Unionist fears in a united Ireland

Professor Brice DicksonPhoto of Brice Dickson

Editors’ Note: This post is part of an IACL-AIDC Blog Symposium on unification of the island of Ireland. The Symposium is co-hosted by the Constitution Project @ UCC Blog. Selected posts will also be co-hosted by the UKCLA Blog. The full set of posts can be found here.

Assuming that a border poll occurs, and that the vote in both parts of Ireland is in favour of unification, what might unionists in Northern Ireland want to see happen in order to reduce the fears they might have of living in the new State?

In a perfect world their worries will have been sufficiently anticipated in advance of the poll to ensure that certain guarantees will be secured to them in a united Ireland. As is now commonly acknowledged, a prime lesson to be drawn from the Brexit referendum in the UK is that if voters are to be given a choice between two stark alternatives, it is paramount that the features of each alternative are clearly delineated prior to the poll so that the choice made can be as informed as possible. That was basically the message enunciated by Peter Robinson, former leader of the Democratic Unionist Party and First Minister of Northern Ireland, in his controversial speech at the MacGill Summer School in 2018. Unionists who responded by denouncing Robinson for even raising the subject of a border poll fell into the very trap he was warning them against.

Clearly the best option for unionists to advocate for in the run-up to a border poll is that, if there is to be a united Ireland, the Belfast (Good Friday) Agreement should continue to apply, at least for a fairly lengthy transitional period. That is the outcome ably argued for by Mr Justice Richard Humphreys of the Irish High Court in his book Beyond the Border (2018). It seems the fairest and safest way of ensuring that, even if overall sovereignty in Northern Ireland switches from the UK to Ireland, responsibility for day-to-day governance of the six counties will remain for the time being with political representatives elected there. Of course the Northern Ireland Executive will require assurances that there will be adequate funding to implement its programmes for government during the transitional period, so a new treaty to that effect would need to be agreed by the Irish and British governments, together probably with the EU.

In a united Ireland with no devolved Assembly in Belfast, unionists might reasonably fear that their political ideology would become completely obsolete. There being no prospect of a reversal of the vote for unification, they could be reduced to nothing but a marginalised group of TDs (members of the Republic of Ireland parliament) and perhaps a few Senators. Yet in a unified Ireland there could possibly be 60 or 70 new Dáil seats in the six counties currently lying in Northern Ireland and, in an election based on Ireland’s current proportional representation system, unionists might easily win about half of them. These 30 or more seats would be a sizeable bloc and it is therefore conceivable, as pointed out by Brendan O’Leary in an earlier post in this series, that unionists could even be part of a future coalition government in Ireland led by Fine Gael or Fianna Fáil. On the other hand, Sinn Féin would also be likely to gain some 20 or 30 additional seats in the North, greatly boosting their Dáil numbers over those of both Fine Gael and Fianna Fáil.

Naturally, for unionists such an outcome would be very much a second-best option compared with the maintenance of devolution in the North. If it eventuates, however, there are some key aspects of unionism which their representatives would want to focus on.

First, as their ideology is essentially a conservative one, certainly in economic terms, unionists would strive to ensure that Ireland does not become an overtly socialist State, a possibility which Sinn Féin’s success in Ireland’s recent election makes not unthinkable in the near future. Unionists would certainly object to the spending and tax-raising policies of the type argued for in the 2020 manifestos of Sinn Féin, People Before Profit and (to a lesser extent) Ireland’s Labour Party. The challenge facing unionists in this context would be that the political ground they would be seeking to occupy is already well covered by the two big parties which have swapped power in Ireland since the foundation of the State – Fine Gael and Fianna Fáil – but if those parties choose not to organise in the six counties unionists could still win many seats there.

It is otherwise hard to know what aspects of economic conservatism unionists could push for which Fine Gael and Fianna Fáil are not already supporting. ‘Irexit’ – promoted last year by the fledgling Irish Freedom Party – might conceivably be one such aspect, but it is one that is extremely unlikely to gain much purchase in a State which, thanks to strong EU support for Ireland in the difficult negotiations over Brexit, is now more deeply embedded in, and grateful to, the EU than ever before. (The Irish Freedom Party, by the way, received just 0.3% of first preference votes in Ireland’s recent general election.)

