Queen's Policy Engagement

Hiding in Plain Sight? Unifying and Reconciling a Destabilised Island

There is no better time to start having a mature constitutional conversation about how we share this island together within Europe says Professor Colin Harvey.

Hiding in Plain Sight? Unifying and Reconciling a Destabilised Island

Reports of Cabinet Ministers briefing about Irish unity highlight just how mainstream the discussion now is. Brexit has accelerated this conversation to the extent that referendums on this island in the near future look increasingly likely. This has prompted much reflection on the circumstances that would trigger the process, the need for proper planning and preparation (often political code for inertia), and what it would mean for the future of this island in a substantive sense (in areas such as the economy and health care).

Those calling for referendums have faced derision, combined with the smug reaction of those who never understood the constitutional core of the Good Friday Agreement.  Raising this is written off as ‘divisive’, and even ‘toxic’, by people who then proceed to profess their unwavering love for the Agreement in all its parts. What is apparent from the Brexit process is that many on this island have not read the Agreement either. It is all too easy to mock British politicians, but how many Irish politicians and commentators would fail that test too? The Agreement is as poorly understood on this island as it is on the other island: the naked hostility to the ‘border poll’ debate confirms this.

My focus here is on one thing: I argue that it is in fact perfectly defensible, as a matter of basic principle, to raise this Agreement mechanism now in the context of Brexit. This is distinct from the tortuous debates about the evidence required to start the process; it is separate also from any consideration of whether it might lead to a vote for unity or not.

I have addressed these matters elsewhere; I agree with those who want to see sensible preparation starting now. My sole concern here is to suggest that in tackling one of the consequences of Brexit – a hard border on the island of Ireland – a principled way forward is to ask people in this region whether they wish to remain in the UK or not. That does not rule out other arrangements to deal with this problem (as envisaged in the Withdrawal Agreement) it is simply to argue that the existing, and legally endorsed, method for removal of the border is an obvious option.

Weight is added by the fact that this is taking place in the international legal shadow of the British-Irish Agreement, where the constitutional compromise around status is recognised. It is those who resist all talk of unity referendums who are playing politics in their selective reading of the Agreement. Rather than face the established remedy to avoid a hard border, the EU and UK have embarked on ever more elaborate schemes to achieve this objective. That, of course, makes excellent sense: even if there was a ‘border poll’ there is no guarantee it would lead to Irish unity (and thus the proposed solutions would remain necessary), and Britain’s departure from the EU impacts on this island in myriad ways beyond the border issue, and the implications for North-South cooperation. The purpose here is to indicate that it is legally and politically valid to advance the idea of a people’s vote (on unity) on this island. People in this region have the constitutional right to exit the UK (with the agreement of the south of Ireland too) and thus enjoy a shared future within the EU. Remember that this is a region that voted to remain, and where there is widespread anxiety about the negative consequences of a policy fuelled primarily by English nationalism.

One often heard response is that the test for holding a vote has not been met. But even if that is the case (and evidence would indicate it is an open question) this is a misunderstanding of the powers of the Secretary of State. She has discretion to call a referendum for a range of reasons, and testing the desire of the people of Northern Ireland to be in the EU via a united Ireland would certainly be one of them (thus meeting the agreed objective of avoiding a hard border). This issue has, for example, been badly neglected by those calling for a people’s vote (second referendum) in the UK: there is an existing people’s vote mechanism on this island that might achieve the required objective for Northern Ireland.

There is a solution to a hard border on this island; it is hiding in plain sight. It has the great virtue of being there already, as a recognised right. Those pointing this out do not deserve the unpleasant, highly partisan and revealing reaction they have received. Perhaps the most irritating response is that it would be ‘destabilising’: it is Brexit that is the ‘toxic’ imposition that has brought fear and anxiety in its wake.

Having a mature constitutional conversation about how we share this island together within Europe is the reverse of that; there is no better time to start.

 

The featured image in this article has been used thanks to a Creative Commons licence

Professor Colin Harvey
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Colin Harvey is Professor of Human Rights Law in the School of Law at Queen’s University Belfast. He has served in several leadership and management roles at Queen’s including: Head of the Law School; Director of the Human Rights Centre; Director of Research (Human Rights); and as a member of Senate.

