The Constitutional Future of Ireland

Conflicts, debates, and agreements regarding the constitutional future of the island of Ireland have been a constant and defining feature of Irish and British political discourse for the better part of the last century. These discussions have shaped not only the internal politics of the island but also the broader relationship between Ireland, the United Kingdom, and, in more recent decades, the European Union.

The issues surrounding the constitutional status of Northern Ireland have, however, re-emerged with particular force following the majority decision of the people of the United Kingdom to withdraw from membership of the European Union as a result of the Brexit referendum held in 2016. This decision, with its profound geopolitical consequences, reactivated old tensions while simultaneously introducing new and highly complex challenges. It is a decision that has continued to reverberate across political and social landscapes, both on the island of Ireland and beyond.

Indeed, it is widely accepted within Ireland, as well as among international observers, that Brexit, alongside escalating demographic changes and a shifting political landscape on both sides of the border, has created a renewed sense of urgency around the question of constitutional change. This sense of urgency is not merely theoretical or speculative; it is deeply rooted in the evolving realities of governance, identity, and national belonging that Brexit has laid bare.

The urgency of these issues was dramatically underscored across Ireland, the UK, and the broader European Union when it became increasingly apparent that the outcome of the Brexit referendum would lead to a situation where the hard-won gains of the 1998 ‘Belfast Agreement,’ more commonly known as the Good Friday Agreement (GFA), were at risk of being undermined. These gains, achieved through decades of painstaking negotiation and sacrifice, were particularly endangered by the prospect of a so-called ‘hard border’ separating the two jurisdictions on the island of Ireland. For many, this possibility was more than just a logistical or technical challenge; it symbolized a potential regression to a time of deep division and conflict.

The Good Friday Agreement, signed in 1998 after three decades of ruthless and bloody conflict on the island, represents a landmark achievement in conflict resolution and democratic governance. It is based on a foundation of key principles, including “parity of esteem” between the Nationalist and Unionist communities, and the “principle of consent,” which underpins Northern Ireland and the Republic of Ireland’s respective constitutional claims and statuses. These principles remain as relevant and vital today as they were at the time of the Agreement’s signing, serving as a guiding framework for peace and cooperation on the island.

At the heart of the Agreement is a recognition of the legitimacy of whatever choice is freely exercised by a majority of the people of Northern Ireland concerning its constitutional status. This includes the possibility of a change in that status should a majority in both the North and South of Ireland decide, through a referendum, to opt for a united Ireland. These provisions were overwhelmingly accepted in May 1998 when the people of the island of Ireland, both North and South, voted to endorse the Good Friday Agreement in a historic referendum. The agreement achieved majorities of 71% and 94% voting ‘Yes’ in Northern Ireland and the Republic of Ireland, respectively. This also necessitated significant and symbolic revisions to Articles 2 and 3 of the Irish Constitution, reflecting a new era of mutual consent and cooperation.

Before its amendment in 1998, Article 2 of the Irish Constitution stated that “The national territory consists of the whole island of Ireland, its islands and the territorial seas.” Meanwhile, Article 3 staked a clear territorial claim to the entire island: “Pending the re-integration of the national territory, and without prejudice to the right of the parliament and government established by this Constitution to exercise jurisdiction over the whole territory, the laws enacted by the parliament shall have the like area and extent of application as the laws of Saorstát Éireann and the like extra-territorial effect.”

Following the referendum, these articles were amended to reflect a more inclusive and consent-based approach.

Institutions with executive powers and functions shared between the two jurisdictions were also envisioned under the Agreement, reinforcing the spirit of cooperation and joint decision-making that underpins the peace process.

On the specific issue of how the Brexit referendum outcome threatened to impact the Good Friday Agreement, the EU’s Policy Department for Citizens’ Rights and Constitutional Affairs provided an insightful and detailed analysis. This analysis outlined how EU membership for the UK and Ireland provided an essential context for the conception and implementation of the Good Friday Agreement. It highlighted how the UK’s withdrawal from the EU compromised that shared context, thereby undermining both the Agreement itself and its effective implementation.

Furthermore, the analysis emphasized that the UK government’s decision to leave the EU customs union and single market made a hardening of the Irish border almost inevitable. Such a development, while seemingly technical in nature, carried profound symbolic and psychological implications for many, representing a significant step backward in the peace process. It also posed a tangible threat to the integrity of the Agreement, as the divergence of the UK and Ireland in areas such as law, trade, security, rights, policies, and politics became an increasing concern.

These conclusions were echoed in a 2019 research report titled “Northern Ireland Returning to Violence as a Result of a Hard Border or a Rushed Border Poll: Risk to Youth,” authored by Irish Senator Mark Daly, along with co-authors Professor Pat Dolan and Professor Mark Brennan. The report underscored the risks of destabilization, particularly among young people, should the peace process be undermined.

Fortunately, intensive negotiations led to the February 2023 Windsor Framework agreement between the European Commission and the UK Government. This Framework constitutes a comprehensive set of solutions aimed at addressing specific issues, safeguarding the Good Friday Agreement, and ensuring that the voices of Northern Ireland’s people are better heard.

Despite these solutions, the question of Ireland’s constitutional future remains far from settled. Calls for a ‘border poll’—a referendum on Irish reunification—have intensified since the Brexit referendum, reflecting growing interest and urgency surrounding this issue.

Provision for a border poll is contained in the Northern Ireland Act 1998, which gave legislative effect to the Good Friday Agreement in Northern Ireland. It states that consent for a united Ireland must be “freely and concurrently given” in both the North and South of the island of Ireland. However, the decision to call such a poll ultimately lies with the Secretary of State for Northern Ireland, who must be satisfied that a majority in Northern Ireland is likely to support reunification.

Professor Jon Tonge of the University of Liverpool has analyzed opinion surveys conducted in Northern Ireland since the Brexit referendum. Out of 12 surveys, only three showed more respondents in favor of a united Ireland than against. This highlights the complexities and uncertainties surrounding the timing and likelihood of a border poll.

Meanwhile, the Irish Government has reaffirmed its commitment to the principles of the Good Friday Agreement, stating its readiness to respect the outcome of any future referendum conducted under the Agreement’s terms.

It is evident that the constitutional future of the island of Ireland remains a topic of intense debate, underpinned by decades of history, struggle, and progress. Maintaining the unity and cooperative spirit of the Good Friday Agreement is critical to ensuring that this debate unfolds peacefully and democratically, avoiding a return to the instability of the past.