A time of crisis and challenge: Brexit and our constitutional future

Professor Colin Harvey of Queen's University, Belfast.
Professor Colin Harvey of Queen's University, Belfast.

In this article, Derry-born professor of human rights law, COLIN HARVEY, warns of the ‘profound dangers’ posed by Brexit.

Brexit continues to generate a library full of responses. Rightly so, it will shape the future of these islands.

It is particularly distressing for N. Ireland (and the island of Ireland) precisely because it was not sought. N. Ireland did not vote for Brexit; many here assumed that the days when a singular UK-wide decision would determine our constitutional fate had gone.

Consent remains a long contested concept in this jurisdiction (for reasons that are too well known in this city to repeat). To watch it overridden so casually has alarmed many.

The chaotic approach of the Westminster Government (combined with its mismanagement of our peace process) has not assisted.

The collapse of the Executive and Assembly has left a troubling democratic deficit. But even those institutions would not necessarily deliver a unified voice. Both main parties took opposite sides in the referendum.

The DUP deal with the Conservative Party complicates matters even further.

There is much that could be said but I want to make five points here, with a view to promoting further discussion.

First, the debate on Brexit solutions can be divided between those advocating technical fixes and those who think something larger is happening.

Although the term is overused, this is an existential question for the UK and one that changes the nature of the constitutional debate on this island, too. Brexit is a ‘big deal’ and minor adjustments simply will not do.

There is a profound danger that those who pragmatically wish to move the EU-UK negotiations forward will overlook the significance (and lasting damage) for this island.

While there is admirable recognition at the EU level (prompted by determined lobbying), it is essential that this heightened awareness is maintained.

This is a major constitutional moment for this island, but it will pass and we must seize these moments when they arise.

Second, no one reading the ‘Derry Journal’ needs to be told that the complex constitutionalism of N. Ireland was worked out painstakingly over decades. Many in this city played leading parts. The Good Friday Agreement and subsequent agreements reflect a thoughtful and contextually sensitive approach to conflict transformation.

Brexit results from a desire to go backwards and, ultimately, to abandon the thinking that led to 1998 and everything that followed; little more than a worrying form of constitutional vandalism. It is a peculiarly British (or should that be English) version of retreat anchored in nostalgia and illusion.

We may become one of the main casualties (yet again). That is why hard work is required to ensure that the constitutional fundamentals of our peace process are embedded in what emerges and are used to shape a future for this island that is genuinely imaginative.

A form of sophisticated constitutional thinking emerged here that is under direct assault. It needs to be defended and applied. That cannot be left to Westminster and/or Whitehall.

Third, there is a real risk that Brexit will further erode human rights and equality guarantees for everyone here.

It is right that attention has turned to the protections that relate to Irish and British citizenship and identity (and all associated rights).

It is also vital that guarantees for EU citizens are secured. But care must be taken to ensure that minority ethnic communities do not become the new target group in a post-Brexit world.

Remember all that talk of ‘taking back control’, well that is aimed at migrants, refugees and asylum-seekers.

The UK could become an even colder place in this respect in the future. This is a Westminster government that talks about repealing the Human Rights Act 1998 and replacing it with a British Bill of Rights.

That is why a solid and enduring human rights framework is essential; the clue remains in the title. There are plenty of rights-based solutions on offer.

Fourth, the notion of a unique, particular or special status is much discussed. This is occasionally questioned in alarmist terms. But keep in mind that N. Ireland is already supposed to ‘enjoy’ a special constitutional status. What was the peace process about if not that?

The challenge then, is to guarantee that the wishes of people here, and those special arrangements that reflect our unique circumstances, are respected and advanced.

If some form of unique solution cannot be found, then people are quite right to raise the prospect of unity referendums on this island.

Brexit changes the nature of that question. People should be afforded the choice of remaining in the EU by leaving the UK (if a unique solution is not on offer).

If the constitutional status of N. Ireland really rests only on continuing democratic consent, then what precisely is the principled problem?

This aspect of Good Friday Agreement constitutionalism must be normalised (as a matter of urgency) as there is little doubt that one day people will be given this choice.

This island needs to be fully prepared for that day, when it comes.

Finally, at what point should we ponder the nature of some of the agreements reached thus far?

At present, and rightly so, the ambition is to make sure that the Good Friday Agreement and subsequent agreements are respected and effectively implemented. But how many years have been spent since 1998 talking about unimplemented commitments?

This raises an obvious question about enforcement that should provoke reflection on ways forward. If a new negotiated agreement is needed on this island (in order to build a principled, sustainable and stable way forward) should that conclusion be squarely faced sooner rather than later?

This may, or may not, be the right time for that conversation but it is a logical conclusion from the last 20 years.

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