The constitutional wishes of the northern electorate appear decisive in initiating the process of change: the Good Friday Agreement says that the Secretary of State must order a border poll if he believes there exists a majority in favour of Irish unity. The aim of this paper is to show that the determinative role of majority consent in triggering a vote is a myth that popular and scholarly accounts of constitutional change daily reproduce. There is no public recognition that, in the McCord case ruling, the Northern Ireland Office and British courts thoroughly upend the purportedly unassailable place of majority consent as the “democratic pathway” to a united Ireland. The McCord ruling regarding the Secretary’s authority over a border poll is the most fundamental change to date to the terms of the Agreement, yet it is never listed in the catalogue of amendments to the peace settlement.
Majority Consent in the Good Friday Agreement
Majority consent appears in the Agreement in at least six constitutional guises.[1] There are four acknowledgements of existing majorities and two calls to government action based on possible future majorities. The GFA acknowledges: that the majority wish of the people of the island of Ireland is for a united Ireland; that a substantial number of people in the north share the all-Ireland wish for Irish unity; that the present wish of a majority of people in the north is to maintain the union; and that the democratic legitimacy of the north’s place in the UK reflects and relies upon the majority wish. The two calls to government action underline the predominant place of majority consent in the process of constitutional change. Majority consent is the one condition that both prompts a constitutional vote and determines its outcome. The first call to action defines “likely majority consent” as the trigger for a border poll. It imposes a mandatory duty on the Secretary of State to order a poll if it appears likely to him that a majority of those voting would support a united Ireland. The second and related call to action specifies that it would be wrong to make any change in the constitutional status of the north without the consent of a northern majority, defines majority consent as the threshold for winning a border poll in the north and south, and binds both the British and Irish governments to support and give effect to concurrent majority votes in favour of a united Ireland.[2] This provision as it relates to the north is generally referred to as the principle of majority consent; as it relates to Ireland as a whole, it is often called the right of the people of the island of Ireland to self-determination. In these dual calls to government action, then, majority consent stands as the overriding stipulation that directs the process and decides the outcome of constitutional change.
I’ve previously examined various constitutional manifestations of majority consent. I’ve pointed out the recent and rapid growth in the substantial number of people in the north who favour Irish unity. I’ve shown that majority support for the north’s place in the UK is evaporating, which belies the northern regime’s claim to democratic legitimacy. I’ve demonstrated that the all-Ireland majority supporting reunification remains stable. I’ve argued against the many proposals to alter the majority consent rule in the north by inserting an anti-democratic unionist veto over constitutional change. I’ve contended that the Agreement’s reference to the Irish right of self-determination is not only constitutionally meaningless but deliberately deceitful. And I’ve proposed that the Secretary of State is not in fact legally obliged to order a border poll should a likely majority for unity emerge.
This paper elaborates my earlier critique of the assumption that “likely majority consent” is the circumstance that automatically launches a constitutional vote (Burke, 2025b). Elaboration is necessary for two reasons. First and most obviously, the border poll trigger is an essential component of constitutional change—the formal sequence that may culminate in a united Ireland cannot proceed without a vote in the north. A border poll must be held before the much-vaunted principle of majority consent can be applied to the outcome to determine which constitutional option wins, Irish unity or continued union. Put another way, the people cannot decide until the Secretary decides to order a vote.[3] If there is no border referendum in the north, almost certainly there will be no such vote in the south; and if there were, its outcome would be legally and constitutionally inconsequential. In essence, if the Secretary does not order a border poll in the north, constitutional change stalls across Ireland. Second, the trigger needs to be examined further because it’s the most widely misunderstood constitutional provision of the GFA. To bring about a united Ireland requires appreciating fully how the Secretary—despite the language of the Agreement—has come to wield arbitrary, unchecked and unaccountable authority over triggering a border poll. It also requires understanding how this unfettered authority thoroughly downgrades the constitutional role of majority consent in the north.
The GFA provides two separate mechanisms for initiating a border poll. As we have seen, the Secretary has a so-called “mandatory duty” to order a poll if the trigger condition of likely pro-unity majority is met. But he may also invoke a “discretionary power” to call a constitutional vote at any time, consistent with the public interest and the proviso that there must be at least seven years between votes.[4] Most discussions assume that the process of constitutional change will spring from the Secretary’s mandatory duty; and many demand that he clarify the evidential criteria he will use to determine that a likely majority exists, a demand all Secretaries have summarily dismissed. No one expects the current Secretary Hilary Benn to use the discretionary power to call a poll. I think this expectation is correct. Since 1998, no British government has shown any real inclination to take the discretionary route to a constitutional vote. Recently, though, some commentators suggest that the election of a Farage government may bring the discretionary power into play (Manley, 2025).[5] I think this position is correct too. But I won’t address discretionary power in this paper because it is not yet a realistic prospect, and there is little room for misunderstanding what it means, even if the public is barely aware of its existence.
Making and Maintaining a Myth
Majority consent to what became the new northern regime was a foundational if bitterly contested issue in the imposition of partition a century ago. The immediate origins of the myth of majority consent are, however, to be found much later—in the peace process that started to take recognizable shape in the 1990s. Throughout the various iterations of party talks, both London and Dublin loudly and frequently affirmed their commitment to northern majority consent as an inviolable principle of any settlement. The two major precursors of the GFA, the Downing Street Declaration of December 1993 and the Joint Framework Document of February 1995, underlined the importance of northern majority consent to constitutional change. All the major talks participants, except Sinn Féin, endorsed the principle of consent from early in the peace process, with that party effectively accepting consent the moment it entered negotiations in September 1997. Sinn Féin continued throughout the talks rhetorically to oppose what it called the unionist veto, but its surrender on this issue was unequivocal (Burke, 2025a).
