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Independence for Northern Ireland: Why and How?

Paul A Fitzsimmons. The Juris Press, Washington DC, USA: 1993. £10.00. ISBN 0 96373658 2

PAUL A FITZSIMMONS has no illusions about this work. ‘Some will object that it is not for me to recommend that drastic changes be made in a community not my own… I represent no country, no government, no political, social or religious organisation: I represent only ideas, and their merit, if any, is wholly independent of their source… others have already considered, and some advocate independence for Northern Ireland – by object has been to hone and add to what these people have done.’

For complete beginners who know nothing about it, you could do worse than read the first six chapters of this book. Mr Fitzsimmons gives a well-written, and given its complexity, a reas0nably concise history of the Ulster conflict from 1603 to the middle of 1985. Quite properly, the author urges that readers do not bog themselves down in too much in the historical background, important though that is. As he says, an agreement by everyone that his short history is a fair account would have no political effect. ‘History itself has no capacity to settle disputes; it can only suggest why problems have arisen and which paths ought not to be retrod.' The book is still available. Paul A Fitzsimmons is a practicing lawyer in Washington DC. His legal training is very evident throughout the second section of this book, ‘A Chance for Peace in Northern Ireland’. He has read widely judging by the extensive bibliography and he seems to have a good grasp, unusual in an American, of everyone's basic position although there is no indication that he has conducted any personal interviews with prominent individuals.

Before setting out his arguments the author firstly looks at what he calls the `non-solutions' which are direct rule, full integration, British withdrawal, unification with the Republic, a condominium, repartition, and attempted devolution within a UK context.

Direct rule is the system that we have endured more or less since 1972. It is tolerated by 55% of the people but is thoroughly undemocratic and has little scrutiny. The former Unionist Party leader, Jim Molyneaux's much-vaunted Northern Ireland Committee at Westminster, is a recent modification that does not undermine the author's verdict. So why not make direct rule more democratic by ruling Ulster just like the ‘Home Counties'; that is, `full integration'? The problem is that Ulster is not like any other part of the UK and its politics differ significantly from those in Great Britain. No British government is ever likely to take this option. The British would be more likely to dissolve the union and pull out abruptly. The author thinks it unlikely, given the risk of outright civil war, in present circumstances. However, he warns that no-one in Ulster should doubt that both the British government and most people in Great

Britain itself would be only too keen to leave given the opportunity. The barest majority of support for a united Ireland could swing it. ‘If Northern Nationalists some day outnumber Ulster Unionists and if they demonstrate their desire for the reunion of Ireland, the falsehood that ‘majority’ automatically equals `democracy' (an argument which Unionists today often rely upon) will become for Britain a handy excuse for speedily leaving Northern Ireland, regardless of the consequences.’ [Author’s parenthesis].

Unification with the Republic could be either a simple transfer of territory to the Leinster House regime or some form of central government with two local northern and southern subordinate governments. There could of course be a third form, as suggested by Desmond Fennell and some traditionalist republicans, where there would be subordinate governments for each of the four ‘historic provinces’ of Ireland. It doesn't affect his point that, ‘In terms of political goals, Northern Ireland's Unionists want above all else to remain outside Dublin's control.’ and that such an objective ‘may be impossible except through force of arms'. I would argue that the Provo campaign has been unable to break unionist and Protestant resistance to Irish unity. Only the full might of the British state be able to accomplish this!

Since this book was written the British government, while theoretically holding full sovereignty over the six counties, has gradually widened the `advisory role' given to Dublin in the Hillsborough Pact. This has been increased by the 1993 Downing Street Declaration and the recent document, Frameworks for the Future. Despite denials, we have in effect `joint authority', or a condominium through the back door. Such a formal arrangement would be extremely complicated, inherently unstable and most likely ‘to alienate everyone there’ [author's emphasis]. It would accurately be viewed as an interim solution. One community or other would be watching with either anticipation or apprehension for `the drop of the other shoe'. In the light of present developments this seems almost prophetic!

