This is part of our series on ‘Radical History after Brexit’, exploring the challenges facing radical history after Britain’s departure from the European Union.
Brexit is disrupting established identities and citizenships, especially in Northern Ireland and Ireland, even though the complexity of lives lived across and alongside the UK’s only land border with the European Union scarcely featured in pre-Brexit debates. Misplaced “island nation” narratives have rubbed uncomfortably against this interconnectedness. This post considers how referendums have repeatedly disrupted ‘constitutional imaginaries’ across the Atlantic archipelago, and how these narratives around Northern Ireland’s future are being energised and altered by Brexit.
The Democratic Unionist Party’s saw Brexit as a decisive opportunity to shift Northern Ireland’s governance away from any sense of deeper alignment across the Irish land border. The greater the distinctiveness in governance between Northern Ireland and Ireland, the more difficult it would ever be to contemplate reunification. They did not, however, reckon with the durability of the post-Belfast/Good Friday Agreement arrangements and the depth of connection that had already built up under their auspices. The last four years have thus seen repeated efforts to accommodate the complex constitutional interlinkages which have developed since 1998 and draw upon EU law.
Brexit, as these years of negotiation have demonstrated, is a process rather than an event, and it has proven impossible to pull EU law out of the UK’s constitutional arrangements without knock-on effects. As the accommodations required by Northern Ireland’s peace process disrupt the purity of the Brexit project, so pro-Brexit commentators, such as the LSE’s James Ramsay, have begun advocating that the UK Government should not only arrange a referendum on the reunification of Ireland but should actively support reunification (however unhappily that sits with the 1998 Agreement’s duty towards impartial dealing in Northern Ireland’s affairs). Support has been growing, too, for another referendum on Scottish independence. The 2016 Brexit referendum has, inadvertently if predicably, destabilised centuries of constitutional union.
Referendums do not fit cleanly within the UK’s uncodified constitutional order, with its storied prioritisation of Parliament’s sovereignty. UK Governments long followed Clement Attlee’s rejection of ‘a device so alien to all our traditions’. The 2016 referendum was, in legal terms, advisory in nature and provided no clarity as to the nature of relationship with the EU that the people were endorsing. For all the law making power vested in Parliament, however, Brexit’s most ardent adherents have been able to claim that the 17.2 million votes for withdrawal from the EU means that the UK must be subject to almost nothing of the EU legal order from the point at which withdrawal is complete.
International agreements which curtail certain law-making competences can also be difficult to accommodate with Parliament’s sovereignty. As seen in the context of Brexit, Boris Johnson’s Government can secure parliamentary support for a ‘brilliant’ deal, legislate to reflect its terms in UK law and then seek to deny effect to certain provisions months later in the Internal Market Bill when confronted with the reality of what it gave away in negotiations.
Those who prioritise completely decoupling the UK from the European Project thus seek an alignment of national sovereignty and parliamentary sovereignty: that the UK Parliament should not be restricted by any other body in its capacity to make law for the UK. A range of actors, from those seeking to bring about democratic socialism in the UK to those who envisage the UK post Brexit as a free-wheeling, free-trading state, all prioritise what Richard Tuck (from the first camp) describes as achieving a ‘highly unconstrained democratic politics’ focused on Westminster’s unitary authority. The complex arrangements covering Northern Ireland are anathema to these accounts of the UK’s constitution. For all the talk of restoring sovereignty, Northern Ireland has therefore confronted the UK’s governance order with things that cannot be done.
Pressure for a referendum on the reunification of Ireland is therefore set to grow, and not just from Nationalist/Republicans opposed to Brexit and partition. Brexit’s supporters are increasingly reaching the conclusion that Northern Ireland cannot be accommodated in the Brexit that they desire. The 1998 Agreement, moreover, places responsibility for calling a reunification referendum in the hands of the UK Government, potentially allowing Northern Ireland’s interests to be subordinated to the exigencies of Westminster’s Brexit politics.
Referendums occupy a more comfortable role in orthodox accounts of the Irish constitutional order. Since the referendum on the 1937 Constitution, Ireland has held 38 constitutional referendums which have, since 1998, been managed by a Referendum Commission. This extensive experience of referendums and other deliberative processes, particularly the Citizen Assemblies, has contributed to a self-congratulatory element to recent debates, that “Ireland knows how to do referendums”, especially when set against the ramshackle conduct of the Brexit referendum. It has also led to assumptions that any future referendum on reunification would follow the Irish model. Such self-regard ignores much of the disruption caused by past referendums with their expert-led (and often exclusionary) deliberative processes.
The 1937 referendum was opposed by many, especially women who could foresee the impact of the Constitution’s terms. Referendums on divorce and abortion in the 1980s and 1990s were vitriolic, and the debates loaded with inaccuracies long before it became fashionable to talk about alternate facts. The double referendums over the EU Treaties of Nice and Lisbon are in some ways precursors to the 2016 Brexit vote, as voters initial rejections were due in large part to a lack of understanding of the relationship between Ireland and the EU’s supra-national order. Public and legal controversies over impartiality, moreover, have seriously curtailed the Referendum Commission’s operation; it can no longer set out the arguments for and against a proposal; it must limit itself to providing the public ‘neutral’ facts.
