IBIS 'Constitutional Futures after Brexit' project

Seminar on ‘A constitutional moment on the island of Ireland?’, June 25th 2019

Blog report by Dr  Paul Gillespie, project director

Brexit disrupts the Belfast Agreement and the peace process it codifies and frames. This seminar addressed that political reality and opened up questions on whether the agreement should be revised or can be renewed, what norms, principles and values would inform such change and what institutions are needed to allow that happen. It was a valuable and rich exploratory exercise bringing together 16 academic panellists and 30 other participants from Ireland and the UK in the first event of the new three year project on constitutional futures organised by the Institute for British-Irish Studies. 

The seminar was based on the proposition that these recent events have brought  a sort of constitutional moment on the island between the shock of Brexit and the emerging politics of a  border poll. This gives an opportunity for dialogue on what should guide politics in a devolved Northern Ireland within a changing UK or possibly in a uniting Ireland and a range of possible UK and Irish futures in-between. The project, based on three pillars - analysis, deliberation and policy-making - aims to clarify and document such alternatives.

In that spirit the seminar asked in its first two panels what are the norms, laws and constitutions at play in the Republic and Northern Ireland and how they affect existing groups and politics; and in the second two how institutional power and accountability will work in potentially new territorial units. Overarching questions probed included whether and how changes in political identity are frozen artificially or can shift in response to changing circumstances. In many respects public opinion and civil society is ahead of established politics and structures in Northern Ireland - but how is that to find political expression? In the Republic a great effort will be required to prepare citizens and the political class for the potential changes that would come with constitutional  change on the island.

Panel 1: Colin Harvey (QUB), Katy Hayward (QUB), Jennifer Todd (UCD), Robin Wilson (Social Europe)

In the first panel Colin Harvey (QUB) argued that the principles and values of the Belfast Agreement remain highly relevant in what he sees as a period of crisis and a constitutional moment challenging both parts of Ireland. It should continue to guide a normatively informed politics. Legal norms on human rights, the environment and equality should inform discussion of a possible united Ireland. That needs to go beyond calls for a border poll to address the central question: what sort of island is being sought?

Katy Hayward (QUB) spoke on her research into those who answer “neither” when asked whether they are unionist or nationalist in the long-running Northern Ireland Life and Times Survey. More now answer neither than either unionist or nationalist. They are more female, better educated, travelled and more likely to say they are British and Irish. There has been a 15 per cent shift to that position among unionist voters in the latest polling 2018 polling. Such evidence of change might also be becoming politicised, she said, as shown in the surge for Alliance in the June 2019 European Parliament and local elections.

For Jennifer Todd (UCD) constitutional deliberation is needed because Brexit has derailed the Belfast Agreement – even if it does not happen the agreement needs to be reset. This should not resurrect identity politics but open up the role of conflicting interests and normative politics in shifting state and national contexts. Whereas true blue unionism fetishises identity her qualitative research on everyday understandings and identities  in Northern Ireland shows non-activists are willing to go beyond binary categories to think reflexively about the future and her recent research with Dornschneider shows a systematic discursive lowering of the emotional salience of contested issues like Irish unity.

Robin Wilson (Social Europe) counterposed universal and communalist values in Northern Ireland’s history of ethno-religious conflict and supported intercultural rather than multicultural ways to tackle that tension in response. Universal norms apply to all societies and should be brought to bear as the Belfast Agreement is reviewed and reconciliation pursued.

It was suggested in the following discussion that the changing dynamics of UK politics, including the emergence of English nationalism around Brexit, also change unionism. That encourages a shift towards the neither category. Whether human rights are universal, foundational and non-negotiable was queried. If they are rather historical, negotiated and balanced a more realistic set of political expectations arises. In that process the Irish state has a responsibility to create a dialogue on constitutional futures, including on Irish unity, and to plan for the future. Unionists are entitled to ask what is the proposition they are being asked to accept.

Panel 2: Chris Gillian (UWS), Cillian McBride (QUB), Chris McCrudden (QUB), John O'Dowd (UCD)

The second panel asked how norms that recognise diversity while moving beyond division can be articulated, legally embedded and constitutionalised. Chris Gilligan (University of West Scotland) presented a Marxist analysis of the issue, arguing against an ontology of being or identity politics and in favour of an alternative ontology of becoming - grounded on recent protests against a hard border, cross-border movements about rugby sexism or in favour of same sax marriage. Realising norms is a politics of becoming whereas constitutionalisation risks freezing out change.

Cillian McBride (QUB) emphasised change and reflexivity, arguing that liberal multiculturalism accommodates cultural identities rather than transforming them.     It derives from the seventeenth century religious wars in Europe and tends to conflate religion and culture. Identities are better understood as reflexive relationships with others. If that is so a liberal republicanism based on individual autonomy, collective deliberation, mutual respect and non-domination is to be preferred to a politics of thick reconciliation or modernist individualism. Applied to the Belfast Agreement that requires finding a balance between consociation and individual rights so that domination is excluded.

Chris McCrudden and John O’Dowd offered  views on the legal cultures underlying the UK’s changing union and the Republic’s response to emerging constitutional futures. McCrudden used his study of the Victorian Liberal legal scholar and Ulster Scot James Bryce to argue in favour of middle level constitutional theorising. Bryce’s work on centripetal and centrifugal forces in the British constitutional tradition remains pertinent both to Brexit and to contemporary relations  between Northern Ireland and the rest of the UK in the context of Brexit, and to devising future relations between Northern Ireland and the rest of Ireland in the context of Irish unity. He also warned against an ahistorical interpretation of law which might freeze existing structures. Law changes over time, is a substitute for force and is, like constitutionalism, always subject to contingency.

