Will there be a border poll?

The 2016 European Union referendum – which leave won – has launched the United Kingdom (‘UK’) globally, for good or ill. Remainers in Northern Ireland (‘NI’) and Scotland are, separately, now seeking a border poll to merge with the Republic of Ireland (‘ROI’), and make Scotland a nation once again.

This is a project to break up the multi-national UK state (the last precedent – Yugoslavia in the 1990s – making this deeply unattractive). 

The idea of an Irish border poll dates from 1973, when NI (on a 58.7 per cent turnout with a nationalist boycott) voted 98.9 per cent to 1.1 to remain within the UK.  This first referendum in the UK was premised on the idea of consent, namely that people should choose how they wished to be governed. Consent had originated in the 1921 so-called treaty, between London and Dublin, when the NI parliament was permitted to opt into the Irish Free State, if it so wished.  It voted on 8 December 1922 not to do so (as was completely foreseeable), triggering a boundary commission which would ultimately be ignored.  

The consent of the NI parliament – in the Ireland Act 1949 - became the lock on Irish unity.  Stormont’s abolition in 1973 led to the border poll, and the transfer of consent to the people in the Northern Ireland Constitution Act 1973. Thus, when it came to implementing the 1998 Belfast Agreement, Westminster re-enacted the 1973 position.  It went further, and provided for a London/Dublin agreement if nationalists won.  Separately, through the Belfast agreement, the ROI had promised a concurrent constitutional referendum on whether its people also wanted a united Ireland.  

I have always seen the Belfast agreement as the moment when nationalism (not including Sinn Féin, which did not vote for the multi-party agreement) accepted the concept of consent.  A great deal of Irish majoritarianism was killed off, with the idea of ‘the consent of a majority of the people of Northern Ireland’ – the law of 1973 re-enacted in 1998 (and dubbed by Seamus Mallon: ‘Sunningdale for slow learners’). 

This was the entry point to power-sharing (in 1973 and again in 1998), and to the institutions of the Belfast Agreement on the latter occasion: a NI assembly, with an involuntary coalition executive; the north-south arrangements; and the east-west ones.  There has been peace, with blemishes, very little reconciliation, and continued sectarian rivalry mediated by over-administration.

I have argued, since 1998, that the Belfast agreement does not really provide a route to a united Ireland:  first, whatever of the green-orange conflict, many Catholics have acquired vested interests in NI; second, the people of the ROI remain unlikely to want to embrace either NI ‘tribe’; and third, a London/Dublin agreement allows either state to run for cover, given that both capitals would be faced with disorder and violence.

Thus, the late Seamus Mallon, in his memoirs, did not affirm the Belfast agreement, but put forward an alternative constitutional scenario of parallel consent in NI: A Shared Home Place, Dublin 2019, chapter 14.  That would be unity by consent, with the emphasis upon nationalist/unionist agreement – and not the 50 per cent plus one vote of Catholic demographically overtaking Protestants. 

All that is an argument as to why a border poll is unlikely and undesirable, in virtually all circumstances (one circumstance would be confident unionists saying bring it on).  Returning to the law, it will be difficult for remainers to use the Irish unification route back to the European Union.

First, it is up to the secretary of state for NI to decide whether there should be a border poll.  He/she would only act as a member of the UK cabinet.  The condition precedent is: ‘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.’  This is a matter of ministerial discretion, and it would not be readily judicially reviewable if he decided not to hold a poll. 

A majority for remain in the 2016 referendum was not evidence sufficient to force the secretary of state to direct the holding of a poll.  This, of course, was confirmed in the 2017 general election, when the DUP obtained its best ever vote, taking ten of the 18 NI seats at Westminster (Sinn Féin secured seven).

Second, there is a statutory requirement to wait seven years before a second referendum.  That deters a first one being called if there is doubt about outcome.  Nationalist politicians – think Alex Salmond in Scotland in 2014 – would have to be very sure of victory, because they would be out in the political cold for at least a further seven years.

And finally, the problem of two referendums.  First, if NI votes no, that is the end of the matter.  Second, if NI votes yes, that is only the end of the beginning.  Third, the ROI would also have to vote yes.  Fourth, the ROI is more likely to vote no (especially if NI votes yes).  London and Dublin would then be faced with inconsistent results, and more uncertainty on the plane of two states.  And fourth, if there were two yes votes, the UK and Irish governments would have to proceed by agreement.  That would not, inevitably, involve the transfer of territory from one state to another.

When Garret FitzGerald, then the Irish foreign minister, hitched a ride with Henry and Nancy Kissinger, in Washington on 8 January 1975, to a memorial service, the bluff of Irish political leadership was called:

‘I said that I knew of his non-interventionist stance so far as Irish affairs were concerned and was not seeking any action by the United States at that time; but in the event – unlikely, I hoped – of a shift in British policy towards withdrawal from Northern Ireland in advance of an agreed political solution we would then seek US assistance in persuading Britain not to embark on a course of action that could be so fraught with dangers not just to Northern Ireland but to the whole of Ireland, and conceivably even – given the involvement of Libya, for example, with the IRA, and Cuba’s long-distance role in Angola – to the wider peace of north-western Europe.  He agreed that he would be open to an approach from us in the event of such a grave development.’[1] 

Those 118 words deserve to be inscribed on a monument of Irish statesmanship, and quoted in every BBC report of a forthcoming Irish border poll and the likelihood, meaning (to the broadcasters) desirability, of a united Ireland.  The great paradox of Irish history is that, following the creation of a separate state in the 1920s, a united Ireland waned as an achievable national objective.  Separatism was transcended when the EU gave Irish politicians a red carpet in Brussel down which to process.  The secret of the Belfast Agreement – maybe intended by the UK – is the re-legitimizing of partition on a different governmental basis. 

Notes 

Dr Austen Morgan is a barrister in London and Belfast, and practises from: 33 Bedford Row, London WC1R 4JH.  He is publishing a book, A Constitution for the United Kingdom, later this year. 

[1] Garret FitzGerald, All in a Life, Dublin 1991, p 259.