WAITING FOR A REFERENDUM
Arguably the most prolific, insightful and influential academic contributor to the debate on Irish unity, and the constitutional and political issues that arise from the GFA, is Cork-born, Professor Brendan O’Leary. He is a founding member of the ARINS project (Analysing and Researching Ireland North and South), a joint initiative between the Royal Irish Academy and the Keough-Naughton Institute for Irish Studies at the University of Notre Dame in the US. O’Leary also participates in the Constitution Unit based in University College London, is author of the three-volume Treatise on Northern Ireland and is currently Lauder Professor of Political Science at the University of Pennsylvania. He is a member of the Friends of the GFA, which includes academics, lawyers and politicians in the US. Previously O’Leary was a political adviser to the late Mo Mowlam and to Kevin McNamara when they served as shadow secretaries of state for the Labour Party in Britain.
In a review of the Treatise volumes, historian Breandán Mac Suibhne summarised a number of myths that O’Leary demolished in his sweeping and devastating analysis of the Northern state since partition. Among them, Mac Suibhne wrote in a review published in the Irish Times in July 2019, were the assertions made by other writers and historians in Ireland and elsewhere:
that British intelligence defeated the IRA; that the IRA alone caused the Troubles; that internment worked; that the civil rights movement was predominantly hijacked by neo-Trotskyists; that the Stormont regime was a ‘normal’ British local government; that the conflict was overwhelmingly sectarian rather than national or ethnic in character; that integration could have worked, at any time, but for papist resistance; that the southern Irish were never interested in reunification; that unionists were always willing to accept power-sharing – they just did not want any role for the Irish government; that the Good Friday Agreement was ‘Sunningdale for slow-learners’; that 9/11 led the IRA to decommission; that the RUC did not need to be reformed out of existence; that loyalist violence was simply reactive rather than proactive; that British policy has always been consistent, since 1921, 1925, 1949, 1968, 1972, 1979, 1985 or 1998 – that is, depending on the proponent’s selective illusion.
That is some list – and far from exhaustive. For example, O’Leary gives the lie to the lazy notion that the South was the evil Catholic twin of the North: Protestants were not actively displaced by political decisions from high-status positions in the public or private sectors or the professions in the cities … No parallel occurred to the systematic gerrymandering or active disenfranchisement in the North. There was no banning of minority political parties. Protestants were treated as equal citizens, with full private cultural rights, and their religious institutions did not experience discriminatory public policy.
In his final volume of the Treatise, entitled Consociation and Confederation, O’Leary concluded that the reunification of Ireland is on the way and that it will have economic benefits for people in the current North and the current South. He predicted that a referendum on unity will happen within the next decade and, like others, has argued that those aspiring to Irish reunification should ensure that the necessary and detailed preparations are done and that the political conditions for success are in place before it is called in order to ensure that they prevail. He insisted on the importance of reaching agreement on, or at least a concept of, the constitutional arrangements of a new, all-island polity before its political, including devolved, structures are framed.
I interviewed O’Leary in the summer of 2020 for this book. He maintained that the task of preparing for a referendum and the outline of future constitutional and political and policy arrangements had been undertaken by academics, activists and commentators but that did not absolve governments of their responsibilities. ‘I agree with the fundamental idea that, unless you know the expected constitutional structure you can’t have a coherent discussion of various public policy configurations. You have to work out the likely constitutional configurations and then discuss the various public policy ones that would follow,’ he said. He was concerned that there is little appetite on the part of the governments in Dublin and London or in Belfast to engage in formal discussions on these and other issues in the short term:
Starting in London, they don’t want Scottish independence so they can hardly openly begin to plan possibilities for Irish unification. In Dublin, the ‘shared island’ approach and the competition with Sinn Féin, the priority of recovering from the pandemic and of stabilising the Northern government collectively freeze initiative. In the North, as always, even the very mention of the question polarises, and in any case, the North has no independent authority to develop and prepare for a referendum.
So that means, in my view, that the bulk of the preparatory work in the period ahead falls to the academy [university and research institutes] and to civil society. I am pleased to see that there are multiple initiatives in this domain and there should be. The idea that there is only one way forward is absurd. It is essential that the academy provides a forum for all sorts of ideas and rigorously evaluates what is useless and what is feasible.
