October 1997

This is the first of a series of working papers being published by Democratic Dialogue to work through otherwise apparently intractable problems associated with negotiating a settlement of the Northern Ireland conflict. Democratic Dialogue welcomes comment on its contents, which are not intended to be definitive but to stimulate constructive discussion and debate.

Further copies are available from Democratic Dialogue, 5 University Street, Belfast BT7 1FY

© Democratic Dialogue 1997

Executive summary

What is consent? How is it to be measured? Who has to give it? What must they give it to? What of those who don't give it?

This raft of questions lie behind the vexed debate in Northern Ireland on the 'consent principle'. It is a debate marked by widespread mistrust. Many nationalists fear that behind honeyed words lies a 'unionist veto' over progress. Many unionists fear that demographic trends will turn the principle into a vehicle for their demise in the next century. Many more, of whatever persuasion, simply feel confused as to what precisely is at issue.

This discussion paper from Democratic Dialogue explores the implication of the 'consent principle', first enunciated in 1973—the idea that there should be no change in the constitutional status of Northern Ireland without the consent of a majority of its people. Far from being self-evident, closer inspection reveals that the principle entails fundamental problems, lurking underneath—and potentially blocking progress towards—a constitutional settlement.

Notably, the principle sets up a conventional either/or constitutional choice—a United Kingdom versus a United Ireland. This has three worrying effects:

• it entrenches the conflict, in perpetuity;
• it evacuates the arena for accommodation; and
• it militates against innovative constitutional thinking.

The challenge is to reframe the whole argument over consent, so that all parties can genuinely engage in meaningful dialogue without feeling they have procedurally been put at a disadvantage which guarantees a substantive 'win' for the other 'side', now or down the line.

Part of the confusion about consent arises because of the emergence of a different principle in the 1990s, that of 'sufficient consensus', in relation to the outcome of political talks on new institutional arrangements. This necessitates the agreement of sufficient parties to represent the majority of electors in each of the two main religious communities.

Yet 'sufficient consensus', applying to future institutions, stands in unacknowledged contradiction to the 'consent principle'. For, according to the 'consent principle', applied to core constitutional arrangements, a majority in only one community could suffice for acceptance. The emergence of the 'sufficient consensus' criterion should have thrown the older 'consent principle' into question, rather than simply being grafted on to it.

This paper argues that 'sufficient consensus' is the only measure applicable to a divided society like Northern Ireland. Replacement of the 'consent principle' by 'sufficient consensus', in the constitutional arena as well, would open an avenue to end the Northern Ireland constitutional tug-of-war in favour of an honourable draw, preventing endless decades of further conflict while allowing consensual change.

The logic of this is to elaborate a new constitutional status for Northern Ireland, which recognises its special character, frames its governance on principles of democratic dialogue and parity of esteem, and gives due expression to the range of external relationships—the 'variable geometry'—in which it is set. This issue could, if properly handled, turn debate on the constitutional issue from an alienating beargarden to a stimulating public discussion.

The goal of such a new constitutional dispensation would be to ensure genuine equality for nationalists in Northern Ireland now, while offering security for unionists in the future.

The current talks at Stormont focus on institutional arrangements. Yet what makes agreement on institutions so difficult is that all the protagonists know that what is at stake—particularly in terms of 'strand two' (north-south) relationships—is the constitutional issue over which the 'troubles' have been fought, paramilitarily and politically, over the past three decades.

Thus, to 'secure' the union for ever, unionists want minimal cross-border bodies as well as withdrawal of the republic's territorial claim; to 'smash' it, republicans want a 'dynamic' north-south executive institution which can point the way to an all-Ireland state. These positions are incompatible.

Grasping the constitutional nettle is a major challenge—of that there can be no doubt. But it represents the only way substantive negotiations on institutional structures will be able to develop in an atmosphere of confidence and trust.

Background

Before direct rule from Westminster was introduced, the constitutional position of Northern Ireland was inscribed in the Ireland Act of 1949, passed at Westminster in the wake of the 1948 declaration of the Republic by the then government in Dublin. The act stipulated that Northern Ireland's status as part of the United Kingdom could not be changed without the consent of its parliament.

After that parliament was prorogued in 1972, the Northern Ireland Constitution Act of 1973 transferred this authority from parliament to a popular majority, thereby establishing what has become known as the 'consent principle'. Reaffirming that Northern Ireland was part of the UK, the act stipulated that this could only change with the consent of a majority there, as expressed in a border poll.

The Sunningdale agreement that year added to this negative provision the positive pledge that the British government would support the wish of a northern majority for a united Ireland, should such a majority emerge. The formula was essentially repeated in the subsequent intergovernmental agreements of 1985, 1993 and 1995.