Second, as nearly all unionists are from a Protestant background (if they are still religious at all), they would want to be sure that the new State protects all religions equally. Yet their worries on that score would be easily dealt with, since the Irish State has now largely succeeded in disentangling itself from the clutches of the Catholic church. What is more likely is that Protestant churches will join forces with the Catholic church to campaign for a return to more restrictive attitudes on issues such as homosexuality, transgenderism and abortion. Such cooperation would be facilitated by the fact that Protestant churches, apart from the Free Presbyterian church founded by Ian Paisley in 1951, are already organised on an all-Ireland basis. But there is very little evidence that such a campaign would stand any chance of success, certainly amongst younger voters.

Third, and perhaps most importantly, unionists would be keen to ensure that a united Ireland appropriately acknowledges the cultural heritage of their community. They would want to counter any suggestion that British influence in Ireland since the 12th century has been constantly pernicious. They would crave recognition of the role played by Northern Ireland in the defeat of fascism in World War Two. Claiming to be a ‘national minority’, they would seek to vindicate their civil, political, social, economic and cultural rights under Articles 4 to 19 of the European Framework Convention on National Minorities – the Irish government ratified that Convention in 1999 to fulfil an obligation imposed by the Belfast (Good Friday) Agreement. No doubt a claim will also be made that the Ulster-Scots language deserves protection under the European Charter for Regional or Minority Languages, a treaty which Ireland has not yet signed, let alone ratified.

Finally, it might just be that in a united Ireland unionists would re-discover their historical enthusiasm for a Bill of Rights. As observed by Peter Munce in 2014, they have not been a fan of that idea in Northern Ireland, but that is because, until recently, they have always been in the majority there. They could plausibly argue that Ireland’s Constitution is deficient in the protection it accords to the full range of rights supposedly guaranteed by the country’s treaty obligations, not least the rights of minorities.

Brice Dickson is an Emeritus Professor of International and Comparative Law at Queen’s University Belfast and a former Chief Commissioner of the Northern Ireland Human Rights Commission.

 

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The Choices on the Future Menu

Professor Brendan O’LearyBrendan O'Leary photo

Editors’ Note: This post is part of an IACL-AIDC Blog Symposium on unification of the island of Ireland. The Symposium is co-hosted by the Constitution Project @ UCC Blog. Selected posts will also be co-hosted by the UKCLA Blog. The full set of posts can be found here.

The specific future is never known, though possible futures can be mapped. In voting for Irish reunification in a future referendum, Northern Irish voters will expressly seek to terminate UK sovereignty in and over any part of Ireland and its territorial waters. They will not, however, be terminating the British citizenship rights of people born in Northern Ireland. That is known, but what model of Irish reunification will they be voting for?

The answer rests with the Government of Ireland, which has a major choice to make. Either it offers the North a set of principles to be embedded in the future Irish Constitution (through amendment or through a replacement constitution), inspired by and adapting South Africa’s transitional arrangements, or it offers a specific territorial model of reunification. The first choice, identifying principles, postpones the second choice, namely, picking one of the plausible territorial models of reunification.

Two of these models are variants on a unitary state; the third and fourth are federation or confederation.

Let us assume for analysis that one of these four models will be proposed by the Dublin government, after consultation or negotiations with elected Northern representatives, as well as after the use of other deliberative and consultative methods, including a possible citizens’ assembly.

The first we may call an Integrated Ireland; it resembles the traditional model of a united Ireland held by many Northern nationalists and Irish republicans, namely, “a 32-county unitary Irish Republic.” Under this model, Northern Ireland would be abolished as a political entity, but key provisions from the Good Friday Agreement would be carried over.  The sovereign Irish government would be obliged to conduct itself impartially across religions, nationalities and ethnicities; the same rights would have to be protected as previously pledged; and there would have to be cross-border institutional relationships between all these islands. The Irish state’s fundamental rights provisions would apply across the island, as modified by the European Convention on Human Rights and by European Union law.

The second model may be called the Full Transfer of the Good Friday Agreement. Northern Ireland would continue to exist, but not as a devolved entity inside the United Kingdom. Rather it would have a devolved government inside the now re-united Ireland, consistent with Article 15.2.2o of Ireland’s Constitution. Under this model, mutatis mutandis, the full package of institutional arrangements agreed on 10 April 1998, as subsequently modified, would transfer into a united Ireland, including the Northern Ireland Assembly and its power-sharing Executive. The border would retain legal and institutional significance, though it would not be a hard border, marking a sovereign demarcation. But it would still matter because the Northern Assembly would exercise authority inside Northern Ireland for those powers for which it was responsible. The Dublin Parliament would also exercise powers in Northern Ireland—roughly, those currently exercised by the London government. These arrangements could transfer without insuperable complication into a united Ireland, recognized by the Irish Parliament. The Northern Assembly would perform its existing functions, and its existing statute book would remain in place, though it would not cover areas where the Irish Constitution applies. Roughly speaking, these domains are where British authority now applies notably, the currency, the head of state, foreign policy, and external relations.

