The Fix Is In
If the GFA itself is an impediment to Irish unity, so are changes to it. There are a series of proposals to “fix” the Agreement’s formula for constitutional change in the north. As I’ve discussed, the formula states that a majority of people in the north voting in favour of reunification in a border poll is sufficient to initiate unity proceedings, with “majority” understood as 50 percent + 1.[25] And, of course, there needs to be a concurrent majority in a southern referendum, although this provision is not the focus of any of the fixes.
The GFA is in real difficulty from forces attacking its fundamental assumptions and principles. Some republicans, who have been consistently and justifiably critical of the Agreement, might celebrate the prospect of its demise. But the concrete circumstances of the GFA’s passing, not just the fact of its passing, must also be kept in mind. A crucial question to consider is how those circumstances affect the project of Irish unity.
I see only trouble ahead. All the proposed fixes to the Agreement’s formula for constitutional change have the effect of disrupting Irish unity, even in circumstances in which there is majority support for it. The fixers may not be aware of, or satisfied with, the extent to which the GFA is already a major impediment to reunification, or they may seek independently to marginalize unity so completely that it becomes unrealizable. Whatever their motivation, the effect is the same.
I’ll focus first on Seamus Mallon’s proposal to remake the northern formula by requiring “parallel consent” for constitutional change. Mallon’s argument is described in his book, A Shared Home Place (2019). Andy Pollak wrote the book’s introductory chapter. I refer below to Mallon’s proposal but readers should bear in mind that his notion of parallel consent is consistent with the position that Pollak has taken in his frequent interventions in the constitutional debate.
At the end of the section, I’ll also briefly address other attempts to fix the formula and related aspects of the GFA’s constitutional provisions.
The Mallon Muddle
The crux of Mallon’s proposal for parallel consent is that, to appease unionists, he wishes to add what I call a unionist-specific veto to the GFA’s provisions for constitutional change. By unionist-specific veto, I mean a veto over constitutional change that is explicitly designated for unionists as a group. Mallon’s proposal gives unionists a veto because they are unionists, not because they are or once were a majority in the north. This form of veto is permanent: it stays with unionists for as long as they remain an identifiable group in the northern polity. And it opens up the possibility that a unionist minority could block a united Ireland even if a northern (and southern) majority were to vote in favour of it. Mallon’s veto is effectively an insurmountable obstacle preventing constitutional change.
Let’s take a closer look at what Mallon says.
Two features that recommend Mallon’s parallel consent proposal also reveal some of its deficiencies. First, unlike various arithmetically-challenged schemes to fix the GFA’s constitutional formula, Mallon at least tries to quantify what he means by parallel consent for constitutional change. He’s not altogether successful. His proposal remains, in the words of one reviewer, “a slightly amorphous idea” (Doherty, 2020, no page numbers (n.p.)). I contend below that it’s more than “slightly” amorphous. Second, Mallon directly acknowledges that his notion of parallel consent requires the formal amendment of the GFA’s provisions for constitutional change. Other fixes have not been so forthcoming in admitting this implication. But Mallon is unclear about the enormity of the change he’s proposing, about how much his proposal deviates from the GFA. And he’s incorrect about the extent to which his proposed amendment accords with the review procedures set out in the Agreement.
Overall, Mallon makes a mess of the basic task of describing what his proposal is. One clue to the disordered nature of his description is the various summary labels he applies to his proposal. The general name he uses is “Parallel Consent.” But he also refers to his proposal as “Parallel Consent or a weighted majority for unity” and “some form of weighted majority for unity” (Mallon, 2019, locations 4005 & 4018).[26] These description are, to say the least, confusing in that parallel consent and weighted majority are not the same things.
Parallel consent and weighted majority are defined in the GFA as two different formulas to ensure that certain Assembly decisions have cross-community support. The Mallon proposal is a strange and abbreviated hybrid of these formulas that he applies to the process of constitutional change. And his proposal is actually closer to a weighted majority than it is to parallel consent, which leaves one wondering why he prefers “Parallel Consent” as a general descriptor.[27]
The author could have cleared up much of the confusion by using more accurate and consistent labels for his proposal. But, as I’ll show below, there is a compelling reason, accuracy aside, why Mallon prefers to attach the terms “parallel consent” and “weighted majority” to his proposal.
The clarity of Mallon’s proposal also suffers from his woefully inadequate account of the details of parallel consent. He fails to offer a single, coherent, self-contained description of his full proposal. To get a complete idea of what it (possibly) entails, the reader must piece together a series of scattered comments. Mallon’s new formula for constitutional change in the north seems to require:
- an overall majority of indeterminate size: either 50 percent + 1 or something larger;
- at least 40 percent support within the unionist community; and
- substantial support, probably at least 40 percent, within the nationalist community.
The first component of this formula is in question because the author takes contradictory positions on the size of the overall majority: he is incessantly critical of the “narrow” majority formula of 50 percent + 1; he seems to accept a narrow majority if it’s coupled with the 40 percent rules for community support; he partly bases his proposal on the weighted majority formula in the GFA, which requires an overall supermajority of 60 percent; and he appears to prefer a “significant majority for unity,” although he doesn’t specify what “significant majority” means as a percent in a border poll.[28] And he’s not clear if a significant majority is an actual component of his formula, or if it’s an expectation that should be met before the Secretary of State calls a border poll, or if it’s simply an empirical result produced by the operation of the community rules—in that any poll with 40 percent support among both unionist and nationalist communities would probably push the overall majority well beyond the 50 percent + 1 threshold.
The third component of his formula, the extent of support within the nationalist community, is also in question because the author never specifies a percent, as he does for the unionist community. A safe assumption is that it’s at least 40 percent: this level gives the appearance of community equivalency and is consistent with the GFA’s definition of weighted majority.
The second component is the most clearly specified. Clarity here is not surprising because this component—a unionist-specific veto—is the real heart of Mallon’s proposal to amend the constitutional formula in the GFA and related documents.
The three components listed above are what I mean when I refer to the Mallon proposal or to the author’s notion of parallel consent, with the understanding that the unionist-specific veto is the operative part of his formula. It was a lot of work to try to understand precisely what Mallon was saying. Even then, I found it necessary to insert approximations to capture the lingering imprecision in his portrayal. Mallon was needlessly careless in describing a key component of his book.
There is one final element of imprecision in Mallon’s proposal. The author does not address how his new notion of parallel consent for constitutional change will affect the Secretary of State’s mandatory duty to call a border poll. Currently, in the GFA and NIA, the majority threshold for calling a poll is tied to the majority threshold for winning a poll. If, in Mallon’s proposal, the winning threshold changes from “majority consent” to “parallel consent,” it follows that the calling threshold changes accordingly. The mandatory duty, then, would need to be amended to read that the Secretary of State must call a border poll if she believes it likely that the poll will show parallel consent for Irish unity. Gauging “likely parallel consent for Irish unity” gives the Secretary of State much wider latitude than does the current requirement of gauging “likely majority support for Irish unity.” Mallon’s proposal, then, would add enormous power to the already sizable authority of the Secretary of State to stifle the process of constitutional change. Mallon’s parallel consent, then, doubly dilutes the prospects of Irish unity: it’s extremely unlikely that the Secretary of State would ever exercise her mandatory duty to call a poll; but, in the event that she does, it’s extremely unlikely that the unity option would ever win.
Parallel Consent and the Good Friday Agreement
In the next few subsections, I examine Mallon’s erroneous claim of fidelity to the Agreement, and explore the implications of his proposal for parallel consent. Then I review the positions of other political actors who, like Mallon, propose fixes to the constitutional provisions of the GFA.