The 1973 formula, while clearly disadvantaging nationalists, nevertheless made sense in the relatively simple international order of the post-war decades. It was an order based on homogeneously conceived 'nation states', with absolute, centralised power, exercised within hard borders—a system wrapped up in the word 'sovereignty'. Within it, constitutional alternatives were only either/or—in this case, British v Irish.

It was a reassuringly simple world. Membership of the 'Common Market' was a novelty (both states joining only in 1972) and European integration was still of marginal impact. The process of regionalisation which most European states set in train in the 70s and 80s was largely unknown. Globalisation of decision-making (through financial markets and telecommunications) was unimagined, though youth culture was evidencing a remarkable disdain for national boundaries.

Individualism and choice of identities were gradually undermining an older national conformism in increasingly diverse populations, but could be quaintly labelled as 'swinging'. Only in the United States, the ultimate immigrant society, was it already evident that the growing assertiveness of heterogeneous peoples was challenging the viability of 'one nation, under God'.

From the standpoint of 1997, however, the black-and-white assumptions of earlier times seem about as up to date as black-and-white television. It's high time our constitutional thinking joined the colour age.

The only practical proposition to which the consent principle has ever led was the border poll of 1973. It was deprived of any credibility by a near-total nationalist boycott and tellingly not reproduced in 1983 and 1993—despite the initial commitment that it would take place every 10 years.

Problems

There are two irremediable problems with the consent principle. The first is that it accepts a wholly majoritarian concept of democracy. This is increasingly problematic in ever-more differentiated societies, but it has always been inappropriate to a society pillared along sectarian lines. In that context, the outcome of any such poll was entirely predictable (as the then Northern Ireland secretary, James Prior, admitted when he decided against a rerun in 1983).

Worse, given that the original partition of Ireland was not an independent arbitration but a reflection of the balance of demographic-cum-political forces at the time, the outcome was also one seen by the Catholic community as entirely unfair (hence the 1973 boycott).

The second problem is the either-or nature of the choice the consent principle allows. Two stark alternatives, and only they, are available—no best of both worlds, no shades of grey. If one feels in an ambiguous way British and Irish, forget it. No way of defining oneself other than unionist or nationalist—as a liberal, a Christian, a feminist, a European, Chinese, 'non-political', an Oasis fan, whatever—can be embraced.

And it is yes or no, not 'yes but', not 'maybe', or 'only on certain terms'. No other constitutional model can in this context be introduced.

At the time of the border poll, the decades-long 2-1 Protestant-Catholic population ratio remained essentially intact. By the 1991 census results, it was clear this had changed to around 6-4 or narrower. A new, nationalist, majoritarianism began to be talked about, as some of the submissions in 1992-3 to the Opsahl commission demonstrated—both from paranoid unionists and triumphalist nationalists.

This underlying demographic shift, though it may now have stabilised, has added high-octane fuel to the political cocktail which the consent principle contains. For adding together majoritarian democracy and an either-or choice establishes a zero-sum game, in which somebody wins and somebody loses.

When the consent principle was formulated, it was also unrecognised that an order based on sovereign states faced an inherent contradiction.

During the post-war period, especially in the light of decolonisation, the United Nations elaborated principles for relationships between states and peoples internationally, of which two were fundamental. On the one hand was the principle of 'self-determination' (to rule out colonial oppression), on the other the principle of 'territorial integrity' (to rule out disruptive secessions).

Both were premised on the notion that a majority within existing borders had a right, now and securely in the future, democratically to be authors of their situation. In the context of anti-colonial struggles, where borders established by the imperial powers (however arbitrary) were largely accepted, these principles mostly went hand in hand.

Yet the period since the fall of the Wall has seen a remarkable manifestation of 'ethno-nationalist' conflicts—similar to that in Northern Ireland—in which different national identities within a particular territory are reinforced by racial, religious or linguistic cleavages, so that there is no single 'self' to determine and the very legitimacy of state boundaries is placed at issue.

The lesson is that these two principles—of self-determination and territorial integrity—only cohere where there is a close 'fit' between perceived national groups and state borders. Now, one response is to suggest that the majority within such a delimited area should be author of the future. This is the theory behind the consent principle.

Yet this is only an adequate answer where there is a better 'fit' which can thereby be achieved between national identity and state. This is possible if the conflict is between, say, a remote minority and a centralised state. In that sense the Kurdish problem in Turkey is genuinely soluble through mutual goodwill.

