Please click (and read!) here.
This post unpacks that Prospect post – a sort of “behind the scenes” perambulation of how that post came together – and a further discussion of the issues.
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The starting point is that a potential referendum in Northern Ireland has been in the news.
On one hand:
On the other hand:
The Sinn Fein quote was:
“What I firmly believe is – in this decade – we will have those referendums, and it’s my job and the job of people like me who believe in reunification to convince, to win hearts and minds and to convince people of that opportunity – part of which, by the way, will be really consolidating our relationship with Britain as our next door neighbour and good friend.”
Asked if she meant before 2030, Ms McDonald said “yes”.
The Prime Minister’s quote was:
Rishi Sunak has told Sinn Fein to focus on the “day to day” concerns of people in Northern Ireland rather than a referendum on Irish reunification.
The PM said “constitutional change” should not be a priority for the Irish nationalist party, after newly appointed first minister
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Now we will look at the relevant legislation – the Northern Ireland Act 1998.
There are two key provisions.
First, there is section 1, which should be read carefully:
(And legislative and literary purists will react pleasingly to that “But” at the start of the second sub-section.)
That section 1 needs to be seen in the context of, well, other sections 1s.
Here is section 1 of the Ireland Act 1949 – and look especially at sub-section1(2):
You will see at sub-section 1(2) what can be called the “consent” principle – though it would be for the then parliament of Northern Ireland to give that consent (which at the time would seem very unlikely).
By 1973 that parliament was suspended, and so the Northern Ireland Act 1973 switched the giving of consent to a majority of the people of Northern Ireland:
And as my Substack has set out at length before there had been such a border poll, just before the 1973 Act was passed.
The 1973 poll was heavily in favour of the union – and the nationalists largely boycotted the vote.
At the time the poll seemed pointless from a nationalist perspective, and it was also seen as a sop from the London government to the unionist majority.
However, sometimes, things change – and demographics change.
Those seeking the unification of the island of Ireland no longer see border polls as a necessarily unionist device.
Indeed, the roles are somewhat reversed: it is now the unionists that are wary of a border poll.
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Having set out that context, let us go back to the text of section 1 of the 1998 Act:
Here there is a declaration – and you will note similar wording was used in the 1949 and 1973 Acts. The use of a declaration is not new. And it really has to be a declaration (or affirmation) as it describes something as it stands, rather than providing for something new. Section 1 does not make Northern Ireland part of the United Kingdom – that status rests on other legal instruments.
The sub-section also repeats the requirement that consent is required for this declared status to change – and like the 1973 Act it then refers to a schedule to the Act.
But.
There is that second sub-section, beginning with a “But”.
And this is where it becomes interesting and departs substantially from previous legislation:
The word “shall” in that provision is highly significant.
For sub-section 2 creates an obligation. If the majority in such a poll supports unification, then the government of the United Kingdom has to bring forward the legislation that would make this so.
If you read carefully, however, you will note that the obligation only goes to putting legislation before parliament. It does not actually place an obligation on the government of the United Kingdom to ensure such legislation is passed. In this technical way, the supremacy of the Westminster parliament is maintained.
But if there was such a poll majority, it is difficult to see how the Westminster parliament would reject such legislation – though presumably some unionist and conservative MPs would oppose it, regardless of the “will of the people” on this one inconvenient occasion.
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So much for section 1 of the 1998 Act – for it is in the first schedule that the real excitement begins.
(Oh, for what it is worth, lawyers tend to call them sh-edules, not sk-edules when they are in legal documents, I do not know why.)
Here are the first two paragraphs of the schedule:
The two paragraphs are doing different things.
The first paragraph confers a discretion on the government of the United Kingdom (acting through the Secretary of State for Northern Ireland). The key word is “may”.
The Secretary of State may direct there to be a vote; or, then again, the Secretary of State may not do so. It is a choice.
On the face of it, it is an absolute discretion – the Secretary of State may direct as many such border polls as he or she would like. One poll a day, every day even.
But in invisible ink, so to speak, there are limits to be discretion that are implied by law.
The discretion has to be exercised in the public interest and for the purpose of section 1. And given it is part of a statutory scheme implementing the Good Friday Agreement, it would also be necessarily implicit that the discretion should be not be exercised in the selfish interests of the United Kingdom government in maintaining the union.
