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Machnamh on Constitutional Trajectories Since 1922 by Brendan O’Leary

26th May, 2022

Three new political entities emerged on this island in 1922: the Irish Free State; Northern Ireland; and, sometimes overlooked, the United Kingdom of Great Britain and Northern Ireland. Two new states materialized. Northern Ireland was not one of them—though many have suggested otherwise, including James Craig who boasted of “a Protestant State” in riposte to those who had allegedly boasted of a Catholic one.

Northern Ireland

Northern Ireland has never met any formal definition of a state—not Hegel’s, not Marx’s, not Max Weber’s, nor that of any other German eminence. Nor has it ever met standard legal definitions. Legislated through the Government of Ireland Act of 1920 Northern Ireland was neither domestically nor externally sovereign and has never had constituent power. Differently put, it cannot make its constitution on its own. Intermittently, it has been a devolved entity (1921-72), with delegated powers, powers that have been revoked in favor of direct rule (1972-98, 2000, 2002-7), and that may be revoked again. “In terms”, as lawyers say, it has never been a state in a federation: its powers could always be revoked. Throughout its existence Northern Ireland has been subject to the overriding sovereignty of the Westminster parliament—and still is, even though that parliament repealed Section 75 of the Government of Ireland Act in 1998. The Suspension Act of 2000, passed and implemented without the approval of the Government of Ireland, is a recent illustration of this sovereign override. On April 30, 2021, a BBC reporter told us that “A panel of historians set up to advise the government on Northern Ireland’s centenary has settled on 3 May 1921 as the birthdate of the state.” Admittedly, that must be the sole occasion on which a panel addressing a controversial topic in and over Northern Ireland has made an agreement to time—albeit with three days to go. The panel erred, however, if it thought it was naming the birthdate of a state called Northern Ireland. 2 The reporter mentioned that seven other birthdates had been considered. My own writing, with some disposition toward mercy, has considered four plausible birthdays: December 23, 1920, when the Government of Ireland Act was ratified; May 3, 1920, when it entered into force; June 22, 1921, when the Belfast parliament was opened; and, lastly, the occasion unionists are inclined to forget, 8 December 1922. That was when the Belfast parliament voted to secede from the Irish Free State, into which it had been legally put by the treaty signed in 1921. That treaty was not ratified by the King-in-Parliament until late 1922, after the final draft of the Constitution of the Irish Free State had been ratified. The previous version had been rejected by the British cabinet as incompatible with the treaty of 1921, a rejection that made the war of Green against Green, the Irish civil war, more likely. Any place with four or more birthdays is unlikely to be the subject of an agreed celebration, or commemoration, and so it has proved. But one factual observation flows from the fourth birthday: if the people of both jurisdictions vote in future with concurrent majorities to create a “sovereign united Ireland” then they would accomplish reunification. If Northern Ireland had a constitution before the Good Friday Agreement, it was the Government of Ireland Act, originally drafted to create two devolved parliaments within the Union, with continuing Westminster sovereignty, and with continuing but reduced Irish representation in the House of Commons. The Liberal Imperialist and Conservative solution to Irish self-determination was to invent two Irelands, Northern and Southern, with a geographic insouciance that still rankles, especially in Donegal. Unionist elites decisively shaped the final territorial definition of Northern Ireland—insisting on six counties, thereby betraying their co-ethnics in Donegal, Cavan, and Monaghan. They did not, however, significantly debate or reflect—they did not engage in an act of Machnamh—on what constitutional forms Northern Ireland should have. In practice they resented inconvenient deviations from the Westminster mothership and would soon rectify them. No evidence exists of serious reflection within the UUP of the 1920s regarding what constitutional forms would best win the consent of the newly created political minority in Northern Ireland—the nationalists who saw themselves as part of an all-island majority, and the other overlapping minority, cultural Catholics. Rather, the UUP focused on control: preventing or putting down republican rebellion, organizing unionists, and disorganizing Northern nationalists and republicans—who were, admittedly, doing a thorough job of disorganizing themselves. Unionist elites did care about local fiscal burdens and benefits. Throughout the 