Constitutional Law in Context

Context matters in law. Northern Ireland has a devolved executive and legislature; but the constitutional transition should not be viewed exclusively as a tale of devolution within the UK. To do so would be to neglect the particular circumstances, and thus risk perpetuating an impoverished understanding of constitutional change. The danger is that you miss the fact that this is a society still emerging from a violent conflict, during which the British state was a proactive participant (something too often skipped in constitutional narratives).

The complex mechanisms in place (that reflect internal, North-South and East-West dimensions) are intended to be interlocking and interdependent; stability is therefore always relative in such an ethno-nationally contested arena. Sharing experience from other devolved settings is helpful, and many similar legal and political issues arise. The notion of ‘constitutional statutes’, however, takes on a distinctive meaning in Northern Ireland; devolution was forged and re-emerged after decades of conflict and during a peace process. The ‘Brexit’ debate, and all that flows from it, enters this unique (within the UK) constitutional setting. It would be quite remarkable if this context is not legally and politically relevant.

Northern Ireland’s Constitutional Questions

Several questions have made their way to the Supreme Court, following on from the judgment of the High Court in Northern Ireland in McCord and Agnew and others. The applicants did not have much luck in the High Court in Belfast, with Maguire J rejecting all their arguments. The Court of Appeal (Northern Ireland) has referred one question and the Attorney General for Northern Ireland has referred four questions. It is plain from the submissions in Agnew and others (addressing the Attorney General’s reference) that they would have approached things differently. But these are the questions that the Supreme Court has examined.

In general these submissions addressed precisely what legal and constitutional weight should be accorded to the Northern Ireland arrangements during the process of taking forward ‘Brexit’. In the McCord submission the principal focus was on the centrality of the principle of consent and the right to self-determination. The submission was that leaving the EU is such a fundamental change that it impacts directly on the constitutional status provisions (self-determination) contained in s 1 of the Northern Ireland Act 1998, read with the Belfast/Good Friday Agreement and the British-Irish Agreement. The people of Northern Ireland have not consented, and it is argued that this matters constitutionally. ‘Brexit’ will, among other things, remove the underpinning of common membership of the EU (UK and Ireland), and the suggestion (among others) in this submission is that this will have serious implications for the future deployment of the right to self-determination.

The submission of Agnew and others addressed the four questions in the Attorney General’s reference (with their concerns about the High Court judgment in Belfast evident throughout). The suggestion was that the prerogative powers have been ‘displaced’ by the measures noted above, and that before Parliament is asked to authorise ‘Brexit,’ a Legislative Consent Motion from the Northern Ireland Assembly is needed. If that is not accepted (and the Government can proceed by way of prerogative powers) they argue that Northern Ireland constitutional and public law places limits on the way forward. The Government should, for example, take account of Northern Ireland’s special circumstances within the UK. Additionally, this submission also draws in s 75 of the Northern Ireland Act 1998 (Northern Ireland’s ‘constitutional’ equality guarantee), arguing that if parliamentary authorisation is not needed, this provision means that the Northern Ireland Office must assess the equality impacts of ‘Brexit’.

The Supreme Court was therefore invited to consider whether the parliamentary route is required as a consequence of Northern Ireland’s constitutional arrangements, and also to address the question of consent (whether it is raised at all here, and its possible meaning and status if it is). If prerogative powers can be used the submission invites the Supreme Court to acknowledge that Northern Ireland’s legal circumstances should impose constraints. It remains to be seen whether the Supreme Court (unlike the High Court in Belfast) will be prepared to find legal significance in any of this.

Modest Constitutional Proposals?

Aileen McHarg notes, in considering the devolved perspectives emerging in Miller, that ‘a radical and pluralist’ understanding of the constitution of the UK is in evidence. That point is amplified in Northern Ireland. The principle of consent, noted in the McCord submission, resonates in Northern Ireland in ways that go well beyond the Sewel Convention. Remember, this is a region where constitutional status (within the UK) is legally anchored in majority consent. There is an established right to leave this particular union. The Irish Government is a co-guarantor of the Agreement from which that complex right arises. The Westminster Parliament has recognised legally the political reality of a carefully designed right to self-determination, as well as, for example, elaborate power-sharing arrangements. It may well be that this is all simply judged not to be legally relevant in this instance; that will seem constitutionally implausible to many people in Northern Ireland, however in line it may appear with a particular reading of traditional British constitutional law.

The Agnew and others submission attempts to tease out, in a nuanced way, the precise constitutional and legal implications, based around the four questions referred by the Attorney General of Northern Ireland to the Supreme Court. Central to the argument is the idea that Northern Ireland constitutional law and principle, and public law, should impact on how ‘Brexit’ is taken forward, and they suggest that it should even potentially shape the substance of what is taken into account (including, for example, on equality). Viewed in the transitional context noted, the propositions do seem modest enough. If constitutional law does not speak to any of these matters then it is likely that constitutional politics will; further confrontation will be inevitable on process and substance.

It would be quite something if the Westminster Government or Parliament is constitutionally entitled to advance the political consequences of the vote to leave the EU without taking any of Northern Ireland’s particular circumstances into account. One seemingly orthodox reading of British constitutional law (firmly upheld in the High Court in Belfast, and endorsed by the UK Government and Northern Ireland’s Attorney General in that case) may very well promote that view. If so, many will rightly ask: has anything of constitutional significance really changed here since 1998?

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

(Suggested citation: C. Harvey, ‘Northern Ireland’s Transition and the Constitution of the UK’, U.K. Const. L. Blog (12th Dec 2016) (available at https://ukconstitutionallaw.org/))