3 Comments

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Colin makes a reasoned IF PARTIAL case. But although he elaborately disavows it he risks opening a can of worms by conflating human rights with unity. human rights only go so far as an argument for unity. unity is in the end territorial. he seems to have abandoned in despair the existing GFA settlement within the uk. THIS AT ANY RATE IS HOW HIS INITIATIVE WILL BE SEEN BY BOTH SIDES IN THE ZERO SUM GAME. YOU CANNOT BEG THE QUESTION OF
IRISH UNITY AND ACCEPT THE UNIONISTS TO FALL IN. THE DEBATE HAS TO EMBRACE
UNIONISTS ON THEIR OWN TERMS AND BOTH GOVERNMENTS.
There are two questions about human rights arising from brexit. One is how the irish government can politically act as guarantor of northern rights and other interests under the gfa after brexit. HE MIGHT WELL SAY the REPUBLIC’S MAIN PARTIES HAVE beEn doing their best TO CHAMPION NORTHERN INTERESTS DURING THE BREXIT CHAOS. BUT DESPITE their enhanced leverage within eu 27 , they are at the moment as much mere observers of westminster politics as they’ve ever been. IT IS A MATTER OF PROFOUND REGRET THAT NORTHERN NATIONALISM IS NOT REPRESENTED THERE. THE VOICE IS MORE IMPORTANT THAN NUMBERS.
The other QUESTION is how those rights can be protected when the charter of fundamental rights no longer applies . oNE OBVIOUS ANSWER IS LIFTING THE DE FACTO UNIONIST VETO ON AN NI BILL OF RIGHTS. THE INCENTIVE FOR THIS COULD BE PROVIDED BY DETERMINED british-irish PRESSURE ON SINN FEIN TO ENTER AN ASSEMBLY. WITHOUT THE PETITION O F CONCERN ACTING A BLOCK VETO ON THIS AND OTHER TOPICS, WHILE THE UNIONISTS WOULD GET THEIR ASSEMBLY BACK. ANY ATTEMPT TO ROOT NORTHERN NATIONALIST INTERESTS IN THE REPUBLIC MAY BE UNDERSTANDABLE AS A MEASURE OF FRUSTRATION, BUT it will inevitably be distorted as a move TO abandon the northern context and so add to the risk of instability. i bet the irish parties quietly agree,

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Colin may be forgiven his deep pessimism. What’s he really saying? He insists that Brexit must produce a hard border and dismisses arguments against a border poll as unionist excuses to try to fend it off. For him, a border poll is necessary to prevent those excuses hardening into a new unionist veto and to put the frighteners on them to start behaving reasonably. While there are those in Downing St who may be tempted to flirt with it, his case is highly contestable. On Brexit although divided on much else, a Commons majority although as yet unformed, is in favour of the backstop and something like a customs union. What happens to nationalist blues if in the end Brexit preserves the open border and delivers the best of both worlds for the North? Should we not at least wait and see?
Can Colin continue to believe in the GFA if a border poll is all that’s left? It becomes like a maimed animal with one stump. Elsewhere he argues that unity would provide better human rights for all after Brexit. But human rights only go so far as a force for unity. In the end unity is territorial.
There are two interlinked questions about human rights after Brexit. How can the Irish government act politically to guarantee the rights of EU citizens in the North? And how can their rights be preserved when the EU Charter of fundamental rights ceases to apply? One obvious answer is to enact the NI Bill of Rights, long subject to a unionist veto. Here may lie the basis of a deal.
Instead of conflating human rights and unity, the two governments will sooner or later have to return to the field of Northern Ireland’s governance. They need to press Sinn Fein to return to the Assembly and the DUP to lift the blocking instrument of the petition. Stormont is the forum to tackle the sticking points and mange the post- Brexit world, accompanied by continuous British and Irish engagement. In this scenario, a border poll is a distraction at least until re-engagment is fully tested. An Assembly election following at some point after the council elections would probably confirm existing party strengths.
If this isn’t go the path to follow, Colin’s argument comes into its own. Northern nationalism re-roots in Dublin and the very idea of power sharing is dead.

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Colin Harvey’s pessimism is deeply appreciated. But what’s he really saying? His argument is blissfully simple. Irish unity would solve the problems of Brexit at a stroke. Why not put it to the test? Middle of the road unionist remainers disgusted b y Brexit might vote for nirvana too. Where’s the harm in giving it a go? The harm is in the illusion; the border poll is never going to go away but it will not happen like that. Brexit may yet destroy “the precious Union” but a Conservative government will never be the willing agent of its destruction; thus the contortions over the backstop and avoiding the domino effect of Northern Ireland today, Scotland tomorrow, or vice versa?

For Colin Brexit has to be a disaster. so Is the border poll closer than we thought? Or will the bubble burst if Brexit preserves the open border and delivers the best of both worlds for the North? Should we not at least wait and see?

Colin’s fallback is to persuade the Irish government to do the heavy lifting. Good luck with that. Pressing for a border poll soon is necessary to stiffen the resolve of southern faint hearts and kill of off in advance any notion of a new unionist veto – described as “whole hearted” consent – in the event of a potential nationalist majority.

Can he continue to believe in the GFA if a border poll is all that’s left? It becomes like a maimed animal with one stump. Elsewhere he argues that unity would provide better human rights guarantees for all after Brexit. But human rights only go so far as a force for unity. They are not easily conflated. In the end unity is territorial.

There are two interlinked questions about human rights after Brexit which fall within Colin Harvey’s expertise.. How can the Irish government act politically to guarantee the rights of EU citizens in the North? And how can their rights be preserved when the EU Charter of fundamental rights ceases to apply? One obvious answer is to enact the NI Bill of Rights, long subject to a unionist veto. Herein may lie the basis of a deal.

Instead of conflating human rights and unity, the two governments will sooner or later have to return to the field of Northern Ireland’s governance. They need to press Sinn Fein to return to the Assembly and the DUP to remove the petition of concern as a crude party veto. Stormont is the forum to tackle the sticking points and manage the post- Brexit world, accompanied by continuous British and Irish engagement. In this scenario, a border poll is a distraction at least until re-engagement is fully tested.

If this isn’t the path to follow, Colin’s argument comes into its own. Northern nationalism re-roots in Dublin and the very idea of power sharing is dead.

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