We’re all familiar with how the weight of recent events has placed Irish reunification on the public agenda. Brexit, shifting public opinion, changing political allegiances, the declining electoral fortunes of unionism in the north, Sinn Féin’s unexpected success in the recent southern election and longer-term demographic trends have encouraged speculation about the imminence of a united Ireland.
These same events have also spawned a proliferation of assaults on Irish unity. As the prospects of a united Ireland seem to improve and the voices supporting it rise, the character of opposing claims is becoming increasingly intemperate. It’s time to take stock of the repertoire of arguments employed by this counter-mobilization.
I examine ten major arguments opposing a united Ireland. One of my main concerns is with those accounts that could delay, obstruct, stifle, block or defeat Irish unity in defiance of majority support for it in the north and south. That is, they would “steal” Irish unity even if it were to satisfy the conditions for constitutional change currently specified in the GFA and related documents. The thieves would run off with a united Ireland when it’s the democratically-supported choice of constitutional regime.
I’ll spend substantial time discussing two positions that probably represent the biggest threats to Irish unity: the GFA-related grant of disproportionate power to the Secretary of State, amounting to a British veto over constitutional change; and the attempts to “fix” the GFA’s formula for constitutional change, best exemplified in the late Seamus Mallon’s scheme for “parallel consent.” Mallon’s constitutional views have received a lot of attention but nowhere near the critical scrutiny they so richly deserve.
The other arguments, which I’ll examine briefly, are: Croppies lie down, Ulster says no, Play the Orange card, Home rule means Rome rule, Fenian bastards, The waiting game, The subvention sinkhole, and Race to the middle.
These arguments use various tactics in their quest to undermine the pursuit of Irish unity. They exploit the ambiguity of the GFA, upend popular understandings of its terms, repudiate the Agreement altogether by altering some of its fundamental provisions, incite fear, threaten social unrest or attempt to bully nationalists and republicans. Overall, they suffer from serious deficiencies: some proposals eschew equality and uphold privilege; some are logically flimsy and riddled with contradiction or hypocrisy.
The principal arguments against unity that I examine are interrelated, not mutually exclusive. The differences among them are often a matter of emphasis. And different emphases can be combined into a single, overall offensive against Irish unity. Seamus Mallon, John Wilson Foster and Eoghan Harris are particularly adept at drawing together various ideas that could be used to defeat a united Ireland. Foes of Irish unity, it seems, are an eclectic bunch: they’ll pilfer any sort of argument opposing it.
My primary aim is to alert supporters of Irish unity to the array of forces and positions standing against them. Irish unity, in the end, will not be won or lost by comparing the relative worth of arguments supporting and opposing it. But a familiarity with arguments and counter-arguments might help to mobilize a popular democratic constituency to resist the anti-democratic impulse of the thieves and their accomplices. My hope is that democracy in Ireland will one day finally extend to the fundamental question of sovereignty.
1. Rule, Britannia! The British Veto
The Power of the Secretary of State
The office of Secretary of State is vitally important to Irish reunification because it is the occupant of this office who initiates the formal process of constitutional change by directing the holding of a border poll in the north. Three different but related documents contain the key language giving the Secretary of State this constitutional authority: the GFA itself, the accompanying British-Irish Agreement, and the Northern Ireland Act 1998 (NIA), which implemented the GFA.
Three other relevant documents include, first, the June 2018 Belfast High Court judgment in the McCord case, which ruled on the nature of the Secretary of State’s power over a border poll; second, the affidavit of the Northern Ireland Office (NIO) submitted, on behalf of the Secretary of State, to the High Court; and third, the Appeal Court judgment of April 2020 that dismissed McCord’s appeal and confirmed the High Court ruling.[1] I urge everyone to read these three documents as they’re absolutely central to understanding just how intrusive is the Secretary of State’s legal competence over the exercise of the Irish people’s right to self-determination.[2]
My basic argument in this section is four-fold: (1) the imprecise language of the GFA and NIA gives the Secretary of State notably large control over a border poll; (2) the court rulings implausibly afford full rein to this excess; (3) the NIO’s interpretation of the Secretary of State’s power not only maximizes its expansive and opaque nature, but goes beyond the law to appropriate new authority over a border poll; and (4) the final result is that the Secretary of State holds inordinate and ill-defined power that could be used to frustrate democratic movement towards a united Ireland. This power represents a British veto over constitutional change.
The NIA grants to the Secretary of State both a discretionary power and a mandatory duty to direct the holding of a border poll. I’ll focus on the mandatory duty, as the British government has shown little inclination to exercise its discretionary power to call a border poll at virtually any time.[3
Schedule 1 paragraph 2 of the NIA defines the mandatory duty. It provides that “the Secretary of State shall exercise the power … [to direct the holding of 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.” The High Court ruling was explicit in interpreting this language as conferring a mandatory duty on the Secretary of State: “If the evidence leads the Secretary of State to believe that the majority would so vote then she has no choice but to call a border poll” (NIQB 106, 2018, para. 20).
The question that arises immediately is what kind of evidence of likely majority support would trigger the Secretary of State to order a poll? Exactly how is the Secretary of State to assess public opinion in the north? Unfortunately, the exceedingly vague language of the GFA and NIA says nothing about evidence. And, more unfortunately, while the High Court and Appeal Court rulings do consider the question of evidence, they fail to provide any meaningful answers.
Here’s what the High Court ruling says about evidence in relation to the Secretary of State’s mandatory duty:
Evidence of election results and opinion polls may form part of the evidential context in which to exercise the judgment whether it appears to the Secretary of State that there is likely to be a majority for a united Ireland. The overall evidential context on how it should be analysed and viewed is a matter for the Secretary of State. The conclusion will have to take account of a wide range of factors and considerations dependent on prevailing circumstances. The Secretary of State concluded that a published policy predetermining how public opinion should be assessed could be unnecessarily restrictive and not in the public interest. That represents a tenable and rational conclusion which the Secretary of State is entitled to reach (NIQB 106, 2018, para. 20).
The first point to note is that this language describes an exceptionally wide grant of power. In effect, the ruling says that it’s completely up to the Secretary of State to determine what constitutes evidence of likely majority support for a united Ireland and how to weigh that evidence. The court points out that the law constrains what it can do. It cannot intervene just because it considers that a policy specifying how the Secretary of State’s powers are to be exercised “would be sensible or desirable.” On the contrary: “It can only intervene if as a matter of law the Secretary of State is obliged to make and publish such a policy” (NIQB 106, 2018, para. 16). The court held that the law does not so oblige the Secretary of State.
Secondly, and relatedly, by stating that the evidence may include results from northern elections and opinion polls, the ruling is suggesting that the evidence may not include such results. If Brandon Lewis, the current Secretary of State, were to decide not to look at opinion polls or recent election results in his assessment of northern public opinion on a border poll, he would be in perfect compliance with the ruling.
Public opinion polls and election results, while not infallible, are in many circumstances the best available estimates of the state of public opinion.[4] To suggest that they can be ignored is highly problematic. Prior to the High Court ruling, a reasonable person could assume that northern election results and opinion polls would have to be among the evidence considered by the Secretary of State. In the wake of the ruling, that reasonable assumption is no longer warranted.
According to the McCord judgment, there is one evidential constraint on the Secretary of State’s obligation to call a poll: “the Secretary of State must honestly reflect on the evidence available to her to see whether it leads her to the conclusion that the majority would be likely to vote in favour of a united Ireland” (NIQB, 2018, para. 20). But what does “honestly reflect on the evidence available” really mean if the Secretary of State unilaterally decides what the evidence is and how to consider it or reconsider it in light of prevailing circumstances? What does that phrase actually mean if the Secretary of State need not take into account the best evidence available?
The NIO’s affidavit, cited extensively in the High Court ruling, lists some of the factors that aid the Secretary of State in assessing public opinion about a border poll. As the Secretary of State must retain maximum flexibility to exercise “political judgment,” the NIO’s list of factors is meant to be illustrative, not exhaustive. As the NIO notes: “Secretaries of State have not considered it to be appropriate to limit pre-emptively the factors or sources of evidence which they may wish to take into account.” (Sloan, 2018, paras. 18 & 14).
What, then, are some of those factors and sources according to the NIO? The Secretary of State:
- benefits from being in “a constitutional position” that places her “very close to all areas of political life in Northern Ireland;”
- is Head of the NIO, “which is in a position and has resources to monitor political, social and economic life in Northern Ireland;”
- has “continuing and regular contact with elected political representatives across all political parties” on a level that is “particularly close and intense;”
- “receives frequent and detailed representations from political representatives on issues of importance within Northern Ireland;”
- “enjoys the benefit of frequent engagement with members of the public, community groups, business and organisations which help to inform her judgment;”
- and “is … likely to be informed by the results of any elections and opinion evidence, where available and reliable,” a statement that is, incidentally, somewhat stronger than the position the court takes (Sloan, 2018, paras. 13 & 14).[5]
Karen Bradley was the Secretary of State on whose behalf the NIO submitted its affidavit. Occupying the position of Secretary of State, having all those institutional resources, attending all those meetings and engaging with all those groups did not give Karen Bradley special insight into the state of public opinion on the constitutional status of the north. From her many interactions, the Secretary of State may be enlightened as to what specific groups think about certain issues. But she will not be able to glean any valid and reliable information about how northern residents intend to vote in a border poll. Holding the office of Secretary of State does not confer genius on the office-holder. The NIO’s position in the affidavit is mostly elitist nonsense. Regrettably, the courts accepted the NIO’s stance at face value.
