The following article by Dr Dan Boucher appeared in today’s News Letter.
In my last article I explained why, rather than giving expression to democracy, the first forced majoritarian vote on a matter of great controversy required at Stormont in over 50 years will be to ask MLAs to effectively renounce the rights of their constituents to be represented in the legislature making the laws to which they are subject.
Unless the relevant legislation is amended, this will not just be in relation to one specific law, or 300 specific laws, but in 300 areas of law. As such rather that giving expression to democracy the vote is actually concerned with facilitating the negation of democracy in the name of democracy. Rather than honouring the people of Northern Ireland the proposed vote dishonours us by bringing to Stormont what would be an outrageous proposition to put to any community. No one should be asked to agree to renouncing democracy, especially not (in a crude attempt to sanitise the operation/obscure its real impact) in the name of democracy. Doing so generates three additional difficulties which it is important to understand:
First, it is not clear that elected representatives have the right to act on behalf of their constituents for the purpose of renouncing their rights to be represented in the making of the laws to which they are subject. The effective task at hand is constitutionally completely different from representing in the sense of giving effect to the rights of constituents to be represented in law making.
The only relevant comparator here is the way in which the UN deals with colonies that wish to remain colonies, and whose people therefore wish to renounce their right to vote narrowly with respect to the responsibilities held by the colonial power. Very few colonies remain in the world today and those that do are critically largely self-governing such that the basis for their ongoing colonial status is only with respect to certain narrow governance competencies which stay with the colonial power, like defence.
The enormity of what is involved, however, is such that the citizens of the colony are themselves required to accept or reject the proposition that they renounce their rights to be represented in the relevant areas in a referendum. While a legislative representative can represent the rights of his constituents, he cannot give them up, even temporarily. Only the citizen can do that.
Second, the need for a referendum on whether or not to renounce the right to be represented in the making of the laws to which we are subject for between six and eight years (not to be confused with a border poll) rather than through a vote of the people’s representatives in a representative Assembly/Parliament, is compounded in the case of Northern Ireland because of the consent protection set out in the Belfast Good Friday Agreement. The treaty prohibits any change in the constitutional status of Northern Ireland without the prior consent of the majority of its people. Specifically, the treaty states that ‘It would be wrong to make any change in the status of Northern Ireland [where the presenting treaty context is the governance of NI moving away from the UK towards greater ROI involvement] save with the consent of a majority of its people.’
The proposed Assembly vote violates the Belfast Good Friday Agreement as international law by proposing changes in the constitutional status of Northern Ireland in the context of a shift of its governance from the UK towards the Republic of Ireland, both in terms of creating an all-island economy, with all island economic government, and on a basis that shifts Northern Ireland from being a full democracy (where the people of NI could to stand for election to make all the laws to which they were subject) to a partial democracy (where people of NI can now only stand for election to make some of the laws to which they are subject), without the prior consent of the majority of its people.
The fact that this protection has not been translated into domestic law which only requires consent in relation to one very specific constitutional change, namely the complete transfer of Northern Ireland from the UK to the Republic, does not change the fact that the provision of such a change without the agreement of the people of Northern Ireland is contrary to the Good Friday Agreement and international law.
Third, asking MLAs to vote for a motion when the effect of doing so is to renounce the rights of their constituents to be represented in the legislature making the laws to which we are subject in 300 areas of law from between six to eight years is also contrary to another requirement of international law, again as set out by the Belfast Good Friday Agreement.
Specifically, and over and above the general international legal democratic rights protections which apply across the British Isles, the parties to the Good Friday Agreement (the UK and ROI) have further and uniquely committed themselves, through the treaty, to upholding the rights of the people of Northern Ireland ‘to pursue democratically national and political aspirations’. This can only be understood as an obligation to, at minimum, uphold that specific right from the point at which it was conferred, in 1998, when people had the right ‘to pursue democratically national and political aspiration’ by standing for election to make all the laws to which they were subject. From the signing of the Belfast Good Friday Agreement on 10 April 1998 until 31 December 2020, that right was upheld.
Since 1 January 2021, however, it has been subject to a process of diminishment which the UK Government and the Government of the Republic of Ireland were and are obliged by international law to ensure does not happen.
• This is the third of five essays by Dr Dan Boucher, who is a former Director of Policy and Research for the DUP, and now aide to the leader of the TUV Jim Allister MP