Contemporary news coverage of the peace settlement reached in April 1998 features the importance of the principle of consent. And the earliest scholarly discussions of the Agreement are unanimous in proclaiming majority consent as a core element of the new dispensation. Political scientist Brendan O’Leary argues that in the GFA the UK “confirmed that Northern Ireland has the right to secede, by majority consent, to unify with the Republic of Ireland” (O’Leary, 1998, p. 1654). Scholars Roger Mac Ginty and others note that the GFA’s consent provisions mean that “the ultimate arbiters of its [the north’s] constitutional status are the electorate” (Mac Ginty et al., 2001, p. 477). Politics professor Tom Garvin says that with the Agreement “the traditionally nationalist principle of popular sovereignty is replacing the principle of monarchical sovereignty as the legitimating doctrine of Northern Ireland” (Garvin, 1998).[6] Legal scholars Colm Campbell, Fionnuala Nà Aoláin and Colin Harvey similarly argue:
Northern Ireland’s constitutional status is dependent on the wishes of a majority in Northern Ireland. The implication is that determination of the ultimate constitutional status is not in the hands of the UK Parliament. If a majority demonstrates a desire to form part of a united Ireland in a border poll, then the Secretary of State for Northern Ireland is required to give effect to that wish. The constitutional status of Northern Ireland thus rests on the continuing agreement of its people, or on the ‘consent principle’ as it is often called (Campbell, Nà Aoláin & Harvey, 2003, p. 320).
The authors highlight the extensive reach of the Agreement’s majority consent provisions, which challenge the basic assumptions of the international state order. The GFA represents “a radical reconfiguration of both the theory and practice of state formation. In short, democratic participation and the expressly articulated desire of a majority to change their national and territorial status trumps established borders.” In the Agreement, the British and Irish governments “consented to ceding decisive power to citizenry in relation to territorial status” (pp. 330 & 331, respectively). There could hardly be a stronger statement of the centrality of majority consent to constitutional change.
This early focus on majority opinion is understandable. Like most myths, the myth of majority consent has some basis in fact. A fair, reasonable and historically informed reading of the Agreement’s constitutional clauses affirms the significance that many initial analyses attach to majority consent. But this reading no longer holds. In the McCord case, the NIO and courts quash the conventional understanding of the Agreement. In 2018 and again in 2020, they eviscerate the northern citizenry’s “decisive power” to determine constitutional status. There is now no justification for pretending that popular sovereignty in the north still exists in the form that the media and academics originally described it. There is no excuse for blissfully ignoring or not addressing the NIO’s and courts’ precedent-breaking interventions that fundamentally sideline the role of majority consent in the calling of a border poll.
And yet popular, governmental, party-political, civic and academic accounts of the constitutional settlement continue to propagate the myth of majority consent in unreconstructed form.[7] There are three levels of analytical error in which the myth lives on. First, some accounts of the import of majority consent are simply not aware of or otherwise ignore the NIO position and court rulings on the Secretary’s power to order a border poll. They carry on as if these subversions of the Agreement never happened. The Irish presidential campaign of Catherine Connolly, who was elected in October 2025, frequently avowed the unchallengeable place of popular sovereignty in the process of constitutional change. In November, media and governmental accounts of the fortieth anniversary of the signing of the Anglo-Irish Agreement in 1985 also foregrounded the preeminent status of majority consent in the peace settlement. Today, Sinn Féin claims that the GFA’s entrenchment of northern majority consent and Irish self-determination is a key republican achievement. The party’s Commission on the Future of Ireland and the SDLP’s New Ireland Commission stress that the Agreement’s conception of popular sovereignty will democratically decide the island’s constitutional future (Sinn Féin, 2025; SDLP, 2023). None of these commentaries acknowledges that the NIO and court have radically curtailed the status of majority consent in the GFA.
O’Leary’s lack of analysis of the McCord case is especially perplexing. In his Treatise on Northern Ireland he identifies various and related threats to the GFA, including the British government’s unilateral suspensions of devolved institutions, its decision to leave Europe in defiance of majority opinion in the north, and the revival in British courts of classical Diceyan notions of unconstrained parliamentary sovereignty.[8] These developments are especially worrying because they mean that all parts of the Agreement—not least “the promise that Irish reunification will take place if there is majority consent for it in both parts of Ireland”—are vulnerable to being independently revised by the Westminster parliament (O’ Leary, 2019, pp. 205-06). Surprisingly, the 2018 High Court ruling in the McCord case does not make O’Leary’s list of actions imperiling the Agreement, even though it specifically and significantly weakens the cornerstone notion of majority consent. A few years later in Making Sense of a United Ireland O’Leary shifts his view, and suggests that Britain is unlikely to invoke parliamentary sovereignty to refuse to give effect to a referendum supporting Irish unity. He argues, instead, that Britain would probably respect the GFA’s constitutional terms with, for instance, the Secretary triggering a border poll when a likely majority for unity emerges (O’Leary, 2022). His new-found trust in the operation of the Agreement’s provisions on consent and self-determination appears unaffected by his earlier analysis of threats, or by the NIO and court positions in the McCord case, which he again does not examine.
The second level of analytical error in discussions of majority consent includes accounts that consider the NIO/court decisions but fail to understand the nature and severity of the challenge to the Agreement. Alan Whysall, formerly of the NIO and currently at the Constitution Unit of University College London, continues to highlight the importance of majority consent. He acknowledges that an Assembly majority voting in favour of holding a referendum on unity, or a series of reliable opinion polls showing majority support for a united Ireland, should and probably would convince the Secretary that a likely majority exists, and cause him to order a constitutional vote (Whysall, 2019). But in a cryptic reference to the NIO/court position, he also suggests that the Secretary could produce “countervailing evidence” to resist the triggering effect of pro-unity opinion polls (Whysall, 2020, p. 81). Whysall does not seem to recognize that these two interpretations of the role of majority consent in initiating a vote are fundamentally contradictory and therefore irreconcilable: one, consistent with the GFA, suggesting majority opinion is decisive; the other, arising from the NIO/court view, implying an Agreement-busting expansion of the Secretary’s authority that grants him a new capacity to ignore or neutralize tangible evidence of likely majority support for Irish unity.
