It is a privilege to be invited to speak at the Centre For the Union panel on the Union, due to be held this Wednesday evening in Parliament. The event is timely, coming as it does during the scheduled two-day Supreme Court hearing (Wednesday 30th November and 1st December) in relation to the Protocol which has been held to subjugate the Acts of Union, and thus Northern Ireland’s place in the United Kingdom.
It is right to point out that as the late Lord Trimble pointed out in 1998: “the Act of Union is the Union”.
This hearing in the Supreme Court in the challenge brought by Jim Allister KC MLA, Baroness Hoey, Ben Habib, Baroness Foster, Steve Aiken OBE MLA and, prior to his passing, Lord Trimble (Allister et al) is of enormous constitutional significance. Thus far whilst the legal challenge has technically failed, the case has been a political success in so far as it has established- beyond any doubt- that Northern Ireland has had our position as part of the Union “subjugated”.
There may be things which are ‘legal’ but are nevertheless unconstitutional. The NI Protocol falls squarely in that bracket. I say that for a simple reason. Suppose Parliament, created by Article 3 of the Acts of Union, decided that it would abolish itself and instead usher in authoritarian rule. It could exercise Parliamentary Sovereignty, in order to seek to do so. But would that be constitutional?
If like me, you think not, then it follows as a matter of the most compelling logic that if Article 3 of the Acts of Union is a constitutional fundamental, then so too is Article 6. The subjugation of Article 6 can therefore be nothing other than constitutionally improper.
The applicant’s case will be led by Northern Ireland’s former Attorney General John Larkin KC and Denise Kiley BL. The written and oral submissions by Mr Larkin and Ms Kiley at all stages of the case have been a masterclass in constitutional law and, if I may be bold enough to say so, it does appear to me that at times the problem in the first two cases was not that they were wrong, but rather that the advocates were intellectually lightyears ahead of the bench.
One hopes the Supreme Court will provide the venue for a constitutional intellectual feast (to paraphrase US Supreme Court justice, Robert Bork).
As alluded to, the event being held in Parliament by the Centre for the Union and The Bow Group is both timely, and important.
There has been, in my view, a significant error made- primarily in the devolution arrangements- in so far as the Government of the United Kingdom has effectively bestowed upon constituent parts of the Union the right of self-determination.
This, it seems to me, is a constitutional absurdity and one which Unionism across the United Kingdom must begin to grapple with and seek to persuade against.
The late former Court of Appeal jurist, Sir John Laws, commenting on the Scottish Independence referendum said: “it seems to be profoundly undemocratic that in 2014 only those resident in Scotland, and not the inhabitants of England, Wales or Northern Ireland, were allowed to vote on the dissolution of the United Kingdom”.
It can reasonably be inferred that Sir John was, in essence, advancing the concept that “self-determination” in regard to the future of the Union is a matter which should be for the whole Union, rather than constituent parts which form a small minority of the United Kingdom as a constitutional entity.
In last week’s Supreme Court judgement in the Lord Advocate’s Scottish Devolution Reference [2021] UKSC 31 regarding the SNP’s proposed advisory Scottish independence referendum, a unanimous court addressed the issue of “self-determination”.
I republish the relevant extract starting at para 89 in full, in order that the reader can have a full appreciation of the scope of the finding:
“88. There are insuperable obstacles in the path of the intervener’s argument based on self-determination. First, the principle of self-determination is simply not in play here. The scope of the principle was considered by the Supreme Court of Canada in the Reference re Secession of Quebec [1998] 2 SCR 217. There, the Governor in Council referred a series of questions to the Supreme Court including whether there exists a right to self-determination under international law that would give Quebec the right to secede unilaterally. In its judgment the Supreme Court explained (at paras 136-137) that Canada was a sovereign and independent state conducting itself in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a government representing the whole people belonging to the territory without distinction. It considered that the then current constitutional arrangements within Canada did not place Quebecers in a disadvantaged position within the scope of the international law rule.
It continued:
“In summary, the international law right to self-determination only generates, at best, a right to external self-determination in situations of former colonies; where a people is oppressed, as for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development. In all three situations, the people in question are entitled to a right to external self-determination because they have been denied the ability to exert internally their right to self-determination. Such exceptional circumstances are manifestly inapplicable to Quebec under existing conditions.” (at para 138)
It went on to say that in other circumstances peoples were expected to achieve self-determination within the framework of their existing state:
“A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its internal arrangements, is entitled to maintain its territorial integrity under international law and to have that territorial integrity recognized by other states. Quebec does not meet the threshold of a colonial people or an oppressed people, nor can it be suggested that Quebecers have been denied meaningful access to government to pursue their political, economic, cultural and social development. In the Page 33 circumstances, the National Assembly, the legislature or the government of Quebec do not enjoy a right at international law to effect the secession of Quebec from Canada unilaterally.” (at para 154)
89. In our view these observations apply with equal force to the position of Scotland and the people of Scotland within the United Kingdom. They are also consistent with the United Kingdom’s submission to the International Court of Justice in the case of Kosovo, adopted by the intervener as part of its submissions in the present case: “To summarise, international law favours the territorial integrity of “States. Outside the context of self-determination, normally limited to situations of colonial type or those involving foreign occupation, it does not confer any ‘right to secede’”: Written Proceedings in relation to UN General Assembly Resolution 63/3 (A/RES/63/3) (8 October 2008), Written Statement of the United Kingdom in response to the Request for an Advisory Opinion of the International Court of Justice on the Question, ‘Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”, (17 April 2009), para 5.33. The submission went on to state that international law does not, in general, prohibit secession; but the relevant point, in relation to the intervener’s submission based on a right of self-determination under international law, is the absence of recognition of any such right outside the contexts described by the Supreme Court of Canada, none of which applies to Scotland.
It is clear therefore that the concept of self-determination need not, in fact, bestow on any part of the United Kingdom a right to unilaterally dissolve the Union. The logic of course is that the United Kingdom should vote as one country on questions regarding the future of the Union, rather than allowing various constituent parts the right to dissolve the Union.
In this, I accept the devolution arrangements have embedded new concepts of self-determination, particularly in relation to Northern Ireland (which I will say more about on Wednesday night) but that does not mean these new concepts are right or are unchangeable.
We must seek to restore the constitutional integrity and balance to the United Kingdom, and in doing so ensure that the principle of self-determination is reformulated and viewed through the prism of the United Kingdom being one sovereign territory with all persons afforded equal citizenship.
The voters of Northern Ireland or Scotland, both a minority within the United Kingdom, should have no right to, by mere virtue of their geographical place in the Union, dissolve the United Kingdom.
I look forward to exploring these issues further in the future and welcome the exciting work of the Centre for the Union which seeks to bring those of us who value the United Kingdom - from all geographical parts of it - together in common cause.