The ARINS project has brought together a range of academics in the fields of political science, economics, constitutional law, history and some of the humanities to explore three essential questions: preparation for Irish unity; the implications of Brexit; and the possibility of a reform to the union between NI and the UK. At the launch of the project in early 2021, O’Leary set out in an article for the Irish Times the rapid changes, post-Brexit, which have made it essential that voters in a referendum ‘have an informed and properly clarified choice’.
O’Leary said that demographic trends have now transformed the cultural balance of population in the North and have placed Protestants in a minority. He cited recent elections, which have altered the political landscape: the vote for the main unionist parties is now less than the combined vote for others. In elected councils across the North, almost half have a majority of pro-unity members and the other half have a pro-UK majority. In the Assembly, there are equal numbers of pro-unity and pro-UK MLAs. In the Westminster parliament, members from NI also divide evenly between the two camps. These do not include independents or members of parties that do not designate themselves as unionist or nationalist.
O’Leary predicted that elections to the assembly in May 2022 will return a majority of nationalists and non-unionist candidates, with a member of SF elected as first minister. Brexit and the Northern Ireland protocol agreed with the EU have further weakened the union and its supporters, while the prospect of Scottish independence poses an existential threat to the UK and unionism as a coherent, political force, O’Leary said. The number of those in the North who wish to remain in the EU continues to grow and includes a significant number of Protestants who previously supported unionist parties. This dynamic is central to the momentum building towards a united Ireland. In the same article O’Leary argued:
To resume full citizenship of the European confederation, many northerners have taken out Irish passports. Up to half the population have them, while the number taking out UK passports has slid. Later, they may support Irish unity to return to the European Union – not to Pearse’s, Cosgrave’s, or de Valera’s Ireland.
Whether you like this scenario is not the point, but if you think it is possible, then recognise that Ireland, North and South, needs to prepare, if only to ensure that any future referendums on reunification do not resemble the ‘Brexit/Ukexit’ referendum of 2016. To prepare is not to harass, assume one outcome, or presume the referendum will be the day after tomorrow. Preparation can be open, peaceful and pluralist, ensuring multiple voices are heard, and available to constant correction.
Voters in reunification referendums must have an informed and properly clarified choice. The onus to clarify rests with the South. All parties in the Dáil must decide between offering a precise model of unification or offering a detailed constitutional process that would follow affirmative votes for unification.
These must include, he argued, some outline of ‘the power-sharing securities needed for people of British identity and citizenship’. He wrote:
A ministry of national reunification is required to synthesise the best of the North and the South in robust models of a reunified island. It must engage unionists, nationalists and others – the latter and ‘soft nationalists’ will be the pivotal voters in the North. It must organise citizens’ assemblies, and it will need to oversee a united Ireland transition fund.
On the question of a referendum, O’Leary accepted that a vote must be taken concurrently by voters North and South. However, he did not agree that concurrent means that it has to be simultaneous or taken on the same day. Indeed, he argued that it makes more sense for people in the South to vote only after the decision on unity of those in the North is confirmed, not least because they will be voting on different issues. In the North, it is a binary choice between remaining in the union or joining a reunified Irish state. In the South, the vote will involve agreement on making the required constitutional changes to incorporate any decision made by voters in the North to become part of a united Ireland. He wrote that:
Concurrent means that you and I make a decision on the same subject. It doesn’t mean we have to make it simultaneously. I think the case for an interval is straightforward. If the North has voted ‘no’ to unity and on the same day the South has voted ‘yes’ and voted for an enormous number of contingent amendments to the constitution, the Southern electorate has been put through unnecessary potential change. It would depend on the scale of what the South wanted to modify to make unification work. They may go for a completely minimalist programme but they could also go for an extensive programme of change.
In short, O’Leary’s article contended that it would make no sense to have people in the South vote in a referendum which sets out the changes required to the Constitution to allow for unification, if voters in the North had rejected the proposal for Irish unity.
In A Treatise on Northern Ireland, Volume 3: Consociation and Confederation, O’Leary also expanded on the constitutional order that could emerge from a vote for unity. Under this scenario, the power-sharing executive, assuming it is in place at the time, can lead the negotiations on behalf of the people of the North. ‘The greater the breadth of cross-border and cross-community presence in that executive, the better the prospect that care will be taken to address Protestant and unionist concerns and concerns widely held across Northern Ireland,’ he said.
