affiliated to the International Association of Constitutional Law
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:
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.
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).