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It
is entirely possible to construct a wall by starting
with a course of bricks laid directly upon earthen
ground. Millennia of accumulated knowledge and experience
tell us, however, that soils often settle and shift
over time and that, as a result, such walls will tend
to buckle, crack, and crumble, all regardless of masons'
skill or mortar's strength. Hence the near universal
use of more solid foundations in the construction
of buildings.
Similar
considerations seem to apply as well to the structures
of political societies.
Scores
of millions of people around the globe know that the
United Kingdom of Great Britain and Northern Ireland
has no written constitution, but perhaps fewer
appreciate that, in a strict and important sense,
the U.K. has no constitutional law at all.
The
term "constitutional law" is often heard
describing certain portions of U.K. law, but it is
in actuality used there merely regarding and describing
the constituent elements of, and relationships within,
its government. Some less high-sounding phrase like
"governmental operations law" - a notch
up from what Americans call "administrative law"
- would be more descriptive and more accurate.
At
first blush, there might seem no great substantive
difference between these concepts of "governmental
operations law" and "constitutional law."
However, the huge difference actually lying between
them may help explain the persistence of problems
not only in the Good Friday Agreement itself but also
in the "Northern Ireland question" as a
whole.
"Constitutional
law," as the term is used in the United States
and in many other countries, is a category of law
described in contradistinction to "ordinary
law."
As
that latter term suggests, ordinary law may be enacted
or changed through ordinary law-making procedures.
In the U.S., that typically entails either (a) passage
of a bill through two legislative chambers by majority
vote in each and subsequent approval by the executive
or (b) the legislature's overriding, through supermajority
vote, the executive's veto of such a bill.
Constitutional
law - in the strict, and more useful, sense - is that
truly fundamental law which requires a significantly
higher level of support for change. (The German word
for constitutional law - Grundgesetz - literally
means "ground law," akin to the building
analogy suggested above.) In terms of U.S. federal
law, the support needed to effect constitutional change
is two-thirds approval in each house of Congress followed
by ratification in at least three-fourths of the individual
states. Thus, currently, at least thirty-eight
separate legislatures within the United States
need to approve any amendment to the U.S. Constitution,
or else the proposed amendment will fail; in over
two hundred years of reasonably successful operation,
that Constitution has been amended only 26 times,
the first ten of which amendments formed, in the 1790's,
America's Bill of Rights.
The
key point is this: all so-called "constitutional
law" in the U.K. is, in fact, merely "ordinary
law" as described above. As a result, any and
all U.K. law can be undone or redone, at any point
and through ordinary legislative processes, by the
Westminster Parliament. On this same subject, I wrote
a couple of weeks ago the following to a correspondent
in Northern Ireland:
Almost
unbelievably, roughly eight hundred years on into
this process, the Brits are still trying to figure
out what their "upper house" ought to
look like. As with changes in motor car speed limits
and parking violation fines, the "upper house"
issue will be decided on a simple (and, I repeat,
simple) majority basis.
As a result, nothing is ever firm or final in your
jurisdiction. Everything is will of the prevailing
majority wisp.
Admittedly,
this "will of the prevailing majority wisp"
system has, within Great Britain itself, long worked
adequately. Notwithstanding the fact that its governmental
structures have been built on "bare soil"
rather than on the more solid foundation of genuine
constitutional law, the social ground in Great Britain
has been sturdy enough, and homogeneous enough, to
accommodate its "simple majority" legal
structures. "Governmental operations" holes
that crop up there from time to time are just patched
up by new ordinary legislation or ignored entirely.
The
social ground in Northern Ireland, though, has always
been quite different.
Perhaps
wrongly, people in Britain and Ireland often regard
"trust" as the major deficiency in Northern
Ireland's current political environment. If, though,
their view is correct, the non-constitutional nature
of U.K. law is, inevitably, a considerable impediment
to increasing that trust.
In
any year, decade, or century, Northern Ireland political
parties deal with a London government which is inherently
unreliable, not through the fault of political personalities
but instead through the fault of the U.K.'s non-constitutional
legal system itself. The Westminster Parliament ever
has the well-understood legal authority to act as
it sees fit.