But in this model  what is called “the West Lothian question” in Great Britain would arise on a much bigger scale. As initially designed in the UK’s devolutionary arrangements of the late 1990s, Scottish MPs voted in the Westminster Parliament on laws that affected England and Wales, and indeed, Northern Ireland, but English MPs did not vote on matters devolved to the Scottish Parliament. Applying a similar arrangement would be a much bigger problem in a united Ireland, because Northern Ireland would be roughly one third of the population of a unified Ireland.

The third model would create the Federation of Ireland. One variation would reconstitute the four historic provinces of Ireland–Leinster, Munster, Connaught and Ulster–with the all-island federal government having key exclusive functions. Instead of the four historic provinces, a second variation would create new city-regions as federal entities; each region would have at least one big city with its surrounding suburbs and countryside. In one subvariant, Northern Ireland would remain as a large city-region with Belfast as its capital, organized with the transfer of the Good Friday Agreement institutions; in another, Northern Ireland, along with the South,  would be decomposed into several city-regions. Lastly, a two-unit federation could be created, with Northern Ireland and the existing Republic as the constituent units. All federal designs would necessarily differ from the variations of a unitary state (models 1 and 2 above) because sovereignty would be shared between the federal government and the regions (or provinces) in a new constitution.

The last plausible model of re-unification that might be proposed in the referendums is The Confederation of Ireland and Northern Ireland. A confederation is a union of member-states that delegate their revocable sovereignty to shared confederal institutions. The member states retain the right of secession. Confederation would imply the formation of a new political system in which the two member-states are joined in a common state, jointly establishing a confederal government with delegated authority over them for specific functions. In Ireland there has been (limited) discussion of the creation of an all-island confederation based on two states, a new sovereign Northern Ireland state, and the existing Republic of Ireland. These two states, possibly building upon and expanding the existing North-South Ministerial Council, would organize to delegate power and authority to bodies with all-island jurisdiction. Northern Ireland would retain the full provisions of the Good Friday Agreement, with the authority to modify its institutions in accordance with existing norms.

Though the four models briefly sketched here are the obvious institutional templates to complete Irish reunification in my opinion neither federation nor confederation is likely to be formally offered in a referendum—except in a significantly future tense.

Pragmatic, not just constitutional reasons, explain why a federal Ireland, however desirable, would be unlikely to materialize as an immediate proposal. Currently, there is little push to recreate historic Ulster, namely, a nine-county entity. Most Northern Irish Protestants prefer the six-county Northern Ireland to restoring the Ulster that their precursors chose to relinquish. In addition, voluntary federations usually evolve from pre-existing institutions of comparable status “coming together,” or they occur though a decision by an existing state to federalize “to hold together”. But the first condition does not apply in this case, and the second could only apply after Ireland unifies. When there is a reunification referendum, if there is a functioning executive in Northern Ireland, it will represent the institutional interests, identities and ideas, of a devolved unit, and it would be negotiating with the sovereign Government of Ireland, in which there has been no historical disposition toward federation, and no experience of devolution. It is therefore reasonable to suggest that federation is most likely to materialize only after an all-island constitutional convention convened for that purpose.

Confederation, by contrast, may be judged strictly incompatible with the Good Friday Agreement, at least immediately. That is because a proper confederation would involve a sovereign independent Northern Ireland state joining in treaty of confederation with the sovereign and existing Republic of Ireland. Neither Irish nor British governments have ever recognized Northern Ireland’s right to independence; it is excluded by any construal of the Good Friday Agreement; and there is little current demand for it. Unless the Irish Government were to declare it so, confederation is not an obvious “united Ireland,” given that the first step would involve Ireland’s recognition of a sovereign and independent Northern Ireland. Indeed, this option may conceivably violate Ireland’s Constitution: is it compatible with Article 3?

