Holding a border poll in Northern Ireland: when does it need to happen and what questions need to be answered?

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The prospect of a poll in Northern Ireland about Irish unification, provided for by the Good Friday Agreement and often termed a ‘border poll’, is now widely discussed. But the provisions and wider implications of the law and the Agreement are little explored. The Constitution Unit is considering a project to examine this, and Alan Whysall here gives an overview of the key questions.

Support for a united Ireland appears to be rising. There is little to suggest a majority for unity now, but in the context of Brexit provoking serious strains it might arise. This blog is mainly about process. But the real world risks are high. An early poll, particularly if it takes place in a political atmosphere that is strained following a hard Brexit, could seriously destabilise both parts of Ireland, and put at risk the political gains of recent decades.

Current outlook on border polls

Northern Ireland Unionists have largely ignored or dismissed the prospect of a poll. But the former First Minister Peter Robinson last year urged unionism to prepare.

Nationalists, while looking forward to a poll, have often been vague as to when this might happen. Sinn Féin now appears to favour one immediately after a no deal Brexit. The SDLP propose there should first be a forum to establish the shape of a united Ireland.

The Irish government has been hesitant. The Taoiseach, Leo Varadkar, has suggested that raising the prospect now is disruptive and destructive, and has in the past questioned the wisdom of Irish unity founded on a 50% plus one vote in Northern Ireland.

The UK government has consistently rejected ideas of any early poll. But during recent debate on a no deal Brexit, leaks have emerged of its apparent fears that such an outcome would trigger a poll, dismissed by unionists as ‘Project Fear’.

Recent surveys on Northern Ireland appear to show a marked trend towards a united Ireland. None yet suggests an overall majority, but polling last September suggested 52% of people there would vote in favour in the event of Brexit. However different surveys produce sharply different results and the accuracy of some polling methodologies is questioned. Indeed opinion polling in Northern Ireland has for long thrown up particular problems. Continue reading

The Irish government is pursuing Northern Ireland’s interests more actively than the UK government

Northern Ireland has been on the sidelines of the UK general election campaign, despite continuing political deadlock and the major unresolved questions resulting from Brexit. Brian Walker suggests that this reflects a general disengagement with Northern Ireland from the May government, which has taken the view that the North’s political issues are for their politicians to sort out. The Irish government can now be said to be pursuing Northern Ireland’s interests more actively.

Northern Ireland is accustomed to being tucked away on the sidelines of a UK general election. While it is part of the constitutional nation, it is barely part of the political nation, if that is defined by electing members of the UK government. (Scotland look out!). Its electoral cycle and political interests can fundamentally clash with those of the government at Westminster.  ‘Westminster will always put its own interests first, even if ours are about life and death’, is a familiar refrain. The snap 1974 ‘Who Governs Britain’ general election did for the first fragile power sharing Executive within weeks of its formation when voters returned a full house of MPs bent on bringing it down.  Power sharing did not return for a quarter of a century.

The collapse of the 2016 Assembly

Power sharing suddenly collapsed in the New Year under the impact of the Remain referendum result locally, which put the minority coalition partner Sinn Fein on the winning side and provided them with a test run for a bigger challenge. Devolved government remains in limbo, at least until after the snap general election on 8th June. In Ireland many nationalists rate Brexit as creating the biggest crisis since partition almost a century ago. Unionists and the British government are more circumspect.

Before the EU referendum, the Assembly had seemed to be going quite well. It had survived two terms with deadlocks but avoided collapse. Nationalists seemed broadly content with the constitutional status quo. The Sinn Féin vote had dipped and the DUP were comfortably ahead by ten out of 108 seats. A Fresh Start agreement brokered by the British and Irish governments at the end of 2015 ended a deadlock over welfare cuts that had lasted a year. It even led to behind the scenes talks between the DUP and Sinn Féin to settle a new style budget, as they campaigned for the Assembly election of 2016.

But the combination of a regional Remain majority, a bitter row over holding the DUP First Minster Arlene Foster responsible for a botched renewables heating scheme and the fatal illness of deputy First Minister Martin McGuinness created enough combustible material for Sinn Féin to pull out of the Assembly early this year, obliging the British government to call another election. The campaign unleashed a flood of resentment at what republicans regarded as DUP majoritarian behaviour and lack of respect for Irish culture. In particular, they pointed to the failure of unionists and the British government to implement totemic equality measures like the Northern Ireland Bill of Rights provided for in the Good Friday Agreement and the Irish Language Act provided for in the St Andrew’s Agreement.