If the area contested is itself heterogeneous, however—there is a double minority situation—then majority consent within that area can only operate at the expense of the minority there. In turn, the latter will seek the support of any wider, transfrontier, majority, arising from the absence of 'fit', upon which it can draw to strengthen its own position against that of its adversary.

The tragic working out of the Northern Ireland 'troubles' can unfortunately be encapsulated in that paragraph. But the same could be said of the effects of the referendum in multi-ethnic Bosnia-Hercegovina in extending to that republic the war of Yugoslav succession.

Refinement

The Opsahl Commission of 1992-3 thus offered a further refinement. The constitutional future of a contested area like Northern Ireland, it indicated, should be determined not by a majority derived from one community alone but in such a way as to demonstrate that majorities in both its main religious communities gave their consent.

This has since been accepted as applicable to the institutional arrangements for Northern Ireland, in the 'sufficient consensus' principle of the talks, deriving from the South African experience. Under sufficient consensus, a majority of the parties at the talks, deemed to represent a majority of the electorate overall and a majority of the electorate in each main religious community, must agree to any deal.

But the South African experience did not have to deal with the constitutional location of the new polity. It was recognised that the Republic of South Africa would undergo an internal transfer of power, as smoothly as possible ultimately to 'majority rule'. That has now taken place.

Crucially, the new, post-Opsahl, post-South Africa, thinking has not affected the procedure for constitutional change in terms of Northern Ireland. The Downing Street Declaration of 1993, while rhetorically embracing the northern nationalist demand for self-determination on an island-wide basis, nevertheless rendered it in practice subject to the 'consent principle' as traditionally conceived.

Thus while sufficient consensus, implying arrangements which transcend the either/or of nationalism and unionism, applies to new institutional formations, majoritarian consent, based on precisely the old either/or of sovereignty-based thinking, applies to the pith and substance of the argument—the constitutional future of Northern Ireland itself, over which the 'troubles' have been waged.

And this, in turn, explains the institutional impasse at the talks, where it has been since 1992, despite the 'obviousness' of the goal of both internal and north-south institutions in any settlement deal.

Northern nationalists feel that, short of a long-term and uncertain demographically-driven change of majority, current arrangements (including as in the declaration) face them with a 'unionist veto' which can only be undermined by creating a 'dynamic' north-south body, prototypical of a new Irish state, which over time will replace the current de jure constitutional position of Northern Ireland as part of the UK with a de facto, all-Ireland, alternative.

Unionists, meanwhile, see no reason why they should accept the blandishments of a 'nationalist consensus', representing a majority across Ireland aspiring to bring about an ultimate change of sovereignty, and so insist on only the most minimal of north-south relationships. In 'strand two', in other words, short of surrender by either side, no agreement seems possible.

Wind of change

Now, it may be that pragmatism will still dictate a resolution this time around. It may be that new Labour's wind of constitutional change plus a more peaceful environment will indeed bring a 'sufficient consensus' of the parties to accept the institutional compromise as conventionally conceived by May.

But it would be very foolish to ignore the experience of six talks initiatives and six forums since 1972, attempting to reconstitute the Northern Ireland state and to establish a new north-south relationship in this way, or to second-guess the popular Northern Ireland view. Only 19 per cent of respondents to a recent Coopers and Lybrand poll believed a settlement would be effected by then.

Alternatively, it may be the case that the two governments could agree to put a 'settlement package', based on the traditional institutional compromise, to the people of Northern Ireland, after the May deadline had expired. In a recent poll, this was found to be desirable to 37 per cent of Protestants and 28 per cent of Catholics, acceptable to 36 and 47 per cent respectively, tolerable to 17 and 16 per cent, and unacceptable only to 10 per cent of Protestants and 9 per cent of Catholics.

There are two difficulties in proceeding this way—though it is certainly a better way of proceeding than insisting that deadlocked talks are sustained, for want of something else to do. The difficulty is arguably not that such a referendum could not succeed. Despite contrary unionist bluster, the demographics in Northern Ireland have already so shifted that a relatively small liberal Protestant minority can act as the 'swing' constituency supporting overwhelming Catholic support and thereby creating an arithmetic majority.

One difficulty is complacency about the viability of the traditional Sunningdale-type deal. In so far as the institutional package has been spatchcocked out of internalist unionist and externalist nationalist ideas, it is ideologically driven rather than prepared as a vehicle for good governance.

For example, wider European experience suggests a single north-south body under political control (as envisaged by the framework document) is not the best way to ensure the 'thickest' and most effective transfrontier arrangements: better are a whole range of different institutions, tailored to particular requirements, with substantial stakeholder participation from the key social actors. The 1974 experience that two jealous jurisdictions could only agree to transfer regulation of wild birds to the Council of Ireland is a salutary one.