Perhaps then, instead of exercising joint authority, each government could carve up the six counties between them. Each council district could be given the option of remaining in the UK or joining Eire. Such an option would be of little use as owing to the unequal distribution of the populations there would still be a lot of disaffected people on the `wrong' side of the new border. To the author, this idea has little to recommend it even as a measure of last resort. There is of course another form of repartition, which the author has not considered, now familiar to us from the Balkan tragedy - `ethnic cleansing'. Perhaps when he was writing it was too horrible a thought to even contemplate, let alone advocate. Let's hope it's something that we will all be spared.

Finally, the author examines the option adopted by the British government between 1974 and 1982, attempted devolution within the United Kingdom. He looks at documents issued in the mid-eighties by the Unionist Party, the DUP and the Alliance Party and observes that like the now virtually forgotten 1984 New Ireland Forum report which called for a ‘united Ireland’, there is no measure of cross-community support for any scheme of tinkering with Northern Ireland’s constitutional position within the UK. Voicing an unrealistic demand cannot bring the goal any closer. He concludes that, ‘If Northern Ireland cannot, or will not, live happily either within the present United Kingdom borders or within any all-Ireland governmental framework, the only potentially workable option may be independence.’ In the following chapter, the author quotes John Hume as saying a long time ago that, ‘The Anglo-Irish problem can only be solved when the fears of the Protestant community are stilled.’ It's a pity that Mr Hume's actions since have done little to achieve this laudable aim. The author’s legal background comes out most clearly here in his proposed constitutional framework for an independent six-county state. He argues most eloquently that a presidential government similar to that in the USA or France would be far superior to more familiar Westminster and Leinster House models (and the former Stormont) where all executive and legislative power is in the hands of the party or group of parties with the most parliamentary seats.

This journal has often pointed out the weaknesses and the often-despotic nature of so-called ‘representative democracy’ or parliamentarianism. The worst contemporary example of parliamentary despotism is currently ‘democratic’ Zimbabwe where the ruling party after the last election holds all but two seats. What is the point in voting if your vote has no influence? No wonder that fewer than 40% of the Zimbabwean electorate bothered themselves.

A presidential system separates the administration of the State and the making of its laws; that is, executive and legislative functions. Each citizen would have an equal opportunity of electing Ulster’s chief executive as well as voting for a legislative candidate. The system prevents undue concentration of power in the hands of one group or individual. In Ulster, such a system would need to have a special type of anti-majoritarian check to maintain its fairness and stability. This would have a good chance of mitigating against sectarian tendencies. This was first suggested by the NUPRG document, Beyond the Religious Divide, in 1979. Would this be of any help if there were a return to a monolithic Protestant party?

To some extent a separate judiciary would guard against unfairness in government but it would not be enough alone. As an example, the author suggests that the siting of a block of flats or a new factory would not often present a major legal question. It is a discretionary decision of government. If one group changelessly controls both the executive and the legislature it will inevitably make decisions in favour of its own members or supporters. Witness the way in which the Tory party in Great Britain has behaved after sixteen years of virtually untrammelled power.

One method of preventing this is by allocating executive responsibilities to the major political parties in proportion to their strength in parliament. As the author points out, compulsory ‘power-sharing’ has never been popular among unionists and given the confessional nature of Ulster’s parties, such a permanent arrangement ‘institutionalises sectarianism’. The author suggests that the problem can be overcome, not in the executive, but in the legislature. He looks at the possibility of a two-chamber legislature. One chamber would be directly elected. The other chamber would be on a different social basis.

As examples he compares the old rubber stamp Stormont Senate, the largely ineffective Westminster House of Lords and the US Senate. In the latter system, the House of Representatives is based on single-member geographical constituencies whereas the Senate is based on the consensus of the States which each sent two senators to Washington. A bill has to have majority support form both houses before it can become law. This prevents the representatives from the nine largest states from running the whole country in their own interest to the exclusion of everyone else.

