The Choices on the Future Menu

Professor Brendan O’LearyBrendan O'Leary photo

Editors’ Note: This post is part of an IACL-AIDC Blog Symposium on unification of the island of Ireland. The Symposium is co-hosted by the Constitution Project @ UCC Blog. Selected posts will also be co-hosted by the UKCLA Blog. The full set of posts can be found here.

The specific future is never known, though possible futures can be mapped. In voting for Irish reunification in a future referendum, Northern Irish voters will expressly seek to terminate UK sovereignty in and over any part of Ireland and its territorial waters. They will not, however, be terminating the British citizenship rights of people born in Northern Ireland. That is known, but what model of Irish reunification will they be voting for?

The answer rests with the Government of Ireland, which has a major choice to make. Either it offers the North a set of principles to be embedded in the future Irish Constitution (through amendment or through a replacement constitution), inspired by and adapting South Africa’s transitional arrangements, or it offers a specific territorial model of reunification. The first choice, identifying principles, postpones the second choice, namely, picking one of the plausible territorial models of reunification.

Two of these models are variants on a unitary state; the third and fourth are federation or confederation.

Let us assume for analysis that one of these four models will be proposed by the Dublin government, after consultation or negotiations with elected Northern representatives, as well as after the use of other deliberative and consultative methods, including a possible citizens’ assembly.

The first we may call an Integrated Ireland; it resembles the traditional model of a united Ireland held by many Northern nationalists and Irish republicans, namely, “a 32-county unitary Irish Republic.” Under this model, Northern Ireland would be abolished as a political entity, but key provisions from the Good Friday Agreement would be carried over.  The sovereign Irish government would be obliged to conduct itself impartially across religions, nationalities and ethnicities; the same rights would have to be protected as previously pledged; and there would have to be cross-border institutional relationships between all these islands. The Irish state’s fundamental rights provisions would apply across the island, as modified by the European Convention on Human Rights and by European Union law.

The second model may be called the Full Transfer of the Good Friday Agreement. Northern Ireland would continue to exist, but not as a devolved entity inside the United Kingdom. Rather it would have a devolved government inside the now re-united Ireland, consistent with Article 15.2.2o of Ireland’s Constitution. Under this model, mutatis mutandis, the full package of institutional arrangements agreed on 10 April 1998, as subsequently modified, would transfer into a united Ireland, including the Northern Ireland Assembly and its power-sharing Executive. The border would retain legal and institutional significance, though it would not be a hard border, marking a sovereign demarcation. But it would still matter because the Northern Assembly would exercise authority inside Northern Ireland for those powers for which it was responsible. The Dublin Parliament would also exercise powers in Northern Ireland—roughly, those currently exercised by the London government. These arrangements could transfer without insuperable complication into a united Ireland, recognized by the Irish Parliament. The Northern Assembly would perform its existing functions, and its existing statute book would remain in place, though it would not cover areas where the Irish Constitution applies. Roughly speaking, these domains are where British authority now applies notably, the currency, the head of state, foreign policy, and external relations.

But in this model  what is called “the West Lothian question” in Great Britain would arise on a much bigger scale. As initially designed in the UK’s devolutionary arrangements of the late 1990s, Scottish MPs voted in the Westminster Parliament on laws that affected England and Wales, and indeed, Northern Ireland, but English MPs did not vote on matters devolved to the Scottish Parliament. Applying a similar arrangement would be a much bigger problem in a united Ireland, because Northern Ireland would be roughly one third of the population of a unified Ireland.

The third model would create the Federation of Ireland. One variation would reconstitute the four historic provinces of Ireland–Leinster, Munster, Connaught and Ulster–with the all-island federal government having key exclusive functions. Instead of the four historic provinces, a second variation would create new city-regions as federal entities; each region would have at least one big city with its surrounding suburbs and countryside. In one subvariant, Northern Ireland would remain as a large city-region with Belfast as its capital, organized with the transfer of the Good Friday Agreement institutions; in another, Northern Ireland, along with the South,  would be decomposed into several city-regions. Lastly, a two-unit federation could be created, with Northern Ireland and the existing Republic as the constituent units. All federal designs would necessarily differ from the variations of a unitary state (models 1 and 2 above) because sovereignty would be shared between the federal government and the regions (or provinces) in a new constitution.

