NEW: Why the Referendum Supermajority Bill is necessary to restore constitutional balance and protect the UK
By Jamie Bryson
In Parliament yesterday (8 November 20220) Ian Paisley Jnr MP commenced the first stages of an important constitutional Bill which, if it becomes law, will presumably do two things: firstly, it will provide a clear and stable framework in regards the constitutional future of the United Kingdom as a whole; and secondly, it will crucially ensure that the principle of consent- as promised to unionism in the Belfast Agreement- is in fact reflected in statute.
The Bill will require a ‘supermajority’ for any constitutional change internal to the United Kingdom, and by necessity define what constitutional status means (specifying that every other enactment- including devolution statutes- is subject to that definition contained within any such relevant provision).
There will be, I presume, those who will raise the issue of Brexit being a straight majority. That however is a red herring for the following reasons.
The Brexit referendum related to the external international relationships of the United Kingdom, rather than the internal constitutional arrangements of the Union itself. In that referendum, the entire United Kingdom voted as one. That should have meant the entire United Kingdom left the EU as one, but of course that- to date- has not happened given Northern Ireland remains, in the words of Lord Justice McCloskey “more in the EU…that the UK”.
The difference with internal UK referendums- such as a border poll in Northern Ireland or a Scottish independence vote- is that the entire Union does not have the opportunity to vote on the dissolution of the Union, but rather- as it presently stands- it can be dissolved by a mere slim majority in one constituent part of the United Kingdom.
That is truly absurd and was recognised as such by the late Court of Appeal jurist, Sir John Laws, writing about Scottish independence in his book ‘Constitutional Balance’.
Sir John said: “it seems to be profoundly undemocratic that in 2014 only those resident in Scotland, and not the inhabitants of England, Wales or Northern Ireland, were allowed to vote on the prospective dissolution of the United Kingdom.”
It is hardly a controversial view that any vote to dissolve the Union should be a matter for the entire Union. That would provide the necessary constitutional balance and stability. That is the objective unionism should strive for. The case for such an arrangement is unanswerable.
However, recognising that- for the time being anyway- Parliament has taken a different- and, in truth, foolish- course, particularly in relation to Northern Ireland, the Bill (if it becomes law) would provide a measure of stability by another route.
In any internal UK constitutional referendum, a supermajority would be required. This could be, for example, that a majority of all those eligible to vote is required, or it could prescribe a different threshold.
I can deal swiftly with the point that this would breach the Belfast Agreement. It would not. The reference in the Agreement or Northern Ireland Act 1998 to ‘a majority’ is not defined. It does not state a 50% +1 majority, and therefore it is in fact for Parliament to determine the extent of any majority required. The power to provide for such provisions is, in any event, already provided for without limitation in Schedule 1 paragraph 4 (2) which permits the Secretary of State to make any provision he thinks expedient.
The Bill is entirely consistent with the Belfast Agreement, and more importantly the Northern Ireland Act 1998.
The requirement that there would need to be a majority of those eligible to vote is not inconsistent with section 1 (1) of the 1998 Act. On a superficial reading of section 1 (1) it may be said, as a ‘gotcha’, that it states “a majority of those voting”.
This isn’t quite the answer to the point that nationalism thinks it is. Section 1 (1) imposes the minimum requirement. In full, the relevant part of the provision states:
- It is hereby declared that Northern Ireland in its entirety 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 poll held for the purposes of this section in accordance with Schedule 1.
Therefore, Northern Ireland shall not cease to be part of the UK without the consent of a majority of the people of Northern Ireland voting in a poll. That is the minimum threshold required. The provision does not direct itself at all to the maximum threshold which may be set, greater than the minimum required as set out in section 1 (1).
If the provision stated that Northern Ireland shall cease to be part of the UK with the consent of a majority of the people of Northern Ireland voting, that would probably be sufficient to determine that only a majority (the threshold of which could still be determined) of those voting, rather than a majority of those eligible, is required. But it does not say that.
It says Northern Ireland shall not cease to be part of the UK without the consent of a majority of the people voting in a poll. That is a limitation, or put another way, the minimum required. There is nothing to prevent the actual standard required being something different, so long as it was nothing less than a majority of those voting in a poll.
Put simply, a poll in accordance with Schedule 1 of the 1998 Act could- entirely compatibly with the Belfast Agreement and 1998 Act- specify that a majority of those voting is to be a majority of those eligible to vote. It could also set whatever threshold of a majority as felt expedient (see Schedule 1 paragraph 4 (2)).
As previously set out, this would all permissibly differ from Brexit because it relates to internal UK constitutional arrangements, rather than external international relationships. It is appropriate a different standard would apply, because the necessary constitutional stability and balance can never be achieved when one part of the UK can break up the Union by the merest of majority of one in that constituent part, but not a majority in the Union itself.
This Bill would ensure that in the constituent part voting to leave the Union, there would need to be at least a significant majority for an affirmative vote to dissolve the UK. It has been long recognised (including by figures such as Leo Varadkar) that 50% +1 is not a recipe of stability. This Bill seeks to ensure stability and a durable framework.
In circumstances, particularly in regards Northern Ireland, whereby there is ‘no way back’ if there were to be a vote to dissolve the Union, it is imperative that such a significant and seemingly irreversible decision would require a significant majority.
The second aspect that would be necessary to make the Bill effective is providing a clear definition of ‘constitutional status’. In such a Clause this would need to be defined as the Act of Union 1707, the Union with Ireland Act 1800 and The Act of Union (Ireland) 1800.
However, crucially, the Bill would need to require that all other enactments- including the devolution statutes- are to be read subject to that provision. That means that in interpreting section 1 of the Northern Ireland Act 1998, the new definition of constitutional status would apply.
This is of vital importance. In regards the Protocol, which “subjugates” the Acts of Union, and thus our place in the Union itself, it has been held not to trigger the principle of consent because section 1 of the 1998 Act (the principle of consent) is in fact to be interpreted as purely territorial.
Put simply, the present application of the principle of consent- which was not what was promised to Unionism- means that in regards Northern Ireland’s place in the Union, you can change everything but the last thing, the last thing being merely the final formal handover of sovereignty. It would permit the handing of law-making and judicial powers to Dublin, as they have been handed to Brussels. That is plainly inconsistent with the clear promises made to our community, and an unsustainable basis upon which to base power-sharing.
It is notable that the Government nevertheless (correctly) ruled out handing law-making powers to Dublin (joint authority) because such would breach the principle of consent, but yet maintain the plainly illogical position that handing law-making powers to Brussels, and subjugating the Acts of Union, does not trigger the principle of consent.
In the DUP’s seven key tests, the seventh directed itself to the necessity to protect the “letter and spirit” of our constitutional guarantee. This Bill, if the framework is shaped correctly, will ensure that there can be no diminution of our constitutional status, whilst Northern Ireland remains in the United Kingdom. You cannot incrementally dismantle the Union, and treat the principle of consent as merely a tool to ratify the last lowering of the Union flag.
This Bill is a welcome effort to provide constitutional stability, but also hopefully clearly define what the Union is. And that is simple: the Act of Union is the Union.
Unionism must go on the offensive and seek so strengthen the Union, rather than consistently merely defending the status quo against wave after wave of nationalist attack. This Bill is a good starting point.
Enough is Enough!
Jamie Bryson is author of Brexit Betrayed and NI Constitutional Law: Acts of Union and the NI Protocol.