In June 2017, Raymond McCord petitioned the High Court to declare that the Secretary of State’s failure to have a policy setting out the exact circumstances that would require the ordering of a border poll is unlawful and unconstitutional.[2] This case began, then, with the question of how, precisely, is the Secretary to take into account northern public opinion in determining if there exists a likely majority for unity. It ended with two implausible court rulings stating that the Secretary may ignore or otherwise bypass northern public opinion on the constitutional question. We might legitimately ask if we are witnessing—a century after the Treaty and Boundary Commission—another development that consigns “the wishes of the inhabitants” to a position of relative insignificance in determining Ireland’s constitutional future (Moore, 2024).[3]
Few commentators recognize the grave implications of these pivotal judgments. The judicial rulings spell out the nature of the Secretary of State’s authority to order a border poll, but do so in a way that completely mystifies the actual exercise of that power.[4] In the wake of the courts’ intervention, it is woefully inadequate to discuss the Secretary’s role in initiating a border poll with reference simply to the Agreement or accompanying Northern Ireland Act. The courts’ interpretation must also be taken into account.
The High Court and Court of Appeal dismissed McCord’s application and supported the Northern Ireland Office’s questionable position. They agreed with the Secretary of State that establishing a policy “predetermining” the circumstances that require ordering a poll “could be unnecessarily restrictive”. They found instead that there are no meaningful limitations on the Secretary’s power over a vote. He has unfettered authority to establish the “overall evidential context” used to determine if “there is likely to be a majority for a united Ireland” (NIQB 106, 2018, para. 20). The courts also decreed that he has the power to discount evidence of a pro-unity majority in election results or public opinion surveys. In the end, the Secretary’s decision to call a border poll is “not a simple empirical judgment driven solely by opinion poll evidence.” Rather, it is “an evaluative judgment ... essentially a political judgment”. The decision depends on the Secretary’s assessment of “what are the prevailing circumstances at any given time”, and his speculation about how a wide array of “other factors” might somehow influence referendum voting intentions (NICA 23, 2020, para. 80). The “prevailing circumstances at any give time” and “other factors” are exceedingly imprecise notions that give the Secretary limitless potential to base his border-poll decision on virtually anything.
The court rulings elevate the Secretary of State’s beliefs above the constitutional beliefs of the northern electorate. It doesn’t matter what voters think of the constitutional status of the north; what really matters is what the Secretary thinks they think. And his thinking could derive from nothing remotely empirical or directly evidential.
Summarizing the situation clearly reveals the absurdity of the constitutional predicament. The provisions of the GFA say in effect that we’ll ignore southern and all-Ireland majorities for unity, and will continue with the constitutional status quo, solely because there is a northern majority for union. In light of the court rulings, we need to revise those provisions by adding: should a northern majority for unity emerge, we may ignore that too and just carry on with current constitutional arrangements.
In minimizing the role of public opinion in the calling of a border poll, the courts and the NIO have materially altered the meaning of the GFA and undermined its popular ratification. The sum total of these interventions is that the Secretary of State exercises arbitrary authority over a constitutional vote. He cannot formulate a policy on or establish criteria for calling a border poll because he cannot predict why or when he might apply his whimsy. Unpredictability is part of the very essence of arbitrary or whimsical power. Continuing calls for the Secretary to specify the circumstances in which he will order a border poll are in vain, unless the NIO fundamentally changes its position and decides to override the courts by enacting new legislation, which is extremely unlikely.
Repeatedly demanding that the Secretary of State clarify criteria is not simply in vain. It is also counter-productive to the cause of Irish unity. It obscures the process of constitutional change by giving the impression that the Secretary is the willing servant of, or somehow bound by, constitutional opinion in the north. He is neither. The Secretary is an all-powerful actor who mediates the relationship between voters’ constitutional preferences and the process of constitutional change. He is the archetypical gatekeeper who holds the only set of keys to unlock the GFA mechanism that could lead to a united Ireland. Constitutional change cannot begin, or alternatively be completed, without his order for a border poll. He is, in other words, “an external impediment”—an extremely large and powerful external impediment—to the Irish people alone exercising their right of self-determination.