But those are very wide parameters, and the courts would not intervene if the paragraph 1 discretion is never exercised in favour of holding a border poll.
(If such a poll is held, however, and a majority is in favour of unification, that would mean section 1(2) applies and legislation would have to be brought forward.)
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Now let us look at the fascinating and significant second paragraph:
This is distinct to and separate from the discretion conferred in the first paragraph, for this paragraph imposes an obligation.
The government of the United Kingdom has to hold a border poll if the condition in that paragraph is met: the government of the United Kingdom cannot choose not to do so.
The condition is framed in wide terms and contains two elements, which I will call (A) and (B): the Secretary of State shall exercise the power under paragraph 1 if (A) at any time it appears likely to him [or her] that (B) 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.
The first element (A) is about as wide as you can have as a ministerial discretion under public law (the law governing public bodies). This means a court will not intervene readily to gainsay what the Secretary of State considers to be the position.
But.
Element (B) limits that subjective discretion.
Consider the following: that there is, over a period of time, an accumulation of evidence that the nationalist parties are securing majorities both of the popular vote and of the seats on representative bodies, in successive elections, and especially for seats in the Assembly and the Westminster parliament. And that such support is not a blip but a sustained trend.
There will come a point – a tipping point – where it will be come impossible for a Secretary of State to plausibly maintain that it is unlikely that a majority would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland.
It would become literally incredible.
At that point, the so-called Wednesbury doctrine (named after this case which my Substack has examined before) will apply.
The Wednesbury rule is that, as a matter of law, it is not open for a public law decision-maker to make a decision so unreasonable that no reasonable public law decision-maker would make it.
A refusal by a Secretary of State to direct that a border poll take place in certain circumstances would be Wednesbury unreasonable.
And that would then make it potentially a matter for the courts.
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The courts will not want to deal with it.
The courts will view this as a political question.
And the two judgments in the McCord litigation (here and here), where an application was made to make the government of the United Kingdom publish (and thereby abide by) a policy on when it would call a border poll, show that judges really REALLY do not want to get involved.
But.
The judges may not get to duck out of it, as much as they would like to do so.
For that second paragraph was placed on a statutory basis deliberately, so that it could have effect in a certain situation.
Here we need to look at the Good Friday Agreement.
The parties to that agreement, including the governments of the United Kingdom and Ireland, agreed the following:
Section 1 and Schedule 1 of the 1998 Act are both express parts of the Good Friday Agreement.
And the United Kingdom undertook to place the provisions on the statute book as part of their obligations under the agreement.
The sentiments behind the provisions could have been put in a mere political declaration, or a recital, or something else without any (real) legal effect – but no. The other parties to the Good Friday Agreement required the United Kingdom to place these provisions into law, and the United Kingdom freely accepted that requirement.
The other parties were wise to do so.
For by placing the obligation into legislation, a legal backstop was created where, if – if – the point was eventually reached where there was simply an abundance of evidence that a majority supported the unification of the island of Ireland, the United Kingdom could not maintain an unreasonable refusal to hold a border poll.
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Of course, in that extreme scenario, the judges may still wish not to get involved – and it is unlikely that the courts would grant a so-called mandatory order requiring the Secretary of State to direct a border poll.
But there would be no reason why the court could not grant a declaration saying instead that a refusal would be Wednesbury unreasonable.
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Another ground on which the courts may intervene is if the second paragraph was used by the government of the United Kingdom to cynically hold a snap border poll hoping that they would win, so as to gain the protection of the stipulation that another such poll could not be held within seven years.
Such a ploy would be in bad faith, and for a collateral purpose, and this would mean that a court could quash such an order.
Wednesbury and bad faith are among the very widest parameters in the public law of the United Kingdom – and they only apply in exceptional cases. But they are there, and this means that paragraph 2 of the schedule is not a law-free zone – as much as politicians (and judges) may want it to be.
There will be circumstances where nationalists can and will apply to the courts to enforce a provision freely agreed to and legislated by the British state. And so the government of the United Kingdom cannot just refuse a border poll forever, regardless of what happens in Northern Ireland.
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Of course, the condition in paragraph 2 may never be met. It may well be that the evidence never becomes that overwhelming and stark, and that support for unification (like support for independence in Scotland) never solidifies into an ongoing, sustained majority.