1920s Craig worked successfully to increase subsidies from the London Treasury, and to bypass Lloyd George’s fiscal provisos. Had he not done so, Northern Ireland might have gone bankrupt in the 1930s, like Newfoundland. The British compromise was to give home rule to those who claimed they did not want it after they had refused or postponed it for those who had wanted it. As it happened, however, unionists 3 preferred local home rule to its alternatives, but not home rule within the Irish Free State. They cared about who ruled at home. The UUP would work to make Northern Ireland as culturally British as possible. They abolished proportional representation in local government almost immediately—to strengthen the case against revisions of the new border. Within the decade, PR-STV was abolished for elections to the Stormont parliament being built in Belfast’s eastern suburbs. Twice London governments chose not to prevent the abolition of proportional representation. The UUP sought to polarize local politics on the national question, curiously called “the constitutional question” by all sides, thereby making it easier for the party to act as a pan-Protestant alliance of classes and sects. The “adversarial politics” of the Westminster parliamentary model may be suited to homogeneous societies—if two major parties compete for the moderate median voter. But it has always been deeply unsuited to places rent by divisions over national, ethnic, and religious questions as was already apparent as the Union of Great Britain and Ireland began to democratize significantly after 1884. Reverting to winner-takes-all in single member-districts in Belfast helped the UUP to marginalize Protestant socialists—deemed “rotten Prods” during the expulsions of Catholics from Belfast’s shipyards. It also helped keep loyalist ultras generally within the folds of the dominant party. Republicans and Northern nationalists were given no reasons to abandon “abstentionism.” Among other “securities” for Southern Protestants, STV-PR had been introduced for Irish local government electionsin 1920 and wasthen put into the Government of Ireland Act. STV-PR would stay in the South, championed by Arthur Griffith, incorporated in both the Constitution of the Irish Free State and its replacement. Subsequent efforts, by Fianna Fáil governments, to replace STVPR with winner-takes-all were defeated in referendums in 1959 and 1968. These institutional decisions had consequences. Fianna Fáil, while the largest party, always faced prospects of not being able to form a government. The UUP did not, though it was constantly anxious that it might lose. It dealt with the anxiety by making losing highly improbable. STV-PR was not restored in the North until 1973. In the interim, the Ulster Unionist Party won all general elections held to the Belfast and London parliaments. No alternation in government took place. Two prime ministers, Craig and Brooke, served for twenty years each. Death in office may have been the most common means of changing cabinet ministers. There was no incentive to attract Catholic let alone nationalist votes. The party did not debate Catholic membership until the late 1950s. Abuse of power was plentiful, especially where its exercise would further entrench the party. All the pathologies of the UUP’s dominance were aggravated by the abolition of PR. Namely, partisan control of the police and its B Special reserves; gerrymandering; making elections into censuses of the loyal; direct and indirect discrimination against Catholics, 4 nationalists, and republicans—in employment, housing allocation, and the building and siting of infrastructure; the maintenance of an unreformed local government franchise; and the weakness of parliamentary opposition. Failure to protect the securities they had included in the home rule acts typified Westminster’s negligent oversight. Northern Ireland has been the subject of five major treaties since its creation:  The founding treaty amended the Government of Ireland Act, putting Northern Ireland into the Irish Free State, while allowing it to secede back into the UK, subject to two provisos: a boundary commission, which would, it seemed, create a fairer border, and an obligation on Northern Ireland to pay its full fiscal contributions, then known as Imperial contributions. Neither proviso was fulfilled.  The treaty of 1925 amended the foundational treaty. It buried the boundary commission, and the Council of Ireland—though the latter idea would be resurrected and rejected in the making and defeat of the Sunningdale Agreement in 1973 and 1974.  The Anglo-Irish Agreement of 1985 created the inter-governmental conference; pledged the further reform of Northern Ireland in return for security co-operation; and incentivized power-sharing devolution.  The latter was not agreed until the British-Irish Agreement of 10 April 1998, which promised to safeguard and implement the three-stranded power-sharing settlement reached in multi-party talks in Belfast.  