A last point: based on deliberative polling I have carried out with John Garry of Queen’s University Belfast that will be reported in the next issue of Irish Political Studies. One might expect that, obliged to choose, Ulster Protestants would prefer the full transferred Good Friday Agreement model to an integrated Ireland. That is what we expected before we conducted an experiment checking immediate preferences and later outlining the possibilities in depth. In the course of this experiment significant numbers of Ulster Protestants changed their minds. They reflected that power-sharing had not worked smoothly within Northern Ireland. Others deemed keeping the existing power-sharing institutions unappealing, because under them unionists would be a minority locally governed by (and with) a Northern nationalist majority. Some calculated that they would have better prospects of influence as a large minority (one sixth) perhaps unified behind a major political party or a coalition of parties in an Irish unitary state; that way they could be part of re-shaping all of Ireland. If such dispositions become strong among Ulster Protestants, then confederation and federation will likely be bypassed, as might preserving a devolved Northern Ireland within a unitary state.

Brendan O’Leary is Lauder Professor of Political Science at the University of Pennsylvania, and World Leading Researcher Visiting Professor at Queen’s University Belfast. He has been the Senior Advisor on Power-sharing to the Mediation Support Unit of the United Nations, is the inaugural winner of the Juan Linz Prize of the International Political Science Association for research on federalism, democracy and ethnic conflict, and is an Honorary Member of the Royal Irish Academy. A Treatise on Northern Ireland (three volumes) was published in 2019 by Oxford University Press.

 

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Processes for Irish unification: Perspectives from Irish constitutional law

Professor Oran DoyleOran Doyle 191119

Editors’ Note: This post is part of an IACL-AIDC Blog Symposium on unification of the island of Ireland. The Symposium is co-hosted by the Constitution Project @ UCC Blog. Selected posts will also be co-hosted by the UKCLA Blog. The full set of posts can be found here.

Introduction

International law, UK law, and Irish law adopt the same substantive position on Irish unification: it requires the consent of a majority of people in both jurisdictions on the island of Ireland. However, they approach the question from different perspectives and with subtly different emphases. In this post, I explore the issue from the perspective of Irish law to identify what unification processes would be legally effective in Ireland.

I suggest that a referendum to amend or replace the Irish Constitution is the most plausible process. I then explore how such a referendum could be integrated with processes in Northern Ireland and the United Kingdom in a way that does not reproduce the Brexit model of leaving fundamentally important choices to be made after the referendum.

This blogpost does not advocate for a united Ireland, nor for any particular form of a united Ireland.

Bare unification

The Irish Constitution of 1937 provided that the national territory consisted of the whole island of Ireland, its islands and the territorial seas. In order to give effect to the Belfast/Good Friday Agreement (GFA) 1998, several amendments were approved by referendum.

Art 3.1 now reads:

It is the firm will of the Irish Nation, in harmony and friendship, to unite all the people who share the territory of the island of Ireland, in all the diversity of their identities and traditions, recognising that a united Ireland shall be brought about only by peaceful means with the consent of a majority of the people, democratically expressed, in both jurisdictions in the island….

This establishes unification as a constitutional commitment, the realisation of which crucially requires the consent of a majority of the people, democratically expressed, north and south.

There are four ways in which consent could be democratically expressed in southern Ireland: (a) through a statute enacted by the Oireachtas (Parliament); (b) through a referendum pre-authorised by a statute to count as the democratic expression of consent; (c) through constitutional amendment by referendum; (d) through constitutional replacement by referendum. Assuming a vote for unification in Northern Ireland as well, each of these would allow extension of the national territory to encompass the entire island, subsuming Northern Ireland into the existing state.

Unification with constitutional changes

Much of the public debate on unification assumes, however, that it would be appropriate and desirable to make significant changes to the Irish state in the event of unification, principally to make it more hospitable to new citizens with a British identity. While some such changes—for example, joining the Commonwealth—could be achieved by legislation, others would require constitutional amendment or constitutional replacement. There do not appear to be any substantive limits on the power to amend the Irish Constitution. Accordingly, the choice between amendment and replacement is not legally constrained.

Among the areas where changes would, if thought appropriate, require constitutional amendment or replacement are the following:

  • Symbolic provisions of Irish nationhood, such as the national flag, Irish as the national and first official language;
  • Power-sharing arrangements in the national legislature or government;
  • Any federal or confederal system;
  • Alterations to the amendment process, whether to change the thresholds for amendment or entrench provisions against subsequent change.

It is also likely that the continuation of devolution and power-sharing in Northern Ireland would require constitutional change. While Art 15.2 allows for the establishment of subordinate legislatures, there is no equivalent provision for subordinate executives.

Although unification could take place without a referendum, it seems likely that a referendum would be preferred in order to allow at least some changes of the type just listed. How might this referendum be integrated with approval processes in Northern Ireland?