Mallon explicitly declares that his approach to parallel consent “derives directly from, and aligns with, the Good Friday Agreement” (loc. 3971). This position is without merit. His proposal repudiates rather than affirms the GFA.
Mallon offers various justifications for his claim of alignment with the GFA: the very labels he attaches to his proposal are derived from the Agreement; the formal process he uses to amend the GFA is outlined in the Agreement itself; and his proposed change is rooted in the GFA’s fundamental values of consent and parity of esteem. I aim to show that each of these justifications is unwarranted. I also contend that Mallon takes an opportunistic approach to the Agreement, and that his proposal is a significant step back from the model of popular ratification used in the GFA referendums of 1998.
The labels “parallel consent” and “weighted majority,” however inconsistently and incoherently Mallon applies them, are meant to conjure up fealty to the GFA. In introducing his proposal, the author quotes in full the two sections of the Agreement that define parallel consent and weighted majority. Mallon is here asserting that his proposal to amend the GFA has its origins in the GFA.
But, as I argue—and as Mallon and Pollak readily admit—the real core of the proposal is a unionist-specific veto: unionists as unionists deserve the power to overrule the wishes of a majority and stop a united Ireland. In the introduction to A Shared Home Place, Pollak states that the book’s “central proposal” is “that Irish unity must wait until there is a majority—or at least a substantial minority—in the Protestant and unionist community prepared to support it.” Similarly, Mallon emphasizes that “consent to Irish unity must include a substantial element of support from the unionist community” (locs. 67 & 3842). According to Mallon, this veto attaches organically and legitimately to unionists as a group: “Unionists have a natural veto because they live on this island, it is their home, and their agreement is essential if unity is ever to be achieved” (loc. 3524).[29] That is, unionists deserve a veto because of who they are; the veto is theirs for the very reason they’re unionists.
What Mallon and Pollak don’t admit, or don’t see, is that the parallel consent proposal has more to do with the logic of the partition-era unionist veto than it has to do with the GFA. One gift granted to unionists at partition was a veto over constitutional change. That gift was collectively addressed to them as unionists.[30] The logic of the Mallon proposal is exactly the same. And that logic is directly at odds with the provisions of the GFA, which it’s worth emphasizing did not extend the parallel consent or weighed majority formulas to the area of constitutional change. For Humphreys, “the genius of the Agreement” is in overcoming majoritarianism in so many areas but keeping majority consent as the formula for constitutional change. The majority formula is necessary for “the ultimate constitutional issue” because “50 per cent + 1 was the only equal and tie-breaking answer available, apart perhaps from the option of joint authority that the Agreement did not pursue” (Humphreys, 2018, pp. 92 & 93). In calling his proposal “parallel consent” or “some form of weighted majority,” Mallon mistakenly locates its origins in the Agreement rather than in partition. In this sense, his labels are exceptionally inaccurate misnomers.
The second way Mallon mistakenly claims allegiance to the GFA concerns the method he plans to use for amending the Agreement. He notes:
I position my proposal firmly within the framework of the Good Friday Agreement by suggesting that the negotiations to work out how that document might be amended, if necessary, should take place in the context of the Review section of that Agreement. This section foresaw that difficulties might arise, which would need to be addressed with a view to finding remedies (loc. 3964).
Mallon is referring to the section of the GFA entitled “Validation, Implementation and Review.”
In responding to Mallon’s position, I first need to identify the magnitude of the change he proposes to the terms of the Agreement. The presentation in the book is, once again, inconsistent. One the hand, Mallon downplays the extent of change he’s advocating. He sees his parallel consent proposal as a “further evolution” of the Agreement or as an “adjustment” of its terms (locs. 3453 & 3947). On the other hand, he recognizes that it is a “radical” change (loc. 4178). He acknowledges that the constitutional question is a “fundamental issue” (loc. 3975). And he hopes that the Review will facilitate “a fundamental re-examination of how future change in the constitutional status of Northern Ireland might be effected” (loc. 3847).
Mallon’s proposal represents neither a further evolution nor a mere adjustment of the Agreement. It’s not, as Mallon seems to imply, simply a matter of copying parallel consent from the Strand One section of the GFA and pasting it in the section on Constitutional Issues.[31] Even his depiction of the proposal as radical or fundamental does not do justice to the kind of shattering change he desires. His conception of parallel consent is a decisive, qualitative break with a crucial assumption on which the GFA was built. It undermines the very Agreement to which he claims loyalty.
In the 1998 referendums, many nationalists and republicans supported the Agreement partly because they believed that its consent and self-determination clauses left open the possibility of a united Ireland. Mallon’s proposal nullifies that belief: its effect is to move the prospect of Irish unity from the realm of “perhaps possible” to that of “effectively impossible.”[32]
We don’t really know what the result of the peace negotiations would have been if Mallon’s notion of parallel consent were part of a proposed agreement. But there is every possibility that the parties would not have reached a settlement if a permanent, unionist-specific veto over constitutional change were on the table. Another possibility is that, in the event of a tentative settlement, there would have been much more popular opposition expressed in the referendums, leading perhaps to failure of one or both of them. In these ways, Mallon’s proposal casts aside some key understandings that made the Agreement.
Clarifying the magnitude of change that Mallon proposes helps us to assess his idea of using the GFA’s Review section to amend the Agreement. It’s both inappropriate and unprecedented to invoke the Review section to effect the wrecking-ball change Mallon prescribes.
The Review section does contain the term “amendment,” and it seems Mallon seizes on this word to justify use of the section to alter the essence of the GFA.[33] But the primary purpose of the review provisions is to consider the implementation of the Agreement and to assess any problems that may arise in the operation of the GFA’s institutions.[34] It is for remedial action in the face of operative difficulties, not, as Mallon wants, for far-reaching changes to the conceptual underpinnings of the Agreement or to sections that haven’t yet been put into practice.
The two previous formal reviews of the Agreement substantiate this circumscribed purpose of the Review section. Both reviews were limited to very specific tasks. The first review began in 1999, after the failure of talks to resolve problems in the implementation of the Agreement. The British and Irish governments agreed in July that George Mitchell would facilitate a review restricted to the two issues of forming an inclusive executive and decommissioning arms (Mitchell, 1999).[35] The second review began in early 2004, under the provision to convene a review conference four years after the Agreement had come into effect. This review took place part way through a long suspension of the devolved institutions occasioned by the Stormontgate affair.[36] At the opening of the review, both the British and Irish governments agreed that the fundamentals of the GFA were not up for renegotiation. The purpose of the review was to assess the operation of the Agreement, especially regarding the stability of devolved governance and the ending of all paramilitary activity (Murphy, 2004; Cowen, 2004). Both Sinn Féin and the SDLP also insisted that the review was not and could not be a renegotiation of the GFA (Adams, 2004; Durkan, 2004). The effective end of the review, marked in December 2004 by the two governments’ proposals for a comprehensive agreement, reiterated that the principal elements of the GFA, like constitutional consent, were not be changed. And even this so-called “comprehensive agreement” was limited to a small number of issues on which clear implementation problems had emerged (Proposals by the British and Irish Governments for a Comprehensive Agreement, 2004).
In this instance, Mallon’s contention of alignment with the Agreement holds little water. He wants to use the GFA’s Review section in an unprecedented manner that rubs against its primary purpose.
