Policy engagement at Queen’s

Uniting and Sharing the Island: Normalising Good Friday Agreement Constitutionalism?

Professor Colin Harvey talks constitutionalism and the idea of Irish unity referendums in light of the ongoing Brexit negotiations.

Uniting and Sharing the Island: Normalising Good Friday Agreement Constitutionalism?

Good Friday Agreement constitutionalism needs to be normalised. Call it peace process or transitional constitutionalism if that helps (but not simple devolution in the UK). Odd as it may sound (20 years later), the point holds. One element is back in the news; the idea of unity referendums (a vote in both jurisdictions on this island on Irish unity).  Brexit makes the proposition of leaving one union to remain in another quite serious; it does change things (but perhaps not as radically as many might hope). Persuading a majority in Northern Ireland to leave the UK, and a majority in the south of Ireland to welcome it, still seems a tough proposition.

Even if the debates on Irish unity are too often advanced in jaded and jarring nationalistic terms, the UK’s contested decision to leave the EU reframes the conversation. This is no mere opportunism. It is an increasingly hard-headed conclusion linked to pragmatic assessments of future well-being. Raising Irish unity has, however, provoked a familiar debate on so-called ‘unity by numbers’; particularly evident in recent exchanges in the Irish Times (Fintan O’Toole, Andy Pollak, Seán Donlon, Gerry Adams).

Both sides make valid points. Reigniting violent political conflict on this island is hardly sensible.  But there are, at the present moment, considerable risks involved in adding to the feeling that the constitutional bargain struck in 1998 (after decades of peace-building and endorsed in both jurisdictions) is being torn apart. Like it or not, that does gesture towards a simple majority vote for Irish unity (north and south). Repulsive and exclusionary versions of unionism and nationalism exist on this island. Using that type of label (even when draped in the language of the Agreement) to describe a recognised self-determination mechanism is nevertheless unhelpful, and risks fuelling an ongoing culture of disrespect for the constitutionalism that emerged from the peace process.  The danger is that this feeds a nationalist/republican sense that things have returned to a pre-1998 form of politics, and that many of the promises of peace have proven illusionary. At a time when the DUP is formally aligned with the governing party at Westminster, this seems risky; nationalist alienation is as troubling as unionist disenchantment.

To what extent are people talking past each other? The 50 + 1 point in both jurisdictions is essentially correct; a simple majority will do. That remains only one part of the picture, and always was. Who, for example, will be eligible to vote in these referendums and how will they be managed? What about the increasing levels of diversity on this island? How will the next phase after the vote be handled?

A close vote for unity (in both jurisdictions) would send a signal, and the risk is that the current conversation is confusing the electoral mechanism with the constitutional process that will surround it. An outcome that is not convincing must speak to what follows in terms of a negotiated process. The hope would be that it would also prompt formal recognition of a more constitutionally pluralist Ireland (rather unlike the post-Brexit referendum law and politics of the UK). The pathway would be to Irish unity but the pattern of voting should dictate that attention is paid to the approach and the form that it takes, including enduring respect for the Agreement that gave life to this right of self-determination. While ‘formal sovereignty’ would eventually pass from London to Dublin, any newly negotiated constitutional arrangements might look mightily similar to what is there now or even deepen further the constitutionalism that made the peace process possible.

There is already a strong sense (evident I suspect in the outcome of recent elections) among nationalists/republicans in Northern Ireland (but also more generally) that the promises of peace have been broken or simply not realised. The view that the principles of 1998 are not being respected; that the compromises reached then and since are being taken for granted (or simply not accepted as compromises). Closing down, in sometimes quite dismissive terms, the Irish unity option (as formally understood) is a genuine problem. Just like the failure to take proper account of the Northern Irish rejection of Brexit, the subtle message appears to be that even if this vote is won the outcome might not be respected. A seldom asked, but pertinent question, is whether unionist political parties would honour the result, and participate fully in a peaceful constitutional transition.

It is time to normalise the transitional constitutionalism of Northern Ireland. The constant attempts to spread alarm about core components of a negotiated peace should be resisted. If status rests on consent alone then who should fear periodic testing, particularly where everyone appears so certain of the outcome? It is often forgotten or just plain ignored that many in Northern Ireland have good cause to wonder whether something more ominous continues to lurk behind existing constitutional status, and have reason to doubt that a vote for unity would be respected. Consent in that context joins a line of specifically Northern Irish euphemisms about what really dwells behind the formation of this region.

In these discussions, it is therefore better to say that a close result will inform the next steps towards a form of unity that fully respects the human rights of all the people on this island, and lead to a profound dialogue on the nature of the new Irish constitutional state that will emerge. 50 +1 (twice) will, hopefully, mean the continuation of a new and more pluralist conversation on the island. But there should be no doubt that the intended constitutional end point will be Irish unity.

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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