The escape hatch

Mike Nesbitt states plainly what should by now be painfully obvious. With Brexit, Unionism has shot itself in the foot, and many people are now quietly contemplating the previously unthinkable. But this has merely upped the ante for those who advocate constitutional change.

Appealing to nationalists, he said: “If you’re going to have a border poll…don’t let it be like Brexit. Before there’s a border poll it has to be spelled out in enormous detail – and truthfully, unlike Brexit – ‘these are the implications should you choose to vote for constitutional change’.”

Citing practical issues from the nature of the health service to the sort of police force which would operate after a vote for Irish unity, Mr Nesbitt said it was the responsibility of those arguing for an end to partition to explain what it would mean in practical terms.

To him I would say: the health service and the police force do not have to change immediately after a border poll, because constitutional change and institutional change are not the same thing. We can change the constitution without necessarily changing the bodies that operate within it, but the realistic options are constrained by concerns of efficiency, legitimacy and the cost of change.

There are some who argue that disruptive change is exactly what Northern Ireland needs, and I have sympathy for their position. It does sometimes seem that politics in NI is incurably dysfunctional, and this perception is the same one that motivates support for Direct Rule among Unionism.

But just as Direct Rule from London has been ruled out as lacking balance, so must Direct Rule from Dublin. That leaves a unitary state, asymmetric devolution, and (con)federalism as the possible models of a new Irish state. So let’s give the options a test drive.

The options

A unitary state is the traditional Sinn Féin position. Ireland should be one country, and therefore one jurisdiction. No region of the country should get special treatment. Northern Ireland would be absorbed and abolished. This has the benefit of conceptual simplicity and high principle, but at the cost of a highly disruptive transition. It would only be workable if the NI NHS was extended to the entire island, and it would amount to the unconditional victory of nationalism over unionism.

Asymmetric devolution would appear to be the SDLP’s position. They are on record that the GFA institutions should continue to operate after a border poll, but unless some distinction is made between devolved and non-devolved matters in Dublin, we are left with the West Lothian question: why should Northern Ireland TDs vote on matters that are devolved to Stormont? Given the relative populations of NI and the Republic, this would be even more offensive than the current imbalance in Westminster. Some animals would be more equal than others.

The Éire Nua model is the best known example of federalism – this would allow for provincial parliaments in not just Belfast but also Cork, Galway and Dublin, with a federal government sitting either in Dublin or some “neutral” location [Athlone? Really?]. But this opens a constitutional can of worms. A 6 or 9 county Ulster? Should Dublin be its own province? Does Connacht either want or need another layer of government? It would require the Irish Constitution to be completely rewritten.

We could also devise a much looser confederal arrangement whereby the existing parliaments in Dublin and Belfast would continue, but instead of a United Kingdom government above Stormont, there would be an island of Ireland government above Stormont and Leinster House. We already have cross-border institutions and a lightweight shared governance model – this could be beefed up with an oversight body (the Senate?) and the minimum set of powers (foreign affairs, defence, nationality and human rights) required to function as a sovereign state, together with extending the Supreme Court’s writ to the entire island. This would fall short of many people’s vision of a United Ireland, but it would be simpler to implement than any of the other options.

The path of least resistance

It is this simplicity of implementation that makes confederalism a powerful idea, because it could be up and running within a matter of months. It also has the advantage that it avoids baking in decisions that prejudge the future direction of change. If for example we were to have a border poll with a unitary state on the ballot, then we would have to first discuss and agree what an all-island health service would look like. If it was a federal state on the ballot then the balance of powers between the states and central government would have to be thrashed out in advance.

Such decisions would take time, but more importantly they would be made without the input of Unionism. Very few Unionists would engage with the process of designing a United Ireland proposal that they hoped to defeat. If and when they lost, then it would be too late to take part in meaningful discussions, as all the important decisions would already have been made. This would immediately compromise the legitimacy and stability of any future constitution.

With confederalism, very little would have to change on the ground immediately. What would change would be the governance mechanisms by which future change would be managed. We would not have to decide everything at once in an agreement the size of a doorstop. The specifics of a change of sovereignty could be voted on as an atomic change on its own merits, and then the practical decisions involving long-term structural development could be made as part of the normal business of government. If these structural changes were to prove controversial, as they surely would, the confederal state would be a viable model for government in the medium term.

Importantly, a confederal state would not rule out moving to one of the other models, such as a unitary or federal state, in the longer term. It could be implemented without creating any new bodies or institutions, by reusing the building blocks that the GFA has already given us. It would concentrate on addressing a limited number of issues of urgent concern: sovereignty, rights and citizenship. It would also be sufficient to solve the issue of EU membership. And here we return to the original point.

It is Brexit that is driving the current debate around constitutional change. If there were to be a border poll in the near future it would be dominated by considerations of EU membership and rights. A confederal state would be a SMART (specific, measurable, assignable, relevant, timely) solution to a tightly defined problem. In such a border poll the swing constituency would be Unionist Remainers and Others, so any solution must be tailored to appeal to that target market.

If Northern Ireland needs to bail out of the UK at short notice, a confederal state is the escape hatch.

(This blog was originally published on Slugger)

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