There is another, related way in which Mallon’s use of the Review clause misaligns with the Agreement. He understands the important role that popular ratification played in the democratic model used in 1998. Mallon acknowledges that the resounding support for the GFA expressed in the two referendums in May “gave the political process in the North a legitimacy it never had before” (loc. 2517). Yet, he is content to leave the review process, and the monumental change he proposes, in the control of the two governments, in consultation with the Assembly parties. He sees no democratic or political imperative requiring that, since the people approved the initial Agreement, they should have the right to approve, or not, any disruptive amendment of it. Mallon’s proposal represents a retreat from democracy and weakens the principle that the Agreement belongs to the people, not just to the two governments and the political parties.[37]
Mallon’s claim of alignment with the GFA is also put in doubt by his position on the current majority consent formula. Let’s assume that the Agreement is not amended in the way Mallon proposes. In that case, he encourages both the British and Irish governments to violate the GFA and related documents. Mallon suggests that the Secretary of State should not call a border poll, nor should London and Dublin implement the results of a poll, unless there is a “significant majority” in favour of Irish unity. This recommendation contravenes the meaning of majority in the Agreement. Mallon is, in effect, saying to the two governments: “change the Agreement in the way I want, or breach the Agreement.” In neither case does he afford any legitimacy to the Agreement’s clauses on constitutional change. His approach to the Agreement is cynical and opportunistic. He invokes the GFA when it suits his purposes; when it does not, he ignores the Agreement or counsels breaking it.
Let me move to Mallon’s final justification for his claim that his proposal is consistent with the GFA. He contends that: “My contribution … is based four-square on the Good Friday Agreement’s core principles of parity of esteem and consent” (loc. 3471). As I’ve already shown that Mallon’s version of parallel consent for constitutional change actually subverts the Agreement’s conception of consent, let me concentrate on his treatment of parity of esteem. Mallon’s understanding of parity of esteem is not at all in keeping with the GFA. Rather, his notion is shallow and asymmetrical, especially when compared to that of Justice Humphreys. Let’s turn to Humphreys to help us assess Mallon.
Failing the Reciprocal Test
In his two books on Irish unity, Humphreys develops what he calls “a reciprocal test’ to evaluate the equality implications of various proposals for constitutional change. Reciprocity is a powerful notion that I’ll use to examine different arguments against reunification. Here’s how the reciprocal test works:
… the test for a united Ireland must correspond to that required for a United Kingdom, subject to the rider that agreement is also required in a referendum in the South.
The test for a United Kingdom is the support of ‘a majority’—in a democracy that is 50 per cent + 1 of those present and validly voting. That consent will remain even if it is a bare majority of one. On the principle of equal and reciprocal respect, the test for a united Ireland cannot be any more difficult. 50 per cent + 1 of those present and validly voting in referenda North and South is legally sufficient to trigger Irish unity. Generally, people who say that one cannot coerce hundreds of thousands of unionists into a united Ireland have no real problem with coercing hundreds of thousands of nationalists into a United Kingdom. If one takes equal respect seriously, one has to accept the consequences of a reciprocal test (Humphreys, 2018, pp. 84 & 85).
He later emphasizes that: “The test has to be reciprocal—otherwise talk of parity of esteem is hot air” (Humphreys, 2018, p. 92). For Humphreys, then, reciprocity is intimately linked to equal respect, equality of treatment and parity of esteem.
He also reveals here a principal tenet of a reciprocal test: the constitutional status quo is not to be taken for granted; rather, maintaining current constitutional arrangements must be seen as the result of an ongoing decision. Many northern nationalists and republicans, for instance, are living with a constitutional regime that reflects not their choice but the choice of unionists. In a reciprocal test, proposals for constitutional change are measured against their implications for maintaining the constitutional status quo. Reciprocity means that, under circumstances of both change and no change, unionists and nationalists/republicans are treated the same.
Humphreys wrote before Mallon proposed his parallel consent fix. But Humphreys is explicit about how any proposal for unreciprocated consent, like Mallon’s, has a fatal flaw:
… the really fundamental reason … why a minority or a dual consent [i.e., parallel consent] requirement could never act to prevent the reunification of the island of Ireland if a majority so wished, is that there is no corresponding provision at present permitting the nationalist and republican ‘minority’ to prevent Northern Ireland from remaining part of the United Kingdom. The test for a united Ireland could not in logic be different from a test for a United Kingdom (Humphreys, 2009, p. xxi).
Mallon’s parallel consent proposal fails Humphreys’s reciprocal test and, in so doing, debases the Agreement’s core principle of parity of esteem. Once again, Mallon’s claim of adherence to the GFA is mistaken.
Mallon disagrees with Humphreys’s critique of dual or parallel consent for constitutional change. He contends that Humphreys operates from a narrow, legal perspective. In contrast, Mallon believes that his proposal is a “more inclusive and generous way to quantify consent so that it reflects true parity of esteem between the unionist and nationalist communities” (loc. 3479). In fact, Mallon’s parallel consent is based on a specious, rather than true, conception of parity of esteem. He operates with what Humphreys would call a “hot-air” version of parity of esteem.
Mallon’s parallel consent has the appearance of reciprocity in requiring that substantial numbers of both unionists and nationalists must agree to constitutional change. On a deeper level, though, Mallon’s proposal is not reciprocal. It lacks true corresponding mutuality. Parallel consent gives unionists the power to veto Irish unity, the constitutional outcome they generally oppose. But nationalists have no corresponding veto power. As Humphreys shows, they have no veto over maintaining the Union, the constitutional outcome nationalists generally oppose. The sole constitutional outcome nationalists can block is the one they generally support, a united Ireland. That is, nationalists carry a veto but can exercise it only in a circumstance in which they would probably never use it. In Mallon’s proposal, the nationalist half of “parallel” consent is constitutionally meaningless.[38] Nationalist consent is mere window dressing. As I stated above, Mallon himself acknowledges that establishing a veto over constitutional change for the unionist community is the main purpose of parallel consent. Even by his own standards, then, his attempt to fix the formula for constitutional change is an affront to parity of esteem.
Two other ramifications follow from Mallon’s fondness for a seriously flawed conception of parity of esteem. One relates to the unequal nature of nationalist-unionist relations, the other to the possibilities for communal reconciliation.
Any unionist-specific veto over constitutional change, like Mallon’s proposal, reinforces the superiority of unionism over nationalism. It grants to unionists a constitutional right it denies to nationalists: a unionist minority can block unity but a nationalist minority cannot block Union. Jennifer Todd pointed out long ago that the Opsahl Commission’s recommendation for a unionist-specific veto implies unionist privilege in a hierarchy of constitutional rights. (Todd, 1995). Humphreys makes the same point about any proposal for dual, minority, joint or parallel consent (Humphreys, 2009 & 2018). Supporters of a constitutional veto for the unionist community continue systematically to ignore the inequitable premises and implications of their attempts to change the Agreement’s notion of consent. It’s necessary to remind them, continuously it seems, that second-class rights for nationalists and republicans are no longer acceptable.
Mallon also argues that his proposal will slow down the movement towards Irish unity and open space for cross-community reconciliation:
While never giving up our legitimate aspiration for unity, nationalists must first aim for reconciliation within Northern Ireland, working with unionists to build what I have called our ‘shared home place’” (loc. 3948).
I have two observations here. First, as I’ve said above, Mallon’s parallel consent proposal will not just slow down Irish unity, it will stop it. A united Ireland will remain forever in the realm of “aspiration,” as something hoped for but never accomplished. Second, he is mistaken to think that giving in to unionists’ sense of superiority will promote reconciliation. It’s more likely to reinforce their belief in their superiority, reaffirm their intransigence not to treat nationalists as equals and buttress their determination to marginalize parity of esteem.
