A border poll can be held at any time

There’s widespread misunderstanding of the legal provision around holding a border poll which seems to rear its head not only on social media, but sometimes within the print media and even among the ranks of senior politicians. It’s an innocent enough situation, but it could become important in the period ahead as we start coming to terms with brexit and Northern Ireland’s relationship with Europe.

The misunderstanding holds that, following the implementation of the Good Friday Agreement, a border poll cannot be held unless there is the likelihood of a majority in favour of a united Ireland. This misconception is so widespread that experienced political commentators such as Brian Feeney repeat it; and even the British Government have been known to hide behind it. Another common misunderstanding is that the poll, once triggered the first time, must be held every seven years.

In fact, neither of these two requirements exist. The Secretary of State could lawfully direct the holding of a border poll tomorrow morning if he so wished; and he could lawfully refuse to hold another one if he had already called one at any time in the past. Before I explain why this is, let’s take a look at the historical legal framework in terms of the procedures governing changes to Northern Ireland’s constitutional status.

History

Northern Ireland began, as most of us know, with the Government of Ireland Act 1920. In that wide-ranging piece of legislation, the UK government made provision for two Parliaments, one for Northern Ireland, the other for the state known as Southern Ireland, the 26-county entity which was superseded by the Irish Free State shortly after the 1920 Act became active. In addition, extensive provision was made permitting these two Parliaments, by passing appropriate legislation, to merge into a unified Parliament of Ireland (still within the United Kingdom). Apart from that, the Act specifically clarified that no rights to self-determination were to be granted to Ireland. Section 75 :

Notwithstanding the establishment of the Parliaments of Southern and Northern Ireland, or the Parliament of Ireland, or anything contained in this Act, the supreme authority of the Parliament of the United Kingdom shall remain unaffected and undiminished over all persons, matters, and things in Ireland and every part thereof.

This controversial part of the Act was, at the time, intended as an intentional limiting of the parameters of Home Rule aimed at nationalists; but as time went on it would prove hostile to the interests of Unionists; the UK Government and Parliament reserved the right to alter Northern Ireland’s constitutional position as it saw fit without consulting the population, and if Winston Churchill was to be taken seriously, came close to exercising that right.

Fast forward to the 1970s and the outbreak of widespread civil disorder. Attempting to create a solution, the Government, in the aftermath of the prorogation of the old Northern Ireland Parliament, introduced the Northern Ireland (Border Poll) Act 1972, the text of which is unfortunately not available online. The power to hold a referendum under this Act was invoked and the poll held on 8th March 1973. Due to the nationalist boycott, the poll returned in excess of 98% in favour of the Union. Even had nationalists not boycotted the poll, it is unlikely the result in favour of the UK union would have fallen below 70%.

As part of efforts to restore devolution and bring about stability, the Government significantly reworked Northern Ireland’s constitutional framework as part of the Northern Ireland Constitution Act 1973. This Act permanently abolished the prorogued Northern Ireland Parliament and set up the legal framework for a new Northern Ireland Assembly. It also created permanent powers to hold border polls, enabling referenda to be held beginning in March 1983 with a minimum gap of 10 years between each poll. However, the legislation included no provisions binding the UK government to implement the outcome of any poll calling for constitutional change.

The current law

The current legal situation came into being as part of the Northern Ireland Act 1998, the UK legislative provisions backing the Good Friday Agreement. Referenda now take place under a framework defined within the British-Irish Agreement, the part of the Agreement specifically between the two governments, under which it was accepted that any referendum would be held concurrently in the two jurisdictions, that both governments would legislate to enable referenda to be held and to work to implement the outcome of any referendum. Overriding provision was granted to the Northern Ireland referendum, entrenching what republicans used to call the “unionist veto”.

The Government also used the opportunity presented by the signing of the Belfast Agreement to completely overhaul Northern Ireland’s constitution, tidying up the existing legal foundations and repealing dozens of old provisions, and some entire Acts (including the 1920 Act), stretching all the way back to 1903. In terms of referendum powers, the Secretary of State’s power to order a poll was retained, with a number of significant revisions. The minimum period between polls was reduced from ten to seven years. In Section 1 of the Act, Parliament granted a guarantee in law, for the first time, that if a referendum on the constitution returned a result in favour of a united Ireland, that the Secretary of State would be required to bring proposals to Parliament to give effect to that wish.