Last, and most recent, is the Ireland/Northern Ireland Protocol, an integral part of the UK’s Withdrawal Agreement of 2020 with the European Union, intended to preserve the gains of the 1998 Agreement. The Government of Northern Ireland was a party to just one of these treaties, that of 1925—but not as a state. The Good Friday or Belfast Agreement—the latter name preferred by those who emphasize where it was signed rather than the day it was made—addressed how a Northern Ireland government would be composed, at least this side of a reunified Ireland, and it was agreed by double referendums, not just in the North, and negotiated and ratified under the supervision and with the exhortation of the two sovereign governments. Being the subject of five significant international treaties suggests that sustained insecurity describes Northern Ireland’s constitutional trajectory—for which many are jointly culpable, not least unionist leaders. Even the place’s name has never been fully agreed. Unionists would have preferred to call it Ulster, taking the name of the whole for the larger portion. They lobbied for that name-change in 1937 when the name of the Irish state was changed, and in 1949 when the republic was redeclared. London governments refused the name-change but did not object to the Royal Ulster Constabulary—or later to the Ulster Defence Regiment. To this day, most loyalist militia have Ulster in their titles, not Northern Ireland. For traditional Irish nationalists the place remains “the North of Ireland,” for traditional republicans, “the six counties.” 5 A last measure of Northern Ireland’s constitutional insecurity may be taken from Richard Humphreys very useful edition of key documents, Reconciling Ireland: Fifty Years of British-Irish Agreements. His text includes 40 agreements made between 1973 and 2020, but not the recent Protocol to which the UK and Ireland are parties—Ireland through the EU. We may expect further such agreements before future referendums decide the status of Northern Ireland. In the long story of British direct rule between 1972 and 1998, that I cannot examine here, the Government of Ireland Act was progressively amended or extinguished by British governments until it was replaced by the 1998 Agreement. Unlike previous power-sharing initiatives, the Good Friday Agreement eventually appeared to stabilize between 2007 and 2017, after the St Andrews Agreement led to minor adjustments of its content. For the first time constitutional arrangements enjoyed legitimacy throughout the island as well as within and across Northern Ireland. The parties to the 1998 Agreement included republicans as well as loyalists. They accepted consociational arrangements, power-sharing between communities and parties based on the principles of parity, proportionality, autonomy, and veto-rights on devolved matters. I have reviewed these in detail elsewhere—generally favorably. However, these arrangements are not “constitutionalized” as that term is understood elsewhere. They are partly in a UK “constitutional statute,” the Northern Ireland Act 1998, as modified by subsequent legislation, notably the St Andrews Agreement. All that does is to protect the GFA against implied repeal. They are also in the provisions of the text agreed by the parties in 1998 that are not incorporated into UK domestic law. These include the recognition of the right of the people of Ireland, North and South, respectively to exercise their right of self-determination to create a sovereign united Ireland, or to maintain the Union; to do so “without external impediment;” and, not least, the obligation of “rigorous impartiality” in administration by the incumbent sovereign government. Lastly, they are protected by two treaties, one between the UK and Ireland, and now one between the EU and the UK. The permanent constitutional trouble, admittedly not the only one, is that Westminster’s sovereignty hangs like a sword of Damocles over all these arrangements. No Westminster parliament can bind its successor. Each fresh UK government may modify these and any other constitutional arrangements—if it so chooses—provided it can pass the relevant laws. Simply put, a binding treaty with a parliament that allows itself easily to modify or repudiate treaties, deeply impairs the UK’s capacity to make credible commitments to foreign governments, including Ireland’s. Equally that same parliament cannot make solemn internal constitutional pledges to nationalists, unionists, or others. What Westminster gives, Westminster may take away, by the same means. 