Beyond the Border. Richard Humphreys
Representation of Northern Ireland in Irish Political Institutions
CHAPTER SEVEN
Removing the Obstacles to Uniting the Peoples of the Island
Parity of Esteem South of the Border
Creating Additional Protections for Unionism Post-unity
Constitutional Change to Accommodate a Devolved Executive
Constitutional Rights for Those with a British Identity
A New Constitution for Ireland
Denominationalism and Symbolism in the Constitution of Ireland
Acknowledging the British Identity
Reactivating Commonwealth Membership
Symbolism in the South
Providing Reassurance
Conclusions
Endnotes
Index
Foreword
The Good Friday Agreement of 1998 was a watershed moment in Irish and British history. Overwhelmingly supported by the electorate of Northern Ireland and Ireland, the Agreement created an interlocking set of principles and structures designed to develop a peaceful partnership between the different traditions and conflicting political ambitions robust enough to consign conflict to history. A new future beckoned based on parity of esteem, equality, mutual respect, shared government in Northern Ireland and intergovernmental collaboration on the North–South and East–West axes. Over its twenty years of operation, the Agreement has proved to be encouragingly resilient in the face of many difficulties but there can be little doubt that it now faces a particularly testing period with the collapse of the devolved government in Northern Ireland and the United Kingdom’s withdrawal from the European Union. These very issues lend an urgency to refocusing attention on the structure and principles which underpin the Agreement and on the imperative this generation has and owes to past and future generations to ensure it continues to be the lodestar which guides us steadily on the path to peace and reconciliation. The institutions created by it are intended to withstand and provide a safe space for ongoing debate and deliberation on the constitutional choices available to the people of Northern Ireland. They also form the template as much for the shape of Northern Ireland’s political structures within the United Kingdom as within a united Ireland as Mr Justice Richard Humphreys’ timely and useful book asserts. He argues that a devolved assembly where the various traditions must work together is, under the Agreement, a permanent feature of the landscape, that the validity, equality and mutual respect of the different traditions are enduring commitments, regardless of whether the constitutional situation remains as it is or changes. This raises uncomfortable questions.
Mr Justice Humphreys pursues a number of issues which have been overlooked up to now given this reality and which commend themselves to further investigation by the relevant governments, political parties and the constituencies which make up the public in Ireland and the United Kingdom, jurisdictions whose collegial relationship has been transformed in recent years. This is an area often fraught with fears, and suspicions, but the author is to be commended for exploring these sensitive issues without engaging in political comment or favouring any particular shade of political opinion. His focus is on the Agreement: what it means and what the practical implications are of the spirit and letter of the principles contained in it. It is clear that some aspects of the Agreement have not been understood and assimilated, and, insofar as he seeks to address some of these misconceptions, in a non-political and non-partisan spirit, I believe this is a necessary corrective to the debate. He also highlights how a renewed focus on what is required by the Agreement can provide new perspectives with which to make devolution work. While setting out what the Agreement means, and outlining options for progress within those parameters, he wisely leaves all consequent decisions to the political process. To that extent, it is a book which strives for scrupulous fairness and impartiality in what is usually a hotly contested political space where resentment gets in the way of the calm reasoning that this debate would benefit greatly from.
Mr Justice Humphreys, in this thoughtful and excellent work, carefully lays out the sometimes uncomfortable implications of accommodating all traditions. His is a vision for Northern Ireland as a place at peace, where North/South relationships develop unforced and organically over time as has been happening naturally and imperceptibly since 1998 but with manifest, tangible benefits for all. In his view, constitutional change, if it were to happen, would evolve in the context of progressing partnership rather than sudden political rupture. The old language of winners and losers is redundant in such a vision. It is about choosing the best future for all of us in an egalitarian culture of good neighbours and not simply a flag.
Dr Mary McAleese
8th President of Ireland, 1997–2011
April 2018
Preface
This book seeks to discuss and explain the implications of the Good Friday Agreement in relation to any possible future change to the constitutional status of Northern Ireland. It is clear that there remains misunderstanding on many sides as to what the Agreement means. This book is an endeavour to explain the Agreement and its implications. It is not meant to be a political work in any sense. It is written in a personal and academic capacity. It does not argue for or indeed against Irish unity; obviously there are many weighty arguments on both sides which must be left to political debate. Nor does it even seek to encourage debate about a change in the constitutional status of Northern Ireland. The empirical fact is, however, that unity is currently being discussed, and that discussion is hampered by a certain amount of misconception about what the Agreement involves. This book, therefore, is an attempt to explain the Agreement and its implications, and to set out the legal and constitutional parameters. There is, of course, scope for political judgement within those parameters, as long as the constraints of the Agreement itself are acknowledged. Within those constraints, my intention is to leave any judgements on political issues to the political realm.
This book grew out of my 2009 book, Countdown to Unity, which, in turn, developed out of research I began in 2003 for my Ph.D. thesis. My interest in the area was stimulated by having had the privilege of attending, at the outer edge of the Irish delegation, the opening and early sessions of the phase of multi-party talks that began in Stormont in 1996. Those talks ultimately evolved into the process that delivered the Good Friday Agreement two years later.
Since the previous book was published by Irish Academic Press in 2009, there have been significant changes in the constitutional situation. The June 2016 decision by the people of the UK to withdraw from the European Union has created a new context for discussion of the implications of the Good Friday Agreement for possible constitutional outcomes. In addition, the collapse of the Northern Ireland Executive in January 2017 marked a step back for the implementation of the Agreement.
The previous book provided some stimulation for the August 2017 Report of the Oireachtas Joint Committee on the Implementation of the Good Friday Agreement. That report, prepared with the assistance of rapporteur Senator Mark Daly, was a development which made a renewed look at the implications of the Agreement more timely. The 2017 report seems to have taken up where the 2009 book left off; but a lot has changed in the meantime, particularly in terms of difficulties with implementing devolution. That situation changes the context and the emphasis.
Overall, I have attempted to outline the implications of the Agreement and identify principles from it which are offered in the hope of contributing to a shared understanding of the constitutional space within which a debate about alternative futures can be pursued in as accommodating a manner as possible. Finally I should note that any views expressed do not reflect on any actual or potential litigation and are, in the forensic context, ‘subject to hearing argument’.
Richard Humphreys
April 2018
Acknowledgements
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