OPINION: Strengthening the Union requires rebalancing the concept of consent in the Belfast Agreement
By Jamie Bryson
On Saturday the Belfast Telegraph’s Sam McBride published a detailed article challenging the merits of Ian Paisley’s constitutional Bill which would provide for a more stable definition of ‘a majority’ for the purposes of referendums.
The purpose of the Bill, according to Mr Paisley’s explanation, is to provide constitutional balance and stability. Those who are critics have stated that it is an effort to change the rules agreed within the Belfast Agreement. It should be noted the draft Clauses have yet to be published, and I imagine when they are as part of the engagement around the Bill (and the ideas therein), that this will enable a more informed discussion.
It is of course somewhat bizarre to hear Sinn Fein, SDLP, Alliance and others talk about the sanctity of the ‘rules’ set in 1998, given the same parties want to impose joint-authority and Alliance want to change the rules of the institutions to exclude unionists who are unwilling to accept the subjugation of the Union.
This article, which is both a broad-brush riposte to some of Mr McBride’s points but also seeks to develop the constitutional conversation within unionism (about how to strengthen the Union), can be said to develop four overlapping propositions:
Firstly, that the concept of self-determination set out in the Belfast Agreement has created a fundamental constitutional fault-line; secondly the principle of consent as formulated in 1998 was not a ‘great achievement’ for unionism, but rather (i) a deception in terms of its purported scope and (ii) a weakening of that which was already in place; thirdly that the ‘rules of the game’ as formulated by the frameworks set out in, and created by, the 1998 Agreement are designed to incrementally dismantle the Union; and fourthly, that it is not only permissible, but necessary for unionism to seek to re-shape the constitutional framework as applied to Northern Ireland, in order to strengthen the Union.
In accepting the principle of self-determination, to be exercised by both Northern Ireland and Republic of Ireland in concurrent referendums, as formulated in the Belfast Agreement, unionism made a fundamental error.
The self-determination concept conceived in 1998 views the Union through the prism of being more akin to an arrangement between a collection of independent states operating as a bloc (like the EU- notwithstanding that institution’s encroachment on sovereignty of its members), rather than being in of itself one sovereign country.
This is so because Northern Ireland- alone- can dissolve the Union in its present form by a majority vote, if there is parallel consent provided in the Republic of Ireland. Herein lies the fundamental imbalance: for Northern Ireland to leave the Union, the consent of the rest of the Union is not required; rather merely consent of this small part of the Union alongside consent of another foreign state (Republic of Ireland) will- as things presently stand- suffice for the dissolution of the Union.
This issue was discussed by the late Sir John Laws, former Lord Justice of Appeal in England and Wales, in his publication ‘The Constitutional Balance’.
He said, discussing the Scottish Independence referendum: “it seems to me 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.”
Why should it not in fact be the case that either (i) adopting Laws LJ’s formulation, that the consent of the whole Union- voting as one- be required for its dissolution; or alternatively (ii) that the self-determination principle provides a parallel requirement for GB to consent to NI leaving the Union, in the same manner as consent of the Republic of Ireland is required for NI to join their country?
If the Union- as I urge- is viewed as one integrated entity, then Ian Paisley’s Bill- which seeks to provide constitutional balance- is not as absurd as Mr McBride suggests. It is in fact wholly logical.
The underlying premise of Mr McBride’s analysis is that the ‘rules of the game’ are set in stone post-1998, and unionism must operate within those parameters, regardless as to whether such rules are- by design- created with the destination being the end of the Union.
That, to me, seems like an absurd proposition. I say that because it is patently obvious that the parameters are set in a way which effectively amounts to a loaded deck, leading only to eventual defeat for unionism.
There are only two scenarios provided for in the Belfast Agreement; one transitional (this is, in effect, ‘the process’) and one final.
It is a United Ireland as a final ending, or transitionally the status quo, which is to be incrementally dismantled- known as the ‘process’ until the Union is no longer a viable choice and a United Ireland becomes an inevitability.
In short form, ‘the process’ seeks to change everything but the last thing in regards Northern Ireland’s place in the Union, until such times as the last thing- namely the final formal hand-over of sovereignty- is simply a formality.
This should be obvious given a ‘process’ has a beginning and an end, and the only end point in the 1998 Agreement or NI Act is a United Ireland. The status quo is merely the transitionary phase, or ‘the process’.
