Tag Archives: Northern Ireland

Sionaidh Douglas-Scott: British withdrawal from the EU: an existential threat to the United Kingdom?

Sionaidh-Douglas-Scott-avatar-1409859580-96x96The Conservative party’s proposal to repeal the Human Rights Act (and their proposal’s many faults) has already been well documented. However, as Roger Masterman has already pointed out on this blog, ‘It seems unusual then, that the target of Grayling’s indignation is the supposed denial of supremacy caused by the non-binding influence of decisions of the European Court of Human Rights, rather than the more realistic (though perhaps equally problematic) assertion that legal competence has been ceded in some way to the Court of Justice.’ But the European Union is very much a target of indignation for conservative and other eurosceptics, and David Cameron has promised, if re-elected, an in-out referendum by 2017, if the terms of Britain’s EU membership cannot be renegotiated. With UKIP support gaining in the polls, pressure is growing on other parties to support an EU in-out referendum. There is a realistic prospect that the UK may leave the EU.

There are many arguments that can be made as to why the UK should remain within the EU. This posting addresses just one: the serious constitutional consequences for both the constituent parts of the UK, and the UK as a whole, should there be a ‘Brexit’. Given that the UK has just survived perhaps the most serious threat ever to its constitutional existence, in the form of a very closely run Scottish referendum on independence, and given the fervent and almost desperate nature of the ‘Vow’ made by all three party leaders to accord greater powers to Scotland if necessary to maintain the Union, the risk of such further constitutional instability should be taken seriously.

At first it might seem that Scotland’s ‘No’ vote for independence would lessen the chance of EU secession, given the relatively greater pro-EU vote in Scotland (‘relatively greater’ because UKIP did gain one constituency in the Scottish European parliament elections of 2014). How each constituent part would vote is not certain, but according to 2013 House of Commons figures, 53% of Scots said they would vote to stay in the EU, compared with a third who said they would vote to leave. This was in contrast to attitudes in England, where 50% said they would vote to leave the EU compared with 42% who would vote to stay in. At the last European Parliament elections in May 2014, UKIP gained the largest percentage of votes in the UK overall, with 27.5%, but in Scotland only 10.46% of the vote. Furthermore, EU regional funding tends to benefit Scotland, Wales and Northern Ireland more than it does England. Wales and Northern Ireland are net recipients from the EU Budget, and in particular, Northern Ireland stands to lose significant sums if the UK withdrew from the EU. Likewise, to the extent that the devolved nations have access to EU institutions in areas of devolved competence, they enjoy an international presence that would be difficult to replicate through country-specific diplomatic missions. So there are distinct advantages to be lost by an EU exit.

However, the relatively lower eurosceptic vote in the devolved nations would not make a great impact on an EU in-out referendum overall, given that (according to the Office for National Statistics) the population of the devolved nations eligible to vote is small compared to that in England. How much does this matter? It matters a great deal if the vote in the devolved nations is of a less eurosceptic complexion than the English vote in an EU in-out referendum.

Destabilising devolution

It is with the devolution settlement itself that an EU exit would wreak the most havoc, risking a constitutional crisis. Both the European Convention on Human Rights (ECHR) and EU law are incorporated directly into the devolution statutes in Scotland, Wales and Northern Ireland. For example, section 29(2)(d) of the Scotland Act 1998 (SA), provides that Acts of the Scottish Parliament that are incompatible with EU law or with ECHR rights are ‘not law’. Section 108(6) Government of Wales Act 2006 states that any act of the Welsh Assembly incompatible with EU law or the ECHR, falls outside its competence. Section 24 of the Northern Ireland Act prohibits any legislation contrary to EU or ECHR law.

Therefore, although the Westminster Parliament may repeal the Human Rights Act 1998 or the European Communities Act (ECA) 1972, this would not bring an end to the domestic incorporation of the ECHR or EU law in devolved nations. It would still be necessary to amend the relevant parts of devolution legislation. But this would be no simple matter and could lead to a constitutional crisis. Although the UK Parliament may amend the devolution Acts, the UK government has stated that it will not normally legislate on a devolved matter without the consent of the devolved legislature. This requires a Legislative Consent Motion under the Sewel Convention. However, the devolved legislatures might be reluctant to grant assent, especially as one feature of the ‘Vow’ made to the Scottish electorate was a commitment to entrench the Scottish Parliament’s powers, thus giving legal force to the Sewel Convention. So the need to amend devolution legislation renders a UK EU exit constitutionally highly problematic.

Should devolved nations be able to host separate referenda?

Would it be possible for the devolved nations to demand their own referenda in the event of a Westminster mandated EU in-out referendum? In the frenzied last days before the Scottish independence referendum, there was talk of moves towards a ‘federal’ UK. This does not seem very likely now, and whatever recommendations the Smith Commission will deliver later this year (which are likely to include more financial, welfare and taxation powers for the Scottish Parliament) they are unlikely to include greater autonomy in foreign affairs. However, as many areas of EU competence are devolved matters, and continued Scottish membership of the EU was a concern in the event of Scottish independence, the matter is likely to be of great interest in Scotland. Notably, between the 2015 UK general election and the promised 2017 EU in-out referendum will come another election – the 2016 Scottish parliamentary elections. The SNP may perform well in that election, bolstered by the 45% vote in the independence referendum and progress toward ‘devo max’. In which case, the Edinburgh government – which is generally of a more pro-European and social-democratic hue than Westminster – might call for a new independence referendum if there were a serious prospect of a 2017 referendum leading to a UK EU exit, presenting such a further independence referendum as Scotland’s means of remaining within the EU. And given this change of circumstances they might gain over 50% of the vote. This would not find favour in London, which would almost certainly not accord a repeat referendum the sanction of legitimacy accorded to the 2014 vote. However, regions have been willing to go ahead with referenda even without a constitutional sanction – such as Catalonia this November.

In the face of such a prospect, should a potential EU in-out referendum be required to take on a different constitutional form to past UK-wide referenda? Should a requirement be set for a majority of exit votes in each of the devolution jurisdictions before UK withdrawal is possible? Or perhaps each of the devolved nations should be able to hold its own in-out referendum, and a ‘federal’ standard set whereby UK withdrawal is only possible if a majority of the devolved nations vote to exit? 

Scotland and the sovereignty question

A British exit from the EU is sometimes justified in terms of the maintenance of parliamentary sovereignty, which presently must concede the supremacy of EU law (acknowledged both in ECJ caselaw such as Costa v ENEL, and s 2(4) ECA). However, the Diceyan orthodoxy of parliamentary sovereignty has never held as much weight north of the border. In the 1953 case of MacCormick v Lord Advocate in the Court of Session, the Lord President, Lord Cooper, (a former Conservative and Unionist politician and eminent legal historian) contested the Diceyan orthodoxy thus:

‘The principle of the unlimited sovereignty of parliament is a distinctively English principle which has no counterpart in Scottish constitutional law….Considering that the Union legislation extinguished the parliaments of Scotland and England and replaced them by a new parliament, I have difficulty seeing why it should have been supposed that the new parliament of Great Britain must inherit all the peculiar characteristics of the English parliament but none of the Scottish parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the parliament of England.’

Linda Colley’s well-known work, Britons: Forging the Nation, reminds us that both the British state and the British national identity were ‘forged’ by the Acts of Union of 1707. The United Kingdom is only 300 years old, not an ancient natural phenomenon, and it may be undone. Given that the Union of 1707 brought into being the British state, ought we not give this historical event of the Acts of Union its due as a keystone of the British constitution, rather than the Diceyan mantra of parliamentary sovereignty? In which case, perhaps we should recognise that the British constitution is not simply the English constitution, and that Scottish constitutional principles (and Northern Irish, and even now nascent Welsh – given the recent ‘Welsh Bye-laws case) play their part in a multiple constitutional order, and may be of particular salience at times of crisis or ‘constitutional’ moments, such as the issue of whether to withdraw from the EU. Scottish intellectuals, lawyers and politicians of many different political persuasions stand by an indigenous Scottish tradition of popular sovereignty that is claimed to date back to the Declaration of Arbroath in 1320. They hold that, before the 1707 Act of Union, sovereignty resided in the Scottish people – and that it still does so, in spite of the claims of Diceyan parliamentary sovereignty.

Many Scottish unionist politicians accept the doctrine of Scottish popular sovereignty. It was this doctrine that pervaded the Claim of Right for Scotland in 1989, which was signed by the great majority of Scotland’s MPs and many of the leaders of Scottish civil society. The draft Constitution for an independent Scotland, published earlier his year, stated that ‘the fundamental principle’ that ‘the people are sovereign…resonates throughout Scotland’s history and will be the foundation stone for Scotland as an independent country’.

