Unity in diversity? Constitutional identities, deliberative processes and a ‘border poll’ in Ireland

Efforts to conjoin two polities to create a new third polity must provide for a process to address the relationship between issues of self determination and constituent power.Footnote1 Much existing analysis of the legal dimensions of (re)unification of Ireland and Northern Ireland, consider the extent to which the 1998 Belfast/Good Friday Agreement,Footnote2 UK constitutional law and Bunreacht na hÉireann (the Irish Constitution) condition the arrangements for the process commonly referred to as a ‘border poll’. This article moves beyond that discussion. These legal arrangements lay down some preconditions, and debate persists over their extent, but the mere exercise of construction of their terms, however detailed, will not resolve how to conduct a (re)unification process which provides for deep democratic engagement. Moreover, notwithstanding Ireland’s experience with citizens’ assemblies, constitutional reviews, conventions, forums and referendums,Footnote3 these deliberative processes cannot simply be unthinkingly replicated in the context of (re)unification. Through engaging ideas of constituent power, feminist constitutionalism and reviewing existing civil society practices on the ground, we explore how an effective deliberative process could be developed on this contested issue. Our approach thus involves an act of pre-figurative legal imagining, though one conducted within the confines of the 1998 Agreement and broader international legal obligations. Davina Cooper suggests that ‘prefigurative politics perform present-day life in the terms that are wished-for, both to experience better practice and to advance change’.Footnote4 For our purposes this involves interrogating existing legal structures and exploring how best to advance a process that should be deeply deliberative. As Margaret Davies writes, ‘prefigurative practices cross the divide between the legal present and our legal futures’.Footnote5 This is the space that this article inhabits.