Jamie Bryson: The constitutional future of Northern Ireland should be a matter for all of the UK, not just NI

There has been much talk – largely driven by elements of the media – in relation to a ‘border poll’ in recent weeks. As far back as the NI Constitutional Act 1973, the Anglo-Irish Agreement and the Framework document, there was a fundamental constitutional error at the heart of UK government policy. This error was then repeated in the Belfast Agreement, and in consequence within section 1 of the NI Act 1998 (which essentially replicates the 1973 Act).

The error was (and is) to confer upon Northern Ireland the principle of self-determination as a bespoke concept, rather than self determination being a question for the entirety of the UK’s sovereign territory as a whole. In addressing the Scottish Referendum, the late Court of Appeal judge Sir John Laws said in his book ‘The Constitutional Balance’ that it was “…profoundly undemocratic that in 2014 only those resident in Scotland, and not the inhabitants of England, Wales or Northern Ireland, were allowed to vote on the prospective dissolution of the United Kingdom”.

The UK Supreme Court considered the application of self-determination in recent the Lord Advocate’s Scottish Reference, and helpfully set out the principles to be applied. In essence, there is no right to unilaterally secede, save for whereby the territory is under oppressive rule or military occupation. That, plainly, doesn’t even come close to applying to Northern Ireland. A state has a right to protect its territorial integrity; there is no principle requiring a state to allow one constituent part the right to secede.

In creating an unprecedented right to secede, outside the parameters of the internationally recognised principle of self-determination, the UK government made a fundamental constitutional wrong-turn, similar to the constitutional error made in surrendering sovereignty to the European Union via the European Communities Act and associated treaties. The government were given an instruction to remedy that error via the Brexit referendum in 2016. It is obvious to point out that in relation to Northern Ireland, the instruction from the UK electorate has been ignored, with the government leaving this part of the Union subjugated under EU law via the Northern Ireland Protocol and its embedding Windsor Framework.

We forever hear nationalists lecturing all and sundry about ‘constitutional conversations’ and the need to engage in discussing Northern Ireland’s future. Of course, what they really mean is discussing a united Ireland. The moment a unionist seeks to inject ideas into the ‘conversation’ as to how to strengthen the Union – such as this article, or Ian Paisley Junior’s Referendum Bill – all of sudden that is heresy and is met with nationalist outrage. That neatly illuminates the deceptive nature of nationalism’s honeyed language seeking to present conversations about the future as being totally benign and inclusive. It is only inclusive when it is on their terms.

Unionism ought to unashamedly begin a campaign to correct the constitutional wrong-turn on self-determination, and instead seek to build an argument for the remedying of that error by either making the future of the Union a question for the whole Union; or, alternatively by requiring a border poll to not only obtain a majority in NI and the Republic of Ireland, but also in Great Britain.

Jamie Bryson, NI Director of Policy, Centre for the Union