Therefore, meditation on the entirety of the Union, and its constitutional basis, poses the question of whether, at least in Scotland, the doctrine of popular sovereignty might form the basis of Scotland’s own right to determine whether or not it exits the EU. If Scotland chose to remain, and England to leave, the scope for constitutional crisis would be extreme.

Impact on Ireland and the Northern Ireland peace process

Lastly, the impact on the island of Ireland of a UK exit from the EU should be considered. It could well be source of great instability. Although Ireland itself is clearly a separate state, and has long since left the UK, it is nonetheless in a somewhat different relationship to the UK than the other current 26 members of the EU. Section 2(1) of the Ireland Act 1949 (the British Act of Parliament passed to deal with the consequences of the Irish Republic of Ireland Act 1948) declared that, even though the Republic of Ireland was no longer a British dominion, it would not be treated as a ‘foreign country’ for the purposes of British law. Irish and UK history are much intertwined and, were the UK to exit the EU, it would mean an external border of the EU would run through the island of Ireland. The shared border with the Republic of Ireland has long been of enormous symbolic and practical importance. What would happen to the Common Travel Area between the two islands if the UK exited the EU? Would visa requirements and customs duties be imposed?

The Belfast or ‘Good Friday’ Agreement of 1998, an international treaty signed by the UK and Republic of Ireland, enshrined North-South and East-West co-operation, effected constitutional changes and established cross-border bodies. It includes many provisions concerning EU and ECHR law, and the status of the UK and Ireland as EU member states is woven throughout the Agreement. Indeed, the section entitled ‘Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland’ speaks of ‘close co-operation between (the) countries as friendly neighbours and as partners in the European Union’. The Good Friday Agreement required the British government to incorporate the ECHR into Northern Ireland law. Any amendment through changes to either the Human Rights or Northern Ireland Acts which did not meet the human rights commitments in the agreement would be incompatible with this international treaty. The peace process in Northern Ireland is unfortunately not irreversible, but it has been unforgivably ignored in UK discussion on whether to withdraw from the EU. It is also likely to be ignored in Brussels, where there is some impatience with British demands in any case.

In March 2012, a joint Statement by Taoiseach Enda Kenny and Prime Minister David Cameron set out a programme to reinforce the British-Irish relationship over the next 10 years. It emphasised the importance of shared common membership of the EU for almost forty years and described them as ‘firm supporters of the Single Market’. However, a UK EU exit would have consequences for the future of the Belfast agreement and in particular implications for Anglo-Irish co-operation in dealing with cross-border crime and terrorist activity. To give just one example: the UK and Ireland make frequent use of the European Arrest Warrant (EAW). Figures indicate that since the EAW entered into force, the great majority of requests made by Northern Ireland for surrender of persons have been to Ireland. Prior to the introduction of the EAW, a number of European and domestic measures in the UK and Ireland regulated extradition proceedings, and resurrecting these would be a painful process, fraught with difficulties and uncertainties and potential for endless litigation. While the EAW has not always functioned ideally, a return to bi-lateral extradition conventions and other measures would be very undesirable. (Although the UK’s current plans are to exercise a block opt-out from over 130 EU Justice and Home Affairs measures, the apparent intention is to opt back in to the EAW immediately).

In conclusion, a British exit from the EU risks undermining the very self-determination and national sovereignty that its adherents believe it will bring about. This is because it risks shattering the fragile balance and stability of the UK by threatening the peace settlement in Northern Ireland and raises the possibility of a further independence referendum in Scotland. Surely such constitutional risks are not to be taken on lightly? But at present, there is little indication that anyone calling for an EU exit is giving them much thought. 

Sionaidh Douglas-Scott is Professor of European and Human Rights Law at Oxford University.

 

(Suggested Citation: S. Douglas-Scott, ‘British withdrawal from the EU: an existential threat to the United Kingdom?’ U.K. Const. L. Blog (13th October 2014) (available at http://ukconstitutionallaw.org).

 

 

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Christopher McCrudden: Equality and the Good Friday Agreement: Fifteen Years On

 mccrudden2-high-res-1_1The Northern Ireland peace agreement was born on the 10th April 1998, Good Friday, in Belfast and will thus celebrate its 15th birthday next week. One of the central elements of the Agreement was to achieve equality between the two main communities in Northern Ireland. It was an ambitious attempt to achieve this aim through a significant restructuring of the Northern Ireland constitution. This aspect of the Agreement has implications, therefore, for the role of constitutions in achieving equality more broadly. The fifteenth anniversary provides a suitable occasion to assess the outcomes achieved, and to look to the future.

The Northern Ireland constitutional model incorporated in the Belfast-Good Friday Agreement is neither unique, nor particularly unusual in a global context.  It is a classic democratic consociation, as political scientists term it. Four key elements of democratic consociation are commonly identified.

These are, first, the sharing of executive and, often, legislative and security powers among representatives of all the major communities, especially those with histories of prior antagonism. Examples of specific arrangements include collective presidencies and co-premierships; examples also include concurrent or qualified majority rules. Plainly such power-sharing aims to achieve greater inclusivity and jointness in decision-making than ‘winner-takes-all democracy’.

The second key feature is community autonomy. Each constituent group has significant internal self-government in at least one public function (for example, in establishing and controlling its own schools). Equality across the communities applies in these respects. Self-government accompanies shared government.

The third feature is the widespread use of the proportionality principle, understood to encompass proportional representation in shared institutions, and the allocation of important resources and public offices. For example, posts in the civil service, security forces, and judiciary, are shared out by reference to the proportions the groups have in the population as a whole, or in the labour market. Proportionality may also apply to the allocation of public expenditures, e.g., each group may receive the same per capita funding for its primary schools.

Lastly, because power-sharing, proportionality, and autonomy may not provide sufficient assurance to particular groups that their interests will not be over-ridden, explicit veto rights may be granted to each of the communities on vital issues, with variations in how these veto rights are allocated and legally entrenched.

How does all this relate to the equality agenda? Apart from the attempt to achieve equality at the level of the legislature and the executive, there are three additional legislative features of the equality agenda in Northern Ireland that relate to the Agreement: first, the fair employment legislation which began in 1976, was fundamentally restructured in 1989, and more minimally reformed as a result of the Belfast/Good Friday Agreement; second, section 75 of the Northern Ireland Act 1998 which established a public sector equality duty on public bodies resulted directly from the Agreement itself; and third, the (now repealed) quota provisions regarding the recruitment to the Northern Ireland Police Service is derived from the Patten Commission established as a result of the Agreement. There are five points I want to make.

First, the equality agenda comprising these elements can best be understood in the context of the Northern Ireland consociational model. It is, of course, separable from it – much of the equality agenda borrows its techniques from other countries (such as the United States) where consociations are not in operation. But placing it within the consociational model emphasizes the extent to which equality in Northern Ireland is primarily about securing the third of the three elements I described earlier – the proportionality principle. It is this that marks the equality agenda in Northern Ireland out from that in the rest of the United Kingdom or, indeed, in the Republic of Ireland.

Second, it is also useful to see the equality agenda in the context of the consociational model for another critical reason: the effective enforcement of fair employment after 1990, and the debate over the public sector equality duty in the early 1990s was a critical element in the “confidence building” measures that resulted in nationalist (and particularly republican) politicians agreeing to the other elements of the consociational package, in particular the first of these, the sharing of legislative, executive and security powers with the other parties. The orthodox histories of the run up to the Belfast/Good Friday Agreement largely, I think, underestimate the extent to which there was a parallel “peace process” that supported the main process, but which concentrated less on security and power-sharing issues and more on economic, social and human rights issues.  In practice, the two went hand in hand.

The relative success in getting these equality measures accepted and implemented provided a degree of reassurance that the Northern Ireland state was capable of reform and transformation, and laid some of the political ground work for the Agreement. The Americans, and largely because of them the Irish Government, understood this; I was never convinced that the British Government did (or, perhaps, does) fully comprehend the importance of this.

The third reason for emphasizing the consociational context of the equality agenda is that the other elements of the consociational model act as a limit on a liberal individualistic equality agenda. This can be seen in two respects.  First, the consociational model depends on the recognition and (to a degree) the institutionalization, of the two major communities as the key political actors. For some, though not for me, this is anathema because it appears to emphasize existing divisions rather than transcending them; and this came to a head in particular in the debate over the Patten police quota arrangements.

A second limit on the equality agenda arising from consociation relates to schools. I said that one of the features of a consociation is a degree of autonomy in certain spheres.  In Northern Ireland, the best example of an autonomy arrangement relates to primary and secondary education, which is a closely guarded sphere of Catholic influence.  Fair employment legislation has carved out teaching in schools as an exception.  This can really only be understood when seen in the consociational context.

