In today’s Belfast Telegraph, Liam Clarke is reporting on an opinion poll that says that a majority of people want a referendum on a border called. David has already sketched out some ideas of what a Yes campaign might look like, but what are the actual mechanics of holding such a referendum?
The calling of a referendum is described in Annex A of the Belfast Agreement text (usually called the Good Friday Agreement). In reality, the Belfast Agreement is two agreements, a multi-party agreement entered into by the local political parties, and, an inter-governmental agreement. Austen Morgan has argued that there is ambivalence in the inter-relationship between the two agreements, since they were even published in different formats by London and Dublin (Richard Humphreys has also considered the Belfast Agreement at length in Countdown to Unity). The inter-governmental agreement has particular status in international law, while the multi-party agreement is more a political contract.
The inter-governmental agreement outlines some of the parameters of a #uniref (see relevant section of Article 1 below).
ARTICLE 1 The two Governments:
(i) 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;
(ii) 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;
Section (ii) states 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”. Firstly this indicates that a concurrent referendum must take place in the south to comply with Article 1.ii. At the same time, the framing of the issue as being “for the people of the island of Ireland alone” would appear to limit the potential involvement of people outside the island of Ireland. Thus, a re-hashing of a #BetterTogether campaign involving unionists from Britain would seem to be precluded by the inter-governmental agreement. Since the agreement architecture actually requires a concurrent plebiscite in the south, the provision here simultaneously creates a parallel discourse around the #uniref in the south while excluding involvement from Britain. What form that non-intervention from Britain would take would require definition and monitoring.
A referendum in the south would have to conform, constitutionally, to Referendum Acts 1992-2001 . This would mean giving equal weight in public debate to both the yes and no propositions. At this remove, the likely components of the No camp in the south aren’t apparent (but there would be an opportunity here for northern pro-union campaigners to share media time equally in the south). However, the tenor and quality of the public debate around the referendum in the south may have some bearing on the capacity of the #uniref Yes camp to attract support from what would be conventionally perceived as the traditional unionist constituency in the north.
The mechanism by which such concurrent polls would be called isn’t included in the inter-governmental agreement. Instead, it is addressed in a section referring to a referendum for this purpose in the multi-party agreement. It states in Annex A:
1.1 It is hereby declared that Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll held for the purposes of this section in accordance with Schedule 1.
1.2 But if the wish expressed by a majority in such a poll is that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland, the Secretary of State shall lay before Parliament such proposals to give effect to that wish as may be agreed between Her Majesty’s Government in the United Kingdom and the Government of Ireland.
Schedule 1 is given below:
The Secretary of State may by order direct the holding of a poll for the purposes of section 1 on a date specified in the order.
Subject to paragraph 3, the Secretary of State shall exercise the power under paragraph 1 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.
The Secretary of State shall not make an order under paragraph 1 earlier than seven years after the holding of a previous poll under this Schedule.
(Remaining paragraphs along the lines of paragraphs 2 and 3 of existing Schedule 1 to 1973 Act.)
Thus, under Schedule 2, the power is accorded to the Secretary of State to make an order for a poll to be held. As noted above, for this to be valid and compliant with the inter-governmental agreement, this effectively requires the Irish government to make the necessary provision for a referendum once it is called by the British government. A failure by the Irish government to do so would mean the poll in the north, regardless of its outcome, would not comply with the Belfast Agreement (opening the result to legal challenge). While this outcome is unlikely, it is possible to envisage political and electoral reluctance on the part of, eg, a Fine Gael and Labour government to a #uniref. Given that the holding of a referendum is implied but not explicit in the inter-governmental agreement, it is possible that an Irish government could refuse and still claim to not be in breach of the agreement.
Under Schedule 2, the authority to order a poll is solely invested in the Secretary of State with no defined mechanism other than “if at any time it appears likely to him that a majority of those voting would express a wish” for a united Ireland. How this wish would manifest itself is not specified and the term ‘likely’ has no strict legal definition in terms of probability, so this power appears large free for the Secretary of State to exercise at will.
The timeline for calling a poll is determined, in part, by the UK Political Parties, Elections and Referendums Act 2009 which requires a minimum of 42 days and less than six months (from the draft of an order being brought before Parliament). In the Republic of Ireland a minimum of 30 days is required with a maximum of 90 days from the associated draft Bill being brought before the Oireachtas (under the 1994 Referendum Act). Obviously the date of the poll may be announced before the draft order and legislation is brought (a referendum under UK law requires its own legislation, which in turn defines some of the rules and parameters of the poll).
One implication of the timeline is voter registration, but the more obvious one is on the time available for a campaign to be conducted. A snap poll would not allow any meaningful public debate to develop and, in all probability, would take place against a backdrop of street disorder that would not conform to idea of “…consent, freely and concurrently given…” in Article 1 as cited above. As Conor Murphy pointed out in his recent piece on here, Sinn Féin…
“…are not seeking a sectarian headcount but an informed, reasoned and respectful dialogue.”
In that regard, some of the architecture of a public debate would need to be identified in advance to provide at least an opportunity for reasoned, respectful dialogue. [I’m not just saying this to agree with Conor Murphy, there is a positive opportunity for an opening out and engagement over the issue that could benefit relationships across the island, if it was embraced.]
It is also worth noting that a valid referendum question, again, proofed against legal challenge, would have to be consistent with Section 1.2 above, which appears to give the necessary wording required for a #uniref poll:
“Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland”
To conform to the multi-party agreement part of the Belfast Agreement, the actual question for the poll would appear to have to be: “Should Northern Ireland cease to be part of the United Kingdom and form part of a united Ireland?”. In the inter-governmental agreement, Article 1.i provides an alternative wording as it requires the public to state whether they “prefer to continue to support the Union with Great Britain or a sovereign united Ireland”. This could move the proposition away from a Yes/No question to a vote between two propositions, such as (1) Would you prefer to continue to support the Union with Great Britain, and, (2) Would you prefer a sovereign united Ireland. If Morgan’s analysis is correct and the inter-governmental agreement has more substantial legal standing, the latter form of question, with two propositions, may be adopted. This would remove the idea of Yes and No camps, and create a sense of options or pathways instead. What is also absent is any sense of how long the transition would be if there was a majority expressing a preference for a sovereign united Ireland.
NB: Liam Clarke tweeted the frontpage of todays Belfast Telegraph with an opinion poll claiming a majority now want a border poll and that support for a united Ireland within 20 years at just over 40%.
— BBC News NI (@BBCNewsNI) September 29, 2014