Constitutional Pluralism
If constitutional pluralism is taken seriously, then the voters of the United Kingdom of Great Britain and Northern Ireland delivered a complicated message to the Westminster Parliament and Executive; hardly a surprise in a multi-national state. A complex message will no doubt also emerge from all the democratic institutions within the UK. There was a simple majority in the referendum for ‘leave’, of course. Concurrent consent was absent from Scotland and Northern Ireland (and, of course, Gibraltar). A close vote, such as this, was never going to terminate the constitutional conversation, and the decision on what to do now demands further democratic deliberation. People want to keep talking about the legal and political implications and requirements. If ‘leave’ had secured majorities everywhere the picture might be slightly different. They did not.
Mutual Respect
Northern Ireland is the region with perhaps most to lose (my colleague – Professor Christopher McCrudden – has spoken of an ‘unmitigated disaster’). It was always going to be outvoted. The result was close but not close enough for Northern Ireland to determine the outcome (and, in truth, the ‘leave’ vote here was higher than predicted: 56% – 44%). The electoral voice of England dominated – as it will in any UK-wide process. Cross-community tensions were evident from the start. The DUP (the largest unionist party in the Northern Ireland Assembly) opted for ‘leave’, while Sinn Féin (the largest nationalist/republican party in the Assembly) urged ‘remain’. The DUP was the only major party in Northern Ireland to adopt this position (and it is not immune to questioning the outcome of a referendum). After the recent Assembly election both main parties (along with one independent member) make up the Northern Ireland Executive – in an Assembly where there is now an opposition. This vote has no doubt added to the discomfort within the new Executive, and the exercise has promoted division and unease (but, as yet, no leadership contests).
The view that the Westminster Government has scant regard for the peace/political process is widely held here; it has certainly not made political life easy for some time. A staggering degree of constitutional irresponsibility is evident (with, for example, the unwelcome prospect of repeal of the Human Rights Act 1998 on the menu next). For many on this island it simply confirms a habit of mind in parts of the other island (captured in the word ‘Brexit’) – and it may well be time to think more decisively in those terms.
Respect for the principle of consent (majority as well as cross-community) is supposed to be central to the new constitutionalism of Northern Ireland. Political unionism (but not only unionism) has treasured the veto power it brings. As is well known, the status of Northern Ireland rests on democratic agreement; the right of self-determination is tied to the concurrent consent of both jurisdictions on the island of Ireland. So, an overall majority of people in Ireland, North and South, might well favour Irish unity (a simple majority in the UK might be minded to take the same path). But without the explicit consent of a majority in Northern Ireland it should not happen. Although leaving the EU is plainly a distinct issue, it is a constitutionally significant step, and poses a test for the new constitutionalism that is supposed to be alive in these islands. Should the Westminster Parliament be urged to reflect further on whether progress can really be made in the absence of concurrent consent? Should the Westminster Parliament – not simply the Executive – shape the next stage, in dialogue with others? What processes can be put in place (or existing ones used) to respect the complexity of managing what is required next? What legal routes might be open for contesting the different stages ahead? The point is that the voting patterns in a pluralist UK are constitutionally relevant to what follows, and respect for the ‘principle of consent’ (in all its forms) requires more serious legal and political reflection.
A referendum in the UK has delivered an outcome – on an issue of major constitutional significance – that does not command the consent of a majority of the voters in Northern Ireland (it does not have cross-community support either). The difference in this context is that debate goes beyond internal UK discussions of the Sewel Convention. The agreements in Northern Ireland do not promote a purely internal (UK or Northern Ireland) solution to the problems here. Consent has a meaning and resonance in Northern Ireland’s post-conflict political constitutionalism that travels beyond those limits. Important as it may seem, viewed from here, there is a certain silliness about continuing the conversation within the frame of ‘normal’ UK constitutional law; as if the conflict never happened, as if the elaborate and interlocking mechanisms of our agreements (and the complex ideas around consent) are not there, as if this was not new territory. There is a moment now that demands a new mode of engagement informed by careful negotiation, partnership and mutual respect.
Ways Forward
To conclude, it may be worth making the following points.
First, it is constitutionally negligent, after all Northern Ireland has been through, to return to a pre-1998 version of constitutionalism that views relationships in terms of ‘command and control’ from the centre. In a pluralistic UK, and in a post-conflict society, the referendum outcome did not deliver one simple message. Acknowledging that would be a welcome first step.
Second, Northern Ireland has not consented to leaving the EU (either on a simple majority or a cross-community basis). The principle of consent has a particular strength here that goes beyond narrow discussions of the Sewel Convention in UK constitutional law (as significant as they are). If the wishes of a majority in Northern Ireland are so easily overridden on this profound constitutional matter, by a singular UK-wide vote, what future problems are being stored up and what precedents are being set? What other constitutional fundamentals might be ‘up for grabs’?
Third, in reflecting on what is constitutionally required next (and on what constitutional authority it is based), to what extent will the Westminster Parliament and Executive – as well as the Irish Government and the EU – take fully into account the particular circumstances of Northern Ireland? Should enhanced thought be given to the special status of the island of Ireland within an EU context? Why not give the increasingly popular term ‘these islands’ or even that awful word ‘Brexit’ more constitutionally concrete meaning? If alternatives cannot be found to accommodate Northern Ireland’s special status, it would be perfectly legitimate to give people here the democratic option of remaining within the EU; as a region of Ireland.
Fourth, it seems essential to conduct these conversations in a new mode. Building robust forms of political and legal constitutionalism that encourage intergovernmental dialogue between all the democratic institutions in the UK is vital. That simply cannot happen, in a respectful way, without setting aside existing constitutional hierarchies or thinking about how Westminster might be reconfigured.
And finally, Northern Ireland cannot be viewed exclusively through the distorting lens of traditional UK constitutional law; the symbolism and language are so alienating to so many here. As unlikely as it may sound right now, it is time to take the opportunity to promote new forms of constitutional dialogue in these islands. The current levels of constitutional maturity on display at Westminster do not inspire immediate optimism, but the attempt must be made.
None of this is to deny certain aspects of political reality; the majority of voters in the UK did opt to leave the EU. That must be recognised. It is simply to insist that constitutional realities, in a pluralist UK, remain complex. The voters therefore delivered a complicated message.
Colin Harvey is Professor of Human Rights Law at Queen’s University Belfast