But that a condition is not (easily) met does not make it any less of a condition at law. The government of the United Kingdom knows it is there, and the nationalist community knows it is there.
It is no longer an absolutely free choice by the government of the United Kingdom whether there is a border poll or not.
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Holding a border poll for Northern Ireland is essentially a political matter.
And in the real world, it is a matter that will undoubtedly be decided by politics, and not by courts.
Yet it is not a situation where the law is entirely absent. The 1998 Act sets a longstop where, if a certain condition is ever met, a border poll has to be held – even if the United Kingdom does not want to do so – and that a majority in that poll for unification has to be respected.
And this is a key and express part of the Good Friday Agreement, that carefully crafted (and extraordinary) document which has had so many long-term effects on our polity.
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Going back to the quotes at the top of this post:
The suggestion is that Sinn Fein believes they will be able to show a sustained majority for unification within ten years; while the British government wants the political majorities in Northern Ireland to signify other day-to-day things, unconnected with the unification question.
You can see why, for both, these are the lines-to-take.
An objective of the nationalists is to create a “majority” situation where it would be unreasonable for a border poll not to be held; while an objective of the British government is to have a situation where a Secretary of State in good faith can reasonably believe that no such majority (yet) exists.
But if and when a political decision is made for the poll to take place, there will be some regard to the ultimate legal position under the first schedule to the 1998 Act.
As always: law shapes policy and politics; and politics and policy shape law.
And the policy and politics that shaped the extraordinary and consequential Good Friday Agreement (and the 1998 Act) in turn continue to shape the policy and politics of the United Kingdom.
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Sh-edule is the pronunciation I was brought up with in the 1950s; sk-edule was the American pronunciation.
Both Merriam-Webster (American) and Collins (British) dictionaries maintain that this is still true today.
https://www.merriam-webster.com/dictionary/schedule
https://www.collinsdictionary.com/dictionary/english/schedule
-A.
The big elephant in the room here is the assumption that is commonly made across the UK media about the (increasingly discerning) Republic of Ireland voter – it is a huge mistake to believe voters in the Republic of Ireland will just march in like sheep and vote for ‘geographic unity’ of the island: just because there are provisions in UK law or regular soft soundbites from Sinn Fein politicians to ‘represent everyone involved’, words like unionist, nationalist, catholic, protestant etc do not all ‘mean much the same’ as they might have done in 1922, 1949 or 1998).
Also ROI voters will only make huge constitutional decisions (in an increasingly inter-dependent international world) if they can see they are based on dependable lengthy preparations that are the exact opposite of the ‘preparations’ done by the UK Government on the 2016 Brexit ‘Advisory Referendum’. It’s not a new thing – political initiatives since the times of the New Ireland Forum (mid 80’s) showed progress on constitutional items was always made very slowly between politicians North and South (+ in the UK).
The single key feature is not law but having people like Garret Fitzgerald, Albert Reynolds, John Hume, David Trimble, John Major and Tony Blair all around ‘at the same time’ (this means laser-focused totally on top of detail for at least a decade and not expecting Martin McGuinness figures to ‘rely’ on sitting across the table from Boris Johnson or Liz Truss types at any time + Sinn Fein has no Martin McGuinness figure now). Highly recommended to illustrate some of this would be the 2023 presentation John Major did to the ROI parliamentary committee as part of the ‘Architects of the Good Friday Agreement’ series – available across the internet on Oireachtas TV (Irish Parliament) – it is the EXACT OPPOSITE of anything on GB News!
When the UK and Ireland has the right people ‘in place’ (at a given time), the USA and EU will pull out the stops with politicians of the ilk of Bill Clinton and George Mitchell needed to ‘seal a deal’ in the FINAL YEAR of a longer nuanced, confidence-building, practical process (and the USA doesn’t always have such people available either at particular political crunch moments!)
Sinn Fein may be ‘the largest party’ in opinion polls but (for decades) there’s an in-built ‘soft volatile vote’ that can swing away just as easily (like it did with The Irish Labour Party’s ‘landslide’ Spring Tide in 1992 or Fine Gael’s dramatic vote drop in 2002 (3 seats in Dublin).
