I was quickly disabused of such presuppositions. In the introduction to the paper, Whitten, a research fellow at Queen’s University Belfast, notes that while the normal meaning of constitutional change refers to “just one thing: United Kingdom versus United Ireland,” that kind of change won’t be her focus. Rather, she is concerned with other forms of constitutional change that are “possible in or important for Northern Ireland.” She examines “the most pressing governance challenges” that arise from the north’s “unique constitutional arrangements”, and considers how such challenges might be tempered or resolved by “constitutional reforms” that fall short of changing the north’s constitutional status in a border poll (p. 2). Although the range of problems and resolutions she examines is unusually broad, she also features the standard fare that we’ve been hearing from Alliance for years and that were examined in the Irish News series on reforming the institutions of the Good Friday Agreement (Manley, 2022). It is time, she and others argue, to address a number of institutional practices: the power of the two largest parties to collapse government, the functioning of the Executive, the appointment of First and Deputy First Ministers, the Assembly designation system, cross-community consent mechanisms, petitions of concern, and the like. None of these so-called constitutional changes even begins to address what the GFA means by constitutional change: whether the north “should cease to be part of the United Kingdom and form part of a united Ireland” (Annex A 1(2)).
In effect, Whitten counsels “constitutional change” without constitutional change. I dislike her terminology for two principal reasons. It’s misleading, introducing unnecessary ambiguity into the public debate about the north’s future. And, more importantly, it marginalizes deliberation of a united Ireland.
The ambiguity emerges in part from two different grammatical uses of the term constitution, one as a noun, the other as an adjective. Generally, the noun “constitution” refers to a document that sets out the basic principles and institutions of a state’s governance. In Ireland, Bunreacht na hÉireann is such a document. The UK is anomalous in that it has no overarching document embodying constitutional essentials. Although often described as “unwritten,” the UK’s constitution is better depicted as uncodified. The constitution is actually comprised of a combination of disparate elements—including fundamental statutes of a constitutional character, constitutional conventions, events, judicial decisions, academic writings, and treaties—some going back centuries. The UK constitution governs the north, of course. In the north’s case, though, the 1998 Northern Ireland Act is a statute of such special significance that the court recognizes it as “in effect a constitution,” which must be understood against the principles delineated in the GFA (Whitten, 2023a, p. 10; Whitten, 2023b, p. 41 ). Still, it’s very unusual in scholarly or public discourse to refer to or treat the Northern Ireland Act and the GFA as the north’s constitution, as Whitten does. Standard practice is simply to speak about the Act or the Agreement, rather than the constitution.
The misleading nature of Whitten’s uncommon terminology is compounded when we consider the adjectival form of the term “constitution,” as in constitutional change. Throughout the entire, highly contested history of the north, “constitutional change” has meant the simple choice between British or Irish sovereignty. The GFA has unequivocally institutionalized this meaning. In the numerous judicial challenges arising from Brexit, the courts have ruled again and again that the Agreement’s constitutional provisions regulate only the border-poll choice between being part of the United Kingdom or part of a united Ireland. The GFA is not relevant to any other kind of constitutional change (UKSC 5, 2017, para. 135; NIQB 64, 2021, para. 125). Virtually everyone—the northern public, various political actors, the courts, and even in a peculiar way the unionists behind the farfetched legal challenges to the protocol and Irish sea border—understands that the GFA’s conception of constitutional change is the kind of change brought about by a border poll. Everyone, that is, except Whitten. She associates a completely different kind of constitutional change with the GFA. For her, any alteration to the operations of the Agreement’s institutions qualifies as constitutional change. While this may be true, in the narrowest of legal senses, it upends completely the settled public understanding of what constitutional change means. It substitutes obscurity for clarity.
I don’t wish to be churlish or pedantic in my critique of Whitten’s use of language. I recognize that many words and ideas have more than one meaning. But I’m conscious of how semantic confusion continues to contribute to serious constitutional misunderstandings in the north. Whitten’s constitutional change is not anyone else’s constitutional change. This kind of conceptual entanglement is unnecessary: she could have made all her substantive points just as effectively without resorting to such idiosyncratic and misleading terminology.
I have a second and especially compelling reason for contesting Whitten’s mystification of constitutional change: it contributes to deferring indefinitely the aim of Irish unity. Whitten explicitly denies that she is seeking to discount or relegate constitutional change leading to a united Ireland. But her analysis has exactly that effect. Her proposals to embed “Westminster in Stormont and Stormont in Westminster” by regularizing London-Belfast engagement at the executive, parliamentary and civil service levels will further institutionalize British sovereignty in the north. She makes no equivalent, balancing proposal for strengthening all-Ireland institutional arrangements, even though north-south relations are as much a part of the north’s “constitution” as are east-west ties.[1] Whitten’s approach is, in some important respects, not far removed from the British government’s stance in its unabashedly pro-union command paper Safeguarding the Union, which promoted closer executive, civil service and economic ties between Stormont and Westminster (Secretary of State, 2024).
