It’s difficult to disagree with Peter Shirlow’s call for evidence-based constitutional discussion governed by the principles of belonging, tolerance, inclusivity, parity of esteem and mutual respect (Belfast Telegraph, 13 September 2019).
I do, however, fundamentally disagree with his understanding of the border poll that emerged from the Good Friday Agreement talks. In the title of his article, Shirlow asserts that: “We may be getting closer, but we have not come close to the conditions for calling a border poll.” He further notes that: “Such a poll has to be called on evidence and not conjecture. Leo Varadkar, I assume, knows that, as does the Secretary of State.”
Contrary to what Shirlow says, conjecture will in all likelihood be a major element in the calling of a border poll; and we can’t know how close we are to meeting the conditions for such a poll.
In a judgement in June 2018, the High Court clarified the nature of the Secretary of State’s authority in ordering a border poll under the terms of the Northern Ireland Act 1998 (NIA), which implemented the GFA. The Court stated that the Secretary can exercise two distinct responsibilities in calling a poll: a mandatory duty and a discretionary power. The mandatory duty is the better known of the two and is what Shirlow has in mind in his piece. The Secretary’s discretionary power has received much less public attention. Both the duty and the power give the Secretary wide latitude in deciding to call a poll.
The mandatory duty is contained in paragraph 2 of Schedule 1 of the NIA. It states that the Secretary of State “shall” direct the holding a 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. (my emphasis).
The Secretary’s duty remains nebulous in an important sense: the NIA does not state what criteria the Secretary is to consider in assessing the likelihood of majority support for a united Ireland. And the Court ruled that it’s not legally necessary for the Secretary to issue a policy setting out the criteria and conditions to be considered in calling a poll.
In the opinion of the Court, the Secretary of State has the sole authority to decide if and when the mandatory duty comes into effect. The Secretary determines what “wide range” of factors to take into account when deciding on the likelihood that a poll will reveal majority support for a united Ireland. Such factors may (but need not) include evidence from opinion surveys and election results. The Secretary also determines what weight to attach to the various factors and how prevailing circumstances might alter the importance of those factors.
That is, the so-called “mandatory duty” to order a poll gives the Secretary of State an infinite number of options about how to operate and leaves unrestricted room for the free play of conjecture. The specific conditions that will trigger a poll remain a mystery since the Secretary need not spell out any of the elements of the decision-making process. It’s difficult to see how such a situation can be represented as a “mandatory duty” in any politically meaningful sense of that term.
The discretionary power is contained in paragraph 1 of Schedule 1 of the NIA, which says that the Secretary of State “may … direct the holding of a poll” to determine if a majority of people in the north wish to leave the UK and form part of a united Ireland (my emphasis). It is entirely for the Secretary of State to determine what factors need “to be taken into account or left out of account” in the exercise of the discretionary power. The Secretary may, according to the Court, order a poll after being persuaded by the arguments of political representatives, whatever that means.
The court ruling highlights that the discretionary power to call a poll is virtually unencumbered. In effect, the Secretary of State may call an initial border poll at any time and for any reason. The Court suggests that the Secretary needs such broad freedom and extensive flexibility because the poll decision is a highly political one, involving a sensitive assessment and a subtle judgement of the current political situation. In other words, the ordering of a poll centrally involves conjecture.
The court ruling is sober reading for anyone who thinks that the GFA-related border poll offers a straightforward route to a united Ireland. It doesn’t. In fact, the court states explicitly that the Secretary of State may call a poll for the purpose of closing down the controversial question of Irish unity for a period of time. That is, the Secretary may use the discretionary power to order a poll even where the Secretary fully expects that the united Ireland option will lose. Such a failed poll will likely have a closing-down effect because the NIA requires that there be at least a seven-year wait between the holding of one poll and the next.
That the Secretary of State can use a border poll to delay, deflect or stifle any public momentum toward Irish unity may come as an unpleasant surprise to many nationalist and republican supporters of the GFA.
The border poll provisions also sit uneasily beside the clause of the British-Irish Agreement—which accompanied the GFA and was endorsed by peace talks participants—that recognizes:
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.
In reality, according to the peace settlement, the people of the island of Ireland cannot exercise their right of self-determination to bring about a united Ireland unless and until the Secretary of State decides to order a border poll in the north.
In short, I think Shirlow is triply wrong here. First, evidence will no doubt play some part in the calling of a border poll, but we may never know which evidence or what kind of part. Most assuredly, though, political conjecture will play a prominent role. Second, since the Secretary of State has such sweeping authority over the activation of the mandatory duty and the use of the discretionary power, we don’t really know what the conditions are for calling a poll. Third, since we don’t know those conditions, we cannot possibly estimate how close we are to meeting them.
Any discussion of the holding of a border poll needs to recognize the concentration of unaccountable power in the hands of the Secretary of State.
⏮ Mike Burke has lectured in Politics and Public Administration in Canada for over 30 years.