Core to a party’s vote in the Republic of Ireland is being ‘transfer vote friendly’ so even getting high No 1 votes in ‘many constituencies’ means that ‘lower placed candidates’ will pass them out over what is generally double digit ‘lower placed candidate elimination vote counts’. Polls only measure No 1 votes but the PR-STV Electoral System offers a tactical voter toolkit that is very different than FPTP in the UK (the ‘How Ireland Voted’ books – there’s one for every General Election going back to the mid 1980’s – are good on all this as well as tracking pragmatic policy choices of parties and voters to the present day).
Sinn Fein (or any other party) will not have an OVERALL SEAT MAJORITY in ROI General Election 2024 and has no obvious Coalition Partners (leaders of Fine Gael, Fianna Fáil and The Social Democrats have already ruled out coalition with Sinn Fein based primarily on ECONOMIC GROUNDS).
Wheras ‘four green fields songs’ may have politically sustained some in times of high emigration (most of the 20th century), it is different now. Also many voters are smart enough to see that constitutional questions being commented about in particular ways often involve a lot of cover for other shortcomings that are overflowing elsewhere – let alone looking at what is happening in Eastern Europe, the Middle East and Brexit Britain.
Basic Law will underpin a United Ireland (if it happens in a future politically fluid world where borders will strengthen at continental boundaries but be hardly noticed by those that use the EU Single Market) but it is people that will make anything work in this ongoing political process.
Right now (ie the next decade at least) the voters north and south would reject a United Ireland Referendum Vote – there is nothing available to them that is comparable to the hopeful block-building pieces that began to be built in the 1980’s and have ‘only’ got to a place where in 2024, the Stormont Assembly returned after two years of being closed – it’s better than what happened before 1998 but it is way too undependable for a sovereign country (and look at the volatility that has happened in the former East German part of a United Germany).
Soon Sunak will be gone in the UK and with him the soft soundbites on this issue. Keir Starmer does not look anything like Tony Blair and he should have enough to deal with internally in the UK to largely ignore the substance of a ‘United Ireland’ debate, except to echo his Fine Gael and Fianna Fáil counterparts in the Republic of Ireland when they make treading water political comments about ‘some time in the future’ while being totally in sync with voters that see the future being about a Shared Island where so much sharing is going on between both parts of Ireland, Britain and the European Union that a United Ireland means something very different than it did in 1922 (Free State), 1949 (Republic) or 1998 (Good Friday Agreement).
“It is a huge mistake to believe voters in the Republic of Ireland will just march in like sheep…”
It is very hard to believe this comment was written by someone Irish. There is no more emotive issue than Irish unity in Ireland, and Brexit shows the power of emotion.
If a unity vote was held tomorrow, I have no doubt Ireland would strongly vote yes. It would be like asking an Irish farmer (or any farmer) if he wants more land. (Northern Ireland would vote no, perhaps more narrowly than people think).
Of course, Ireland is very good at organising a referendum, unlike some other country we could mention. Taking the time to do the proper groundwork – obviously a good thing – would only improve that certain majority vote.
The principle of self determination require that the peoples of Northern Ireland should be allowed decide for themselves which state their territory forms part of. The same principle applies to any people, whether they are Catalan or Walloon or Ukrainian or Bangladeshi or Punjabi or Palestinian. How that is to be achieved in a peaceful and democratic manner is a matter of political and law.
Rightly, there are mechanisms in the UK for a border poll, or for the independence of Scotland, if that is the settled will of their peoples. For many years that settled will has been to remain in the UKGBNI (or at least there has been no clear settled will for a change). Now, whether it is one decade, or two or three, the writing is on the wall for Unionists in the north of Ireland. But there is also the related question of whether the south will necessarily accept them.
On pronunciation, the OED says “schedule” comes from Middle English “cedule” or “sedule” from the French “cedule” (with a soft c) and ultimately from Latin “scedula”, “sceda”, and “scheda” from Greek “σχέδη” meaning strips of papyrus.
The American pronunciation (‘skedju:l) follows Noah Webster and is probably closer to the Latin and Greek original, but in this British English (‘shedjul) has usually followed the French and many other European languages, including Spanish, Dutch and Swedish. The OED goes as far as saying that the “sh-“ pronunciation seems to be universal in England.