There is, nevertheless, a potentially important tension among the different sources of information at the disposal of the Secretary of State. Let’s assume that the Secretary of State takes the reasonable course of action and considers evidence from elections and opinion polls. This kind of evidence is open and available to the public. Everyone knows the outcome of an election. Opinion polls are, for the most part, in the public domain. People can assess the rigour of their methodology, the suitability of their questions and the representativeness of their samples. The other sources of evidence available to the Secretary of State are not so open or public. Importantly, it is only the Secretary of State who is privy to all those conversations, meetings and engagements that are part of holding office. She may make of them what she will.
The major problem is that the Secretary of State is free to use private or privileged “evidence” to override open evidence from opinion polls and election outcomes that may indicate majority support for Irish unity. And there is no meaningful way to assess the Secretary of State’s use of the evidence, since no one else has access to all the information. I can hear the Secretary of State now: “Despite what the opinion polls say, I talk to many people who are opposed to a united Ireland.” Or: “Election results are one thing, but my engagement with many political, community and business organizations from all over Northern Ireland tells me that people do not in their hearts support Irish unity.”
The Court of Appeal upheld the High Court’s ruling of a general and open-ended grant of power to the Secretary of State. It noted that the law “does not specify any matter which should be taken into account or any matter which should be left out of account,” and that the law is also “silent as to the sources of information which the respondent [Secretary of State] might rely upon” (NICA 23, 2020, paras. 78 & 79). Like the earlier ruling, the Appeal Court judgment lists examples of the factors that the Secretary of State might consider in assessing if majority support for a united Ireland were likely. Those factors are:
- “changes in social attitudes North and South;”
- “relative economic prosperity North and South;”
- “the taxation structures North and South;”
- “the outcome of Brexit;”
- “and the nature of future trading relations between both parts of Ireland which in turn depends on any agreement between the United Kingdom and the European Union” (NICA 23, 2020, para. 80).
The Appeal Court contends that, in making her determination of likely majority support, the Secretary of State will sensibly exercise “political judgment” in view of “differing and unpredictable events” and “changes in the prevailing circumstances” (paras. 50 & 57). I think not. It’s virtually impossible for the Secretary of State to discern, with any degree of confidence, how the highly complex and changeable factors listed above will specifically affect voting in a border poll. Gaining reliable evidence on the nature of these relationships is well beyond difficult. This evidential problem is magnified by the Appeal Court’s suggestion that these factors might somehow alter the border-poll voting intentions that are otherwise indicated in public opinion surveys or election results. In the absence of robust evidence or any evidence at all, the Secretary of State is left to speculate blindly about the impact of these factors on voting choice.
In sum, I wholly disagree with the Appeal Court’s reasoning in this instance. The Secretary of State cannot draw any meaningful inference or make any informed political judgment from a purely speculative consideration of the hypothetical effects of unstable factors. The Appeal Court has given the Secretary of State the freedom to make an arbitrary judgment that is dissociated from any useful conception of evidence.[6]
The Appeal Court ruling reinforces the High Court judgment, and affords the Secretary of State more than ample room to cite these factors as a reason for overturning evidence from opinion polls or election results that majority support for Irish unity is likely. Of course, none of this marginalization of open and public evidence is necessary if the Secretary of State takes the route left open by the courts and decides to ignore altogether election outcomes and opinion polls. In that case, private and privileged information, in the case of the NIO list, or evidence-free speculation, in the case of the Appeal Court list, may form the entirety of the “evidential” context.
The courts’ and the NIO’s interpretations of the border-poll language render meaningless the whole notion of mandatory duty. How can the duty to call a border poll be considered mandatory if only the Secretary of State can know the real circumstances in which that duty arises? And those circumstances are so indeterminate, so flexible, so formless and contingent that not even the Secretary of State can know any of them in advance. The only assurance we have is that, when the time comes, the Secretary of State will recognize the circumstances when she sees them. I’m not assured. Nor should anyone else be.
The court rulings have materially altered what I believe is the fair-minded and proper reading of the Agreement and related legislation. In effect, the courts are saying that there is nothing, outside the exercise of the duty itself, that can signify the duty has become mandatory. That is, the Secretary of State’s very act of ordering a border poll is the only way we can know that the trigger condition of “likely majority” has been met. The courts’ interpretation thus fuses the condition for triggering a poll with the act of ordering a poll. This view loses the GFA’s notion of “likely majority” as a separate, independent and antecedent condition compelling the Secretary of State to act by calling a poll.[7]
The Secretary of State is apparently not content with the hazy conception of mandatory duty and the sweeping power it bestows. She shows a dangerous willingness to go considerably beyond the legal requirement of determining if it’s likely that a northern majority would support Irish unity in a border poll. The NIO’s affidavit in the McCord case expands the Secretary of State’s authority over a border poll in two ways. First, it transforms the meaning of “likely.” In calling for “sufficiently decisive” indicators of public opinion, the Secretary of State seems to be demanding that majority support be certain, not just likely (Sloan, 2018, para. 24). “Certainty” is a much higher threshold than is “likelihood,” and using the former threshold would both breach the NIA and diminish the prospect of the Secretary of State ordering a border poll.
The affidavit also strengthens the Secretary of State’s authority in a second way. It expands the notion of support for “a united Ireland” to include support for “a change to the [institutional] foundations that underpin all that stability that has been achieved from the Belfast agreement and thereafter” (Sloan, 2018, para. 26).[8] It seems to me that support for a united Ireland and support for a change to the institutional foundations of stability are separate, empirically-distinct questions that should not be conflated. The Secretary of State’s legal duty is to assess the likelihood of the first kind of support, not the second. It’s impossible to imagine that the Secretary of State would ever determine that there is likely majority support to change (undermine) the foundations of stability in the north. That is, this new condition effectively rules out the possibility of a border poll. I think the Secretary of State would be in violation of the law if she were to use the lack of public support for changes to the foundations of stability as a justification for not calling a border poll. But the affidavit anticipates exactly that kind of use of the extra-legal criterion of stability.[9]
The Secretary of State’s position is that she requires a wide grant of ill-defined authority to perform her task. And she seeks—beyond the law, I argue—to widen her remit even further. One self-evident consequence is that such power gives the Secretary of State the leeway not to direct the holding of a border poll even if there were evidence of a likely majority for Irish unity.
The courts and the NIO transform a clear and straightforward notion of majority support in the north as a condition for constitutional change, which everyone understands, into a mysterious and whimsical legal capacity, which no one understands (Daly, 2019b, p. 5).
The Secretary of State has two additional powers over a border poll that need to be mentioned to comprehend the full extent of her authority. She defines who is entitled to vote in a border poll and decides on the question or questions to be asked.[10] There are no legal stipulations that explain or limit the exercise of these powers. In the Scottish independence referendum in 2014, the Scottish Parliament gave the right to vote to people aged 16 and 17, who voted for the first time in a national poll. This decision added significantly not only to the size of the electorate but to the numbers voting in favour of independence (Pickard, 2019). The Secretary of State is free, but unlikely, to make equivalent changes to the border-poll franchise.
To conclude, the Secretary of State decides, without any meaningful guidance or oversight, if a border poll will be held at all. But she also controls the timing of any poll, the pool of eligible voters and the wording of the ballot paper. These last three powers ensure that the Secretary of State will have a substantial, perhaps determining, impact on the outcome of a border poll. Overall, the Secretary of State’s authority amounts to a formidable British veto over constitutional change in Ireland. In effect, her power diminishes the right of nationalists to pursue a united Ireland and privileges the right of unionists to remain within the UK.
A Failed Negotiation, A Flawed Narrative
It’s legitimate to ask how the Secretary of State could be left with such vast and undefined authority over the critically important step of initiating the process of constitutional change and other crucial matters. Certainly, as I argued above, the role of the courts and the NIO needs to be taken into account. But a large part of the responsibility must also fall on nationalist and republican negotiators who, in the discussions leading to the Agreement, should have been much more careful than they were in specifying exactly how their constitutional preference was to be realized.[11] I’ll focus on Sinn Féin in my remarks below, primarily because the party was to the fore in selling the Agreement as a pathway to a united Ireland. It, especially, should have paid much more attention to the actual route to Irish unity laid out in the Agreement and accompanying legislation.[12]
Sinn Féin’s narrative on the peace process was dominated by a new emphasis on an equality agenda and by its claim of the transitional logic of the Agreement (McGovern, 2004; Bean, 2007). The party’s focus on transition is particularly significant because of its relation to the question of constitutional change.
The party’s discourse on the transitional nature of the peace process was based on two principal components. The first was that the Agreement’s north/south or “all-Ireland” institutions contained an inner dynamic leading inexorably to Irish unity. These institutions, the party claimed, were an embryonic form of a united Ireland, with an inscribed energy to grow and expand (Corcoran, 2002 & 2003). Sinn Féin’s argument was shown to be faulty, with the North/South Ministerial Council proving especially ineffective (Murray & Tonge, 2005; McCall, 2018).
The second component was that the immutability of demographic trends in the north made a united Ireland inevitable: Catholics would soon outnumber Protestants, nationalists would overtake unionists, and a united Ireland would emerge.[13] There were obvious problems with the party’s demographic logic: “a demographic majority is not necessarily an electoral majority, and an electoral majority is not necessarily a pro-unity majority” (Coakley, 2001, pp. 237 & 238). But, at the time of the GFA, many nationalists and republicans accepted Sinn Féin’s position that a majority in favour of a united Ireland would eventually appear (Ruane, 1999).
