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FactFind: How could a border poll happen?

Talking aside, who actually makes the decision?

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WHETHER OR NOT Ireland moves to hold a referendum on unity in the coming years, discussing how such a vote might happen is a useful exercise. 

As we’ve discussed already in The Good Information Project series, this is not only because ignoring it completely as a possibility seems foolhardy, but also because the Irish Constitution explicitly states a desire for it to happen.

GOOD FRIDAY AGREEMENT 13271 Votes being counted in the 1998 referendum. Source: RollingNews.ie

The Good Friday Agreement, which was backed by 94% of voters in the Republic and 71% in the North, also allows for Irish unification should voters on both sides of the border agree.

This does not answer the question of when such a vote should take place, a point we will examine later but there is much to discuss first. 

Questions such as what is the Irish State’s official position on unity? What exactly have we signed up for under the Good Friday Agreement and what are government’s required to do about it?

There’s also issues surrounding the role of the UK’s Secretary of State for Northern Ireland and indeed how the timing of a border poll has been interpreted by the courts. 

What does the Irish Constitution say about unity? 

The reason Irish citizens in the Republic were required to vote on the Good Friday Agreement 23 years ago was because it changed the Constitution – specifically the language around Northern Ireland and the Irish State’s relationship to it. 

Before the 1998 vote, the Irish Constitution essentially had a “claim of right” over the entire island of  Ireland and its seas, stating: “The national territory consists of the whole island of Ireland, its islands and the territorial seas.”

Furthermore, the Constitution stated that while any laws passed by the Oireachtas would apply to the 26 counties, this was only “pending the re-integration of the national territory”.

In effect, it meant that the Constitution was also claiming Northern Ireland, while acknowledging that it wasn’t presently able to govern it. This territorial claim was an issue for unionists and the pledge to replace it was a key part of the GFA.

Instead, what was inserted into the Constitution was a watered-down and more aspirational desire for unification, as laid out here in Article 3

It is the firm will of the Irish nation, in harmony and friendship, to unite all the people who share the territory of the island of Ireland, in all the diversity of their identities and traditions, recognising that a united Ireland shall be brought about only by peaceful means with the consent of a majority of the people, democratically expressed, in both jurisdictions in the island.

That desire for a united Ireland is clear, but what is less clear are any actions that should be taken to make it happen. There are no specific details laid out here. 

In a previous fact-check, The Journal found that while a united Ireland may be a Constitutional aspiration, there is little to suggest that the government is legally required to work towards it. 

What does the Good Friday Agreement say?

In accepting the GFA, both the British and Irish governments were required to accept the current constitutional situation of Northern Ireland.

The agreement states that the present wish of the people of Northern Ireland is to “maintain the Union” and that the current situation “relies upon that wish”.

It also clearly acknowledges that the constitutional status is a decision for the people of Northern Ireland. Article 1.1 of the agreement states that both governments must: 

recognise the legitimacy of whatever choice is freely exercised by a majority of the people of Northern Ireland with regard to its status, whether they prefer to continue to support the Union with Great Britain or a sovereign united Ireland.

Article 1.2 deals with the potential for a united Ireland and states this must be accepted if separate votes held at the same time on both sides of the border support this.

In the text of that section, the GFA outlines that both governments must: 

recognise that it is for the people of the island of Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right of self-determination on the basis of consent, freely and concurrently given, North and South, to bring about a united Ireland, if that is their wish, accepting that this right must be achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland.  

The agreement also states that if such a decision is taken in referendums on both sides of the border, governments have an obligation to introduce legislation to give effect to the change.

In the case of the UK, the Secretary of State for Northern Ireland would be responsible for bringing such legislation before the UK parliament. 

The NI Secretary, however, arguably has a much more significant role in determining when a referendum would actually happen. These details are also laid out in the GFA but there is a lack of clarity in exactly when the NI Secretary would be required to do this.

So in what circumstances would the UK call a border poll in Ireland?

good-friday-agreement Mo Mowlam, NI's Secretary of State when the GFA was signed. (File) Source: Eamonn Farrell/RollingNews.ie

First off, the phrase ‘border poll’ is not used in the GFA and its use has been deemed somewhat political itself, such is the sensitivity around the history of the border. 