I will end by making two further points.  The first is that, to a considerable extent, the strategy worked, not just in the sense that it helped build confidence (which it did), but in its own terms. In particular, research supported by the Nuffield Foundation demonstrates pretty definitively that the effective enforcement of the fair employment legislation in the 1990s led to a significant shift in the labour market with significantly reduced inequality between Catholics and Protestants, at the same time as achieving significant desegregation. There is a more complex story to tell, but suffice to say it is a very good news story, and one that Northern Ireland should be proud of. It is the success of this legislation that has significantly taken the poison out of the discrimination issue (a poison that those of us who worked in the area remember only too well). The same applies to the Patten quota, which has succeeded in restructuring the composition of the police service from one that was overwhelmingly Protestant to one that is now proportional, and has contributed to the increased acceptance of the police in the nationalist community.

Finally, what of the future? Although by no means unique globally, consociational arrangements are unusual in the British and Commonwealth world, and are therefore continually under pressure; there is a sense among some opinion formers in Britain that the Westminster model is in some way the “norm” and that, in time, the aim should be to return Northern Ireland to “normality”.  In the equality context, this means constant indirect pressure to reduce the specifically Northern Ireland features of the approaches taken to equality, such as compulsory monitoring in fair employment, a significant regulatory presence in the labour market in the shape of the Equality Commission, and the process requirements of the public sector equality duty concerning civil society participation in decision-making, and impact assessment. Both the European Union and the domestic courts have recognized the importance of preserving the Northern Ireland equality model, and have resisted attempts to force change.[1]

The greater danger comes, I think from, a sense among some opinion formers in London (and even some in Belfast) that the equality job has been done, equality has been achieved, and we can therefore simply dismantle the panoply of equality requirements, particularly in a time of financial cutbacks. That view, I suggest, should be strongly resisted. The importance of the equality agenda in enabling the Belfast-Good Friday Agreement to be concluded in the first place, and ensuring that a stable government could eventually be established and maintained, should be recognized and lessons learned. It would be a mistake, I think, of incredible stupidity with incalculable costs if inequality between the two communities were to become a significant problem again in Northern Ireland.

Christopher McCrudden FBA is Professor of Equality and Human Rights Law, Queen’s University Belfast, and Leverhulme Major Research Fellow (2011-2014). It is an edited version of a talk presented on the 27th March 2013 at the British Academy seminar “The Good Friday Agreement: 15 Years On”.

Suggested citation: C. McCrudden, ‘Equality and the Good Friday Agreement: Fifteen Years On’ UK Const. L. Blog (29th March 2013) (available at http://ukconstitutionallaw.org)
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[1] Unlike in Bosnia Herzegovina, where there have been systematic external attempts to dismantle the consociational arrangements, explored further in Christopher McCrudden and Brendan O’Leary, Courts and Consociations: Human Rights versus Power-Sharing (OUP, 2013).

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Brice Dickson and Colin Harvey: Options on the way forward for human rights in Northern Ireland

ColinBriceAdvice on a Bill of Rights for Northern Ireland, submitted to the Secretary of State by the Northern Ireland Human Rights Commission in 2008, was roundly rejected by the UK government in 2009 and there seems to be little appetite within the Northern Ireland Office for revisiting the issue in the foreseeable future. In London, the coalition government’s Commission on a UK Bill of Rights, set up in 2011, reported in 2012 but could not suggest an agreed way forward on a UK basis. In Scotland, on the other hand, bearing in mind the forthcoming referendum on independence in 2014, there is renewed interest in whether legislation should be passed by the Scottish Parliament to guarantee a range of social and economic rights. The Republic of Ireland, for its part, is currently re-examining its Constitution and has recently voted in a referendum to enhance the protection of children’s rights.

As the nature and extent of the protection of rights continue to vary within these islands, we think it is worthwhile putting forward a list of options for what might next be done in this context within Northern Ireland. We are doing so under the auspices of the Human Rights Centre in the School of Law at Queen’s University Belfast. The Centre is keen to play a leading role in promoting critical thought and further discussion about this issue. We believe that Universities must play their part in encouraging such society-wide debates.

Option 1, of course, would be to do nothing regarding the protection of human rights in Northern Ireland. For those who favour that approach such a position is fine. We do not ourselves want to let things rest where they are. We would prefer to keep talking and thinking about how best to enhance the protection of rights in a way that works to the benefit of everyone in Northern Ireland.

Option 2 would be to push harder for government acceptance of the NIHRC’s advice on a Bill of Rights. There may be some legal merit in that approach but there are also likely to be very significant political difficulties in doing so. No doubt the NIHRC will itself wish to continue to promote its thinking, and there may be others who will want to support them in doing so. But we believe there are further options which are worth considering too.

Option 3 – less ambitiously perhaps – would be to nudge matters forward by bringing people together to consider in a transparent and honest way the full range of means by which human rights could be better protected in Northern Ireland, including perhaps by a Bill of Rights. Doing so will raise at least four further issues which will need to be considered, namely:

(1)  Which, if any, human rights are not fully enough protected in Northern Ireland at the moment?

(2)  How might improved protection of those human rights be brought about?

(3)  What discussions need to take place to arrive at consensus answers to questions (1) and (2)?

(4)  How could those discussions be facilitated?

We accept that consensus answers to questions (1) and (2) need to be reached primarily at a political level within Northern Ireland and that unionist and nationalist parties currently hold different views about the degree to which human rights need to be protected in Northern Ireland. We are firmly of the opinion, however, that reaching such consensus is possible. We believe that doing so would bring greater stability to the political arrangements in Northern Ireland, better define and protect the various identities of all the people living in Northern Ireland, and help to bring about a truly shared society based on respect for the rights of everyone. It might also help to reassure those factions who, for whatever reason, are antagonistic to the peace process as underpinned by the Good Friday Agreement of 1998 and the St Andrews Agreement of 2006.

Our aim here is to initiate an inclusive discussion with all those committed to enhanced human rights protection and promotion. We look forward to continuing the conversation across these islands.

Brice Dickson and Colin Harvey are based at the Human Rights Centre, School of Law, Queen’s University Belfast

Suggested citation: B. Dickson and C. Harvey, ‘Options on the way forward for human rights in Northern Ireland’ UK Const. L. Blog (23rd February 2013) (available at http://ukconstitutionallaw.org)

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Colin Harvey: Reconstructing the ‘Political Constitution’ of Northern Ireland

For reasons that are not difficult to grasp, the constitutional process in Northern Ireland has been marked by fragility and instability. The entity ‘Northern Ireland’ – carved out in the early 1920s – rested on insecure foundations and struggled to establish legitimacy. It was a constitutional creation mapped onto stark ‘facts on the ground’, embedded within a divided society, and designed with precision along ethno-national lines, with demographic and democratic objectives firmly in view (it was engineered to create a permanent pro-union majority). ‘Northern Ireland’ was born from, and emerged into, political violence and the question would remain alive of how it was ever going to secure legitimacy for itself across its diverse population, given the complex and contested constitutional histories of these islands. Northern Ireland’s creation rested both on recognition of the express wishes of a pro- union community in the north of Ireland and an understanding of their willingness to use force to resist membership of a re-unified Ireland. The pro-union majority that had won ‘Northern Ireland’ had to then share a jurisdiction with a substantial ‘minority’ community that felt alienated from the new entity from its inception. Formal legality did not map onto legitimacy. As with other constitutional contexts, it was a societal mix that the traditional Westminster model was hopelessly ill-equipped to address (a fact which Westminster itself had originally given some recognition to).

The violent conflict which re-emerged in the 1960s led to decades of thought around constitutional processes and practices that might achieve political stability in the context of sharp ethno-national division. What constitutional forms might assist, and what political and legal values should underpin them? In these processes the question of how ‘the people’ or ‘the peoples’ of Ireland (North and South) would be defined and engaged gained prominence. It is not coincidental, for example, that endorsement for the present arrangements included concurrent votes in the island of Ireland on the Belfast/Good Friday Agreement 1998, a fact – along with many others – which appeared to set in motion a ‘dualist’ constitutional process, or at least a constitutional discourse that looks and sounds essentially, in Bruce Ackerman’s term, ‘dualist’ in nature.

The acceptance that no purely internal solution was credible (or likely to work) meant constitutional thinking had to transcend traditional approaches to Westminster-style constitutionalism, and be informed by perspectives that travelled ‘beyond the state’. In designing such an approach an intriguing question would always be: what would happen to the innovations once they had to be carried into legal and political life?