Unionists as usual saw Sinn Féin as exaggerating minor grievances to advance the republican cause but were thrown on the defensive over resisting Sinn Féin’s demand for Foster to be suspended from office. A nationalist ‘surge’ in turnout in the Assembly election that followed in March, bluntly to ‘stick it to Arlene Foster’, brought Sinn Féin within two seats of replacing her as First Minister, as the overall nationalist result overturned the unionist bloc majority for the first time. The Sinn Féin boycott won the endorsement of their voters.   Northern Ireland had turned a chapter. The Westminster election on 8 June will be another sectarian contest to gain advantage in the existential question of Irish unity, ahead of the interparty talks on the Assembly’s future which it is hoped will resume immediately afterwards.

The political scene – changing utterly?

There are profound doubts that the talks can succeed anytime soon. It remains a sticking point for Sinn Féin for Foster not to return to office until a public inquiry rules on her conduct in about a year’s time. Moreover, when the prospect of a hard border began to emerge, Sinn Féin quickly saw the political possibilities. A re-erected border would not only be a throwback to an unlamented past; it offers a potential new route to a united Ireland. Perhaps the time has come for Sinn Féin to abandon the frustrations of power sharing in a coalition of opposites, and build on the nationalist-dominated Remain majority to create momentum for a united Ireland within the EU, launched by a border poll, followed if necessary by another poll in seven years time as the Good Friday Agreement permits?

‘She doesn’t care’

The May government’s response to the Assembly breakdown is strikingly different from the close involvement of the Blair years, when peace through paramilitary disarmament and disbandment was the main objective. Without such a big issue to compel her attention, Theresa May has followed the Cameron precedent and has remained immune to appeals from local politicians and civil society to intervene personally. ‘Leave it to themselves to sort out’ is the mantra. This UK government displays less sensitivity to the Northern Ireland implications of key policy issues than the old days of the peace process. For instance, motivated it would seem by the Prime Minister’s frustrations over deporting Abu Qatada and a visceral dislike of European courts, the Conservative manifesto looks forward to a review of the Human Rights Act when the Brexit process  has concluded, even though the HRA is entrenched in the Good Friday Agreement and any change is strongly opposed by Northern nationalists and her Irish government partners.

May’s former junior minister at the Home Office, Northern Ireland Secretary James Brokenshire, paid more attention to his party than his ministerial interests when he spoke out in favour of halting prosecutions of soldiers for actions long ago, giving support to a Conservative backbench campaign first sparked by what happened in Iraq and Afghanistan rather than Northern Ireland. It therefore came as no surprise to local opinion when Sinn Féin rejected him as a mediator in interparty talks to get the Assembly going again. Brokenshire has remained on the sidelines, his role largely limited to extending time limits for the fitful and so far unproductive talks without an active chair, an agreed agenda or any obvious sense of direction. His main leverage is to threaten another Assembly election in what would be Northern Ireland voters’ twelfth trip to the polls since the Westminster election of 2010. In fact creeping direct rule restored by primary legislation is the more likely option if the talks drag on much beyond the summer Orange marching season.

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Many referendums on constitutional change on the horizon for Ireland

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If Ireland’s new government can stay in power, its term looks set to be dominated by one referendum after another. Five referendums have been promised, with the possibility of even more. David Kenny discusses the issues that Irish voters are set to be consulted on over the next few years. He writes that recent experience suggests that referendum fatigue is likely: whilst high-profile issues will continue to generate significant interest, many of the proposed referendums are unlikely to be greeted with enthusiasm by the electorate.

Any change to the 1937 Constitution of Ireland (Bunreacht na hÉireann) – however minor – requires ratification by a majority of voters in a referendum. In the term of the previous government, the Irish people voted on six such referendums, on issues as diverse as the abolition of the upper house of parliament; the provision of same-sex marriage; and reduction in the pay of judges in line with other public servants.

This has not sated the desire for constitutional reform; Ireland’s new government has promised five referendums within its lifetime, with the possibly of several more besides.

