The challenges of a border poll
It is often said in relation to the increasingly discussed border poll on whether Northern Ireland should remain part of the United Kingdom or form part of a united Ireland that we need to be better prepared than the United Kingdom was when David Cameron proposed the 2016 Brexit referendum. There needs to be discussion about the nature of the state were a united Ireland to be approved in both jurisdictions. How possible this is might be constrained by the legal framework, which provides a less obvious timeline for deliberation than was the case with Brexit. As the likelihood of a poll being called increases, we need to fill these legislative gaps. My focus here is on the challenges and mechanics of the poll, rather than the wider question of the merits and challenges of a united Ireland.
Article 50 of the Treaty on European Union, as inserted in 2009 by the Lisbon Treaty, allows any Member State to withdraw from the European Union “in accordance with its own constitutional requirements”. Once the intention to withdraw is notified, negotiations begin for a withdrawal agreement. The Treaties of the European Union cease to apply from the date of the entry into force of a withdrawal agreement or two years after the notification of the intention to withdraw, which period may be extended on agreement between the European Union and the withdrawing Member State.
The mechanism for a change in the status of Northern Ireland was drafted and approved as part of the Good Friday Agreement in 1998, with provisions to be inserted in British legislation and the Irish Constitution.
Schedule 1 of the Northern Ireland Act 1998 requires the Secretary of State for Northern Ireland to direct a poll if at any time it appears likely to them 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. Such a poll cannot be held within seven years of the previous poll. Under section 1, “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”.
Article 3 of the Constitution of Ireland provides 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”. Irish law refers only to the two jurisdictions, and not to the sovereign governments.
The mechanism for withdrawal from the EU is more prescribed, particularly with regard to time lines, than is the case in an Irish border poll. This is particularly the case with regard to Irish legislation. There is nothing in the constitution or legislation on how a referendum on Irish unity would operate. Article 47 of the Constitution sets out the provisions for referendums to amend the Constitution and “a proposal other than a proposal to amend the Constitution”. The latter is a reference to referendums on legislation when there is disagreement between the Dáil and Seanad under particular circumstances; to date, we haven’t had a referendum on legislation, and we’re unlikely to. There is legislation on both constitutional and legislative referendums, but none on the conduct of a referendum on unity.
The Brexit referendum was held on 23 June 2016, with the notification to withdraw on 29 March 2017, with an extension of the two-year period until 31 January 2020. Until 31 December 2020, the United Kingdom remained in full regulatory alignment with the European Union after ceasing to be a member.
As the notification was to occur within the United Kingdom’s “own constitutional requirements”, they were free to choose any method of deliberation before issuing their notice under Article 50, and the period after the referendum should have been used for that. On the other hand, the default period of two years for withdrawal, even though it was extended, should have served to concentrate minds to ensure an agreement.
There are no time periods in any of the provisions on a united Ireland; a prescribed period of negotiation might be helpful. Under the Northern Ireland Act 1998, there must be an agreement between the governments; as the sovereign governments they must be the ultimate signatories of any agreement, but the negotiation should be between representatives of both parts of Ireland who are to share the island. If there were a vote in Northern Ireland in favour of a united Ireland, there should then be a body to consider the form of integration. In Towards a New Ireland (1972), the SDLP proposed a National Senate with equal representation from the Oireachtas and the Northern Ireland Assembly for that purpose, describing its purpose as:
to plan the integration of the whole island by preparing the harmonisation of the structures, laws and services of both parts of Ireland and to agree on an acceptable constitution for a New Ireland and its relationships with Britain. We would visualise that no preconceived concept should be placed before the Senate but that a new concept of a New Ireland should evolve from the genuine discussions of the elected representatives of all sections who comprise its membership, although we would envisage the emergence of a Parliament for the whole of Ireland directly elected.
The selection of representatives for this body could be expanded beyond elected representatives to include civil society and members of the public, drawing on our experience of the Constitutional Convention and the Citizens’ Assembly.
Should we convene an Assembly before the border poll so that those voting would know what the state they would be voting to join would consist of? It would be difficult to get enthusiastic participation of those who either weakly or fervently support the constitutional status quo. The arrangements can then properly and fully considered after a vote for unity, within an agreed time frame before the implementation of the vote.
But the Irish government should convene a body similar to the New Ireland Forum in 1984 to consider options for the future of Ireland in advance of the likely date for a border poll. The New Ireland Forum report presented three options: a unitary state, a federal/confederal state, and joint authority.
The report of such a body convened in the 2020s would explore a different range of questions, all likely within the framework of the Northern Ireland Assembly continuing to operate in its current territory. The Assembly would need to remain, at least in the medium term, to allow for the “harmonisation of the structures, laws and services”, to borrow a phrase from the SDLP above. In matters from criminal law to company law, provision of health to recognition of education qualifications, Northern Ireland could not reasonably adopt the entire acquis of the Irish Statute Book and judicial interpretation of our superior courts on the date of unification. The process of determining the periods of exclusion and convergence in different areas would provide a challenge for some time after any referendum and unification.
There is no requirement for the referendum under Article 3 in the Irish state on unification to take on the same day as that in Northern Ireland. Indeed, we could not be constitutionally bound to hold a referendum at same time as one determined by the opinion of a member of the British cabinet.
When should it take place then? We could, of course, decide to hold the referendum on the same date, as was done on 22 May in approving the Belfast Agreement. We could decide to hold it very soon after a poll in Northern Ireland, if they vote for unity. Or we could decide to hold it at the end of an agreed period of negotiation.
A consideration on the date of the referendum in the Irish state is who the electorate should be to approve any changes to the Constitution of Ireland.
Holding the referendum to approve unity at a later date would allow it to include the approval of any amendments to the Constitution agreed during the period of negotiation (or the approval of a new Constitution, as some consider preferable).
Another view is that the electorate for constitutional amendments or a new constitution to reflect a shared Ireland should be the entire island of Ireland, with all those north and south voting as one to approve any changes to the text. On this view, there should be a referendum in the Irish state at the same time as, or soon after, the referendum in Northern Ireland. Then, after a united Ireland has been agreed between the Irish and British governments and has taken effect, there would be a further referendum to approve constitutional amendments. That in itself, though, might require a prior constitutional amendment. At present, the electorate in referendums (and presidential elections) is confined to citizens. This should be expanded to include “such other persons in the State as may be determined by law”, to allow British citizens in Northern Ireland to vote without being required to become or identify as Irish citizens (as was done for Dáil elections in 1984). This is perhaps more pressing than the proposed amendment to extend the vote for presidential elections to Irish citizens outside the state.
In sum, in the coming few years, Ireland should:
- make provision in referendum law for a poll on a united Ireland;
- determine the date of a referendum in the Irish state on a referendum on unity (concurrent with a vote in Northern Ireland; immediately after a vote for a united Ireland; or after a negotiated agreement);
- convene a second New Ireland Forum to explore how best to accommodate the people of Northern Ireland within a united Ireland, to include institutional and constitutional change;
- agree with the British government on the length of the negotiation period between a vote in Northern Ireland for a united Ireland and the date of its implementation;
- consider the composition of a body to be assembled if there is a vote in Northern Ireland to approve unity which would form the basis of the agreement between the two governments.