The other difficulty is that, even were there no problems about the institutions, this would not resolve the 1974 lacuna—what the 'real' constitutional status of Northern Ireland was, and would be, if such institutions were established. For this would neither establish the constitutional framework required to end the northern 'nationalist nightmare' (since, as republicans insist, Bobby Sands didn't die for a north-south tourist agency), nor engender the constitutional security unionists demand against a 'slippery slope' to all-Ireland arrangements.

While one could envisage the building of trust over time, thereby rendering unionists less fevered about their Britishness and northern nationalists less fundamentalist about their Irishness, in today's atmosphere—more polarised than in 1973—a dangerously high degree of wishful thinking seems required to anticipate such a benign scenario. More plausible is that recently held out by one of Ireland's most respected businessmen: 20, 30 or 40 years of further constitutional protagonism—peaceful or otherwise.

Sufficient

The implications of this line of argument are that 'sufficient consensus', not a simple-majority vote (as in 1973), must apply to the constitutional status of Northern Ireland, not just its institutional character. But if sufficient consensus were to be even-handed procedurally, it would have to apply from now on to constitutional arrangements, not just to their future review (ie we would need in effect to start from a constitutional clean sheet, while respecting territorial integrity).

If constitutional status were to be even-handed substantively, moreover, it would have to go beyond the 'either/or' of traditional unionist and nationalist sovereignty-based positions, towards 'and'. Only then could the institutional expression be possible on a consensual basis, rather than putative institutions continuing to be the site of a proxy constitutional war.

In effect, this trades a new 'nationalist veto' over current arrangements for acceptance that a 'unionist veto' applies only to future ones. It would neither guarantee that whatever 'variable geometry' (to borrow a European metaphor) was agreed at the founding moment of such arrangements would no longer vary, nor that it would; it would however ensure that such change or non-change was negotiated in a dialogic fashion.

Two further moves need to be made, however, to build on past efforts self-critically. The 'Drumcree stand-off' brought home graphically to all the very real dangers in entrenching a 'two communities' concept constitutionally. Since 1985 there has certainly been more equality in Northern Ireland; that is unequivocally positive. But there has also been more division; that is unequivocally negative. A pluralist, rather than dualist, perspective—going beyond the either/or—can keep the egalitarianism without the divisiveness.

Second, care needs to be taken to ensure such a new constitutional dispensation really is widely acceptable. It must represent arrangements which are seen to have been publicly debated, and validated through popular involvement, not simply announced as a fait accompli by the two governments.

This would then take us to a project of elaborating a new constitutional status for Northern Ireland, one that recognised fully in its internal character and external relationships the equal-but-different identities of its citizens. That would inevitably represent radical constitutional change in the here and now, favourable to nationalists and thus very difficult for unionists to swallow.

But it would not require unionists to change from being unionists—the whole point would be to achieve change for nationalists, by placing them constitutionally on an equal footing for the first time. And the trade-off would be that while such a new status would not be effected without 'sufficient consensus' support, nor would it be in future otherwise revised.

Debate

One way to proceed would be for the two governments to open up a public debate, through an agreed consultative paper seeking the views of the parties and the wider civil society in a defined timeframe. The eventual aim would be to ensure that the two governments could proceed at the culmination of that debate with a referendum on an agreed possible status which could command a 'sufficient consensus' majority.

This would have the effect of concentrating political minds—on what people 'really' would settle for. It would also give voice to civil society, as is now widely recognised to be necessary. It would go with the flow of the constitutional reform programme in Britain, without that being interpreted in an internalist way.

It would for the first time establish a democratic legitimacy for such a reconstituted Northern Ireland, whose acceptance by both governments would end both unionist fears of a British 'sell-out' and chundering about southern 'expansionism'. Yet it would allow nationalist exponents of further change to make their case in a gradualist and evolutionary way, likely to be more effective in realising their long-term aspirations.

And, by building in sufficient consensus from day one, it would legitimate the behaviour of judicial authorities dealing with any renewed violence, within the communities from which such violence came. It would, in other words, represent the point when everyone could genuinely feel peace had arrived.

Agreement on the institutional detail would then be essentially a matter of fleshing out the skeletal constitutional bones. And this could be a rolling programme of institution-building, replacing the deadlocking 'nothing is agreed until everything is agreed' formula.

Key to this would be a recognition that wider European transfrontier arrangements are also only as institutionally thick as the competencies of the regions taking part are themselves extensive. In that context, exploring the internal and north-south dimensions could hopefully be seen as complementary, not contradictory.

