The Blanket

The Blanket - A Journal of Protest & Dissent

The Fundamental Problem Of
Non-Constitutional Law
The Northern Ireland Question

Paul A. Fitzsimmons • March 7, 2003

It is entirely possible to construct a wall by starting with a course of bricks laid directly upon earthen ground. Millennia of accumulated knowledge and experience tell us, however, that soils often settle and shift over time and that, as a result, such walls will tend to buckle, crack, and crumble, all regardless of masons' skill or mortar's strength. Hence the near universal use of more solid foundations in the construction of buildings.

Similar considerations seem to apply as well to the structures of political societies.

Scores of millions of people around the globe know that the United Kingdom of Great Britain and Northern Ireland has no written constitution, but perhaps fewer appreciate that, in a strict and important sense, the U.K. has no constitutional law at all.

The term "constitutional law" is often heard describing certain portions of U.K. law, but it is in actuality used there merely regarding and describing the constituent elements of, and relationships within, its government. Some less high-sounding phrase like "governmental operations law" - a notch up from what Americans call "administrative law" - would be more descriptive and more accurate.

At first blush, there might seem no great substantive difference between these concepts of "governmental operations law" and "constitutional law." However, the huge difference actually lying between them may help explain the persistence of problems not only in the Good Friday Agreement itself but also in the "Northern Ireland question" as a whole.

"Constitutional law," as the term is used in the United States and in many other countries, is a category of law described in contradistinction to "ordinary law."

As that latter term suggests, ordinary law may be enacted or changed through ordinary law-making procedures. In the U.S., that typically entails either (a) passage of a bill through two legislative chambers by majority vote in each and subsequent approval by the executive or (b) the legislature's overriding, through supermajority vote, the executive's veto of such a bill.

Constitutional law - in the strict, and more useful, sense - is that truly fundamental law which requires a significantly higher level of support for change. (The German word for constitutional law - Grundgesetz - literally means "ground law," akin to the building analogy suggested above.) In terms of U.S. federal law, the support needed to effect constitutional change is two-thirds approval in each house of Congress followed by ratification in at least three-fourths of the individual states. Thus, currently, at least thirty-eight separate legislatures within the United States need to approve any amendment to the U.S. Constitution, or else the proposed amendment will fail; in over two hundred years of reasonably successful operation, that Constitution has been amended only 26 times, the first ten of which amendments formed, in the 1790's, America's Bill of Rights.

The key point is this: all so-called "constitutional law" in the U.K. is, in fact, merely "ordinary law" as described above. As a result, any and all U.K. law can be undone or redone, at any point and through ordinary legislative processes, by the Westminster Parliament. On this same subject, I wrote a couple of weeks ago the following to a correspondent in Northern Ireland:

Almost unbelievably, roughly eight hundred years on into this process, the Brits are still trying to figure out what their "upper house" ought to look like. As with changes in motor car speed limits and parking violation fines, the "upper house" issue will be decided on a simple (and, I repeat, simple) majority basis.

As a result, nothing is ever firm or final in your jurisdiction. Everything is will of the prevailing majority wisp.

Admittedly, this "will of the prevailing majority wisp" system has, within Great Britain itself, long worked adequately. Notwithstanding the fact that its governmental structures have been built on "bare soil" rather than on the more solid foundation of genuine constitutional law, the social ground in Great Britain has been sturdy enough, and homogeneous enough, to accommodate its "simple majority" legal structures. "Governmental operations" holes that crop up there from time to time are just patched up by new ordinary legislation or ignored entirely.

The social ground in Northern Ireland, though, has always been quite different.

Perhaps wrongly, people in Britain and Ireland often regard "trust" as the major deficiency in Northern Ireland's current political environment. If, though, their view is correct, the non-constitutional nature of U.K. law is, inevitably, a considerable impediment to increasing that trust.

In any year, decade, or century, Northern Ireland political parties deal with a London government which is inherently unreliable, not through the fault of political personalities but instead through the fault of the U.K.'s non-constitutional legal system itself. The Westminster Parliament ever has the well-understood legal authority to act as it sees fit.