For nationalists and republicans, accepting Mallon’s proposal means forsaking any chance of achieving their constitutional objective and legitimizing their inferior position in a system of superior-subordinate relations. Constitutional frustration and social submission are high prices to pay in a futile quest for reconciliation. I doubt that many nationalists and republicans in the north want “a shared home place” in which unionists will always have an indefensibly unfair share.
How Mallon’s parallel consent might affect reconciliation could be gleaned from the remarks of Mike Nesbitt, former UUP leader. Mallon put his idea to Nesbitt and, in the book, quotes extensively from Nesbitt’s reply. Nesbitt notes that: “If Arlene Foster or I were to propose this, it would be shot down and rightly so. Nationalists would say we were being undemocratic, the rules have been set by the Belfast and subsequent agreements, which you signed up to, so you’ll just have to suck it up.” But, in an unseemly rush to endorse the proposal, he also says: “It seems to make eminent sense to me … The logic of it is compelling.” Nesbitt apparently believes that the proposal should not be shot down for the simple reason that it is Mallon, “an icon of nationalism,” proposing it (locs. 3901, 3905, 3912 & 3904).
The crucial point is that Nesbitt accepts what he recognizes will be the undemocratic and unfair effects of Mallon’s proposal. He supports, or is indifferent to, the proposal’s lack of reciprocity in keeping nationalist constitutional rights inferior to those of unionists. For Nesbitt, reconciliation means nationalists offering major concessions to unionists. Unionists should not have to “suck up” the democratic consequences of the very consent clause they’ve been flaunting for decades when it may no longer work wholly and exclusively in their favour. Reconciliation, like democracy it seems, is a one-way street whose substance is to be determined by unionists.
Promoting Parallel Consent
The direct implications of Mallon’s proposal are debilitating. Parallel consent marginalizes Irish unity, undercuts the Agreement, diminishes parity of esteem, reinforces nationalist subordination and impedes reconciliation. Unfortunately, the malign consequences of what Mallon proposes do not end there. He compounds the problem by using some questionable arguments in support of his proposal for parallel consent to constitutional change. I’ll examine how his arguments have the effect of scapegoating nationalists, inciting fear among unionists and nationalists, and showing loyalists that threats and intimidation might work.
Mallon asks that both communities show generosity in considering his proposal, although he expects rather less generosity from unionists than he does from nationalists. He says that unionists can show generosity by engaging with nationalists in the Agreement’s spirit of mutual respect and parity of esteem. Otherwise, he warns, nationalists might well ignore his proposal and simply work to win Irish unity, even if by the narrowest of margins. He urges nationalists to show generosity to their unionist neighbours partly “by not pushing for unity until there is wider and deeper acceptance for it among the unionist community” (loc. 4014).
There is grating asymmetry in Mallon’s approach to the two communities. He asks unionists simply to abide by the GFA; but he asks nationalists to undermine the GFA in a way that would stifle the achievement of their constitutional preference. Mallon admits that “it will be hard for my fellow Northern nationalists to embrace my proposal.” But he believes that nationalists will respond positively: “I do not think this is too much to ask Northern nationalists, although it may be beyond the tolerance of some ‘republicans’ who have forgotten the real meaning underlying Wolfe Tone’s maxim about uniting Protestant, Catholic and dissenter” (locs. 4043 & 4040).
Mallon’s argument has disturbing implications that scapegoat nationalists. Let’s assume that the unionist response to his proposal is “generous” but that nationalists ignore or reject Mallon. Is it that nationalists are displaying insufficient generosity to unionists or joining the ranks of “intolerant republicans” or betraying Tone’s legacy? No, none of these conclusions about nationalists is warranted. We should blame the inherent, pronounced weaknesses of the proposal itself, not nationalists. As I’ve shown, there remain many sound reasons—which have nothing to do with unkindness, intolerance or betrayal—for nationalists and republicans to run from Mallon’s proposal.
Another argument Mallon employs will have the effect of inciting fears in both communities:
There is no credible evidence suggesting that retribution is a motivation for Irish unity. Nor is there a single major political or social actor proposing such revenge on the unionist community. On the contrary, overtures of accommodation abound. This kind of dystopian future exists only in the overheated imaginations of Mallon and others who join him to engage in baseless scaremongering.
I don’t know what Mallon hoped to accomplish by raising this argument. Is he trying to encourage a fearful unionist community to flock to his proposal of parallel consent in order to secure extra protection against an emerging and vengeful nationalist majority eagerly waiting to take control?[39] Is he hoping to persuade nationalists and republicans, who might in horror move behind his proposal so they can distance themselves from a malign political project that some of their compatriots are supposedly contemplating? The question we should consider is: does needlessly stoking societal fear and anxiety in this manner have other, more dangerous effects? I’ll discuss again, in the section on “Fenian Bastards,” the form of argument Mallon uses here.
A final and related argument Mallon uses in defence of his proposal is the fear of loyalist violence. He’s explicit about the clear, either/or choice facing nationalists in both parts of Ireland: either accept something like parallel consent and “move towards an agreed Ireland in a slow, progressive way, and maybe leave the end product to a future time;” or win a “narrow vote for unity” and prepare for a violent loyalist backlash (loc. 4106). This is a false choice. Mallon misrepresents both sides of the decision that he presents to nationalists. I’ve discussed above how his parallel consent is a decisive move away from, not towards, an agreed and united Ireland. Let me now examine Mallon’s view of unionist violence in post-unity Ireland.
Mallon again engages his scaremongering tactics and dystopian delusions by suggesting that any such violence will not be confined to the north, but will spill over the border into the south and onto Britain. And he contends that the disorder will be as intense and durable as the violence of the 1968-1998 period.
Mallon’s analysis is based on a manifestly faulty comparison that sees two completely different situations as essentially the same. Any post-border-poll united Ireland, however close the vote in the six counties, will not be equivalent to the circumstances in the north in the late 1960s and early 1970s. In the north at that time, a peaceful civil rights mobilization against a nakedly sectarian regime was transformed into a 30-year armed insurrection by state violence and murder, official cover-up and collusion, security force repression, and a legal system subservient to political and military needs (Ó Dochartaigh, 2005; Rolston, 2000). In contrast, a united Ireland will be brought about partly by the mechanism of a popular referendum based on the consent clause unionists have long championed. And it will be governed by political forces anxious to secure unionist acceptance of the new constitutional arrangements. What, in this, could lead to violence on the scale and span of 1968-1998? To regard these two situations as proportionate is sheer foolishness.
This kind of argument will have real effects on various constituencies in the north and south. Perhaps it will bully some nationalists, out of fear of loyalist violence, to defer indefinitely their pursuit of Irish unity. It might help to persuade the British and Irish governments not to keep their GFA obligations on consent and self-determination, again out of concern with loyalist-inspired unrest. For the same reason, it might lead the two governments to embrace Mallon’s proposal by amending the GFA and related documents to entrench parallel consent to constitutional change.
Most ominously, unionists and loyalists will also hear Mallon’s remarks, and may interpret them as saying that threats of violence and intimidation might prove to be an effective strategy for checking peaceful constitutional change. This kind of argument is exceedingly dangerous, for easily discernible reasons. I’ll return to this theme below, in the section on “Play the Orange Card.”
