Assuming that the issue we are addressing is the wider question of the Union as a whole (and not just Scotland), then we need to identify a set of criteria which will help us to identify the various issues that may need to be addressed. Here, I think, James Bryce’s analysis is useful in identifying a rather fuller set of criteria that bind polities together or contribute to loosening those ties. It is interesting, of course, that Bryce formulated his analysis at exactly the time (during the Home Rule crisis in Ireland) that Dicey came up with his very different analysis.
Extracting from that, we can structure our discussion around four somewhat different forces in play: consent (what Bryce calls ‘the readiness to submit and follow’); material self-interest; individual and collective rights; and emotional attachment (what Bryce calls ‘sympathy’). Each of these can either strengthen or weaken the Union, depending in part on the degree to which the centre is trusted to act in the best interest of all the component parts of the polity in good faith in each of these areas. The crisis of the Union, I suggest, is that trust in the centre to do so has significantly disappeared with regard to each of these issues. The question for the centre, and for those who wish to preserve the Union, is whether it is willing and capable of restoring that trust before it is too late.
Not surprisingly, I’m thinking of this in the Northern Ireland context. By the way, Northern Ireland is not a ‘nation’, but let’s leave that to one side for the moment. Instead, I’ll focus on Brexit. Brexit has been a game-changer with regard to Bryce’s criteria: ‘consent’ has been weakened both by the original decision to implement the referendum result in the absence of consent by Northern Ireland, and then by overriding Unionist opinion in the adoption of the Protocol. Emotional attachment between the two parts of Ireland has been threatened in the interests of emotional attachment between Northern Ireland and England. The material self-interest of many in Northern Ireland has been reduced, and individual rights protected by the ECHR consistently challenged and undermined where possible, as part of the larger Brexit project.
What can be done? The genius of the Belfast-Good Friday Agreement was to recognise that by setting the issue of Northern Ireland in the broader European and island of Ireland contexts, the Union was capable of being strengthened, rather than weakened. It did this by addressing the full range of the forces that Bryce identified. The peace settlement went well beyond the issue of ‘devolution’, although that was one element in it. The problem has not been with the Agreement but with the extent to which the UK has been willing to take the logic of that Agreement to heart and follow it even when it went against short-term political self-interest in London.
The Agreement was also largely based on a significant degree of trust that both Ireland and Britain would honour their commitments without the need for heavy constitutional obligations having to be put in play. So, although the Agreement is in the form (in part) of an international treaty, there are no legally-binding dispute settlement procedures adopted. In retrospect, that trust turns out to have been misplaced, given the experience of Brexit, and any future settlement will have to be considerably more legally robust, I’m afraid, which leads into a discussion of how to constitutionally entrench whatever settlement is negotiated in future.
For me, the utility of the discussions we are having is to prepare the ground for a future unification referendum under section 1 of the Northern Ireland Act. The question that will be put will be a binary choice: unification between Northern Ireland and Ireland, or continued membership in the UK. We are therefore really talking about six nations, not five. As part of the run up to such a referendum, the Irish Government will have to formulate an offer as to what a united Ireland would look like, and we can anticipate that the UK government would want to indicate (a bit like before the Scottish independence referendum) what further reforms to the Union would take place in order to capture the hearts and minds of the significant group of floating votes who will determine the outcome (among whom I would count myself, by the way).
So, in light of this, what would such an offer look like? One issue seems set to dominate. If the Brexit mess continues (and there is no indication that it will not), a critical question will be how to resolve the conundrum of being out of the EU without wrecking the Northern Ireland economy and forcing a choice as to whether to be British or Irish as a binary choice. That means that any serious ‘offer’ by GB unionists must revisit whether the UK as a whole must come significantly closer to the EU in order to reduce the significance of the UK-EU border in Ireland, and the GB-NI border down the Irish Sea. Tinkering with the institutional dimensions of devolution just will not cut it, I’m afraid.
To end, I’d like to return to the role of trust. What is the relationship between trust and law, particularly public law? On the one hand, a traditional role of law is as a substitute for lack of trust – think of contract law. So, constitutional law could play a role in alleviating the current constitutional distrust between Northern Ireland and the centre. However, there is a problem here. To rely on constitutional law constraints requires trust, but trust in law, and trust that the various parts will actually follow that law, even when it is not in their immediate self-interest to do so. And at the moment, and with regret, it becomes clearer by the day that UK governments (or at least this UK government) cannot be trusted to obey the law.
And in this context, I could not disagree more with Michael, I’m afraid, in arguing that restricting Parliamentary sovereignty is not necessary. That was the case prior to 2016, but it is certainly not the case now. Whether the UK government will be prepared to keep the manner and form restriction of section 7A of the 2018 Withdrawal Act if and when Article 16 of the Protocol is triggered in the New Year. I have no faith whatever in current manner and form requirements if Parliamentary sovereignty is kept.
(Related topics—Putney Debates 2021：The Unity of a Nation)