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FactFind: How could a border poll happen?

Talking aside, who actually makes the decision?

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WHETHER OR NOT Ireland moves to hold a referendum on unity in the coming years, discussing how such a vote might happen is a useful exercise. 

As we’ve discussed already in The Good Information Project series, this is not only because ignoring it completely as a possibility seems foolhardy, but also because the Irish Constitution explicitly states a desire for it to happen.

GOOD FRIDAY AGREEMENT 13271 Votes being counted in the 1998 referendum. RollingNews.ie RollingNews.ie

The Good Friday Agreement, which was backed by 94% of voters in the Republic and 71% in the North, also allows for Irish unification should voters on both sides of the border agree.

This does not answer the question of when such a vote should take place, a point we will examine later but there is much to discuss first. 

Questions such as what is the Irish State’s official position on unity? What exactly have we signed up for under the Good Friday Agreement and what are government’s required to do about it?

There’s also issues surrounding the role of the UK’s Secretary of State for Northern Ireland and indeed how the timing of a border poll has been interpreted by the courts. 

What does the Irish Constitution say about unity? 

The reason Irish citizens in the Republic were required to vote on the Good Friday Agreement 23 years ago was because it changed the Constitution – specifically the language around Northern Ireland and the Irish State’s relationship to it. 

Before the 1998 vote, the Irish Constitution essentially had a “claim of right” over the entire island of  Ireland and its seas, stating: “The national territory consists of the whole island of Ireland, its islands and the territorial seas.”

Furthermore, the Constitution stated that while any laws passed by the Oireachtas would apply to the 26 counties, this was only “pending the re-integration of the national territory”.

In effect, it meant that the Constitution was also claiming Northern Ireland, while acknowledging that it wasn’t presently able to govern it. This territorial claim was an issue for unionists and the pledge to replace it was a key part of the GFA.

Instead, what was inserted into the Constitution was a watered-down and more aspirational desire for unification, as laid out here in Article 3

It is the firm will of the Irish nation, in harmony and friendship, to unite all the people who share the territory of the island of Ireland, in all the diversity of their identities and traditions, recognising 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.

That desire for a united Ireland is clear, but what is less clear are any actions that should be taken to make it happen. There are no specific details laid out here. 

In a previous fact-check, The Journal found that while a united Ireland may be a Constitutional aspiration, there is little to suggest that the government is legally required to work towards it. 

What does the Good Friday Agreement say?

In accepting the GFA, both the British and Irish governments were required to accept the current constitutional situation of Northern Ireland.

The agreement states that the present wish of the people of Northern Ireland is to “maintain the Union” and that the current situation “relies upon that wish”.

It also clearly acknowledges that the constitutional status is a decision for the people of Northern Ireland. Article 1.1 of the agreement states that both governments must: 

recognise the legitimacy of whatever choice is freely exercised by a majority of the people of Northern Ireland with regard to its status, whether they prefer to continue to support the Union with Great Britain or a sovereign united Ireland.

Article 1.2 deals with the potential for a united Ireland and states this must be accepted if separate votes held at the same time on both sides of the border support this.

In the text of that section, the GFA outlines that both governments must: 

recognise that it is for the people of the island of Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right of self-determination on the basis of consent, freely and concurrently given, North and South, to bring about a united Ireland, if that is their wish, accepting that this right must be achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland.  

The agreement also states that if such a decision is taken in referendums on both sides of the border, governments have an obligation to introduce legislation to give effect to the change.

In the case of the UK, the Secretary of State for Northern Ireland would be responsible for bringing such legislation before the UK parliament. 

The NI Secretary, however, arguably has a much more significant role in determining when a referendum would actually happen. These details are also laid out in the GFA but there is a lack of clarity in exactly when the NI Secretary would be required to do this.

So in what circumstances would the UK call a border poll in Ireland?

good-friday-agreement Mo Mowlam, NI's Secretary of State when the GFA was signed. (File) Eamonn Farrell / RollingNews.ie Eamonn Farrell / RollingNews.ie / RollingNews.ie

First off, the phrase ‘border poll’ is not used in the GFA and its use has been deemed somewhat political itself, such is the sensitivity around the history of the border. 