In a review of Mallon’s book, Tommy McKearney points out what he thinks might be the biggest flaw in Mallon’s position. While Mallon repeatedly invokes loyalist violence, he minimizes the plain hazard from the other side. If parallel consent means that “the democratically expressed wishes of the majority of people” for a united Ireland are ignored, “there is the distinct possibility, indeed probability, of an intense republican armed campaign” (McKearney, 2020a, n.p). It is likely that the democratic perversion of Mallon’s scheme would lead to more widespread social tumult than would the democratic application of the GFA’s provisions for a border poll.
The incredible folly of Mallon’s position can be seen in its implications for civil unrest. Should his proposal not be accepted, Mallon’s argument may encourage loyalists to engage in violence to stop democratic constitutional change. If accepted, its glaring anti-democratic logic will likely provoke a violent response from segments of nationalism and republicanism. The north is a better place without Mallon’s proposal.
In summary, there is nothing to recommend Mallon’s proposal for parallel consent, which:
Those who look to Mallon’s book as a model of how to proceed, like Taoiseach Micheál Martin, unionist Mike Nesbitt and columnist Tom Kelly, need to think again about its defective arguments and baleful implications (Kelly, 2020).
More Fixes
There are many commentators proposing other “fixes” to the Agreement’s provisions for constitutional change. Like Mallon, they effectively abandon the GFA.
These other fixes want to change the Agreement’s constitutional consent formula that requires a simple majority of 50 percent + 1. Or they want to change the Secretary of State’s mandatory duty under the NIA to call a border poll if majority support for unity seems likely. Or both. Such changes would require the formal amendment of the Agreement and related documents, although the proposals generally don’t address this matter.
In criticizing the GFA’s notion of majority consent, some analysts suggest that a united Ireland must emerge from “consensus” in the north. They also state that unity must unfold as the end product of a campaign of “winning the hearts and minds” of almost a million unionists to the project of reunification.[40] These proposals are frequently so vague that they never quantify what “consensus” or “winning hearts and minds” actually means. They don’t say what percent in a border poll favouring unity indicates that consensus has been reached or hearts and minds won. Their threshold for Irish unity is so unclear that it’s impossible to know when that threshold has been crossed. This level of imprecision is, in itself, an obstacle to unity. If we cannot tell that Irish unity has won, we are compelled to conclude that it has lost.
None of these proposals is as specific as Eoghan Harris’s view of what winning unionists and loyalists to the cause of Irish unity means in practice. He emphasizes that even a border poll with a 90 percent + 1 supermajority in favour of Irish unity shows insufficient unionist and loyalist support (Harris, 2019b). Here we may discern a reason why so many proposals for “consensus” and “winning hearts and minds” remain so unclear. Once we quantify what these words mean, as Harris has done, we realize how outlandish the proposals are and how they prevent the realization of Irish unity. Precision unmasks what imprecision hides. Though these other proposals may not, with Harris, call for all but unanimous support for a united Ireland, the level of support they require is still so demanding that it effectively precludes constitutional change.
Practically, all these proposals amount to the same thing: unionists as unionists deserve a veto even when they are a minority in the north, and therefore constitutional change cannot occur without their consent. Lurking behind the comforting expressions of “consensus” and “winning hearts and minds” is the cold reality and partitionist logic of an undemocratic, inegalitarian unionist-specific veto.
Brian Feeney interpreted the recent Fianna Fáil-Fine Gael Framework Document in this light. The parties developed the Framework as a negotiating package to submit to potential coalition partners in the south with the aim of finally forming a new government after the indecisive February election. Feeney points out that the Framework commits the two parties “to build consensus around a shared future” and “to work towards a consensus on a united island” (Fianna Fáil-Fine Gael, 2020, p. 19). He makes two remarks about this language. The Document avoids the use of the term “united Ireland;” it mentions instead “a shared future,” “a shared island” and “a united island.” And the two parties refer deliberately to “consensus”:
For nationalists and republicans, accepting Mallon’s proposal means forsaking any chance of achieving their constitutional objective and legitimizing their inferior position in a system of superior-subordinate relations. Constitutional frustration and social submission are high prices to pay in a futile quest for reconciliation. I doubt that many nationalists and republicans in the north want “a shared home place” in which unionists will always have an indefensibly unfair share.
How Mallon’s parallel consent might affect reconciliation could be gleaned from the remarks of Mike Nesbitt, former UUP leader. Mallon put his idea to Nesbitt and, in the book, quotes extensively from Nesbitt’s reply. Nesbitt notes that: “If Arlene Foster or I were to propose this, it would be shot down and rightly so. Nationalists would say we were being undemocratic, the rules have been set by the Belfast and subsequent agreements, which you signed up to, so you’ll just have to suck it up.” But, in an unseemly rush to endorse the proposal, he also says: “It seems to make eminent sense to me … The logic of it is compelling.” Nesbitt apparently believes that the proposal should not be shot down for the simple reason that it is Mallon, “an icon of nationalism,” proposing it (locs. 3901, 3905, 3912 & 3904).
The crucial point is that Nesbitt accepts what he recognizes will be the undemocratic and unfair effects of Mallon’s proposal. He supports, or is indifferent to, the proposal’s lack of reciprocity in keeping nationalist constitutional rights inferior to those of unionists. For Nesbitt, reconciliation means nationalists offering major concessions to unionists. Unionists should not have to “suck up” the democratic consequences of the very consent clause they’ve been flaunting for decades when it may no longer work wholly and exclusively in their favour. Reconciliation, like democracy it seems, is a one-way street whose substance is to be determined by unionists.
Promoting Parallel Consent
The direct implications of Mallon’s proposal are debilitating. Parallel consent marginalizes Irish unity, undercuts the Agreement, diminishes parity of esteem, reinforces nationalist subordination and impedes reconciliation. Unfortunately, the malign consequences of what Mallon proposes do not end there. He compounds the problem by using some questionable arguments in support of his proposal for parallel consent to constitutional change. I’ll examine how his arguments have the effect of scapegoating nationalists, inciting fear among unionists and nationalists, and showing loyalists that threats and intimidation might work.
Mallon asks that both communities show generosity in considering his proposal, although he expects rather less generosity from unionists than he does from nationalists. He says that unionists can show generosity by engaging with nationalists in the Agreement’s spirit of mutual respect and parity of esteem. Otherwise, he warns, nationalists might well ignore his proposal and simply work to win Irish unity, even if by the narrowest of margins. He urges nationalists to show generosity to their unionist neighbours partly “by not pushing for unity until there is wider and deeper acceptance for it among the unionist community” (loc. 4014).
There is grating asymmetry in Mallon’s approach to the two communities. He asks unionists simply to abide by the GFA; but he asks nationalists to undermine the GFA in a way that would stifle the achievement of their constitutional preference. Mallon admits that “it will be hard for my fellow Northern nationalists to embrace my proposal.” But he believes that nationalists will respond positively: “I do not think this is too much to ask Northern nationalists, although it may be beyond the tolerance of some ‘republicans’ who have forgotten the real meaning underlying Wolfe Tone’s maxim about uniting Protestant, Catholic and dissenter” (locs. 4043 & 4040).
Mallon’s argument has disturbing implications that scapegoat nationalists. Let’s assume that the unionist response to his proposal is “generous” but that nationalists ignore or reject Mallon. Is it that nationalists are displaying insufficient generosity to unionists or joining the ranks of “intolerant republicans” or betraying Tone’s legacy? No, none of these conclusions about nationalists is warranted. We should blame the inherent, pronounced weaknesses of the proposal itself, not nationalists. As I’ve shown, there remain many sound reasons—which have nothing to do with unkindness, intolerance or betrayal—for nationalists and republicans to run from Mallon’s proposal.