The last plausible model of re-unification that might be proposed in the referendums is The Confederation of Ireland and Northern Ireland. A confederation is a union of member-states that delegate their revocable sovereignty to shared confederal institutions. The member states retain the right of secession. Confederation would imply the formation of a new political system in which the two member-states are joined in a common state, jointly establishing a confederal government with delegated authority over them for specific functions. In Ireland there has been (limited) discussion of the creation of an all-island confederation based on two states, a new sovereign Northern Ireland state, and the existing Republic of Ireland. These two states, possibly building upon and expanding the existing North-South Ministerial Council, would organize to delegate power and authority to bodies with all-island jurisdiction. Northern Ireland would retain the full provisions of the Good Friday Agreement, with the authority to modify its institutions in accordance with existing norms.

Though the four models briefly sketched here are the obvious institutional templates to complete Irish reunification in my opinion neither federation nor confederation is likely to be formally offered in a referendum—except in a significantly future tense.

Pragmatic, not just constitutional reasons, explain why a federal Ireland, however desirable, would be unlikely to materialize as an immediate proposal. Currently, there is little push to recreate historic Ulster, namely, a nine-county entity. Most Northern Irish Protestants prefer the six-county Northern Ireland to restoring the Ulster that their precursors chose to relinquish. In addition, voluntary federations usually evolve from pre-existing institutions of comparable status “coming together,” or they occur though a decision by an existing state to federalize “to hold together”. But the first condition does not apply in this case, and the second could only apply after Ireland unifies. When there is a reunification referendum, if there is a functioning executive in Northern Ireland, it will represent the institutional interests, identities and ideas, of a devolved unit, and it would be negotiating with the sovereign Government of Ireland, in which there has been no historical disposition toward federation, and no experience of devolution. It is therefore reasonable to suggest that federation is most likely to materialize only after an all-island constitutional convention convened for that purpose.

Confederation, by contrast, may be judged strictly incompatible with the Good Friday Agreement, at least immediately. That is because a proper confederation would involve a sovereign independent Northern Ireland state joining in treaty of confederation with the sovereign and existing Republic of Ireland. Neither Irish nor British governments have ever recognized Northern Ireland’s right to independence; it is excluded by any construal of the Good Friday Agreement; and there is little current demand for it. Unless the Irish Government were to declare it so, confederation is not an obvious “united Ireland,” given that the first step would involve Ireland’s recognition of a sovereign and independent Northern Ireland. Indeed, this option may conceivably violate Ireland’s Constitution: is it compatible with Article 3?

A last point: based on deliberative polling I have carried out with John Garry of Queen’s University Belfast that will be reported in the next issue of Irish Political Studies. One might expect that, obliged to choose, Ulster Protestants would prefer the full transferred Good Friday Agreement model to an integrated Ireland. That is what we expected before we conducted an experiment checking immediate preferences and later outlining the possibilities in depth. In the course of this experiment significant numbers of Ulster Protestants changed their minds. They reflected that power-sharing had not worked smoothly within Northern Ireland. Others deemed keeping the existing power-sharing institutions unappealing, because under them unionists would be a minority locally governed by (and with) a Northern nationalist majority. Some calculated that they would have better prospects of influence as a large minority (one sixth) perhaps unified behind a major political party or a coalition of parties in an Irish unitary state; that way they could be part of re-shaping all of Ireland. If such dispositions become strong among Ulster Protestants, then confederation and federation will likely be bypassed, as might preserving a devolved Northern Ireland within a unitary state.

Brendan O’Leary is Lauder Professor of Political Science at the University of Pennsylvania, and World Leading Researcher Visiting Professor at Queen’s University Belfast. He has been the Senior Advisor on Power-sharing to the Mediation Support Unit of the United Nations, is the inaugural winner of the Juan Linz Prize of the International Political Science Association for research on federalism, democracy and ethnic conflict, and is an Honorary Member of the Royal Irish Academy. A Treatise on Northern Ireland (three volumes) was published in 2019 by Oxford University Press.

 

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