The legislation also added the following in Schedule 1, Paragraph 2 (my emphasis added):

[..] 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 paragraph reads plainly enough; if the Secretary of State thinks that a majority wish to have a united Ireland, he is required to call a border poll to confirm this.

Outworkings of the current law

Paragraph 2 is copied from the draft paragraph in the text of the Agreement, and seems to have been designed to reassure nationalists that the Government would ensure a border poll would be called if it was likely to pass. On first glance, it appears to impose a requirement on the Secretary of State to call a border poll at the right time. The requirement is contingent upon what appears to the Secretary of State to be “likely”.

There are two important things to understand about this paragraph. Firstly, in practical terms, it imposes nothing. The law may as well ask the Secretary of State to call a poll depending on what his favourite colour is. He can, within the letter of the law, ignore any and all polls or election results, citing a belief that a majority in favour of a united Ireland is unlikely. It is hard to believe that, in the context of a judicial review, the courts would feel that they could dictate to the Secretary of State what “appears to be likely to him”.

(It is not clear to me why nationalists did not insist on a more concrete right, such as the right to have a border poll called by the Secretary of State if, say, the nationalist share of the vote were to rise above 50% in an assembly election. This would be far from the first time that nationalist negotiators have settled for ambiguity. Perhaps we will find out when the inside stories of the multi-party talks between 1996 and 1998 are eventually revealed.)

Secondly, and apparently most confusingly, the paragraph outlines circumstances under which the Secretary of State shall call a poll. People assume that it says “shall only”, but as you can see, the word “only” does not appear. The legislation imposes only one rule about when a poll shall not be called; it’s in a different paragraph, and is triggered only whenever a referendum has been called within the past seven years.

To illustrate this point, and with apologies for any flashbacks for those of us who remember the old 11+ verbal reasoning tests, consider the following three statements :

  1. Theresa may carry an umbrella.
  2. Theresa shall carry an umbrella if it appears likely to her that it will rain.
  3. Theresa may not carry an umbrella if she carried one yesterday.

The only statements of material consequence are (1) (which allows Theresa to carry an umbrella) and (3) (which conditionally denies Theresa the right to carry an umbrella based on previous history). Under Statement (1), Theresa can carry an umbrella at any time as long as she doesn’t breach (3). Statement (2) imposes a requirement upon Theresa to carry an umbrella, but since it delegates to her the exclusive right to make her own determination about whether or not it might rain, she can ignore the weather reports and the dark clouds, and refuse to carry one anyway.

To further illustrate the law, I’ve placed the 1973 version of Schedule 1, and the 1998 version of Schedule 1, side by side in the image below.

Reading the text, you can see that the wording from 1973 has been slightly reworked, with no essential meaning changed, to create most of the wording in 1998. The 1973 Paragraph 1 has been split into paragraphs 1 and 3 in 1998. 1973’s paragraphs 2 and 3 have been reworked to create 1998’s paragraph 4.

This leaves the addition of paragraph 2 in 1998, imposing the new “if it appears likely” requirement.

It should now be obvious that the Good Friday Agreement, implemented in the 1998 Act, did not create any new referendum powers; it retained the powers that existed since 1972. The only additional effects were to create a binding requirement to implement the outcome of the referendum, and to reduce the minimum period between polls from 10 to 7 years.

Border referendum politics

It is clear that, irrespective of the law, UK government policy is settled, remaining essentially unchanged since the last border poll was held in 1973. The government will not call a poll unless it believes there has been a change in sentiment, reflecting the spirit of the non-binding Paragraph 2 wording. The government has carefully avoided explaining exactly how a change in sentiment will be determined, but it’s widely believed that this could happen if any local, regional or national general election reports a nationalist share of the vote exceeding 50%.