Another argument Mallon employs will have the effect of inciting fears in both communities:
The nationalist community in the North have the experience of centuries of being beaten down and excluded. I fervently hope that my community, as we move closer to being a majority in the North, will not now consider doing to the unionists what was done to us. … If we believe that the way the unionist majority used and abused us gives us the right to despise and trample on them, I won’t go along with it. Northern Ireland is their home too. (loc. 4487).
I don’t know what Mallon hoped to accomplish by raising this argument. Is he trying to encourage a fearful unionist community to flock to his proposal of parallel consent in order to secure extra protection against an emerging and vengeful nationalist majority eagerly waiting to take control?[39] Is he hoping to persuade nationalists and republicans, who might in horror move behind his proposal so they can distance themselves from a malign political project that some of their compatriots are supposedly contemplating? The question we should consider is: does needlessly stoking societal fear and anxiety in this manner have other, more dangerous effects? I’ll discuss again, in the section on “Fenian Bastards,” the form of argument Mallon uses here.
A final and related argument Mallon uses in defence of his proposal is the fear of loyalist violence. He’s explicit about the clear, either/or choice facing nationalists in both parts of Ireland: either accept something like parallel consent and “move towards an agreed Ireland in a slow, progressive way, and maybe leave the end product to a future time;” or win a “narrow vote for unity” and prepare for a violent loyalist backlash (loc. 4106). This is a false choice. Mallon misrepresents both sides of the decision that he presents to nationalists. I’ve discussed above how his parallel consent is a decisive move away from, not towards, an agreed and united Ireland. Let me now examine Mallon’s view of unionist violence in post-unity Ireland.
Mallon again engages his scaremongering tactics and dystopian delusions by suggesting that any such violence will not be confined to the north, but will spill over the border into the south and onto Britain. And he contends that the disorder will be as intense and durable as the violence of the 1968-1998 period.
Mallon’s analysis is based on a manifestly faulty comparison that sees two completely different situations as essentially the same. Any post-border-poll united Ireland, however close the vote in the six counties, will not be equivalent to the circumstances in the north in the late 1960s and early 1970s. In the north at that time, a peaceful civil rights mobilization against a nakedly sectarian regime was transformed into a 30-year armed insurrection by state violence and murder, official cover-up and collusion, security force repression, and a legal system subservient to political and military needs (Ó Dochartaigh, 2005; Rolston, 2000). In contrast, a united Ireland will be brought about partly by the mechanism of a popular referendum based on the consent clause unionists have long championed. And it will be governed by political forces anxious to secure unionist acceptance of the new constitutional arrangements. What, in this, could lead to violence on the scale and span of 1968-1998? To regard these two situations as proportionate is sheer foolishness.
This kind of argument will have real effects on various constituencies in the north and south. Perhaps it will bully some nationalists, out of fear of loyalist violence, to defer indefinitely their pursuit of Irish unity. It might help to persuade the British and Irish governments not to keep their GFA obligations on consent and self-determination, again out of concern with loyalist-inspired unrest. For the same reason, it might lead the two governments to embrace Mallon’s proposal by amending the GFA and related documents to entrench parallel consent to constitutional change.
Most ominously, unionists and loyalists will also hear Mallon’s remarks, and may interpret them as saying that threats of violence and intimidation might prove to be an effective strategy for checking peaceful constitutional change. This kind of argument is exceedingly dangerous, for easily discernible reasons. I’ll return to this theme below, in the section on “Play the Orange Card.”
In a review of Mallon’s book, Tommy McKearney points out what he thinks might be the biggest flaw in Mallon’s position. While Mallon repeatedly invokes loyalist violence, he minimizes the plain hazard from the other side. If parallel consent means that “the democratically expressed wishes of the majority of people” for a united Ireland are ignored, “there is the distinct possibility, indeed probability, of an intense republican armed campaign” (McKearney, 2020a, n.p). It is likely that the democratic perversion of Mallon’s scheme would lead to more widespread social tumult than would the democratic application of the GFA’s provisions for a border poll.
The incredible folly of Mallon’s position can be seen in its implications for civil unrest. Should his proposal not be accepted, Mallon’s argument may encourage loyalists to engage in violence to stop democratic constitutional change. If accepted, its glaring anti-democratic logic will likely provoke a violent response from segments of nationalism and republicanism. The north is a better place without Mallon’s proposal.
In summary, there is nothing to recommend Mallon’s proposal for parallel consent, which:
- gives unionists a minority veto over Irish unity even if it were supported by concurrent majorities in the north and south, effectively ending any realistic chance of constitutional change;
- refuses to reciprocate by giving nationalists a corresponding veto over maintaining the Union;
- changes the rules in the middle of the game to the benefit of those who helped to set the rules and worked them to full advantage, but who are now unwilling to play by those rules because their advantage is slipping;
- confirms that the Agreement is a big constitutional lie;
- uses the Review clause of the GFA in a questionable, unprecedented and anti-democratic way to usher in groundbreaking change;
- makes a mockery of the popular ratification of the GFA;
- undermines parity of esteem between the two main communities;
- reinforces unionist superiority and supports nationalist subordination;
- impedes reconciliation;
- scapegoats nationalists;
- incites fear in both communities;
- implies that loyalist violence and coercion could be a viable strategy to defeat a united Ireland;
- and may provoke unrest from nationalists and republicans.
Those who look to Mallon’s book as a model of how to proceed, like Taoiseach Micheál Martin, unionist Mike Nesbitt and columnist Tom Kelly, need to think again about its defective arguments and baleful implications (Kelly, 2020).
More Fixes
There are many commentators proposing other “fixes” to the Agreement’s provisions for constitutional change. Like Mallon, they effectively abandon the GFA.
These other fixes want to change the Agreement’s constitutional consent formula that requires a simple majority of 50 percent + 1. Or they want to change the Secretary of State’s mandatory duty under the NIA to call a border poll if majority support for unity seems likely. Or both. Such changes would require the formal amendment of the Agreement and related documents, although the proposals generally don’t address this matter.
In criticizing the GFA’s notion of majority consent, some analysts suggest that a united Ireland must emerge from “consensus” in the north. They also state that unity must unfold as the end product of a campaign of “winning the hearts and minds” of almost a million unionists to the project of reunification.[40] These proposals are frequently so vague that they never quantify what “consensus” or “winning hearts and minds” actually means. They don’t say what percent in a border poll favouring unity indicates that consensus has been reached or hearts and minds won. Their threshold for Irish unity is so unclear that it’s impossible to know when that threshold has been crossed. This level of imprecision is, in itself, an obstacle to unity. If we cannot tell that Irish unity has won, we are compelled to conclude that it has lost.
None of these proposals is as specific as Eoghan Harris’s view of what winning unionists and loyalists to the cause of Irish unity means in practice. He emphasizes that even a border poll with a 90 percent + 1 supermajority in favour of Irish unity shows insufficient unionist and loyalist support (Harris, 2019b). Here we may discern a reason why so many proposals for “consensus” and “winning hearts and minds” remain so unclear. Once we quantify what these words mean, as Harris has done, we realize how outlandish the proposals are and how they prevent the realization of Irish unity. Precision unmasks what imprecision hides. Though these other proposals may not, with Harris, call for all but unanimous support for a united Ireland, the level of support they require is still so demanding that it effectively precludes constitutional change.
Practically, all these proposals amount to the same thing: unionists as unionists deserve a veto even when they are a minority in the north, and therefore constitutional change cannot occur without their consent. Lurking behind the comforting expressions of “consensus” and “winning hearts and minds” is the cold reality and partitionist logic of an undemocratic, inegalitarian unionist-specific veto.
