The interim report of the Working Group on Unification Referendums on the Island of Ireland, published today, concludes that referendums on the question of Irish unification should be called only with a plan for the processes that would follow. In this post, the Chair of the Working Group, Alan Renwick, sets out some of the group’s key provisional findings. The group is seeking feedback on these, in advance of its final report next year.
The Working Group on Unification Referendums on the Island of Ireland was established last year to examine how any future referendums on whether Northern Ireland should stay in the United Kingdom or become part of a united Ireland would best be designed and conducted. The group, based at the Constitution Unit, comprises 12 experts from universities in Northern Ireland, the Republic of Ireland, Great Britain, and the United States. It has no collective view on whether holding such referendums would be desirable or not, or what the outcome should be if referendums were held.
The project continues the Unit’s long history of research into referendums, stretching back to the 1996 report of the Commission on the Conduct of Referendums, whose recommendations for new legislation helped pave the way for key reforms in 2000. More recent work includes the 2018 Independent Commission on Referendums and last year’s Doing Democracy Better report. We also have a track record of examining future constitutional possibilities—such as Scottish independence or the creation of an English parliament—without taking a view on their desirability.
Why the Working Group was established
We created the Working Group because referendums on the unification question might happen in the future, and what this would involve needs to be thought through. The Brexit process has shown the dangers that can arise if a referendum is called without proper planning. Repeating that in Northern Ireland’s sensitive context would be highly unwise. Yet no such plan exists. The 1998 Belfast/Good Friday Agreement makes some key provisions, as we elaborate below. But it leaves many important points unspecified. We do not believe referendums to be imminent: the evidence is that the majority in Northern Ireland would currently support maintaining the Union. But opinion could evolve in either direction in the future.
Our starting point
The Working Group has taken the 1998 Belfast/Good Friday Agreement as its starting point: we assume that any referendums on the unification question would be conducted within its terms. The Agreement states:
it is for the people of the island of Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right of self-determination on the basis of consent, freely and concurrently given, North and South, to bring about a united Ireland, if that is their wish, accepting that this right must be achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland.
Two further basic principles have underpinned our work. First, processes of decision-making on this issue must be neutral, treating unification and the status quo equally and respectfully. Second, while, under the Agreement, the basic question of sovereignty is decided by simple majority, progress is best made in Northern Ireland when those belonging to both traditions and to none are included. That ethos should be maintained so far as possible in any process of decision-making on the unification question.
The existing legal framework
The Agreement is explicit that unification could come about only after a referendum in Northern Ireland. We conclude that a referendum would be required in the Republic of Ireland as well. That is primarily because the Constitution of Ireland would have to be amended or replaced to allow a united Ireland to respect the obligations in the Agreement on identity, citizenship, and rigorous impartiality—obligations that would continue to apply after unification.
These referendums would have to be ‘concurrent’. That does not necessarily mean that they must be held on the same day. But they would have to be on the same terms. If the Irish government wished to propose the form of a united Ireland before a referendum in the South, it would have to do so before any referendum in the North.
In Northern Ireland, the Secretary of State has discretion to hold a unification referendum at any point, and must hold a referendum if ‘at any time it appears likely to him [or her] that a majority of those voting would express a wish’ for a united Ireland. We conclude that the Irish government would be required under Irish constitutional law to hold a unification referendum in the South if a referendum in the North was passed.
The approval threshold for the vote in the North is stipulated in the Agreement as ‘a majority of the people of Northern Ireland voting in a poll’—that is, 50% + 1. In the South, approval of constitutional referendums likewise requires a simple majority.
One referendum vote in favour of unification in each jurisdiction would require unification to take place. Unification could not be made conditional, for example, on a second vote once details had been negotiated. Legislation would be required at Westminster and in the Oireachtas (the legislature of Ireland) to give effect to referendum votes in favour of unification.
Our further interim conclusions
Existing legal provisions thus cover many important points. But they also leave much unclear. How, for example, would the Secretary of State decide whether to call a referendum? Would referendums best take place before or after detailed proposals for the form of a united Ireland had been worked out? What would working out detailed proposals involve, and who would do it? Who should be able to vote? What should the question on the ballot paper be? How would the referendum campaigns be conducted? Our report addresses all these questions and more.
A range of evidence sources would be available to the Secretary of State in deciding whether a referendum in Northern Ireland had to be called, including election results, surveys, opinion polls, and any vote on the issue in the Northern Ireland Assembly. The Secretary of State must take all relevant evidence into account. We do not think it possible to define in the abstract the weight that should be attached to each type of evidence. But the Secretary of State is under both a legal duty and a political and moral imperative to act with genuine and transparent honesty and impartiality.
If a referendum were called, there would be two options on the ballot paper: a united Ireland; and the status quo. Supporters of the existing Union could propose reforms to the status quo, as happened in Scotland in 2014. But such reforms could be implemented after a vote for the Union only by consensual agreement.
If unification were to happen, meanwhile, it would be necessary to make arrangements on four matters: the constitutional form of a united Ireland; public services and policies; the terms of the transfer of sovereignty in Northern Ireland; and future British–Irish relations. The Irish government would be responsible for the first two of these items, while the latter two would require negotiation between the British and Irish governments. In all these matters, however, it would be important for discussions to be as broad-based as possible, including politicians, civil society representatives, and members of the general public from all communities.
Such matters could be addressed either before or after the referendums themselves. If they were addressed before, that would mean that voters were presented with a model for a united Ireland. Addressing them afterwards would create a danger of uncertainty, and the Brexit process since 2016 has shown the difficulties that such a lack of clarity can generate. To avoid that, voters should in this scenario be offered a process through which the form of a united Ireland would be worked out in the event that majorities supported unification. Our report sets out several ways in which that could happen. None would be ideal: all would have advantages and disadvantages.
As to the referendums themselves, the campaign conduct rules would require especially close attention. Previous Unit research has shown that rules for election and referendum campaigns in the UK are badly out of date, failing to provide adequate protections against misinformation or unfair campaign spending, and doing little to help voters access the information they want from sources they trust. Arrangements in Ireland are stronger in some respects, but weaker in others. Both jurisdictions should update their rules before a referendum on any subject.
Holding unification referendums would be complex, with votes on both sides of the border, and potentially decision-making on a range of matters beyond the sovereignty question itself. Coordination and planning would therefore be essential. We conclude that it would be highly unwise for referendums to be called without a clear plan for the processes of decision-making that would follow. Such a plan would need to be agreed by the British and Irish governments, working closely with the full range of actors in Northern Ireland, across the island of Ireland, and in the UK. When planning should begin is a political rather than a procedural matter, on which we take no collective view. But it should be completed by the time any referendum is called.
The Working Group’s conclusions are provisional. We are keen now to receive feedback, and ask that such views be sent to us by 18 January 2021. In particular, we ask:
- Do you think we have missed out any important matters?
- Do you agree or disagree with any of our interim conclusions?
- Do you prefer one of our referendum configurations to the others? Are there other configurations we should consider?
- Are there any points where you think our reasoning requires further development or clarification?
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About the author
Dr Alan Renwick is Deputy Director of the Constitution Unit and Chair of the Working Group on Unification Referendums on the Island of Ireland.