It would be interesting to discuss the meaning of the word “likely”
here.
I once had a job administering legislation which (originally) used
that word, after losing in court they amended it to “a real risk”
that the relevant event would occur.
Ever since then I’ve made a note of whenever I see discussion
of this, the most recent HL one I have I’ve seen is SCA
Packaging Ltd v Boyle [2009] UKHL 37 par 35ff, 51ff, 65ff
https://www.bailii.org/uk/cases/UKHL/2009/37.html
(short answer seems to be it depends on the context)
It seems to me that if the UK wanted to wriggle out of some of the obligations, it could hold polls separate to those mentioned above, whereby each county bordering the Republic of Ireland is separately given the choice of which country to belong to (and with the guarantee that if this results in another county (i.e. Antrim) acquiring a border with the Republic, it would promptly get its own poll. Since support for the two sides is not uniformly distributed, this would be likely to result in a smaller Northern Ireland in which there was no longer a majority in support of joining the Republic.
It might even result in Republicans boycotting the votes on the grounds they didn’t go far enough, resulting in all results being for remaining in the UK, thus providing the Secretary of State reasonable grounds for claiming that it was not likely that a majority of the whole of NI woudl vote to leave.
While some Unionists might like this plan, I expect most of the rest of the UK would consider it disastrous as Northern Ireland has been a very expensive and troublesome part of the UK for a long time, and it would be a huge advantage to GB if responsibility were to be passed to the Republic of Ireland.
One problem with your scenario is that there’d be no provisions for it in existing law, or at least in the laws explained by our host.
Another problem with “county-by-county” referendums is that I’m not at all sure that the Republic would accept getting only *parts* of NI.
And then there’s the minor issue that I’m pretty sure that from a *purely legal* perspective, the old six counties of NI *no longer exist*. That is, they still exist as GAA teams and subdivisions, but they no longer exist as political, legal, or administrative structures. In *that* sense, they were replaced with the eleven local government districts.
At the original creation of Northern Ireland, the Border Commission allowed several parishes with a Catholic majority to be absorbed into the new northern state. The Irish representatives did this believing it would help hasten the end of Northern Ireland by reducing the Protestant majority.
This obviously created much bitterness among those in the border areas affected, and the Dublin government is still resented for it. It is highly unlikely they would agree to such a reversal of the process.
What you describe is what many imagined would happen under operation of the Irish Boundary Commission under the Anglo-Irish Treaty, after the provisional demarcation of Northern Ireland in 1921. The way the Commission was described in that treaty – the Wikipedia article on it provides quotations and a history – led many to think that there would be local plebiscites to match the border to the local population’s desire more closely. But the chairman of the Commission took advantage of some ambiguity in the wording to rule out plebiscites, and in practice did not operate in that way at all. Only some very small adjustments were made to the border.
There doesn’t seem to be anything in the more recent legislation and agreements to suggest that such a thing might happen today. The only outcomes envisaged are that Northern Ireland either continues, or else is absorbed into the Republic. Short of some new agreement for it, there is no provision for a shrunken Northern Ireland designed for a Unionist majority.
We should not forget that the consent of the population of the Republic is probably also required for Northern Ireland to join the Republic, despite the territorial claim that is in the Republic’s constitution. At times, the population in the Republic has given the impression it would be unenthusiastic to swallow such an uncomfortable meal. They worry that some measure of conflict and violence might endure even if the unionists are reduced to a clear minority in the province.
Fascinating analysis. Thank you
I’m curious to know what weight you place on the referenda of May 1998. The GFA itself was signed in April 1998 but without a ‘yes’ result in the May referenda, would surely not have led to the incorporation of the Agreement into UK statute, as happened with the 1998 NI Act. Unionists campaigned hard for a No vote in the NI referendum and as the Unionist electoral ascendancy has been progressively eroded since 1998, there’s been a steady and more explicity hardening of Unionist opposition to the GFA itself. Much of the Unionist objection to Brexit trading arrangements has effectively been a proxy for opposition to the GFA, and it’s been gaining concession after concession. I’m loath to recognise Sammy Wilson as a constitutional authority, but his point about the latest Brexit trading agreement virtually creating a border within the island of Ireland does actually have some force.