Relevant also is the analysis by legal commentators Mark Bassett and Colin Harvey. They, like O’Leary in 2019, are concerned that the British government could use the doctrine of parliamentary sovereignty to override the GFA. They are also concerned that the 2022 Protocol Bill shows the government’s willingness unilaterally to break its international law obligations, a stance that puts the Agreement at risk. Regarding a border poll, the authors specifically fear that parliamentary sovereignty and British bad faith could lead to London “refusing to call a vote on Irish unity in circumstances envisaged by the GFA” (Bassett & Harvey, 2022, para. 110; Harvey & Bassett, 2019). Their concerns are valid, but limited. They consider the McCord decision, but do not conceptualize it as an active danger. They entirely overlook that the NIO and judicial interventions have already altered the border poll circumstances envisaged by the GFA, and that those alterations weaken majority consent and hamper the project of Irish unity (Bassett & Harvey, 2019; Harvey, 2021).[9]
The civic nationalist group Ireland’s Future provides another example of level two analytical error. It places great faith in the provisions of the Agreement. It says that “respect for the principle of consent guides our work”, and cites the Secretary of State’s duty to call a border poll “if it ‘appears likely’ a majority would vote for change” (Ireland’s Future, 2024, pp. 7 & 12, respectively). But it also notes that court rulings give the Secretary “political flexibility” over ordering a constitutional vote, and recognizes that the Irish government may have to apply diplomatic pressure to ensure that Britain enables a border poll (p. 12). Ireland’s Future is right to be concerned about Britain’s apparent reluctance over a border poll. But it fails to appreciate that the NIO and courts grant the Secretary much more than just political flexibility in deciding to hold a border poll; they materially alter the GFA’s constitutional provisions, and give the Secretary the legal authority to circumvent or veto majority consent.
The third and final form of error in analyzing majority consent appears in the work of academics and researchers assembled in the Working Group on Unification Referendums on the Island of Ireland. They offer one of the most comprehensive discussions of the McCord ruling, but misinterpret it so seriously that they assign it a meaning exactly contrary to what should apply. They suggest that the courts’ position reinforces the efficacy of majority opinion, in that the rulings require the Secretary of State to reflect honestly on the available evidence of a likely majority, and “’act with rigorous impartiality in the context that it is for the people of the island of Ireland alone to exercise their right of self-determination’” (Working Group, 2021, para. 8.11).[10] I show that the NIO/court position actually cheapens majority consent because it elevates the individual opinion of the Secretary above the majority opinion of the people.
Relegating Majority Consent
The McCord ruling marginalizes the role of majority consent in the process of constitutional change. In June 2017, Raymond McCord asked the High Court to rule that the Secretary of State’s failure to establish a policy identifying the circumstances in which he will order a border poll is a breach of the Northern Ireland Act 1998 and the Agreement, and is therefore unlawful and unconstitutional.[11] This case involves both the Secretary’s discretionary authority and mandatory duty to call a poll. For reasons I explained earlier, I restrict my comments to how the ruling relates to mandatory duty. The High Court and Court of Appeal dismiss McCord’s application. They instead support the NIO stance, sworn to the court in an affidavit, that the Secretary is not obliged to formulate and publish a policy about holding a border poll. Any such formal policy would unnecessarily restrict the flexibility the Secretary needs to make such an important decision. The NIO interprets the Agreement to mean that the Secretary’s order for a constitutional vote is a “political judgment” that requires “broad and flexible” powers to enable a decision “informed by factors and sources of evidence” that are inherently unspecifiable and constantly changing “with time and in different circumstances” (NIO, 2018, paras. 16-18.). My aim in this section is to show that the judicial affirmation of the NIO’s account violates a reasonable reading of the Agreement’s provisions on majority consent.
The High Court is clear about the primary significance of evidence in the Secretary’s mandatory duty to order a constitutional vote: “If the evidence leads the Secretary of State to believe that the majority would so vote [in favour of a united Ireland] then she has no choice but to call a border poll” (NIQB 106, 2018, para. 20).[12] The Appeal Court notes that the GFA does not specify any matter that the Secretary should or should not take into account as evidence, and is silent on the sources of information that he could use in making his assessment (NICA 23, 2020, paras. 78 & 79). But do these omissions and silences give the Secretary a completely blank slate on which to inscribe any set of matters and sources of information he pleases, as the NIO and court contend? I think not. To understand why the NIO/court position is mistaken, we must ask a second question: what would a fair and reasonable person reading the Agreement say about the evidence the Secretary should consider? To determine what kind of evidence may lead the Secretary to believe there is likely majority support for Irish unity, a fair and reasonable person would turn to history to reveal the kind of evidence that actually led the British government to believe there was majority support for union. There are three kinds of such evidence. Demographic data showing a Protestant majority in the north, an elected unionist majority in the northern legislature, and majority support for union in opinion polls have at various times served as incontrovertible indicators of majority support for the north’s place in the UK. That is, these three pieces of evidence measured or operationalized the concept of “majority consent”.
During partition, unionist and British politicians turned to the religious geography of the 1911 census to design the precise form of sectarian gerrymander that would best secure Protestant majoritarian supremacy in the new northern political entity. In the Government of Ireland Act 1920, the number of seats won by unionists in the northern House of Commons became the indicator of majority consent to maintaining a separate northern jurisdiction in Ireland. In the Anglo-Irish Treaty 1921, the indicator was the number of unionist seats in the northern parliament, composed of popularly elected members of the Commons and indirectly elected members of the Senate. The Ireland Act 1949 also used a unionist parliamentary majority to affirm northern consent to continued union with Britain. In the early 1970s, with the abolition of Stormont, support of the majority of people rather than a parliamentary majority justified the maintenance of British rule in the north. Under these circumstances, the border poll in March 1973, ordered by the Secretary of State, and public opinion surveys more generally emerged as crucial measures of majority consent to the constitutional status quo.