Integration of approval processes, north and south

Aoife O’Donoghue noted the GFA requirement of concurrent approvals. If both north and south approve, it is a binding obligation on the UK and Irish Governments to introduce and support in their respective parliaments legislation to give effect to that wish. Colin Murray explained how, under the Northern Ireland Act 1998, the Secretary of State is required to call a border poll in certain circumstances. If a majority in Northern Ireland then votes in favour of unification, the Act requires her to lay before the UK Parliament such proposals to give effect to that wish as may be agreed between the UK and Irish Governments.

It is these provisions that tend towards the Brexit model: referendum followed by negotiations. But if negotiations on the detail of unification could only take place after the referendums, citizens would not have a clear idea of what they were voting for. Moreover, the UK and Irish Governments would lack a clear mandate as to the form of unification they should be negotiating.

If negotiations between the Governments broke down, an Act of the Oireachtas—legally required by the GFA—would make Northern Ireland part of Ireland as a matter of Irish law. But Northern Ireland would remain part of the United Kingdom as a matter of UK law unless or until the UK Parliament passed legislation ceding sovereignty to Ireland. It is imperative that this risk be reduced. It would be a travesty to return to a situation where Ireland and the UK disagree on the constitutional status of Northern Ireland.

The best way to reduce this risk is to settle as much detail as possible about the form of unification prior to the concurrent referendums. People in southern Ireland would vote on the principle of unification and related constitutional changes that would take effect if there were a ‘yes’ vote in Northern Ireland. People in Northern Ireland would vote on the principle of unification, equipped with knowledge of the proposed constitutional structure of the new state.

For the details of a united Ireland to be settled before the votes, three to five years should elapse between the calling of the votes and the votes themselves. This would allow for formal negotiations between the UK and Irish Governments, interaction with the devolved institutions in Northern Ireland, and the engagement of ordinary people—north and south—through citizens assemblies and other means.

Notwithstanding all this negotiation, interaction, and consultation, the referendums would essentially involve the Irish Government making a nationalist offer both to people in Northern Ireland and to its own citizens. Northern unionists would—quite legitimately—have no incentive to participate in any form of discussions or negotiations unless or until unification was approved and irreversible. The Irish Government would have strong reason to make the offer attractive to unionists, both to solicit votes and to reduce feelings of alienation in a newly unified state. But it is difficult to see any formal engagement with political unionism prior to unification.

For this reason, I previously suggested a model whereby transitional arrangements could apply for several years post-unification, while the citizens of the new state collaborated on a new constitution. There is force, however, to the criticism that a legal requirement to this effect would reintroduce undesirable uncertainty at the time of the referendums over the form of unification. I still believe that a newly unified state should consider a new constitution to which all its citizens could contribute, but this should not be legally required as part of the unification process.

Oran Doyle is a professor in law at Trinity College Dublin and a visiting faculty member at the University of Pennsylvania Carey Law School. This post draws on a forthcoming working paper, co-authored with David Kenny, to be published by the Working Group on Unification Referendums on the Island of Ireland, convened by the Constitution Unit of University College London and supported by generous funding from the British Academy.

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A Referendum on a United Ireland: Perspectives from UK Constitutional Law

Colin MurrayColin Murray

Editors’ Note: This post is part of an IACL-AIDC Blog Symposium on unification of the island of Ireland. The Symposium is co-hosted by the Constitution Project @ UCC Blog. Selected posts will also be co-hosted by the UKCLA Blog. The full set of posts can be found here.

The Northern Ireland Act 1998, a statute passed by the Westminster Parliament, implements the Belfast/Good Friday Agreement (GFA) within UK law. It declares that Northern Ireland remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a referendum (the ‘principle of consent’). However, if a majority in such a vote favours a united Ireland, the UK Government must lay before Parliament any proposals to give effect to that outcome which it agrees with the Irish Government.

The Act also provides loose criteria for calling a so-called ‘border poll’. The Secretary of State has a general power to call a referendum on reunification at his discretion. This power is sometimes forgotten against the fraught backdrop of Brexit, but only a few years ago Arlene Foster, Northern Ireland’s current First Minister and leader of its largest Unionist party, the Democratic Unionist Party, was suggesting using this power to affirm its place in the UK. The new Secretary of State, Brandon Lewis, is however under an obligation to institute a referendum if at any time it appears likely to him that a majority of those voting would support a united Ireland.