Whitten’s work also reinforces a broader discourse foregrounding changes to the GFA’s institutions while marginalizing Irish unity. Alan Whysall, a former senior civil servant in the Northern Ireland Office, is the most prolific advocate of this view. In numerous writings over the past half-decade, he constantly warns that the Agreement is dangerously close to collapse. He emphasizes the need to renew the promise of the GFA and revive power-sharing government. On renewal, he suggests a return to the larger objectives and cultural underpinnings of the Agreement: promoting reconciliation; building trust; enhancing rights, equality, and parity of esteem; accommodating diversity across language and identity issues; bolstering prosperity; addressing legacy issues; and strengthening intergovernmental and interjurisdictional relations. On revival, he looks forward to meaningful reform of the Agreement’s institutions. He, like Whitten, examines the rationale and prospect for changes in governmental formation, the selection of First and Deputy First Ministers, the Assembly’s system of designation, and the rules on cross-community consent.[2]
Whysall seems interested in revitalizing everything about the Agreement, except its constitutional bits. In a partial reworking of Whitten’s approach, he offers cultural and institutional change without constitutional change. Both authors, then, downgrade unification. But they realize that objective in subtly different ways. Whitten, as we have seen, essentially ignores unification, even as she makes proposals to strengthen British sovereignty in the north. Whysall directly addresses unification so he can actively demonize it, and then marginalizes it. He portrays Irish unity in unremittingly negative terms, worrying that it “may inevitably involve many shocks to the system, in both parts of the island, however it is brought about.” He warns that the “difficult issues” it entails are “potentially minefields” and that “a united Ireland would be saddled with a heavy, perhaps unmanageable, financial burden.” He is concerned that “fear of the disruptive effects of unity” raises questions “about the practicability of bringing about an abrupt change of constitutional status without grave risks to stability” (Whysall, 2023a, pp. 24-26; Whysall, 2021c). He also pushes Irish unity so far down a political agenda cluttered with concern for renewal and revival that it is unlikely ever to be addressed. And should the topic of unity come up, he distorts the discussion by recommending either alternative constitutional forms that are clearly outside the terms of the Agreement—like joint sovereignty and confederation—or some vague “gradualist middle way” with no structural commitment to unification (Whysall 2023a). In sum, Whysall’s constitutional priority seems to be “anything but a united Ireland.”
Both Whitten’s and Whysall’s conceptions of change crowd out any meaningful consideration of altering the constitutional status of the north. To the extent that their narratives dominate discussion of the north’s future, the prospect of Irish unity recedes.
The next part in the series explores how easily the Irish border can be rendered invisible in discussions of politics in the north.
Notes
[1] Whitten’s concern with north-south relations is restricted to proposals for monitoring and assessing any regulatory divergence that might arise from UK policy.
[2] See Whysall (2021a, 2021b, 2021c, 2021d, 2022, 2023a, 2023b, & 2024).
References
Manley, J. (2022). “Lack of consensus on shape of Stormont reform.” Irish News. 27 November. Retrieved from.
NIQB 64. (2021). In The Matter Of An Application By James Hugh Allister, Benyamin Naeem Habib, Steve Aiken, Rt Hon Arlene Isobel Foster, Baroness Catharine Hoey Of Lylehill And Rathlin, William David, The Rt Hon Baron Trimble Of Lisnagarvey . . . In the High Court of Justice In Northern Ireland, Queen’s Bench Division (Judicial Review). Colton J. 30 June. Retrieved from.
Secretary of State. (2024). Safeguarding the Union CP 1021. January. HMSO.
UKSC 5. (2017). Judgment. R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant). ... Before Lord Neuberger, President; Lady Hale, Deputy President; Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption, Lord Reed, Lord Carnwath, Lord Hughes, Lord Hodge. 24 January. Retrieved from.
Whitten, L. C. (2023a). Constitutional Change in Northern Ireland. August. Institute for Government and Bennet Institute for Public Policy. Retrieved from.
Whitten, L.C. (2023b). Brexit and the Northern Ireland Constitution. Oxford: Oxford University Press.
Whysall, A. (2021a). “Northern Ireland in its centenary year: a changing landscape.” Constitution Unit, University College London. 11 February. Retrieved from.
In effect, Whitten counsels “constitutional change” without constitutional change. I dislike her terminology for two principal reasons. It’s misleading, introducing unnecessary ambiguity into the public debate about the north’s future. And, more importantly, it marginalizes deliberation of a united Ireland.
