By Jamie Bryson
In a recent social media debate with Queens University lecturer and Alliance Party member Duncan Morrow, which was respectful and dignified, a dispute arose over the Belfast Agreement and whether it could be overridden. I argued that it could, and indeed should, and Mr Morrow argued that it would be in breach of international law and could not therefore be overridden.
Mr Morrow’s key points can be summarised as follows;
(1) That sovereignty over Northern Ireland rests with the people of Ireland, North and South, alone.
(2) That the British Parliament would be in breach of international law if they were to repeal the Northern Ireland Act 1998, and as such unilaterally override the international treaty underpinning the Belfast Agreement, which of course was given practical effect by the aforementioned Act.
(3) That the Belfast Agreement is the only basis for governance in Northern Ireland and we can not countenance any departure from the provisions laid out in the Northern Ireland Act 1998.
If I have surmised any of the above points wrong, then I am sure Mr Morrow will correct me within any rebuttal that he provides
In relation to (1) it is quite clear that Mr Morrow’s assertion appears to suggest that no change to the Belfast Agreement can be made without the consent of, as he would word it, the people of Ireland, North and South.
I would presume the outworking of his assertion is that such consent could only be given either via a legislative consent motion, or a North and South referendum.
This, of course, is plainly incorrect. The Northern Ireland Act 1998 has already been amended at St Andrews without either a legislative consent motion in the Northern Ireland Assembly, or a North and South referendum.
The Northern Ireland Act 1998 itself is extremely clear at Section 5 (6). British Parliamentary sovereignty is fully retained. Therefore the sovereign British Parliament is free to legislate over any issue pertaining to Northern Ireland, and this includes repealing the Northern Ireland Act 1998 if it so wished.
On this point it is important to debunk the myth that the Northern Ireland Act 1998 is a ‘constitution’. This gives it the status of a holy writ that is politically sacrosanct. It is, quite simply, a piece of legislation. And like every other piece of legislation it can (and has) been amended, and if it was the will of Parliament, it could be repealed.
I will concede that the Northern Ireland Act 1998 is underpinned by an international treaty, but in the same vein international treaties are not binding forever and a day. It would be absurd to suggest that any treaty is binding forever.
They can be overridden, which brings us to Mr Morrows other key theme, outlined at (2) above, namely that repealing the Northern Ireland Act 1998 would be in breach of international law.
The British Government can override any treaty, at any time. This can be done via a Royal Prerogative. Those hostile to Brexit have already tried to litigate this point, submitting that a legislative consent motion from the Northern Ireland Assembly was necessary to allow such a Royal Prerogative to take effect. This was dismissed by the High Court.
So, if as I presume it would be, Mr Morrow’s argument is that the Northern Ireland Act 1998 could not be repealed, or a Royal Prerogative to override the Belfast Agreement could not take effect without a legislative consent motion, then this argument has already been tried, and failed, in relation to Article 50.
The third key tenet of Mr Morrow’s argument de-facto bestows the status of a holy writ upon the Belfast Agreement. Placing it above challenge, or change. This has no basis. I have previously alluded to the fact the Belfast Agreement, and subsequent Northern Ireland Act 1998, whilst being underpinned by an international treaty, is not set in stone. It is, at its core, a piece of legislation that can be repealed.
The logic of Mr Morrow’s overall argument would mean that given the international treaty is signed by the British and Irish Governments, that responsibility for Northern Ireland, if the institutions given effect by the Northern Ireland Act 1998 floundered (as they have), would rest with the two governments in some form of joint-authority.
This would stretch the Belfast Agreement into the territory that many unionists always feared it would reach. It would be a fundamental breach of Parliamentary sovereignty and a gross betrayal of the British people.
The resolution to our current impasse is the repeal of the Northern Ireland Act 1998 and responsibility for Northern Ireland left to reside firmly with the mother Parliament.
If Sinn Fein then wish to engage in talks they can do so, but only from a position whereby the Northern Ireland Act 1998 has been repealed and total control over Northern Ireland resides with Westminster.
No return to the status quo indeed!