These provisions were the subject of heated debate in the House of Commons on the evening of 22 July 1998. It was a night of Unionist unity. The Reverend Ian Paisley, the leading unionist opponent of the Agreement, proposed adding a requirement of a cross-community Assembly vote in support of a reunification referendum before it could be triggered. Even David Trimble, who as leader of the Ulster Unionist Party was one of the Agreement’s most important architects, couldn’t resist tabling an amendment which would have required a 60 per majority referendum outcome before the UK Government would take steps towards unification.

The GFA, however, settled the terms of the UK’s obligations word for word; a majority meant a simple majority of those voting in a referendum. The amendments were defeated by overwhelming majorities. Perhaps as a consequence of this distraction, however, the debate neglected various important aspects of the referendum process. Neither the Agreement nor the Northern Ireland Act details how the Secretary of State should form a judgment that there is a likelihood of a majority in favour of a united Ireland. Therefore, although the Act imposes a duty on the minister to act if that condition is reached, the Act appears to hand unrestricted discretion to the minister in how to gauge the opinion of the people of Northern Ireland.

In the words of Paul Murphy, the junior minister tasked with responding to the debate, the ‘spirit of the agreement is that the Secretary of State should, when she or he thinks fit … hold a border poll’. Ian Paisley fulminated about the prospect of such an unrestricted power, and Murphy was obliged to clarify that Parliament would be involved in approving the referendum process:

In order for the mechanics of that poll to be agreed by Parliament, there would be an opportunity … for both Houses to review the Secretary of State’s decision if it were judged rash and ill-defined and if it was believed that a border poll was being held without basis in reason or common sense. I have not the slightest doubt that hon. Members in this and the other place would point that out during such a debate.

In other words, the UK Parliament would be able to reject the statutory instruments that would be needed to organise a referendum if it thought that such a vote was a bad idea. But on the opposite side of the coin, there is no meaningful parliamentary process for pushing a recalcitrant Secretary of State towards triggering a referendum if the UK Government is unwilling to act upon evidence of a shift in opinion in Northern Ireland towards favouring (re)unification.

In recent years the UK Government has repeatedly refused to be drawn upon how it conducts its assessment of public opinion in Northern Ireland (the weight, for example, it gives to opinion polls or election results in Northern Ireland). Parliamentary questions have been dismissed on the basis that the Secretary of State does not believe that the conditions triggering the duty to hold a referendum have been met. Given concerns over Brexit’s impact upon Northern Ireland, it was almost inevitable that there would be a turn to law to understand the limits of ministerial discretion.

The case of In re McCord, decided by the High Court of Justice in Northern Ireland in June 2018, challenged the failure of the Secretary of State to make public the grounds for determining public opinion on (re)unification. Sir Paul Girvan swiftly dismissed the challenge:

Evidence of election results and opinion polls may form part of the evidential context in which to exercise the judgment whether it appears to the Secretary of State that there is likely to be a majority for a united Ireland. The overall evidential context on how it should be analysed and viewed is a matter for the Secretary of State.

It was always going to be an uphill struggle to convince the courts to tie the hands of ministers over such a decision, but the brusque tone of this judgment calls into question the willingness of the courts to deal with issues around the interpretation of fundamental aspects of the GFA’s incorporation into domestic law.

In re McCord is currently under appeal. Even if that appeal is unsuccessful, the Northern Ireland Court of Appeal might at least take the opportunity to clarify the boundaries of the executive discretion. Even if a decision over a reunification referendum is based upon the Secretary of State’s assessment of the state of public opinion amongst voters in Northern Ireland, that assessment has to be conducted on a rational basis (requiring what Paul Murphy described in 1998 as ‘a proper assessment of the political circumstances at the time’). On this basis, the Court could take the opportunity to clarify that the rationality of a failure to act upon a body of evidence (either opinion polls or election results) which suggested that there could be majority support in Northern Ireland for unity would be open to legal challenge.

Even after the trigger point for a referendum has been reached, the open nature of the Northern Ireland Act’s key terms generate the potential for political and legal wrangling. The electorate for a referendum is uncertain; the GFA’s definition of the people of Northern Ireland would necessitate the creation of a special franchise which could take years to put in place. And then there is the guarantee of the principle of consent itself; the legislation only requires the UK Government to ‘lay before Parliament … proposals to give effect to that wish’. The legislation falls short of an obligation on the UK Parliament to give effect to a referendum outcome in favour of a united Ireland (even if the notion of such an ‘obligation’ makes any sense in a constitutional order which prioritises the sovereignty of the sitting Parliament).

