Before thinking about a border poll, there are many regulatory issues that need serious tightening

Matt Qvortrup is Professor of Political Science at Coventry University. Currently a visiting professor of Constitutional Law at the Australian National University, his latest book I Want to Break Free: A Practical Guide to Making a New Country, is published by Manchester University Press.

“Blessed are the peace-makers”. Peter Mandelson, then Secretary of State for Northern Ireland was becoming lyrical, and almost metaphysical, when he spoke about the vote on the Good Friday Agreement at an event just outside Jerusalem in the early spring of 2000. Yours truly was in the audience as an advisor to the Israeli Ministry of Justice, having completed a doctorate on referendums at Oxford University the previous year.

I was there, due in part, to my experience from Britain. My doctoral thesis (which had been shared with officials in the Northern Ireland Office) had concluded that referendums on peace were successful (in other words led to peace and stability) when one specific condition was met, namely a pre-vote agreement involving all the major parties. The referendum in 1998 in Northern Ireland was a classic example of a post-agreement plebiscite; by contrast, the 1973 Border Poll was not.

While in the audience, I was slightly bemused – and a wee bit puzzled – by the Secretary of State’s newfound fondness for quoting the beatitudes from the Gospel According to St Matthew – or, rather that his speechwriter had chosen this line. But I was also rather pleased to hear the Northern Ireland Secretary’s ‘theology’. For by implication, to paraphrase him, “blessed are those who organise referendums”.

The question, and one we ask ourselves now 25 years on, is whether the referendum on the Good
Friday Agreement was a model to the world? In the immediate aftermath, there was no doubt that this question would be answered in the affirmative.

Based on my research at the time, and later published in book form 1 the referendum was held post-negotiation fuelled by a comprehensive agreement. Although the DUP (then a lesser party) was opposed, there was broad cross-community support, including from both Nationalists and Unionists in the 71% positive result.

All this counts on the plus-side. Nevertheless, measured by the yardstick of referendums held today in democratic countries, the vote fell some way short of the norm.

The referendum issues were widely debated in the press, there was an open atmosphere and a willingness to listen to the arguments. Certainly, many who lived through the almost halcyon days of 1998 came away from the experience as enthusiasts for referendums. This evidenced the antithesis of the polarised debates that later characterised the 2016 Brexit referendum.

Yet in many ways, the 1998 vote and the absence of almost any regulation was found wanting. On the negative side, as we would now characterise it, the British government was permitted to throw the proverbial kitchen sink at the voting public and to spend almost unlimited resources, human and financial, without having to account for it.

It is not that the UK government was ignorant of the problems with unregulated campaigns. Indeed, at the time of the 1998 vote civil servants were already drawing up legislation that later became the Political Parties Elections and Referendums Act 1999. There were no limits on campaign spending in the referendum, such as there was in both the Brexit referendum (2016) and the Scottish independence referendum two years before (2014).

Whether these rules would have changed the outcome is questionable, but a similar vote today would be subject to much more regulation on campaign finance, media balance, external engagement from outwith the state, and government neutrality.

Another lesson from more recent referendums is that more regulation is required to ensure a level playing field.

Above all, it is essential not only to regulate more aspects of each campaign to ensure a level playing field but also to regulate on-line and third party campaigning, e.g. on social media and the like.

When we are (perhaps) looking ahead to a vote on the possible unification of the two jurisdictions on the island of Ireland, we cannot look back, but need to look forward, and consider how we update the regulation of, and the machinery around referendums.

The most important issue facing those who want to hold a just, free, and fair referendum in the future, is that they must learn from other places that have enacted legislation pertaining to social media use – and abuse.

On-Line Campaigning

In recent years, some of the most momentous electoral upsets have been a result of the use of internet campaigning. In the words of a recent study by this author and colleagues, it was noted that, ‘the innovative genius of the Trump Campaign was to use data harvesting to individually target voters (a practice known as micro targeting)” 2 .