The nature of evidence showing majority support for Irish unity is a pivotal element of the McCord case. Figure 1 depicts in schematic form the logical sequence the Secretary uses in exercising his mandatory duty to order a border poll. The courts suggest the following chain of reasoning: evidence of likely majority support for a united Ireland determines the Secretary’s belief about the existence of such a majority, which in turn determines his ordering or not of a constitutional vote (NIQB 106, 2018, para. 20; NICA 23, 2020, paras. 74-76). The two panels in Figure 1 show the marked contrast between, on the one hand, the fair and reasonable reading of what the Agreement says about ordering a border poll and, on the other, the altogether unreasonable interpretation of the NIO and court in the McCord case.
The NIO and courts disagree with this rendering of the GFA. According to them, even though census demographic data, election results and opinion polls served historically as acceptable evidence of majority support for union, they are insufficient bases on which to discern an emerging majority for a united Ireland. In a blatant illustration of unfairness and lack of reciprocity, the NIO and courts make the current test for unity different from and more difficult than the conventional test for union.[13]
Panel B of Figure 1 demonstrates how the NIO and courts change the GFA’s depiction of the role of the Secretary in ordering a constitutional poll. The most striking difference in the two panels is that Panel B adds a potentially infinite set of “other factors” that the Secretary is to consider as evidence in fulfilling the duty of calling a border poll in the event of a likely majority for a united Ireland. These additional factors and circumstances reduce significantly the influence of census data, election results and opinion surveys on the Secretary’s assessment. Let’s examine further the NIO/court position in Panel B.
According to the NIO, the “other factors” that the Secretary considers include information he gathers in his official capacity as head of the department overseeing the north. This position gives him detailed knowledge of political, social and economic life in the north; and allows him to gain insights from the many regular interactions he has with various public representatives (NIO, 2018). According to the court, the Secretary must take into account prevailing circumstances, with the relevant bullet points in Panel B providing an illustrative but not exhaustive list of those circumstances, which range from changing social attitudes in the north and south, through various economic indicators, to the nature of UK-EU trading relations (NIQB 106, 2018; NICA 23, 2020).
Key paragraphs in the rulings reveal the courts’ attitude to evidence of a likely majority for unity. The High Court says:
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 (NIQB 106, 2018, para. 20).
The first point to note is that the court says only that election results and opinion polls may form part of the evidence that the Secretary considers. That is, the Secretary may decide not to take into account such evidence. This statement is bewildering. In the north, there are always recent election results available, and opinion polling is constant, with the Northern Ireland Life and Times survey, Liverpool University, LucidTalk and other organizations regularly asking respondents about their constitutional preferences. The north has, for example, seen eight elections and 33 constitutional polls in the ten years since the start of the Brexit campaign in April 2016 (ARK, no date; Wikipedia, no date). As we’ll see, election results and opinion polls, while not perfect, are by far the best form of evidence to predict the likely border poll choice of a northern majority. And up-to-date information is always at hand. Yet the court ruling frees the Secretary to ignore this bounty of crucial evidence, which he may or may not include as part of the overall evidential context.
On the use of polls and elections as evidence, the NIO position is marginally more enlightened than is that of the court. While the NIO, with the court, is careful to say that the Secretary “may decide to take account of” such evidence, it goes beyond the court to concede that the Secretary is “likely to be informed by the results of any election and opinion evidence, where available and reliable.” And it adds that the Secretary “may even decide to commission” survey evidence about constitutional beliefs (NIO, 2019, para. 14, my emphasis). Still, the NIO’s continued use of the auxiliary verb “may”—indicating possibility—falls short of committing the Secretary to consider any of this evidence. The persistent hesitancy regarding the Secretary’s use of opinion polls and election results becomes a bigger issue once other parts of the NIO and court interpretations further belittle information from such sources.
The second point to note in the court statement is that it refers to a “wide range of factors and considerations dependent on prevailing circumstances” that the Secretary will have to take into account. These factors and considerations do not simply introduce an exceedingly vague and potentially limitless number of influences on the Secretary’s belief about a likely majority. They also become, in the eyes of the court, factors of such significance that they can outweigh evidence of a likely majority from the three traditional indicators.
The Court of Appeal addresses in more detail the place of these other factors in the Secretary’s assessment of whether a likely pro-unity majority exists.
The assessment involves an evaluative judgment as to a likely outcome. We consider that it is essentially a political judgment. It is assigned to and is to be performed by the respondent [the Secretary of State], a politician who is to form an assessment as to the political views of others. 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. Instances of such 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).
Two points stand out in this statement also. First, the court agrees with the NIO that the Secretary’s assessment of a likely majority for unity is essentially a political judgment rather than an empirical one. This is an egregious error. The Appeal Court’s main rationale for identifying the judgment as political—that it is assigned to and made by a politician—is nonsensical.[14] The Secretary is not acting as a politician in search of votes or partisan advantage, but as an officer of the state in performance of the legally-mandated state action of initiating a constitutional referendum. Nor does the Secretary’s judgment become political because he’s assessing the political views of others. The border poll decision is quintessentially an empirical judgment because it concerns assessing the suitability and accuracy of evidence regarding a likely majority for a united Ireland.
The second point is that the court is meticulous in marginalizing the influence of the three historical indicators of majority consent to constitutional arrangements. It establishes a hierarchy of evidence that places the murky “other factors” at the top, with the capacity to amend or overturn systematic evidence from the census, social surveys or election results. That is, the court’s reference to religion allows the Secretary to bypass census results showing more Catholics than Protestants in the north; the reference to opinion polls gives the Secretary license to devalue representative surveys demonstrating majority support for Irish unity; and the reference to voting intentions crossing traditional party lines frees the Secretary to disregard election results yielding more votes or seats for nationalist parties than for unionist parties.
