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ON MONDAY, A deal between the EU and UK on the Irish border was scrapped because any kind of distinction between Northern Ireland and the UK was unacceptable to the DUP.
Arlene Foster insisted that there could be no “divergence which separates Northern Ireland economically or politically from the rest of the UK”. Hardline Brexiters like Jacob Rees-Mogg supported this stance, saying that any “distinctions” between Britain and Northern Ireland would be “completely intolerable”.
But what is this “constitutional integrity” of which they speak? The term suggests that there is an unbroken political uniformity across the United Kingdom. But there are already considerable legal and administrative differences between the constituent parts of the British State. And there always have been.
Considerable regional divergence
This was evident in the political union between England and Scotland that created Britain in 1707. Scotland had been an independent nation with its own monarchy for centuries.
The negotiations to unite the two countries under one government took place between two sovereign parliaments, and as such, complete political uniformity was never going to happen. From the very moment it came into existence then, Britain has had considerable regional divergence in legal and political affairs.
The first difference was in the relationship between Church and State. The Church of England (Anglican) and Church of Scotland (Presbyterian) became the national churches of both countries respectively. To this day, Britain still has two separate state churches.
There is a great deal of irony in the fact that the Presbyterians of Ulster have always had considerable contempt for Anglicanism, yet express deep devotion to the monarch who is the supreme head of the Anglican Church.
A separate legal system
More importantly, the Act of Union allowed Scotland to preserve a separate legal system from England, which remains in place today.
Some of these differences include the age at which one can be tried as an adult, how many people sit in a jury, how many jury members need to agree on a person’s guilt in order to convict them, and how many verdicts a jury can choose from. There are considerable points of difference between England and Scottish law, both civil and criminal.
Ireland was officially incorporated into the United Kingdom in 1801. There are some people who argue that after this union, Ireland was no longer a colony because it was an integral part of the British State.
The problem with this interpretation is that Ireland was governed differently from other parts of the UK. Ireland continued to have a Lord-Lieutenant, a Chief Secretary, and Under-Secretary, which other parts of the UK did not have, and a sizeable military presence was maintained in Ireland up until 1922.
The famine was an Irish problem
The Great Famine only served to further accentuate the sense of difference between Ireland and the rest of the UK. At the height of the catastrophe in 1847, the government in Westminster transferred all responsibility for relief efforts to Irish taxpayers, with predictable and disastrous results.
That same year, 15,000 famine refugees were deported from England back to Ireland, with thousands more being forcibly returned in the years that followed. In other words, from a political point of view, the famine was an Irish, not British, problem.
In 1920, a new administrative wrinkle appeared in the United Kingdom, with the creation of Northern Ireland. There certainly was something odd in the fact that the people who had campaigned vociferously against Irish home rule and championed an inviolable British union then turned around and accepted their own autonomous parliament.
But the logic was simple. Unionists have always feared that London would let them down in their hour of need, and a Belfast parliament would guarantee that they could not be forced into a united Ireland against their will.
Three separate legal systems
This meant that the UK now had three separate legal systems operating within its borders. And unionists were certainly content to allow differences on points of law between Northern Ireland and Britain to emerge.
In 1922, Stormont introduced the Special Powers Act, which gave the Northern Irish government enormous power to suppress dissent in the name of public safety. This included internment without trial, banning political publications, meetings, and parades, implementing curfews and removing “troublesome” flags.
Although introduced to tackle widespread violence in Belfast in 1922, the Act remained in force until 1973, and was used almost exclusively against members of the nationalist community. Such extensive restrictions on civil liberties did not exist anywhere else in the UK.
Meanwhile, in 1948, Westminster abolished laws that (1) only allowed ratepayers to vote in local elections, (2) gave some people multiple votes through company votes. But such laws were vital to maintaining unionist control of local government in Northern Ireland, so they remained in force there.
Considerable differences exist today
It is not surprising (although certainly ironic) that when Westminster introduced direct rule in 1972, this was met with furious unionist protests.
Even today, there are still considerable differences between Northern Ireland and the rest of Britain. Firstly, Northern Irish banknotes, although legal currency, are generally not accepted across the Irish Sea. Gay marriage and abortions are legal in Britain, but not so in Northern Ireland.
Everyone born in Northern Ireland (unlike the rest of the UK) is entitled to claim citizenship in another country as well (ie Ireland). It is difficult to conceive of a more dramatic constitutional difference between two different parts of the same State than that.
The DUP don’t want Northern Ireland to remain in a customs union with the rest of Ireland because they fear it is a slippery slope to a united Ireland. And it might be, although one could argue that the DUP’s own hardline policies could end up being the quickest road to their nightmare scenario.
But trying to hide behind the mythical “constitutional integrity” of the United Kingdom is frankly embarrassing. It is a figment of their imagination. The United Kingdom has been built on constitutional divergence.
Adding another one to the arrangement is far more likely to preserve, rather than undermine, Northern Ireland’s place in the union.
Caoimhín De Barra is Assistant Professor for Irish History and Culture at Drew University, New Jersey.