The substantive question to be put to the people north and south is clear in the Good Friday Agreement (GFA). A binary choice will be offered to the people as to ‘whether they prefer to continue to support the Union with Great Britain or a sovereign united Ireland’.1GFA British Irish Agreement 1(i). The precise wording o the ballot paper in each jurisdiction would be a matter for each government, but it is clear from the GFA that no other options should be on the ballot paper, for example, an independent NI, or some change to devolution. The referendum should be a simple binary choice. Opinion polls that ask people to choose constitutional preferences from among a number of different options are therefore not a reliable indicator as to how people would vote when they have a choice between just the two options set out in the Good Friday Agreement.
The GFA is also explicit that a single referendum in each jurisdiction will be sufficient to create a united Ireland. If there is a positive vote in the two jurisdictions, the GFA contains ‘a binding obligation on both Governments to introduce and support in their respective Parliaments legislation to give effect to that wish’.2GFA British Irish Agreement 1(iv) In the Republic of Ireland it is likely that, as in 1998, the referendum would include provisions that would only come into effect if a referendum is also passed in Northern Ireland. It would seem very likely that this would include some provisional clauses in the Constitution to support the transition. There would almost certainly be a further all-Ireland referendum to either amend the constitution, or enact a totally new constitution, but that would legally need to take place after a united Ireland was created to allow the people of NI to play a full role. This second referendum would not need to pass to create a united Ireland and if a new constitution was defeated, a united Ireland would continue under the existing constitution, including whatever transitional clauses were added.
The Working Group established by University College London (UCL) spent some considerable time exploring the issue of holding multiple referenda and their possible phasing. They ruled out an approach that would require second referenda in each jurisdiction, in order to proceed to a united Ireland, as being incompatible with the GFA. They also strongly recommended against Brexit style referenda, with very limited detail as to what would happen next before a vote is held. Three options were set out as worthy of further debate by the UCL Report.3UCL Working Group on Unification Referendums on the Island of Ireland ( 2021), Chapter 9.
In option one of the UCL Report, a detailed plan for the substance of a united Ireland, including its structure of government and some core public policies would be set out before referenda were held. The key advantage of this approach is a certainty, as voters would have a clear map of what would happen if they voted for unity. The major difficulty, which cannot realistically be overcome, is that such a plan would have been drawn up with no likelihood of involvement by elected representatives of unionism. Civil society from unionist communities may take part in hypothetical discussions, but it is unrealistic to expect the elected representatives of the unionist community, to engage in detailed planning for something they wish to prevent before a vote is held. If after a vote, unionists did engage in negotiations, they would need to be able to secure changes to both state structures and initial public policies, so therefore the illusion of certainty offered on polling day would be quickly overturned. Therefore, this first option would neither meet the requirement of allowing the elected representatives of Northern Ireland a full and appropriate role in planning the new state nor could it really offer voters a detailed plan on what a new state would look like.
The second option explored by UCL would see the detailed process of how a united Ireland would be designed set out in advance – at least by the Irish Government even if the UK Government chose not to be involved. The referenda would make a decision on whether unity would proceed, but there would be a transitional period during which the new state would be designed, and this would take place before a united Ireland came into being. The advantage of this approach is that voters are given some information before voting about what will happen next, but it is focused on the process and not on the detail of what might be agreed upon. This would allow for full engagement by elected representatives after the decision was made. The danger of this approach is that a boycott of such discussions or a breakdown in talks could leave a political vacuum, or a prolonged, destabilising transition. Even if a date for the new state to come into being was agreed upon in advance, in the absence of political agreement during transition, some default ‘plan B’ would have to be in place to allow unity to proceed. Starting the new state in the context of boycotted or failed negotiations would be unlikely to be a good beginning.
The final option explored in detail by the UCL working group also focused on setting out the process by which the detail of a new state would be agreed upon, but that detailed process would take place after unification. A decision in the two referenda to create a united Ireland could not be reversed in subsequent negotiations, but the detail of the new state would be designed. The process to be adopted would include significant detail on the interim design of the new state which would come into operation and also key public policies such as health, and these would be introduced and remain in place until a new constitution/political structure was agreed during the early years of the new state. This option gives the best balance between providing as much information as possible to voters before referenda, while allowing a full opportunity for unionist representatives to engage in the planning of the new state at a time when they are most likely to get involved. It is this option that forms the basis of planning by the Irish Government and Oireachtas.
© John Doyle