The ambiguity emerges in part from two different grammatical uses of the term constitution, one as a noun, the other as an adjective. Generally, the noun “constitution” refers to a document that sets out the basic principles and institutions of a state’s governance. In Ireland, Bunreacht na hÉireann is such a document. The UK is anomalous in that it has no overarching document embodying constitutional essentials. Although often described as “unwritten,” the UK’s constitution is better depicted as uncodified. The constitution is actually comprised of a combination of disparate elements—including fundamental statutes of a constitutional character, constitutional conventions, events, judicial decisions, academic writings, and treaties—some going back centuries. The UK constitution governs the north, of course. In the north’s case, though, the 1998 Northern Ireland Act is a statute of such special significance that the court recognizes it as “in effect a constitution,” which must be understood against the principles delineated in the GFA (Whitten, 2023a, p. 10; Whitten, 2023b, p. 41 ). Still, it’s very unusual in scholarly or public discourse to refer to or treat the Northern Ireland Act and the GFA as the north’s constitution, as Whitten does. Standard practice is simply to speak about the Act or the Agreement, rather than the constitution.
The misleading nature of Whitten’s uncommon terminology is compounded when we consider the adjectival form of the term “constitution,” as in constitutional change. Throughout the entire, highly contested history of the north, “constitutional change” has meant the simple choice between British or Irish sovereignty. The GFA has unequivocally institutionalized this meaning. In the numerous judicial challenges arising from Brexit, the courts have ruled again and again that the Agreement’s constitutional provisions regulate only the border-poll choice between being part of the United Kingdom or part of a united Ireland. The GFA is not relevant to any other kind of constitutional change (UKSC 5, 2017, para. 135; NIQB 64, 2021, para. 125). Virtually everyone—the northern public, various political actors, the courts, and even in a peculiar way the unionists behind the farfetched legal challenges to the protocol and Irish sea border—understands that the GFA’s conception of constitutional change is the kind of change brought about by a border poll. Everyone, that is, except Whitten. She associates a completely different kind of constitutional change with the GFA. For her, any alteration to the operations of the Agreement’s institutions qualifies as constitutional change. While this may be true, in the narrowest of legal senses, it upends completely the settled public understanding of what constitutional change means. It substitutes obscurity for clarity.
I don’t wish to be churlish or pedantic in my critique of Whitten’s use of language. I recognize that many words and ideas have more than one meaning. But I’m conscious of how semantic confusion continues to contribute to serious constitutional misunderstandings in the north. Whitten’s constitutional change is not anyone else’s constitutional change. This kind of conceptual entanglement is unnecessary: she could have made all her substantive points just as effectively without resorting to such idiosyncratic and misleading terminology.
I have a second and especially compelling reason for contesting Whitten’s mystification of constitutional change: it contributes to deferring indefinitely the aim of Irish unity. Whitten explicitly denies that she is seeking to discount or relegate constitutional change leading to a united Ireland. But her analysis has exactly that effect. Her proposals to embed “Westminster in Stormont and Stormont in Westminster” by regularizing London-Belfast engagement at the executive, parliamentary and civil service levels will further institutionalize British sovereignty in the north. She makes no equivalent, balancing proposal for strengthening all-Ireland institutional arrangements, even though north-south relations are as much a part of the north’s “constitution” as are east-west ties.[1] Whitten’s approach is, in some important respects, not far removed from the British government’s stance in its unabashedly pro-union command paper Safeguarding the Union, which promoted closer executive, civil service and economic ties between Stormont and Westminster (Secretary of State, 2024).
Whitten’s work also reinforces a broader discourse foregrounding changes to the GFA’s institutions while marginalizing Irish unity. Alan Whysall, a former senior civil servant in the Northern Ireland Office, is the most prolific advocate of this view. In numerous writings over the past half-decade, he constantly warns that the Agreement is dangerously close to collapse. He emphasizes the need to renew the promise of the GFA and revive power-sharing government. On renewal, he suggests a return to the larger objectives and cultural underpinnings of the Agreement: promoting reconciliation; building trust; enhancing rights, equality, and parity of esteem; accommodating diversity across language and identity issues; bolstering prosperity; addressing legacy issues; and strengthening intergovernmental and interjurisdictional relations. On revival, he looks forward to meaningful reform of the Agreement’s institutions. He, like Whitten, examines the rationale and prospect for changes in governmental formation, the selection of First and Deputy First Ministers, the Assembly’s system of designation, and the rules on cross-community consent.[2]
Whysall seems interested in revitalizing everything about the Agreement, except its constitutional bits. In a partial reworking of Whitten’s approach, he offers cultural and institutional change without constitutional change. Both authors, then, downgrade unification. But they realize that objective in subtly different ways. Whitten, as we have seen, essentially ignores unification, even as she makes proposals to strengthen British sovereignty in the north. Whysall directly addresses unification so he can actively demonize it, and then marginalizes it. He portrays Irish unity in unremittingly negative terms, worrying that it “may inevitably involve many shocks to the system, in both parts of the island, however it is brought about.” He warns that the “difficult issues” it entails are “potentially minefields” and that “a united Ireland would be saddled with a heavy, perhaps unmanageable, financial burden.” He is concerned that “fear of the disruptive effects of unity” raises questions “about the practicability of bringing about an abrupt change of constitutional status without grave risks to stability” (Whysall, 2023a, pp. 24-26; Whysall, 2021c). He also pushes Irish unity so far down a political agenda cluttered with concern for renewal and revival that it is unlikely ever to be addressed. And should the topic of unity come up, he distorts the discussion by recommending either alternative constitutional forms that are clearly outside the terms of the Agreement—like joint sovereignty and confederation—or some vague “gradualist middle way” with no structural commitment to unification (Whysall 2023a). In sum, Whysall’s constitutional priority seems to be “anything but a united Ireland.”