Curiously, both components of the party’s narrative were divorced from any consideration of the border-poll process, which played no part in the party’s high-profile marketing of the Agreement as a staging post to Irish independence and national democracy. (Adams, 1998 & 2000). Sinn Féin, and the nationalist and republican electorates at large, accepted easily and uncritically that the GFA’s border-poll provisions represented a forthright, mechanical process for smoothly translating a pro-unity majority into constitutional change.[14] Alan Whysall of the Constitution Unit, University College London, noted that neglect of the issue was widespread: at the time of the GFA, there was “remarkably little” discussion of how consent and self-determination were to work in practice (Whysall, 2019, p. 5). Few recognized, with the notable exception of republicans dissenting from Sinn Féin’s position, that the Secretary of State’s power over a border poll could frustrate constitutional change.[15] The arrival of a pro-unity majority in the north does not necessarily mean that there will be a border poll.
Sinn Féin’s faith in the expansive logic of the all-Ireland bodies and in the political and constitutional effects of demographic change may have made the party complacent about the actual workings of the border-poll process. But, at the time of the Agreement, Sinn Féin had a good reason for not saying much about a border poll. Its reticence was related to its qualified endorsement of the GFA. Sinn Féin opposed, at least rhetorically, the Agreement’s view of consent that maintained the unionist veto over constitutional change in the north. Likewise, it contended that the two GFA-related referendums did not constitute a valid exercise in national self-determination.[16] Sinn Féin was hesitant to draw attention to the GFA’s border-poll provisions as they encapsulated the very elements of the Agreement that the party supposedly rejected: a partitionist view of consent and self-determination that legitimized a separate vote in the north in which unionists presently dominated. Sinn Féin was at the time maintaining the fiction that it could work the entire three-stranded complex of institutions without validating the Agreement’s conceptions of the north’s place within the UK and the unionist veto over constitutional change.
Before any focus on a border poll was politically tenable, Sinn Féin’s position on the GFA would have to evolve. It did. The party’s indirect and partial acceptance of the GFA changed to a full and enthusiastic embrace. The referendums ratifying the Agreement, which the party initially viewed as invalid and illegitimate exercises, became expressions of political maturity and popular democracy.[17]
Slowly, the border poll began to take a more prominent place in the party’s narrative of transition. Throughout 2012, senior Sinn Féin leaders started regularly calling for a border poll, no doubt influenced by events in Scotland and results from the new census question on identity. In August, Agriculture Minister Michelle O’Neill advocated for an immediate poll (O’Neill, 2012). In October, Gerry Adams urged the Irish government to take the lead in setting a date for a constitutional referendum (Adams, 2012). In November, Martin McGuinness suggested a border poll could be used to test public opinion and energize a debate on the benefits of Irish unity (McGuinness, 2012). In January 2013, Sinn Féin officially launched its campaign calling for a border poll under the terms of the GFA to be held in the next term of the Assembly and Oireachtas (Adams, 2013). In the spring, under its initiative “United Ireland – You Decide: A People’s Referendum,” the party began to hold a series of community referendums on Irish reunification. Their purpose was “to begin the debate about Irish unity at a grassroots level and specifically to raise public awareness of the provision for a Border poll in the Good Friday Agreement” (Ní Dhonnabháin, 2013).
Sinn Féin has now come full circle, from avoiding the topic of a border poll in 1998 because of its association with the despised unionist veto, to proclaiming in 2020 that the poll was a notable achievement of the party in the GFA negotiations.[18] Still, with the border referendum a main feature in the party’s revised constitutional narrative, Sinn Féin has not yet begun to grasp the limitations of what it negotiated in 1998. In a major publication on how to achieve a united Ireland, the party maintains: “The British veto is gone. Constitutional change is now in the hands of the people of Ireland, North and South” (Sinn Féin, 2016, p. 26). It seems not to realize the unfettered, obstructive power the Agreement places in the hands of the Secretary of State. The party has, despite its pronouncements, acquiesced in entrenching a British veto over constitutional change, a point I develop further below.[19]
The Implementation Gap
The Secretary of State’s unbridled authority over calling and steering a border poll is not the only expression of Britain’s potential to derail movement towards Irish unity. There is also the matter of Britain’s (and Ireland’s) commitment to implement the outcome of a border poll favouring Irish unity. Richard Humphreys, appointed to the Irish High Court in 2015, noted the dual nature of this possible blockage by calling attention to the “hypothetical reluctance by the United Kingdom government to facilitate Irish unity—either by refusing to hold a referendum or by holding such a referendum and failing to give effect to its outcome” (Humphreys, 2009, p. xxii).
In looking at the language describing the implementation of a border-poll outcome—how “to give effect to” the majority wish for Irish unity—we find some major and troubling inconsistencies.
In the GFA, the talks participants endorsed London’s and Dublin’s commitment that if majorities in the north and south voted for a united Ireland in border polls, “it will be a binding obligation on both Governments to introduce and support in their respective Parliaments legislation to give effect to that wish” (Constitutional Issues, s. 1(iv)). Incidentally, this language closely resembles the commitment both governments gave as far back as 1985, in the Anglo-Irish Agreement, to “introduce and support” legislation to give effect to the expressed wish of a northern majority for a united Ireland (art. 1(c)).
The corresponding language in the NIA is both different from and weaker than that found in the GFA (Humphreys, 2009). The NIA legally commits the British government to “lay before Parliament such proposals to give effect to that wish as may be agreed between Her Majesty’s Government in the United Kingdom and the Government of Ireland” (s. 1(2)). Two points are of special interest in this altered wording. First, the NIA commits London only to lay unity proposals before Parliament, while the GFA requires it to introduce and support those proposals. The stronger border-poll provisions of the GFA do not have the force of law; it’s the weaker provisions of the NIA that form part of British domestic law (NICA 23, para. 45). Second, in the NIA, laying proposals before the Westminster Parliament occurs only after those proposals have been agreed with the Irish government. The High Court ruling outlined the fundamental matters that would form part of any post-poll intergovernmental agreement: “following majority votes north and south in favour of unification agreement would have to [be] reached between the UK and Ireland as to the form of that united Ireland and the way it [sic] which it would be governed and structured” (NIQB 106, 2018, para. 5).
Regarding the first point, if the British government were to follow the letter of the law and simply introduce unity proposals before Parliament, without backing them, it would invite defeat of its own proposals. The result: the border poll favouring Irish unity would not be implemented.
Regarding the second point, the requirement of intergovernmental agreement after a pro-unity poll represents another opportunity to set obstacles in the way of a united Ireland. British governments, both Tory and Labour, have shown an outspoken commitment to preservation of the Union and regularly worked the Agreement to the advantage of unionists. Any Irish government with a significant Fine Gael or Fianna Fáil component would be, at best, hesitant about unity and, most probably, actively hostile to it.[20] The British and Irish governments, both unwilling partners in the process of constitutional change, would be perfectly aware that one means of avoiding doing something that neither of them wants to do is to fail to reach agreement on proposals for a united Ireland. As the High Court ruling suggests, there are especially controversial matters that will be up for discussion, leaving plenty of scope for inter-governmental disagreement. The result: the border poll favouring Irish unity would not be implemented.
Another point, which Humphreys perhaps suggests, is that the British government might dispense altogether with the parliamentary process or inter-governmental talks and just refuse outright to give effect to a poll favouring unity. The result: the same.
Any significant unionist opposition to the outcome of a border poll favouring a united Ireland—a virtual certainty—would increase the prospects of unity proposals being defeated in Parliament, or of Britain thwarting inter-governmental agreement on those proposals or simply abandoning its commitment to implementation. The Irish government too would be similarly affected by unionist resistance and consequently more likely to use its capacity to impede the movement towards unity.[21]
These potential implementation problems represent another failure in negotiations, for which the nationalist and republican teams again bear a heavy responsibility. The negotiators accepted a diluted legal version of Britain’s commitment to implement the outcome of a border poll, which was prefigured in an annex to the GFA. They also decided formally to exclude themselves from any post-poll agreement on unity proposals, and instead left the matter in the hands of the two governments. It’s difficult to understand why the parties would not demand being an official part of negotiations deciding the form of unity and the governance structures of a united Ireland.[22]
Justice Humphreys believes that, in the end, border-poll problems will probably not arise. It’s unlikely, he suggests, that the British government would resile from its GFA commitments to hold a border poll or give effect to a poll’s pro-unity outcome.[23] Seamus Mallon, in contrast, explicitly advocates that both the British and Irish governments should break their commitments. He urges that neither London nor Dublin should hold a border referendum if the anticipated outcome were a slender majority for unity; nor should they implement the results of a narrowly-won poll (Mallon, 2019, chap. 13).
The governments are likely to take Mallon’s advice. On the Irish side, Mallon’s influence on Micheál Martin, which the new Taoiseach openly acknowledges, seems to have reinforced Fianna Fáil’s reluctance to take meaningful steps towards a united Ireland. That reluctance was most recently expressed in the Framework Document and draft Programme for Government. I discuss both developments in the next section.
On the British side, there is an accumulation of evidence that tilts towards Mallon’s position and against Humphreys’s expectation that London will comply with the GFA. To reiterate, in its affidavit in the McCord case, the British government aggressively defended its wide grant of undefined and undefinable power to initiate, or not, the process of constitutional change. It also sought to extend that power into areas beyond those specified in the relevant legislation, which would give it an enhanced role in frustrating progress towards a united Ireland. And, in translating its GFA commitments into legal form via the NIA, London softened considerably its obligation to give effect to the results of a border poll favouring unity.
