Brexit and Northern Ireland: Unique Solutions and the Union State
In light of the most recent derailment in the Brexit negotiation process, Professor Colin Harvey says that the Northern Ireland Brexit solution was not going to break up the United Kingdom.
It makes little sense for the notion of a threat to the constitutional integrity of the UK to be raised or taken seriously in the current Brexit discussions. Why? What is one of the most notable trends in UK constitutional law in the last 20 years? Surely it is the significant dispersal of public power around the UK through asymmetrical processes of devolution. That does, of course, raise its own questions about the future of the ‘union state’, but nothing currently proposed as a unique solution for Northern Ireland threatens the UK’s constitutional integrity.
In fact, it is in tune with trends within the UK constitution over the last two decades. Is the proposed 12.5% corporation tax rate for Northern Ireland a threat to constitutional/economic integrity, for example? Is fiscal devolution around the UK a threat to its constitutional/economic integrity? Perhaps this is best viewed as welcome recognition of a more pluralist UK (and all of it on even a traditional reading of UK constitutionalism).
There are many who (correctly in my view) think that Northern Ireland’s circumstances already attest to a special constitutional status (via the Good Friday Agreement and subsequent agreements) and it never was just a simple tale of devolution in the UK in the first place. The constitutional circumstances are genuinely unique. But aligning Northern Ireland in the way suggested is not even problematic on an orthodox understanding of the British constitution, as it has evolved since 1997.
Although much of the focus now remains on trade and regulatory alignment, there are other matters too that merit attention. On rights and equality, there is genuine merit in adopting the notion of ‘equivalence’ (taken directly from the Good Friday Agreement). The continuing worry in the world of, for example, human rights and equality is regression; the fear that both bits of the island of Ireland will drift even further apart on basic legal protections (a hard border in a different sense). The big idea in the Agreement was to use the notion of equivalence (albeit there it was referring to Ireland). When reflecting on the future, it is perfectly fair to talk about equivalence of protection on the island, and to insist on no regression with respect to existing guarantees. Regulatory alignment and equivalence of protection are phrases that present no challenge to the existence of the ‘union state’.
The thinking in the Good Friday Agreement embraced relationships across these islands. That spirit is desperately needed again. If any internal UK counter balancing is required (for what might emerge on the island of Ireland) that should prompt more reflection on the relatively weak intergovernmental mechanisms within the UK (as is happening to some extent now, prompted by the EU (Withdrawal) Bill debates). The current intergovernmental mechanisms (for discussions between the governments of Northern Ireland, Scotland, Wales and Westminster) require radical reform; as is well known and widely recognised. Whatever view is taken of the constitutional future of the constituent parts of the UK, it makes good sense to ensure the current arrangements function in a credible and coherent way to promote effective governance.
In conclusion and to summarise:
(1) Recognising the diversity that is self-evident in modern UK constitutional law through a unique solution for Northern Ireland is in tune with the evolution of the UK constitution over the last two decades (respectful and asymmetrical devolution of public power);
(2) Thinking, as the Good Friday Agreement does, in terms of equivalence of protections with respect to human rights and equality guarantees can be very helpful indeed;
(3) People are anxious about regression in terms of those and other guarantees, and thus diverging standards in this area as well;
(4) The Good Friday Agreement in all its parts has mechanisms to address the relationships across these islands (and these may become significant again soon).
However, if further reassurance is needed, it could be provided through a more intensive conversation about constitutional renewal within the UK.
Article originally appeared in The Telegraph.
For further information on Colin’s ESRC-funded Brexit Law NI research project, click here.