Professor Colin Harvey: Uniting our shared island
Professor Colin Harvey, professor of human rights law at QUB School of Law, reflects on the impact of Brexit on the discussion of Irish unity as the UK’s exit from the European Union looms.
The discussion of Irish unity is gaining momentum; Brexit has altered the nature of this conversation, as more people now reflect on the constitutional future. The debate is already happening, and has been ongoing for some time. That does not mean Irish unity is any closer; it simply suggests a willingness to contemplate this option and to think through the implications. Work by, for example, Claire Mitchell, Andrée Murphy, Paul Gosling, Fintan O’Toole, David McWilliams, Mark Daly, Richard Humphreys, and Kevin Meagher combines with the efforts of groups such as Think32 to create the sense of a genuinely organic debate. These are only a few selected examples of the contributions and, of course, political parties on the island are also involved. The intention here is to offer five reflections as part of this evolving dialogue.
First, there is a need to bring civility to the conversation. The idea of referendums on the island of Ireland is embedded in the Good Friday Agreement, and reflected in domestic and international law. It is the result of a democratically endorsed constitutional compromise that is intended to underpin relationships on this island, and across these islands. The adopted formula is complex. The tendency to lambast those raising it reflects understandable party political divisions and current pressures over Brexit. However, the language of utter rejection could sensibly be avoided as part of a ‘de-dramatisation’ project. There is really no need for terms such as ‘inflammatory’, ‘dangerous’, ‘toxic’, ‘divisive’, and ‘destructive’ in response to those asking self-evident questions about constitutional promises made. Are people supposed to ignore the fact that there is already one anticipated and agreed solution to a hard border on the island? Irish citizens in Northern Ireland will point, for example, to the near constant references to ‘strengthening our precious union’ and the UK Government’s actions in undermining the doctrine of ‘rigorous impartiality’. A detailed grasp of Irish history is not required to accept that there is something profoundly troubling about the notion that it is ‘dangerous’ to test the ‘principle of consent’.
Second, the pathway to these referendums poses intriguing questions. The Good Friday Agreement sets out the requirements, and these are largely reflected in domestic law. The Secretary of State for Northern Ireland has a central role, and significant discretion to call a referendum at any time and for any reason. Where this shifts into the realm of duty is when it ‘appears likely … that a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland’. The High Court judgment of Lord Justice Paul Girvan in the McCord case (28 June 2018, GIR10679) has provided further clarity around the nature of these powers. Much of this is self-explanatory, and can be understood by reading the legislation. But the rationale underpinning it should be spelled out. Once it appears that a voting majority might prefer a united Ireland then the ‘sovereignty arrangements’ here begin to have a de facto illegitimate quality. If constitutional status rests on ongoing consent (and there are still plenty of people in the region who doubt that), then once it appears that it may be absent this region is in radically new political territory. That is why it is essential that consent be tested in that context. And this is one reason why (looking at polling evidence) it is reasonable to raise the no-deal Brexit scenario as a basis for assessing the levels of consent. There are, of course, other considerations in play, but it would arguably be a dereliction of political duty in the current context not to mention it. Party political competition should not encourage any further erosion of the fundamentals of a peace process that is already at risk.
Third, there should be planning and preparation within an appropriate timeframe. Too often, however, this argument is deployed as an excuse for inaction. Responsibility must be taken for co-ordination of a coherent approach, and that should fall to the Irish Government. That is not to promote a top-down or exclusionary model but it does suggest that such work requires government-level resourcing and support. The more revealing conversations may well happen elsewhere, particularly within community-led initiatives that aim to conceive of this island as a shared space. The scale of misunderstanding is immense and it will only be, as ever, community-led courage that will begin to thaw relationships between people.
Fourth, there will be many complex and difficult practical challenges of absorbing this region into an existing state. These can be exaggerated, as can the impact of reunification. However, the opportunity should not be missed to reflect on the human rights, equality and identity aspects of the constitutional architecture. In, for example, building a persuasive case for unity amongst the unionist community there would be considerable merit in providing enhanced guarantees on rights, equality and identity. Concerns that people have over socio-economic status could be met, for example, by discussing more robust protections. The opportunity should not be lost to consider what assurances might be needed and what sort of ‘new Ireland’ this would be. Will this be a project of radical transformation or an exercise in conservative stabilisation?
And finally, unity is arguably in the strategic interests of the Irish state in a post-Brexit world. The Irish Government has a formidable incentive to ensure alignment on this island for its own purposes. That is one reason for its effective and impressive approach to the EU-UK negotiations. Successive governments have sought, and will continue to seek, to contain this region and conserve the existing arrangements (this place remains the abandoned reminder of past sins of British-Irish relations). It would be silly to ignore the scale of anxiety about potential unity and its implications. There is considerable merit in the constitutionally recognised centrality of uniting people, and that will always remain a project based on persuasion (both ways, of course). However, what Brexit will do – particularly if the UK drifts ever further away from the EU – is incentivise unity in hard strategic and geopolitical terms. The obvious way to shield Ireland from the risks of a hardening border, and the subsequent damage to its own reputation within the EU, is to absorb this relatively small region into its own state. Many will see that as a provocative statement (no one doubts the work to be done) but it does have a logical quality. In the longer term it may well be in the selfish and strategic interests of the Irish state to render the border on this island permanently invisible (even if the cost of that may be losing a much loved and admired twitter account).
- This article first appeared on Slugger O’Toole.