The British government seems intent on playing a determining role in deciding if, when, and how Irish unity is to occur, directly contradicting the GFA provision that:
The British veto over constitutional change could become a hard barrier to the achievement of a united Ireland. For many nationalists and republicans, the strength and reach of this veto—parts of which have only recently come into full public view—disrupt the party-political and popular understandings of the nature of the compromises underlying the peace process. The British veto also gives the lie to the mainstream interpretations of the Agreement that saw an uncomplicated, democratic and singularly Irish route to constitutional change.
Notes
[1] A summary of the Appeal Court judgment describes the purpose of Raymond McCord’s court case: “Raymond McCord (“the appellant”) submitted that there was insufficient clarity and transparency in relation to the mechanism for directing a border poll under the relevant provisions of the Belfast Agreement which were enacted in section 1 of, and Schedule 1 to, the Northern Ireland Act 1998 (“the NIA”). The appellant claimed that the refusal or failure of the Secretary of State for Northern
Ireland (“the respondent”) to have a policy setting out the circumstances in which he would direct the holding of a border poll was a breach of the constitutional issues provided for in the Belfast Agreement. The appellant sought an order that the respondent publish a policy setting out the circumstances in which he would direct the holding of a border poll” (Judicial Communications Office, 2020).
[2] The Appeal Court ruling makes clear that both the Secretary of State and Parliament play a role in ordering a poll, in that the Secretary of State must submit a draft order to Parliament for its approval. The ruling cites section 96(2) of the NIA for the requirement of parliamentary approval (NICA 23, 2020, para. 63). Throughout my analysis, I focus on the role of the Secretary of State, assuming that parliamentary approval will be forthcoming. Should Parliament not approve the draft order, we’re left with a situation in which the Secretary of State determines that majority support for a united Ireland is likely but no border poll can be held. That is, even at this early stage, Parliament could prove to be an additional obstacle to the realization of constitutional change. The assumption of parliamentary approval of the draft order is, nevertheless, warranted. Recent studies have shown that, even in a period of overstated executive dominance and deteriorating party discipline, most government motions do get parliamentary approval (Cowley, 2015; Russell, Gover & Wollter, 2016). We don’t know if the complete breakdown of both executive dominance and party discipline during the Brexit votes may have some spillover effect onto the issue of constitutional change, perhaps establishing a “new normal” for such consequential parliamentary votes. And, of course, hung Parliaments complicate matters.
My focus on the “Secretary of State,” assuming parliamentary approval, is consistent with the language of the NIA and the court rulings, which use that term when laying out the powers over a border poll. I’ll address later on, in my discussion of the implementation of a border poll favouring unity, Parliament’s potential to block constitutional change.
[3] The position of the NIO is that “the Secretary of State’s discretionary power to order a border poll … is not constrained by any prior statutory conditions and may be exercised in light of her assessment of whether a border poll is in the public interest at the relevant time” (Sloan, 2018, para. 9).
In an earlier posting examining the discretionary power, I stated: “That the Secretary of State can use a border poll to delay, deflect or stifle any public momentum towards Irish unity may come as an unpleasant surprise to many nationalist and republican supporters of the GFA (Burke, 2019, n.p.). The Appeal Court appears to take a different interpretation, arguing that the Secretary of State: “would not be acting with rigorous impartially if in the face of diminishing support for Northern Ireland remaining in the United Kingdom he directed the holding of a border poll with the sole purpose of achieving a majority to remain and thereby to delay a united Ireland for a period of 7 years” (NICA 23, 2020, para. 66). I suppose the accuracy of this statement hinges on the meaning of “sole purpose.” It’s not clear to me how easily the Appeal Court’s interpretation sits with the earlier High Court Ruling that: “the Secretary of State could call a poll in order to give a quietus to the controversial question of a united Ireland for a period of time if she thinks that a majority would vote in favour of remaining in the United Kingdom. … She could decide to call such a poll if persuaded by political representatives that it would be desirable … to close the issue for a number of years” (NIQB 106, 2018, para. 18). In any case, even the seemingly stricter view of the Appeal Court still gives the Secretary of State wide latitude in using the discretionary power, in effect, “to delay a united Ireland for a period of 7 years.”
[4] This statement is accurate even if we understand the limitations of survey research and the problems of deriving a specific mandate from any election outcome. There is a British precedent for linking election results to majority consent for constitutional arrangements. This link became evident when, in a series of initiatives in 1972 and 1973, the British government removed the constitutional guarantee from the northern Parliament and gave it to the northern people (Torrance, 2019). The Northern Ireland Constitution Act 1973 completed this process. As this Act abolished the old northern Parliament, the parliamentary guarantee of the north’s place in the UK was rendered meaningless. As a consequence, the Act explicitly created a new popular guarantee of majority consent in a border poll (Gay & Morgan, 1998, pp. 8-9). Following this precedent, the party composition of MLAs elected to the northern Assembly could be seen as a proxy for the level of popular support for constitutional change. It would therefore be unreasonable for the Secretary of State not to consider the partisan make-up of the Assembly in her determination of likely majority support for a united Ireland. Everyone seems to recognize the weighty evidential value of election results, with the exception of the courts and the NIO (Bassett & Harvey, 2019; Whysall, 2019). Humphreys notes some of the historical complications in moving between a parliamentary and a popular majority in the north (Humphreys, 2009, pp. 37-39).
[5] The affidavit is a little inconsistent on this issue. In paragraph 12, it says the “relevant factors … may include appropriate opinion poll or other reliable empirical evidence.” Similarly, paragraph 14 states that “the Secretary of State may decide to take account of opinion poll evidence or may even decide to commission such evidence.” These expressions of what the Secretary of State “may” consider are a little weaker than the statement of what she is “likely to be informed by” (para 14).
[6] The Appeal Court’s reasoning here is impaired by the false distinction it draws between empirical and political judgments. It says: “The political judgment as to the likely outcome of a border poll is not a simple empirical judgment driven solely by opinion poll evidence. It is also not a simple judgment based purely on perceived religion. The judgment depends on what are the prevailing circumstances at any given time. For instance a likely outcome may involve an evaluation as to whether there are other factors which will impact on voting intentions crossing traditional party or perceived religious lines and if so as to their impact” (NICA 23, 2020, para. 80). That is, the court’s so-called “political” judgment is based on an evaluation of the likely “empirical” impact of other factors on voting intentions. We’re not talking about political versus empirical judgments as the court suggests; rather, we’re dealing with sound judgments based in evidence, and unsound judgments, which draw conclusions about factors affecting the border-poll vote without the benefit of valid evidence. The court prefers to relabel the latter as political judgments. As I say in the body of the posting, they might better be termed arbitrary judgments.
[7] Both the High Court and the Appeal Court sometimes see the trigger condition as separate from the Secretary of State’s act of ordering a border poll (NIQB 106, 2018, para. 20; NICA 23, 2020, paras. 74 & 75). As I’ve said, I think this interpretation is the correct one. But the overall effect of the courts’ rulings is to make the condition indistinguishable from the act. The condition of “likely majority” is not autonomous; it exists only in the act of ordering a poll.
[8] In paragraphs 24 and 26, the affidavit is approvingly paraphrasing and quoting from comments made by the previous Secretary of State (James Brokenshire).
[9] The Appeal Court ruled that if the Secretary of State were to determine that a pro-unity majority is likely, the mandatory duty to direct the holding of a border poll “arises even if it is not in the public interest” (NICA 23, 2020, para. 77). I’m not sure if the Appeal Court’s prohibition on using “public interest” to avoid a poll includes using the “foundations of stability” to avoid one. The ruling is little help here. Regrettably, it does not directly address the obvious tension on this matter between its judgment and the NIO’s affidavit. In fact, there is a lack of clarity within the Appeal Court ruling itself about the role of “the potential for instability” in the Secretary of State’s decision to order a poll (para. 57). The Appeal Court also fails to address tensions between its ruling and the earlier High Court judgment. On this latter point, see endnote 3. It’s unfortunate that some central questions about the operation of a border poll remain unresolved after two court hearings.
[10] Paragraph 4 Schedule 1 of the NIA says that, in the order directing the holding of a poll, the Secretary of State specifies who can vote. But surely, the electorate must be established, at least in the mind of the Secretary of State, in advance of that order. The Secretary of State could not possibly determine the likelihood of a pro-unity majority if the size of the electorate were unknown. That is, she could not discern if she were required to discharge her mandatory duty to call a poll. Raymond McCord’s legal team made this point in its submission to the High Court (Daly, 2019b, p. 11). The High Court, sensibly, agreed (NIQB 106, 2018, para. 21). As did the Appeal Court: “We accept that there is an inter-relationship between the decision as to who is entitled to vote and an assessment as to the likely outcome of that vote. In that respect the respondent [Secretary of State] is entitled to consider who should vote whenever making a decision as to the likely outcome of a border poll” (NICA 23, 2020, para. 99).
[11] Former DUP leader and First Minister Peter Robinson places the blame squarely on UUP members who “signed an agreement which included a most unsatisfactory process that, among other things, placed the power to call the referendum in the hands of any future Secretary of State exercising their own judgment on what might be the possible outcome” (Robinson, 2018b, n.p.).
[12] In the wake of Francie Molloy’s comment that nationalists and republicans “were sold a pup with the GFA,” Suzanne Breen poses some hard questions for Sinn Féin’s negotiators about consent and the border-poll process (Breen, 2020c).
[13] Mitchel McLaughlin was the Sinn Féin figure who most prominently and frequently made the demographic argument. As he said in 2000: “I have pointed out in the past that change--demographic and political—is happening anyway and, from that, constitutional change will follow naturally” (McKinney, 2000, n.p.). And he noted that these trends will “concretise the view that for nationalists and republicans this is the end phase. There is a majority emerging.” (Watt, Bowcott & Norton-Taylor, 2001, n.p.).