Both Whitten’s and Whysall’s conceptions of change crowd out any meaningful consideration of altering the constitutional status of the north. To the extent that their narratives dominate discussion of the north’s future, the prospect of Irish unity recedes.
The next part in the series explores how easily the Irish border can be rendered invisible in discussions of politics in the north.
Notes
[1] Whitten’s concern with north-south relations is restricted to proposals for monitoring and assessing any regulatory divergence that might arise from UK policy.
[2] See Whysall (2021a, 2021b, 2021c, 2021d, 2022, 2023a, 2023b, & 2024).
References
Manley, J. (2022). “Lack of consensus on shape of Stormont reform.” Irish News. 27 November. Retrieved from.
NIQB 64. (2021). In The Matter Of An Application By James Hugh Allister, Benyamin Naeem Habib, Steve Aiken, Rt Hon Arlene Isobel Foster, Baroness Catharine Hoey Of Lylehill And Rathlin, William David, The Rt Hon Baron Trimble Of Lisnagarvey . . . In the High Court of Justice In Northern Ireland, Queen’s Bench Division (Judicial Review). Colton J. 30 June. Retrieved from.
Secretary of State. (2024). Safeguarding the Union CP 1021. January. HMSO.
UKSC 5. (2017). Judgment. R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant). ... Before Lord Neuberger, President; Lady Hale, Deputy President; Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption, Lord Reed, Lord Carnwath, Lord Hughes, Lord Hodge. 24 January. Retrieved from.
Whitten, L. C. (2023a). Constitutional Change in Northern Ireland. August. Institute for Government and Bennet Institute for Public Policy. Retrieved from.
Whitten, L.C. (2023b). Brexit and the Northern Ireland Constitution. Oxford: Oxford University Press.
Whysall, A. (2021a). “Northern Ireland in its centenary year: a changing landscape.” Constitution Unit, University College London. 11 February. Retrieved from.
Whysall, A. (2021c). “Border poll or bust.” Imagine, Festival of Ideas & Politics. 26 March. Retrieved from.
Whysall, A. (2021d). “Renewing and reviving the Belfast/Good Friday Agreement.” Constitution Unit, University College London. 3 September. Retrieved from.
Whysall, A. (2022). Northern Ireland’s Political Future: Challenges after the Assembly Elections: A Discussion Paper. Constitution Unit, University College London. May. Retrieved from.
Whysall, A. (2023a). The Agreement at 25: A Time for Constitutional Change in Northern Ireland? Constitution Unit, University College London. April. Retrieved from.
Whysall, A. (2023b). “Northern Ireland’s political institutions: time for change?” Constitution Unit, University College London. 20 December. Retrieved from.
Whysall, A. (2024). Northern Ireland: Challenges for the Next Westminster Government. Constitution Unit, University College London. June. Retrieved from.
Whysall, A. (2021d). “Renewing and reviving the Belfast/Good Friday Agreement.” Constitution Unit, University College London. 3 September. Retrieved from.
Whysall, A. (2022). Northern Ireland’s Political Future: Challenges after the Assembly Elections: A Discussion Paper. Constitution Unit, University College London. May. Retrieved from.
Whysall, A. (2023a). The Agreement at 25: A Time for Constitutional Change in Northern Ireland? Constitution Unit, University College London. April. Retrieved from.
Whysall, A. (2023b). “Northern Ireland’s political institutions: time for change?” Constitution Unit, University College London. 20 December. Retrieved from.
Whysall, A. (2024). Northern Ireland: Challenges for the Next Westminster Government. Constitution Unit, University College London. June. Retrieved from.
⏩ Mike Burke has lectured in Politics and Public Administration in Canada for over 30 years.
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