There is thus no mechanism under the Agreement, or under the Northern Ireland Act, by which the UK Government can be pressurised into authorising a referendum on the (re)unification of Ireland. Sinn Féin can pledge, in its manifesto for Ireland’s 2020 General Election to ‘[s]ecure a referendum, north and south, on Irish Unity’, but even if it enters government in Ireland having secured the largest first-preference share of the popular vote, it has no means of delivering upon this promise. If the Secretary of State for Northern Ireland does not accept that there could be majority support for a united Ireland, he is under no duty to call a referendum.

These shortcomings mean that nationalist politicians should have had as many questions over the workings of a referendum on unity as their Unionist counterparts. But the one-sided nature of the parliamentary debate demonstrated either a trust in the UK Government’s bona fides or a prioritisation of getting the power-sharing institutions in place. This is not to say that the UK Government will renege on its longstanding commitment to having ‘no selfish strategic or economic interest in Northern Ireland’ or that it would seek to thwart majority support amongst the people of Northern Ireland for unity. But there are few legal avenues for enforcing its pledges.

Colin Murray is a Reader in Public Law at Newcastle University (UK). This post forms part of the ESRC Governance after Brexit Performing Identities project and is drawn from the article, ‘Life after Brexit: Operationalising the Belfast/Good Friday Agreement’s Principle of Consent’ forthcoming in the Dublin University Law Journal (co-authored with A O’Donoghue).

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International law and the Island of Ireland’s future

Professor Aoife O’DonoghueAoife O'Donoghue

Editors’ Note: This post is part of an IACL-AIDC Blog Symposium on unification of the island of Ireland. The Symposium is co-hosted by the IACL-AIDC Blog and the Constitution Project @ UCC Blog. Selected posts will also be co-hosted by the UKCLA Blog. The full set of posts can be found here.

As international law is the arbiter of statehood one would be forgiven for imagining that it delineates the pathways for new/(re)unified/breakaway states. The reality is different. The unhelpfulness of international law derives from its innate conservative nature. Change is unwelcome. Self-determination is so circumscribed that it is almost never fully legal until after the fact. Changing borders, say to alter the Monaghan polyp (a small piece of territory in the Republic of Ireland that is almost completely surrounded by UK territory), is inadvisable. Conversely, international law’s equivocation means where there is agreement, states are free to act once there are no violations of human rights or third-party rights. Recognising any changes is a matter for other states and international organisations. And it is states, not ‘people’, that are paramount. The Belfast/Good Friday Agreement (GFA), The Belfast/Good Friday Agreement (GFA)—the agreement between the parties in Northern Ireland and the related international treaty between the British and Irish Governments that was central to the peace settlement in 1998—sits within the transitional justice tradition making combined international/constitutional insight essential. This post sets out to provide the former.

At times, treaties are thrown into political debates as arbiters of rectitude. When states act unilaterally and contravene treaties, they are rightly condemned, but this does not mean that consensual solutions cannot be found or that contested meanings do not remain. Even if the GFA is far from perfect, it is settled lex specialis in the Northern Ireland context. The GFA resolves some issues, but not all. Its mixed character, its unintended consequences, its (intended) constructive ambiguities, Brexit and its evolution, all form part of the shaping of the ‘constitutional question’. The Vienna Convention on the Law of Treaties (VCLT) provides a baseline of good faith implementation and interpretation and incorporates modifications, including the St Andrews Agreement and New Decade New Approach, but the GFA’s text is paramount.

The distinction between unification or reunification has few legal implications, but it has political meaning for some. In Was Ireland Conquered Anthony Carty examines international law’s status through the Norman invasion, Surrender and Regrant, Plantations, the Act of Union, partition, the Government of Ireland Act 1920, and the 1921 Treaty, demonstrating the complexities in reading international law in its historical context. In their 2013 Government Report on Scottish Independence Boyle and Crawford state that before the 1801 Act of Union Ireland, unlike Scotland, was a colony. While under the 1921 Treaty it is likely that reunification is accurate, in practice there was scarcely a day between its coming into operation and Stormont’s notification to remain in the UK. A supplementary question is when Ireland achieved statehood. Whatever status the UK’s imperial constitutionalism may have granted, international law is the authoritative regime, and effective independent statehood was likely achieved in the mid-1920s.