[14] Opinion surveys at the time of the GFA referendums and shortly thereafter show consistently high support for the Agreement’s consent clause among nationalists. Even a majority of republicans supported the formula for constitutional change. Within the Catholic/Nationalist/Republican community, some people wanted Irish unity quickly, others conceived of it as an aspiration or goal that might be met in the long term, while still others were content with the constitutional status quo. All three kinds of voters could support the GFA’s consent clause. There were much lower levels of support for the removal of the south’s territorial claim to the north, which decreased significantly between 1998 and 2003.
Within the Protestant/Unionist/Loyalist electorate, support for the consent clause remained well over 90 per cent, even with increasing Protestant alienation from the Agreement. See Hayes and McAllister (1999), Hayes and McAllister (2001) and Hayes, McAllister and Dowds (2005).
[15] In 2013, the 1916 Societies summarized why many dissenting republicans opposed the GFA. The Agreement’s triple lock against a united Ireland amounted to a British veto over constitutional change (1916 Societies, 2013).
[16] In spite of its reservations, the party supported the “Yes” side in both referendums and changed its constitution to allow elected members to take their seats in the new northern Assembly. (Adams, 1998).
[17] At the end of the Castle Building talks in June 1999, the party stated that it is “totally committed to the implementation of the Good Friday Agreement in all its aspects,” and called for the GFA’s “whole-hearted implementation” (Sinn Féin, 1999a, n.p.) See also the party’s submission to Mitchell’s review of the GFA, “Defending the Good Friday Agreement” (Sinn Féin, 1999b). Here is Martin McGuinness’s January 2001 characterization of the GFA referendums: “The greatest expression of mutual expectation and political maturity was the joint exercise of our electoral franchise when Catholic, Protestant, nationalist, unionist, loyalist and republican went out and voted `Yes' together to endorse the change envisioned in the Good Friday Agreement” (McGuinness, 2001, n.p.).
[18] As the party’s manifesto for the 2020 Irish general election puts it: “In 1998, one of our achievements in the negotiations leading to the Good Friday Agreement was securing a referendum on unity.” (Sinn Fein, 2020, p. 11). Gerry Adams makes a similar point in the most recent edition of An Phoblacht magazine: “Our hard work paid off when in the Good Friday Agreement negotiations the Government of Ireland Act was replaced by legislation which declared ‘that if there were majority consent for a united Ireland that wish should be given effect’” (Adams, 2020, p. 20). Here, Adams seems blind to the substantial problems with the NIA’s legislative representation of majority consent. As his quotation suggests, Adams sees the scrapping of the Government of Ireland Act 1920 as another party achievement. This view is erroneous. Humphreys notes that, in the GFA negotiations, repealing the Act was not really a counterpoint to amending Articles 2 and 3 of the Irish Constitution, even though the popular view was of “a balanced constitutional accommodation” (Humphreys, 2009 p. 62). Adams repeats this popular (and party) misconception of balance. Humphreys further explains:
… the theory that the amendment of Articles 2 and 3 was, in the end, balanced by important corresponding measures from the British government does not hold very much water because the corresponding measure, the repeal of the Westminster jurisdiction clause in the Government of Ireland Act 1920, was legally meaningless as the clause was immediately replicated in new language in the Agreement itself and in the 1998 implementing legislation. UK sovereignty in Ireland derives not from the Government of Ireland Act but from the Acts of Union of 1800, which remain in force in Northern Ireland as they have done for two centuries (Humphreys, 2018, p. 199).
[19] The same could be said of the SDLP, which continues to place uncritical faith in the border-poll language of the GFA (SDLP, 2005). Sinn Féin, in claiming that the people of Ireland control constitutional change, repeats the mistake James Mitchell made a decade ago. Mitchell believed that the border poll held in March 1973 “suggested that sovereignty rested with the people of Northern Ireland and not Parliament at Westminster” (Mitchell, 2009, p. 181). However accurate this view was regarding the 1973 border poll—and there is a strong case that it was not accurate—post-GFA Ireland suggests that Mitchell’s conclusion needs to be considerably revised. The courts’ interpretation of the border-poll provisions in the GFA and related documents shows the remarkable extent to which progress towards Irish unity rests with the Parliament at Westminster and not with the people of Ireland, north or south.
[20] On the hesitancy of the main southern parties, Chris Donnelly notes:
By their words and deeds, it has been painfully apparent for a long time that there is no desire amongst the established political elite in Dublin to move beyond rhetoric when it comes to working for a new, agreed or shared (but rarely now united) Ireland that amounts to anything more than ministers exchanging pleasantries at infrequent cross-border gatherings. They’ve been socially distancing from the north for a long time before Covid-19 became a thing. …
… the default instinct of Fine Gael, Fianna Fáil and Labour politicians is to avert eyes from the north and think and plan without it. Hence why any references to Irish unity are strictly cited in a long-term context and only on condition of unionists ceasing to be unionists and supporting unity in advance (Donnelly, 2020, n.p.).
Later, I examine this reluctance in regard to the recently agreed Fianna Fáil-Fine Gail Framework Document and the Programme for Government.
[21] Coakley points out the importance of what he calls “the southern veto” over constitutional change, by which he means the requirement for the “‘free and concurrent’ assent to unity by the people of the south.” He traces this veto to the Downing Street Declaration of 1993 and notes its reappearance in the GFA (Coakley, 2001, p. 238). My analysis shows that the south’s ability to block constitutional change extends to the actions of the Irish government, in supporting or not supporting a border-poll outcome favouring unity. As I say in the text, Mallon argues that an expectation of loyalist violence following a slim pro-unity result should lead governments not to hold border polls in the first place (Mallon, 2019, chap. 13).
[22] Once again, Peter Robinson places the blame on the UUP negotiators “who agreed to exclude any of Northern Ireland’s elected representatives from a role in shaping what happens if there was a negative outcome [a border poll showing majority support for a united Ireland]” (Robinson, 2018b, n.p.).
The Court of Appeal make three important arguments here. First, it notes that the relevant wording of the NIA—which was included in the GFA as Annex A, Draft Clauses/Schedules for Incorporation in British Legislation (s. 1(2))—was approved by the two governments and eight political parties (NICA, 2020, paras. 54 & 64). This observation confirms my point about negotiator responsibility for the failure to recognize the obstructive power concentrated in the hands of the Secretary of State.
Second, the court argues that the GFA signatories—the two governments and eight parties—intended to give the Secretary of State the broad and flexible powers outlined in the ruling (paras. 96 & 97). I don’t agree. On the contrary, I think that some, perhaps most, nationalist and republican negotiators would be shocked at the court’s depiction of the extent of unconstrained authority in the hands of the Secretary of State. As I have argued, I think they were careless not to realize the implications of what they were negotiating. I don’t think they intended it. Certainly, the nationalist and republican party narratives at the time of the Agreement, and since, are inconsistent with any realization of the wrecking powers of the Secretary of State. In any event, the court’s interpretation, in 2018 or 2020, of the Secretary of State’s powers is empirically distinct from the negotiators’ intentions in 1998. There is no basis for the court’s retrospective and self-serving assertion that they are the same. There is a wealth of evidence suggesting that the negotiators had diverse if not contradictory intentions in 1998. There is little evidence giving comfort to the court’s contention that their intentions were both homogeneous and identical to the court judgment.
Third, the Appeal Court also notes that the GFA language describing the Secretary of State’s border-poll powers was approved in referendums in the north and south, and those powers are therefore “consistent with the democratic ideal” (paras. 54 & 64). Once again, I disagree. The court seems to take a purely formal-legal, and not very useful, definition of democracy. I don’t think there is any evidence to show, and the court does not provide any, that people voting in favour of the Agreement were approving the wide grant of power described in the court ruling. Many nationalist and republican referendum voters, as I’ve argued, believed that the border-poll process would, when the time comes, straightforwardly translate a likely majority for unity into a border poll, and a pro-unity poll into a united Ireland. They were wrong but that is what many of them believed at the time. The court has shown most emphatically that there is nothing straightforward about a border poll, given the enormity of power wielded by the Secretary of State. This new understanding of the Secretary of State’s authority overturns completely, some twenty years after the fact, an important component of the popular understanding of the Agreement at the time of the referendums. This situation cannot be described as consistent with the democratic ideal.
[23] Though he examines the inadequacy of judicial remedies should either eventuality occur (Humphreys, 2009, pp. 121-22, 159, 164-66 & 204-05).
[24] The Appeal Court especially sees no irony in the omnipotent role of the British Secretary of State over self-determination, which the Irish people are supposed to exercise alone and without external impediment. The need for the Secretary of State to act “honestly” and with “rigorous impartiality” are not meaningful constraints on her powers over a border poll (NICA, 23, 2020, paras. 72 & 82).
Sinn Féin’s narrative on the peace process was dominated by a new emphasis on an equality agenda and by its claim of the transitional logic of the Agreement (McGovern, 2004; Bean, 2007). The party’s focus on transition is particularly significant because of its relation to the question of constitutional change.
The party’s discourse on the transitional nature of the peace process was based on two principal components. The first was that the Agreement’s north/south or “all-Ireland” institutions contained an inner dynamic leading inexorably to Irish unity. These institutions, the party claimed, were an embryonic form of a united Ireland, with an inscribed energy to grow and expand (Corcoran, 2002 & 2003). Sinn Féin’s argument was shown to be faulty, with the North/South Ministerial Council proving especially ineffective (Murray & Tonge, 2005; McCall, 2018).
