There’s widespread misunderstanding of the legal provision around holding a border poll which seems to rear its head not only on social media, but sometimes within the print media and even among the ranks of senior politicians. It’s an innocent enough situation, but it could become important in the period ahead as we start coming to terms with brexit and Northern Ireland’s relationship with Europe.

The misunderstanding holds that, following the implementation of the Good Friday Agreement, a border poll cannot be held unless there is the likelihood of a majority in favour of a united Ireland. This misconception is so widespread that experienced political commentators such as Brian Feeney repeat it; and even the British Government have been known to hide behind it. Another common misunderstanding is that the poll, once triggered the first time, must be held every seven years.

In fact, neither of these two requirements exist. The Secretary of State could lawfully direct the holding of a border poll tomorrow morning if he so wished; and he could lawfully refuse to hold another one if he had already called one at any time in the past. Before I explain why this is, let’s take a look at the historical legal framework in terms of the procedures governing changes to Northern Ireland’s constitutional status.

History

Northern Ireland began, as most of us know, with the Government of Ireland Act 1920. In that wide-ranging piece of legislation, the UK government made provision for two Parliaments, one for Northern Ireland, the other for the state known as Southern Ireland, the 26-county entity which was superseded by the Irish Free State shortly after the 1920 Act became active. In addition, extensive provision was made permitting these two Parliaments, by passing appropriate legislation, to merge into a unified Parliament of Ireland (still within the United Kingdom). Apart from that, the Act specifically clarified that no rights to self-determination were to be granted to Ireland. Section 75 :

Notwithstanding the establishment of the Parliaments of Southern and Northern Ireland, or the Parliament of Ireland, or anything contained in this Act, the supreme authority of the Parliament of the United Kingdom shall remain unaffected and undiminished over all persons, matters, and things in Ireland and every part thereof.

This controversial part of the Act was, at the time, intended as an intentional limiting of the parameters of Home Rule aimed at nationalists; but as time went on it would prove hostile to the interests of Unionists; the UK Government and Parliament reserved the right to alter Northern Ireland’s constitutional position as it saw fit without consulting the population, and if Winston Churchill was to be taken seriously, came close to exercising that right.

Fast forward to the 1970s and the outbreak of widespread civil disorder. Attempting to create a solution, the Government, in the aftermath of the prorogation of the old Northern Ireland Parliament, introduced the Northern Ireland (Border Poll) Act 1972, the text of which is unfortunately not available online. The power to hold a referendum under this Act was invoked and the poll held on 8th March 1973. Due to the nationalist boycott, the poll returned in excess of 98% in favour of the Union. Even had nationalists not boycotted the poll, it is unlikely the result in favour of the UK union would have fallen below 70%.

As part of efforts to restore devolution and bring about stability, the Government significantly reworked Northern Ireland’s constitutional framework as part of the Northern Ireland Constitution Act 1973. This Act permanently abolished the prorogued Northern Ireland Parliament and set up the legal framework for a new Northern Ireland Assembly. It also created permanent powers to hold border polls, enabling referenda to be held beginning in March 1983 with a minimum gap of 10 years between each poll. However, the legislation included no provisions binding the UK government to implement the outcome of any poll calling for constitutional change.

The current law

The current legal situation came into being as part of the Northern Ireland Act 1998, the UK legislative provisions backing the Good Friday Agreement. Referenda now take place under a framework defined within the British-Irish Agreement, the part of the Agreement specifically between the two governments, under which it was accepted that any referendum would be held concurrently in the two jurisdictions, that both governments would legislate to enable referenda to be held and to work to implement the outcome of any referendum. Overriding provision was granted to the Northern Ireland referendum, entrenching what republicans used to call the “unionist veto”.

The Government also used the opportunity presented by the signing of the Belfast Agreement to completely overhaul Northern Ireland’s constitution, tidying up the existing legal foundations and repealing dozens of old provisions, and some entire Acts (including the 1920 Act), stretching all the way back to 1903. In terms of referendum powers, the Secretary of State’s power to order a poll was retained, with a number of significant revisions. The minimum period between polls was reduced from ten to seven years. In Section 1 of the Act, Parliament granted a guarantee in law, for the first time, that if a referendum on the constitution returned a result in favour of a united Ireland, that the Secretary of State would be required to bring proposals to Parliament to give effect to that wish.

The legislation also added the following in Schedule 1, Paragraph 2 (my emphasis added):

[..] the Secretary of State shall exercise the power under paragraph 1 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.

The paragraph reads plainly enough; if the Secretary of State thinks that a majority wish to have a united Ireland, he is required to call a border poll to confirm this.

Outworkings of the current law

Paragraph 2 is copied from the draft paragraph in the text of the Agreement, and seems to have been designed to reassure nationalists that the Government would ensure a border poll would be called if it was likely to pass. On first glance, it appears to impose a requirement on the Secretary of State to call a border poll at the right time. The requirement is contingent upon what appears to the Secretary of State to be “likely”.

There are two important things to understand about this paragraph. Firstly, in practical terms, it imposes nothing. The law may as well ask the Secretary of State to call a poll depending on what his favourite colour is. He can, within the letter of the law, ignore any and all polls or election results, citing a belief that a majority in favour of a united Ireland is unlikely. It is hard to believe that, in the context of a judicial review, the courts would feel that they could dictate to the Secretary of State what “appears to be likely to him”.