6 The constant lobbying of the Westminster government of the day to implement the 1998 Agreement—or not—or to implement the Protocol—or not—reflects this condition of permanent constitutional insecurity. Perfidious Albion, I like to say, is a constitutional condition, not a national character trait. No Anglophobia is required for this diagnosis—or intended. No governing arrangements or platform of rights in any part of the Union is institutionally entrenched against a simple majority in the House of Commons and the Lords—including the Acts of Union, as recently advertised by Justice Adrian Colton’s eloquent essay in constitutional law, upheld by the Northern Ireland Court of Appeal in March 2022. So long as parliamentary sovereignty remains the UK’s Grundnorm the credible entrenchment of rights and procedures—even when sincerely supported by London ministers—cannot be offered to the Scots or the Welsh, let alone the three designations of Northern Irish. And as observed throughout this island, the current Conservative government feels free in principle to repudiate— allegedly “in a very specific and limited way”—treaties which it has very recently signed. Northern Ireland was a constitutional failure before 1998, an example of how the Westminster model may be abused by a dominant party based on a dominant nationality, ethnicity, or religious community. Its replacement by a consociational devolved settlement with institutionalized NorthSouth and East-West relations, is a very distinct improvement, but that settlement has proven brittle, especially without sustained British and Irish governmental oversight and cooperation. The settlement was not made by and has never been fully owned by leading English Conservatives, with the notably honorable exceptions of Christopher Patten and John Major (the latter in retrospect). The fragility of the settlement has been exposed by the Johnson administration’s decision to choose a hard exit from the EU—for Great Britain, while in bad faith signing a Protocol to address the Brexiteers’ afterthought—Northern Ireland. Whether the 1998 settlement endures remains to be seen; if it does, it will ease a more benign path toward reunification.

Independent Ireland

The Irish Free State, by contrast to Northern Ireland, was a state, and became a free state. Statehood was in its founding title, but Whitehall’s lawyers sought, unsuccessfully, to keep it constrained by the narrowest construal of “the Treaty.” The domestic sovereignty of the IFS was mostly clear at the outset, albeit constrained by the “Articles of Agreement for a Treaty” ratified by Dáil Éireann and the Westminster parliament in 1922. The Free State immediately had the treaty-making powers of Canada, and by 1923, against the wishes of His Majesty’s Government, it was recognized by the League of Nations, of which it would become a member in good standing. By 1931, Westminster had renounced the right to legislate for any dominion—the designation through which British drafters of “the Treaty” had hoped to confine the sovereignty of the Irish Free State. Within fifteen years most of the constitutional articles, including most of those in the Treaty, imposed against the first preferences of the Irish negotiators, were gone. Successive constitutional 7 amendments by Cumann na nGaedheal or Fianna Fáil-led governments were not contested or were acquiesced in by London governments. The Irish of the Free State adopted Bunreacht na Éireann, by referendum, in 1937. Literally that is the Fundamental or Basic Law of Ireland, but officially it is translated as the Constitution of Ireland. Unlike the Free State Constitution, the Bunreacht was entirely made in sovereign Ireland, and ratified by its sovereign people alone, through their own parliament and by a referendum. It thereby achieved a widespread standing that its predecessor never attained, because both the Treaty and London’s rejection of the official first draft of the Constitution of the Irish Free State were accompanied by a British threat to renew war. The following year Neville Chamberlain’s government, on the advice of his senior military officers, relinquished the so-called Treaty ports, leaving the Government of Ireland fully sovereign over its territory. The so-called “economic war” was settled at the same time—in de Valera’s and Ireland’s favour. So by 1939 the State named Ireland in the English language had become fully externally sovereign, demonstrated through its subsequent neutrality throughout World War 2. In all but name it had become a republic again, with an elected President, described as taking “precedence over all other persons in the State.” The outstanding feature of the Treaty contested by nationalists of all hues—Northern Ireland’s existence—was tactically but not tactfully addressed in Articles 2 and 3 of the Bunreacht. These claimed the whole island as Ireland’s national territory but confined the jurisdiction of the Oireachtas to the territory of Saorstát Éireann. Seen as aggressively irredentist by unionists, these articles were qualified by Article 29 of the Constitution, which obliged Ireland to obey international law, and to settle territorial disputes peaceably. They deliberately left open the possibility that Northern Ireland could be transferred to