The second component was that the immutability of demographic trends in the north made a united Ireland inevitable: Catholics would soon outnumber Protestants, nationalists would overtake unionists, and a united Ireland would emerge.[13] There were obvious problems with the party’s demographic logic: “a demographic majority is not necessarily an electoral majority, and an electoral majority is not necessarily a pro-unity majority” (Coakley, 2001, pp. 237 & 238). But, at the time of the GFA, many nationalists and republicans accepted Sinn Féin’s position that a majority in favour of a united Ireland would eventually appear (Ruane, 1999).
Curiously, both components of the party’s narrative were divorced from any consideration of the border-poll process, which played no part in the party’s high-profile marketing of the Agreement as a staging post to Irish independence and national democracy. (Adams, 1998 & 2000). Sinn Féin, and the nationalist and republican electorates at large, accepted easily and uncritically that the GFA’s border-poll provisions represented a forthright, mechanical process for smoothly translating a pro-unity majority into constitutional change.[14] Alan Whysall of the Constitution Unit, University College London, noted that neglect of the issue was widespread: at the time of the GFA, there was “remarkably little” discussion of how consent and self-determination were to work in practice (Whysall, 2019, p. 5). Few recognized, with the notable exception of republicans dissenting from Sinn Féin’s position, that the Secretary of State’s power over a border poll could frustrate constitutional change.[15] The arrival of a pro-unity majority in the north does not necessarily mean that there will be a border poll.
Sinn Féin’s faith in the expansive logic of the all-Ireland bodies and in the political and constitutional effects of demographic change may have made the party complacent about the actual workings of the border-poll process. But, at the time of the Agreement, Sinn Féin had a good reason for not saying much about a border poll. Its reticence was related to its qualified endorsement of the GFA. Sinn Féin opposed, at least rhetorically, the Agreement’s view of consent that maintained the unionist veto over constitutional change in the north. Likewise, it contended that the two GFA-related referendums did not constitute a valid exercise in national self-determination.[16] Sinn Féin was hesitant to draw attention to the GFA’s border-poll provisions as they encapsulated the very elements of the Agreement that the party supposedly rejected: a partitionist view of consent and self-determination that legitimized a separate vote in the north in which unionists presently dominated. Sinn Féin was at the time maintaining the fiction that it could work the entire three-stranded complex of institutions without validating the Agreement’s conceptions of the north’s place within the UK and the unionist veto over constitutional change.
Before any focus on a border poll was politically tenable, Sinn Féin’s position on the GFA would have to evolve. It did. The party’s indirect and partial acceptance of the GFA changed to a full and enthusiastic embrace. The referendums ratifying the Agreement, which the party initially viewed as invalid and illegitimate exercises, became expressions of political maturity and popular democracy.[17]
Slowly, the border poll began to take a more prominent place in the party’s narrative of transition. Throughout 2012, senior Sinn Féin leaders started regularly calling for a border poll, no doubt influenced by events in Scotland and results from the new census question on identity. In August, Agriculture Minister Michelle O’Neill advocated for an immediate poll (O’Neill, 2012). In October, Gerry Adams urged the Irish government to take the lead in setting a date for a constitutional referendum (Adams, 2012). In November, Martin McGuinness suggested a border poll could be used to test public opinion and energize a debate on the benefits of Irish unity (McGuinness, 2012). In January 2013, Sinn Féin officially launched its campaign calling for a border poll under the terms of the GFA to be held in the next term of the Assembly and Oireachtas (Adams, 2013). In the spring, under its initiative “United Ireland – You Decide: A People’s Referendum,” the party began to hold a series of community referendums on Irish reunification. Their purpose was “to begin the debate about Irish unity at a grassroots level and specifically to raise public awareness of the provision for a Border poll in the Good Friday Agreement” (Ní Dhonnabháin, 2013).
Sinn Féin has now come full circle, from avoiding the topic of a border poll in 1998 because of its association with the despised unionist veto, to proclaiming in 2020 that the poll was a notable achievement of the party in the GFA negotiations.[18] Still, with the border referendum a main feature in the party’s revised constitutional narrative, Sinn Féin has not yet begun to grasp the limitations of what it negotiated in 1998. In a major publication on how to achieve a united Ireland, the party maintains: “The British veto is gone. Constitutional change is now in the hands of the people of Ireland, North and South” (Sinn Féin, 2016, p. 26). It seems not to realize the unfettered, obstructive power the Agreement places in the hands of the Secretary of State. The party has, despite its pronouncements, acquiesced in entrenching a British veto over constitutional change, a point I develop further below.[19]
The Implementation Gap
The Secretary of State’s unbridled authority over calling and steering a border poll is not the only expression of Britain’s potential to derail movement towards Irish unity. There is also the matter of Britain’s (and Ireland’s) commitment to implement the outcome of a border poll favouring Irish unity. Richard Humphreys, appointed to the Irish High Court in 2015, noted the dual nature of this possible blockage by calling attention to the “hypothetical reluctance by the United Kingdom government to facilitate Irish unity—either by refusing to hold a referendum or by holding such a referendum and failing to give effect to its outcome” (Humphreys, 2009, p. xxii).
In looking at the language describing the implementation of a border-poll outcome—how “to give effect to” the majority wish for Irish unity—we find some major and troubling inconsistencies.
In the GFA, the talks participants endorsed London’s and Dublin’s commitment that if majorities in the north and south voted for a united Ireland in border polls, “it will be a binding obligation on both Governments to introduce and support in their respective Parliaments legislation to give effect to that wish” (Constitutional Issues, s. 1(iv)). Incidentally, this language closely resembles the commitment both governments gave as far back as 1985, in the Anglo-Irish Agreement, to “introduce and support” legislation to give effect to the expressed wish of a northern majority for a united Ireland (art. 1(c)).
The corresponding language in the NIA is both different from and weaker than that found in the GFA (Humphreys, 2009). The NIA legally commits the British government to “lay before Parliament such proposals to give effect to that wish as may be agreed between Her Majesty’s Government in the United Kingdom and the Government of Ireland” (s. 1(2)). Two points are of special interest in this altered wording. First, the NIA commits London only to lay unity proposals before Parliament, while the GFA requires it to introduce and support those proposals. The stronger border-poll provisions of the GFA do not have the force of law; it’s the weaker provisions of the NIA that form part of British domestic law (NICA 23, para. 45). Second, in the NIA, laying proposals before the Westminster Parliament occurs only after those proposals have been agreed with the Irish government. The High Court ruling outlined the fundamental matters that would form part of any post-poll intergovernmental agreement: “following majority votes north and south in favour of unification agreement would have to [be] reached between the UK and Ireland as to the form of that united Ireland and the way it [sic] which it would be governed and structured” (NIQB 106, 2018, para. 5).
Regarding the first point, if the British government were to follow the letter of the law and simply introduce unity proposals before Parliament, without backing them, it would invite defeat of its own proposals. The result: the border poll favouring Irish unity would not be implemented.
Regarding the second point, the requirement of intergovernmental agreement after a pro-unity poll represents another opportunity to set obstacles in the way of a united Ireland. British governments, both Tory and Labour, have shown an outspoken commitment to preservation of the Union and regularly worked the Agreement to the advantage of unionists. Any Irish government with a significant Fine Gael or Fianna Fáil component would be, at best, hesitant about unity and, most probably, actively hostile to it.[20] The British and Irish governments, both unwilling partners in the process of constitutional change, would be perfectly aware that one means of avoiding doing something that neither of them wants to do is to fail to reach agreement on proposals for a united Ireland. As the High Court ruling suggests, there are especially controversial matters that will be up for discussion, leaving plenty of scope for inter-governmental disagreement. The result: the border poll favouring Irish unity would not be implemented.
Another point, which Humphreys perhaps suggests, is that the British government might dispense altogether with the parliamentary process or inter-governmental talks and just refuse outright to give effect to a poll favouring unity. The result: the same.
Any significant unionist opposition to the outcome of a border poll favouring a united Ireland—a virtual certainty—would increase the prospects of unity proposals being defeated in Parliament, or of Britain thwarting inter-governmental agreement on those proposals or simply abandoning its commitment to implementation. The Irish government too would be similarly affected by unionist resistance and consequently more likely to use its capacity to impede the movement towards unity.[21]
These potential implementation problems represent another failure in negotiations, for which the nationalist and republican teams again bear a heavy responsibility. The negotiators accepted a diluted legal version of Britain’s commitment to implement the outcome of a border poll, which was prefigured in an annex to the GFA. They also decided formally to exclude themselves from any post-poll agreement on unity proposals, and instead left the matter in the hands of the two governments. It’s difficult to understand why the parties would not demand being an official part of negotiations deciding the form of unity and the governance structures of a united Ireland.[22]
Justice Humphreys believes that, in the end, border-poll problems will probably not arise. It’s unlikely, he suggests, that the British government would resile from its GFA commitments to hold a border poll or give effect to a poll’s pro-unity outcome.[23] Seamus Mallon, in contrast, explicitly advocates that both the British and Irish governments should break their commitments. He urges that neither London nor Dublin should hold a border referendum if the anticipated outcome were a slender majority for unity; nor should they implement the results of a narrowly-won poll (Mallon, 2019, chap. 13).
The governments are likely to take Mallon’s advice. On the Irish side, Mallon’s influence on Micheál Martin, which the new Taoiseach openly acknowledges, seems to have reinforced Fianna Fáil’s reluctance to take meaningful steps towards a united Ireland. That reluctance was most recently expressed in the Framework Document and draft Programme for Government. I discuss both developments in the next section.
