A border poll can be held at any time – redux

With border polls remaining a major topic of conversation, particularly following today’s Sunday Times/Lucid Talk reporting of a poll which found that a majority of voters in Northern Ireland wish a border poll to be held within the next five years, I still find that there remain widespread misconceptions around the Secretary of State’s powers to call a border poll. In particular, people still seem to think that the Secretary of State has no discretionary power to call a border poll; instead that he must be satisfied that a border poll would be likely to pass. Another misconception is that the calling of a border poll would trigger a mechanism whereby a further border poll would occur automatically every seven years.

I wrote to address these first back in 2017. That article was based not upon legal knowledge (I have no legal qualifications and my knowledge of the law is accordingly feeble), but upon a straightforward reading of the Schedule 1 of the Northern Ireland Act, 1998.

To recap, it is easy to see by reading the text, both in the legislation and in the Annex A of the Belfast Agreement 1998, that the only constraint on the Secretary of State’s power to call a border poll is in paragraph 3, which limits the frequency at which border polls may be held under the Act. The legislation’s authors chose not to codify any other limits to the Secretary of State’s powers.

Furthermore, the incidence of the first border poll under the Act triggers a seven-year timer. While the timer is active, the Secretary of State has no discretion or obligation to call a further poll. Once the seven-year period has elapsed, this prohibition ends and the Secretary of State’s discretion and obligation are re-activated, just as they are now. It is often claimed that when this time period elapses that a further poll would occur, but this is not what the legislation says : instead, we would be back at the point where the Secretary of State would not call a poll in the absence of circumstances that he feels require one.

In the previous article, I also noted that the Secretary of State’s powers in this regard were not an innovation of the Agreement in 1998. They were, more simply, an overhaul of powers to call a poll that were first enacted in 1972. The Agreement’s novel contribution to the law here was to create an obligation upon the Secretary of State to call a poll should certain circumstances arise; in effect, a codification of what was, and still is, UK government policy on the matter. It stands to reason, after all, that the UK government would not act to dilute discretionary powers that the Secretary of State already held.

In reiterating these observations it is important also to take note of a number of significant public contributions in support of this interpretation of the law that have taken place since then.

In April 2018, the High Court ruled against Raymond McCord, who brought a judicial review attempting to compel the Secretary of State to publish the government’s policy around when it would call a border poll. As part of that ruling, the court highlighted the clear distinction between the discretionary aspect of the Secretary of State’s power and obligation upon the Secretary of State to invoke it should certain circumstances arise. In paragraph 18, on page 11, Justice Girvan confirms (my emphasis) :

In the present case the Secretary of State is given a discretionary power to order a border poll under Schedule 1 paragraph 1 even where she is not of the view that it is likely that the majority of voters would vote for Northern Ireland to cease to be part of the United Kingdom and to become part of a united Ireland […] the discretionary power as opposed to the mandatory duty to call a poll could be exercised by the Secretary of State for a number of different reasons and in different circumstances.

For example, the Secretary of State could call a poll in order to give a quietus to the controversial question of a united Ireland for a period of time if she thinks that a majority would vote in favour of remaining in the United Kingdom.

She could direct such a poll if there was a doubt in her mind as to whether a majority was to be found on one side or the other.

She could decide to call such a poll if persuaded by political representatives that it would be desirable to sound the people out on the issue or to close the issue for a number of years.

The precise circumstances and the political context of a decision are variable and highly political.

Later, Mr McCord sought to appeal the ruling’s denial of his claim, with the ruling on appeal being handed down in April 2020, with Justices Stephens, Treacy and Colton upholding the 2018 ruling. On the topic of the Secretary of State’s powers, they reiterated (my emphasis) :

The discretionary power to hold a border poll could be exercised lawfully for a broad range of reasons, irrespective of whether the duty to do so arose and even if it was believed that a majority might vote to remain part of the United Kingdom or if there was doubt about the issue. These could include giving a quietus to the issue for a period of time. The precise circumstances and context are variable and depend upon the exercise of complex political judgments which requires flexibility.

Finally, we have the excellent analysis of the backdrop around calling a border poll published in November 2020 in an interim report from the ‘Working Group on Unification Referendums on the Island of Ireland’ established by UCL’s Constitution Unit, which consists of leading British, Irish, and American academic authorities on this topic. At 238 pages, this is a lengthy document, but I find it to be unparalleled in its meticulous and highly thorough analysis of the law, the abovementioned court cases, and the wider political and legal circumstances of this issue. Despite its length, it is written in clear English and I consider it essential reading for anyone wanting to understand this topic in detail.

The Working Group note in the chapter ‘Legal Context’, paragraph 4.22 (my emphasis) :

Schedule 1 to the 1998 Act, also prescribed by the Agreement, gives the Secretary of State for Northern Ireland the discretion to hold a unification referendum at any point. Furthermore, the Secretary of State is under an obligation to hold a unification referendum if ‘at any time it appears likely to him that a majority of those voting would express’ consent to unification. This obligation is a critical ancillary provision to the core unification principle. In the specified circumstances, the people in the North must be afforded the opportunity to give or refuse consent to unification. If a referendum is held but it does not lead to unification, at least seven years must elapse before another such referendum is held.

In paragraph 8.16 they also add:

As set out above, the Secretary of State has a wide discretionary power to call a referendum. This point is sometimes skated over by commentators and political figures, but it is clear in the text of the Agreement and the Northern Ireland Act. In the High Court judgment on the McCord case, the judge, Sir Paul Girvan, expressed the discretion in very broad terms [..]

In summary, I hope that we can put this matter to bed. The Secretary of State can hold a border poll at any time, and this has now been confirmed by four senior judges and a 12-strong panel of leading academic experts in British and Irish constitutional law and public policy. Rather than reaching for legal defences or claims that the GFA is not being honoured, I hope that we can now, instead, address this matter in the political context.

“Hard border and medical shortages in no-deal crisis” by Tiocfaidh ár lá 1916 is licensed under CC BY-ND

Brendan Heading

centre-leftish waffler working in IT and living in Belfast

Alliance, but writing in a strictly personal capacity.