Andrew McCormick: The Windsor Framework does not breach the principle of consent for Northern Ireland

The concept of self-determination is also very difficult to apply here. The Troubles were at least partly about the fact that the ‘unit of self-determination’ was disputed. The IRA rejected the alleged legitimacy of the ‘six county’ unit. The most essential feature of the Belfast/Good Friday Agreement was that it secured a balanced definition of the constitutional position of Northern Ireland that was supported by majorities in the two referenda of May 1998, and hence it has unique legitimacy.

Brexit would appear to many to be a change in the status of Northern Ireland, which did not have the consent of a majority of the population of Northern Ireland. Such an argument would imply it was a breach of the 1998 Agreement. But Brexit was a sovereign act of the Crown in Parliament, and made no change to the fact that Northern Ireland is subject to that sovereignty.

Similarly, the post-Brexit agreement between the UK and the EU does not involve any dilution of the sovereignty of the Crown in Parliament over Northern Ireland, because all the provisions (including the application of EU law in Northern Ireland) flow from decisive votes of approval in the UK parliament. Indeed, the UK government secured its democratic mandate in December 2019 explicitly on the basis of the Withdrawal Agreement (which included, and was known to include, the protocol). Also, all the available evidence suggests that the protocol/Windsor Framework had and has the consent of the majority in Northern Ireland. Hence the narrative that protocol/Windsor Framework breaches the principle of consent does not stand up to scrutiny, as there is no provision in either the Act of Union (1800) or the 1998 Agreement for a minority in Northern Ireland to overturn a sovereign act of the Crown in Parliament.

In addition, unionist opposition to the protocol/Windsor Framework ignores the realpolitik that the issue is not solely about Northern Ireland’s place in the UK, but affects all 27 member states as well as the UK. Any model that would be radically different to the Windsor Framework would not be acceptable to that group, which is much larger and more influential than the unionist community. No-one has a monopoly on consent. In settling an arrangement for the regulation of trade involving so many countries, the best practical outcome that can be reasonably expected is a compromise that as many as possible can accept.

In the wider context of “the constitutional issue”, the Belfast/Good Friday Agreement remains clear and unchanged. It has been argued that there are aspects of UK constitutional law that should not be subject to the “whims of Parliament” – most strongly in the context of Section 6 of the Act of Union. But the agreement to the protocol was manifestly not a mere “whim of Parliament”. On the contrary, it followed several years of detailed negotiation (with the EU and within the UK government) when parliament had rejected all the other options. Following the General Election of December 2019, few things have or could have greater legitimacy in a representative democracy. Parliament’s resolved position was to choose to leave the EU Single Market and Customs Union, and to avoid a hard border on the island of Ireland. This was and is in line with the preference of the majority of Northern Ireland’s elected representatives, and it also includes explicit provision for a unique arrangement giving a role to the Northern Ireland Assembly in relation to the possible continued application of the protocol.

The 1998 agreement was a profound compromise (an agreement to disagree) that recognises that neither the Union in undiluted form (“as British as Finchley”), nor simply a united Ireland, have or could be expected to have anything like sufficient acquiescence never mind consent, and hence that a unique, awkward and messy form of government is necessary, at least while Northern Ireland remains part of the UK and very possibly in a united Ireland too. It does not make provision for the refusal of a party to participate in the institutions, but the obvious if undesirable default (which could and should have been applied in 2017, and in 2022), is to revert to Direct Rule with clear arrangements for the UK government to consult the Irish government as agreed in 1985. Joint Authority would be a change of the status of Northern Ireland, and hence a clear breach of the 1998 agreement, unless it had the consent of a majority of the population of Northern Ireland.

The establishment, or re-establishment of a form of government for Northern Ireland that can command sufficient consent to be stable and viable requires a new foundation, as the post-Brexit controversy has undermined the 1998 consensus. This should be based on a renewed commitment to the essential features of the 1998 agreement, and needs strong and positive engagement by the political leaders of Northern Ireland, and sustained commitment from the UK and Irish governments. Working together on how that can be applied maximises the possibility for securing the consent (or at least the acquiescence) of as many as possible.

These issues will be discussed further in my full-length report forthcoming with the Constitution Society.

Dr Andrew McCormick was a civil servant for 41 years, 19 of which were at permanent secretary level. His last role was lead official on Brexit for the Stormont executive