Which brings us to the biggest, final question: is it possible to craft such a constitutional status as can indeed command 'sufficient consensus'? In terms of popular endorsement, in the absence of communal registration (undesirable for obvious reasons), that would require in practice a weighted majority of, say, 70 per cent.

One answer is to say that at one level Northern Ireland's 'real' constitution has already dramatically changed since 1972, beyond the either/or models in which debate still takes place, unchanged since 19-twenty-two. It is not, effectively, treated as being 'as British as Finchley' by UK governments, or part of the 'national territory' to be 'reintegrated' by Irish governments. Both recognise its 'special' status, as do in effect the European Union and the United States.

Spelling out what that special status should be, so as to guarantee parity of esteem, offers a way forward. What Opsahl may have got wrong was its suggestion (which nobody could interpret) that Britain should give 'legal' recognition to nationalism in Northern Ireland. What the commission should have said, perhaps, was that constitutional recognition was required.

Introducing the idea of 'variable geometry' also, we can ensure that such a spelling out is not defined in internalist terms and is indeed clearly variable, albeit only consensually, from now on. It also suggests, indeed, variability contemporaneously between citizens—an à la carte menu from which they can, in a pluralist way, creatively choose amongst the range of identities/allegiances, a 'mixing and matching' which may be crucial if the north is to follow the southern modernisation trajectory.

Let's suppose, starting from a blank sheet of paper, we were to draft a statement on a desired constitutional status for Northern Ireland, consistent with international liberal-democratic and human-rights norms, and subject to the 'sufficient consensus' requirement for its establishment, maintenance or review. Such a statement would have to be robust enough to be capable of elaboration by constitutional lawyers into a written constitution if so required, or, to put it another way, of setting a constitutional framework in which viable and equitable institutions could be established.

Draft

The following is a draft:

Northern Ireland is a multi-cultural, multi-religious, multi-ethnic society. It is part of the state of the United Kingdom, alongside England, Scotland and Wales. It is, equally and by the same token, part of the nation of Ireland. It is a unique region in the islands of Britain and Ireland, and within the European Union. Its diverse citizens enjoy parity of esteem, irrespective of whatever identities or allegiances they choose to espouse.

Northern Ireland is governed through democratic dialogue between its elected representatives, on a basis of equality and in compliance with international human rights conventions. The extent of its competencies is determined by sufficient consensus of the people of Northern Ireland, indicative of a majority within both Protestant and Catholic communities. It is empowered to co-ordinate the exercise of such competencies with the Republic of Ireland on the same basis, without intervention by the United Kingdom government. It is however represented by the United Kingdom in international fora, except where regional representation is possible.

The special status of Northern Ireland is recognised by the governments of the United Kingdom and Ireland, and by the European Union. It depends upon, and can only be changed by, sufficient consensus, expressed ultimately through an appropriate weighted majority in referendum.

This draft identifies a number of key themes. First, it doesn't ignore communal difference but transcends it through a positive celebration of diversity. Secondly, it seeks to turn Northern Ireland's special positioning into a source of political cross-fertilisation rather than sterile conflict.

Thirdly, it aims to translate the 'parity of esteem' question into an issue of individual autonomy and choice rather than an intercommunal battering-ram. Fourthly, it represents both the 'internal' governance of Northern Ireland and wider political co-ordination on the island as matters of democratic partnership, not endless protagonism.

Lastly, it aims to put this new polity into an international context, which would finally give Northern Ireland an international legitimacy it has hitherto lacked—and which the status quo clearly cannot provide.

This is, no doubt, not the last word on what an acceptable constitutional status for Northern Ireland would look like. It is, like this document in general, issued to stimulate wider discussion and debate.

Conclusion and recommendations

Traditional thinking about the Northern Ireland 'consent principle' is based on an either/or choice, premised on an international order of sovereign states with centralised power and hard borders. European integration and regionalisation, individualisation and globalisation have established a much more complex world in which such either/or thinking is outdated.

These wider changes, allied to the internal evolution of the conflict and its internationalisation, have made increasingly plain that Northern Ireland is a sui generis entity which should have a special constitutional status, recognising its positioning as part of a 'variable geometry' of these islands, in the context of the European Union.

Neither now or in the future is the principle of majority consent appropriate to such a divided society. Both any agreed expression of that constitutional geometry, and further variations, should be subject to the 'sufficient consensus' requirement.

The framing of a new constitutional arrangement could be subject to widespread popular debate, as well as discussion amongst the parties and with government. Were such status to be agreed, subject to future consensual evolution, the challenge of working out its institutional elaboration would be relatively straightforward.