The aim here is to make an argument about developments in Northern Ireland, which has wider implications for discussions of constitutionalism in these islands. The argument, that I have made before, is straightforward: that Northern Ireland is best viewed as governed by a form of political constitutionalism that has given rise to a series of extra-conventional constitutional fundamentals. These are ‘extra-conventional’ in the sense that they spring from definite political and constitutional interventions and have a basis beyond traditional UK constitutionalism. This has given rise to a form of (to borrow Bruce Ackerman’s language, if not his approach) ‘constitutional dualism’; and they stand as constitutive principles of the ongoing political/peace process.  These are underpinned, and often driven forward, as much by external factors and actors as by any intra-Northern Irish processes. Although they possess explanatory and normative force (they assist us in explaining constitutional politics as well as telling us what we should do), they also can stand in tension with practice, and do not always necessarily cohere.

The argument is advanced in two parts. First, what is meant by ‘political constitutionalism’ is outlined in this specific context. The focus is on the ‘political constitution’ in its extra-conventional sense – the interest is not principally in legal standards or institutions, but in the essentially political principles that appear to be embedded in, and animate, the process of constitutional practice in Northern Ireland. Many of these have gained some form of legal recognition, but the question addressed here focuses on what precedes or constitutes this formal practice, as well as the societal practice of constitutionalism in action. Is this a practical example of a ‘constitutive moment’, anchored within the ‘political’, which confronts a model of constitutionalism in the UK that struggles to recognise or accommodate this political fact?   The intention is to move beyond discussions of legal and/or political accountability to explore the extra-conventional principles which operate as a direct challenge to practice, as well as those which appear to have become embedded and guide it.

Second, what lessons, if any, might be learned from this exercise in protracted constitutional practice in and about Northern Ireland in terms of ‘sharing society’? If the argument is that something of constitutional significance (in an extra-conventional sense) has been ‘constituted’, what is its nature and how does it relate to or challenge conventional practices (if at all).  Does this result in a form of chronic constitutional conservatism, or even constitutional originalism (with the Agreement or Agreements becoming narrowly understood ‘sacred texts’)? What happens when some of these fundamentals remain ‘under-enforced’ (and what could that possibly mean in this context), or have not been implemented, or are in tension with each other? If Northern Ireland is also the site of constitutional experimentation, and the intersection of constitutional relations within these islands, are there lessons from this experience – could some of the emergent principles provide guidance for new forms of political constitutionalism on these islands?

The Values and Limitations of Political Constitutionalism?

Political constitutionalism is often contrasted starkly with legal constitutionalism to denote a connection to – and preference for – political accountability and its associated democratic mechanisms. In this sense, it reflects a profound scepticism about grand constitutional gestures (the idea of ‘the moment’), the judicial role in relation to governing institutions (and generally), and matters such as constitutional review, and strong forms of judicial review. Advocates of political constitutionalism invest their faith primarily in democratic institutions and in improving their practical operation, and, in recent work one such advocate, Adam Tomkins, has defend an explicitly republican reading of the British constitution. Political constitutionalism seeks the restoration of the dignity of politics through a return to values of democratic participation, deliberation and engagement as the best way to secure the normative potential of democratic life. There is a concern about the consequences of the erosion of democratic participation that can flow from the weight placed on the more ‘mysterious’ (if not just as politicised) branches of government. The mistake here is to think that those who advocate political constitutionalism are any less committed to societal, political, economic and cultural transformation. The values of human rights, equality and social justice are advanced and upheld but the principled way forward is not to invest excessive or exclusive belief in the judiciary as their guardians. The argument is precisely that this form of constitutionalism is potentially more transformative. Political constitutionalists should be expressly for forms of political and legal mobilisation around democratic participation, rights, equality and social justice that create conversational space.

The term is used in both explanatory and normative ways, to describe what currently happens and argue for the way things should work. Recent attempts, such as that of Graham Gee and Grégoire Webber in The Oxford Journal of Legal Studies, to address the complexities of political constitutionalism have sought to unearth its normative commitments, as well as its explanatory potential, and to understand in what sense the term ‘political constitution’ is deployed. It now seems evident that political constitutionalism must be more explicit about its normative basis, commitments and practical implications for all institutions – and that work continues to flesh out precisely what it means for a range of institutional and societal actors.  For example, it may be that the ‘political’ in constitutionalism needs to be fleshed out to embrace more broadly based forms of mobilisation that go beyond formal democratic institutions. Political constitutionalism, if it is gain life at all, must be able ‘to see’ work on legal and political mobilisation that is injecting meaning into its core values in practical ways.

What is the sense of political constitutionalism informing the perspective here? In Gee and Webber’s argument, an understanding of political constitutionalism is explored that moves between the normative and the descriptive. Political constitutionalism is used to refer to the essentially political underpinning of key constitutional moments – thus referring to the element of constituent political power and its historical context that may get lost or absorbed – and the values that they endorse and reflect.  The argument is in support of forms of political constitutionalism that keep alive the normative potential of historical moments, their disruptive potential, and their challenge to the capacity of politics and law to retreat into forms of constitutional conservatism that simply absorb any transformative potentialities.

These include commitments to human rights, equality and even instruments such as bills of rights, and can be viewed as part of the ‘normative turn’ in thinking about political constitutionalism.  Unlike descriptive and normative accounts of, for example, the political constitution which are deeply sceptical about rights-talk, the argument is in support of forms of political constitutionalism that can fully accommodate rights and equality as well as their promotion and protection (by a range of institutional actors), while at the same time respecting the centrality and ultimate primacy of political forms of accountability. One of the precise reasons for keeping the politics of constitutive moments alive – particularly as this applies in transitional societies emerging from conflict – is to ensure that the normative force of these principles is realised. A political constitutionalism that could not capture the force and power of global and local movements for rights and equality – and the often innovative and creative ways in which they engage and argue – would surely be an odd one? Without abandoning a critical perspective – and a critique of some of the practical arguments advanced – the modern human rights movement is frequently giving meaning to political constitutionalism, normatively understood. Mobilisation around rights and equality should be more fully included within the sphere of political forms of constitutionalism.

But is this not simply a convenient merger of legal and political constitutionalism? Does this depart so radically from existing understandings that it merits any interest at all? The overriding commitment in the understanding advanced here is a belief in democratic and political processes as the primary generators of positive constitutional value, which can then be carried into peace/political/transitional processes. This is how constitutional basics are forged and continue to remain in play and enable other institutions (such as the courts) to make progress.  During peace processes, for example, we often see the precise dignity of the political sphere at work – as political actors strive together to find negotiated ways forward which sketch the parameters of future imagined societies. Institutions then become, in the words of Adam Tomkins, ‘instruments of the political constitution’ and ways in which the contested norms are taken forward.  There is recognition here, particularly significant in the context of Northern Ireland, that conflict is unavoidable and does not simply dissolve in the face of the ‘constitutional moment’; conflict is something that needs to be managed, and even transformed over time through engagement, disagreement and dialogue.  However ‘thin’ they are, some constitutional fundamentals need to be present if the work of transition is to progress. The principles flowing from these constitutional moments owe their origins to political processes and are anchored in the ‘political’ (and the subsequent constraints are ultimately political in nature), but that does not mean that they are empty of normative content.  Participants in the legal and political worlds must accord appropriate weight to these principles – which can be reflected in legal instruments (and thus can also be ‘upheld’ in formal constitutional arenas). The application of these principles may alter over time, but they retain a core that should be understood and respected.

Whatever formal footholds they have gained, or not, sustained disrespect for the ‘constitutional fundamentals’ which emerge from these constitutional moments can cause significant negative disturbance for the worlds of politics and law.  If the argument here were merely that constitutional change has its basis in politics then it would conform to standard accounts. The question raised is whether the Northern Ireland experience – as a constitutional site of contestation and collision within and between these islands – is a laboratory for new forms of extra-conventional constitutionalism which might even point the way towards future constitutional configurations in these islands?

Constitutionalism in Northern Ireland: Moments and Fundamentals

A constitutional process in conflict

One of the objectives is to locate the analysis of Northern Ireland in ‘constitutional’ terms. This is not to deny the explanatory power of a transitional justice lens, and therefore one that views events within the terms of a violent conflict and what has followed.  It is to suggest that constitutional discourses themselves often arise and become embedded in the midst of and following conflict – and we should not neglect the sharpness of the contestation and conflict that precedes, and is implanted within, traditional forms of constitutionalism. What are the risks of detaching ‘constitutionalism’ and ‘transitional justice’ in such ways, and might this simply encourage processes of forgetting the sheer force of the origins of constitutional moments and their historical context? Should constitutionalism have more confidence in its own intellectual resources?