Even the Citizens Assemblies, laudable in many ways, have not necessarily been inclusive, failing to capture voices from the Traveller Community, the homeless and Refugee Community, the topics discussed and the parameters of discussions set by ‘experts’. These processes have nonetheless created an Irish imaginary of referendum success. The contrasting legacy of referendums in the UK and Ireland will likely exert considerable influence on the shape of any reunification referendum.
The 1973 Border Poll
The term ‘Border Poll‘ originated from the Heath Government’s efforts in the early 1970s to arrest the spiral of the conflict in Northern Ireland into a full-blown civil war. Heath wanted to restore devolution on a power-sharing basis, but he first sought to reassure Unionists that Northern Ireland’s place in the UK was secure. The resultant referendum came to be called a Border Poll amid brainstorming over a description which would not explicitly address the possibility of reunification.
It was to be a last hurrah for the gerrymandering which characterised the previous era of devolution, as Unionist politicians successfully lobbied to have the Poll conducted on the franchise for Northern Ireland Parliament elections (not Westminster elections) so as to exclude Irish citizens born in the Republic. The Reverend Ian Paisley even specifically lobbied against a polling station being located in Ballycastle, a town in his constituency with majority Catholic population. Nationalists boycotted the hastily arranged vote and the resultant near-99% vote in favour of partition thus did little to reinforce Northern Ireland’s status. Its constitutional significance is dwarfed by the near contemporary EEC referendums in Ireland and the UK (in 1972 and 1975).
The 1998 GFA Referendums
The referendums that followed the Belfast/Good Friday Agreement, by contrast, provided an important validation of its new constitutional arrangements. In Ireland, the referendum revisited some core tenets of de Valera’s constitutional order. In altering Articles 2 and 3 to remove territorial claims over Northern Ireland it took a step away from traditional nationalism and provided the precursor to today’s ‘shared Ireland’ initiative. It was also a contingent referendum. Dialogue between the two polities made the choice in the Republic to ‘move on’ contingent on Northern Ireland accepting the new constitutional order. This form of contingent referendum is likely to play a key role in any future reunification referendum: Article 3 as approved in 1998 asserts the necessary assent of the people in both parts of the island. Changes to the Irish Constitution, or potentially an entirely new Constitution, will be required. Very little, however, is set in stone about how to plan and align such votes across two polities (a ‘Working Group on Unification Referendums on the Island of Ireland’, based at UCL’s Constitution Unit, has recently published an interim report).
The 2016 Brexit Referendum
The Irish constitutional imaginary views the Brexit referendum with a certain smugness. Being seen to outdo the Anglo-British constitutional structure is always a triumph in a post-colonial setting, no matter that the conceit is questionable. David Cameron’s rush into Brexit to face down critics within his political party without first considering (or seemingly understanding) the relationship between EU law and the Belfast/Good Friday Agreement has been prominently presented as an act of reckless hubris and the vote itself as a manifestation of English nationalism which is impossible to accommodate within a multi-part UK.
Brexit has weakened the foundations of British constitutional devolution. The UK Government’s dominance over the process has, for Gordon Brown, drawn uncomfortable attention to efforts by Westminster to assume competences once exercised by Brussels and of Whitehall to exercise control over purse strings. In Northern Ireland, in particular, power sharing will never work if London treats Belfast’s institutions as a form of branch office. But power sharing is also becoming a practical impossibility as the parties refuse to work together and instead fixate upon the ‘constitutional question’. This drum beat towards a referendum will likely quicken amid the challenges of making the Protocol on Ireland/Northern Ireland work, and Scottish politics has also begun to become fixated with “IndyRef2”.
Some of the self-satisfaction with Ireland’s referendum arrangements that Brexit has engendered, could yet colour a reunification referendum. Ireland’s constitutional imaginary maintains assumptions about a mythologised and monolithic “Unionist tradition” which ignores the multiplicities within Unionism, its own varied accounts of its history and its role in building a ‘shared island’. It neglects intersectional concerns (such as people for whom being feminist, queer, Catholic or immigrant is as important to their identity as Unionism) and reflexively assumes aversions to Irish language words such as Taoiseach, Oireachtas or Dáil.
The opportunity offered by a reunification referendum to radically rethink the nature of Ireland as a polity could be lost if the process is treated as Ireland subsuming Northern Ireland with tweaks around the edges. It must prioritise deep engagement across both polities with what Ireland will become after reunification. Any such referendum cannot therefore follow the ill-considered rush of the 1973 border poll (or even of the 2016 referendum); it will take years to carry into effect. It is far from an instant panacea to the impact of Brexit.
Aoife O’Donoghue is Professor of International Law & Global Governance at Durham Law School. Her research centres on issues related to public international law, constitutionalism and feminism with a particular interest in global governance and legal theory. She is currently heavily engaged with research and policy debates on Brexit with a particular focus on Northern Ireland. You can follow her on Twitter @aoifemod.
Colin Murray is Reader in Public Law at Newcastle Law School. He is the Principal Investigator of the ESRC-funded project Performing Identities: Post-Brexit Northern Ireland and the reshaping of 21st-Century Governance, on which Professor O’Donoghue is also a Co-Investigator. You can follow his work on Twitter @performidentity & @mastermanmurray.