The British government will be involved in these discussions in relation to its assets and liabilities, including state pensions, in the North. O’Leary also envisaged the possibility of more than one referendum involving voters in the South, with the first a simple choice on whether they accept the decision of the people of Northern Ireland to end the union with Britain and join a reunified Ireland. In Treatise Vol. 3, O’Leary considered the possibility of a confederation
in which two sovereign states are joined together in a common state, jointly establishing a confederal government with delegated authority over both of them for specific functions. This process would necessarily involve the recognition of Northern Ireland as a state proper. The confederation would represent Ireland in the EU and internationally; it would have all-island institutions, which would certainly include a common court, but could also include an army with constituent territorial units and probably a confederal police, devoted to investigating serious crime, though its powers could be delegated to a joint body.
O’Leary has since expressed his preference for a unitary state with a possible devolution of powers to the North for a period. In a discussion with this writer in late 2021, O’Leary said that a confederation would be incompatible with the GFA and EU membership. He went on to say that a united Ireland is, however, a logical and rational development for the people on the island. A unitary state, with the possible devolution of some powers to a regional assembly in Belfast for at least a transitional period, is his preferred outcome. A confederal model, involving an independent status for the North would be incompatible with the GFA and with EU membership.
He argued that those advocating for a unitary state, as opposed to a confederation, may insist that the referendum results can be implemented within the existing terms of Bunreacht na hÉireann (the Constitution of Ireland). Article 15.5.2 allows for regional assemblies, which would see the assembly currently based in Stormont continue, with representatives elected from existing constituencies in the North.
Meanwhile, politicians who currently fight elections for the Westminster parliament, including those who do not take their seats, will take their place in the Dáil. There are a myriad of issues, including those pertaining to the primacy of the Irish language (in Article 8 of the Constitution), the flag or flags that should be flown, the national anthem, and the reconstruction of the Senate, which, according to O’Leary, would have to be resolved. But essentially this process would involve the effective abolition of the North as a political entity. The most recent parallel to this would be the reunification of Germany in 1990, whereby the German Democratic Republic (East Germany) was absorbed, within a very short period, into the Federal Republic of Germany (West Germany).
In Treatise Vol. 3, O’Leary wrote:
Either Bunreacht na hÉireann is extended to all of Ireland on the German model or Northern Ireland is kept as a devolved unit inside an otherwise unitary and centralised Ireland as is allowed for under the existing Good Friday Agreement.
These two arrangements each have respective difficulties. Northern Ireland being preserved may not be desired by all Northern Republicans and Nationalists to put it mildly. After all, Republicans fought for the destruction of Northern Ireland not for its maintenance even though they have, since 1998, worked the institutions of the Good Friday Agreement.
Secondly, the devolved Northern Ireland model would create on an enormous scale what is called the ‘West Lothian’ question in Great Britain. The West Lothian question refers to the fact that a Scottish member for West Lothian in the Westminster parliament gets to vote on all matters affecting the UK but the English Member of Parliament does not get to vote on matters devolved to the Scottish parliament.
Now that kind of issue arises in any system of what is technically called ‘asymmetrical devolution’; in other words where you have devolution to one part of the state but not to others. In Ireland, it would be a particularly severe problem because the size of the North as a proportion of the overall state is roughly one-third and that would mean that for the all-Ireland parliament the influence of the Northern deputies would be dramatically more extensive than those of their Southern counterparts. They would be shaping Southern policy as well as being in control of the North.
While this could be resolved by confining votes on domestic questions in the South to deputies from there, it would hardly achieve the type of political unification of the entire island for which people would have voted in the referendum, O’Leary argued. There is also the issue of maintaining the executive, which currently exists in Belfast as a devolved decision-making administration within the UK.
The Irish Constitution allows for a degree of political devolution to local or regional structures subordinate to central government. It does not allow for a subordinate executive, however. While some constitutional lawyers have argued that the institutions, including the executive, established under the GFA could remain in place if the Irish Constitution was amended, O’Leary does not agree with this course. In his view, a devolved administration based in Stormont or elsewhere, would not have executive powers as that would undermine the elected government of the country. In his concluding chapter of Consociation and Confederation, O’Leary wrote:
Northern nationalists, notably Sinn Féin and its supporters, may become the key players in deciding whether the Northern Ireland Assembly is restored, and, in due course, whether and when there will be a referendum on Irish reunification. The later such a referendum is held, in the author’s view, the greater the probability that there will be a decisive vote for Irish reunification. Sinn Féin enthusiasts will seek an early referendum, but they would be unwise to do so. Waiting for the referendum will, however, become the new canopy under which Northern Ireland politics unfolds.