The stress on the constitutional (and competing ‘constitutionalisms’) is also to place weight on the idea of the ‘constitution of Northern Ireland’ as reflecting values which might guide a post-conflict society. These values are not easily accommodated within the British constitutional tradition (which has been undergoing its own transition). The conflict in and about Northern Ireland is primarily ethno-national in nature, and tied in particular to contested notions of self-determination connected to two national identities and traditions: Britishness and Irishness. A limited constitutional appeal to one national tradition within a framework of UK constitutional law is not going to ‘work’ in a context such as this, where mechanisms have been put in place to acknowledge the equal legitimacy of competing national aspirations. Designing a relatively complex constitutional architecture, which owes its origins to the intense politics of a localised peace process, was the result.

A constitutional moment?

Was there a constitutional moment? The suggestion is that 1998 represented a constitutional moment in the history of Northern Ireland and Ireland, and in constitutional relations between these islands. In terms of the island of Ireland and Northern Ireland – I would tie this to two dates, 10th April 1998 (adoption of ‘The Agreement’ and 22nd May 1998 (all-island vote). For the purposes of this argument these dates have ‘extra-conventional’ significance – both politically and legally – in other words, a normative significance beyond that accorded to them in standard accounts of constitutional law in the UK. The argument is that the process led to the endorsement on the island of Ireland (and with the bilateral agreement also adopted, inter-governmental endorsement from the UK and Ireland) of defined constitutional fundamentals/principles which stand in, and over, this peace/political process. This can be pushed further to suggest that in the event of Irish reunification (achieved through this constitutionalised process) these principles would and should remain. In other words: that these are fundamentals that should function in the event of a democratic decision in favour of Irish reunification and subsequent constitutional debate about the future of Northern Irish representation in an Irish democratic context.

What are the constitutional fundamentals?

If there are constitutional fundamentals – born out of political contestation and alive now within it – what are they? A plausible case can be made for the following – in no particular order:

  • First, democratic consent (North and South) to any change in the constitutional status of Northern Ireland.
  • Second, internal power-sharing (liberal consociational) government in NI.
  • Third, recognition of the equal legitimacy of divergent national aspirations – with all that this implies re British-Irish intergovernmental engagement.
  • Fourth, a commitment to democratic and peaceful means only as the method of advancing these equally legitimate political aspirations (a commitment to politics and persuasion ‘the force of argument only’).
  • Fifth, good relations, mutual respect and structured co-operation on the island of Ireland (North – South) and between these islands (East-West, British-Irish).
  • Sixth, through the concept of ‘equivalence’, the centrality of human rights, equality and democratic participation to current and future constitutional arrangements (regardless of constitutional status)– the principled normative basis for sharing society – not just sharing political power.

Living with Fundamentals: Sharing Power and Sharing Society?

It is evident from the core language of the agreements reached that politics, democracy, consent and participation are all given a meaning that can only accord an express dignity to ‘politics’. In its sharpest sense this means rejecting political violence as the way of resolving disputes, as well as recognising the stumbling nature of an emergent political process. And it is here that a familiar tale emerges of the tensions between stabilisation of faltering politics and the normative aspirations generated by the ambitions of a peace process.

It is worth taking just two of the above fundamentals as illustrative of current debates. I suggest here that while there has been extensive focus on sharing political power (and the intricate ways this is structured and negotiated at a practical level), and stabilising power-sharing government, less attention is paid to the question of sharing society on the sort of principled basis envisaged in the various agreements. What this means is the normative basis on which the peace process was constructed (conceptions of a ‘better society’) can lose out to narrow understandings of stability and thin theories of economic advance as ultimate ends. It is in precisely this area that the significance of resurrecting constitutive politics (the normative basis of the new political constitution) becomes pressing and can take on profound practical value.

First, the idea of power-sharing government. The Agreement and Northern Ireland Act 1998 (as amended) reflect particular arrangements to give life to power-sharing government (and the ideas underpinning this were around for decades). This results in an Executive where all the major political parties are ‘in government’ together (a grand coalition) allocated on a proportionate basis – as with committee chairs and structures as well: the D’Hondt mechanism. The system of designation – ‘nationalist, unionist and other’ within the Assembly allows for the operation of cross-community voting rules for key decisions.

Debate has raged since 1998 about this model. It tends towards slow and ponderous government, gestural communal politics, a lack of legislative initiative, often does not pay due regard to principles of collective responsibility, and can create coalitions even more remarkable than the one operating in London now. This said, it remains hard to see how any other system could have functioned – or would have been acceptable to participants. The system was designed precisely to accommodate the particular circumstances of Northern Ireland and in many senses it has ‘worked’. It has now achieved a measure of sustained stability (the last Northern Ireland Assembly, unlike all of its predecessors, served its full term 2007-2011). The question for future reference, however, is when the time may be felt appropriate to discuss possible amendment, starting with the current designation system. Would that undercut a constitutional fundamental? The implication of the argument here is that it is possible to respect the constitutional fundamentals of power-sharing (the principle) through a variety of mechanisms of application. The discussion could safely be commenced without compromising Agreement-based constitutional fundamentals.

Second, the idea of sharing society; with express reference to human rights and equality. The Belfast/Good Friday Agreement is filled with the language of rights and equality. Over the course of decades it became an accepted ‘basic’ of the process that any resolution would have to contain such express commitments. The Agreement makes clear that whatever government has jurisdiction in Northern Ireland there must be no disadvantage in terms of rights. The document therefore endorsed the idea that constitutional status (UK or Ireland) should not determine the level of rights protection enjoyed. The Agreement provided for a new Northern Ireland Human Rights Commission, and is infused with the language of rights and equality. As with the emergence of a new rights regime in Britain, ‘Convention rights’ are mainstreamed in the Northern Ireland Act 1998 – and have the status with regard to the Assembly that the whole traditional conception of a subordinate legislation implies.

The Agreement suggested more than mere ‘giving further effect’ to Convention rights. It contained reference to a Bill of Rights for Northern Ireland that would supplement the Convention, draw on international instruments and experience, and reflect the particular circumstances of Northern Ireland. This was where the essentially new normative underpinning would come (the Convention rights were in a sense coming along regardless via the Labour government’s constitutional reform process and the Human Rights Act 1998). The advisory role was allocated to the Northern Ireland Human Rights Commission, and the Bill of Rights process was formally launched on 1 March 2000. It included an extensive participative process of consultation and revealed areas of agreement and disagreement (as would be expected of any such constitutional process). It included the work of the Human Rights Commission, a specially established Bill of Rights Forum comprising membership of political parties and civil society (with an independent international chair), and civil society participation that included the formation of an ‘umbrella’ organisation called the Human Rights Consortium. The final advice of the Commission was submitted to the Secretary of State for Northern Ireland on 10th December 2008 (chosen symbolically to align with the 60th anniversary of the Universal Declaration of Human Rights 1948). The Commission, following on from the consultation process, decided to include a broad range of rights (civil, political, economic, social and environmental). While the Commission opted for traditional judicial enforcement routes, it is quite explicit about the centrality of democratic institutions, including reference to a reporting mechanism to the Northern Ireland Assembly from the Executive on socio-economic rights, and the creation of an Assembly Committee modelled on the Joint Committee at Westminster. Following a period of consultation, the process is now effectively stalled. The Secretary of State has pointed to the absence of full cross-party consensus (and his unwillingness to act in its absence), and well as indicating disagreement with specific aspects of the Commission’s final advice.

The later stages of the Northern Ireland process also coincided with the emergence of a debate about a British Bill of Rights, which was to lead to the creation of a new Bill of Rights Commission that is due to report before the end of the year. One of the questions arising is how precisely the Northern Ireland process will be taken forward in a way that reflects its particular process of constitutionalisation, and it will be intriguing to see what answers – if any – are provided. Simply noting Northern Ireland, or even Scotland, as an uncomplicated ‘add-on’ to a set of UK-wide recommendations will seem odd in the constitutional context sketched here.

Is it possible to realise the constitutional fundamentals with reference to rights and equality without a Bill of Rights? Is this another ‘fundamental’ in need of further work? While there may be different ways to realise these other than with this instrument, there was a reasonable expectation that a Bill of Rights would be enacted. There is a risk that the failure to achieve a Bill of Rights further undermines ‘sharing society’ in Northern Ireland on a principled basis. The Bill of Rights is only one example of where the priority accorded to stabilisation has led to ‘under-enforcement’ of constitutional fundamentals around the development of an equal and shared society. This observation flows from analysis of contributions from societal participants within the current constitutional conversation, and gains its normative foothold less through formal recognition than through the advocacy of constitutional politics and practical mobilisation.