The courts and the NIO together ensure that the Secretary of State will call a constitutional vote if and when he deems that it is expedient. British self-interest will determine the timing of the poll, not the state of northern public opinion on the constitution.
Developments since the GFA produced an alteration in the form of the constitutional veto. In 1998, the unionist majority on its own held the power to block a united Ireland. But demographic change, broad social transformation, electoral trends, political turmoil and Brexit upheaval eroded the majority status of the unionist community in the north. Unionists by themselves can no longer prevent constitutional change.[5] The unionist veto that the GFA sought to embed is no more. But as one veto disappeared another—a British veto—came to the fore. Recent court decisions and continuing NIO obstinance invented an unfettered and unaccountable power of the Secretary of State to stifle Irish reunification.[6]
The state of constitutional play requires that advocates of Irish unity mount three related and simultaneous campaigns: one to pressure the Secretary of State to initiate a border poll as a majority for unity emerges, one to pressure the Dublin government to do some concrete planning and preparation for an Irish victory in a border poll, and one to increase popular support for reunification to ensure that unity wins the poll. The pro-unity movement has so far started to attend to the second and third campaigns, with repeated calls for the Irish government to take the lead on planning for a united Ireland, and incipient discussions of social, economic and political issues that should be addressed in moving to a united Ireland that can command broad-based support. But the second and third campaigns are moot without the success of the first. Pro-unity groups also need to develop strategies and tactics to convince a reluctant Secretary to order a vote on the constitution. Such a campaign will likely need to go well beyond the international diplomatic effort that Ireland’s Future envisions to include legal challenges, street protests, civil resistance and other forms of popular mobilization.[7] It will need to demonstrate to the British government that continually frustrating the popular will on the constitution is not in its own self-interest.
The next installment in the series shows the annoying resilience of the demand for a unionist veto over constitutional change.
Notes
[1] At the Ireland’s Future conference in Belfast in June 2024, former Taoiseach Leo Varadkar noted that we simply don’t know the conditions that would trigger the calling of a border poll, a point reiterated by Alex Kane (Feeney, 2024; Kane, 2024). My argument is stronger than is their position. I suggest we can’t know what the conditions or criteria are because the Secretary of State himself cannot know.
[2] The McCord case involved both the Secretary of State’s discretionary power to hold a poll and his mandatory duty to do so if he believed a pro-unity majority existed. I address only the latter instance.
[3] All direct quotations for which I do not cite a page or paragraph number are from internet documents that do not use a numbering system. Otherwise, I indicate the page, paragraph or column number of direct quotations.
[4] Colin Murray, writing before the Appeal Court ruling, is aware of the wide grant of power over a border poll that the GFA grants to the Secretary of State. He is also concerned that the High Court did not clarify the legal consequences should the Secretary fail to act on evidence of a likely majority for unity (Murray, 2020).
[5] Though their continuing social weight gives unionists considerable influence over the outcome of any unity vote.
[6] John Coakley argues that the GFA’s mechanism for constitutional change “in effect comprises a ‘quadruple lock’ on the path to Irish unity”, requiring appropriate action from the Secretary of State, the Oireachtas, and the northern and southern electorates (Coakley, 2015, p. 51). I argue that the first lock is by far the most significant since the Secretary of State can completely stifle the process of constitutional change by not ordering a border poll, and his authority to do so is limitless. He is in a sense the initial gatekeeper. The other locks come into play only once the process of change has begun with the Secretary ordering a constitutional vote. Coakley underestimates the number of locks on the road to unity, which could number seven if we include as separate actors the British and Irish governments and the British parliament. Coakley does allow that the Irish government could play a role that is distinct from that of the Oireachtas, but he doesn’t take into account that the British government and parliament could also have roles distinct from that of the Secretary of State.