In early May, after months of negotiations, a deal was formed to return Fine Gael – the major party in the previous coalition government – to power as a minority government. The result of these negotiations for the support of several independent TDs (MPs) and the acquiescence of main opposition party Fianna Fáil was a detailed Programme for Government, as well as memorandums of understanding between the major parties. These are designed to avoid political conflicts that would threaten the stability of the government. Only time will tell if they will succeed; recent disagreement between Fine Gael and independent cabinet ministers over a Private Members’ Bill on abortion raised doubts as to the lifespan of the government.

If the government lasts, however, we will see many constitutional referendums. The Programme for Government pledged referendums on four discrete subjects, to be held at some point during the government’s term: the constitutional crime of Blasphemy; the ‘women’s place in the home’ clause; the Unified Patent Court; and the constitutional standing of the Ceann Comhairle (the chairperson of the lower house of parliament).

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A long time coming: the formation of Ireland’s new minority government

The formation of Ireland’s new government following February’s general election took more than two months. In this post John O’Dowd discusses the reasons for the delay, the role played by the President and the agreement that was eventually reached to allow Enda Kenny to be reappointed as Taoiseach at the head of a minority government.

Partly on account of its possible repercussions for the slow-motion Eurozone crisis and partly because of its sheer length, the formation of the most recent Irish government attracted more international attention than usual, as well as much domestic puzzlement and frustration. The process began with a general election on 26 February 2016 and ended (perhaps) with the nomination of Enda Kenny (leader of the largest party, Fine Gael) for reappointment as Taoiseach (Prime Minister) on 6 May.

A delay of more than two months in forming a government is unprecedented by Irish standards and lengthy enough internationally. The government that has emerged is also somewhat odd. A minority coalition government is not without precedent in Ireland, but it is unusual in a parliamentary system for an administration to consist of parties and groups accounting for less than 40 per cent of the members of the house to which it accounts – Dáil Éireann; of the 157 votes, 59 were for Enda Kenny’s nomination, 49 against and 49 abstained. A further peculiarity is that, as well as the government depending on a formal agreement with the main opposition party, Fianna Fáil, this support is conditional on Fine Gael obtaining sufficient support through a Programme for Government agreed with other parties or groups to enable it to govern on the basis of Fianna Fáil’s abstention. In the event, Fine Gael could not attract any other parties into a coalition, so the current government consists of Fine Gael plus nine independents.

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Ireland’s election leads to uncertainty over identity of next government

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Last month’s Irish election resulted in a hung Dáil and uncertainty about the nature and identity of the next government. Alan Whysall discusses the result and its possible implications on both sides of the border.

A general election by single transferable vote to the lower house of the Irish parliament, the Dáil, was held on 26 February. The government suffered badly. The 32nd Dáil is hung, and there may not be a successor government for some weeks.

The following table summarises seats won, and first preference votes cast:

Party Seats Vote share (first preferences)
Fine Gael 50 25.5%
Fianna Fáil 44 24.4%
Sinn Féin 23 13.9%
Labour 7 6.6%
Independent/Other 34 29.7%

The Dáil has 158 seats, so 80 are required for an overall majority. There is more detail on the election here.

The result was a profound upset for the governing Fine Gael/Labour coalition. It had come to power in 2011 when the government led by Fianna Fáil was blamed for the economic crash – which was made all the starker because it followed the ‘Celtic Tiger’ years of prosperity. This time Fine Gael’s share of the vote slumped, well beyond its expectations and most poll predictions, and that of Labour, as with junior coalition partners elsewhere, suffered even more. Fine Gael – though inspired, some say, by the UK Conservative effort last year – was generally held to have had a disastrous campaign. Its slogan of ‘Let’s keep the recovery going’ was thought to have antagonised many who did not see themselves having enjoyed any fruits of recovery, although Ireland is now one of the Eurozone’s best performing economies.

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Deliberative approaches to political reform: David Farrell on the Irish Constitutional Convention

Nitish Verma reports on Professor Farrell’s talk on The Irish Constitutional Convention, an initiative set up by the Irish government in 2012 to consider a number of potential constitutional reforms.

Image credit: The Constitution Unit

Speaking at the UCL Constitution Unit Seminar on 21 May, David Farrell, Professor of Politics at University College Dublin and Research Director to the Irish Constitutional Convention (ICC), provided an inside view of the origins, workings, and legacy of the Convention.  Established in June 2012, the ICC was tasked with proposing recommendations regarding a variety of constitutional and social issues facing Ireland, and relied upon the involvement and engagement of ordinary citizens as members.  This process was unique, according to Professor Farrell, as it represented a ‘third way’ of constitutional design, with representation achieved through random member selection, and legitimation via a combination of institutional ratification and popular vote.