A new ministry for Irish national reunification and reconciliation would not be premature. Its first planning agenda should include a long constitutional convention to address the new institutional configurations, territorial order, and protections of minority rights that would be required to make a success of reunification, and how Northerners could participate in the remaking of the island.
Warnings of a loyalist backlash or forelash will rent the air. Yet, if and when a referendum is won by advocates of Irish reunification, it is most unlikely that British regiments will be deployed in de facto alliance with loyalist militias – as occurred in 1920, and again after 1970. An Ireland, moreover, that has prepared its constitution and its institutions with proper, prudent, and consultative foresight may be able to reunify with its lost counties with minimal threat to any human life. Though other malign vistas cannot be excluded – including those that start with premises based on Albion’s record of treaty breaking – the one just briefly sketched seems far likelier than at any previous time in this author’s life.
In 2019, as part of UCL’s ‘Working Group on Unification Referendums on the Island of Ireland’, chaired by Dr Alan Renwick, O’Leary, along with several other academics – John Garry, John Coakley, James Pow and Lisa Whitten – conducted their own version of a citizens’ assembly in Belfast, in order to assess public opinion on a united Ireland across the communities in the North. Their findings were published in 2020 in an article titled ‘Public attitudes to different possible models of a United Ireland: evidence from a citizens’ assembly in Northern Ireland’.
The day-long citizens’ assembly exercise involved a cross section of the population who were asked about their preferred models of unification in the event of a referendum favouring Irish unity. Forty-nine members (out of 50 invitees) of the public were selected on the basis of age, gender, socio-economic group, region and community (political/religious) background to ensure a balanced and representative group of citizens of the North. Notwithstanding the relatively small sample (citizens’ assemblies held in the South over recent years usually have around 100 participants), the outcome was informative and perhaps surprising.
The attendees listened to presentations by the moderators, Garry and O’Leary, engaged in discussions and then indicated their informed views on two possible models of a united Ireland: The first was the ‘Integrated model’, defined as ‘an integrated united Ireland, essentially a unitary state in which Northern Ireland ceases to exist, being absorbed into an all-island polity governed from Dublin’s parliament and executive, overseen by its courts’; the second was the ‘Devolved Northern Ireland/GFA model’, defined in the article by Garry et al. as ‘a united Ireland in which the bulk of the arrangements of the GFA are preserved but transferred to Irish sovereign authority: Northern Ireland continues to exist, albeit now as a devolved entity within a sovereign Ireland, with a continuation of its current power-sharing arrangements and with the current powers of the Northern Ireland Assembly and Executive intact’. Participants were also provided with alternative arrangements that could be expected in a united Ireland, including the prospect, however unlikely, that the new Ireland could re-join the British commonwealth, with the Crown as symbolic head, as permitted under Article 29 of the 1937 Irish Constitution.
In the report, the moderators explained how the participants, including those from a Protestant/unionist background, supported the integrated model over the devolved NI/GFA model:
At the start of the day support for a united Ireland with a devolved Northern Ireland on the lines of the GFA was much higher than support for an integrated united Ireland. But, by the end of the day, support for a united Ireland with a devolved Northern Ireland had declined to the same level as support for an integrated united Ireland. This change in support was most pronounced among Protestant participants. Although perceived as ostensibly a ‘soft’, inclusive, or compromise option, some thought that the transferred Good Friday model was unlikely to work politically because the power-sharing arrangements were not functioning, and in their view showed little promise of reliable functioning; the different policy powers in the different parts of the island were judged likely to cause confusion; and, indeed, some thought that because this model is neither the status quo nor a fully-fledged united Ireland, it is unlikely to satisfy either nationalists or unionists and would hence prompt further acrimony and conflict. Relatedly, other participants saw such an arrangement as transitional – a ‘semi-skimmed’ united Ireland–one that would not last.
While the exercise represented a snapshot in time of the opinion of a limited number of participants, it revealed how considered decisions and recommendations can emerge after detailed presentation and discussion of various options. It also illustrated that those engaged took into account the real political climate and dynamics at the time of the deliberative exercise, March 2019, when the power-sharing executive and assembly at Stormont were in suspension. The moderators also based their exercise on a unity referendum, where the outcome was calculated on a vote of at least 50 plus 1 per cent, North and South. They also suggested that ‘the appropriate sequence of referendums would be to start in the North, followed by one in the South, but if and only if the North had voted for re-unification’. This is a departure from the model adopted for the referendums on the GFA itself, which were held on the same day in 1998.