Conclusion

With all the flaws, failings and ongoing challenges taken fully into account, it remains credible to assert that the recent experience of Northern Ireland lends weight to the ‘dignity of constitutional politics’ and shows why a belief and faith in the hard, grinding and comparatively unrewarding work of constitutional politics should not lightly be surrendered. The constitutional moments are often precisely that – they do not arrive without the effort of constitutional practice at localised levels, and their normative aspirations are not easily realised without a continuation of societal engagement. Political constitutionalism will only ever gain real life through practical mobilisation beyond the institutions of government and governance.

The tentative suggestion here is that a ‘political constitution of Northern Ireland’ was born from the peace/political process. It is a constitutional experiment – because of all the intersections that occur here – that has deeper significance for the democratic configurations of these islands. It is one that owes its origins to, and is constituted by, a defined historic period and political context. This constitutional moment was reflective of the essential ‘dignity of constitutional politics’, and it generated constitutional fundamentals that are ‘extra-conventional’, in the sense that they may not gain precise recognition in practice or by participants in legal forms as currently understood. They retain normative value nonetheless. The ‘dualism’ that emerges rests on constitutional fundamentals/principles that can be realised in a range of ways. These principles carry explanatory and normative potential in seeking to grasp the tensions within constitutional politics, and the standards driving debate and momentum. The continuing conversation about constitutional law and politics in Northern Ireland is filled with competing understandings of what they might mean, and how they might be realised. The empirical evidence suggests that so long as the fundamentals are respected, then the political/peace process in Northern Ireland is stabilised and advances. ‘Disrespect’ results in negative disturbance and disruption and can generate breakdown (‘under-enforcement’ is potentially one of the most serious forms of such disrespect). This does not imply rigidity (although inertia can be one of the consequences of the consociational model, even in a liberal form) – there is much flexibility within this context. But it is to suggest that systematic disrespect for the newly emergent ‘political constitution’ of Northern Ireland (whether emanating from London or Dublin) will lead to practical political and legal problems for all participants.

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

This paper was presented at the ‘Political Constitutions’ workshop, held in GCU London, 7-8th June 2012.

Suggested citation: C. Harvey, ‘Reconstructing the ‘Political Constitution’ of Northern Ireland’ UK Const. L. Blog (2 August 2012) (available at http://ukconstitutionallaw.org).

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Christopher McCrudden: Scottish Independence Referendum: the Northern Ireland and international human rights law dimensions

Nick Barber’s post on a Scottish referendum raises many interesting issues, not least the implications of setting the issue in the context of British constitutional development as a whole. He misses at least two pieces of the jigsaw, however, which need to be factored in if a more comprehensive view is to be taken.

The first issue is the experience in Northern Ireland of such referenda. In March 1973 a referendum was held as to whether Northern Ireland should remain part of the United Kingdom and whether it should join with the Republic of Ireland to form a united Ireland. Nationalists boycotted the poll and the result was an overwhelming vote in favour of the Union. Since then, the possibility of a repeat referendum has been one of the elements of the Peace Process.

The current provisions are set out in the Northern Ireland Act 1998. This partially implemented the Belfast Agreement, and provides for a referendum on independence for Northern Ireland in certain circumstances. Section 1 provides that “Northern Ireland in its entirety remains part of the United Kingdom”. In rather convoluted drafting, the section further provides that Northern Ireland “shall not cease to be [part of the United Kingdom] without the consent of a majority of the people of Northern Ireland voting in a poll held for [these] purposes …”.

For a poll to be regarded as being held under the1998 Act, it is the Secretary of State who, by Order, is responsible for calling the poll, for setting the date, for specifying who is eligible to vote, and for setting the question (“or questions”) asked. There has been some debate in Northern Ireland as to whether the Northern Ireland Assembly might organise such a poll, but it is clear that, even if it can, it would be only advisory. A poll must be held in accordance with the provisions of the 1998 Act, if it is to have the legally binding effects set out subsequently.

The Secretary of State has a wide discretion as to when to hold such a poll but this discretion is, however, limited in two respects.  First, the Secretary of State is required to call a poll “if at any time it appears likely to him 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.”  Second, the Secretary of State is required not to call a referendum “earlier than seven years after the holding of a previous poll” on the issue.

The domestic legal consequences of a vote in favour of exit depend on the exact nature of the question asked. There are two possible scenarios, at least theoretically. One possibility is that a question might be put on whether Northern Ireland should leave the United Kingdom and become a separate state (however unlikely this now seems, an independent Northern Ireland was debated on the fringes of loyalist politics in the past).  The more likely, second, scenario is that the question would ask whether Northern Ireland should leave the United Kingdom and form part of a united Ireland.

The domestic legal consequences of an affirmative vote for exit are not entirely clear because Section I addresses only the latter possibility. If there is an affirmative vote in favour of exiting the United Kingdom and joining a united Ireland, then the Secretary of State is under a duty to act on the result.  The Act specifies that where the wish expressed by a majority in such a poll is that “Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland” (but only in such circumstances, it would seem), then the Secretary of State “shall lay before Parliament such proposals to give effect to that wish as may be agreed between Her Majesty’s Government in the United Kingdom and the Government of Ireland.”

The second issue that Nick Barber’s post misses is the implications of international human rights law for Scottish independence.  This too is illustrated by the position in Northern Ireland, where the right to self-determination is accepted and agreed. There is no legal obligation under the 1998 Act on Parliament to accept these proposals.  Failure to do so, however, would be likely to result in a breach of the United Kingdom’s international law obligations to the Republic of Ireland under the Belfast Agreement.

In the British-Irish Agreement element of the Agreement, the two states recognised the legitimacy of whatever choice is freely exercised by a majority of the people of Northern Ireland with regard to its status, whether they prefer to continue to support the Union with Great Britain or a sovereign united Ireland.

They recognised also that it is for the people of the island of Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right of self-determination on the basis of consent, freely and concurrently given, North and South, to bring about a united Ireland, if that is their wish, accepting that this right must be achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland.

Most importantly, the two States accepted that a referendum under the Northern Ireland Act 1998 would have international law consequences on the British Parliament. The two states specifically affirmed that  “if, in the future, the people of the island of Ireland exercise their right of self-determination … to bring about a united Ireland, it will be a binding obligation on both Governments to introduce and support in their respective Parliaments legislation to give effect to that wish”.

This right to self-determination in the Irish context is merely one instance of a British constitutional law’s acceptance of the right to self-determination that the United Kingdom accepts as an international law obligation more generally. This can be seen, for example, in the United Kingdom’s ratification of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.  Both these Covenants, binding on the United Kingdom in international law provide for a right to self-determination. This dimension appears to be entirely absent from Nick Barber’s post.

What the implications of these international law obligations are on British constitutional law is, of course, an immensely complicated issue, but the issue it raises is of importance for the Scottish (and British) debate more generally: when Nick Barber states a general moral principle that exit from the United Kingdom must take place according to UK constitutional law, does this adequately take into account the Scottish people’s (international law) right of self-determination?

Christopher McCrudden is Professor of Human Rights and Equality Law, Queen’s University, Belfast

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Gordon Anthony: Axa – A view from Northern Ireland

It is a little over 6 weeks since the Supreme Court delivered its long-awaited ruling in Axa General Insurance v Lord Advocate [2011] UKSC 46. Although the ruling was of primary importance to Scottish law – see, for instance, its liberalisation of the rules on title and interest/standing – the challenge to the Damages (Asbestos-related Conditions) (Scotland) Act 2009 that had been enacted in the face of Rothwell ([2007] UKHL 39) was of considerable interest in Northern Ireland too. This was not just because the Northern Ireland Assembly had enacted parallel legislation in 2011, but also because it was expected that the Supreme Court would address complex constitutional questions about the nature of the powers of the three devolved legislatures. When it finally did so, the Court made clear that the devolved legislatures are not legally sovereign but that they are, nevertheless, democratically legitimated bodies that will attract only very limited judicial scrutiny outside the terms of their constitutive Acts.

The central issue in the case was whether the Damages (Asbestos-related Conditions) (Scotland) Act 2009 was ultra vires section 29(2)(d) of the Scotland Act 1998  by reason of being a disproportionate interference with the Article 1 Protocol 1 ECHR rights of the appellant insurance companies. The appellants’ submissions on this point failed because the Supreme Court was of the view that the legislation had been introduced to remedy a social injustice and because, in those circumstances, a court should interfere with the “public interest” choice of a legislature only where the choice is “manifestly unreasonable”. This, in turn, might have been dispositive of the case as it was noted that a further challenge based upon common law irrationality would inevitably fail if the Convention threshold of manifest unreasonableness could not be met (see para. 42 of Lord Hope’s judgment). However, rather than leave the matter there, the Court took the opportunity to elaborate upon the nature of the common law limitations that can apply to Acts of the Scottish Parliament. It is in that context that Axa is most relevant to Northern Ireland.