International law pivots around the right to self-determination rather than on its content. External and internal self-determination, as well as remedial, colonial and seccessionary variants, are frequently utilised categorisations, but the GFA’s existence makes the classification of processes in Ireland largely irrelevant. Ireland was excluded from self-determination’s first international legal iteration at the Versailles Peace Conference, but both it and the UK have been amongst the states creating customary international law and UN Charter practice. As part of decolonisation, self-determination has its strongest legal form, but beyond this context its content remains much debated. Fortunately, the GFA settles these issues by recognising the self-determination claims of ‘the people of Northern Ireland’ and the ‘people of Ireland’; and the 1998 referenda democratically legitimates that recognition.

While the Northern Ireland Act 1998 and Ireland’s various constitutional and legislative practices (discussed elsewhere in this symposium) determine how both states go about referendums, the GFA sets the frame. Under international law, a referendum favouring secession does not necessarily give rise to independence, rather it begins discussions on settlement options, including enhanced autonomy.  However, under the GFA, the UK is bound to the referendum’s outcome. Ireland reserves the incorporation of Northern Ireland to determination via its domestic structures; another exercise of self-determination. The GFA absolutely requires a referendum in Northern Ireland but the difference in language for Ireland theoretically opens possibilities for alternative modes here. The GFA states that processes on either side of the border happen concurrently, which appears to require simultaneousness. Under the terms of GFA ‘the people of Northern Ireland’ are ‘all persons born in Northern Ireland and having, at the time of their birth, at least one parent who is a British citizen, an Irish citizen or is otherwise entitled to reside in Northern Ireland without any restriction on their period of residence’. This excludes Irish citizens born in the Republic living in Northern Ireland from the franchise, but should both franchises align if concurrence is also important? 16-year olds voted in the Scottish referendum, should that be extended? London and Dublin will need to settle these questions early in any planning.

Just as in 1921, two new states are created. Both unification and break-up create specific issues including, amongst others, liability for state pensions, international debt, responsibility for any ongoing litigation and liabilities. These are normally settled via a treaty which conforms to the Vienna Convention on State Succession 1978. While there is no international legal prescription on state names, as Greece and the Republic of North Macedonia demonstrate, long-running complications can ensue. We could assume the names would be Ireland and the United Kingdom of Great Britain. ‘Clean slates’ as Czech Republic and Slovakia chose, where both states began afresh with their international obligations, is highly unlikely as the UK could wish to continue to hold its permanent seat on the UN Security Council and Ireland its EU membership. Depending on the timings of a new/revised constitution a lacuna of human rights obligations that conform to GFA standards, for instance, on parity of esteem (the central principle enshrining the need for recognition and respect for both main communities of Northern Ireland), could be created. However, both States are signatories to numerous human rights treaties including the European Convention on Human Rights and have domestic and shared human rights monitoring bodies (as part of the GFA) which should provide short-term fixes for both rights existence and enforcement.

Should either state fail to comply with the GFA, there are limited avenues for redress. For instance, should the Secretary of State for Northern Ireland refuse to hold a referendum both domestic and international options are possible. A violation of the treaty would be an international wrongfully act under The Articles on Responsibility of States for Internationally Wrongful Acts, but there is no dispute settlement clause in the GFA. Ireland excluded the International Court of Justice’s jurisdiction over disputes regarding Northern Ireland. General Assembly members could ask for an Advisory Opinion as per the Chagos Archipelago Opinion, but this would take a major diplomatic effort. Both states could create an ad hoc tribunal, but domestic avenues of judicial review are potentially more effective.

The GFA is not temporally limited. It contains future locks where ‘whatever choice … the power of the sovereign government with jurisdiction there shall be exercised with rigorous impartiality’.  In 1998, Ireland’s Attorney General highlighted that ‘the commitments in the British-Irish Agreement to equality of treatment and parity of esteem, and to the dual citizenship rights of the people of Northern Ireland, are explicitly to apply irrespective of the status of Northern Ireland’. East-West cooperation and birth right provisions to claim UK citizenship and parity of esteem are set to continue even if a united Ireland comes to pass.

The GFA settles many issues, and other state practices are informative, but enough issues remain to demand imaginative forethought from all concerned parties.

Aoife O’Donoghue is a Professor of International Law and Global Governance at Durham University Law School. This work forms part of an ESRC Governance after Brexit project Performing Identities and the article, co-authored with CRG Murray ‘Life after Brexit: Operationalising the Belfast/Good Friday Agreement’s Principle of Consent’ is forthcoming in the Dublin University Law Journal.

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