Good Friday Agreement and a new constitutional conversation

Colin Harvey, a Professor of Human Rights Law, School of Law, Queen’s University Belfast and Principal Investigator on an ESRC-funded project that is examining consequences of Brexit for Northern Ireland, suggests a new constitutional conversation for the island of Ireland.

The debate on Brexit rages on, as the EU-UK negotiations continue. A shape is emerging, even though much remains worryingly speculative. The potential impact on Ireland has been exhaustively discussed. The consequences for Northern Ireland are troubling and destabilising (it voted to remain). Brexit fuelled the mood that led to the collapse of the Northern institutions; the Conservative-DUP deal makes restoration even more complicated.

The island is entering a strange new era, one where the border may become a visible external border of the EU. The background assumption of common membership of the EU will go, and with it the contribution made to easing pressures that might otherwise exist over border controls. Over the longer term, the concrete EU assistance given to the peace process will depart as well. Things look grim; you have to strain hard to spot any silver linings around these clouds.

EU foundational values

That is not to eulogise the EU. It is a supranational organisation with problems, and its member states (with exceptions) have hardly emerged well from, for example, their inept handling of the global refugee crisis. The continuing dominance of a suffocating practice of austerity does not assist either. Anyone who thinks, however, that the UK is leaving to embrace a utopia of justice and equality is not residing in the world we currently know.

As with each of its member states, the EU is not a monolith and the voices are there arguing for change. If it is to renew itself the EU must rediscover its own foundational values, including around respect for equality and human rights. Ireland too should be central to that conversation, rather than suffer needlessly within a ‘special relationship’ that the other partner is effectively walking away from.

There are two themes I want to draw out here: the urgency of normalising aspects of Good Friday Agreement constitutionalism; and the significance of constitutional values to the solutions advanced.

Normalising the Good Friday Agreement

First, it is time to normalise the conversation about constitutionalism on this island. Northern Ireland is already supposed to have a special constitutional status. UK constitutional law may be struggling with this concept, but it was and remains a constitutional fundamental of the peace process. Asking the EU and the UK to carve out a meaningful and legally guaranteed special status seems entirely fitting in that context. What precisely was the Good Friday Agreement about if it was not intended to lay down principles and establish institutions that reflect the particular and unique circumstances of Northern Ireland? The three-stranded approach mirrors a form of transnational thinking that still chimes well with the innovative thinking underpinning the EU framework.

Everything from internal power-sharing to the complex right of self-determination that the Agreement endorses speaks to a desire to transform conflict through constitutional imagination. This fact seems to be firmly recognised in the rhetoric surrounding the negotiations. It is encouraging that the EU in particular has given the Agreement, and the needs of this island, considerable emphasis.

“It is an ideal time, for example, to renew the discussion of a Bill of Rights for Northern Ireland and a Charter of Rights for the island.”

The Irish Government, many political parties and others on this island have worked tirelessly to make the case. Rather than squeeze Northern Ireland into an existing template once the UK departs (as attractive and sensible as that might seem) why not create a legal space/zone where things are effectively held in place in ways that respects the consent principle in this new environment? That may well depend though on just how soft the UK Brexit becomes, the extent to which such aims are now politically feasible (given the relationship between the Conservative Party and the DUP) and how willing the EU and Ireland are to be genuinely protective of the principles underpinning the peace process.

Constitutional values

Second, Brexit should prompt more considered reflection about the future of this island. The frequent talk of solutions begs several questions, including who is listening and what practically can be done. The rights of EU citizens in the UK and the rights of British citizens in other member states are issues frequently raised; and are the source of ongoing tensions. The UK and Ireland already operate a special relationship that includes treatment that is distinctive. This extends from voting rights to the approach to, for example, the EU’s Common European Asylum System. Notionally in defence of the Common Travel Area both are willing to opt-out of aspects of law and policy on the treatment of refugees and asylum seekers in the EU.

Within the constraints of the EU legal order it is likely that these UK-Ireland arrangements may continue. But Ireland will come under pressure if it is seen to collude with a UK government that uses Brexit to race even further to the bottom in terms of immigration and asylum. That is why we must bring human rights back into the picture. One way to counter the UK’s narrow focus would be to resurrect the human rights agenda of the Good Friday Agreement. It is an ideal time, for example, to renew the discussion of a Bill of Rights for Northern Ireland and a Charter of Rights for the island. Why not face Brexit with values that might unite all on this island?

Being ambitious

Brexit can be viewed in technocratic terms; how to fix the impending impacts. That is necessary work. But to what extent should this also prompt deeper constitutional reflection on values? What are the values and principles that will offer guidance for the century ahead? The Good Friday Agreement seems particularly relevant again (nearly 20 years on). Not only because of the sophisticated way it focused on relationships across these islands, but also due to the place given to human rights (read it again). Ireland, north and south, has work to do.

There is no doubt about it. But is there any reason not to be appropriately ambitious for human rights and constitutional reform in the time ahead? Rather than simply react to the immediate problems that Brexit throws up why not advance directly the values that Ireland wants to realise? The meaningless jargon of ‘take back control’ in Britain thus has an odd resonance in Ireland. Perhaps Brexit should encourage a new constitutional conversation about the sort of island we want to inhabit. An acceptance that there may be more that unites people on our shared island than is often imagined and that a human rights framework could bring our attention back to the people who live here.