Has Nothing Really Changed Here? Brief Reflections on the ‘Brexit Litigation’

We are pleased to share this from Prof Colin Harvey, QUB School of Law and Human Rights Centre. Colin can be reached at c.harvey@qub.ac.uk.

Has anything that has happened since 1998 regarding Northern Ireland changed the constitution of the UK? If so, in what ways? These are among the questions to be faced in the time ahead. The ‘Brexit litigation’ gives the UK Supreme Court an opportunity to acknowledge that the Westminster Parliament has plainly established a more constitutionally pluralist UK (as a matter of constitutional law). Will it be taken?

The questions raised, and how they are answered, will have significant implications for the future of Northern Ireland. The arguments are well known, and continue to be exhaustively dissected (the internet, however, remains unbroken).   In reflecting on this subject, and the potential consequences for Northern Ireland, I would like to make the following three points.

First, in an advisory UK-wide referendum Northern Ireland voted to remain in the EU. This strongly suggests that the outcome was at least complicated. In addition to the legal argument about where this should be progressed (Parliament) it clearly requires further and enhanced democratic deliberation as a matter of constitutional principle. The UK currently has a number of legislatures (including the Northern Ireland Assembly, which has debated a motion on EU special status), with the Westminster Parliament retaining the last legal word. Those are the democratic contexts where it should be advanced, as a matter of constitutional law and constitutional principle. In a constitutionally pluralist UK the result was therefore complex; it demands further democratic reflection.

Second, Brexit will hurt Northern Ireland disproportionately. The prospect of the return of a visibly hardened border (however technologically constructed) is causing anxiety and fear. The disregard for the potential impact on the carefully constructed mechanisms for identity recognition is equally problematic. Common EU membership is an embedded feature of the interlocking arrangements in Northern Ireland and on the island of Ireland. Many other examples could be noted.  Brexit is simply very bad news for Northern Ireland in particular. This fact, and the vote to remain, should be constitutionally relevant and taken fully into account.

Third, in attempting to support an often fraught peace and political process it is hard to believe that the Westminster Parliament did not envisage tangible constitutional legal change. It seems plain that the Northern Ireland Act 1998, the Belfast/Good Friday Agreement and the British-Irish Agreement must be read together purposively in transformative constitutional legal terms. It surely strains credibility to read these just like any other measure within a narrowly understood devolution setting; the distinctiveness of the special circumstances of Northern Ireland would simply be constitutionally erased. Is the message going to be that in the most intense constitutional moment of our times that Northern Ireland’s delicately balanced constitutional architecture has no traction whatsoever as a matter of law? The repercussions of accepting that argument are far-reaching and disturbing; it may even require further negotiation around the existing structures. In their persuasive written submission to the Supreme Court, the applicants in the judicial review application of Steven Agnew and others are quite right to challenge such restrictive constitutional thinking. If the now outdated view of the UK constitution is favoured by the Supreme Court the result will degrade and diminish the standing of Northern Ireland’s transition.

There are other contexts, and much has been said already. Questions can be posed about the bankruptcy of orthodox British constitutionalism, and options advanced for framing a different constitutional order. The disrespect demonstrated towards Northern Ireland’s new constitutionalism (from the current Westminster government) rightly provokes much more than unease. Those debates continue and reform remains overdue; constitutional negligence may yet cause further fractures within the existing arrangements. For now the questions are narrower and nuanced (captured elegantly in the submission noted above).

The UK Supreme Court has the chance to confirm what many believe to be the case: that the Westminster Parliament has endorsed and created a constitutionally pluralist UK, with genuine legal as well as political bite. After everything that Northern Ireland has endured, is it the case that the constitutional transformations since 1998, and the particular circumstances of Northern Ireland, have no legal implications for the UK’s attempt to leave the EU (however taken forward)? Has nothing really changed here?