Brian Feeney interpreted the recent Fianna Fáil-Fine Gael Framework Document in this light. The parties developed the Framework as a negotiating package to submit to potential coalition partners in the south with the aim of finally forming a new government after the indecisive February election. Feeney points out that the Framework commits the two parties “to build consensus around a shared future” and “to work towards a consensus on a united island” (Fianna Fáil-Fine Gael, 2020, p. 19). He makes two remarks about this language. The Document avoids the use of the term “united Ireland;” it mentions instead “a shared future,” “a shared island” and “a united island.” And the two parties refer deliberately to “consensus”:
You may also have picked up another new word: “consensus”. They say “This consensus will be underpinned by the terms and institutions of the Good Friday Agreement…” The word consensus is nowhere in the GFA. ...‘Consensus’ is a code word, especially in Fine Gael circles, for a unionist veto. They hadn’t the nerve to write “unionist consent”, but that’s what they mean in this passage. What has happened here is that Fine Gael first, then to their shame Fianna Fáil, have twisted the consent principle in the GFA into a unionist veto on change” (Feeney, 2020, n.p.).[41]
Feeney is correct to point out that the GFA’s notion of consent is incompatible with the Document’s view of consensus. Let me add three comments to his analysis. First, as I’ve argued, using consensus as a euphemism for a unionist-specific veto is not limited to Fine Gael, or Fianna Fáil. The term is used by many commentators in exactly this manner. Second, while I think Feeney is correct in highlighting the Framework’s negative implications for constitutional change, I also believe that the Document can be read to mean that the parties will proactively try to build, in the south and the north, a firmer foundation for the constitutional status quo. That is, the two parties intend not only to frustrate constitutional change by inserting a veto for the unionist community, but to buttress partition by gaining wider acceptance for current constitutional arrangements. Third, these features of the Document are, if anything, magnified in the recently-released draft Programme for Government agreed by Fianna Fáil, Fine Gael, and the Green Party.[42] As Alex Kane notes, the Programme “is fluffy, almost invisible, on the issue of a united Ireland” (Kane, 2020, n.p.).
All the proposals examined here fail the reciprocal test because they introduce a veto for only one of the two main constitutional protagonists. None of them suggests that the maintenance of the Union should depend on realizing a constitutional consensus or winning the hearts and minds of nationalists and republicans in the north. None of them requires an “agreed Kingdom” to counterbalance an “agreed Ireland” (Humphreys, 2009, p. xxi).[43] As we found in the discussion of Mallon’s parallel consent, this lack of mutuality is based on the presumption that unionists’ constitutional rights must be of a higher order than are those of nationalists.
For the most part, supporters of these proposals don’t know or don’t care that they are disavowing a major part of the Agreement. They seem unconcerned that the Agreement was popularly ratified. The GFA’s scheme for constitutional change has become a cheap commodity in the hands of these unilateralists, as something that should be summarily discarded to the advantage of unionists.
All these proposals should be rejected for many of the same reasons that Mallon’s plan should be tossed out.
In my critique of these other fixes, as in my consideration of Mallon’s proposal, I’m not suggesting that attempts to gain unionists’ acceptance of constitutional change by winning their hearts and minds is necessarily misguided. But there’s consensus and then there’s consensus.[44] The first kind of consensus means moving forward to a united Ireland by trying to achieve as much societal agreement as possible. This is an admirable aim that makes sense. Being generous by offering reasonable accommodation is a good idea. After all, people opposed to or unsure of Irish unity will, under new constitutional arrangements, be fellow citizens, co-workers, colleagues, neighbours perhaps, even friends. The success of this consensual strategy is, of course, crucially dependent on how open unionists are to discussing the matter in good faith. The campaign for Irish unity should not be stalled because irreconcilable elements continue to spurn genuine attempts to reach agreement.
This possibility leads to the second kind of consensual strategy: requiring consensus as a condition of constitutional change. This use of consensus is a questionable strategy that makes no sense. It prevents accommodation: unionists will have no incentive to consider change and every incentive to veto it; nationalists will never accept that their constitutional way has been blocked by the unjustifiably disproportionate power of unionism. It is a formula for stalemate and rancour that keeps the constitutional status quo firmly in place.
There is one additional fix that should be considered. Former DUP leader and First Minister Peter Robinson, among others, has criticized the binary choice presented by a border poll that asks voters if they wish that the north “should cease to be part of the United Kingdom and form part of a united Ireland,” to borrow the language of the GFA and NIA. He suggests that such a “’yes’ or ‘no’ answer” is particularly inappropriate when dealing with the complexities of constitutional change. He does not, however, suggest ways to move beyond binary choice (Robinson, 2018b, n.p. & 2018a).
Sophie Long’s analysis is more useful in this regard. Like Robinson, she questions any choice limited to the binary of Union or unity. But she also examines what other constitutional worlds are possible. She advises that more options be added to the border-poll ballot paper, including independence for the north, joint authority and non-territorial autonomy, which she defines as “self-rule by a group sharing linguistic/cultural/religious identities who aren’t concentrated in one geographic area” (Long, 2020, n.p.).
The first point to note about Robinson’s and Long’s proposals is that they break with the foundational understandings of the peace process. Binary constitutional choice is one of the overriding premises of the GFA’s whole notion of consent. Humphreys emphasizes that independence, joint sovereignty and “any other solutions apart from a United Kingdom or a united Ireland are ruled out by the Agreement” (Humphreys, 2018, p. 237). The schemes of Robinson and Long, like the other fixes examined in this section, also cheapen the popular support expressed in the GFA referendums. They would go over the heads of the people to change that which has been popularly and overwhelmingly ratified.
The second problem is the proposals’ garish lack of reciprocity. People in the north are currently subject to the sovereign laws of one part of a binary constitutional choice, the United Kingdom part. But the proposals do not regard this constitutional status quo as limiting. For Robinson and Long, the limitations of binary choice only become apparent with the possibility of constitutional change. In the Union-unity dichotomy, it’s only the unity part that concerns them. For Robinson especially, maintaining the other part is no problem: Union is his strong constitutional preference. These proposals are effectively ways to defeat a united Ireland. As momentum for Irish unity builds, diverse constitutional horizons suddenly come into view; as momentum subsides, those other horizons quickly fade away, and current constitutional arrangements are normalized. The constitutional status quo plods along shorn of any disquiet about the limitations of binary choice.
The first two arguments against a united Ireland—the British veto and the formula fixes—show that both continuing with the Agreement and collapsing it hold much potential for marginalizing Irish reunification. The remaining arguments I’ll consider have the same potential, although they are not so directly tied to the Agreement’s mechanics or its formal supersession. I’ll examine them briefly.
Notes
[25] For a discussion of the 50 percent + 1 threshold in the GFA and related documents, see Humphreys (2009, 2018), Whysall (2019) and Bassett and Harvey (2019).
[26] I’m quoting from the Kindle edition of Mallon’s book, which uses location numbers instead of page numbers. Hereafter, I’ll use the abbreviations “loc.” and ‘locs.”
[27] According to the GFA, parallel consent has three components: (1) an overall majority of Assembly members; (2) a majority of unionist members; and (3) a majority of nationalist members. Similarly, weighted majority has three components: (4) an overall supermajority of 60 percent; (5) at least 40 percent of nationalists; and (6) at least 40 percent of unionists. The Mallon proposal seems to be a combination of components (1), (5) and (6). But it may also involve an overall supermajority as in component (4), though not necessarily of 60 percent. In either case, the proposal more closely resembles a weighted majority than it does parallel consent. In the body of the paper, I describe in more detail the indifferent way in which Mallon explains his proposal.
