. It did not deal with the most significant consequence of the suspension of the assembly and Executive but with lesser matters. It was simply providing an interim mechanism to ensure the continued operation of six all-island implementation bodies, important and all as they were. However, that Act demonstrated that the suspension of the institutions has serious constitutional as well as political implications and it underlined that the Constitution restricts the response available to this Government. The Act provided that it would expire on the earliest practicable day after the termination of the interim arrangements "on the restoration of the Northern Ireland Assembly". The word "temporary" was used 11 times in the legislation. Anything other than strictly temporary legislation would have raised serious constitutional questions about the abandonment or variation of the terms of the original British-Irish Agreement of April 1998 - part of the Good Friday package incorporated into Article 29.7 of the Constitution.

In November 2004, the then Taoiseach told the Dáil:

As the Deputy is aware, it was to operate for six months, or a maximum of nine months. Ultimately, if somebody was to challenge these issues, the present arrangements probably would not stand up and we are all aware of that. If it were to happen that we did not have an Executive or an Assembly, I do not doubt that it would be argued, by one side or the other, that we should not have the North-South body structures.

The problem is that constitutional cover is not given to bodies that do not have their origins in the terms of the original Good Friday Agreement or are not operating in accordance with those original terms hence the stress on the temporary nature of the arrangement.

In November 2004, when the institutions were still suspended, Deputy Adams gave a speech demanding that in the absence of a deal, the two Governments bring forward proposals rooted in the Agreement to see its full implementation. He warned that direct rule was not sustainable in the long term and suggested that the two Governments look to formal institutionalised power sharing at Government level. He seems to have forgotten that contribution now that the SDLP is making this case. This is not an easy solution to propose. Any Irish Government will be limited by the extent to which it can depart from the terms of the original Good Friday package endorsed by the people in a referendum in this State. Even on an interim basis and with a view to keeping institutions and bodies ticking over pending full restoration, this would not be unproblematic. That being said, we clearly need the Government to consider what actions it might take if no coalition arrangement is possible in the aftermath of the impending election. At a time when we are moving towards the triggering of Article 50, we cannot under any circumstances allow the voice of the people of Northern Ireland to be suppressed or excluded.

Northern Ireland must have special status when the UK exits the EU due to the fact that every person there can apply and become an Irish citizen. This morning we saw Theresa May move further not only from the concept and the embracing of the single market but even from membership of the customs union. For the people of Northern Ireland and for all of us on this island, there is a cold wind blowing and we do not seem to have fully grasped that. If there was any doubt about what was coming, listening to and carefully analysing what was said by the British Prime Minister this morning should be the wake-up call for all of us. Frankly, I do not think even this House has grasped this issue with the urgency it requires. More than two months have passed since the Taoiseach committed to providing weekly updates to the parties in this House on the evolution of Government thinking about Brexit but this has not yet happened. I raised it again before Christmas. We need to get on with these things. If we are to act in a collective way and with common purpose, we need to know exactly what is happening week by week. We need to be marshalled to have our own influence within our own political groupings week by week. When Theresa May refers to the family ties and bonds of affection that unite our two countries, she is referring to something all of us in this House know to be the truth. It would be nice if our actions, commitment and unity of purpose made that sentiment seem like more than just a sound bite.

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