That is why the language deployed by nationalist activists about “constitutional conversations within the framework of the Belfast Agreement” is a deception. In that framework, conversations can only be about how to transition the status quo towards the final solution- a United Ireland.
These “conversations” anchor- by design- within the Belfast Agreement, precisely because the framework of the Belfast Agreement does not provide for any strengthening of the Union or the establishment of its permanence. Rather, it requires the opposite.
It is an obvious point (but one many seemingly fail to appreciate), canvassed in some detail above, that there is no provision within the rules set out by the Belfast Agreement for a strengthening of the Union, or even- as the Protocol has shown- protecting it against its incremental dilution.
And so, to use a football analogy, the rules of the game are that unionism defends the goal until nationalism scores. This is a continuous game, with the sole objective being nationalism wearing down the unionist defence until they score. At that point the ball is lifted, and the game ends. There is no ‘re-match’, or any provision to even seek one.
In adopting the prism through which Mr McBride (and other eminent and respected commentators such as Alex Kane) have viewed Ian Paisley’s constitutional Bill- namely that the rules of the game are set, and unionism must play by them- that means that even in circumstances whereby it becomes apparent the rules are designed to lead to unionist defeat, you must play by them, nevertheless.
I accept the point that for those within unionism who fail to appreciate the error in the formulation of self-determination and the principle of consent in the 1998 Agreement, it is somewhat illogical to adopt the points canvassed within this article, and which are seemingly inherent within the proposed Bill moved by Mr Paisley.
But I urge that unionism should recognise the errors, and unashamedly seek to correct them.
In Mr McBride’s article it is suggested that in 1998 the greatest achievement of the late Lord Trimble was achieving the principle of consent. I disagree.
That the principle of consent was a deceptive snare is plainly the view of all mainstream unionist parties. This is so because this is the submission which has been made on their behalf in the Protocol case (Allister et al).
Put simply, it has been pointed out that the principle of consent was sold to the unionist community as a guarantee against any change to Northern Ireland’s constitutional status without consent, but- as I have alluded to- that it has turned out you can change everything but the last thing about NI’s place in the Union, the last thing being merely the final formal handover of sovereignty.
In consequence, the big success of 1998 was no such thing at all (more of which below) because no substantive protection for the Union was gained, other than a requirement for consent for the formal final handover of sovereignty. It regulates no other change to NI’s constitutional status (contrary to the misguided belief of pro-Agreement unionism in 1998); this is put beyond any doubt by the subjugation of the Acts of Union by the NI Protocol.
In addition, and more fundamentally, the principle of consent was enshrined within the Ireland Act 1949, and in the Northern Ireland Constitution Act 1973 (section 1 (1) of the 1998 Act is effectively a carbon copy). Therefore, nothing was ‘gained’ at all in 1998, in fact that which was already there was weakened by section 1 (2) of and Schedule 1 to the 1998 Act in so far as it created a framework and criteria for taking steps to end the Union.
To put it at its simplest, the 1998 Act (giving effect to the Belfast Agreement) repeated that which was already in law from 1949 (through the Ireland Act 1949 and latterly the NI Constitution Act 1973), but weakened it by creating a one-way departure lounge for NI exiting the Union, via section 1 (2).
If it is to be suggested that the ‘achievement’ was getting nationalism to accept the principle of consent (watered down, as outlined) then this, to me, seems even more absurd. It resolves to this: that nationalism accepting the constitutional legal reality that was already in place for decades is a great achievement for unionism.
If you accept the arguments which I have set out above in this article, then it follows as a matter of the most compelling logic that you must therefore accept that the rules of the game are pre-determined to secure eventual unionist defeat.
That being so, the argument that is rooted in the belief that seeking to change the rules set by the 1998 framework is an impermissible step for unionism, is in fact therefore premised upon the belief that unionism must be willing participate within a process designed to end the Union.
I say that ‘moving the goalposts’ (as Mr McBride puts it) is not only desirable, but necessary in order to restore the constitutional balance which was eroded in the Belfast Agreement. That unionism didn’t realise it at the time is of course a point of legitimate criticism, but that in of itself is not enough to act as a barrier to, in the here and now, seeking to restore constitutional balance.
Jamie Bryson has written as series of papers of Northern Ireland’s constitutional arrangements and is author of NI Constitutional Law: Acts of Union and NI Protocol; and Brexit Betrayed: Writings from the Referendum to the Betrayal Act.