For
example, the Republican leadership, in the aftermath
of the recent two days of talks in Belfast, has claimed
that current problems in the "peace process"
stem largely from promises made by Britain in the
Good Friday Agreement but which are yet unfulfilled.
Yet, in theory, those promises might instead simply
be flatly renounced, and any assertion by Republicans
that they had been conned would be to no legal avail:
there would be no "constitutional" recourse
available to them since, if pressed, the British government
could simply pass new - and ordinary - legislation
approving its renunciation of such promises, and British
courts could then only uphold the newly stated will
of Parliament.
Along
somewhat similar lines, the Westminster Parliament,
during Peter Mandelson's watch as Northern Ireland
Secretary, unilaterally decided to grant the British
government the explicit legal power - not found within
the Good Friday Agreement, entered into with the Republic
of Ireland et al. - to suspend devolved governmental
operations under the GFA as it might thereafter see
fit. Over some local objections, the British government
has in fact seen fit to wield those suspension powers
four times during the past four years, most recently
beginning in October 2002 and continuing as of this
writing. As a result of recent negotiations, that
self-approved suspension power may itself be soon
suspended - at least temporarily - through brand new
Westminster legislation. Doubtless, though, that power
will be revived if and when, in the fine judgment
of any sitting British government (i.e., at the "will
of the prevailing majority wisp"), the commonweal
would be better served by its resurrection.
Frankly,
and rather unsurprisingly, the overall relationship
between London and Belfast tends to resemble that
of a parent and a four-year-old child. Promises made
by the parent, or exacted from the parent by the child,
may be fulfilled, likely at some point convenient
to the parent. However, the parent may instead make
overly ambitious promises merely hoping to gain an
immediate period of quietude and trusting that childish
desires will likely soon be forgotten. Or, the parent
may determine that, for "the good of the child"
or in light of "intervening changes in circumstances,"
it is better that certain promises made remain unkept.
If, though, for whatever reason the parent's promises
are unfulfilled, the disappointed child's response
may effectively be limited to screaming for a relatively
brief period, slamming a bedroom door, and crying
himself or herself to sleep.
For
essentially these reasons, political groups in Northern
Ireland will inevitably have questions and concerns
about what "Mother Parliament" will do -
in her virtually unfettered "governmental operations"
discretion - regarding circumstances either readily
foreseen or yet unimagined, and those questions and
concerns can but cast a pall over efforts to improve
that socio-political situation. A few additional examples
of this problem may suffice to show its immediate
significance.
Republicans
are now voicing vehement objections to, and Northern
Nationalists substantial doubts regarding, plans that
minimum "cross-community" voting requirements
- ostensibly "enshrined" in the GFA - be
abandoned in favor of a "sanctions" device
geared to make it easier to toss Sinn Féin
out of the province's devolved Executive. Republicans
may fear, for instance, that reactionary cliques in
the security forces might squirrel away blocks of
Semtex so that "searches" of West Belfast
pubs and garages would readily yield the stuff of
front-page news stories, thereby causing political
difficulties for Sinn Féin.
Beyond
that fear, though, Republicans might have other related
worries, such as this: regardless of whether Sinn
Féin nudges out the SDLP in the 29 May 2003
election (use pencil, though, in marking calendars),
(a) if the DUP therein outpaces the UUP and (b) if
the DUP then agrees to form a government only if Sinn
Féin is excluded therefrom, then (c) will Mother
Parliament be tempted to jettison additional "enshrined"
GFA principles like "d'Hondt" in order to
try to keep the Assembly and Executive running? (On
the other hand, if - as it has said it will try to
do - the DUP in that situation successfully blocks
the formation of any GFA Executive, holding out for
a renegotiated political structure, where would that
leave the most recent Republican political sacrifices?)
The
DUP ought not, though, to be too sanguine - and likely
is not - about any sanctions-related precedent involving
an abandonment of "cross-community" voting
requirements, in light of that party's apparent hopes
to secure a Unionist-camp majority in the next election
and throw a "spanner" into the GFA's works
by voting against all proffered First and Deputy First
Minister candidates. Reminding people of the sanctions
precedent, Mother Parliament might at that point further
abandon current "cross-community" voting
requirements under the GFA, thereby allowing another
UUP/SDLP First Minister and Deputy First Minister
team, or a new UUP/Sinn Féin pairing, where
DUP Assembly members outnumbered UUP members.
