Brexit will likely increase support in Northern Ireland for a united Ireland. The Brexit process, however, illustrates the difficulties of using a popular vote to mandate a radical but poorly defined change of constitutional direction. Ironically, the dynamics unleashed by that process may lead to Irish reunification being approached in the same way, writes Oran Doyle (Trinity College Dublin).

The UK’s departure from the EU will likely increase support in Northern Ireland for a united Ireland. The Good Friday Agreement allows for unification to be considered in a manner eerily reminiscent of the Brexit process, in which discussions on the shape of a united Ireland only occur after it is mandated in a border poll in Northern Ireland and a concurrent referendum in the south.

This would be problematic because a united Ireland could be structured in very different ways. Electorates north and south would make their choice in ignorance of what would ultimately unfold. The British and Irish governments would be mandated to agree a united Ireland but the votes would provide no guidance on how to design its constitutional structure.

The first challenge is whether devolution and compulsory cross-community power-sharing should continue in Northern Ireland after unification. Although an essential part of the Good Friday Agreement, this has arguably contributed to political polarisation rather than reconciliation.

If replicated in a united Ireland, devolution would produce a supercharged version of the West Belfast question: why should elected representatives from the north have a vote on issues in the south (e.g. education policy) when southern representatives would have no vote on the same issues in the north? The current solution in the House of Commons, ‘English votes for English laws’, could be adopted in Dublin: only southern members of parliament could vote on laws exclusively affecting the south. But this would require an Irish government to construct a dual legislative majority in the lower House: all-island and south-only. With 30 per cent of members coming from the north—far higher than the 18 per cent of MPs at Westminster spread across three devolved regions—this would be a difficult ask, undermining government stability.

There is also an open question as to whether Ulster Unionists would want devolution to continue. Being a junior coalition partner in an all-island government with Fianna Fáil or Fine Gael might be preferable to being locked in as a perpetual minority to a Sinn Féin-led administration for a devolved Northern Ireland. If devolution were discontinued, unamendable constitutional provisions protective of British identity could be considered as an alternative means of meeting Unionist concerns.

The second challenge is to articulate an account of the Irish people that does not exclude those who identify as British. The Preamble to the Irish Constitution invokes an Irish people that struggled for independence, implicitly defined in opposition to the British. The place of Ulster Unionists within this account of the Irish people was never resolved. The genius of the Good Friday Agreement was to allow us live with these ambiguities. Reunification, however, would require us to confront and resolve this question, providing a new account of who the Irish people are.

The third challenge is to address those symbolic choices in the Irish Constitution that tend to exclude Ulster Unionists: the national flag of green, white and orange; the status of Irish as national language and first official language; Irish-language titles for the most prominent state officers, such as the Taoiseach; the identification of the British Monarch as ‘an organ, instrument, or method of procedure.’

The fourth challenge is the legal differences between Northern Ireland and the rest of the island. From controversial social issues—such as same-sex marriage and abortion—to everyday law—such as how ‘cross-border’ contracts would be made and enforced—there must be either harmonisation or principles and processes for managing divergence.

Meeting these challenges would require layers of amendments to the Irish Constitution. While opinion polls currently suggest two-thirds approve of reunification, the avoidance of these issues to date casts doubt on the robustness of that support. Ireland’s recent Citizens’ Assembly provides one model for the exploration of constitutional difficulties in a way that builds confidence prior to a public vote.

The difficulty is that the challenges of unification require compromises with Ulster Unionists. But Unionists, legitimately opposed to a united Ireland, have strong incentives not to engage in any discussions about the shape of a united Ireland prior to a border poll. How then can we avoid the Brexit trap of a political mandate to deliver radical but largely undefined constitutional change?

One possibility might be a border poll in Northern Ireland concurrent with a constitutional referendum in the south. The southern referendum would redefine the national territory to include Northern Ireland but would then also prescribe (a) interim constitutional arrangements and (b) a set of more extensive constitutional changes that would apply five years later in default of (c) a new constitution being enacted by plebiscite on an all-island basis.

The interim constitutional arrangements would preserve the status quo within Northern Ireland as much as possible, continuing both devolution and compulsory power-sharing but swapping the roles played by Dublin and London.

The subsequent default arrangements would effectively be the Dublin government’s blueprint for a united Ireland, ratified by the people of southern Ireland at referendum. The Dublin government would have strong incentives to make these default arrangements attractive to Ulster Unionists as the electorate in Northern Ireland would vote in the border poll with knowledge of what constitutional arrangements would apply after the interim period.

Within the interim period, however, there would be an opportunity for the people of Ireland, a newly formed political community, to enact a new Constitution for themselves. The text of any new Constitution would require the approval of the British Government, as a guarantor of the interests of the unionist community, before it could be put to an all-island plebiscite. This would offset the unfair risk of Unionists being subjected to a new Constitution less favourable than the default arrangements proposed prior to the Border Poll.

This process would achieve the twin goals of allowing the northern and southern electorates to vote in a border poll and concurrent referendum with knowledge of how a united Ireland would function, while opening up space for a new all-island political community to choose its own constitution. It does not guarantee, of course, that all parties would participate in these processes in good faith; but it at least provides a pathway towards genuine engagement on difficult issues. A special constitutional court—perhaps comprised of members of the Irish Supreme Court and Northern Irish Court of Appeal with an independent chief judge—would be required to adjudicate on these transitional constitutional arrangements.

My own view is that it would be preferable to continue with the compromises of the Good Friday Agreement rather than move towards a united Ireland. However, the political dynamics unleashed by Brexit may make a border poll inevitable. Planning for that eventuality should begin now.

This post represents the views of the author and not those of the Brexit blog, nor the LSE. Image by MD111Some rights reserved.

Oran Doyle is Associate Professor at Trinity College Dublin. He has recently published The Constitution of Ireland: A Contextual Analysis (Hart, 2018) and ‘The Silent Constitution of Territory’ (2018) 16 International Journal of Constitutional Law 887

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