How then would an Ulster Senate work? A three-member Senate elected through PR, as in the present European assembly elections could have two problems. It could result in an entrenchment of Protestant supremacy or in Catholic stonewalling or bloody-mindedness that could destabilise the institutions of state. To get around this potential problem, the author proposes a transitional system of inviting an additional appointed senator from each of Great Britain, Éire and the United States. He admits that this would not be an attractive option and he would welcome any workable, effective check against majoritarianism, ‘It may be far better to attempt to develop and put to a vote an unattractive but workable constitutional framework which could be acceptable than to beat dead horses or do nothing.’

I am not happy with this suggestion, as I would like to see our people come to terms with one another without external intervention. It could be just as unstable to have for example, the northern Catholic senator and the Éire, US and UK appointed senators lining up as a permanent bloc. I do agree, that a Senate is necessary. Perhaps the second chamber should be based on an entirely different structure. Why not have senators chosen from among business, the trade unions, the guilds and professions and perhaps even the churches? Such a body would be far from a rubber stamp.

The author argues that it is essential for an independent Ulster to have a written constitution. It should guarantee that no-one can be deprived of his or her life, liberty or property without 'due process of law'. There must be equal protection of the law for all, protection of the right to freedom of expression, freedom of religion and no imposition of religious acts on the citizenry. Naturally, as a lawyer, he feels that those who believe that their constitutional rights have been breached must have an effective remedy to put right any wrongs.

In such a system the judiciary would have a twofold function, the present familiar one and a second one of testing the constitutionality of any new legislation or act of the executive. In the United Kingdom, Parliament is supreme so the judiciary can only test if the letter of any law has been met. It cannot test the fairness of any law or action of the British government. If parliament voted to slay every firstborn child in Scotland no court could overturn its decision.

Judges in the new Ulster must be of equal status to the executive and the legislature and independent from them. Apart from serious impropriety, they must not be subject to removal and free from any improper political control. This would give them impartiality in matters of law in which everyone could have full confidence. The Constitution, once agreed, must only be changed in the most exceptional circumstances, perhaps by special majorities of both chambers of the legislature confirmed by a referendum. As the author points out, any protections installed for today's majority could also serve to protect any other minority in the future.

Citizenship is a tricky area in a place where strong loyalties run deep. The author looks at the NUPRG document, which advocated that only those who hold no other citizenship should be permitted to become citizens of the new state. He, like myself, accepts the theory behind this, but argues that in practice the strong psychological ties, which sections of our people hold for Great Britain or the Republic, will not initially be easily broken. I accept his point here. Individuals must be able to identify with the new order without feeling forced into a corner.

He suggests granting all adults a choice of ‘full citizenship’ or ‘permanent resident’ status at the time of independence. Those who give full allegiance to the new State would have full citizenship rights, whether or not they chose to maintain another citizenship. Those who chose to maintain their existing citizenship without accepting Northern Ireland citizenship could become ‘permanent residents’. Such persons would have full legal rights and obligations, except perhaps in regard to holding public office or some forms of voting. A third status could also be introduced for aliens who are temporary or permanent residents. Their civil rights would be protected. However, such aliens' voting rights might be restricted and they may not be able to become civil servants or member of the armed forces.

Would this not work in a UK context then? The author says no, because any such arrangement would mean that all power did not lie in the hands of the Ulster people but ultimately at Westminster.

On the face of it the author puts across a very good argument that the idea of implementing a Constitution for an independent Northern Ireland, which could transform our society beyond recognition, is at least feasible. So far, so good. How can it be done?

The author rejects the idea of having a plebiscite regarding the general idea of independence. he argues that any vote on independence must be informed - not left to vague perceptions of it being either a ‘half-way house to a united Ireland’ or a new ‘ascendancy’. Britain must make the first move.

He suggests that the British government announce that it will commission a new constitution for an independent Northern Ireland and a call for submissions from all parties. He quotes Dr Stanley Worral as saying, ‘Someone else must make the rules by which the elected representatives play. But how could that be democratic? ... If a fair and just plan were drawn up by any body, it could be put to the people in a plebiscite.’ No party could boycott or disrupt the proceedings. An independent third party tribunal would evaluate the work of the drafting committee. Any speculation on the border's integrity could only be destabilising and unhelpful. The author argues that Britain at the outset should make it clear that the territory of the proposed independent state would retain the entire six-county area.