For example, the Republican leadership, in the aftermath of the recent two days of talks in Belfast, has claimed that current problems in the "peace process" stem largely from promises made by Britain in the Good Friday Agreement but which are yet unfulfilled. Yet, in theory, those promises might instead simply be flatly renounced, and any assertion by Republicans that they had been conned would be to no legal avail: there would be no "constitutional" recourse available to them since, if pressed, the British government could simply pass new - and ordinary - legislation approving its renunciation of such promises, and British courts could then only uphold the newly stated will of Parliament.

Along somewhat similar lines, the Westminster Parliament, during Peter Mandelson's watch as Northern Ireland Secretary, unilaterally decided to grant the British government the explicit legal power - not found within the Good Friday Agreement, entered into with the Republic of Ireland et al. - to suspend devolved governmental operations under the GFA as it might thereafter see fit. Over some local objections, the British government has in fact seen fit to wield those suspension powers four times during the past four years, most recently beginning in October 2002 and continuing as of this writing. As a result of recent negotiations, that self-approved suspension power may itself be soon suspended - at least temporarily - through brand new Westminster legislation. Doubtless, though, that power will be revived if and when, in the fine judgment of any sitting British government (i.e., at the "will of the prevailing majority wisp"), the commonweal would be better served by its resurrection.

Frankly, and rather unsurprisingly, the overall relationship between London and Belfast tends to resemble that of a parent and a four-year-old child. Promises made by the parent, or exacted from the parent by the child, may be fulfilled, likely at some point convenient to the parent. However, the parent may instead make overly ambitious promises merely hoping to gain an immediate period of quietude and trusting that childish desires will likely soon be forgotten. Or, the parent may determine that, for "the good of the child" or in light of "intervening changes in circumstances," it is better that certain promises made remain unkept. If, though, for whatever reason the parent's promises are unfulfilled, the disappointed child's response may effectively be limited to screaming for a relatively brief period, slamming a bedroom door, and crying himself or herself to sleep.

For essentially these reasons, political groups in Northern Ireland will inevitably have questions and concerns about what "Mother Parliament" will do - in her virtually unfettered "governmental operations" discretion - regarding circumstances either readily foreseen or yet unimagined, and those questions and concerns can but cast a pall over efforts to improve that socio-political situation. A few additional examples of this problem may suffice to show its immediate significance.

Republicans are now voicing vehement objections to, and Northern Nationalists substantial doubts regarding, plans that minimum "cross-community" voting requirements - ostensibly "enshrined" in the GFA - be abandoned in favor of a "sanctions" device geared to make it easier to toss Sinn Féin out of the province's devolved Executive. Republicans may fear, for instance, that reactionary cliques in the security forces might squirrel away blocks of Semtex so that "searches" of West Belfast pubs and garages would readily yield the stuff of front-page news stories, thereby causing political difficulties for Sinn Féin.

Beyond that fear, though, Republicans might have other related worries, such as this: regardless of whether Sinn Féin nudges out the SDLP in the 29 May 2003 election (use pencil, though, in marking calendars), (a) if the DUP therein outpaces the UUP and (b) if the DUP then agrees to form a government only if Sinn Féin is excluded therefrom, then (c) will Mother Parliament be tempted to jettison additional "enshrined" GFA principles like "d'Hondt" in order to try to keep the Assembly and Executive running? (On the other hand, if - as it has said it will try to do - the DUP in that situation successfully blocks the formation of any GFA Executive, holding out for a renegotiated political structure, where would that leave the most recent Republican political sacrifices?)

The DUP ought not, though, to be too sanguine - and likely is not - about any sanctions-related precedent involving an abandonment of "cross-community" voting requirements, in light of that party's apparent hopes to secure a Unionist-camp majority in the next election and throw a "spanner" into the GFA's works by voting against all proffered First and Deputy First Minister candidates. Reminding people of the sanctions precedent, Mother Parliament might at that point further abandon current "cross-community" voting requirements under the GFA, thereby allowing another UUP/SDLP First Minister and Deputy First Minister team, or a new UUP/Sinn Féin pairing, where DUP Assembly members outnumbered UUP members.