A major folly in this view, then, is that while the court correctly says the Secretary’s assessment is all about the evidence pointing to a likely majority for unity, it erroneously defines that assessment as political, which immediately introduces and privileges as evidence a multitude of factors, considerations and circumstances that lack evidential merit. Evidence must be direct, valid, reliable, representative, and verifiable to enable the Secretary to make a solid inference about the collective decision that the northern electorate will likely make in a border poll. The “other factors” so beloved of the NIO and courts possess none of these desirable attributes. The Secretary’s regular discussions with politicians and interest group leaders will provide him with information about the views of these individuals or organizations, but they will not yield any evidence that allows him to make a valid generalization about the electorate’s overall choice in a referendum. Nor will changing social attitudes, whatever that means, or the state of EU-UK relations provide meaningful evidence of the likely constitutional choice of northern voters. The judges never even attempt to show how their ill-defined factors can be linked to vote intention in a constitutional referendum. They seem to have no idea how far removed or completely irrelevant are these factors to the assessment that the Secretary is legally obliged to make. It is simply not good enough for the court to identify an open-ended set of factors that the Secretary will have to consider; it must also specify the causal or logical mechanisms that allow a well-grounded and sensible generalization from these factors to the electorate’s overall choice about constitutional change. The court is silent on these mechanisms. Put differently, the court sees the “other factors” as composing the entire corpus of official knowledge about the north that the Secretary possesses, but it leaves unanswered the critical legal question of what directly ties any of the factors to a collective referendum choice. Exactly how do these amorphous factors become material evidence in the Secretary’s mandated task of assessing a likely majority? In the end, the court empowers the Secretary to make up a story—any story—about evidential worth.
Colm O’Cinneide, Faculty of Laws, University College London, illustrates another severe implication of the court (and NIO) misclassifying the border poll decision as a political judgment. According to him, the court rulings mean that the Secretary’s order for a constitutional vote is essentially “a judgement call about political conditions” (O’Cinneide, 2021, p. 411n4). And this characterization means in turn that instead of calling a border poll when there is a likely majority for unity, the Secretary should exercise judgment and wait until there is a clear, stable, consistent and persisting majority. O’Cinneide does not specify what he means by a clear and stable majority, but it is undoubtedly a trigger significantly higher than that of a likely majority. Here, O’Cinneide expressly uses the court position as a pretext for undermining the majority consent provisions of the Agreement and reducing if not eliminating the prospect of a border poll.
Characterizing the Secretary’s order for a border poll as a judgment about “political conditions” also invites the question as to which political conditions are being judged. The NIO’s position is that the border poll assessment includes judgments about “continued support for the devolved administration, the principles and the structures and institutions that are underpinned within the Belfast Agreement and its successors”. It also involves making a judgment about whether people support changes “to the foundations that underpin all that stability that has been achieved from the Belfast agreement and thereafter” (NIO, 2018, para. 26.)[16] This view of the conditions being judged is a wholly unjustifiable expansion of the Secretary’s mandatory duty under the GFA, which authorizes the assessment of only a single condition: if there is likely majority support for a united Ireland. Neither the High Court nor the Appeal Court explicitly disputes the NIO’s alarming enlargement of the Secretary’s remit. On the contrary, the courts’ labelling the judgment as “political” and their long list of “other factors” to be considered, seem to allow the Secretary to make the border poll decision about not just whether there is a likely majority for Irish unity, but also about whether there is popular support for undermining all the devolved institutions and disrupting political stability. The Secretary is unlikely ever to make that kind of judgment call, which rules out an order for a constitutional vote.
To end this section, let me return to an issue mentioned at the beginning. A root problem with the NIO and court interpretation is the undue emphasis it places on maximizing the Secretary’s flexibility in assessing a likely majority. Some degree of flexibility is understandable: the Secretary may, for instance, need to assess a series of opinion polls or election results with mixed evidence about the existence of a likely pro-unity majority. But the term “flexibility” is a gross understatement of the kind of latitude that the NIO and court encourage. Their view allows the Secretary to decide what counts and what doesn’t count as evidence of a likely majority, with little thought as to relevance or quality. It also permits the Secretary to decide what weights to attach to each piece of evidence, which he may change in light of prevailing circumstances. This level of unbridled flexibility undermines the courts’ injunction that the Secretary must honestly reflect on the evidence and act with rigorous impartiality. As I said in an earlier critique of the McCord ruling: “It’s ironic that the very court judgments stressing the constraining effects of honesty and rigorous impartiality should interpret the Secretary of State’s authority as so infinitely pliable as to render those ‘constraints’ worthless” (Burke, 2021, p. 8).
The doctrine of maximum flexibility gives the Secretary arbitrary authority over ordering a border poll, which need not be triggered by robust evidence of likely majority consent to a united Ireland. The Secretary’s “mandatory duty” becomes meaningless alongside this grant of unlimited flexibility. Thanks to the NIO/court position, the Secretary has the legal capacity to cite the mystifying effects of a boundless set of indistinct “other factors” and “prevailing circumstances” as a justification for not ordering a constitutional vote despite what opinion polls or election results indicate. What really counts in triggering a border poll is not the constitutional beliefs of a likely majority of the northern electorate—not majority consent—but the whimsical political fancies of the Secretary of State.
The Missing Debate About Border Poll Criteria
The current debate about border poll criteria sees everyone discussing the relevance of census demographic data, election results and opinion polls. On the one hand, this focus confirms the fair and reasonable reading of the Agreement’s provisions on the mandatory duty to order a poll. It takes the three conventional indicators of majority consent to continued union and applies them to measuring likely majority consent to Irish unity. On the other hand, the debate appears curious in light of the NIO and court interventions. It’s primarily concerned with the criteria that the McCord ruling marginalizes, and relatively unconcerned with the “other factors” and “prevailing circumstances” that the NIO and court prioritize. Two recent LucidTalk surveys in the north, in May and October 2025, typify the general nature of discussion about border poll criteria (LucidTalk, 2025a & 2025b). The surveys ask respondents what criteria they think the Secretary of State should consider in deciding to call a border poll. Of the 17 criteria the two surveys present to respondents, 16 concern evidence linked to election results, opinion polls or census demographic data—the very evidence that the NIO/court position trivializes. The one exception is a question in May 2025 asking if respondents think the Secretary should consider a civic society consensus in favour of holding a constitutional vote, which could be linked to the NIO’s view of other factors. None of the criteria asks about any of the prevailing circumstances that the court deems central to the Secretary’s decision-making.