The Court developed two main points about the common law. The first was that common law irrationality does not lie as a ground for review of Acts primarily because of the constitutional nature of the Scottish Parliament. While Lords Hope and Reed emphasised that the Scottish Parliament is not legally sovereign in the sense that the Westminster Parliament is, they equally emphasised that the broader design of the Scotland Act 1998 entails that the powers of the Scottish Parliament cannot easily be compared to those of other recipients of delegated powers. Lord Hope thus said at paragraph 46 that the Scottish Parliament is a “self-standing democratically elected legislature. Its democratic mandate to make laws for the people of Scotland is beyond question”; and Lord Reed similarly noted that “(w)ithin the limits set by section 29(2) … its power to legislate is as ample as it could possibly be: there is no indication in the Scotland Act of any specific purposes which are to guide it in its law-making or of any specific matters to which it is to have regard” (para. 146). Against that background, it was thought that it would be inappropriate for unelected judges to use common law irrationality (or unreasonableness or arbitrariness) as a means to second guess the preferences of a democratically elected Parliament (albeit that Lord Mance was less absolute in his conclusions: see para. 97).

The second point was that the common law could be expected to intervene where the Scottish Parliament legislated in such a way as to threaten the rule of law as the cornerstone of the UK constitution. For Lord Hope, this was something that could occur where executive dominance of a legislature might allow a government to introduce legislation purporting to “abolish judicial review or diminish the role of the courts in protecting the interests of the individual”. Referring to Lord Hailsham’s famous words in The Dilemma of Democracy and Lord Steyn’s comments in Jackson, his Lordship noted the increasing influence of a single party in Holyrood and said that “the rule of law requires that the judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise” (para. 51). Lord Reid likewise identified values that he thought the Scottish Parliament could not abrogate, where he took as his starting point the interpretive presumption that prohibits recipients of power from acting contrary to common law fundamental rights save where the Westminster Parliament has expressly authorised that outcome. On this basis, his Lordship said that the Scotland Act 1998 is legislation “for a liberal democracy founded on particular constitutional principles and traditions … [Westminster] cannot be taken to have intended to establish a body which was free to abrogate fundamental rights or to violate the rule of law” (para. 153).

So, what does this all mean for the Northern Ireland Assembly? Certainly, the Supreme Court’s recognition of the need for heightened caution when courts are engaged in common law review complements earlier Northern Ireland jurisprudence on the legality of Orders in Council made under the Northern Ireland Act 2000 (the Act, now repealed, applied when the Northern Ireland Assembly was suspended). Such Orders are the constitutional equivalent of Acts of the Assembly, and the Northern Ireland courts refused to become involved in review processes that would have led them to consider the underlying policy of particular Orders (see, for instance, Re Carter’s Application [2011] NIQB 15). Axa, in that sense, has provided indirect confirmation that the Northern Ireland case law was correctly decided and that the courts were right to refuse to strain democratic principle.

In contrast, the understanding that the Assembly is not legally sovereign is essentially unremarkable, largely because debate in Northern Ireland has long been concerned more with ideas of political sovereignty and the so-called “consent” principle that underpins the Belfast Agreement of 1998.  According to that principle – which finds legal expression in section 1 of the Northern Ireland Act 1998 – Northern Ireland is to remain as a part of the UK for so long as a majority of its electorate wishes it do so. However, while that situates the Northern Ireland Assembly within the UK’s constitutional structures, section 1 also provides that the Westminster Parliament will legislate to give effect to a majority electoral decision that Northern Ireland should cease to be a part of the UK and should form part of a United Ireland (see, too, Article 3 of the Irish Constitution, 1937). The Northern Ireland Act 1998 has therefore never really been regarded as something that can/should sustain a legally sovereign legislature, even if the Act has been described as a “constitutional statute” (see Robinson v Secretary of State for Northern Ireland [2002] UKHL 32). It has instead been viewed as an Act that accommodates a delicate political accord that may later place Northern Ireland in a different sovereign setting altogether.

More complex is the position in respect of executive dominance and fundamental rights. Taking first the peril of executive dominance, the Northern Ireland Assembly is already characterised by such dominance given the consociational model of governance that defines the Belfast Agreement and Part III of the Northern Ireland Act 1998. That said, such dominance is several steps removed from the kind that concerned Lords Hailsham and Steyn, as the Northern Ireland Executive presently comprises Ministers from five political parties who must work together within a framework of elaborate checks and balances (both as apply to the Executive and within the Assembly). While it is, of course, theoretically possible that the Executive could pilot legislation that would seek to abolish judicial review, this would require a level of political co-operation on a controversial issue that would escape all previous experience in Northern Ireland, not to mention the checks and balances. To return to Lord Hope’s observation about the increasing influence of a single party in Holyrood, the absence of any related dynamic in the Northern Ireland Assembly perhaps limits the reach of his point about executive dominance. Indeed, it might even be said that legislation to abolish judicial review in Northern Ireland could be enacted only in the highly improbable circumstance that almost all parties to government simultaneously opted to jettison the rule of law.

Lord Reed’s comments on fundamental rights do, however, have a more immediate resonance in Northern Ireland, as the Robinson case had earlier established the importance of interpreting the devolution Acts in the light of the values that they embody (Robinson was concerned the interpretation of provisions on the election of the First and Deputy First Ministers: Lord Reed referred to the case at para. 153). So will this lead to the development of a more nuanced body of case law on the values of democracy, equality and rights that are generally said to inform devolution in Northern Ireland? Probably not, as the fuller thrust of Axa points away from ready judicial engagement with the legislative choices of the Assembly save to the extent that they are argued to contravene section 6(2)(c) of the Northern Ireland Act 1998 (the equivalent provision of section 29(2)(d) of the Scotland Act 1998). That said, ongoing political debate about the future of the Human Rights Act 1998 does suggest, at its most extreme, that the Act might be repealed and replaced with one or more of a number of Bills of Rights. In that event, sections 6(2)(c) and 29(2)(d) would become redundant on their current terms and they would have to amended to accommodate any new rights reality. Should that reality leave constitutional gaps, Axa’s potential for common law intervention might quickly be realised.

 

Gordon Anthony is Professor of Public Law at Queen’s University Belfast

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Christine Bell: Bills of Rights and Devolution: From the Universal to the Particular.

‘To produce one Bill of rights may be regarded as a misfortune.  To produce eight, looks like carelessness’.

This blog picks up on Nicholas Barber’s blog of September 11, 2011.  There he sketched the complicated options for taking a human rights case with respect to the Human Rights Act, the European Convention on Human Rights and the European Court of Justice.  He opined: whilst one bill of rights shows caution, three suggests panic.’

In this blog I examine the complications of the similar ‘disorder of legal orders’ (to use Neil Walker’s great phrase), emerging on the domestic rights front.  A stochastic set of Bill of Rights initiatives and Human Rights Act devolution dilemmas are driving multiple processes of reform in different directions, towards a wonderfully chaotic panoply of unintended consequences.

From three to eight?

 Within the UK three Bills of Rights processes are in train, in addition to Nicholas Barber’s three.

4. A Northern Ireland Bill of Rights.  The Belfast / Good Friday Agreement provided for a bill of rights in Westminster legislation providing for ‘rights supplementary to those in the European Convention on Human Rights, to reflect the particular circumstances of Northern Ireland, drawing as appropriate on international instruments and experience.’ (See further, advice given by Northern Ireland Human Rights Commission and post by Colin Harvey earlier this year).

5. An all-Ireland Charter of Rights.  This was to be considered in a joint initiative of the Northern Irish and Republic of Ireland Human Rights Commissions as also required by the Belfast/Good Friday Agreement, and underwritten by a British-Irish Treaty, although little progress has been made.

6. A UK Bill of Rights.  As provided for by the coalition  government, a Commission has been tasked with investigating a UK Bill of Rights with terms of reference that are remarkably similar to the NI Bill of Rights process namely, to fashion ‘add-ons’ to the ECHR to form a UK Bill of Rights. (And without complicating things too much, even should this come to nothing AXA General Insurance Limited and others v The Lord Advocate and others (Scotland), [2011] UKSC 46 offers the prospect of building ‘rule of law’ judicial review which, in theory, could begin re-incorporating a range of rights were the HRA dismantled see Adam Tomkins’ blog on the case.)