However, the GFA and the UK’s Northern Ireland Act 1998 do use the term “a poll”, so we will continue to use the term “border poll” as a catch-all for the concurrent referendums north and south which would decide the status of Northern Ireland. 

While Article 1.3 of the GFA notes that a united Ireland is allowed for following support in referendums on both sides of the border, it also emphasises that a majority is required in Northern Ireland for this to happen. 

PastedImage-23714 Source: dfa.ie

It is also accepted within the GFA that “a majority of the people of the island of Ireland” wish for a united Ireland.

Taken together, the GFA essentially acknowledges that the island as a whole supports unity but that the central question is whether Northern Ireland would consent to such. 

Therefore, it is explicitly stated in the GFA that the holding of a border poll is within the power of the NI Secretary: 

if at any time it appears likely to him that a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland.

Essentially, it means that a border poll can be held if the NI Secretary feels it is likely that it would be passed. If one is held, there can’t be another for another seven years. 

While that much is clear, what remains unclear are the barometers the NI Secretary must use to judge if that consent is likely. For example, is it a case of looking at the politicians elected in Northern Ireland? Or could polling also be used as a consideration?

These questions were discussed at a recent sitting of the Oireachtas Committee on the Good Friday Agreement.

Professor Colin Harvey of Queen’s University Belfast told the committee that he has been in correspondence with the Secretary of State’s Northern Ireland Office (NIO) in an effort to get clarity on the test for determining if consent is likely.  

In that correspondence, which was provided to TheJournal.ie, the NIO said: “In making this judgement the Secretary of State must have regard to reasonable factors and make a judgement based on objective, reliable and empirical information.”

The NIO does not, however, detail what this information would be.

For the record, the NIO does state, as per a letter dated 1 March 2021, that the UK government is “firmly of the view” that there is currently “no clear evidence” that the conditions for a referendum have been met at this time. 

Speaking recently on the BBC’s Question Time programme, NI Secretary of State Brandon Lewis said that “nobody should be afraid of having a conversation” about Northern Ireland’s constitutional future.

However, he rejected the assertion that Brexit had made the case for a unity referendum more likely and said that both the UK and Northern Ireland benefit from the union. 

From the point of view of the Irish government, Taoiseach Micheál Martin has described talk of a border poll following Brexit as being “a mistake”.

As recently as today, Martin repeated that he doesn’t envisage a referendum on a united Ireland during the lifetime of this government

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Has this ever reached the courts? 

 Yes, it has.

While there is a lack of clarity on the barometers required for a NI Secretary to determine if such a border poll might pass, Northern Ireland’s Court of Appeal found last year that the Secretary’s discretion on the matter was “unqualified”. 

The ruling came following an action taken by Raymond McCord, who argued that the UK government’s failure to set out the circumstances where a border poll should take place was a breach of the constitutional issues provided for in GFA.

This was rejected by the court, which found that it was for the UK government to decide “what is or is not relevant to the decision-making process”.

The court said this decision-making process could change “depending on the prevailing circumstances” and that “flexibility” is required due to the “complex political judgments” required.

In essence, the judgement said the law did not specify any matter which should be taken into account or anything which should be disregarded in deciding to call a border poll.

The timing is therefore up to the UK government to decide, something noted in the recent advertisements in The New York Times and the Washington Post placed by the Friends of Sinn Féin.

But while the judgement did find the UK government has unqualified discretion, it also affirmed that the decision to hold a border poll must be based on evidence and not politics. The ruling stated the UK Secretary of State must be “honest and rigorously impartial” in making such a determination.

Furthermore, it added that the decision-making process “must involve both governments” given their inter-relationship and the fact that “if not carefully handled it could give rise to great instability.” 

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This work is co-funded by Journal Media and a grant programme from the European Parliament. Any opinions or conclusions expressed in this work is the author’s own. The European Parliament has no involvement in nor responsibility for the editorial content published by the project. For more information, see here.

About the author:

Rónán Duffy

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