On the British side, there is an accumulation of evidence that tilts towards Mallon’s position and against Humphreys’s expectation that London will comply with the GFA. To reiterate, in its affidavit in the McCord case, the British government aggressively defended its wide grant of undefined and undefinable power to initiate, or not, the process of constitutional change. It also sought to extend that power into areas beyond those specified in the relevant legislation, which would give it an enhanced role in frustrating progress towards a united Ireland. And, in translating its GFA commitments into legal form via the NIA, London softened considerably its obligation to give effect to the results of a border poll favouring unity.
The British government seems intent on playing a determining role in deciding if, when, and how Irish unity is to occur, directly contradicting the GFA provision 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 (Constitutional Issues, s. 1(ii)).[24]
Notes
[1] A summary of the Appeal Court judgment describes the purpose of Raymond McCord’s court case: “Raymond McCord (“the appellant”) submitted that there was insufficient clarity and transparency in relation to the mechanism for directing a border poll under the relevant provisions of the Belfast Agreement which were enacted in section 1 of, and Schedule 1 to, the Northern Ireland Act 1998 (“the NIA”). The appellant claimed that the refusal or failure of the Secretary of State for Northern
Ireland (“the respondent”) to have a policy setting out the circumstances in which he would direct the holding of a border poll was a breach of the constitutional issues provided for in the Belfast Agreement. The appellant sought an order that the respondent publish a policy setting out the circumstances in which he would direct the holding of a border poll” (Judicial Communications Office, 2020).
[2] The Appeal Court ruling makes clear that both the Secretary of State and Parliament play a role in ordering a poll, in that the Secretary of State must submit a draft order to Parliament for its approval. The ruling cites section 96(2) of the NIA for the requirement of parliamentary approval (NICA 23, 2020, para. 63). Throughout my analysis, I focus on the role of the Secretary of State, assuming that parliamentary approval will be forthcoming. Should Parliament not approve the draft order, we’re left with a situation in which the Secretary of State determines that majority support for a united Ireland is likely but no border poll can be held. That is, even at this early stage, Parliament could prove to be an additional obstacle to the realization of constitutional change. The assumption of parliamentary approval of the draft order is, nevertheless, warranted. Recent studies have shown that, even in a period of overstated executive dominance and deteriorating party discipline, most government motions do get parliamentary approval (Cowley, 2015; Russell, Gover & Wollter, 2016). We don’t know if the complete breakdown of both executive dominance and party discipline during the Brexit votes may have some spillover effect onto the issue of constitutional change, perhaps establishing a “new normal” for such consequential parliamentary votes. And, of course, hung Parliaments complicate matters.
My focus on the “Secretary of State,” assuming parliamentary approval, is consistent with the language of the NIA and the court rulings, which use that term when laying out the powers over a border poll. I’ll address later on, in my discussion of the implementation of a border poll favouring unity, Parliament’s potential to block constitutional change.
[3] The position of the NIO is that “the Secretary of State’s discretionary power to order a border poll … is not constrained by any prior statutory conditions and may be exercised in light of her assessment of whether a border poll is in the public interest at the relevant time” (Sloan, 2018, para. 9).
In an earlier posting examining the discretionary power, I stated: “That the Secretary of State can use a border poll to delay, deflect or stifle any public momentum towards Irish unity may come as an unpleasant surprise to many nationalist and republican supporters of the GFA (Burke, 2019, n.p.). The Appeal Court appears to take a different interpretation, arguing that the Secretary of State: “would not be acting with rigorous impartially if in the face of diminishing support for Northern Ireland remaining in the United Kingdom he directed the holding of a border poll with the sole purpose of achieving a majority to remain and thereby to delay a united Ireland for a period of 7 years” (NICA 23, 2020, para. 66). I suppose the accuracy of this statement hinges on the meaning of “sole purpose.” It’s not clear to me how easily the Appeal Court’s interpretation sits with the earlier High Court Ruling that: “the Secretary of State could call a poll in order to give a quietus to the controversial question of a united Ireland for a period of time if she thinks that a majority would vote in favour of remaining in the United Kingdom. … She could decide to call such a poll if persuaded by political representatives that it would be desirable … to close the issue for a number of years” (NIQB 106, 2018, para. 18). In any case, even the seemingly stricter view of the Appeal Court still gives the Secretary of State wide latitude in using the discretionary power, in effect, “to delay a united Ireland for a period of 7 years.”
[4] This statement is accurate even if we understand the limitations of survey research and the problems of deriving a specific mandate from any election outcome. There is a British precedent for linking election results to majority consent for constitutional arrangements. This link became evident when, in a series of initiatives in 1972 and 1973, the British government removed the constitutional guarantee from the northern Parliament and gave it to the northern people (Torrance, 2019). The Northern Ireland Constitution Act 1973 completed this process. As this Act abolished the old northern Parliament, the parliamentary guarantee of the north’s place in the UK was rendered meaningless. As a consequence, the Act explicitly created a new popular guarantee of majority consent in a border poll (Gay & Morgan, 1998, pp. 8-9). Following this precedent, the party composition of MLAs elected to the northern Assembly could be seen as a proxy for the level of popular support for constitutional change. It would therefore be unreasonable for the Secretary of State not to consider the partisan make-up of the Assembly in her determination of likely majority support for a united Ireland. Everyone seems to recognize the weighty evidential value of election results, with the exception of the courts and the NIO (Bassett & Harvey, 2019; Whysall, 2019). Humphreys notes some of the historical complications in moving between a parliamentary and a popular majority in the north (Humphreys, 2009, pp. 37-39).
[5] The affidavit is a little inconsistent on this issue. In paragraph 12, it says the “relevant factors … may include appropriate opinion poll or other reliable empirical evidence.” Similarly, paragraph 14 states that “the Secretary of State may decide to take account of opinion poll evidence or may even decide to commission such evidence.” These expressions of what the Secretary of State “may” consider are a little weaker than the statement of what she is “likely to be informed by” (para 14).
[6] The Appeal Court’s reasoning here is impaired by the false distinction it draws between empirical and political judgments. It says: “The political judgment as to the likely outcome of a border poll is not a simple empirical judgment driven solely by opinion poll evidence. It is also not a simple judgment based purely on perceived religion. The judgment depends on what are the prevailing circumstances at any given time. For instance a likely outcome may involve an evaluation as to whether there are other factors which will impact on voting intentions crossing traditional party or perceived religious lines and if so as to their impact” (NICA 23, 2020, para. 80). That is, the court’s so-called “political” judgment is based on an evaluation of the likely “empirical” impact of other factors on voting intentions. We’re not talking about political versus empirical judgments as the court suggests; rather, we’re dealing with sound judgments based in evidence, and unsound judgments, which draw conclusions about factors affecting the border-poll vote without the benefit of valid evidence. The court prefers to relabel the latter as political judgments. As I say in the body of the posting, they might better be termed arbitrary judgments.
[7] Both the High Court and the Appeal Court sometimes see the trigger condition as separate from the Secretary of State’s act of ordering a border poll (NIQB 106, 2018, para. 20; NICA 23, 2020, paras. 74 & 75). As I’ve said, I think this interpretation is the correct one. But the overall effect of the courts’ rulings is to make the condition indistinguishable from the act. The condition of “likely majority” is not autonomous; it exists only in the act of ordering a poll.
[8] In paragraphs 24 and 26, the affidavit is approvingly paraphrasing and quoting from comments made by the previous Secretary of State (James Brokenshire).
[9] The Appeal Court ruled that if the Secretary of State were to determine that a pro-unity majority is likely, the mandatory duty to direct the holding of a border poll “arises even if it is not in the public interest” (NICA 23, 2020, para. 77). I’m not sure if the Appeal Court’s prohibition on using “public interest” to avoid a poll includes using the “foundations of stability” to avoid one. The ruling is little help here. Regrettably, it does not directly address the obvious tension on this matter between its judgment and the NIO’s affidavit. In fact, there is a lack of clarity within the Appeal Court ruling itself about the role of “the potential for instability” in the Secretary of State’s decision to order a poll (para. 57). The Appeal Court also fails to address tensions between its ruling and the earlier High Court judgment. On this latter point, see endnote 3. It’s unfortunate that some central questions about the operation of a border poll remain unresolved after two court hearings.
[10] Paragraph 4 Schedule 1 of the NIA says that, in the order directing the holding of a poll, the Secretary of State specifies who can vote. But surely, the electorate must be established, at least in the mind of the Secretary of State, in advance of that order. The Secretary of State could not possibly determine the likelihood of a pro-unity majority if the size of the electorate were unknown. That is, she could not discern if she were required to discharge her mandatory duty to call a poll. Raymond McCord’s legal team made this point in its submission to the High Court (Daly, 2019b, p. 11). The High Court, sensibly, agreed (NIQB 106, 2018, para. 21). As did the Appeal Court: “We accept that there is an inter-relationship between the decision as to who is entitled to vote and an assessment as to the likely outcome of that vote. In that respect the respondent [Secretary of State] is entitled to consider who should vote whenever making a decision as to the likely outcome of a border poll” (NICA 23, 2020, para. 99).
[11] Former DUP leader and First Minister Peter Robinson places the blame squarely on UUP members who “signed an agreement which included a most unsatisfactory process that, among other things, placed the power to call the referendum in the hands of any future Secretary of State exercising their own judgment on what might be the possible outcome” (Robinson, 2018b, n.p.).