7. Scottish Rights for Scotland. Regarding a seventh rights framework, we could further add the outcome of a process, one suspects still to run, in Scotland, regarding when and how rights frameworks should apply in this devolved context.  The Scottish Human Rights Commission talk of a ‘National Human Rights Action Plan’ rather than a bill of rights (and opposes a UK Bill of Rights, preferring the Human Rights Act).  Meanwhile, the Scottish government has focused serious and sustained attention on how to limit the UK Supreme Court’s HRA review of criminal cases – this jurisdiction having resulted as anomalous  by-product of the shift of Privy Council ultra vires jurisdiction to the UK Supreme Court (see Walker Report 2010, Advocate General Expert Group Report 2010, McCluskey Report 2011, and Scotland Bill).  At present proposals are limited to a new appeals mechanism involving a reference procedure for cases involving convention rights, but underlying this reform lurks continuing pressure for a distinctive Scottish human rights regime policed by Scottish courts.  Such impetus is likely to be galvanized if – as they must – UK Bill of Rights proposals require amendment of the Scotland Act 1998 (where the definition of ultra vires incorporates the Human Rights Act).  SNP rhetoric with reference to the UK Supreme Court decision of Cadder v Her Majesty’s Advocate [2010] UKSC 43 appears to lean towards mediating and limiting the direct application of European Court of Human Rights’ jurisprudence in Scotland.  However, SNP’s independence agenda suggests a more extensive rights regime to perhaps include socio-economic rights.  Scotland’s devolved governments have repeatedly taken a different path to England and Wales with regard to socio-economic issues and the recently produced independence document of the SNP talks of new constitutional rights protection for Scotland and provides socio-economic commitments with a ‘rights’ flavour, all of which have relevance to ‘independence lite/devo-max’ outcomes as well as fully blown independence.

8. Welsh rights for Wales? For number eight we must turn to Wales where it is easy to imagine that with the Welsh Parliament which has recently increased its powers, moving towards its own bill of rights (see Liberal Democrat community bill of rights proposal), or national action plan for Wales.  The equality duty in the Equality Act 2010 already has a distinctive Welsh dimension and indicates that devolved diversity in rights is already with us but where equality is concerned has managed to come in under the radar (Northern Ireland of course also having an already-differentiated equality duty, and conditioning the powers of the NI Assembly not just on the HRA but on equality).

Although I too paraphrase Oscar Wilde I should make it clear that I do not view bills of rights negatively.  However, I would view as misfortune a single UK bill of rights, which watered down the Human Rights Act and negated ten years of Bill of Rights debate and a sensible proposal in Northern Ireland.  And the UK Bill of Rights process does seem somewhat careless and unfortunate from whatever political point of view one comes from.  Seized on by the Conservative Party apparently to limit judicially protected rights, to ‘get out’ of unpopular ECHR and HRA rulings,  and perhaps even strengthen the (UK) union, the terms of reference they cobbled together in coalition contemplate extending EHCR rights and show little thought to devolution, much less any evaluation of whether a bill of rights process will be a force for unity or galvanize (already existing) commitments to devolved rights regimes.  Were I an anti-HRA/ECHR conservative I would view such this result as very careless.

Plus, it all seems a quite careless anyway.  The Commission is to consult on ‘which rights’, but not on process or enforcement; has a mandate and membership which ‘forgets’ devolution, does not mention or draw on expertise of identical devolved initiatives, and then tacks on a few devolved ‘advisors’ using a mysterious appointments process; apparently uses ‘polarized views on Bills of Rights’ as its key membership criteria; is given an almost non-existent website (buried as a section of the ‘Justice’ department); establishes a once-off time-limited written consultation process with no education dimension and little public purchase (despite lack of public ‘ownership’ being a key rationale for moving from the Human Rights Act, see  Grieve); and manifests its divisions on its first, less controversial, task of advising the government on reforms to the European Court of Human Rights, where the Commission’s official advice was supplemented/counteracted by a letter to Ministers from the Chair, both of which were then unilaterally denounced in the press by one of the members (see  UK Human Rights Blog).  Whew.

Lost in this Bill of Rights mess, it is easy to miss the quite fundamental underlying negotiations that beget and sustain the mess.  Two key negotiations in particular are worth noting.

Plural rights for constitutional pluralism, or rights hierarchy for a unitary state?

One submerged negotiation is over a unitary or pluralist conception of the UK current constitutional arrangements.  For better or worse, the UK seems to be tracked into a process of incremental constitutional reform that includes on-going negotiation of devolution, and on-going negotiation of rights frameworks and the balance between legislature and judges at both national and devolved levels.  It is unreaslistic to expect such a process to deliver order, a common rights framework, and a neat rights hierarchy from devolved regions and courts, to the ‘UK’ and the UK Supreme Court, all embraced by a ‘we the people’ consensus. The current ‘Bills of Rights’ debates are  a by-product of incremental piece-meal reform, but also expose the limitations of such a process.  It is difficult to draft ‘we the people’ documents and broker foundational political compromises as to centre v. periphery, legislatures v judges, through processes that pretend to be minor tinkering at the edges.  We are indeed a big and complex society or even constellation of societies, and we need a ‘big conversation’.

Navigating the Universal and the Particular

The second negotiation is one over where and how universal human rights are best fashioned and applied.  All efforts to implement international human rights standards into domestic law and practice involve an attempt to provide for a particular application of universal rights.  The general wording of international human rights standards and the jurisprudence of their implementation bodies all leave considerable room for translating the universal into the particular.  In the translation, however, arguments arise as to what constitutes ‘translation’ and what constitutes re-writing.

Underlying the debate as to where and how to protect rights as between European, UK-wide and devolved fora, is a political debate as to who it is will really uphold ‘universal values’ in a locally appropriate way, and who has an agenda to ‘particularize’ rights to their own imperialist/ partisan political image.  Thus conservative politicians charge the ECHR as foreign and imperialist in terms of a European paradigm, and assert a UK Bill of Rights as a legitimate ‘more appropriate’ alternative.  However, proponents of the HRA suspect a conservative particularist/imperialistproject at play in the UK Bill of Rights debate, and an attempt at ‘watering down’ or even jettisoning the ECHR for narrow political gain.

Meanwhile, the regions (and others) also charge the process as an imperialist conservative party and unionist project from an internal perspective; while attempts to construct differentiated regional rights provision are counter-alleged by the centre to be ‘too locally driven’, not ‘proper rights’, or not rights which can be delivered to devolved regions alone (see Labour government response to Northern Ireland Bill of Rights Advice).  Behind these counter-charges lies the suggestion that devolved rights agendas also hide imperialist ambitions, this time of devolution nationalists.

Reframing the issue

So what do I say to this?  First of all, I point it out to clarify debates.  But to go further I suggest that the following are useful to bear in mind.

1. Attempted imposition of ‘neat’ rights hierarchies will not make the difficulties of ‘what rights,  where?’ go away.  What is is, and it would be a mistake to assume that a constitutional default position exists.  Let’s embrace the negotiation which is an important one over where and how best to protect rights, and what the relationship is and should be between all the UK’s courts and legislatures.  If this is the debate let us be honest and explicit about it rather than pretending it can be ‘won’ by setting up or running a circumscribed process.

2.     We can never assume or take for granted who best protects  and develops universal human rights.  There is a tendency to think and argue that universality lies in a similar hierarchy to courts of appeal and legislatures themselves, and that we move from more particularized to more universal as we move from local, to national, to regional, to international legislatures and courts.  However, international law makers, courts and tribunals can have their own agendas just as surely as national ones.  While it is true that the expression of rights is likely to move from the more specific to the more generalized and abstract as we move from local to national to international, this does not necessarily equate to a movement from the particular to the universal.

3.     Judges best win jurisdiction over issues by the ways in which they reason from the universal to the particular, rather than by asserting a place in a legal hierarchy.  If local courts are to take themselves seriously and clamour for jurisdiction, they must show themselves capable of engaging with and reaching to universal values when they decide particular cases.  There is a difference between local application of universal values, and ignoring those values or seeking to attenuate them.  Similarly, international judges have most power to affect the implementation of rights where they take local context seriously.  The universal and particular are linked – and a court’s legitimacy in the arena of rights often depends on how it frames its decision in terms of navigating between the two.

4.     Most esoterically, but perhaps most importantly, the difficulty of navigating the universal and the particular is always with us.  Translating the universal to the particular, and using the particular to build, apply, and even establish the universal is an eternal dialectic.  Constant challenge and negotiation is less a problem, and more an important part of how we actually negotiate and come to understand values as universal in the first place.

5.     Therefore we should be suspicious of a priori claims to the Universal as linked automatically to the ‘level’ of the rights initiative, and seek to understand how challenge and counter-challenge work.  That is the end to which this blog has been written, and so I close.

Christine Bell is Professor of Constitutional Law at the University of Edinburgh.


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