The 1998 Good Friday Agreement explicitly envisages a possible referendum on the creation of a United Ireland. A significant section of the text of the Agreement is specifically devoted to detailing what should happen. All the participants in the talks agreed to endorse the commitment made by the British and Irish Governments that, in a new British-Irish Agreement replacing the Anglo-Irish Agreement, they will:
(i) recognise the legitimacy of whatever choice is freely exercised by a majority of the people of Northern Ireland with regard to its status, whether they prefer to continue to support the Union with Great Britain or a sovereign united Ireland; (ii) recognise that it is for the people of the island of Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right of self-determination on the basis of consent, freely and concurrently given, North and South, to bring about a united Ireland, if that is their wish, accepting that this right must be achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland; … (iv) affirm that if, in the future, the people of the island of Ireland exercise their right of self-determination on the basis set out in sections (i) and (ii) above to bring about a united Ireland, it will be a binding obligation on both Governments to introduce and support in their respective Parliaments legislation to give effect to that wish; 1GFA “Constititional Issues”
The Agreement then sets out draft clauses to be enacted in British legislation, reflecting Northern Ireland’s continuing membership of the UK and that NI ‘shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll’, and also committing that ‘if the wish expressed by a majority in such a poll is that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland, the Secretary of State shall 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.’2GFA Draft clauses/schedules for incorporation in British legislation 1 (1) and 1(2)
The GFA explicitly sets out the manner in which a referendum would be called in NI, setting out two possibilities. Firstly, the British Secretary of State for Northern Ireland “may” order the holding of a poll, at any time, provided no similar poll was held in the previous seven years. Secondly, the Secretary of State ‘shall’ exercise their power to call 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’.3GFA, schedule 1 polls for the purpose of section 1
The UK legislation passed in 1998 to give effect to the GFA, repeats precisely the wording of the GFA as to when the Secretary of State ‘may’ call a poll and ‘shall’ call a poll. It adds a requirement that an order calling a poll ‘shall specify (a)the persons entitled to vote; and (b)the question or questions to be asked.4Northern Ireland Act 1998, Schedule 1, 1.4.1. Therefore it is absolutely clear in the GFA, in the formal Agreement between the Governments of the UK and of Ireland, and in British law that, first of all, the British Secretary of State for NI may call a referendum at any time of their choosing, providing no such referendum was held in the previous seven years, and secondly, that they must by law call a referendum when they believe that a majority for a United Ireland is ‘likely’.
Because the wording on calling a referendum on Irish unity is incorporated into British law there is likely to be some role for the UK courts in reviewing this power. The British Courts have already ruled that this decision cannot be postponed purely on political grounds, or by appealing to a wider public interest. If the British Secretary of State for NI believes a majority is ‘likely’ they must call a poll. Therefore, while the evidence upon which a Secretary of State might rely is not spelt out in law or indeed in the GFA, a Secretary of State cannot ignore clear evidence and the British courts have made it clear that the British Government cannot act unreasonably in not calling a referendum.5Raymond McCord NI Court of Appeal judgement, especially para’s 77 and 82. See For example, if a majority of members of the NI Assembly called on the Secretary of State to use their powers, or if a consistent series of opinion polls showed a majority saying they would vote for unity, the courts might well intervene if a Secretary of State did not act.
The (lack of) role for the Irish Government
One aspect that is not widely appreciated, is that the GFA creates no obligation to consult the Irish Government on the calling of a referendum, notwithstanding the huge constitutional change it would represent for Ireland and the fact that Ireland is bound by an international treaty to hold a vote, ‘concurrently’ if the British Govt decides to have one. In the Agreement between the two Governments within the GFA, which has the status of an international treaty, much of the same wording is repeated as in the all-party sections of the Agreements “The two Governments:
(i) recognise the legitimacy of whatever choice is freely exercised by a majority of the people of Northern Ireland with regard to its status, whether they prefer to continue to support the Union with Great Britain or a sovereign united Ireland;
(ii) recognise that it is for the people of the island of Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right of self-determination on the basis of consent, freely and concurrently given, North and South, to bring about a united Ireland, if that is their wish, accepting that this right must be achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland;…
(iv) affirm that, if in the future, the people of the island of Ireland exercise their right of self-determination on the basis set out in sections (i) and (ii) above to bring about a united Ireland, it will be a binding obligation on both Governments to introduce and support in their respective Parliaments legislation to give effect to that wish;
While the legal detail is not set out in the same clear manner as it is for the British Government regarding the poll in NI, the GFA in referring to the right of the people of Ireland to ‘exercise their right of self-determination on the basis of consent, freely and concurrently given, North and South’, clearly implies that the vote on the creation of a United Ireland would take place ‘concurrently’ once the UK Government set a date for a poll in NI. The GFA, therefore, obliges Ireland to hold a ‘concurrent’ vote on a united Ireland, even if an Irish Government did not think the time was right. It might be hoped that the British Government would consult, but they are not required to do so under the terms of the GFA.
Neither does the GFA specify that a referendum would be called in the ROI. Under the terms of the GFA, Ireland could make that decision by a parliamentary vote. However, Article 3 of the Irish Constitution states that ‘a united Ireland shall be brought about only by peaceful means with the consent of a majority of the people, democratically expressed, in both jurisdictions in the island’. It seems likely given the precedent of votes on significant EU Treaty changes and the 1998 vote on the GFA, that the Irish Supreme would interpret that wording as requiring a referendum. It also would seem impossible to proceed, even into a transitional situation, without some changes to the Irish Constitution. In any case, it is almost certain that a referendum would be politically required, and would be called, and indeed that it would probably happen on the same day as the vote in NI.
© John Doyle