However, the GFA and the UK’s Northern Ireland Act 1998 do use the term “a poll”, so we will continue to use the term “border poll” as a catch-all for the concurrent referendums north and south which would decide the status of Northern Ireland. 

While Article 1.3 of the GFA notes that a united Ireland is allowed for following support in referendums on both sides of the border, it also emphasises that a majority is required in Northern Ireland for this to happen. 

PastedImage-23714 dfa.ie dfa.ie

It is also accepted within the GFA that “a majority of the people of the island of Ireland” wish for a united Ireland.

Taken together, the GFA essentially acknowledges that the island as a whole supports unity but that the central question is whether Northern Ireland would consent to such. 

Therefore, it is explicitly stated in the GFA that the holding of a border poll is within the power of the NI Secretary: 

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.

Essentially, it means that a border poll can be held if the NI Secretary feels it is likely that it would be passed. If one is held, there can’t be another for another seven years. 

While that much is clear, what remains unclear are the barometers the NI Secretary must use to judge if that consent is likely. For example, is it a case of looking at the politicians elected in Northern Ireland? Or could polling also be used as a consideration?

These questions were discussed at a recent sitting of the Oireachtas Committee on the Good Friday Agreement.

Professor Colin Harvey of Queen’s University Belfast told the committee that he has been in correspondence with the Secretary of State’s Northern Ireland Office (NIO) in an effort to get clarity on the test for determining if consent is likely.  

In that correspondence, which was provided to TheJournal.ie, the NIO said: “In making this judgement the Secretary of State must have regard to reasonable factors and make a judgement based on objective, reliable and empirical information.”

The NIO does not, however, detail what this information would be.

For the record, the NIO does state, as per a letter dated 1 March 2021, that the UK government is “firmly of the view” that there is currently “no clear evidence” that the conditions for a referendum have been met at this time. 

Speaking recently on the BBC’s Question Time programme, NI Secretary of State Brandon Lewis said that “nobody should be afraid of having a conversation” about Northern Ireland’s constitutional future.

However, he rejected the assertion that Brexit had made the case for a unity referendum more likely and said that both the UK and Northern Ireland benefit from the union. 

From the point of view of the Irish government, Taoiseach Micheál Martin has described talk of a border poll following Brexit as being “a mistake”.

As recently as today, Martin repeated that he doesn’t envisage a referendum on a united Ireland during the lifetime of this government

Has this ever reached the courts? 

 Yes, it has.

While there is a lack of clarity on the barometers required for a NI Secretary to determine if such a border poll might pass, Northern Ireland’s Court of Appeal found last year that the Secretary’s discretion on the matter was “unqualified”. 

The ruling came following an action taken by Raymond McCord, who argued that the UK government’s failure to set out the circumstances where a border poll should take place was a breach of the constitutional issues provided for in GFA.

This was rejected by the court, which found that it was for the UK government to decide “what is or is not relevant to the decision-making process”.

The court said this decision-making process could change “depending on the prevailing circumstances” and that “flexibility” is required due to the “complex political judgments” required.

In essence, the judgement said the law did not specify any matter which should be taken into account or anything which should be disregarded in deciding to call a border poll.

The timing is therefore up to the UK government to decide, something noted in the recent advertisements in The New York Times and the Washington Post placed by the Friends of Sinn Féin.

But while the judgement did find the UK government has unqualified discretion, it also affirmed that the decision to hold a border poll must be based on evidence and not politics. The ruling stated the UK Secretary of State must be “honest and rigorously impartial” in making such a determination.

Furthermore, it added that the decision-making process “must involve both governments” given their inter-relationship and the fact that “if not carefully handled it could give rise to great instability.” 

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This work is co-funded by Journal Media and a grant programme from the European Parliament. Any opinions or conclusions expressed in this work is the author’s own. The European Parliament has no involvement in nor responsibility for the editorial content published by the project. For more information, see here.

