Making 'consent' mutual - A discussion paper from Democratic
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.
are available from Democratic Dialogue, 5 University Street, Belfast BT7
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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
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.
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.
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
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).
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.
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.
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
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.
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
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
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.
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.
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.
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
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.
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,
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.
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
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.
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
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.
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
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.
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).
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.
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.
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.
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.
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
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.
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.
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
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.
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
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.
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.
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.
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.
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.
is a draft:
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.
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.
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.
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.
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.
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.
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.
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.
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'
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