The character of the 1998 Agreement - results and prospects
By Brendan O'Leary
From: Aspects of the Belfast Agreement edited by Rick Wilford
Oxford University Press 2001
A UK Northern Irish federalizing process
The Agreement was perhaps the penultimate blow 31 to unitary Unionism in the UK- already dented by the 1997-8 referendums and legislative acts establishing a Scottish Parliament and a Welsh Assembly 32. But was the Agreement simply a case of 'devolution within a decentralized unitary state'? That was certainly the unionist perspective. Arguably, however, matters were reasonably construed differently: Northern Ireland would become a 'federacy' if the Agreement stabilizes. Two Unions make up the UK: the Union of Great Britain and the Union of Great Britain and Northern Ireland. The constitutional basis of the latter Union is now distinctly different to the former see Hadfield, in Chapter 5 of this volume.
The Agreement was embedded in a treaty between two states, and based on the recognition of Irish national self-determination. The UK officially acknowledged that Northern Ireland had the right to join the Republic, on the basis of a local referendum, and it recognized, in a treaty, the authority of Irish national self-determination throughout the island of Ireland. Moreover, the Agreement's institutions were brought into being by the will of the people of Ireland, North and South and not just by the people of Northern Ireland - recall the interdependence of the North South Ministerial Council and the Assembly. In consequence, the UK's relationship to Northern Ireland, at least in international law, was explicitly federal because the Westminster Parliament and executive could not, except through breaking its treaty obligations, and except through denying Irish national self-determination, exercise power in any manner in Northern Ireland that is inconsistent with the Agreement.
That is why, in Irish nationalist eyes, the unilateral suspension of the Assembly and the NSMC by the UK in February 2000, was regarded as a breach of the new constitutional arrangements. This step violated the will of the people of Ireland, North and South, expressed in two referendums; neither the Agreement, nor the people(s) had mandated the suspensory power. The Secretary of State and the UK Parliament may have believed they were acting from the best of motives - though that can certainly be debated - but they acted without any serious scrutiny of the constitutional consequences. Their action ripped apart the negotiating work of the last ten years --breaking the UK's commitment to the principles of consent, and the recognition of the Irish people's right to national self-determination, North and South. No UK parliamentarian can now look an Irish republican in the face and say that a united Ireland will occur if there is local majority consent, because any such promise, like every other element of the Agreement, is now vulnerable to the infinitely revisable dogma of parliamentary sovereignty. A state which lets its Parliament break international law, override a referendum, and suspend - without its assent - an Assembly built upon unprecedented levels of local consent in a referendum, is one which nationalists complain is incapable of being constititionalized.
The federalizing possibility, or federacy, that has now been put into deep storage, might have been enhanced if the UK and Northern Irish courts had come to treat Northern Ireland's relationships to Westminster as akin to those of the former Dominions - which had a federal character - as they did in the period of the Stormont Parliament (1921-72) 33. Maximum feasible autonomy for Northern Ireland while remaining within the Union was achievable, provided there was agreement to that within the Northern Assembly. Legalist Diceyians and unionists insisted that Westminster's sovereignty in Northern Ireland remained ultimately intact - ultimately to disastrous effect in February 2000. Nationalists, by contrast, believed that the repeal of section 75 of the Government of Ireland Act of 1920 was intended to place the status of Northern Ireland and its institutions in the hand of its people, not in Westminster's absolute determination. If the Agreement beds down, the political development of a federacy might be assured, but the prospect remains uncertain.
31. The formation of an English Parliament would be the last blow.
32. Hazell, R and O'Leary, B. 'A rolling Programme of Devolution: Slippery Slope or Safeguard of the Union? In R. Hazell (ed) Constitutional Futures A History of the Next Ten years (Oxford: Oxford University Press 1999) 21-46
33. Legal friends advise me that the UK's legislative enactment of the Agreement
may have modified the pertinent precedents in this previous jurisprudence
by changing the nature of the 'vires' test that the courts will use to deal
with jurisdictional disputes. |
