Talking about constitutional status change

Colin Harvey is Professor of Human Rights Law, School of Law, Queen’s University Belfast.

The debate about constitutional change remains odd. Status here is intended to rest on nothing more robust than majority support. It is accepted that if Northern Ireland wants to leave the Union it can, provided the mechanisms of concurrent consent in the Good Friday Agreement are followed. This is not a radical proposition dreamed up by a subversive academic conspirator, but an accepted and agreed part of the constitutional legal orders of Ireland and the UK. A reality recognised and applauded internationally.

That is the theory. But in practice it is not so simple. The complexity around public expression and advocacy is instructive. What it tells us is a familiar global tale. As elsewhere, what is achieved through negotiation is merely the beginning. The work only starts then and the struggles move into the language and institutions of the new framework. The political conflict does not evaporate, it takes on new forms within the parameters of the emergent linguistic environment. That is a hard lesson for those who think good faith implementation of agreements reached is a straightforward process. Political contestation continues and flows into the worlds of politics and law, in this region there is nowhere to stand outside or above that. It is either acknowledged or it is not. These discursive battles can occasionally be vicious and in the world of social media take on aggressive and toxic dimensions, including the intended and direct infliction of personal and professional damage. This society is not post-conflict in that specific sense.

There is now a welcome and intense focus on preparation. What does the planning consist of? The first element is thinking about the referendum process, what it involves and how that will be done in the context of both jurisdictions on the island. Answers to those questions will depend on how you construct the conflict and how you view what has since emerged. The challenge, particularly in Northern Ireland, will be to manage a referendum that will be the source of significant disagreement at every stage. It is doubtful that will be achieved if the process is an exclusively ‘internal’ UK one; the right belongs to the people of the island of Ireland and the British Government remains a protagonist in the conflict. The second component relates to what is on offer. This must not become a debate about an abstract principle (for or against reunification) but should incorporate proposals on what people are voting for or against. That applies just as much to pro-Union advocates as it does to those seeking status change. Attempts to scare people will no doubt feature, perhaps prominently, but it is hoped that evidence-based arguments will emerge and myths will be exposed. People on this island might know each other better at the end of this. That is the hope.

Throughout human history those advocating change have faced a plea for timidity. Things will get better with time, obstacles will fall away, do not be provocative in the here and now. And each time it is those with the courage to press on who are vindicated, often too late for many. My guess is the same will be the case here. But only time will provide the answer. There is disagreement over what is meant by ‘change’, of course, and on ways of achieving it. The focus here is on constitutional status change, but there are many who prefer to talk about transformation in different senses. It is rarely acknowledged, but it remains the case, that passively or actively endorsing the present constitutional option amounts to the same thing. The larger conflict here, by its intrinsic nature, does not leave space for bystanders.

It appears likely now that we are travelling towards referendums on this island. The length of that journey depends on several variables, including party politics. They can only be deferred for so long, with Brexit and new political dynamics (not the Protocol) providing much of the fuel. For those who simply do not want to face this, for reasons that are understandable, it is in the end about keeping promises, honouring what was agreed and acknowledging the basis on which this society is shared. Part of the deal is that people, if that want, can leave and the choice is there. Whatever the eventual outcome this shared island needs the conversation. And it is, and will be, a conversation. People are right to engage.

My own view (I do not disguise it or pretend not to hold it) remains that the imposition of separate spaces on the island was a tragic error, the promotion of a terrible division that impeded what would have been better achieved together. There is now a real chance to remedy that mistake and do things differently in future. Again, the political and societal conflicts will not disappear, they will merely re-emerge in the new formations that are then established. That is all part of what it means to live in any society that takes pluralism seriously, and it will also be true of the New Ireland that is already emerging.

For further information: https://pure.qub.ac.uk/en/persons/colin-harvey

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