Ireland by an agreement between Great Britain and Ireland, without the consent of its parliament or a majority of its people. After 1937 Irish governments effectively did not recognize Northern Ireland, silently repudiating the agreement of 1925. Irish sovereignty was prioritized ahead of détente with the Northern government. Non-recognition was fully reciprocated by the Government of Northern Ireland’s cultural and ideological distance from de Valera’s Ireland, which it berated for betraying the Treaty—one that the UUP government had not recognized at the time. We also now know that in June 1940 Craig wrote to Churchill recommending that Scottish and Welsh regiments should be sent to topple the regime in Dublin and to install a British military governor. On this occasion Churchill did not agree with Craig. Mutual non-recognition persisted: the Prime Ministers of Ireland and Northern Ireland did not meet between 1925 and 1965. The UK did not recognize Ireland by its official name until 1998; Ireland did not fully recognize Northern Ireland by its name until it ratified the British-Irish Agreement and modified Articles 2 and 3 in 1999 to specify mutual consent for reunification. 8 Disputes over names and refusing to recognize one another’s preferred names feature in the base currency of deep national and ethnic conflict. The Constitution of the Irish Free State was replaced for two reasons. One was to complete the implementation of De Valera’s Document Number 2, his alternative to the 1921 Treaty, that had been rejected both by the British and by a majority of his fellow Sinn Féin cabinet members, and a majority of the revolutionary Dáil Éireann. The other reason was that the Constitution of the Irish Free State had become too British, but not in a monarchical sense. Unexpectedly, each article could be amended by a simple majority of the Oireachtas, i.e., the Oireachtas became sovereign. Legally that development was allowed to happen through the exploitation of a badly drafted albeit misinterpreted Article 50—what is it about Articles numbered 50? In that article the entrenchment of the constitution had been postponed for eight years—initially to enable minor corrective amendments by ordinary legislation; but it was then extended for sixteen years, through arguably invalid amendment of the amending provision. Had the planned entrenchment occurred, then a referendum passed by a qualified majority would have been required to ratify constitutional amendments. Legally, the de facto shift to Oireachtas sovereignty was also enabled by a curious court judgment by Judge MR O’Connor in May 1924, R (Cooney) v Clinton. The judge held that retrospective legislation validating the military courts that had been used to try militant republicans should be treated as a constitutional amendment—even though the act in question had not been brought forward as such. Effectively this decision returned the Irish Free State to the British judicial doctrine of ‘implied repeal.’ As a result of this decision and subsequent cases the Constitution could be amended by ordinary legislation “without specifying the provisions to be amended and without even specifying any intention to amend the Constitution.” The Cumann na nGhaedheal government also abolished the article enabling a popular initiative to launch a referendum because Fianna Fáil began to mobilize to hold one targeted against the Treaty. Despite its eventual failure the Free State Constitution nevertheless deserves some backward glances of approval, but not because of its unstable compromise between a democratic and republican ethos and British monarchic symbolism, but rather because of its innovative ambitions and its good faith intent to accommodate Irish Protestants and Unionists—including Ulster Protestants. The innovative ambitions included the desire to entrench citizen not parliamentary sovereignty—by making the people sovereign, and by requiring referendums to change the constitution—and the desire to establish judicial review to ensure that governments did not breach the people’s rights. The accommodationist ethos was present not just in the determination to keep 9 STV-PR as a safeguard for Protestants throughout the island, but in the decision to establish a Senate in which Protestants would be significantly over-represented: a goal lost when the Senate became party-politicized. Last, but not least, all three internal drafts of the Constitution of the Free State, obliged a request from Michael Collins regarding the North. Article 44 of the final constitution had the following provision: “The Oireachtas may create subordinate legislatures with such powers as may be decided by law”. Collins had wanted a mechanism readily available to incorporate a devolved Northern Ireland within a reunited Irish Free State. Fifteen years later, Éamon de Valera kept open the option for “subordinate legislatures.” Article 15.2 of the Bunreacht provides that, “1° The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State. 