It was explained to participants that the GFA envisaged that existing rights to retain British or Irish citizenship, or both, will remain in a united Ireland, including those embedded in the ECHR and other EU law. The Common Travel Area between Britain and Ireland would probably remain. The British–Irish Council – linking the governments of Ireland and the UK with the devolved administrations in Scotland and Wales, as well as Jersey, Guernsey and the Isle of Man – would continue. The BIIGC, at which the two governments address matters not within the remit of the devolved administration at Stormont, would also remain in place, albeit with the British government representing the interests of its citizens in the new Ireland. This would be a reversal of the situation before unity whereby the Irish government has ‘a special interest’ in representing the interests of Irish citizens in the North. In a post-unity situation, the balance of power will shift from the British to the Irish governments, including the ability to convene the intergovernmental conference.
After outlining these elements of continuity in the post-unity situation, the moderators then set out the most significant changes that would take place after unification and how these would apply in the integrated and devolved models under discussion. The opposing perspectives on the cost of Irish unity were also laid out with one side arguing that the South could not afford the North or to match the annual subvention from the UK. The other side argued that a united Ireland, as a rich and developing economy, with income per capita higher than in the UK, could easily integrate the North, which would also benefit from joining with a ‘more dynamic, high growth economy’, particularly in the wake of Brexit. The participants were asked to make an assumption that, in the short term, a reunited island would make only a small difference economically for the North, with some people becoming better off and others worse off, but with no dramatic change to levels of wealth. However, a major change would be that the currency across the island after unity would be the euro.
As a consequence of a vote for unity, the new political entity would bring the entire island into the EU and under its laws. The North would no longer be part of NATO, as Ireland’s policy of military neutrality would come into effect. It was assumed that Dublin’s membership of the Partnership for Peace and security co-operation with other EU states would continue. The Irish Defence Forces, which could incorporate members of the British Army who come from the North, would be the Irish army.
Similarly, the Central Bank would now apply its powers across the entire island economy as would the Supreme Court, which would be expanded to include a representative set of judges from the judiciary in the North. The Oireachtas, comprising the elected members of Dáil and Seanad Éireann, would continue to make laws, including the setting of tax levels, although they would now include representatives from the North sitting in an all-island parliament.
The President of Ireland would immediately become the head of state, while other more ‘mundane’ institutional changes were also predicted as part of the citizens’ consultation. These included that people in the North would now pay their television and other licence fees to the Irish state broadcaster RTÉ rather than to the BBC, and the British honours system of knighthoods, CBEs, MBEs and other awards would no longer apply. The national sports teams, including the competitive field games of rugby, hockey and others which are already run by all-island federations, would represent Ireland. It was noted that soccer was a major exception in this regard.
Participants were given a guide to the likely make up of an all-island parliament with an estimate that one in six representatives would come from the ‘cultural Protestant’ tradition. It envisaged that the largest parties would likely ‘be FG, SF and FF with the DUP, UUP, Alliance, Greens and other left-wing parties sharing the cultural Protestant vote’. The SDLP was not named in this potential future scenario for the purposes of the citizens’ assembly exercise.
The report continued:
Very importantly, in an integrated Ireland, one would expect the southern parties to organise in the North and some northern parties would seek to recruit voters in the South. There would be a quick move towards an all-island party system – a visible transformation in the eyes of most citizens. There would be a big change in the organisation of public services, policies and security in the North. There would be a common civil service: judging by what has happened in other reunification processes there would be a fusion of the civil services; the Northern Ireland civil service would be integrated into the Irish civil service. There would be some rationalisation (implying job cuts) where there would otherwise be duplication. Some civil service jobs would require competence in the Irish language as at present in the South, but that would be a selective requirement, not ubiquitous.
In this model, there would be an integrated health service. The same system that exists in the South would extend and apply in the North, no doubt, with transitional arrangements to allow for the different model that has applied in the North since 1945. There would be common provision for Catholic schools, Protestant schools, and non-denominational primary and secondary schools, similar to the model that applies in the North at the moment, with equal funding for each set of schooling arrangements. Universities and higher institutions of third-level education would be part of the same system, and subject to the same regulations. Over time there would be a single welfare system, a common set of pension arrangements in the public sector, and common regulation of private sector pensions, and the same kinds of benefits would apply throughout the island.
Finally, the convenors offered two possible models of government for the new island which would, most likely, be put to voters in a referendum: an integrated united Ireland and a united Ireland with a devolved Northern Ireland, with the former proposal winning most support among participants.