Queen's Policy Engagement

Leaving the Union?

There is an opportunity to change direction and embark on a new constitutional conversation about the island of Ireland says Professor Colin Harvey.

Leaving the Union?

Discussions on Irish unity are intensifying. This is becoming a mainstream conversation in the public life of Northern Ireland, whether it is approved of or not. Brexit has played a leading part, as more people look to all possible solutions, including those that are already on offer. What is still neglected is just how fundamentally Brexit alters the nature of the question or questions. There are five points to highlight in pondering this emerging and growing trend in support of allowing people on this island to have their say.

First, there is merit in clarifying (beyond what exists at present) the circumstances that will make a vote more likely than not. There is a gap between the language of the Good Friday Agreement and the Northern Ireland Act 1998. The Secretary of State for Northern Ireland retains a surprising degree of discretion for a constitutional mechanism that was intended to be taken forward by people on the island of Ireland alone. However clarification is achieved (politically or legally) it would arguably be helpful to know what is required to demonstrate to the Secretary of State that such a vote might take place. What forms of evidence, for example, might be guiding her thinking or might persuade her to take this step? Are there things she should not be taking into account and are their considerations that are simply irrelevant to her reflections? Is the Brexit vote relevant or irrelevant to the question of triggering a ‘border poll’? Is the rising Remain vote a factor?

As these questions demonstrate, establishing the contours of this policy, and achieving certainty, may also carry some risks. What if, for example, the policy is defined in a way regarded as unhelpful to either side?  Further legal action on this matter seems likely, and the studied politics of avoidance does not appear especially wise in the circumstances.  Better to be open, relaxed and transparent about this key feature of our constitutional law and politics. In this it remains a bit odd to base an exercise in collective choice purely on evidence that it will likely go one way. The sense of prejudgement that is woven into the initial decision-making process is striking but that may just be pragmatic protection against wasting the electorate’s time.

Second, the nature of the discussion should be considered and revised. We are at the beginning of a more nuanced conversation about how we share this island. There is something qualitatively different in this. Brexit is going to bring with it new constitutional configurations across these islands, and Irish unity is a live option in that specific context. Is it really surprising that many now point to, for example, the scale of the Remain vote in Northern Ireland as evidence that people might wish to have a say on constitutional status?  If this is written off or dismissed then one thing will become plain: The premises upon which the Good Friday Agreement (and all that followed) were constructed are false and have been abandoned. If consent is politically meaningless in this context how seriously will the concept be taken in any future scenario? Equally, is there a risk of blurring the Agreement’s precise notion of ‘consent’?

Third, at present the emphasis is on a vote to be supported and taken forward by both governments in ‘their respective Parliaments’ (if a majority opt to leave the UK). Under the British constitution this will inevitably mean much more work, particularly with respect to the Westminster Parliament (as Brexit is now demonstrating). Ireland will equally face formidable challenges. None of this is insurmountable but how should the discussions and negotiations around this ‘binding obligation’ be advanced? Is a more participatory mechanism needed (a Constitutional Convention, for example)? Could this really just be left to both governments and ‘their respective Parliaments’?

Fourth, Brexit should remind us that letting people know what they are voting for matters. This includes thinking through the question or questions. This will require a level of detail on both sides that is so far absent. There should, if possible, be a broad coalition on the island for Yes (leave) and equally those seeking a No (remain) outcome should have a platform to capture their views. For example, would a coalition for Yes be able to agree a common agenda? Would it take this debate beyond the island of Ireland (for example, to ensure the main political parties in Britain understand the discussion)? It seems sensible for those advocating either position to set out in clear terms the precise meaning of voting Yes or No. Such a democratic dialogue would have intrinsic merit in confronting the complacency that persists on either side of the current discussion. How would unionists, for example, formulate an attractive and persuasive argument for remaining in the UK?   Would the respective campaigns dwell on fears or aspirations? If the dominant narrative is one of fear, which scenario would provoke the most anxiety?

Finally, the Brexit focus now is on the draft Withdrawal Agreement, the draft Protocol and on what the UK Government will propose during the negotiations. It is helpful, however, to begin to normalise a vote on Irish unity in general and as one way out of the mess that may result from Brexit. There is an already alarming sense of abandonment among sections of Northern Irish society around the promises of the Good Friday Agreement. If it emerges that periodic testing of the ‘consent principle’ is illusory then the architecture of 1998 could crumble and no amount of scaffolding (ugly or otherwise) will hold it in place. That this is not widely grasped on the island of Ireland is quite remarkable.

There is an opportunity to change direction and embark on a new constitutional conversation about the island of Ireland. In talking to each other we might take real risks and place everything on the table. Do people wish to embed our current binary arrangements forever or do they want to imagine an island that moves on from our tragic past in a constitutionally dramatic way? Is this really an ‘either/or’ choice or can we formulate new varieties of ‘both/and’ politics anchored in the spirit of the Good Friday Agreement? Will this be a transformative discussion about an island that respects the human rights of everyone and views equality and mutual respect as its rallying cry? Why limit the scope of our imagination to the divisions of our past and why not learn some of the real lessons from Brexit (about the things that we share on this island)? If this is to be relaxed, open and deliberative then it can only, of course, be an invitation. An invitation to a conversation about how we share this island within the EU but, perhaps, beyond the UK.

 

The featured images of Parliament Buildings Belfast and Leinster House in Dublin have been used courtesy of a Creative Commons license. 

 

 

Professor Colin Harvey
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Dr 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.

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