That this issue is hitherto left out is also rather odd, as the topic of online campaigning was highlighted in the Irish Standards in Public Office Commission, in a 2017 report, in which concern was expressed that ‘Facebook campaigns are not regulated by this legislation—meaning individuals or groups from anywhere can pay for Facebook advertising targeting certain
demographics of Irish voters’ 3 .

While there is a reference to social media companies voluntarily banning foreign ads in Irish referendums, the history of recent elections suggests that restrictions on social media campaigning need to be introduced, as indeed they have been in some European countries, including Estonia, Latvia, and Iceland.

As this is a crucially important issue, if only to avoid dis- and misinformation, it is worth looking at the regulations in these countries in detail. As far back as 2008, the Parliament of Estonia introduced the Advertising Act, which bans political advertising on the internet, including ‘subliminal techniques’ 4 .

This regulation has been updated yearly since its promulgation. While comprehensive, the Estonian legislation pertaining to online advertising is less detailed than in Latvia where the Law on National Referendum, Legislative Initiative and European Citizens’ Initiative has been continuously updated to take account of new developments in advertising on or through social
media.

This type of regulation is not just practiced in the Baltic; some countries in Western Europe have similarly sought to regulate online campaigning. One of these is Iceland. Until the financial collapse of the island nation’s economy in 2008, there had been no nationwide referendums since 1944 when the country voted to sever ties with Denmark. However, as a consequence of the
political crisis and massive debt caused by the bankruptcy of the IceSave and Kaupthing banks, the Icelandic president took the unusual and unprecedented step of vetoing an agreement the government had made with the country’s international creditors. This resulted in two referendums, in 2010 and 2011, in which the government’s plans were rejected by over 90% of voters. Following this referendum, they approved six amendments to the constitution in a non-binding referendum in 2012.

This upsurge in the use of the referendum in Iceland was accompanied by a detailed set of regulations covering online campaigning. While not as comprehensive as that of the Baltic states, the Icelandic government recently implemented a law on online anonymous campaigning. Political bodies are now prohibited from financing or taking part in the publishing of any
campaign-related material without making their affiliation public.

The use of social media is a rapidly moving target. But that is no excuse for not regulating it. Politics is a contact sport, but even boxing carries its Queensbury rules. The Good Friday Agreement was a benchmark for referendum campaigns in 1998, with for example, voluntary publication of all donors and finances by the YES side. That it was also held in a relatively constructive, positive atmosphere and with voluntary restraint was another plus. But a vote on, say, Irish unification, would have to be much more regulated.

All this said, the 1998 referendum established one fact, namely this: in future the ratification of the people is imperative, to embed consent and legitimacy. This was not a new insight, as de Klerk and tacitly, Mandela, had judged in 1992 causing the last all-white referendum, to endorse entry into negotiations for a comprehensive settlement, but before it had hardly been recognised in practical politics.

The often controversial – but always insightful – renaissance political writer Nicoló Machiavelli once observed that, “the populace may be ignorant [yet] it is capable of grasping the truth when a man worthy of confidence, lays the truth before it” 5 . In other words, the magistrates should deliberate, but the people should have the final say. The Good Friday Agreement referendum was proof of this democratic truth.

1 Qvortrup, M (2005) A Comparative Study of Referendums: Government by the People. Manchester: Manchester University Press, Chapter One.
2 Lucy Atkinson, Andrew Blick, and Matt Qvortrup, The referendum in Britain: a history (Oxford, 2020), 198.
3 ‘How many foreign groups are buying Facebook ads as part of the abortion referendum debate?’ Journal.ie, 25 March 2018. Available at: https://www.thejournal.ie/kanto-vote-referendum-3914073-Mar2018/ (20 January 2021). Accessed 15 th October, 2022.
4 Thus, Chapter VI of the Act provides a ban on ‘hidden campaigning’!)
5 Machiavelli, Nicoló (2003) The Discourses. London: Penguin, p. 115


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