New Secretary of State for Northern Ireland, Brandon Lewis. Photo by Jonathan Porter, Press Eye.
WITH Brexit no longer a distant possibility but instead a concrete reality, the conversation around a border poll in Northern Ireland has regained strength.
But while nationalists clamour for a poll, and unionists shy away from one, questions about the basic mechanics of a potential border poll loom large.
The Good Friday Agreement states that the Secretary of State for Northern Ireland shall call a border poll “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".
It is a common misconception that the Secretary of State can only call a border poll if they see a majority in favour of a united Ireland, but the provision does not say that this is the only circumstance in which a poll can be called.
It simply says that if the Secretary of State ascertained that a majority would be in favour of a united Ireland, they are required to call a border poll. Technically, the Secretary of State is at liberty to call a poll when they please.
While the Good Friday Agreement legitimises the mechanism of a border poll, it provides little clarity as to how the Secretary of State should assess public opinion, how a referendum in the Republic of Ireland would work, and how a united Ireland would be negotiated. Those questions – currently debated by academics and at universities – are not resolved in law.
Alan Whysall, a researcher with University College London’s Constitution Unit, said he believes the current confusion about the details of a border poll stems in part from the lack of specification in the Good Friday Agreement.
He told The Detail: “There wasn’t discussion about exactly how a border poll would be done at the time because it appeared to be at least a generation away.
“There was an awful lot in the short term to argue about. A border poll felt distant and not worth opening up potentially difficult arguments about.”
Queen’s University Belfast (QUB) sociologist, Katy Hayward, is a senior fellow of the Changing Europe initiative.
She said: “It seems from the Good Friday Agreement that we not only don’t have the answers, but some of the questions that need to be asked haven’t been asked.
"Things are quite ambiguous and this leads to us having a rather simplistic understanding of the border poll.”
As a result, the framework is incomplete and leads to uncertainty.
While the Secretary of State is required to call a border poll when they see a majority in favour of Irish unity, it is not clear exactly how they should ascertain public opinion.
Perhaps the most obvious trigger for calling a border poll would be a series of opinion polls that were to show a majority in favour of a united Ireland. Still, there is no set number of how many opinion polls would be necessary, and the issue of which opinion polls are suitably sound also presents challenges.
Others have suggested that perhaps a majority of members in the Northern Ireland Assembly being from nationalist parties, or a majority vote for a border poll in the Assembly, could be sufficient triggers. These methods would likely be controversial, and the lack of a specific mechanism for determining public opinion could invite criticism.
In response to The Detail poll question on whether there should be additional clarity for the criteria of triggering a border poll, there were clear ‘yes’ majorities in both Northern Ireland and the Republic. In Northern Ireland, 65.6% of respondents answered yes, while 76.4% favoured this in the Republic of Ireland.
Infographic by Chris Scott, The Detail.
Infographic by Chris Scott, The Detail.
As the debate around referendums and border polls has intensified in the UK, some have looked to the courts as potential arbiters.
When Boris Johnson refused to sanction a second Scottish referendum in January, Scottish nationalists have raised the prospect of a court battle.
It is traditionally interpreted that a Scottish referendum would require Westminister’s approval, rather than just that of the Scottish Parliament, but this has not been tested before a court, and Nicola Sturgeon has not ruled out a legal challenge.
In Northern Ireland, a petitioner legally challenged the criteria in which the Secretary of State can call a border poll, arguing that it was not transparent enough, but the High Court rejected this challenge in June 2018, ruling that the Secretary of State’s discretion of when to call a border poll is valid.
The case is currently being heard at the British Court of Appeal.
In addition to this question of when a border poll should be called, the question of how the referendum would work in the Republic of Ireland is equally fraught and without guidance.
The Good Friday Agreement states that consent for a united Ireland would need to be given “concurrently” in the north and south.
As a result, there would need to be a poll in the north and a separate one in the south. However, there is no provision on when exactly the poll in the south should be given – whether it should occur on the same day, as happened with the Good Friday Agreement, or if the southern poll should follow the poll in the north.
If both the north and south voted for Irish unification, the Good Friday Agreement stipulates that there should then be negotiations for a united Ireland. This would need to involve the joint work of the British Government, the Irish Government and the political parties in the north.
The event of Irish unity would also require changes to the Irish Constitution. As amendments to the Irish Constitution require a referendum, there would need to be an additional referendum on the proposed changes after the initial border poll. Whether this referendum would take place jointly in the north and south, or separately, is unclear.
The danger of conducting a border poll without first settling these questions has drawn comparisons to the commotion that surrounded Brexit.
University College London’s Alan Whysall told The Detail that if a border poll occurred without an agreed upon route map of how a united Ireland would be negotiated, the fallout could be even greater than that of Brexit.
He said: “There is very little in the Good Friday Agreement that says what a united Ireland should look like.
“There’s a general aspiration that a united Ireland should be negotiated between all the interested groups, but it's hard to see political unionists being in any negotiations unless a united Ireland is inevitable.”
QUB's Katy Hayward added that managing the border poll process would "entail a lot of careful preparation and confidence building" between unionists and the Irish and British governments which is "extraordinarily difficult to achieve".
Unsurprisingly, the political parties of the north are split in their opinions on a potential border poll.
An Alliance Party spokesman told The Detail that while the constitutional question is not the most pressing issue for their party, it would be willing to participate in constructive dialogue around a poll.
The two main unionist parties – the Ulster Unionist Party and the Democratic Unionist Party – both rejected the notion of a border poll.
A UUP spokesman told The Detail that the party had no interest in “opening the type of divisive and theoretical debate which would inevitably result from any discussion on a border poll".
A DUP spokesperson said: “There is no serious justification to call a border poll in Northern Ireland.
"After three years with no government we should be focusing on improving our schools, hospitals and roads rather than on pipe-dreams of a united Ireland.”
While both main nationalist parties were in favour of an eventual border poll, they retained different timelines.
An SDLP spokesperson said that, prior to any border poll, Irish nationalists should first outline how public services would operate and how unionists would be accommodated in a united Ireland.
“That work has to come before a referendum and then, when we’re confident of winning, we should set the date,” the spokesperson said.
Emma Sheerin, an MLA for Mid Ulster and the Sinn Féin spokesperson on Irish unity, told The Detail her party advocates holding a border poll within five years.
QUB academic, Katy Hayward, said she believes that Sinn Féin calling for a border poll in the next few years "seems like a political tactic".
However, she added: "But I don’t know that the data is there, and it could set back what they want.”
Current polling in the north on the topic of Irish unification has been mixed. In light of Brexit, polls have shown an uptick in support for a united Ireland.
A September 2019 poll conducted by Lord Ashcroft showed 46% support for a united Ireland, as opposed to 45% who indicated a preference for NI remain in the United Kingdom. When the remaining 9% who said they didn't know or wouldn't vote are stripped out, this represents a 51% majority in favour of a united Ireland. However, other polls have consistently shown that there was not majority support for the idea in the north.
If a border poll were to result in Irish unity, the following negotiation of a united Ireland would likely need to progress slowly and in phases.
Navigating the resulting constitutional changes, the inclusion of unionists, and a new economic reality would depend not only on the cooperation of the British and Irish governments but also on the active participation of civic society.
For Katy Hayward, any conversation on a border poll must take into account the numerous constitutional and legal questions that the Good Friday Agreement does not acknowledge.
“The whole Brexit referendum shows how unsatisfactory it is to have such an important constitutional and legal matter dealt with by a simple binary question,” she said.