Despite their calls for a referendum, Sinn Féin are very unlikely to take any serious action to secure one in their forthcoming negotiations with the UK government and the DUP, even though their own party line says that they should do. Rational Irish nationalists concede privately that they are in no shape to make a serious case for reunification, and that building that case will take two decades. They also know, as per the experience in with Indyref in Scotland and with the AV referendum, that losing a border poll would run the risk of exposing the weakness of their position and demoralising their support base further. This is likely to be why the SDLP, in recent years, have increased their focus on making Northern Ireland work ahead of any proposal for reunification.

The DUP position is less consistent. In the past, Arlene Foster has stated that she is confident that Unionism would win a poll, publicly floating the idea that Unionism could call Sinn Féin’s bluff on the issue. However, during the DUP manifesto launch, a flu-embattled Foster denounced any poll as “devisive and destabilising“, reaffirming earlier comments highlighting the possibility of a border poll as a negative consequence of an emboldened, electorally successful Sinn Féin.

It is not yet clear what impact brexit will have on any of these calculations. If Northern Ireland is faced with a hard border and everything that implies, tremendous pressure will be placed upon the union especially if economic hardship begins to effect the region’s burgeoning middle class. The best chance of avoiding this lies in the implementation of special category status, which the Assembly voted against, by a majority of one, last year, thanks to the abstention of People Before Profit. The makeup of the new Assembly could play an important role in determining how Northern Ireland responds to the brexit challenge and the impact it has upon the border poll issue.

If the majority of people in Northern Ireland, however slim, and irrespective of community background, find their wish to see special category status and an open border denied, political repercussions start to become possible. If the UK government sends out the signal that they won’t pay attention to constitutional issues unless there is a nationalist majority, people may start to believe that creating a nationalist electoral majority is the only way to secure constitutional reform.

Conclusions

The legal authority exists, and has existed since 1972, to hold a border poll at any time, and there doesn’t need to be a nationalist majority for this to happen. But as things stand, nationalists would lose a border poll held today or in the near future. Settled British government policy makes a poll very unlikely in any case, although it’s not impossible that the DUP may calculate that weakening nationalism by calling Sinn Féin’s bluff would be a good tactical move to strengthen their own position, at the expense of the division that would inevitably arise from a bitter referendum campaign.

It is very unlikely that the election next Thursday will lead to a result showing that nationalism has reversed its declining vote share since 2005, even with the consequences of brexit looming large in the years to come. This makes it very unlikely that a referendum will be held in the short term. However, in the medium term, a hard brexit with a hard border and no special category status could well increase the nationalist vote to the trigger point.

The author is a member of the Alliance Party but writes for Slugger in an entirely personal capacity.

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  • burnboilerburn

    Thats the problem with a secret, by definition it cant be uncovered until somebody breaks ranks and thats unlikely to happen in the short time but will become very apparent eventually.

  • burnboilerburn

    Its a serious problem for all polities that the younger generation dont engage as much as one would hope. Any number of studies will confirm that youngsters are shocking at getting out to vote. But they are not youngsters forever. In the 1990s the Nationalist vote was way higher than demographics justified. Due in the main because of low unionist turnout. That reversed. And its about to reverse again. Lets chat about those numbers again on Friday.

  • Schmitty

    Surely it’s for the betterment of NI (and the parties in question) that these voters don’t prioritize the constitutional question?

    They will still hold a view and it doesn’t seem right to cast all as presumptive small ‘u’ unionists in such an emotive issue.

  • BonaparteOCoonassa

    There is no stopping change – it will occur whether anyone wants it or not. Best to try to guide it constructively. Of course, ideas of what is constructive will differ.

  • file

    Yer arse it was! it was drawn up on the back of Llyod George’s beermat.

  • 1729torus

    Sterling lacks, the …ahem… currency it once had, and will lose more in future. Scotland could just piggyback on whatever is arranged between UK and the EU re borders.

  • Lionel Hutz

    Sorry about the Brian. Corrected.

    I wouldn’t disagree with any of that. I think that if the SoS saw a 50%+1 result and refused to set up a border poll it would likely result in a judicial review that would clear the leave stage – that is to say there would be an arguable case. But I don’t that that that in and if itself would result in a finding of Wednesbury unreasonableness.

