The Good Friday Agreement (GFA) is very clear on the threshold for a referendum on Irish unity passing. The Agreement states in both its Constitutional Issues section and again in the Agreement between the two Governments that the parties ‘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; [author’s emphasis]. The British legislation repeats this formulation saying ‘It is hereby declared that Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland’.1Northern Ireland Act 1998, section 1(1). It would therefore be a serious breach of a core provision of the GFA, passed overwhelmingly by referenda north and south, if a higher threshold was to be introduced, or if a majority was defined as being of all registered voters, whether they voted or not. A majority vote on a united Ireland, is therefore a core provision of an international treaty lodged with the United Nations.
The fact that a separate majority would be required in NI, and not simply on the island as a whole, was a significant shift from the traditional Irish nationalist position, which was widely discussed in 1998 before the referenda on the GFA. In May 1994 in the lead up to the ceasefires the British Government in a formal statement from the Northern Ireland Office stated that the ‘wish of a greater number of the people of Northern Ireland would be determined by a numerical majority of those validly voting in a poll fairly and explicitly organized for this purpose’.2See This clarity on how a majority is defined is affirmed in the GFA and the UK’s Northern Ireland Act 1998 which states that NI shall not cease to be part of the UK ‘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” [author’s emphasis].3GFA Draft clauses/schedules for incorporation in British legislation 1 (1) and 1(2) Therefore it is absolutely clear, that a simple majority of those who validly vote in the poll set out in the GFA and UK legislation is the threshold for a decision. This interpretation of the GFA has been supported by among others Justice Richard Humphries in Ireland and the broadly based Working Group convened by the Constitution Unit of University College London.4Richard Humphries (2018), Beyond the Border: The Good Friday Agreement and Irish Unity after Brexit. Irish Academic Press; University College London (UCL) (2021) Working Group on Unification Referendums on the Island of Ireland, pp 71 and 199-200. https://www.ucl.ac.uk/constitution-unit/sites/constitution-unit/files/working_group_final_report.pdf
Even if the GFA had not set this aspect of the process out so clearly, it is still the most appropriate way forward. The entire peace process was based on parity of esteem between those who are Irish identified and those who are British identified. It would be a serious departure from the entire underlying principle of the peace process to create some sort of weighted majority which favored one side over the other. If 50%+1 is a sufficient threshold to keep NI in the UK, then it is also the threshold by which a united Ireland can be created. Procedural devices to give a de-facto greater weight to a pro-UK position such as requiring a majority of the whole population, or a majority of registered voters, are simply attempts to favour the status quo over change and would only incentivise boycotts of political debate and ultimately of the referendum itself.
The most extreme position offered in opposition to the GFA is that a certain percentage of self-defined unionists would need to support a referendum.5Seamus Mallon with Andy Pollak (2019). A Shared Home Place. Lilliput Press. This is a serious breach of democratic principle for a few reasons. Firstly, those voting for unionist political parties are no longer a majority of the population of NI. Just over 358,000 people, representing 45% of voters, supported unionist parties in the last Northern Ireland Assembly elections in 2017. Support for the three unionist parties was 344,000 (43%) in the 2019 Westminster election and 41% in recent opinion polls.6The 1995 Divorce referendum passed with 50.28% in favour; Marriage Equality (2015) passed at 62%; Abortion reform (2018) passed with 66.4% in favour. https://www.gov.ie/en/publication/32ea7-1937-2019-referendum-results/# It is also politically illogical to expect very many people who self-define politically as unionist to support a united Ireland. Likewise, it is impossible now and for the foreseeable future to reach majority support relying only on those who self-define as Irish, or who vote for Irish nationalist political parties, who also only make up around 40% of NI’s population. While any group campaigning for constitutional change will want as large a majority as possible, NI is now more politically diverse, and a majority will require a diverse group of supporters to reach the threshold in the GFA – which is a simple majority.
The precedent of the 1998 referenda on the GFA and the precedent of all referenda in Ireland also supports a decision by a majority of those who vote. If a two thirds majority was required in referenda in Ireland, the constitutional changes on divorce, on marriage equality and on abortion rights would not have proceeded. A higher threshold, by definition, favours the status quo. While opinion polls suggest that the GFA was supported by a majority of Protestants in NI, it was probably opposed by a majority of those self-defining as unionist.
International precedent also strongly favours a simple majority decision making rule. Matt Qvortrup summarises the international experience; ‘Of the 27 referendums on reunification that have taken place from Saarland in Germany through to Sylhet in present-day Bangladesh, the referendums were decided by a simple 50-percent-plus-one basis. The only exception to the rule was the two-round referendum in Newfoundland in 1948 on whether to join Canada’.7Matt Qvortrup, “The Perils of Referendums: A Review.” Irish Studies in International Affairs, vol. 32, no. 2, 2021, pp. 166–178, p.173. The University College London report also states that the 50% + 1 threshold was fundamental to the GFA, as reaching this agreement in 1998, including the power-sharing executive, would not have been possible if any other threshold had been proposed, and also that a simple majority is a ‘requirement of the underlying principle of equal treatment of the options on the ballot paper’.8UCL Final Report, para 11.18 and 11.19
The explicit language of the GFA, passed by clear majorities north and south, the language of the international treaty between Ireland and the UK, precedent, parity of esteem and democratic principle, all support a decision rule by a majority of those who vote in each of the two referenda north and south. Of course, those who are seeking a united Ireland, would naturally want the largest possible majority but that is an entirely separate matter from the legal rule for a positive decision.
© John Doyle