Relatedly, if the Alliance Party is not true to Leader-as-of-this-writing David Ford's word, whatever few remnant Assembly members that party may have after the next election might again redesignate themselves as temporary "Unionists" in order to help stack the Executive deck in favor of the UUP. Likewise, SDLP and even Sinn Féin Assembly members might be called upon towards that same end to "share the pain" by redesignating themselves as "Provisional Irish Republican Unionists," a most definitely non-proscribed group.

Even the UUP, it might be observed, has directly felt the sting and embarrassment of Mother Parliament's being less than fully true even to her written word:

La donna è mobile
qual piuma al vento,
muta d'accento
e di pensiero.

È sempre misero
chi a lei s'affida,
chi le confida
mal cauto il core!

The complete absence of genuine constitutional law in the United Kingdom will tend to spark such concerns about the future under the GFA and, specifically, about Britannia's all too often waiving agreed-upon and even "enshrined" rules in efforts to keep that leaky Agreement afloat.

Against this background, perhaps an overall answer to the difficult Northern Ireland question might be found by trying to figure out how a genuine constitutional structure could or might be constructed and implemented so as to address these issues directly and honestly.

In any case, though, I suggested six weeks ago the following in article published in The Blanket:

Sinn Féin could probably decide now to "jump first," to get the IRA to disband permanently, to convince the UUP to return to devolved government under the GFA, and to hope that all would thereafter turn out well. Moreover, Sinn Féin could do so notwithstanding the fact that the party has given Mr. Blair rather backhanded praise "for his 'frank admission' recently that the Government had not honoured all its commitments under the Good Friday Agreement" (Press Association, 25 January 2003). And maybe all would indeed work out for the best were Sinn Féin and the IRA to take that final leap of faith.

If, by such Sinn Féin steps or otherwise, the parties in Ireland and Britain are able to wrestle the rather miserable GFA scheme back onto its wobbly tracks, I would wish the people of Northern Ireland only the best of luck - and they may need some - in their renewed effort to keep that Agreement working for much longer than the time it takes for an open bottle of champagne to go flat, and I would hope that all my criticisms of the GFA are then soon proven utterly unfounded.

Conversely, however, if the GFA is shortly relegated to history, people might consider Brian Walker's view that "[t]he real message of Hillsborough" (Belfast Telegraph, 6 March 2003) is that "no one else wants to rule us directly - not London, not Dublin. If it all founders again, the two Prime Ministers won't put up with direct rule again for ever." (But what other sort of governance for the region would, then, be feasible?)

Mr. Walker also therein quoted Mr. Blair, on 5 March 2003 in the House of Commons: "'Let me spell it out again. There is no way this Agreement is going to be renegotiated. It will either be implemented or the people of Northern Ireland will not see the peaceful future we all want'."

Praise be to Mr. Blair for recognizing and formally stating that "[t]here is no way this Agreement is going to be renegotiated"! If still the GFA cannot be made to work by this late date, it should finally be put out of its long misery.

But were Mr. Blair at that point interested in an alternative to phlegmatic acquiescence in a failure to achieve "the peaceful future we all want" for that region, I would respectfully, albeit immodestly, recommend to him a small article entitled "A 'Plan B' for Tony Blair and Northern Ireland" (The Blanket, Belfast: 16 February 2003). One of the main thoughts behind that article, and indeed behind this one, is that - much, much more than "trust" - what Northern Ireland sorely lacks is a well-defined and well-founded set of fundamental political rules to which Northern Irelanders might broadly subscribe and through which they might then markedly improve their shared lot.

Washington, D.C. lawyer Paul A. Fitzsimmons wrote Independence for Northern Ireland: Why and How (1993) (



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The Blanket - A Journal of Protest & Dissent



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Index: Current Articles

9 March 2003


Other Articles From This Issue:


The Fundamental Problem Of Non-Constitutional Law Vis-À-Vis The Northern Ireland Question
Paul Fitzsimmons


To: George Bush and Associates
Karen Lyden Cox


An Open Letter
Vincent Doherty


Stupid White Men - A Review

John Nixon


Avoiding Conspiracy Theories

Anthony McIntyre


6 March 2003


Disobedient Republicanism
Anthony McIntyre


Interview With Bernadette McAliskey
Breandán Morley


Why We Should Legalise Hard Drugs
Henry McDonald


Day X & Beyond

Davy Carlin



Brian Mór




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