    Mind you if you had majority support for a motion in the assembly for a border poll that would be even harder to ignore and may cross the line to wednesbury unreasonableness. With or without a petition of concern. I don’t know if it would be enough but all I’d say is that I would love to be instructed to take that case.

    It’s all without precedent. So anyones thoughts on what would make an decision to not hold a border poll so unreasonable that no SoS would do so is as valid as a lawyers. There’s no magic to that question.

    In the end though it would be the politics of fighting that legal case that would force the issue and that is, I guess, my point. It would go all the way to supreme Court if it were to be contested. So it’s a little bit of law and little bit if politics.

    And that’s all to say that whilst not the sharpest, that clause does have teeth

  • Lionel Hutz

    The idea of a reasonable decision maker is a bit of a legal fiction. It takes all relevant matters into account and forms a reasonable decision. It’s not subjective. The area of discretion exists because a court will not interfere simply because they disagree and would decode differently. It has to be so unreasonable that no reasonable decision maker could make that decision.

  • Granni Trixie

    Many thanks,sounds ‘reasonable’ ( in theory).

  • Brendan Heading

    No, I haven’t – if you read my article you can see that I namechecked the nationalist boycott in 1973.

    I don’t see how this is relevant to the point that abstentionists who chose not to be counted will not be counted.

  • Brendan Heading

    An “effort” which has led to a sustained decline in electoral support over a ten year period.

    I’m not attempting to pitch nationalists against unionists on how well or how badly they manage constitutional matters in qualitative terms; I’m pointing out the reality is that nationalists are making no progress at all in advancing their cause. It is for nationalists, not me, to decide whether or not they are serious about addressing this.

  • Brendan Heading

    If it is a secret then how do you know ?

  • Brendan Heading

    It’s not a lie. It is reasonable to assume that when a politician gaves a personal opinion, without clarifying that he differs from his own party on the matter, that he is speaking on his party’s behalf.

  • Brendan Heading

    I’m neither Brian nor Brenda. Try again 🙂

  • Skibo

    Brendan I believe you have already pointed out that the criteria is when the SOS MUST call a border poll not when he can.
    The issue of Brexit could be used, especially as the majority of people in the north have voted to remain in the EU.
    They could do so by reuniting with the South.
    I believe that once the Brexit negotiations are substantially complete and we know what we are getting into and what we are leaving, the SOS should call a border poll and give the electorate the opportunity to remain in the EU if that is what the majority want.
    Even that plan would not require a complete cessation form the UK. It could be done over a gradual ten years.
    This should give Ireland a chance to reorganise the state and the economy.
    The UK should continue to assist in the financing of the North and gradually be phased back.
    Ireland would return to being a net benefactor of the EU and we could use EU funds to rectify a number of the infrastructural problems that partition caused.

  • burnboilerburn

    Nope, he made it quite clear by specifically pointing out it was his own personal view.

  • burnboilerburn

    Ah now that would be telling 😉

  • johnny lately

    The point being they wont be abstentionists in any future border poll. Your assumption that Irish citizens who take no part in British elections, but would take part in a border poll on Irish unity dont count is wishful thinking.

  • mickfealty

    BBB,

    Unparliamentary language is one thing (and if you want to stay commenting why not apologise for your intemperate outburst), but you’re also just plain wrong:

    So what of this: http://www.sinnfein.ie/contents/40936

    Speaking on the issue of an all-island referendum on Irish unity Teachta Adams said:

    “The negotiation on Brexit presents important opportunities, not least the potential to redesign the constitutional and political future of the island of Ireland.”

    Now, do you see what he/the party did there? Is it a policy or isn’t it? It’s certainly meant to look like one, that’s why the official party website frames it like that.

    It’s not from the passing air that Mr O’Dowd took it. And if you read it as an aim (rather than a policy per se), it looks like the policy is implement such a Referendum post the GFA.

    More likely it’s fending off criticism from the 1916 Societies whose actual policy this is. Like “unification by 1916” we might be advised to see it as a rearguard against Republican doubters rather than a real proposition.