Relatedly, much of this discussion focuses on evaluating the adequacy of evidence from census demographic data, election outcomes and opinion polls. The consensus is that each of these historical indicators has notable weaknesses as evidence of likely majority support for a united Ireland. Census data are flawed because there is an imperfect relationship between religion and constitutional preference, in that a person’s religion is no guarantee of how that person will vote in a future border poll. In elections, people vote for very many different reasons, and it would be difficult to derive from any electoral outcome a specific mandate for ordering a constitutional vote. Opinion polls have variable quality, use different sampling and interviewing designs that yield different results, represent only a snapshot of views at a particular time, and cannot fully account for the way vote intentions may change in the course of a border poll campaign (White, 2020 & 2025; Working Group, 2021; O’Malley, 2023).[15]
The discussion of border poll criteria offers no corresponding assessment of the evidential quality of the “other factors” that the NIO and court favour. Bill White, managing director of LucidTalk, points out the shortcomings of opinion polls as a measure of a likely majority, and concludes that polls should be an important but not the sole criterion of the Secretary’s decision to hold a constitutional vote. He says that other criteria should be considered too, including “views of local business organisations, civic society, and the churches and so on” (White, 2025). White, then, is aware of some of the factors that the NIO privileges, but does not appraise their suitability as evidence. Rather, he seems to accept at face value the credibility of evidence from other criteria. White is mistaken. If there were any comprehensive, comparative evaluation of different kinds of evidence, it would surely conclude that representative data from elections and surveys especially—with all their imperfections—are unquestionably superior to the anecdotal, indirect or irrelevant information from the “other factors.” The most complete but still limited study examining the relative worth of different forms of evidence of a likely majority for Irish unity comes to this conclusion . . . sort of.
The Working Group on Unification Referendums discerns six primary sources of evidence that the Secretary should consider: “votes cast in elections”, “seats won in elections”, “votes held in the Northern Ireland Assembly”, “results of opinion polls and surveys”, “demographic data”, and “qualitative evidence of views in different parts of the community”(Working Group, 2021, para. 8.45). Like LucidTalk and our fair and reasonable reading of the GFA, the Working Group is centrally concerned with evidence from elections, polls and the census. But it also examines “qualitative evidence”, including the factors that the NIO identifies: the information the Secretary gathers in routine interactions with political representatives, the public, and organizational leaders.
The Working Group declines to attach precise weights to each source of evidence, but nevertheless values some sources over others. It cautions against using demographic data, which on their own provide “only weak and contextual information” about likely majority support for a united Ireland (para. 8.90). But generally, it prefers quantitative to qualitative evidence:
If election and survey results consistently showed majorities for parties supporting early unification and for unification itself, or if the Assembly expressed the view that a majority would vote for unification, it would be difficult for the Secretary of State to justify not calling a referendum on the basis of qualitative evidence alone. . . . While qualitative evidence could be valuable, . . . it could only reasonably be used to supplement other, more quantitative sources (para. 8.89).
And it notes that: “High-quality survey and polling work could offer the most robust evidence as to current attitudes on the unification question” (para. 8.90). The Working Group concludes, as does White, that in deciding to order a border poll, the Secretary should use “multiple sources of evidence” in order to reach “a balanced overall judgment” that is sensitive to context (paras. 8.90 & 8.91, respectively).
The Working Group’s comparative assessment of border poll criteria is, for the most part, eminently reasonable, especially its rating of quantitative evidence as superior to qualitative information, and its identification of rigorous opinion surveys as key criteria. Its most serious limitation is the deficient examination of the NIO and court position on the Secretary’s use of evidence in ordering a constitutional vote.
The Working Group’s diligent assessment of diverse sources of evidence inexplicably leaves out the “other factors” that the Appeal Court highlights in the McCord case. As discussed above, the court enumerates examples of “prevailing circumstances at any given time” that somehow inform the Secretary’s judgment of a likely majority for unity. This gap in the Working Group’s analysis of evidence leaves unsolved the mystery as to exactly how economic performance measures, tax structures and trading relations with Europe are linked to the northern electorate’s collective decision in a border poll.
The Working Group also fails to analyze the striking incongruity between its evaluation of evidence and the court’s assessment. The Working Group justifiably values quantitative over qualitative evidence. But the court explicitly disagrees, arguing that the vague and murky set of “other factors”—which the Working Group labels qualitative evidence—may enable the Secretary to ignore or otherwise devalue hard evidence from opinion polls or election results showing a likely majority for a united Ireland. It’s difficult to understand why the Working Group does not address this startling disjunction in the evaluation of sources of evidence, which goes to the very heart of the role of majority consent in the process of constitutional change.
Finally, the Working Group accepts too easily the NIO’s and court’s assertion that the order for a border poll is a political judgment and, like them, places too much value on maximizing the Secretary’s flexibility in fulfilling his mandatory duty over a constitutional vote. This uncritical endorsement of two highly dubious elements of the NIO/court view hampers the Working Group’s understanding of the unwarranted authority the Secretary wields.
Overall, the current discussion of border poll criteria helps to sustain the myth of majority consent. It fails utterly to comprehend that the NIO and court view diminishes the place of majority opinion in the process of constitutional change.
