Brexit has intensified the debate about constitutional futures. Any form of Brexit splits and divides this island even further. That can be viewed as a good or a bad thing depending on your constitutional preferences. What is plain is that ‘no deal’ will be a disaster. There is a protective arrangement there: the Withdrawal Agreement and Irish Protocol, but these are still limited mitigating measures that are second or third best outcomes. The nature of the UK-EU future relationship raises hard questions, and spells trouble for this island. When viewed in the light of the ‘remain’ vote here, and the fact of impending forced removal from the EU, it is inevitable that this is promoting reflection on constitutional change, and how this island is shared in the future. Irish reunification is on the agenda for reasons that are not difficult to grasp; it would be quite remarkable if it was not.
The Good Friday Agreement anticipates constitutional change, and how it will be framed. Recall that the Agreement reflects a constitutional compromise that is an intrinsic part of a peace and political process that left fundamental questions deliberately open; a compromise that has the merit of overwhelming popular endorsement on this island.
The process is now arguably entering a new phase, one that will result in referendums on the constitutional future. The intention here is to draw out three themes: Firstly, the conduct of the conversation; secondly, what the Agreement tells us; and thirdly, what this means for rights in particular.
Firstly, how should the conversation be conducted? Constitutional goals in this region are equally legitimate. It is not sectarian, tribal, dangerous, divisive or toxic to argue for a continuation of the UK or for a United Ireland. Threats of violence, intimidation, and harassment have no place in the discussion, and certainly should not prevent it taking place; peaceful and democratic means are the only way forward.
In this a few things must be underlined. Parity of esteem, mutual respect, and equal treatment are absent now. We do not live in the sort of rights-based society envisaged by the Agreement and international human rights obligations. We must look to the future, but should also confront our present failings. A willingness to face, acknowledge and deal with those will make the coming conversation easier for everyone. Our present state and our future constitutional goals are inextricably linked.
Future referendums will present a decisive ‘stress test’ for the Agreement. Many in this society want to know if its constitutional promises are real or not. This island will be a healthier place for having had the conversation. It will represent a defining challenge: can deep constitutional questions be addressed maturely in a way that demonstrates that the values of the Agreement are embedded? If so, this must be about evidence, facts, clarity, and reasonable certainty about outcomes either way. Unionism, for example, cannot sit on the side lines as nationalism builds its case for reunification. It will require framing, structure, planning and preparation and must include civil society, both governments, the EU and other international institutions, as well as international friends and partners. Such a significant constitutional enterprise cannot be left to the Secretary of State for N. Ireland. Brexit means, for example, that the EU must be involved; propositions around unity include effective return to the EU. That raises intriguing questions for Ireland and the EU.
Secondly, what does the Agreement have to tell us? We know that constitutional status rests on ongoing consent. This is reflected in international law and in domestic law in both states. There has also been notable EU and international endorsement for the Agreement in all its parts. The formula is there for the exercise of the right to self-determination by the people on the island. Both governments will respect the legitimacy of the choice, and if people opt for a united Ireland there is a binding obligation on both governments to take forward the necessary legislation. In framing this, values in the Agreement matter: partnership; equality; mutual respect; reconciliation; tolerance; mutual trust; and the protection and vindication of the human rights of all. It must be by peaceful and democratic means only, and all anchored in the acceptance of the equality of political aspirations. The ‘rigorous impartiality’ obligation (so poorly observed by successive British governments) transfers to the Irish government in the event of reunification. The birth right guarantee (to identify and be accepted as British, Irish or both) will continue. The nature of the equivalence doctrine in the Agreement should be noted. It creates a helpful incentive to maximise change now as a way of leveraging this into future discussions. Those thinking of the future would be wise, for example, to dust off their copies of the Bill of Rights advice from the N. Ireland Human Rights Commission.
The question of institutional continuity, and other matters, will also be informed by the nature and outcome of the constitutional conversation, and the agreed content of any new British-Irish Agreement or Agreements that will emerge. There may be varying views, for example, on the question of the N. Ireland Assembly in any new arrangements. It should not be assumed that participants will automatically want to see this continue in its current form. However, respect for the values and normative commitments of the Agreement, plus the existing international human rights obligations of both states, must inform and shape the discussion.
Thirdly, what does this mean for rights in particular? One of the reasons we are in the present mess is that the rights-based approach in the Agreement has not been realised. There is no bill of rights, no charter of rights for the island, the N. Ireland Human Rights Commission is under financial strain, equality and social justice gains have not been made, threats to the Human Rights Act 1998 continue, and there is the matter of Brexit. The nature of the proposed future UK relationship with the EU is becoming disturbingly plain: a small state deregulated danger zone for socio-economic rights, with Brexit itself striking at the heart of the values underpinning the peace process.
Human rights must feature in the constitutional change conversation in a contextually meaningful way. Not as a distance future aspiration, but now: recall again the implications of ‘equivalence’, and the chance still of leveraging progressive change now that will shape the future of this island.
Not everyone is overly keen on the strong and inclusive protection of human rights. There will be those who are content with continuity new Ireland. A basic ‘sovereignty switch’, accompanied by minimal reform to meet the basic requirements of the Agreement. Others will want a transformative conversation. Human rights and equality advocates will, hopefully, be the transformers in the room, and that raises questions about how to engage effectively with this debate now. It is vital that civil society does not run away from this constitutional conversation, especially if people mean what they say about the Agreement.
It is time to embrace the Agreement again, welcome the constitutional conversation prompted by Brexit, and bring human rights to the heart of it. We need a culture of respect for human rights now and in the future, and this must be as life changing as people rightly expect, especially for those on this island who need our promises to matter, and who cannot wait any longer for societal change.
This article is based on a speech delivered at: A Renaissance of the Peace Process? What kind of society do we need? Conference held at Queen’s University Belfast, 27 September 2019.