2° Provision may however be made by law for the creation or recognition of subordinate legislatures and for the powers and functions of these legislatures.” (Author’s emphasis) There is a clear difference between the two constitutions. Under Ireland’s current constitution, a law may be passed by the Oireachtas to recognize an existing legislature as subordinate. At the time this text allowed for the recognition of the Northern Ireland Parliament, which had been running for some sixteen years when Bunreacht na hÉireann was ratified. The same clause could, however, be used to recognize the current Northern Ireland Assembly as a subordinate legislature. De Valera’s constitution has proved robust and flexible, surprising many. It has become a constitution as ordinarily understood. The Oireachtas is not sovereign. The constitution protects popular sovereignty. Referendums are required to amend the constitution. Judicial review and presidential reference for judicial review have helped protect constitutional and human rights, both those that are explicit, and those Americans call “unenumerated.” The constitution has been sufficiently flexible to allow Articles 2 and 3 to be amended to reflect the principle of concurrent consent for Irish reunification, and to enable amendments, starting with the modification of Article 44 on religion, that reflect the country’s thoroughgoing secularization, as well as its integration into the European confederation. It is sufficiently flexible to allow for two different models of future reunification—one with a continuing Northern Ireland Assembly, and one in which Northern Ireland is dissolved. It must, however, be radically amended or replaced if federation becomes the chosen model of reunification, an unlikely possibility I believe. The Constitution’s Preamble, however, is not fit for purpose: it reads as sectarian, whatever the drafting intent. Likewise, the provisions on declarations for officeholders, including the President’s, need to be fully secularized. Its drafting spirit was patriarchal and regressive regarding women’s rights. A full scan and deliberation over the constitution, particularly its language provisions, is minimally necessary before the momentous and galvanizing prospects of reunification referendums circa 2030. Comprehensive replacement, however, may not be required, unless the model of 10 reunification chosen is based on holding a constitutional convention elected by the entire people of the island.

The United Kingdom of Great Britain and Northern Ireland

The other state created in 1922, the United Kingdom of Great Britain and Northern Ireland, is sovereign over Northern Ireland. It is sometimes, inaccurately, referred to as “the British state in Ireland,” because there is no good adjectival form for UK. “Ukania and Ukanian”, advanced by Tom Nairn, have no extensive followers. In 1922, the territorially reconstructed United Kingdom lost more of its sovereign territory (22%) than Germany had at Versailles (13%), a vivid testament to its failure to incorporate Ireland into British nation-building. This down-sizing, under the pressure of ballots and armed insurrection, caused no significant political aftershock within Great Britain. No institutional transformation occurred akin to France’s reconstruction during withdrawal from Algeria. Any prospects of “home rule all around” or of federalizing the UK died, surviving only in the Round Table group—pan-dominion or commonwealth imperialists led by Lionel Curtis, who had been an advisor to Lloyd George during the making of the Treaty and after. From the perspective of British political elites, especially the Conservatives, down-sizing from Ireland, South and North, was almost a complete success. Ireland no longer sent over 100 MPs to the House of Commons. Tiresome “Irish questions” were removed from the Commons, aided by a Speaker’s convention blocking parliamentary questions and discussion on matters devolved to Northern Ireland. The Tories could also count on 10-12 UUP MPs at Westminster to take the Conservative whip until 1972, a phenomenon which concentrated Harold Wilson’s mind when Labour won a House of Commons majority of four seats in 1964. Managing Ireland became largely a question of international relations, whereas Northern Ireland was delegated to a small number of officials in the Treasury and the Home Office. The removal of “the Irish question” from the Commons also unexpectedly facilitated the growth of Labour and the Conservatives at the expense of the Liberals. “Class is the basis of British party politics; all else is embellishment and detail.” So wrote a professor of politics in 1967. That illusion was easier to believe after 1945 and before the duopoly of Labour and Conservatives began to breakdown in the mid-1970s. At least Scotland and Wales were part of the embellishment and detail; Northern Ireland was not; it was not treated as part of British party politics—its details did not fit class politics, even though its dominant party represented conservative British Protestant culture in nearly fossilized forms. Intellectual neglect within the British academy mirrored the political neglect in Westminster and Whitehall, and in the press and civil society. British imperial elites also quickly judged that partitioning Ireland had been a success—whence the confidence with which some of their officials advanced partition as a “solution” for mandate Palestine and “British” India. 