The Irish Republic would have an important role to play in support of Great Britain. Firstly, Éire could help by deleting Articles 2 & 3 from its constitution, perhaps replacing it with some vague aspiration for some eventual mutually agreeable coming together of the two states. Secondly, as he explains, Éire could veto Ulster's admission to the EEC; which given that its trade is largely within the EEC (mostly with Great Britain) could cause difficulties for the new state. He suggests that the Republic should agree to allow Northern Ireland to enter the EEC and suggests a novel vote-sharing method to forestall possible objections from other member states. Has Eire given up ‘kneejerk revanchism’? Mr Fitzsimmons thinks that, despite their rhetoric, it might be possible for the Republic’s leadership to prove that they are more concerned with everyone's welfare rather than the presence of the border. I suspect that the answer to this might depend on the balance of the parties in Leinster House at the time of the negotiations.

Britain would also have to give formal recognition of the new state and sponsor it for EEC membership but that would be the minimum contribution given its primary responsibility. The author suggests that most of this help would be economic in nature. He suggests that this could be for a thirty-year period in three stages. In Stage One it would be in direct grants equal to the present subvention plus special reconstruction aid. In Stage Two the subvention would be maintained less the additional aid. In the third stage only a fraction of the subvention would be given. Britain, he argues, might be persuaded to be so generous as it would improve relations between neighbours in these islands. Perhaps, but I wouldn't count on it!

There are other ways in which Great Britain could help the new State. The author suggests that Britain could forgive all existing loans, allow Ulster citizens the services of Britain's embassies abroad, allow BBC radio and TV to continue to be received in Northern Ireland. Britain should make it clear at the outset that it seeks the agreement of at least 68% of those voting before implementing the new constitution. If it gains more than 51% but less than 67% the British government should make it clear that Ulster would not be expelled summarily from the UK, perhaps retaining the present ‘direct rule’ system.

The author admits that the drafting process could result in failure. However, if the reviewing tribunal's terms of reference was merely to see if the draft constitution could, subject to popular approval, bring about viable democratic government. If this were the case, it would be up to Britain to implement it, by Act of Parliament and through an international treaty between Britain, Éire and the United States. It is important that the agreement of Éire should be obtained where this is reasonable but why the US should have any direct part in this is a mystery to me. I would say that it would be more reasonable to involve the EC than the US.

There is no doubt that the key to any implementation rests with the British government. The author quotes former NIO Secretary James Prior as stating in 1984 that, ‘it will be a slow haul to something rather better.’ As nobody knows or will state publicly what this ultimate goal is, most folk will form the opinion that it is something they don't want. That's precisely what is happening today with the deliberate waffle of the Framework document. Fitzsimmons argues that the time for fiddling about has ended and that bold steps are required from Britain. I think that there is little hope of expecting the government of Great Britain to unilaterally ‘do something’. As always in its relations here the British government's option has been to put Ulster on the long finger. There's a lot of campaigning necessary to make the government sit up and take notice. In a postscript the author seems to realise this. ‘When all is said and done, if the people of Northern Ireland want the independence option developed further, perhaps their best hope is to make their own voices heard: openly loudly and often. ... Formal development of a workable independence proposal will not be gotten underway without conspicuous action by those who truly want peace in Northern Ireland.’

This thoughtful book has convinced me that an independent Ulster state would not be an impossible undertaking. Would it succeed? That would depend on the attitudes of the churches, the political parties, the paramilitary organisations and the people. However, it is at least possible that many folk - Catholics and Protestants - could vote for an independent Northern Ireland or the basis that "This is not exactly what I want, but I believe is something we can all live with." It does seek to give a frank answer to those questions which opponents and honest doubters constantly raise about independence.

David Kerr with Patrick Harrington

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