  • burnboilerburn

    Not sure what you are referring to but indeed yes i do apologize if anyone was offended by my comment/s.

    As to your wider point, nowhere has Sinn Fein suggested or even hinted that the principle of consent should be ditched. You are simply dancing on the head of a pin. O’Dowd clearly and explicitly made clear that the opinion he gave was his and his alone. Similar to Attwoods personal opinion on FFA diverges from the SDLP line. Trying to link it to SF policy smacks of paranoid distortion. Adams is quite correct when he says that brexit has the potential to ‘redesign the constitutional and political future’, he is in very good company with practically every Anti Brexit party and commentator saying exactly the same thing and not just regarding Ireland. None of this suggests a threat to the POC but what it does do is highlight the simple realities of what has been a destructive decision on the part of the majority of people in England and Wales to force part of Ireland out of the EU against its will.

    There will be a referendum on Irish Unity at some point in the future, its guaranteed in the GFA and as Brendan pointed out on a previous thread, the SOS can call it whenever he or she fancies. Brexit simply brings it closer than might have previously been the case.

    Will SF bring it into the post election negotiations? Unlikely, but with both FF and FG looking at it (Aside from Enda, Leo Varadker on Claire Byrne last night went to great pains reminding listeners that Fine Gael’s full title is actually ‘Fine Gael, The United Ireland Party) you can bet your bottom dollar it has been discussed between Dublin and London. The sleeping dog has woken up so to speak.

    We have enough to worry about without getting hysterical every time a party rep wanders off script, particularly when that wander was an age ago.

  • Read the linked post again.

  • “As to your wider point, nowhere has Sinn Fein suggested or even hinted that the principle of consent should be ditched.”

    Again, read the linked post again.

    Or you could check the party website [scroll down]

    Sinn Féin Would:

    Continue to campaign for an island-wide referendum on Irish unity – allow the people to have their say. [added emphasis]

    That’s current. Not “an age ago”. It’s an update from the version I quoted in the linked post of May 2016. And it’s still different from the line used in the Northern Ireland Assembly election then. But, interestingly, not this time.

    This time the Sinn Féin election literature says

    We want to see:

    An island wide referendum on Irish unity. [added emphasis]

  • That’s because he was. As the party website states

    Sinn Féin Would:

    Continue to campaign for an island-wide referendum on Irish unity – allow the people to have their say. [added emphasis]

  • burnboilerburn

    So maybe I am missing your point? Just for clarity, in your mind what does Sinn Fein actually mean when it speaks of “An island wide referendum”.

  • Brendan Heading

    The point being they wont be abstentionists in any future border poll.

    You have no way of knowing this.

    Your assumption that Irish citizens who take no part in British elections, but would take part in a border poll on Irish unity dont count is wishful thinking.

    That isn’t my assumption and nothing is “wishful” here as I’ve no particular interest in preventing a border poll (although at the moment I don’t think there should be one).

    All of us, including me, are speculating on how this will end up working. But I don’t think that trying to claim that abstaining voters are secretly pro-reunification in the face of nationalists being holed under 36% of the electorate is going to cut it.

  • Brendan Heading

    The only thing I see here is you making up frankly ridiculous claims. If you can’t support them in public, maybe you shouldn’t make them.

  • Brendan Heading

    If you are a senior politician in any political party you do not get to express personal opinions which are contrary to party policy, and this is doubly true of Sinn Féin.

    I’d be willing to accept that O’Dowd made a mistake or mis-spoke. But that goes with Pete’s point that SF are confused about where exactly they stand on the matter; either that, or they haven’t taken the time to properly understand the nuances.

  • Brendan Heading

    There is arguably an important distinction between an “island wide referendum”, in the singular, and the wording in the British-Irish Agreement 1998 which refers to “consent freely and concurrently given in both jurisdictions” – ie two parallel referendums with the Northern one taking priority.

  • ciaran feeney

    I include myself in this,I’m from the rep but moved to the north 2 years ago. I didn’t register because I don’t want to possibly be called for jury service in a British court. I would register for a border poll however

  • sarah

    would ROI have to accept NI back?