Clare RiceThe Constitution Unit at University College London (UCL) commenced a project in 2019 with the aim of examining the logistics of a so-called ‘border poll’ in relation to Northern Ireland’s constitutional future.
Following an interim report in November 2020, the Working Group’s final report has now been published. It examines the practical elements of unification referendums on the island of Ireland, considering aspects such as who would be eligible to vote, campaign management, government engagement and steps to protect the legitimacy of the process and outcome.
This article details key findings from the report, and outlines some initial thoughts on its content.
Summary of key findings
The crux of the report is that there is a need for extensive planning ahead of any referendum held. It outlines that two would be needed on the island of Ireland in relation to reunification, one north and one south of the border. These do not have to happen at the same time necessarily, but should be scheduled to happen without significant delay in the interim.
The Irish and UK Governments need to be central at all stages. The report determines that both governments must take a leading role in the preparation, design and enactment of these referendums, and outlines how this can be achieved. This must also be inclusive of engagement across the political spectrum in Northern Ireland, as well as with civil society and the general public.
While both governments should be involved in these preliminary processes, the report also outlines that it would be up to the Irish Government alone to determine the practical aspects of unification, including governance structures. Terms of transfer should be discussed with the UK Government, and – crucially – nothing proposed or outlined in advance of the votes occurring should be subsequently changed or altered. Further, both states must honour the outcome, which should be determined on a simple majority basis.
The Working Group also examined the regulatory framework for campaign financing and management and determined that this should be updated as a matter of urgency in Ireland and the UK in order to mitigate the potential for abuse. In effect, it presents the case for a closer alignment of these frameworks and procedures in the event of unification referendums being held.
Procedural and political questions
This is a significant and timely report based on extensive research, drawing on the expertise of a group of twelve academics and researchers, and evidence gathered through oral and written submissions. By way of full disclosure, I am one of those individuals that contributed oral evidence to the Working Group back in early 2020.
It is perhaps not surprising to those of us familiar with the travails of Brexit that the most prominent conclusion the report reaches is that advance preparation is key. Without this, an informed vote could not be achieved, which would pose a fundamental challenge to the (perceived) legitimacy of the referendum(s). Learning from the 2016 EU Referendum, the report emphasises the importance of planning to enable clear choices to be presented and voted on, and recognises that this would be a lengthy process running into years if executed in depth.
It seems obvious that there would need to be engagement from both the UK and Irish Governments in the preparations for this to be able to happen, and for both to be involved in the planning for what would happen in the aftermath in any scenario. As co-guarantors of the Belfast/Good Friday Agreement, it is inconceivable that one or both would not be involved in these conversations. Yet it is important and necessary that this has been highlighted in the report.
One of the advantages of the report is that it is written without a perspective on whether or not such referendums should happen; instead, it aims to be a clinical assessment of procedures. However, practicalities and political interests often struggle to align, and with a sensitive matter such as this, it is doubtful that both governments would fully engage in reality.
The first real test for this would likely be in relation to the calling of a referendum, which is the duty of the Secretary of State for Northern Ireland. The report determines that they must act with “rigorous impartiality” in determining whether or not there is sufficient chance that a majority in Northern Ireland would favour reunification.
This ambiguous threshold was the subject of a legal challenge aimed at compelling the Northern Ireland Secretary to outline in writing the criteria that must be reached before a referendum would be called. It was determined in 2020 by the Court of Appeal that there was no obligation on the Secretary of State to produce such a document, and further, that to do so could act as a restriction in making such a determination in the future.
As such, there is a huge degree of subjectivity with regard to what might prompt a Secretary of State to trigger a referendum. The report outlines a number of factors that could be used to inform this decision (including election results, surveys and opinion polls, and activity within the Northern Ireland Assembly). But ultimately, there is nothing compelling the UK Government to look for or gauge these cues, any more than there is incentive to engage in planning for a scenario in which Northern Ireland would seek to break from the UK and become part of a reunified Ireland.
There is also nothing preventing a border poll being called even where it is not expected to result in reunification, entailing that another could not happen for at least seven years. While not desirable, it is something to remain conscious of in considering wider political strategies that could be deployed in the future.
This also bears the consequence that impartiality on the part of the Secretary of State in assessing when to call a referendum will be extremely difficult to ensure. Broader fears about the UK’s constitutional integrity along with the current UK Government’s position that a ‘border poll’ will not be called for a “very long time to come” demonstrate that there is a much bigger picture at play. It would also be remiss to overlook the impact of events beyond Northern Ireland on such a decision, not least in Scotland.
Despite not engaging with politics, it is not a massive leap to draw a line between the report’s conclusions and the potential challenges that these could give rise to politically. The report recognises this in also considering steps that could be taken to ensure public trust is maintained.
In this way, it also manages to confirm what was already widely suspected – there is no simple, clean or fixed way for a ‘border poll’ to happen.
Impact on broader discourse
The impact of this report comes from its timeliness and in stating in unambiguous terms the importance of key considerations in a purely practical sense. Many of these elements have become increasingly prominent in general discourse on Irish reunification in recent years, and this work now provides a benchmark against which future activity towards this end is likely to be gauged.
Work on the practicalities of reunification based on the content of the Belfast/Good Friday Agreement is not in itself novel. In this way, the report acts as a useful amalgamation, summary and overall analysis of the full breadth of work that has been happening in relation to reunification referendums on the island of Ireland, inclusive of but also looking far beyond the expertise present within the Working Group itself.
And that is where the real value in this work lies. Rather than this topic being retained to academic debate or conducted in the abstract, it has made a vast expanse of work and expertise accessible to all at a time when informed discussion is needed most.
