Reform of a constitutional fundamental: the principle of cross-community consent and Northern Ireland’s governance

Abstract

This article takes a critical look at calls for reform of the principle of cross-community consent (the consent principle) as it operates in Northern Ireland’s post-1998 constitutional order. The consent principle requires that nationalists and unionists exercise power in a way that reflects a significant level of agreement from both communities’ representatives. I argue that intensifying calls for significant moderation of the consent principle within a wider debate on reform of the Belfast/Good Friday Agreement framework cut against constitutional principle and, as currently framed, do not reflect political reality. Further, the article criticises the significant degree of unilateral reform – that is, amendment driven by the United Kingdom Government without cross-community support from the main Northern Ireland political parties – in recent years of the procedural devices embodying the consent principle. In doing so, I consider how varying interpretive methods have been applied by the courts in recent cases concerning the Belfast/Good Friday Agreement. A mix of positivist interpretivism and broad purposivism has combined to create contingency in constitutional principle. On the application of either a textualist or realist approach to the consent principle, it ought to be clear that, at a minimum, its abridgement requires the support of political representatives on both sides of the sectarian divide. Moreover, placing those disputes in the hands of the judiciary reduces the consent principle’s reforming power: the doctrine, properly understood, operates as more than merely a regulatory constraint because of its capacity to enlarge Northern Ireland’s powers of self-government.