Who can vote in referenda on Irish unity?

In Northern Ireland, the 1998 Northern Ireland Act, states that the Secretary of State for NI must set out the franchise for the poll when calling it. There is no guidance in that Act as to what the franchise should be. McCrudden, Doyle and Kenny have explored the key legal issues involved and advised against any attempt to create a special franchise rule, just for a referendum – suggesting that the Northern Ireland Assembly franchise would fit with precedent in the UK and with international norms.1McCrudden, Christopher, Oran Doyle, and David Kenny. “The Franchise in Irish Unification Referendums.”; Irish Studies in International Affairs 32, no. 2 (2021): 183-213. While the UK could define who could vote without using an existing rule, if there was any attempt to seek to restrict the voting rights of people who may be deemed to be more likely to support a united Ireland, that would be a serious breach of the UK’s obligations under the GFA to exercise power ‘with rigorous impartiality on behalf of all the people in the diversity of their identities and traditions’.2GFA, Agreement between the two governments Article 1(v).

Using the NI Assembly franchise leaves two significant issues to resolve, ideally, as McCrudden et al. suggest, well before any referendum would be called: the age at which people can vote, and nationality restrictions. Unlike Scotland and Wales, the Northern Ireland Assembly does not control its own electoral system, because of the history of gerrymandering and discrimination under Stormont up to 1972. The rules are set by Westminster. However, NI is now out of step with Scotland and Wales, where those aged 16 and 17 can now vote. There are strong arguments that getting young people used to voting at a slightly younger age helps to promote active citizenship. Like most of Western Europe, those under 25 in NI are much less likely to vote than older people. This electoral change should be made for its own sake. It would be relatively neutral in its impact on a unity referendum. There are, compared to older cohorts, fewer self-defining unionists in the 18 to 25 age cohort according to surveys and that is likely to be true too for 16 and 17
years olds. But unionism has a bigger problem with low voter turnout, so have more to gain from more active citizens. Therefore, extending the vote for Assembly elections to those aged 16 and over has the potential to be a consensus issue, but unfortunately, it is highly unlikely to be.

The second franchise issue to resolve in NI is the right to vote of long-term residents of NI, who are not Irish or British citizens. Commonwealth and EU citizens resident in NI could (until now) vote in local government and Assembly elections, as long as they were resident for the entire three month period prior to polling day, but non-EU/non-Commonwealth could not vote regardless of long they lived there. The voting rights of EU citizens in Assembly elections is one of the many aspects of Brexit still to be resolved. It was not covered in the Withdrawal Agreement and the UK Government has indicated it will seek to make bi-lateral arrangements with individual states. The ‘people of Northern Ireland’ is capable of many definitions; narrowly defined, it could be just British and Irish citizens, or it could be broadly defined as long-term residents regardless of passport held. It would, however, seem anachronistic at the very least, to allow Commonwealth citizens to vote, but not other long-term residents, apart from Irish citizens. A broad definition is more in keeping with a definition of ‘the people’ that is inclusive and recognizes a significant centre-ground that does not self-define as either Irish or British. There is no reliable research on the constitutional preferences of the relatively small population involved, but from the point of view of inclusiveness, they should be permitted to vote after some agreed period of residence.

In the Republic of Ireland, the question of who can vote in referenda on constitutional matters is clearly set out in law and is restricted to Irish citizens, who meet the residency requirements to be on the electoral register. At present British citizens can vote in Dáil and local elections but not Presidential elections or Constitutional referenda.

The Good Friday Agreement guarantees that the people of NI can identify as Irish or British or both and can hold Irish or British citizenship, or both. It also requires the Irish and British Governments to maintain this situation in the event of Irish unity. There is no explicit commitment to make any other changes in law. Many countries restrict voting rights and certain senior roles, such as leadership positions in police, military and intelligence services to citizens. However, there is a clear argument that, at the very least, voting for the head of state and constitutional change should be extended to British citizens who meet residency requirements in Ireland. Such a provision would give concrete meeting to a right to retain only a British passport in a united Ireland. It could be included as one of the enabling measures contained in the referendum in the Republic, to come into effect immediately upon the creation of a united Ireland, if the referenda are passed.

© John Doyle

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