Conclusion
The NIO and court interpretation of the constitutional provisions of the GFA may portend a coming crisis in which an obstinate Secretary of State refuses to order a poll when there is concrete evidence of likely majority consent to a united Ireland. To assess the prospect of such a potentially divisive impasse, we can examine trends in the three historical indicators of majority consent.
Demographic change is difficult to predict, but confident expectations of an imminent or inevitable Catholic majority in the north seem questionable. A study of the 2021 northern census echoes the current orthodoxy among demographers that the north faces a communal deadlock that will not resolve the constitutional question. Contemporary demographic trends suggest that the Catholic community is plateauing and may enter a phase of gradual decline, which points to “one of the more stubborn realities of contemporary Northern Ireland, namely that wherever the solution lies to the region’s perennial cultural and political stalemate, it is unlikely to be found in the realm of demography” (Coulter, Flaherty & Shirlow, 2023, p. 62). Even more fanciful than predictions of a Catholic majority are assertions that constitutional change would proceed automatically from demographic change, once a favourite Sinn Féin theme. A Catholic majority in the north, however doubtful, does not ensure a referendum victory for a united Ireland because not all Catholics prefer reunification. Even though the number of Catholics supporting Irish unity has steadily risen over the past decade, that number remains far below 100 percent.[17]
If demographic change alone is unlikely to produce (or preclude) constitutional change, will election results soon yield a nationalist majority in favour of a united Ireland? There is no evidence of electoral growth to suggest that nationalist parties will soon form a majority in the northern legislature. The percentage of Assembly seats and votes won by nationalist parties is the same now as it was in 1998 (Tonge, 2022; ARK, no date). But a majority could emerge if Alliance MLAs were to cooperate with nationalists in supporting, say, an Assembly motion in favour of holding a border poll or endorsing reunification. Combined, the nationalist bloc and Alliance received a majority of votes and seats in the 2022 Assembly election. Westminster also offers the possibility of a cross-party northern majority in favour of a united Ireland. In the general elections of 2019 and 2024, Sinn Féin, the SDLP and Alliance won 10 of 18 northern seats and over 50 percent of northern votes. The main question is whether Alliance would join with nationalists in the Assembly or at Westminster to form a majority of northern representatives supporting new constitutional arrangements. Certainly, signs of change in Alliance abound. Since Brexit, Alliance party supporters in the electorate are abandoning the option of continued union with Britain and increasingly expressing a preference for a united Ireland (Burke, 2024). The authors of a recent book on Alliance find that official party members display a similar post-Brexit pattern of rising preference for constitutional change. There are now more party members who support a united Ireland than who favour remaining in the UK, which is a remarkable reversal of where members traditionally stood on the constitutional question. The authors also show that a majority of members think that a border poll will be and should be held within the next decade, and that a united Ireland will eventually happen. The authors, nevertheless, dismiss the prospect of a party majority emerging for any constitutional option, and conclude that Alliance is unlikely to change its stance on the issue: “the current position of neutrality will be maintained for the foreseeable and, in probability, forever” (Tonge et al., 2024, p. 103). Others are not so sure that a pro-unity coalition is unlikely because of Alliance’s determination to remain formally neutral on the constitution. Political scientist Niall Ó Dochartaigh finds that the new non-unionist majority in the Assembly has Alliance (and the Green Party) voting with nationalist parties across a wide range of issues. Alliance support has not yet extended to the constitutional issue, but he does not dismiss the possibility that it could (Ó Dochartaigh, 2021 & 2022).
Opinion polls, our third historical indicator, likewise demonstrate that the GFA’s trigger condition of likely majority consent to Irish unity could be met. Northern Ireland Life and Times surveys find that, since Brexit, overall support for Irish unity in the north has increased from 22.4 percent in 2017 to 36 percent in 2024, and support for continued union has declined from 54.7 percent to 42.5 percent. The surge in support for a united Ireland is particularly noticeable among the youngest cohort of voters aged 18 to 24. If the current overall trends in constitutional preference persist—admittedly a difficult task—a 51 percent majority for a united Ireland will emerge by February 2030 (Burke, 2025c).
The Secretary of State may well have to deal with compelling evidence of likely majority support for a united Ireland that, according to the GFA, should legally oblige him to order a border poll. But the NIO and court position overturns this constitutional provision, with the result that the Secretary could legally brush aside such evidence and not call a vote. In this case, holding a border poll will probably require a sustained political campaign. Could supporters of Irish unity mobilize politically to apply sufficient pressure on the Secretary/British government to force a constitutional vote? The first step in such a campaign should be for advocates of reunification to acknowledge and address the extent to which the NIO and courts have eroded the central place of majority consent in the process of constitutional change.
Notes
[1] I address the various roles of majority consent in the Constitutional Issues section of the Agreement, including Annexes A and B. I do not examine the cross-community consent mechanisms in the Strand One provisions, which qualify the place of majority opinion in the operation of the north’s governance institutions.
[2] The Agreement does not explicitly require that a border poll be held in the south, but it is strongly implied. The High Court in the McCord case notes that:
It is clear that a border poll in Northern Ireland to produce the outcome of a united Ireland would have to be replicated by a poll in the Republic of Ireland producing a concurrent expression of a majority wish in the Republic to bring about a United Ireland. In effect if not de jure there would have to be an agreement between the UK and the Republic to have parallel polls in each jurisdiction” (NIQB 106, 2018, para. 5).
The Working Group on Unification Referendums on the Island of Ireland concurs, arguing that “our view is that the Irish government is required as a matter of Irish constitutional law to hold a unification referendum in the South if a unification referendum in the North is passed” (Working Group, 2021, para. 4.32).
[3] With apologies to Ivor Jennings. In his liberal-imperialist critique of majority rule and the doctrine of self-determination, Jennings says: “the people cannot decide until somebody decides who are the people” (Jennings, 1956, p. 56). Jennings was not only a constitutional scholar but a constitution-maker, whose influence extended across decolonizing areas of the former British empire. His preference for elite engineering over democratic consultation in the making of constitutions, and his misplaced faith in British goodwill and practicality, considerably weaken his position on self-determination (Kirby, 2019). Too often, as in Ireland, the British in conjunction with a handful of unrepresentative local notables defined “the people” in self-serving and undemocratic ways in which coercion played a major role.