[12] In the wake of Francie Molloy’s comment that nationalists and republicans “were sold a pup with the GFA,” Suzanne Breen poses some hard questions for Sinn Féin’s negotiators about consent and the border-poll process (Breen, 2020c).
[13] Mitchel McLaughlin was the Sinn Féin figure who most prominently and frequently made the demographic argument. As he said in 2000: “I have pointed out in the past that change--demographic and political—is happening anyway and, from that, constitutional change will follow naturally” (McKinney, 2000, n.p.). And he noted that these trends will “concretise the view that for nationalists and republicans this is the end phase. There is a majority emerging.” (Watt, Bowcott & Norton-Taylor, 2001, n.p.).
[14] Opinion surveys at the time of the GFA referendums and shortly thereafter show consistently high support for the Agreement’s consent clause among nationalists. Even a majority of republicans supported the formula for constitutional change. Within the Catholic/Nationalist/Republican community, some people wanted Irish unity quickly, others conceived of it as an aspiration or goal that might be met in the long term, while still others were content with the constitutional status quo. All three kinds of voters could support the GFA’s consent clause. There were much lower levels of support for the removal of the south’s territorial claim to the north, which decreased significantly between 1998 and 2003.
Within the Protestant/Unionist/Loyalist electorate, support for the consent clause remained well over 90 per cent, even with increasing Protestant alienation from the Agreement. See Hayes and McAllister (1999), Hayes and McAllister (2001) and Hayes, McAllister and Dowds (2005).
[15] In 2013, the 1916 Societies summarized why many dissenting republicans opposed the GFA. The Agreement’s triple lock against a united Ireland amounted to a British veto over constitutional change (1916 Societies, 2013).
[16] In spite of its reservations, the party supported the “Yes” side in both referendums and changed its constitution to allow elected members to take their seats in the new northern Assembly. (Adams, 1998).
[17] At the end of the Castle Building talks in June 1999, the party stated that it is “totally committed to the implementation of the Good Friday Agreement in all its aspects,” and called for the GFA’s “whole-hearted implementation” (Sinn Féin, 1999a, n.p.) See also the party’s submission to Mitchell’s review of the GFA, “Defending the Good Friday Agreement” (Sinn Féin, 1999b). Here is Martin McGuinness’s January 2001 characterization of the GFA referendums: “The greatest expression of mutual expectation and political maturity was the joint exercise of our electoral franchise when Catholic, Protestant, nationalist, unionist, loyalist and republican went out and voted `Yes' together to endorse the change envisioned in the Good Friday Agreement” (McGuinness, 2001, n.p.).
[18] As the party’s manifesto for the 2020 Irish general election puts it: “In 1998, one of our achievements in the negotiations leading to the Good Friday Agreement was securing a referendum on unity.” (Sinn Fein, 2020, p. 11). Gerry Adams makes a similar point in the most recent edition of An Phoblacht magazine: “Our hard work paid off when in the Good Friday Agreement negotiations the Government of Ireland Act was replaced by legislation which declared ‘that if there were majority consent for a united Ireland that wish should be given effect’” (Adams, 2020, p. 20). Here, Adams seems blind to the substantial problems with the NIA’s legislative representation of majority consent. As his quotation suggests, Adams sees the scrapping of the Government of Ireland Act 1920 as another party achievement. This view is erroneous. Humphreys notes that, in the GFA negotiations, repealing the Act was not really a counterpoint to amending Articles 2 and 3 of the Irish Constitution, even though the popular view was of “a balanced constitutional accommodation” (Humphreys, 2009 p. 62). Adams repeats this popular (and party) misconception of balance. Humphreys further explains:
… the theory that the amendment of Articles 2 and 3 was, in the end, balanced by important corresponding measures from the British government does not hold very much water because the corresponding measure, the repeal of the Westminster jurisdiction clause in the Government of Ireland Act 1920, was legally meaningless as the clause was immediately replicated in new language in the Agreement itself and in the 1998 implementing legislation. UK sovereignty in Ireland derives not from the Government of Ireland Act but from the Acts of Union of 1800, which remain in force in Northern Ireland as they have done for two centuries (Humphreys, 2018, p. 199).
[19] The same could be said of the SDLP, which continues to place uncritical faith in the border-poll language of the GFA (SDLP, 2005). Sinn Féin, in claiming that the people of Ireland control constitutional change, repeats the mistake James Mitchell made a decade ago. Mitchell believed that the border poll held in March 1973 “suggested that sovereignty rested with the people of Northern Ireland and not Parliament at Westminster” (Mitchell, 2009, p. 181). However accurate this view was regarding the 1973 border poll—and there is a strong case that it was not accurate—post-GFA Ireland suggests that Mitchell’s conclusion needs to be considerably revised. The courts’ interpretation of the border-poll provisions in the GFA and related documents shows the remarkable extent to which progress towards Irish unity rests with the Parliament at Westminster and not with the people of Ireland, north or south.
[20] On the hesitancy of the main southern parties, Chris Donnelly notes:
By their words and deeds, it has been painfully apparent for a long time that there is no desire amongst the established political elite in Dublin to move beyond rhetoric when it comes to working for a new, agreed or shared (but rarely now united) Ireland that amounts to anything more than ministers exchanging pleasantries at infrequent cross-border gatherings. They’ve been socially distancing from the north for a long time before Covid-19 became a thing. …
… the default instinct of Fine Gael, Fianna Fáil and Labour politicians is to avert eyes from the north and think and plan without it. Hence why any references to Irish unity are strictly cited in a long-term context and only on condition of unionists ceasing to be unionists and supporting unity in advance (Donnelly, 2020, n.p.).
Later, I examine this reluctance in regard to the recently agreed Fianna Fáil-Fine Gail Framework Document and the Programme for Government.
[21] Coakley points out the importance of what he calls “the southern veto” over constitutional change, by which he means the requirement for the “‘free and concurrent’ assent to unity by the people of the south.” He traces this veto to the Downing Street Declaration of 1993 and notes its reappearance in the GFA (Coakley, 2001, p. 238). My analysis shows that the south’s ability to block constitutional change extends to the actions of the Irish government, in supporting or not supporting a border-poll outcome favouring unity. As I say in the text, Mallon argues that an expectation of loyalist violence following a slim pro-unity result should lead governments not to hold border polls in the first place (Mallon, 2019, chap. 13).
[22] Once again, Peter Robinson places the blame on the UUP negotiators “who agreed to exclude any of Northern Ireland’s elected representatives from a role in shaping what happens if there was a negative outcome [a border poll showing majority support for a united Ireland]” (Robinson, 2018b, n.p.).
The Court of Appeal make three important arguments here. First, it notes that the relevant wording of the NIA—which was included in the GFA as Annex A, Draft Clauses/Schedules for Incorporation in British Legislation (s. 1(2))—was approved by the two governments and eight political parties (NICA, 2020, paras. 54 & 64). This observation confirms my point about negotiator responsibility for the failure to recognize the obstructive power concentrated in the hands of the Secretary of State.
Second, the court argues that the GFA signatories—the two governments and eight parties—intended to give the Secretary of State the broad and flexible powers outlined in the ruling (paras. 96 & 97). I don’t agree. On the contrary, I think that some, perhaps most, nationalist and republican negotiators would be shocked at the court’s depiction of the extent of unconstrained authority in the hands of the Secretary of State. As I have argued, I think they were careless not to realize the implications of what they were negotiating. I don’t think they intended it. Certainly, the nationalist and republican party narratives at the time of the Agreement, and since, are inconsistent with any realization of the wrecking powers of the Secretary of State. In any event, the court’s interpretation, in 2018 or 2020, of the Secretary of State’s powers is empirically distinct from the negotiators’ intentions in 1998. There is no basis for the court’s retrospective and self-serving assertion that they are the same. There is a wealth of evidence suggesting that the negotiators had diverse if not contradictory intentions in 1998. There is little evidence giving comfort to the court’s contention that their intentions were both homogeneous and identical to the court judgment.
Third, the Appeal Court also notes that the GFA language describing the Secretary of State’s border-poll powers was approved in referendums in the north and south, and those powers are therefore “consistent with the democratic ideal” (paras. 54 & 64). Once again, I disagree. The court seems to take a purely formal-legal, and not very useful, definition of democracy. I don’t think there is any evidence to show, and the court does not provide any, that people voting in favour of the Agreement were approving the wide grant of power described in the court ruling. Many nationalist and republican referendum voters, as I’ve argued, believed that the border-poll process would, when the time comes, straightforwardly translate a likely majority for unity into a border poll, and a pro-unity poll into a united Ireland. They were wrong but that is what many of them believed at the time. The court has shown most emphatically that there is nothing straightforward about a border poll, given the enormity of power wielded by the Secretary of State. This new understanding of the Secretary of State’s authority overturns completely, some twenty years after the fact, an important component of the popular understanding of the Agreement at the time of the referendums. This situation cannot be described as consistent with the democratic ideal.
[23] Though he examines the inadequacy of judicial remedies should either eventuality occur (Humphreys, 2009, pp. 121-22, 159, 164-66 & 204-05).
[24] The Appeal Court especially sees no irony in the omnipotent role of the British Secretary of State over self-determination, which the Irish people are supposed to exercise alone and without external impediment. The need for the Secretary of State to act “honestly” and with “rigorous impartiality” are not meaningful constraints on her powers over a border poll (NICA, 23, 2020, paras. 72 & 82).
⏮ Mike Burke has lectured in Politics and Public Administration in Canada for over 30 years.
Mike - the first in a very well crafted argument. This should be essential reading for those interested in current developments and possible trajectories.
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