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    Mute John Mulligan
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    Mar 10th 2021, 10:59 AM

    There is no possibility of Irish unity while sinn fein and the DUP are the main voices in northern politics . Two bitter, sectarian sides of the same coin, they need each other, feed off each other. But while either or both of them are on the pitch, nobody can win the game.

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    Mute postmanbill
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    Mar 10th 2021, 11:04 AM

    @John Mulligan: Well said John, could not agree with you more.

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    Mute Padraig O'Shea
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    Mar 15th 2021, 5:48 PM

    @John Mulligan: rubbished

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    Mute JusticeForJoe
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    Mar 15th 2021, 6:40 PM

    @John Mulligan: Nonsense

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    Mute Alan Wright
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    Mar 10th 2021, 11:00 AM

    Here’s a simple “FactFind” for the Journal. Who placed the ad’s in US papers for a United Ireland? After that fact is checked, please amend your click bait headline in the other article.

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    Mute Diarmuid Hunt
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    Mar 15th 2021, 6:09 PM

    @Alan Wright: They stated “Friend of Sinn Féin”, have you found different?

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    Mute Marc Power
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    Mar 15th 2021, 4:54 PM

    A border poll is pointless as long as the large number of unionists who identify as British in the north are ignored or conveniently not part of such a process. They won’t go quietly and will not shy from fighting for what they hold close to their hearts. Like most Republicans I want a United Ireland….. but not at any cost

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    Mute M Bowe
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    Mar 15th 2021, 5:38 PM

    @Marc Power: so once again you democracy within this island is to be suspended because of actual or perceived threats of Unionist/ loyalist violence. That was how the dysfunctional state was created in first place.

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    Mute M Bowe
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    Mar 15th 2021, 5:52 PM

    @Marc Power: no one is advocating excluding or ignoring unionism, you’re confusing their unwillingness to engage in any form of discussion as them being ignored. But the Unionist veto is gone forever.

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    Mute Marc Power
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    Mar 15th 2021, 6:36 PM

    @M Bowe: I never said that so please stop stating nonsense and read my post again

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    Mute M Bowe
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    Mar 15th 2021, 6:46 PM

    @Marc Power: a border poll is pointless if
    1/ unionism is ignored
    2/ they won’t go quietly and will fight
    3/ you want unification but not at any price, ie the costs of above.
    You are precisely saying that a democratic poll is pointless because of those factors.

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    Mute Richard Russell
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    Mar 15th 2021, 6:08 PM

    I will vote no. It will cost us at least €10 billion which of course will but an end to Limerick to Cork motorway plus other projects. We would also have to put up with the bigotry of DUP and Sinn Fein. The only people who vote yes will be the shiners and some FF’ s

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    Mute O Swetenham
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    Mar 15th 2021, 6:18 PM

    @Richard Russell: “The only people who vote yes will be the shiners and FF’s”

    Do you honestly think that’s true?? Really?

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    Mute Justin Gillespie
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    Mar 15th 2021, 6:23 PM

    @O Swetenham: How people will vote will depend on the proposition put in front of them.
    I have yet to see any proposal telling me what a united Ireland will actually look like.

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    Mute O Swetenham
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    Mar 15th 2021, 6:27 PM

    @Justin Gillespie: absolutely true. Couldn’t agree more, but I think suggesting that “only shinners and some ff’s” would vote for a United Ireland is a strange assumption.

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    Mute shake n’ break
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    Mar 16th 2021, 12:53 AM

    @Richard Russell: an ignorant comment with a nonsense figure thrown in! You haven’t even bothered researching what the northern irish economy has to offer. We may have a chance to make our country bigger and better but you’d rather spend it on a flipping road from cork to limerick.

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    Mute Shawn O'Ceallaghan
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    Mar 15th 2021, 4:49 PM

    Answer: NI decided they want a border poll. If they vote yes. ROI decide if we want them.

    Remainder of U.K. and ROI should not interfere till NI figure out what the want.