What happens, then, if a future Unionist government at Westminster (and it might not even have to be a Tory government) decides to repeal the 1998 Act? Perhaps with the short term pragmatic aim of shoring up a working majority at Westminster, as after the GE of 2017.
I’m suggesting that the progression from GFA to 1998 Act was more contingent than we nowadays tend to assume, and once you recognise that, that it didn’t automatically happen, you have to reckon with the 1998 Act’s continuance as equally contingent. It’s not just that any Act can be repealed by a subsequent parliament, it’s that the political calculations of a Westminster government make repeal of the 1998 Act a real possibility. The recent tendency of the Executive to ignore international treaty obligations (even when they’re formal, and in the GFA they’re not) makes the GFA itself, and the 1998 Act, more precarious than they’ve ever been since 1998.
I admit I’m a glass half-empty person. I just wonder if you’re not being over-optimistically glass half-full here.
There’s an interesting ambiguity in “the majority of Northern Ireland voting in a poll”.
Could that be construed to mean that more than 50% of the electorate would have to vote in favour, as opposed to just 50% of the turnout?
Or that turnout would have to be at least 50%+1, and that at least 50%+1 of those would have to vote?
Or would these be a “majority of a majority”?
I don’t have anything to add on the *legal* aspects on the matter – as you write, the law is pretty clear. But from a more abstract “democratic legitimacy” perspective, I wonder why it seems to be generally assumed that it is entirely up to the people of NI whether the Union continues to exist. Shouldn’t the people of England, Scotland, and Wales get a say in whether they have to stay in a Union with NI, too?
An interesting side-point to this (at least I think it’s interesting; others may feel I’m reading too much into it) is that buried in Annex B of the recent Command Paper is a statement from the government in which they use opinion polling as the basis for a statement that there is no realistic prospect of a border poll reuniting that country. This is of course true – every poll there has ever been has shown a majority for the status quo. However I had been under the impression that previous governments had been extremely careful to maintain ambiguity over whether the test for the Secretary of State to conclude a poll was required was simply a matter of what the opinion polls say. It seems rash to put the statement so firmly in writing, in a government document.
(“Safeguarding the Union”, Annex B, paragraph 3, for the benefit of anyone who wants to check, or to point out something I’ve overlooked)
Fascinating blog post. So many interesting and wide ranging comments (including the use of referenda as a singular noun?)
But, to be serious, is there not a case for stating that all this would be pretty irrelevant if the Brexit decision had gone the other way and the “will of the people’ had been clearly in favour of the status quo.
No trade disruption complications and costs, freedom of movement and step by step a closer alliance and virtual union with our nearest neighbour with whom we share a border?
The requirement to hold a border poll is enshrined in the Good Friday Agreement (an international treaty) and implemented in the 1998 Northern Ireland Act. However, in the “Safeguarding the Union” command paper, the UK government has just pledged to repeal other aspects of the Good Friday Agreement.
The Belfast/Good Friday Agreement (GFA) commits both the Irish and British governments to promote the all-Ireland economy and sets up InterTradeIreland and other agencies to assist in doing so. The ability to trade freely across an open border was one of the main reasons GFA was endorsed in referendums, north and south.
The importance of this responsibility to promote the all-Ireland economy was also underscored in the 2017 Joint EU/UK report on the Brexit negotiations which was later incorporated into UK law in section 10 of the European Union (Withdrawal) Act 2018.
Yet paragraphs 71 and 114-116 of the UK Command Paper “Safeguarding the Union,” (the DUP deal) have the audacity to describe the all-Ireland economy as a misguided, new and divisive political construct and declares the government’s intention to repeal its commitment, in section 10 of the European Union (Withdrawal) Act 2018 not to diminish any form of North-South cooperation provided for by the Belfast Agreement.
In addition, by discussing and agreeing these proposals only with the DUP, the British government has failed to observe the “rigorous impartiality” and “parity of esteem” for all of Northern Ireland’s political parties and traditions as required by the Good Friday Agreement.
It is thus unilaterally resiling on agreements previously reached with other Northern political parties, Ireland, and the EU and administering a gratuitous a slap in the face for the Irish government ‘s commitment to providing funding for Northern Ireland and cross-border projects under Shared Island Initiative.
