Deliberating Constitutional Futures

This is the report of a TJI workshop held on 18 February 2020.

Concept Note
Democracies govern in the name of ‘We the People’ and referendums appear as the most direct way of involving the people in self-government. Amidst fears that the public are becoming disenchanted with representative democracy and de-aligned from political parties, referendums offer one route to re-engage the people in politics.

At the same time referendums carry important risks. There are many questions about the technical operation of referendums, perhaps especially in a country like the UK lacking a codified constitution and tradition of direct democracy. The wording of a referendum is vital to get right. And referendums are not necessarily conducive to democratic deliberation. The discourse around a referendum may arouse tensions and incite incivility. They represent the risk of a majoritarian solution in a context where minorities may feel marginalised.

Perhaps the most sensitive of these efforts to consult ‘We the People’ are precisely in those situations where the very identity of the people themselves is in question.

A possible referendum is part of the Belfast or Good Friday Agreement, as part of a nuanced package of measures to resolve the protracted conflict in the divided society of Northern Ireland. The Agreement recognises the right of the people of Northern Ireland to be Irish or British or both and recognises their right to decide whether to remain a part of the United Kingdom or to join Ireland. One of the unintended consequences of the UK’s 2016 Brexit referendum has been to increase the likelihood of such a ‘border poll’. The stakes in any such referendum would be high. For the people of Northern Ireland,
it would mean re-joining the European Union. For Ireland it would imply constitutional change. And there is the risk of increased tensions among Northern Ireland’s divided and segregated society and possible unrest or violence.

These issues have a special historical and political resonance in the context of Northern Ireland, but they are not uniquely Northern Irish. It is important to reflect on international and comparative learning to consider how to conduct a border poll. In particular how could a border poll be conducted in a way that encourages deliberation and the genuine participation of people across society and across the divisions of this society?

This workshop brings together experts on referendums internationally and within the different jurisdictions in these islands to reflect on the past and prepare for the future.