11 After 1918 and 1945 the victors of two world wars saw no reason to replace their constitution, essentially the English constitution, with its core doctrine of parliamentary sovereignty. Later, the not-so-post-imperial political elite of Greater England found European integration, especially the European Union, a profound challenge. There they encountered a constitutionalized confederationin-the-making, rather than an international organization to be treated à la carte. We all know how that tension ended, or at least appears to have ended. Grafting the English constitution into the European confederation eventually did not work, although ironically the divorce took place after a referendum intended to resolve intra-elite disagreement among the Conservatives. Twenty years ago, it had not been absurd to imagine the UK evolving in an informally quasi-federal manner within a confederalizing Europe. That vista has gone like the snows of yesteryear. Until England, and I mean England, constitutionalizes in a conventional manner by removing sovereignty from its imperious parliament, it will remain an awkward partner to its domestic neighbors, and its sovereign neighbors. “Awkward” is a polite adjective. Indeed, the dissolution of the two unions, that of Great Britain and that of Great Britain and Northern Ireland, may occur before the English determine to join the club of genuinely constitutionalized democracies. The rules for the dissolution of the union with Northern Ireland are agreed in a treaty, the rules for the other union are not. The current Conservative Prime Minister reserves the right to determine when the people of Scotland may next decide on their self-determination.


Finally—the late JK Galbraith advised that a speaker should always say “finally” to give hope to his audience. Finally, we must learn from our constitutional experiences. 1922 was a bloody year throughout much of the island; both emergent jurisdictions experienced civil war. Both initial constitutional orders were failures, by the evaluative standards of constitutionality used here. We still live with the consequences. The compromises of 1937 and 1998 did not definitively settle the constitutional orders of the South and the North. The terms and conditions for future referendums on the possibility of reunification. are specified in the 1998 Agreement—though not with the detail many would like to see. They are also protected by two treaties. However, adequate constitutional preparation for the possibility of the referendums has not begun. The nature of the UK state, and Northern Ireland’s lack of statehood, puts a particular onus on the Irish state to prepare for reunification. The minimal statecraft required of this cohort of deputies and senators in the Oireachtas is to start considering the optimal constitutional accommodations that would provide a soft landing to the possible losers in the referendums. The losers could be Ulster unionists; but they could also be Northern nationalists—though they will be entitled to another referendum seven years later if the conditions are met again. 12 I have been told that it is a bit rich for the Irish to demand that treaties be honored given that the independence of Ireland was accomplished through unilateral amendment or repudiation of a treaty’s articles. There is, however, an incomparable difference between voluntary treaties, freely negotiated and ratified, and coerced treaties imposed by the threat of “terrible and immediate war.” Similar comparative condemnation should attach to insincere treaty-making. Preserving constitutional order and avoiding any diminution in the protection of rights across the island is the immediate challenge faced by our politicians. Preparing all, South and North, for the possibility of reunification, so that it may occur as democratically, peaceably, and constitutionally as possible, is the larger and more demanding challenge, both for this political class, and those who will follow them. Acknowledgements. The kind invitation to make this address was received from President Michael D Higgins. He bears no responsibility for anything advanced here. I would like to thank Professors Shelley Deane, John Doyle, Oran Doyle, Steven Greer, John Hall, Breandán Mac Suibhne, Pól Ó Dochartaigh, and Etain Tannam for their comments on the first draft. They too are not responsible for anything contained here.