Thank you for the invitation to provide evidence to the Committee for the Executive Office. We appreciate the opportunity to address you on the work that we have conducted on this core constitutional component of the Good Friday Agreement (GFA).
Our independent research report – The EU and Irish Unity: Planning and Preparing for Constitutional Change in Ireland – was launched in the European Parliament in October 2019, and we have given evidence on our findings to the Oireachtas Joint Committee on the Implementation of the Good Friday Agreement. The report should be read in the light of other work we have undertaken and developments since then. We include, in Annex B, selected examples of additional material that may be of interest to Committee members.
Our core recommendations remain relevant and our emphasis on planning and preparation has plainly informed the framing of the discussions since then. We reiterate that our contribution to the debate is intended to assist all those across these islands contemplating the possible implications of constitutional change here.
We include, as Annex A , extracts from relevant texts, which highlight the existing and established constitutional position: N. Ireland remains part of the UK, and that will only change in the way outlined in the GFA.
Nothing contained within the Withdrawal Agreement, Ireland/N. Ireland Protocol and Trade and Cooperation Agreement alters the constitutional status of N. Ireland as a matter of law, policy and practice.
Our aim is to focus on the main themes in our report, with particular reference to the intensifying debate about the constitutional future of this island. As the Committee will be aware, this discussion is becoming much more focused, and there are a proliferating number of civic and political projects and initiatives. That includes valuable work ongoing within Universities across these islands and beyond.
We welcome these developments and would encourage others, including this Committee, to contribute to efforts that are vital to ensuring that satisfactory advance planning takes place. Whatever view is held on the constitutional future, there is merit in encouraging and supporting such exploratory work.
If there is to be mutual respect, equal treatment and parity of esteem for divergent constitutional objectives here then relevant and appropriate contingency planning should be undertaken by the Executive Office and by Ministers and their Departments on all constitutional eventualities. We are pleased to see the widespread acceptance of the need for responsible preparation, and what appears to be a measure of convergence around a possible time frame for giving people a choice.
The GFA contemplates Irish reunification following concurrent referendums in both jurisdictions on the island. The process is underpinned by international law and the promise of self-determination is a central feature of the constitutional arrangements of Ireland (article 3.1 of Bunreacht na hÉireann) and the United Kingdom (Northern Ireland Act 1998, section 1 and schedule 1). Following Brexit, reunification is further recognised as a matter of international law in the ‘without prejudice’ provision of the Protocol (article 1.1).
The constitutional status of N. Ireland will only alter in the way prescribed in the GFA and the language of ‘status change’ refers explicitly to the option of a united Ireland. We underline the point again: the constitutional status of N. Ireland has not changed as a consequence of anything that has happened in the Brexit negotiations.
We have outlined elsewhere our preferred approach, and would draw the attention of the Committee to the work of civic initiatives such as Ireland’s Future and the Constitutional Conversations Group.[1] We have offered a view on what we believe a good faith interpretation of the GFA requires. We remain concerned by attempts to erode and undermine key elements of the agreed process. We also recognise areas where more work is required to promote clarity and certainty, and continue to insist that the necessary preparations must be completed in advance of the referendums taking place. For example, Professor Harvey has written to the Secretary of State, in a personal capacity, seeking answers to detailed questions around his role, and has thus far received three responses from the Northern Ireland Office.
In our view, the people of this island are likely to be offered a choice about their constitutional future before 2030. It is essential that when that time comes everyone is clear about the process, what they are voting for or against, and the consequences. We view this as an uncontroversial proposition for anyone committed to working in good faith within the agreed parameters of the GFA.
Brexit has dramatically altered the nature of this constitutional conversation. For N. Ireland the principal route back to the European Union (EU) is through Irish unity, rather than the forlorn hope of UK accession under article 49 TEU. The mechanics of Irish reunification, from an EU perspective, are also tolerably clear. The position of the European Council, announced in April 2017, is that reunification will essentially follow the German precedent of 1990. The German and Irish contexts are distinctive, but what this means is that the transfer of sovereignty from the UK to Ireland, envisaged by the GFA, will be an example of cession rather than the creation of a ‘new state’ as a matter of international law. The borders of the Irish State will change but its EU membership will continue without requiring Treaty amendment or ratification by any EU institution. A reunified Ireland may or may not have a ‘new constitution’ but it will not be a ‘new state’ for these legal purposes.
In our report we identify and explain the likely consequences and legal processes that will arise. There are responsibilities on both governments and EU institutions to prepare. Challenges are identified but none are insurmountable, and the managed transition to new arrangements is feasible and achievable, if that is what people decide. Our report examines, among other things, the GFA framework, the state of the unity debate, the mechanics of reunification in an EU context, consideration of how British citizens will be accommodated, and the consequences of the current rules on economic and monetary union for continued Irish membership of the eurozone. The report includes a number of suggestions and recommendations addressed to EU institutions in particular.
As we hope is clear, we believe that proper preparation is essential, and that should not be confined to the British-Irish context. The EU will have an interest and a role in this process of constitutional change within one of its member states, and that was the principal focus of our report.
We invite the Committee to write to the Executive Office to request further information about any contingency work it has undertaken to plan and prepare for the potential of constitutional change on this island and these islands, including where these questions have arisen within the mechanisms created by the Withdrawal Agreement.
We are convinced that legislatures have a role to play in the necessary preparations. We therefore recommend the establishment of an Ad Hoc Assembly Committee to examine the implications for N. Ireland of the prospects for constitutional change across these islands, including Scottish independence, maintenance of the status quo and a united Ireland. In the alternative or in addition, a sub-committee of the Committee for the Executive Office could be established with a similar remit. We underline that such a committee would examine the consequences of all relevant constitutional outcomes and would not be confined to exploring one option only. We recommend that it should liaise with the N. Ireland Affairs Committee at Westminster and the Oireachtas Joint Committee for the Implementation of the Good Friday Agreement, among others.
We recommend that the Assembly Research and Information Service be asked to produce a comprehensive briefing paper on the work completed thus far in relation to these discussions and any gaps in the existing research, as these relate specifically to the role and work of the Assembly and Executive.
We invite the Committee to consider writing, in the public interest, to the Secretary of State to ask for answers to the questions posed in recent correspondence from Professor Harvey.
Thank you again for the invitation to discuss these matters with the Committee today. We would urge members to consider how this Committee can assist and ask that you reflect on and discuss the further work that might be undertaken by the Executive and the Assembly. While there is often an intense focus on the role of both governments in these processes, we believe that legislatures must also consider how they can contribute constructively to ensuring proper planning and preparation takes place in advance of the concurrent referendums that we believe are likely to be held in the decade ahead.
[1] See, in particular: Ireland’s Future, Planning for a Strong Economy in a New Ireland (25th March 2021); Ireland’s Future, Advancing the Conversation: The Way Forward (28th January 2021); and Ireland’s Future, A Principled Framework for Change, (3rd December 2020). These papers can be accessed here: https://irelandsfuture.com/publications/. Professor Harvey is a member of the Management Board of Ireland’s Future.
Mark Bassett is a Barrister who practices mainly in the areas of judicial review, family law and civil litigation including privacy, data protection and personal injuries.
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