[28] See, for instance, the discussions at locations 3846 and 4149.
[29] This argument is exactly the same as the argument the SDLP used in its talks with Sinn Féin in 1988 (Sinn Féin, 1998).
[30] Partition was created in response to unionists’ opposition to Home Rule. Unionists did not initially want a separate northern Parliament but soon began to support the institution. Both the Government of Ireland Act 1920 and the 1921 Anglo-Irish Treaty required unionist consent for any change to constitutional arrangements, with consent expressed through the unionist-controlled northern Parliament (Humphreys, 2009, pp. 4 & 7).
[31] As he says: “My question in these pages is whether this clause of the Good Friday Agreement, Parallel Consent in the Northern Ireland Assembly, could be extended across into the constitutional space and thus be used to protect unionists if a future Border Poll were to result in a narrow overall majority for a united Ireland, but without the consent of both traditions in the North” (Mallon, 2019, loc. 3488).
[32] Brian Feeney observes that Mallon’s proposal is “carefully designed to make Irish unity a practical impossibility” (Feeney, 2019, n.p).
[33] Different parts of this section pertain to the GFA, the BIA and relevant legislation (NIA). In many cases, changes to the BIA and NIA would also effectively involve changes to the GFA. Mallon focuses on the Review section’s relevance to changes to the GFA. In response to Mallon, I likewise refer simply to changes to, or amendment of, the GFA, on the understanding that these other documents are also involved.
[34] Another primary purpose of this section, not related to the provisions for review, is to require that the British and Irish governments hold referendums on 22 May 1998 to validate the GFA.
[35] While the Review section states in paragraph 4 that “representatives of the two Governments and all relevant parties may meet under independent chairmanship to review implementation of the agreement as a whole,” London and Dublin limited the review to two issues. Even this wording, which allows review of the entire Agreement, does not support Mallon’s use of the Review section. This paragraph was meant to apply only for a temporary period, ending with the devolution of powers to the Assembly and the coming into force of the BIA, both of which occurred on 2 December 1999.
[36] In October 2002, the PSNI raided Sinn Féin’s offices in Stormont and various premises in Belfast, allegedly to break up a republican spy-ring. Ten days later, the British government suspended the devolved institutions, after First Minister David Trimble said UUP ministers would resign if Sinn Féin were not excluded from the Executive. This suspension lasted until May 2007.
[37] The GFA’s section on Validation, Implementation and Review notes that “a consultative referendum” will take place in the north on 22 May 1998 to measure support for the Agreement (para 2). But the northern referendum was more than merely consultative. It (and the referendum in the south) became part of the formal decision-making process. Paragraph 3 of the Review section ties the implementation of the Agreement to popular ratification: “If majorities of those voting in each of the referendums support this agreement, the Governments will then introduce and support, in their respective Parliaments, such legislation as may be necessary to give effect to all aspects of this agreement …”
The Review section also says that, if difficulties in the operation of the institutions arise that require general remedial action or amendment, “the process of review will fall to the two Governments in consultation with the parties in the Assembly” (para. 7). Mallon seems to agree with this arrangement. But he also argues that extensive civic dialogue should proceed the official review, in the form of “another Opsahl-type commission”. And he is clear that this dialogue is informative only and “would not be part of the decision-making process” (locs. 3995 & 4001). My point is that leaving review to the two governments and the parties, as both the GFA and Mallon’s proposal require, and adding civic dialogue, as Mallon wants, are poor substitutes for the popular ratification used in 1998. The immensity of the change Mallon proposes should involve a process of going back to the people for their approval.
[38] There are, theoretically, some circumstances in which nationalists might want to veto “Irish unity.” If, for instance, the specific form of a united Ireland or the details of its governance structures offend nationalist principles, a significant number of nationalists may oppose constitutional change. This remains a remote possibility that might emerge from Mallon’s suggestion that nationalists need to wait for unionist consent to unity and should back arrangements that are congenial to unionists. But if a proposal for Irish unity were to elicit very weak nationalist support, or stronger unionist than nationalist support, that proposal could not be for “Irish unity” in any politically meaningful sense. Another instance in which nationalists might block Irish unity is if they fear widespread civil violence from elements opposing constitutional change. This development would, of course, represent a direct challenge to the democratic political order. Generally, outside such highly unlikely or subversive circumstances, the nationalist veto is meaningless. In short, the constitutional power of the two communities is not reciprocal. The unionist community’s veto can be exercised willingly in almost all conceivable circumstances; it would not have to wait, like the nationalist veto, for the emergence of a highly abnormal situation before it becomes operative, or for the emergence of a threatening situation in which it would be used under duress. The unionist community’s veto is a general and material veto, the nationalist veto is not.
[39] In one sense, for unionists to support Mallon’s proposal of parallel consent and abandon the principle of majority consent would be a stunning reversal of public opinion. As mentioned above, even during a period of intense Protestant disillusionment in the early years of the GFA, Protestant support for the Agreement’s majority consent clause remained incredibly high, at over 90 percent (Hayes, McAllister & Dowds, 2005, p. 156). Perhaps Nesbitt’s embrace of Mallon and dismissal of the GFA’s consent clause portend change. In another sense, though, any unionist support of Mallon’s parallel consent would represent continuity, not change. Unionists have always equated majority consent with unionist consent. As this equation breaks down, unionists might well support changing the GFA to insert a permanent, unionist-specific veto. That is, changing the GFA is a way for unionists to maintain their conventional understanding of majority consent. Any unionist acceptance of Mallon’s proposal for a unionist-specific veto would clearly expose the principle of majority consent as a democratic sham (Burke, 2017).
[40] Those analysts include Andy Pollak, John Manley, Fintan O’Toole, Tom Kelly and JW Foster (Burke, 2017 & 2020).
[41] The word “consensus” is used once in the GFA, to describe how the British-Irish Council will make decisions. See Strand Three, British-Irish Council, paragraph 7. Feeney is correct to say that consensus has nothing to do with the Agreement’s provisions for constitutional change.
[42] The Programme also draws an inaccurate equivalence between consensus and the GFA’s notion of consent for constitutional change. And it drops the Document’s term of “a united island” in favour of “a shared island” (Programme for Government - Our Shared Future, 2020, p. 104). This change in terminology further distances the parties from any meaningful conception of a united Ireland.
[43] Spencer and Hudson discuss an “agreed Northern Ireland,” but their conception of “agreed” is quite different from what Humphreys has in mind. Their “agreed Northern Ireland” excludes nationalists and republicans. See the section on “Ulster Says No.”
[44] Humphreys notes that while “there is no principle of unionist consent” to constitutional change in the Agreement, “that does not diminish the desirability of maximum support for any change in constitutional arrangements.” And he suggests: “It may well be appropriate for those who favour a unity outcome to seek as much support for Irish unity as possible above a bare majority” (Humphreys, 2018, pp. 237 & 85). McKearney makes a similar point: “Ideally it would be best if 100 per cent of the North’s population were to vote Yes in a border poll. Common sense indicates that this is a pipe dream.” Nevertheless, there remains an “enormous onus … on those advocating an end to partition to engage positively with the unionist population” (McKearney, 2020a, n.p.). For a further critique of consensus as a condition of constitutional change, see Burke (2020).
⏮ Mike Burke has lectured in Politics and Public Administration in Canada for over 30 years.
