When does lack of consent become a veto?

The notion that a lack of consent can constitute a veto can be traced back at least to the Petition of Concern, and abuse thereof. Frequently and predominantly, this has been triggered at the hands of the DUP in an effort block various bills and motions through the years with varying success. The wide-ranging substance of which has included, but is not limited to, same-sex marriage and integrated education. Devil’s advocates may well argue that all parties have abused the Petition of Concern from time to time, but the numbers are clear – from 2011 to 2016, for instance, the DUP signed 86 petitions of concern, as compared to the 29 petitions of concern signed by SF and the SDLP.

The instinct that manifests itself in this disproportionate abuse of the Petition of Concern is arguably the same as that which now manifests itself in the DUP’s Protocol machinations: The desire for what “is effectively a veto power.” But a veto over what? Not only a wide range of bills and motions, as highlighted by previous Petition of Concern abuse, but increasingly any changes to Northern Ireland’s constitutional status too, as hinted at by Jeffrey Donaldson in recent months. Writing for Unionist Voice in March, for instance, he “suggest[ed] an additional provision” to Section 1 (1) of the Northern Ireland Act 1998 entailing that:

“Any” (post 1998) change to Northern Ireland’s constitutional status within the United Kingdom should require the consent of a majority of the people of Northern Ireland voting in a poll held for that purpose or should be subject to a cross community vote of the Northern Ireland Assembly.” (Unionist Voice, March 2022, emphasis added)

The “or” here is revealing. Perhaps an “and” would have made more sense in this context? Perhaps not – it would seem he desires one or the other, but which one? That is ultimately for Donaldson to answer. Taking Donaldson at his word, however we must ask: Under what circumstances would or should there be a cross community vote on Northern Ireland’s constitutional status within the United Kingdom? Before “a poll [is] held for that purpose”? Afterwards? Concurrently? In the absence of such?

Whatever the case, we should not underestimate the scale of the change sought after here in this suggestion. Presently, the only provision for changing the North of Ireland’s constitutional status is a Border Poll, to be called at the discretion of the NI Secretary of State and decided by a simple majority, as outlined in the Good Friday Agreement. It is hard not to conclude that by throwing a “cross community vote of the Northern Ireland Assembly” into the equation, that this is the preferred alternative.

Yet it is worth pointing out the obvious here that Unionist MLAs would be no more likely to vote for a serious change to Northern Ireland’s constitutional status in the Northern Ireland Assembly, than Nationalist MLAs would be to vote in favour of Northern Ireland’s current constitutional status if that was put to vote in the Northern Ireland Assembly. However, there is no indication that the status-quo would be equally subject to a cross-community vote in the Assembly – it is taken as a ‘given’, and only ‘change’ can be voted on. So, is it perhaps fair to assume that the desire for this ‘additional provision’ is fundamentally motivated by the thought that a cross-community vote in the Assembly would almost certainly return a result that a Border Poll would not, and that the former would therefore be preferable?

Perhaps it would be uncharitable to assume so, but I am not sure we can rule it out. In any case, this is not the first time that amendments have been floated as to how Northern Ireland’s constitutional status might be changed – and Unionism does not have a monopoly on floating those amendments, either. Seamus Mallon, for instance, made a not dissimilar suggestion: “parallel consent” [in the event of a Border Poll] involving a majority of both unionist and nationalist voters. Yet supposing we have our first Border Poll and a majority of Nationalists vote in favour of Irish Unity – and therefore tacitly (or explicitly) vote against the status-quo – doesn’t the logic therefore follow that there is no longer “parallel consent” for the Union either? What happens then? It seems this kind of logic is never taken to its proper conclusion.

Nevertheless, Mallon’s suggestion is instructive insofar as it highlights that consent lies at the heart of the veto matter. This is especially evident in ongoing Unionist opposition to the Protocol and Irish Sea Border, where the lack of Unionist consent is frequently highlighted – though the lack of consent from among Nationalists and Others here for the Brexit that spawned them is a rather more neglected point…

But did the Good Friday Agreement, which is so commonly appealed to lately, ever intend for a lack of consent to function as a kind of veto in this way? The Good Friday Agreement mentions ‘consent’ on eleven occasions. Eight of these pertain to constitutional change, one in relation to key decisions (Eg. Election of the chair of the Assembly), one in relation to the British State being bound by the Agreement, and one in relation to Special Committees determining whether a measure or proposal for legislation is in conformity with equality requirements. It is clear that consent, as delineated in the Good Friday Agreement, has a clear and overarching emphasis on the specific matter of constitutional change – and it makes no bones about the fact that:

“[It] would be wrong to make any change in the status of Northern Ireland save with the consent of a majority of its people” (Emphasis added)

Not a majority of its Unionist people. Not a majority of its Nationalist people. Not a weighted majority of either or both. Not parallel consent. But its people. All of them equally. A simple majority of its people. As has often been said, if 50%+1 is sufficient to maintain the Union, it is sufficient to end it. Donaldson remarked in a recent episode of UTV’s View from Stormont that he:

“[Can’t] understand why a Unionist party like the UUP, is standing side by side with Sinn Féin and saying there shouldn’t be a Unionist veto.” (Emphasis added)

It would perhaps be fair to counter that in saying it is hard to understand why anyone who calls themselves democratic would wish to alter the parameters of constitutional change as outlined by the Good Friday Agreement – never mind twisting the letter and spirit of it to have a permanent community veto on any and all other matters either.