The constitutional future of the island of Ireland (Seanad submission)

The following is a consolidated document combining my written submission and subsequent spoken remarks to the Seanad public consultation committee.

My name is Andrew Gallagher. I was born in Northern Ireland and grew up in a predominantly Unionist community, but I have lived south of the border for over fifteen years. I work as an IT manager and am also an occasional political commentator at Slugger O’Toole.

I would like to see three main unanswered questions addressed before we get too involved in the details of constitutional change:

1. How do we unpick the Constitutional Trilemma?

  • Constitutional change requires significant preparation
  • Lack of broad engagement risks the legitimacy of the state
  • The opponents of a proposal will not help to plan their own defeat

The first choice of unionists will of course be the maintenance of the Union. It is not reasonable to ask unionists to pick their second choice scenario while their first choice is still available. On the other hand, it would be dangerous to leave the island in a constitutional vacuum while a potentially lengthy consultation process remains unfinished.

A transfer of sovereignty without significant institutional change in the first instance could provide the balance between stability and legitimacy, pending the negotiation of a more comprehensive settlement.

2. How do we avoid creating perverse incentives?

  • A decision to abolish Stormont in the future incentivises its collapse now, because constitutional change can be presented as the only escape route from a dysfunctional system.
  • Preordained destinations discourage engagement by making debate appear futile.
  • Consultative (enabling) referendums are too often abused to curtail debate and suppress challenges to major decisions, particularly those whose consequences were unclear or misrepresented at the time.

The closest historical analogue we have to a border poll is the Belfast (Good Friday) Agreement, and the Republic has extensive experience in managing referendums to amend the constitution. It would be a significant additional risk to deviate from established precedent.

A border poll will naturally be an emotional process, and for many people a painful one. We should avoid compounding the pain of change with the fear of the unknown. An unshakeable commitment to the GFA’s stranded model of relationships, its communal protections, and as many of its institutions as practical, could provide essential stability during any transition.

3. How do you eat an elephant?

The proverbial answer is of course “one bite at a time”, but how does this apply to constitutional change? Building an inclusive new state will be a multi-generational effort with no easily-defined endpoint.

  • Scope creep is a red flag for doomed projects.
  • Temporary expediencies have a habit of becoming long term certainties. • Small projects are easier to plan and execute
  • Short feedback loops encourage engagement, including from former skeptics

By law and treaty, a border poll only concerns the transfer of sovereignty. It is one step in a long process, and is neither the first nor last step of that process. It is however the crucial point at which contingency plans must switch from fail-back to fail-forward.

Many commonly stated impediments to constitutional change (healthcare, benefits, etc) are matters of government policy rather than the constitution. The normal framework to debate these is within the institutions that the constitution provides, and bringing them outside that process could amount to an evasion of democratic scrutiny.

A path forward

My own personal recommendations would be:

  1. Any border poll should be a referendum on a concrete constitutional amendment or amendments, rather than an enabling or consultative referendum on the broad principle of change.
  2. The initial transfer of sovereignty and the institutional design of the new state should take place over two or more separate constitutional amendments, with a transitional state or states in between that can allow the normal business of government to continue in the meantime.
  3. Any policy initiative that is an unavoidable pre-requisite for constitutional change should happen in advance through the normal legislative process, before any border poll. This will help to reduce the number of provisions of any poll, and avoid conflating issues which can be treated independently.

I have written previously on the subject here.

(spoken remarks as planned, not as delivered)

Most proposals for a border poll run into a constitutional trilemma:

  • Unionists will not help to design their own defeat.
  • Nationalists cannot deliver an inclusive settlement all by themselves.
  • And Brexit has taught us never to have a vote without knowing the details.

Any grand plan for unity must violate one of these constraints. The workaround is to treat unity as a process and not an event. That means making as many changes as possible well in advance of a poll, and deferring most of the rest until well afterwards, making the border poll itself a small but critical step.

So the Irish state must make itself compatible with unity, in advance. This means eliminating both the practical impediments to unity, but also any perceived barriers to inclusion of non-nationalists.

Many people in NI look at the Republic and they don’t see themselves reflected in it. So we must move beyond a transactional relationship and towards a generous one. The northern state is required to demonstrate parity of esteem. The southern state is not required, but it should do so voluntarily. This in itself would be a valuable contribution to reconciliation.

Then, if and when it does happen, a border poll would just exchange the roles of the sovereign states and create a loose union that will maintain all existing protections, and will not immediately abolish NI. This avoids creating a perverse incentive to make the north unworkable in the interim, and also decouples the long-term process of merging the two jurisdictions from the narrower issue of sovereignty.

It also ensures that the long term destination remains open for debate after a border poll, so that Unionists and Others can still have a meaningful input, because the future also belongs to them, and Nationalism by itself will get many things wrong.

The spoken submission can be seen in the video below from 5:08:45, and questions answered from 5:39:30 – note that there was some confusion between myself and Francis Gallagher, another contributor, and I found myself mislabelled in the captions…


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