In my previous post I outlined the various models available for a sovereign Ireland – a unitary state, asymmetric devolution, federalism and a confederal union. Asymmetric devolution is unstable and inequitable, while federalism is too heavy for such a small country as Ireland. That leaves a unitary state and a confederal union as the only serious options, and each involves a different set of compromises.
A unitary state is more efficient, more equitable and arguably simpler in its daily operation; but the process of building one from two separate jurisdictions with a century of divergence would be complex, expensive and traumatic. A confederal state would be relatively cheap, fast and painless to construct, and could be done without creating any new government bodies; but it would not in itself address any long-term inefficiencies or structural inequalities.
There is a synthesis.
It has been suggested many times that a two-stage referendum would be required for constitutional change – the first to approve the principle and the second to enact the details. But this requires a considerable sojourn in constitutional purgatory. What happens if the enabling referendum is approved but the confirmatory one isn’t? We could find ourselves in a trap where a united Ireland was accepted in principle, but any attempt at changing the constitution to bring it about runs aground on the details. If we have learned nothing else from Brexit, surely it is that no referendum should ever be held without the full details being available in advance.
Yet how could the full details of a united Ireland be made available in advance? Redesigning a state requires discussions, consultation, think tanks, constitutional forums. The new state must have buy-in from everyone, and that must include the Ulster British as well as the Gael. How can this all be done in advance, without the impetus of a border poll behind it?
It can’t. But this is only a problem if you want to build a unitary state in one grand constitutional revolution. All that Brexit warns us against is having a referendum in advance of a concrete proposal. It doesn’t say anything about two or more concrete proposals being put to the people in sequence.
We can build whatever we want, so long as we do it in stages. A confederal union would be the first stage of any such journey, because it would transfer sovereignty with minimal disruption to the internal structure of the two states. This would take the place of the “enabling” referendum, but it would be fundamentally different because (just like the GFA) it would be on a specific constitutional bill, a concrete proposal with immediate yet limited effect. Once sovereignty was transferred, the business of serious institutional reform could begin. Importantly, this would not have its parameters defined in advance, so that those on the losing side of the first referendum could still engage and have their concerns addressed.
This synthesis gets us the short-term advantages of the confederal model while still allowing for the long-term advantages of a more unified state in the future.
So let’s get started…
An Agreement between the United Kingdom of Great Britain and Northern Ireland, and Ireland.
[[ PRELIMINARY DRAFT ]]
Sovereignty and powers
- The Union of Ireland shall consist of two member states, the Republic of Ireland and Northern Ireland.
- International relations, defence, immigration, border control and human rights shall be reserved to the Union.
- All other powers shall be vested in the member states, but may be assigned to the Union in whole or in part by mutual agreement.
[[ A sovereign state must be able to control its borders and enter into relations with other states. It is also responsible for adhering to international agreements, including those on human rights. Everything else is negotiable. ]]
Assets and institutions
- The existing Senate, Supreme Court, and Presidency of Ireland shall be shared between the Union and its members, and the Republic of Ireland shall make them available for that purpose.
- The Republic of Ireland shall make available to the Union the Department of Defence and the Department of Foreign Affairs, including all their assets, for the exercise of its duties.
- The United Kingdom shall transfer all Crown assets in Northern Ireland that are required for the Union to exercise its powers, to the Union of Ireland.
- The United Kingdom shall transfer all other Crown assets in Northern Ireland to Northern Ireland.
[[ The Republic will make available various institutions to the confederal Union in order for it to act as a sovereign, but these can be reabsorbed if and when we do move to a unitary state based on the current Republic. Their existence still derives from Bunreacht na hÉireann; they’re just on loan. ]]
Continuity of law
- The Union of Ireland shall be the continuing state of Ireland for the purposes of international law.
- All laws in force in each member state of the Union shall remain in force, except as amended herein.
- The Agreements of 1998 shall remain in force in their entirety, except as amended herein.
[[ The first item ensures that the entire island is “Ireland” for the purposes of EU membership, amongst others. ]]
- In addition to its role as the upper house of the Republic of Ireland, the Senate shall be the unicameral legislative branch of the Union.
- The Senate shall consist of equal numbers of senators elected from each member state of the Union.
- The Senate shall have full parliamentary oversight of the Union institutions.
[[ Some form of democratic oversight of the Union is required; this might give the unloved Senate a new lease of life. “Equal numbers” is arguable, but NI should be over-represented. ]]
The Supreme Court
- The Supreme Court of Ireland shall be the Supreme Court of the Union and of its members.
- The Supreme Court shall consist of equal numbers of judges from each member of the Union.
[[ This should ensure a consistent application of human rights law across the two jurisdictions. ]]
- The President of Ireland shall be ex officio the Secretary of State for Northern Ireland.
- The President of Ireland shall continue to act as President of the Republic of Ireland.
- The President shall be elected by universal suffrage of all Irish citizens, together with all British citizens registered as electors in Ireland, in a single constituency.
[[ To avoid having to rewrite decades worth of NI law, the office of Secretary of State can be retained. ]]
The Ministerial Council
- The North-South Ministerial Council shall be the executive body of the Union.
- The Ministerial Council, in consultation with the Senate, shall appoint a Prime Minister and a Deputy Prime Minister.
- The Prime Minister shall be ex officio the Minister for Defence, and shall be an MLA.
- The Deputy Prime Minister shall be ex officio the Minister for Foreign Affairs, and shall be a TD.
- Other ministers and departments may be assigned to the Union by agreement of the member states.
[[ The assignment of Minister for Defence and Minister for Foreign Affairs replicates the balance of responsibilities currently used in the Republic. The method of appointment of one MLA and one TD should guarantee that the PM is a non-partisan figure. ]]
Bunreacht na hÉireann
Bunreacht na hÉireann shall be amended so that:
- the transfer of sovereignty, powers and institutions as detailed above are effected
- the State shall be officially renamed to “the Republic of Ireland”
[[ The renaming is important, because the Union will be “Ireland” for international purposes. ]]
Strand One matters
The Northern Ireland Act 1998 shall be amended so that:
- the transfer of sovereignty, powers and institutions as detailed above are effected
- all powers and duties currently exercised by the Crown, including Legislative Assent, shall be exercised by the Secretary of State.
- an Assembly dissolution does not bring down the Executive or the Ministerial Council.
- any further amendment to the Northern Ireland Act 1998 must be passed by referendum in Northern Ireland.
[[ Continuity of NI’s government would be essential for the functioning of the Union. It is arguable that other reforms should also take place in NI, but this may not be the appropriate place. ]]
Strand Three matters
- The Union and each of its members shall be separately represented in all matters relating to Strand Three.
Culture and symbolism
- The official languages of the Union shall be English and Irish
- The Union shall adopt symbols, including a flag and anthem, distinct from those of its members
- All changes outlined in this agreement shall come into force once the electorates of the member states have each expressed their separate consent by referendum.
- The United Kingdom and Ireland shall commence all necessary legislation within three months of this agreement coming into force.
- Any act to amend the operation of the Union in a manner not provided for above shall be conditional on the consent of the electorates of each member state, as above.
- The Union shall convene a constitutional assembly within six months of this agreement coming into force, for the purpose of drafting amendments to be approved by the procedure above.
[[ This immediately kicks off a process of long-term constitutional reform, which could result in a unitary state, but in exchange it maintains the simultaneous-referendum lock. ]]
The floor is now open.
Andrew is a native Ulsterman and honorary Galwegian now living and working in Dublin. An IT manager by day and dilettante political hack by night, he has also been known to dabble in fundamental physics and musical theatre.