[4] Schedule 1 of Annex A of the Agreement lays out the Secretary’s powers over ordering a border poll. Paragraph 1 on discretionary authority says:
[3] With apologies to Ivor Jennings. In his liberal-imperialist critique of majority rule and the doctrine of self-determination, Jennings says: “the people cannot decide until somebody decides who are the people” (Jennings, 1956, p. 56). Jennings was not only a constitutional scholar but a constitution-maker, whose influence extended across decolonizing areas of the former British empire. His preference for elite engineering over democratic consultation in the making of constitutions, and his misplaced faith in British goodwill and practicality, considerably weaken his position on self-determination (Kirby, 2019). Too often, as in Ireland, the British in conjunction with a handful of unrepresentative local notables defined “the people” in self-serving and undemocratic ways in which coercion played a major role.
[4] Schedule 1 of Annex A of the Agreement lays out the Secretary’s powers over ordering a border poll. Paragraph 1 on discretionary authority says:
The Secretary of State may by order direct the holding of a poll for the purposes of section 1 [to determine the constitutional wish of a majority of people].
Paragraph 2 on mandatory duty says:
the Secretary of State shall exercise the power [to order a poll] ... if at any time it appears likely to him that a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland” (my emphases).
See also the High Court’s discussion that differentiates the Secretary’s two powers (NIQB 106, 2018, paras. 18-20).
[5] A Farage government may also help to invigorate discussion of the Secretary’s mandatory duty, if it has the expected effect of increasing support for Irish unity in the north, including among middle ground voters who would be repelled by Farage’s xenophobic and regressive policies.
[6] 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 or paragraph number of direct quotations.
[7] The main exception is Colin Murray, reader in law at Newcastle University, who is concerned with the wide latitude that the courts have granted to the Secretary of State regarding the mandatory duty to order a border poll (Murray, 2020 & 2021). Political scientist John Coakley is a partial exception. His work is contradictory, sometimes emphasizing the role of northern (and southern) public opinion in constitutional change (2017), and sometimes minimizing it in favour of British and Irish “locks” on the path to a united Ireland (2015, p. 51) or the play of British interests in larger geopolitical developments (2020).
[8] In their critique of the resurgence of parliamentary sovereignty in the north, McCrudden and Halberstam cite Dicey’s classic definition of the doctrine:
[5] A Farage government may also help to invigorate discussion of the Secretary’s mandatory duty, if it has the expected effect of increasing support for Irish unity in the north, including among middle ground voters who would be repelled by Farage’s xenophobic and regressive policies.
[6] 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 or paragraph number of direct quotations.
[7] The main exception is Colin Murray, reader in law at Newcastle University, who is concerned with the wide latitude that the courts have granted to the Secretary of State regarding the mandatory duty to order a border poll (Murray, 2020 & 2021). Political scientist John Coakley is a partial exception. His work is contradictory, sometimes emphasizing the role of northern (and southern) public opinion in constitutional change (2017), and sometimes minimizing it in favour of British and Irish “locks” on the path to a united Ireland (2015, p. 51) or the play of British interests in larger geopolitical developments (2020).
[8] In their critique of the resurgence of parliamentary sovereignty in the north, McCrudden and Halberstam cite Dicey’s classic definition of the doctrine:
Parliament has ‘the right to make or unmake any law whatsoever; and further, no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament’. (McCrudden & Halberstam, 2017, p. 38).
[9] To be fair, I should note that the authors realize that political pressure may be more important than legal compulsion in the Secretary triggering a border poll. But their discussion of this issue is marred because they sometimes conflate the discretionary power and legal duty to order a poll (Harvey & Bassett, 2019).
[10] The Working Group is quoting from the Appeal Court’s ruling in the McCord case. Bassett and Harvey also seem reassured by the court references to honesty and rigorous impartiality (Harvey, 2021; Bassett & Harvey, 2022).
[11] The Northern Ireland Act incorporates elements of the Agreement into British domestic law. Throughout the paper, I emphasize the NIO’s and court’s interpretation of the GFA rather than the Northern Ireland Act, recognizing, as the court does, that the language on the Secretary’s authority over ordering a border poll is in effect exactly the same in both documents (NICA 23, 2020).
[12] Justice Humphreys in his book Countdown to Unity gives essentially the same description of the Secretary’s mandatory duty to order a border poll (2009, p. 122).
[13] On the importance of constitutional reciprocity in the debate about a united Ireland, see Humphreys (2009 & 2018).
[14] The Appeal Court has two slightly different explanations of why the Secretary’s border poll judgment is political (NICA 23, 2020, paras. 63 & 80). The one element common to both explanations is that the Secretary is a politician, which makes his decision political. I call this reasoning the court’s main rationale because it appears in both explanations.
[15] Political scientist Padraig O’Malley’s discussion of the evidence that the Secretary could use is severely weakened by his constant confusion of majority support as the trigger for ordering a border poll and majority support as the threshold for winning a border poll. It also suffers from his dogged pursuit of establishing a system of unionist privilege in which unionists would have a veto over both the calling and winning of a constitutional vote (O’Malley, 2023). I examine in the body of the paper White’s and the Working Group’s assessments of evidence.
[16] The NIO is quoting former Secretary of State James Brokenshire. His views are constantly and approvingly reiterated in the NIO’s affidavit (paras. 11 & 15).
[17] The Northern Ireland Life and Time surveys show that the number of Catholics saying they would vote for Irish unity should a border poll be held tomorrow has increased from 49 percent in 2017 to 68 percent in 2024 (Burke, 2025c).
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⏩ Mike Burke has lectured in Politics and Public Administration in Canada for over 30 years.
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