Aoife O’Donoghue (Durham University) and Sylvia de Mars (Newcastle University)

Many outside the Brexit bubble probably wonder why we are still talking about it. Those dissatisfied with the Brexit ‘agreements’ probably place the blame for all lasting issues squarely on Northern Ireland’s shoulders – though who specifically to point the finger at, for most, remains a mystery. For all that lorries are stuck in Kent, new direct ferry routes are opening between Ireland and Europe to cut out the land bridge, and looming troubles for financial services and paying extra for deliveries from or to the UK are getting headlines, Northern Ireland is once again at the centre of the Brexit debate.

For those intimately familiar with Brexit and Northern Ireland, this is unsurprising. Already prior to the referendum, during the arduous negotiations, during the transition and now post Brexit, Northern Ireland’s unique political, legal and constitutional status posed repeated challenges. Alas, on almost every occasion, the particular care, attention and preparation which was required to manage Northern Ireland was largely ignored by Westminster, and as we saw with the COVID vaccine debacle that threatened to trigger Article 16 of the Northern/Ireland Protocol, sometimes by Brussels too. The absence of democratic input from Northern Ireland in Brussels is becoming an increasingly apparent void. Nonetheless, Northern Ireland continuously manages to have the multiple voices that represent its varied wishes heard, and sometimes adhered to, as our forthcoming piece, Beyond Matryoshka Governance in the 21st Century: The Curious Case of Northern Ireland attempts to explain.

Theories of global governance dominant within law focus almost entirely on a tiered model of multilevel governance. Within accounts of trade, international law and the World Trade Organisation sit at the top, followed by the EU and (post-Brexit) the UK, followed by EU Member States – and only then and if absolutely necessary, constituent elements of federal or devolved states, such as Northern Ireland. In that model, Northern Ireland should not have featured much in Brexit; even if the 1998 Good Friday/Belfast Agreement was under pressure or Northern Ireland’s devolved constitution, this was a matter that London, Brussels and Dublin would ‘represent.’ However, in practice, the local – Northern Ireland – jumped its scale, shaping the supranational EU’s view of trade and requiring both it and Westminster to leave some of their many ‘red lines’ behind.

The tiered scaler system of nested local, national, regional, global and universal spheres is an easy order to understand particulalry from legal and political perspectives. Nodular scaler theory considers networks, the relationships between scales, and how distance and time may impact on our perception of a particular place that are not static and thus need more granulated focus. Additionally, feminist scale analysis incorporates the body, welfare and rights. In combination, these theories better explain what has occurred with Brexit over the past six years.

The recognition that rights were at issue – that citizenship, welfare, and employment were intertwined with Brexit – was foregrounded by the Northern Ireland Human Rights Commission and the Irish Human Rights and Equality Commission with Dublin, London and Brussels. Groups like the Northern Ireland Rural Women’s Network brought stark attention to those who lived on or near the border, and whose day-to-day educational, working and caring lives would be impacted. Northern Ireland parties such as the DUP, Sinn Féin, the SDLP, Alliance, PBP – even after Stormont collapsed – maintained political pressure, often through a combination of seats in the Dáil, Westminster or the European Parliament, applying political pressure across multiple points all at once. These networks also brought Washington DC’s political focus upon Brexit and Northern Ireland, often to the dismay of London.

Northern Ireland’s priorities were and remain complicated, and indeed one of the errors that London made was in focusing on one site – the DUP – while attempting to ignore others… though ultimately, they lost interest there too. Nonetheless, these other groups, who did not hold the balance of power in Westminster, managed to partly shape the Northern/Ireland Protocol. The variety of actors – community groups, NGOs, statutory bodies, political parties – that jump scales, network between and amongst governance points and get their points across, is quite impressive and they are not limited by what multilevel governance regards as their rightful place.

Both London and Brussels need to abandon their hierarchical view of how trade negotiations ought to occur, as Northern Ireland repeatedly demonstrates, they ignore the local at their peril. That we are back discussing Northern Ireland yet again is partly because London attempted to assert the traditional tired model, and because Brussels, through invoking Article 16, failed to consider the ability of multiple actors in Northern Ireland to make their voices heard.

Aoife O’Donoghue is Professor of International Law and Global Governance at Durham Law School, Durham University.

Sylvia de Mars is Senior Lecturer in Law at Newcastle Law School, Newcastle University.

This Blog is based on the forthcoming Sylvia de Mars, Aoife O’Donoghue ‘Beyond Matryoshka Governance in the 21st Century: The Curious Case of Northern Ireland’ in Oran Doyle, Aileen McHarg and Jo Murkens (eds), The Brexit Challenge for Ireland and the United Kingdom: Constitutions under Pressure (CUP, 2021)