Relatedly,
if the Alliance Party is not true to Leader-as-of-this-writing
David Ford's word, whatever few remnant Assembly members
that party may have after the next election might
again redesignate themselves as temporary "Unionists"
in order to help stack the Executive deck in favor
of the UUP. Likewise, SDLP and even Sinn Féin
Assembly members might be called upon towards that
same end to "share the pain" by redesignating
themselves as "Provisional Irish Republican Unionists,"
a most definitely non-proscribed group.
Even
the UUP, it might be observed, has directly felt the
sting and embarrassment of Mother Parliament's being
less than fully true even to her written word:
La
donna è mobile
qual piuma al vento,
muta d'accento
e di pensiero.
…
È sempre misero
chi a lei s'affida,
chi le confida
mal cauto il core!
The
complete absence of genuine constitutional law in
the United Kingdom will tend to spark such concerns
about the future under the GFA and, specifically,
about Britannia's all too often waiving agreed-upon
and even "enshrined" rules in efforts to
keep that leaky Agreement afloat.
Against
this background, perhaps an overall answer to the
difficult Northern Ireland question might be found
by trying to figure out how a genuine constitutional
structure could or might be constructed and implemented
so as to address these issues directly and honestly.
In
any case, though, I suggested six weeks ago the following
in article published in The Blanket:
Sinn
Féin could probably decide now to "jump
first," to get the IRA to disband permanently,
to convince the UUP to return to devolved government
under the GFA, and to hope that all would thereafter
turn out well. Moreover, Sinn Féin could
do so notwithstanding the fact that the party has
given Mr. Blair rather backhanded praise "for
his 'frank admission' recently that the Government
had not honoured all its commitments under the Good
Friday Agreement" (Press Association,
25 January 2003). And maybe all would indeed work
out for the best were Sinn Féin and the IRA
to take that final leap of faith.
If,
by such Sinn Féin steps or otherwise, the parties
in Ireland and Britain are able to wrestle the rather
miserable GFA scheme back onto its wobbly tracks,
I would wish the people of Northern Ireland only the
best of luck - and they may need some - in their renewed
effort to keep that Agreement working for much longer
than the time it takes for an open bottle of champagne
to go flat, and I would hope that all my criticisms
of the GFA are then soon proven utterly unfounded.
Conversely,
however, if the GFA is shortly relegated to history,
people might consider Brian Walker's view that "[t]he
real message of Hillsborough" (Belfast Telegraph,
6 March 2003) is that "no one else wants to rule
us directly - not London, not Dublin. If it all founders
again, the two Prime Ministers won't put up with direct
rule again for ever." (But what other sort of
governance for the region would, then, be feasible?)
Mr.
Walker also therein quoted Mr. Blair, on 5 March 2003
in the House of Commons: "'Let me spell it out
again. There is no way this Agreement is going to
be renegotiated. It will either be implemented or
the people of Northern Ireland will not see the peaceful
future we all want'."
Praise
be to Mr. Blair for recognizing and formally stating
that "[t]here is no way this Agreement is going
to be renegotiated"! If still the GFA cannot
be made to work by this late date, it should finally
be put out of its long misery.
But
were Mr. Blair at that point interested in an alternative
to phlegmatic acquiescence in a failure to achieve
"the peaceful future we all want" for that
region, I would respectfully, albeit immodestly, recommend
to him a small article entitled "A
'Plan B' for Tony Blair and Northern Ireland"
(The Blanket, Belfast: 16 February 2003). One
of the main thoughts behind that article, and indeed
behind this one, is that - much, much more than "trust"
- what Northern Ireland sorely lacks is a well-defined
and well-founded set of fundamental political
rules to which Northern Irelanders might broadly subscribe
and through which they might then markedly improve
their shared lot.
Washington, D.C. lawyer Paul A. Fitzsimmons wrote
Independence for Northern Ireland: Why and How
(1993) (pfitzsim@wrightrobinson.com).
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