A research report on who will be allowed to vote in a referendum on a United Ireland and how it will be called by the Secretary of State for Northern Ireland as provided under the Good Friday Agreement. The research shows that not only does the Secretary of State decide when a referendum is held, but also who is allowed to vote. The report is available in full at the link above.
The Secretary of State for Northern Ireland in January 2019 is reported to have said at the British cabinet meeting that a ‘border poll’ on a United Ireland is likely in the event of a hard border and hard Brexit.3 Yet the Secretary of State has refused to produce a policy on how she would call a ‘border poll’. This is despite the fact a court case was taken in Belfast to require the Secretary to publish such a policy. Of course, the clear lesson of Brexit for Ireland is you should not hold a referendum and then try to figure out what the future looks like. A border poll should only be held after long term engagement and planning. That little reported upon high court ruling in which the Secretary of State was the defendant was taken by Raymond McCord, a unionist victims’ rights campaigner. He wanted the Secretary of State to formulate and publish a policy on how they would determine a ‘border poll’ / referendum on a United Ireland as provided for under the Good Friday Agreement would be called. The Secretary of State and their legal team argued they should not be forced by the courts to come up with any policy.
Currently, as provided for under the Good Friday Agreement, a referendum would be called when the Secretary of State believes the majority of people are in favour of a United Ireland. However, there is no clarity in relation to how the Secretary would make that determination. Would it be based on opinion polls, recent election results or a combination of both?
Raymond McCord believes the uncertainty regarding how a referendum would be called can be used by paramilitary extremists on both sides to exploit and radicalise young people for their own ends in the run up to such a referendum. The judgment by Rt. Hon. Sir Paul Girvan, which as it currently stands in essence will establish the parameters for the calling of a referendum, makes it clear there is a serious lack of clarity in this high court judgement as regards to defining exactly the criteria that would trigger a referendum.
Rt. Hon. Sir Paul Girvan explained in his judgement that while such a policy outlining how a border poll would be called would be desirable, currently under the legislation he cannot compel the Secretary of State to draft such a policy. In the next part of the ruling, Justice Girvan appears to contradict the Good Friday Agreement itself when he says that such a decision on holding a referendum “required a political assessment on the part of the Secretary of State and in this context flexibility and judgement are called for”. However, nowhere in the Good Friday Agreement does it state that political consideration should be a reason for holding or not holding a border poll.
The confusion is then exacerbated because Justice Girvan does go on to confirm that under the Good Friday Agreement a ‘duty’ is imposed on the Secretary of State to exercise the power to call a border poll if it appears likely that a majority would be in favour of a United Ireland. ‘If the evidence leads the Secretary of State to believe that the majority would so vote then she has no choice but to call a border poll’. However, the crux of the issue is on what basis and on what evidence the Secretary should base this determination. Sir Girvan goes on to say ‘Evidence of election results and opinion polls may form part of the evidential context in which to exercise the judgment’.
The potential scenario is that the Secretary of State’s determination could be based on combination of political considerations, opinion polls and election results. How could this process work in what is likely to be a highly charged political environment? There are of course potential issues with each of these criteria. As regards to the election results criteria, Alex Kane, political journalist and former communications director to the UUP, has observed that pro-Union candidates received fewer votes than other candidates in the 2017 Northern Assembly and Westminster elections.
Opinion polls, for the first time ever, now reveal that a majority of people in Northern Ireland would vote for a United Ireland in the event of a hard Brexit and the possibility of the return of a hard border.4 However, based on recent elections and the Brexit referendum, opinion polls can be notoriously unreliable. Given Justice Girvan’s judgement that opinion polls should be taken into account, serious thought should be given as to exactly how opinion polls should be incorporated into the process.
Obviously, significantly increased clarity and transparency, and most of all, a policy is required from both governments. This is vital to avoid political instability and potential court challenges surrounding any referendum. One can easily visualise the potential chaos that could ensue if a border poll is initiated as a result of a court challenge or ruling due to the lack of policy preparation and all-party engagement.
Along with the lesson for Ireland from Brexit on the consequences of holding a referendum without proper planning, historians would agree with the advice of John Bradley, an economist speaking at Queens University, Belfast in 2014 – ‘policy neglect seldom goes unpunished’.