(It is not clear to me why nationalists did not insist on a more concrete right, such as the right to have a border poll called by the Secretary of State if, say, the nationalist share of the vote were to rise above 50% in an assembly election. This would be far from the first time that nationalist negotiators have settled for ambiguity. Perhaps we will find out when the inside stories of the multi-party talks between 1996 and 1998 are eventually revealed.)

Secondly, and apparently most confusingly, the paragraph outlines circumstances under which the Secretary of State shall call a poll. People assume that it says “shall only”, but as you can see, the word “only” does not appear. The legislation imposes only one rule about when a poll shall not be called; it’s in a different paragraph, and is triggered only whenever a referendum has been called within the past seven years.

To illustrate this point, and with apologies for any flashbacks for those of us who remember the old 11+ verbal reasoning tests, consider the following three statements :

Theresa may carry an umbrella. Theresa shall carry an umbrella if it appears likely to her that it will rain. Theresa may not carry an umbrella if she carried one yesterday.

The only statements of material consequence are (1) (which allows Theresa to carry an umbrella) and (3) (which conditionally denies Theresa the right to carry an umbrella based on previous history). Under Statement (1), Theresa can carry an umbrella at any time as long as she doesn’t breach (3). Statement (2) imposes a requirement upon Theresa to carry an umbrella, but since it delegates to her the exclusive right to make her own determination about whether or not it might rain, she can ignore the weather reports and the dark clouds, and refuse to carry one anyway.

To further illustrate the law, I’ve placed the 1973 version of Schedule 1, and the 1998 version of Schedule 1, side by side in the image below.

Reading the text, you can see that the wording from 1973 has been slightly reworked, with no essential meaning changed, to create most of the wording in 1998. The 1973 Paragraph 1 has been split into paragraphs 1 and 3 in 1998. 1973’s paragraphs 2 and 3 have been reworked to create 1998’s paragraph 4.

This leaves the addition of paragraph 2 in 1998, imposing the new “if it appears likely” requirement.

It should now be obvious that the Good Friday Agreement, implemented in the 1998 Act, did not create any new referendum powers; it retained the powers that existed since 1972. The only additional effects were to create a binding requirement to implement the outcome of the referendum, and to reduce the minimum period between polls from 10 to 7 years.

Border referendum politics

It is clear that, irrespective of the law, UK government policy is settled, remaining essentially unchanged since the last border poll was held in 1973. The government will not call a poll unless it believes there has been a change in sentiment, reflecting the spirit of the non-binding Paragraph 2 wording. The government has carefully avoided explaining exactly how a change in sentiment will be determined, but it’s widely believed that this could happen if any local, regional or national general election reports a nationalist share of the vote exceeding 50%.

Despite their calls for a referendum, Sinn Féin are very unlikely to take any serious action to secure one in their forthcoming negotiations with the UK government and the DUP, even though their own party line says that they should do. Rational Irish nationalists concede privately that they are in no shape to make a serious case for reunification, and that building that case will take two decades. They also know, as per the experience in with Indyref in Scotland and with the AV referendum, that losing a border poll would run the risk of exposing the weakness of their position and demoralising their support base further. This is likely to be why the SDLP, in recent years, have increased their focus on making Northern Ireland work ahead of any proposal for reunification.

The DUP position is less consistent. In the past, Arlene Foster has stated that she is confident that Unionism would win a poll, publicly floating the idea that Unionism could call Sinn Féin’s bluff on the issue. However, during the DUP manifesto launch, a flu-embattled Foster denounced any poll as “devisive and destabilising“, reaffirming earlier comments highlighting the possibility of a border poll as a negative consequence of an emboldened, electorally successful Sinn Féin.

It is not yet clear what impact brexit will have on any of these calculations. If Northern Ireland is faced with a hard border and everything that implies, tremendous pressure will be placed upon the union especially if economic hardship begins to effect the region’s burgeoning middle class. The best chance of avoiding this lies in the implementation of special category status, which the Assembly voted against, by a majority of one, last year, thanks to the abstention of People Before Profit. The makeup of the new Assembly could play an important role in determining how Northern Ireland responds to the brexit challenge and the impact it has upon the border poll issue.

If the majority of people in Northern Ireland, however slim, and irrespective of community background, find their wish to see special category status and an open border denied, political repercussions start to become possible. If the UK government sends out the signal that they won’t pay attention to constitutional issues unless there is a nationalist majority, people may start to believe that creating a nationalist electoral majority is the only way to secure constitutional reform.

Conclusions

The legal authority exists, and has existed since 1972, to hold a border poll at any time, and there doesn’t need to be a nationalist majority for this to happen. But as things stand, nationalists would lose a border poll held today or in the near future. Settled British government policy makes a poll very unlikely in any case, although it’s not impossible that the DUP may calculate that weakening nationalism by calling Sinn Féin’s bluff would be a good tactical move to strengthen their own position, at the expense of the division that would inevitably arise from a bitter referendum campaign.

It is very unlikely that the election next Thursday will lead to a result showing that nationalism has reversed its declining vote share since 2005, even with the consequences of brexit looming large in the years to come. This makes it very unlikely that a referendum will be held in the short term. However, in the medium term, a hard brexit with a hard border and no special category status could well increase the nationalist vote to the trigger point.

The author is a member of the Alliance Party but writes for Slugger in an entirely personal capacity.