In the 2016 EU referendum, 58% of voters in Northern Ireland voted to remain in the EU. This result, and the continuing uncertainty over the impact of Brexit on the Irish border, has led to calls to revisit the constitutional future of Northern Ireland.
The Good Friday Agreement (also known as the Belfast Agreement) recognises the right of the people of the island of Ireland to bring about a united Ireland, subject to the consent of both parts. Therefore, in order for Irish reunification to take place, border polls must be held in Northern Ireland and the Republic of Ireland.
A border poll is the term for a referendum on Irish reunification. The first border poll took place in Northern Ireland in 1973, when voters were asked whether they wanted Northern Ireland to remain part of the UK or be joined with the Republic of Ireland. 99% voted in favour of remaining in the UK. However, the poll was boycotted by most of the nationalist community; turnout was only 59%.
The Good Friday Agreement states that consent for a united Ireland must be “freely and concurrently given” in both the North and the South of the island of Ireland. This is widely interpreted to mean that future border polls must be held in Northern Ireland and the Republic of Ireland at the same time.
As part of the Good Friday Agreement, an explicit provision for holding a Northern Ireland border poll was made in UK law. The Northern Ireland Act 1998 states that “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”, the Secretary of State shall make an Order in Council enabling a border poll.
It is not clear exactly what would satisfy this requirement. The Constitution Unit suggests that a consistent majority in opinion polls, a Catholic majority in a census, a nationalist majority in the Northern Ireland Assembly, or a vote by a majority in the Assembly could all be considered evidence of majority support for a united Ireland. However, the Secretary of State must ultimately decide whether the condition has been met.
The Order in Council must specify the details of the poll, including the date, franchise, the question and “any other provision about the poll which the Secretary of State thinks expedient”. The referendum would be regulated under the UK’s Political Parties, Election and Referendums Act 2000 and overseen by the UK Electoral Commission, which would have a statutory duty to assess the “intelligibility” of the referendum question.
The legislation stipulates that a secretary of state may not make provision for a border poll within seven years of a previous poll.
The Good Friday Agreement does not specify a parallel mechanism for triggering a border poll in the Republic of Ireland. The country’s constitution does however contain a provision for two types of referendum: a constitutional referendum and an ordinary referendum.
A constitutional referendum must be held on any amendment to the constitution, which must first be passed through both chambers of the Oireachtas – Irish Parliament.
An ordinary referendum can be held on a proposed bill if at least half of the members of the upper house and a third of the members of the lower house of Parliament object to the proposal, and the President refuses to sign the bill on this basis.
However, neither of these procedures seem appropriate for a border poll as the Good Friday Agreement implies that it would be held on the principle of reunification, before negotiations take place and a concrete proposal can be put in legislation. It is therefore not entirely clear how a referendum in the Republic of Ireland would be held at this stage.
This is further complicated by the fact that once negotiations for a united Ireland are concluded, implementing the outcome of the negotiations would require a constitutional amendment in the Republic, and therefore another referendum.
Therefore, either two referendums would need to be held: the first an extra-constitutional referendum on the principle of reunification and the second to approve a constitutional amendment. This begs the question of whether two referendums should also be held in the North.
Alternatively, the border polls in Northern Ireland and the Republic of Ireland would need to take place at different times, but this is potentially contrary to the Good Friday Agreement.
If both Northern Ireland and the Republic of Ireland voted in favour of reunification, the Good Friday Agreement states that it “will be a binding obligation on both governments to introduce and support in their respective parliaments legislation to give effect to that wish”.
Before this can be done, the exact terms of reunification would need to be worked out. One important question would be whether separate arrangements were retained for Northern Ireland, or whether the six counties of Northern Ireland would be fully integrated into the unitary Irish state.
In August 2017, a joint committee of the Irish Parliament suggested that the Northern Ireland Assembly could continue as a devolved regional parliament within Ireland.
It also suggested that the intergovernmental British-Irish Council could continue, allowing for an ongoing British role in the matters of Northern Ireland to reassure the unionist community.
These recommendations had cross-party support in the committee and built on proposals previously made by the nationalist Social Democratic and Labour Party (SDLP) in Northern Ireland.
Sinn Féin supports holding a border poll; in February 2019, party leader Mary Lou McDonald said that there would be “democratic imperative” to hold a referendum on reunification in the event of no deal. The other main nationalist party, the SDLP, has warned against holding a vote before plans on how a united Ireland would work are in place.
The unionist parties, including the Democatic Unionist Party (DUP) and Ulster Unionist Party (UUP), oppose a vote on reunification. DUP leader Arlene Foster dismissed the prospect as part of “project fear” in February 2019. Naomi Long, leader of the cross-community Alliance Party, has said she is potentially open to a referendum on Irish unity, but that now is “not the right time”.
In Westminster, the UK Government’s position is that the conditions for a referendum have not been met. The Shadow Secretary of State for Northern Ireland, Tony Lloyd also expressed scepticism that a border poll is appropriate at his time.
The Irish Government has also taken the position that the time is not right for a border poll. In February 2019, Irish Taoiseach Leo Varadkar suggested a poll at this point “only serves to sow divisions”.
Data from the Northern Ireland Life and Times Survey has consistently shown, at least up to 2017, that Irish reunification is supported by no more than a quarter of voters. A majority favour a resumption of devolution.
In March 2019, the Irish Times/Ipsos MRBI poll found that just 38% of the Northern Ireland public thought there should be a referendum on Irish reunification, while 45% thought there should not be. If there were a referendum now, 45% said they would against unity, and 32% said they would vote in favour, with the remaining 23% responding ‘don’t know’.