It beggars belief that the DUP and the British government should see ending north south cooperation as improving the prospects for reconciliation and economic development within Northern Ireland. Who gains from such a gratuitous attack on good neighbourly relations on the island? Do we really need to thrash Strand 2 of the GFA in an attempt to restore Strand 1, and does this not merely store up more problems for the future?
It seems “perfidious Albion” can never be trusted to abide by Treaty obligations previously freely undertaken.
I very much hope that DAG might address the issues that Frank Schnittger raises in relation to the command paper. They seem to me to be highly pertinent. By contrast, I don’t think there is much prospect of a border poll in the foreseeable future, given the improvement in relations between the UK and the EU and the diminishing of the threat of a hard border between Northern Ireland and the Republic of Ireland. The spectre of border controls was the main factor in driving increased support for a united Ireland in Northern Ireland a few years ago, especially when Lord Frost seemed intent on starting a trade war with the EU. With the re-establishment of devolved government, support for a united Ireland in the immediate future is likely to fall further.
In 1971 the actor and amateur historian, the late Kenneth Griffith, (“Are you telling me I don’t know my own brother?”) made a television documentary about Cecil Rhodes.
https://www.youtube.com/watch?v=gZKqRm5QC84
At 37:53 he relates an anecdote about Rhodes being invited to dine with Queen Victoria. She asks, “What are you engaged on at present, Mr. Rhodes?” He replies, “I’m doing my best to enlarge Your Majesty’s Dominions.”
It is a quotation which has often occurred to me whenever re-unification of Ireland has come under discussion. I have always imagined that there was a section of our political class – among whom I include those shadowy figures known as “courtiers” – who regarded as treasonous any suggestion that Her Majesty’s Dominions should be diminished by so much as one square inch.
Another quotation which occurs to me on such occasions, (from a Steve Bell cartoon, I believe), to be spoken in an uncompromisingly Belfast accent, is, “What is the panel’s opinion about surrender? A simple ‘yes’ or ‘no’ answer will suffice.”
Interesting as always. When I advise companies how to think about the future, I always stress look at the trends. In the island of Ireland there is growing economic unification, more Irish identification (look at the number of Eire passports issued for Northern citizens), and a (slowly) growing pragmatism ( witness the rise of Alliance. All in my opinion argue for eventual unity, but this is Northern Ireland.
Important in any calculation is the willingness of Westminster to sell NI down the river. An earlier poll on Brexit showed the overwhelming willingness of the Conservative voter to get rid of NI should it stand in the way. With the rightward drift of UK politics (does Starmer have a socialist policy?), this may be the real driver of Irish unification.
First, I generally agree with the comments of Frank Schnittger on the Safeguarding the Union command paper and related matters. Quite likely the Irish Government has stayed silent because in the interest of a return to Stormont it could accept the soft soaping of the DUP and the protecting of its leadership from attack by the TUV and from within its own ranks. Still, it would be unwise to stay silent indefinitely in case the apparent British resiling from the Good Friday Agreement in the command paper should take hold.
Second, it is not to be assumed that a referendum in the South would pass automatically. It would need to be well prepared with measures already in place, including British agreement on a financial settlement for the future given the annual subsidy NI enjoys from UK, in the region of £12 bn, more currently granted the inducement package for re-opening Stormont.
Second, whilst the provisions for a border poll in NI are well known, it is less observed that there is no provision for a poll in the South. There was an assumption in the 1990s that the South would vote on unity on the same day and the GFA does say “concurrently” in 1 (ii) of Constitutional Issues in relation to giving consent to a United Ireland. But an Irish government could jib, especially if it felt a referendum in the South was in danger of failing. There might also be particular political reasons for declining to hold a poll. Think UK general election 2017 when it was thought Jeremy Corbyn’s might gain the greatest number of seats but fall short of a majority. In that scenario he might, given past connections, have turned to Sinn Fein and offer them a border poll in return for them taking their seats and supporting his government. Dublin would have urged against but if Corbyn persisted would it have held a referendum on the same day? I very much doubt it. The word concurrently would have allowed some leeway and I expect Dublin would have decided to wait and see.
Declan O’Donovan
Irish Government official in Anglo-Irish relations, based in Dublin 1983-90 and Belfast 1990-95 as head of the Anglo-Irish Joint Secretariat.