O’Dowd asked how southern Irish constitutionalism and legal culture might adapt to changing futures after Brexit. He identified several traditions, including a pluralism from the 1920s, an abiding communalism about religious values, a growing secularisation and individualism from the 1990s and a scepticism about EU law which echoes UK attitudes. Such a mixed legal culture is not particularly well-suited to radical change after Brexit.

Points of discussion on this panel included whether Bryce’s account of centripetal and centrifugal forces has a theoretical aspect, giving causal weight to certain factors, rather than a framework for analysis. If common norms have broken down in the UK it is difficult to repair its union with a big bang approach, such aa a constitutional convention.  A serious discussion of constitutional identity is needed  in the Republic, clarifying attitudes to assimilation, domination and pluralism and taking account of how difficult it could be to change flags and symbols and adapt a partitionist legal culture to change.

Panel 3: John Coakley (UCD/QUB), John Garry (QUB), Joanne McEvoy (Aberdeen), Dawn Walsh (UCD)

The third panel addressed political structures and prospects of reform and political accountability. John Coakley (QUB/UCD) examined existing North-South and East-West structures agreed in the Belfast Agreement, arguing that most have not fulfilled their potential for further development. They will come back in play after Brexit, but there is high uncertainty about the direction of travel as the UK exercises bilateral power in the relationship.

John Garry (QUB) reported on the deliberative forum he organised in March 2019 with colleagues on the possible shape of a united Ireland after Brexit. The two main options presented to 49 randomly selected citizens of Northern Ireland were that devolved Northern structures would continue and that a united Ireland would be a unitary state. Participants were surprised there would be such a choice. Analysis shows most of them moved away from the devolved model during the day’s deliberation because they felt it would not work, and would satisfy no one.

Joanne McEvoy (Aberdeen) discussed options on restoring, rejecting or revising the Belfast Agreement, including its consociational aspects. The Dublin and London governments will have the biggest influence on shaping constitutional futures in Ireland. Four models seem possible: a centralised unitary Irish state; a decentralised devolved Northern Ireland within an Irish state; a federal Ireland; and a confederation of two sovereign states. Process and preparedness would be important, including on how consent would be secured – by 50+1 or super-majorities. Constitution-making could include citizens’ assemblies or conventions.

Dawn Walsh (UCD) addressed external ethno-national guarantors in Northern Ireland, specifically the British and Irish governments. Their effectiveness in that respect depends on how good their relations are. By comparing the number of joint press conferences and statements the two issued in 2002-2005 compared to 2017-2019 one gets a good measure of how much the relationship has deteriorated, being massively affected by Brexit.

Questions and discussion related to the methodology of  Garry’s deliberative forum, the imperative need for deliberation about a changing Ireland before decisions are made and how British-Irish institutions can be strengthened.

Panel 4: Yvonne Galligan (TU), Paul Gillespie (UCD), Michael Keating (Aberdeen), Niall O'Dochartaigh (NUIG)

Panel four asked under what conditions territorial revisions are viable, given the existing configurations of power, territory and interests. Yvonne Galligan (TU) addressed gender issues and equality of rights in a changing constitutional setting.  It is essential that the debate on such issues be regarded as dynamic and developing rather than frozen in existing agreements.

Paul Gillespie (UCD) discussed the two major drivers of constitutional change in the UK after Brexit, namely whether it is hard or soft and whether power remains centralised in London or is dispersed in an entrenched way. Four scenarios of change are identified: breakup, renewal of the union, a differentiated or a federal UK. Such plausible outcomes can be the basis of a structured deliberation like the current IBIS project. How those UK changes relate to future Irish change is an important analytical issue. Comparing varieties of unionisms and Britishness is a useful approach to this task.

Michael Keating (Aberdeen and Edinburgh) said the UK faces an existential crisis largely because of Brexit. He compared its emergent structure pre-Brexit to that of the EU – a devolved, quasi-federal polity with no single demos or telos. See from Scotland and the Northern Ireland peripheries its sovereignty looked divided and shared with multiple identities. Brexit disrupts that by recentralising it, resurrecting older models of British sovereignty and creating a new ignorance and indifference about the devolved territories in Westminster. There is insufficient consensus to allow constituent assemblies or conventions succeed. In these circumstances those expecting Northern Ireland to fit in to a reformed UK would be disappointed because it will not happen.

Niall O Dochartaigh ranged over previous and contemporary discussion about the shape of a potentially united Ireland. De Valera conceded devolution to Northern Ireland in the 1930s, while Sinn Fein’s debate on Eire Nua from the 1970s took a federal turn with four provinces. A unitary state might be preferred by many groups, including present-day unionists, some of whom feel they would have more power and leeway in that configuration.

Discussion centred on how unionisms can best be compared. Culture matters, as well as territory, in that respect. The potential shape of a united Ireland was another focus and again the scope and opportunity for deliberation ahead of that decision was emphasised.

That is one of the main points to be taken from a rich and rewarding day. Brexit is indeed creating a constitutional moment on the island of Ireland, whether assessed by political crisis, fallout effects from Brexit and growing awareness of the potential speed of change. An inclusive, pluralist and open-ended discussion of the options arising from this moment is possible and necessary. Much responsibility rests on the Irish state to facilitate that, working as best they can with an uncertain and weaker British leadership. There is also a key role for civil society groups and for research to clarify potential options. The IBIS project on constitutional futures has been developed in that spirit. Its three pillars of analysis, deliberation and public policy will be guided by this initial seminar as the project is developed over the next three years.