[7] Ireland’s Future says: “In our view, the British Government is unlikely to enable a border poll without a formal request from the Irish Government, reinforced by widespread international support. The Irish Government must therefore mobilise its international partnerships and networks—within all relevant international and supranational forums—to secure cooperation and support for its desired outcome. The strength and effectiveness of these diplomatic efforts were evident during the Brexit negotiations, and this must once again be operationalised to ensure people are given a choice about their own future” (Ireland’s Future, 2024, p. 12). But Conor McGinn, a former Labour shadow cabinet minister, sees stronger resistance from Britain that will require more sustained pro-unity efforts. He notes that “no move towards constitutional change or even conversations about changes will be led, supported or encouraged by this or any other British government.” He suggests that “both Sinn Féin and the SDLP should be thinking and talking with each other now about how leverage and pressure might be applied at Westminster in the future, because, like it or not, that’s where any decision to hold a border poll will be made, and may even need to be forced” (McGinn, 2025). I contend that the most effective kind of campaign to “force” Britain to call a border poll will include a diverse set of pro-unity groups employing a broad repertoire of pressure tactics.
References
Coakley, J. (2015). “Does Ulster still say ‘no’? Public opinion and the future of Northern Ireland.” In The Act of Voting: Identities, Institutions and Locale. ed. J.A. Elkink and D.M. Farrell, 35-55. London: Routledge.
Feeney, B. (2024). “Leo Varadkar intervention a game changer in unity debate.” Irish News. 19 June. Retrieved from.
Ireland’s Future. (2024). Ireland 2030: Proposals for the Period between 2024 and 2030. Ireland’s Future. 4 March. Retrieved from.
Kane, A. (2024). “No unionist leader can 'guarantee' the future of the Union.” Belfast Telegraph. 26 June. Retrieved from the Factiva (Dow Jones) electronic database of news articles.
McGinn, C. (2025). “Making sense of how Labour really feels about the north.” Irish News. 25 January. Retrieved from.
Moore, C. (2024). “Let’s learn lesson of history and be clear on criteria for a border poll. Irish News. 20 March. Retrieved from.
Murray, C. (2020). “A Referendum on a United Ireland: Perspectives from UK Constitutional Law.” International Association of Constitutional Law (IACL). 18 February. Retrieved from.
NICA 23. (2020). In the Matter of an Application by Raymond McCord for Judicial Review. In Her Majesty’s Court of Appeal in Northern Ireland, On Appeal from the High Court of Justice in Northern Ireland Queen’s Bench Division. Stephens LJ, Treacy LJ and Colton J. (Judicial Review). 27 April. Retrieved from.
NIQB 106. (2018). In the matter of an application by Raymond McCord for leave to apply for judicial review and in the matter of Section 1 and Schedule 1 of the Northern Ireland Act 1998. In the High Court of Justice in Northern Ireland, Queen’s Bench Division (Judicial Review). Rt Hon Sir Paul Girvan. 28 June. Retrieved from.
⏩ Mike Burke has lectured in Politics and Public Administration in Canada for over 30 years.
What's the benefit to the people of either jurisdiction of a 'United Ireland' compared to the status quo?
ReplyDeleteVery well structured and cogently argued piece like Mick's previous writings on this complex topic.
ReplyDeleteGreat piece and interesting take on the GFA and the border poll. Not being a fan of border poll mania, there are quite a few views that I would not agree with.
ReplyDeleteThe criteria for calling the border poll was agreed by all parties to the GFA including the pro-unity parties. To change that criteria now is to effectively rewrite the GFA on the basis that some parties did not read or understand the small print of what they signed up to.
McCord was a proxy for SF, and the judgement merely reasserted what was agreed by all the parties, which was a rehash of the 1973 legislation.
Why would the British, renegotiate a section of the GFA, that the parties did not want to renegotiate at Leeds, Windsor, St Andrews, New Decade New Approach etc. etc. etc. As guarantors of the GFA, they have an obligation to uphold the terms and conditions.
There has been no demographic or voting shift towards reunification since the signing of the GFA. There is nothing out there that would make the SoS even consider a border poll.
What we are seeing now is the unravelling of the ambiguity that allowed both Unionist and Pro Unity Parties claim the GFA as a victory. The can was kicked down the road by 30 years in 1998 and we are left with an agreement that is no longer fit for purpose. If the GFA requires the rewriting of what people are now saying was a fundamental principle, then that should before the electorate again in a referendum. It wont because it would be lost in the north.