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    Mute Sheila McNulty
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    Mar 15th 2021, 5:31 PM

    @Shawn O’Ceallaghan: Do they honestly think this is going to happen with a border poll ,get real we will end up back in the Troubles it will cause a lot of problems,

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    Mute Gerard
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    Mar 15th 2021, 6:16 PM

    It can’t be “Eff the unionists, because they lost”. That’s not how you treat somebody just because you disagree with their opinion. You’d have to do things like provide for schools where Irish is indeed an optional subject. And that’d just be the tip of the iceberg.

    Reunification is supposedly the only goal of nationalism, so if you can achieve that, any other olive branches you can offer to unionists should be on the table.

    The only thing worse than a sore loser is a sore winner. If nationalists win, people need to be prepared to be gracious winners. That’s all.

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    Mute John Hetherton
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    Mar 15th 2021, 6:41 PM

    @Gerard: well Gerard that is indeed an interesting position to take. The majority of the population of Ireland wanted independence in 1919/1920, but hey the brits and the unionists didn’t agree hence we are where we are today. Sauce for the goose then, but not acceptable now according to your stance

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    Mute John Hetherton
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    Mar 15th 2021, 6:41 PM

    @Gerard: well Gerard that is indeed an interesting position to take. The majority of the population of Ireland wanted independence in 1919/1920, but hey the brits and the unionists didn’t agree hence we are where we are today. Sauce for the goose then, but not acceptable now according to your stance

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    Mute jp tobin
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    Mar 15th 2021, 6:46 PM

    2250 would be a good date

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    Mute Paul Hussey
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    Mar 15th 2021, 6:38 PM

    The only people who would have a vote are the people of northern Ireland. 90 % of the unionist population would vote no about 30% of the Catholic population would vote no. Can’t see it going thru. The people in the south can’t vote. As the population of GB can’t vote.

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    Mute LiamMac2018
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    Mar 16th 2021, 12:03 AM

    @Paul Hussey: actually, people in the republic will also have to vote on it. So yeah, nah, you’re wrong there

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    Mute Patrick Corr
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    Mar 15th 2021, 5:47 PM

    3rd and 4th paragraphs copied and pasted twice consecutively.

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    Mute leartius
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    Mar 15th 2021, 7:43 PM

    It’s SF making political gain while this government staggers along drunk on this own PR spin. While Leo is busy dancing a tango around the fuzz. Micheál has gone virtual to impress. A welcome distraction on capitol hill. Even St Paddy himself would be applauded how community divides have being ripped open in America. All in the interest of one man. Who not only lost an election but also lost a coup attempt. Still leads a political party and holds court in this Florida palace. What good are virtual shamrocks when democracy is under attack.

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    Mute Matt
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    Mar 15th 2021, 6:53 PM

    Ah sure why not. It wont amount to much. Just more time wasting. The only time ireland will be free is when the liffy flows backwards.

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    Mute Martin Dunn
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    Mar 15th 2021, 7:19 PM

    Should voters on both sides of the border agree ………….

    If we are a national community we must have sensitivity to all shades of Irishness … even the Ulster Scot who has resided on this island for centuries ..

    A majority or even a two thirds majority for anything does not define agree …..
    there is enormous need for agreement and that takes patience and time and understanding …there is no need for a vote ever …… just let it happen
    Any vote will simply drive us apart

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    Mute Gerard
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    Mar 15th 2021, 6:20 PM

    It can’t be “Eff the unionists, because they lost”. That’s not how you treat somebody just because you disagree with their opinion. You’d have to do things like provide for schools where Irish is indeed an optional subject. And that’d just be the tip of the iceberg.

    Reunification is supposedly the only goal of nationalism, so if you can achieve that, any other olive branches you can offer to unionists should be on the table.

    Cost issues would evaporate over time, because the social divide issues would. Reunification is a one way door, and sooner or later, most unionists would see it was a lost cause.

    The only thing worse than a sore loser is a sore winner. If nationalists win, people need to be prepared to be gracious winners. That’s all.

    4
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