According to Farrell, the establishment of the ICC was motivated by two factors: the severe economic crisis afflicting Ireland in 2011, and the subsequent general elections later that year. The timing of these elections was, in Farrell’s opinion, fortunate as it produced an incoming government that was committed to enacting substantial constitutional, political, and economic reforms. More importantly, this opened the door for Irish political scientists to play a crucial role in ‘steering’ public discussion in favour of a citizens’ assembly. As a result, in May 2011, a group of independent researchers and academics, including Professor Farrell, established We the Citizens, a national initiative aimed at illustrating the potential benefits of involving the public in political decision-making. In engaging citizens across the country, the initiative demonstrated ‘statistically significant’ results, proving that randomly selected citizens were not only interested, but also capable of deliberating on the complex political and constitutional issues facing Ireland.

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Judicial Independence 1, Irish Government 1: How not to run a referendum campaign

The voters of Ireland have been busy. On 27 October they elected a new President, Michael D Higgins (who was inaugurated last Friday – more on this election in a moment). They also voted in two constitutional referendums that dealt with the relationship between judges and politicians (the Twenty-Ninth and Thirtieth Amendment of the Constitution Bills respectively). The proposed Twenty-Ninth Amendment sought to introduce a rather complex mechanism by which the pay of judges could be reduced (as the pay of all other Irish public servants has been in recent years). The proposed Thirtieth Amendment sought to create a robust power of parliamentary inquiry.

The Irish electorate voted yes to the Twenty-Ninth Amendment (and by quite a margin – roughly 80%-20%). This proposal was the subject of a previous post of mine (which can be read here). In very brief summary, while I don’t think there can be a problem with the general principle that judges’ pay can be reduced in a crisis, the wording of the amendment is very vague and, for that reason, potentially a threat to judicial independence in future.

By contrast, the electorate voted no to the Thirtieth Amendment (by a narrower 53%-47%). This would have conferred a power to conduct inquiries into ‘any matter’ and allowed the Oireachtas to make findings of fact. It also included what could potentially have been an ‘ouster clause’ excluding these inquiries from the oversight of the courts.*

What explains the differing results? For some, the prospect of more robust parliamentary inquiries in general suggested a move towards a sort of neo-McCarthyism. This is perhaps a little unfair, but given that the government was proposing that one of the first subjects to be inquired into would be the Irish banking crisis (arising out of which criminal prosecutions are still expected) this was not so unlikely as to be dismissed as nonsense.

The results perhaps also disclose a general hostility to authority – particularly to the political and legal elite – in the midst of the current crisis. Whilst the electorate were happy to reduce the pay of the legal elite without bothering unduly about the niceties of constitutional law, they were hostile to the demands of the political elite for additional power in the midst of the crisis, for which politicians are widely perceived to bear the lion’s share of responsibility. As the inquiries amendment was framed, it appeared that this power came at the expense of the rights of the individual citizen.

A lot must be attributed to the nature of the campaign, however. The referendums ran alongside one of the most colourful and controversial presidential election campaigns Ireland has ever had, featuring no fewer than seven candidates. One candidate was repeatedly quizzed on letters of support he had written to an Israeli court on behalf of his former lover, who was convicted of the statutory rape of a teenage boy. One candidate suggested darkly that a minor car accident that turned out to be the result of an accidental tyre blow-out was in fact sabotage and part of a campaign against her. One candidate was Martin McGuinness. Against this lurid backdrop the referendum campaigns competed vainly for attention, and did not indeed get any until the dying days of the campaign. One lesson for future referendum campaigns, then, is to hold them by themselves.

The government’s case was not assisted by delaying publication of the text of the proposed referendums until the last possible moment, just weeks before voting day. It was also not helped by its combative attitude to criticism of the referendums. A late intervention by eight former Attorneys General emphasising the threat to the rights of the citizen and urging a no vote on both proposals was dismissed by the Minister for Justice as ‘nonsense’ spoken on behalf of vested interested in the Courts and the legal profession. Given that the concerns expressed were about the attitudes of the Government this did not inspire confidence.

This mixed result could have been avoided by making the amendment process more open. If members of the public (including lawyers and anyone else interested) had been allowed to participate in the formulation of the text of the amendments, rather than being presented with a badly written fait accompli at the eleventh hour, the resulting text of both amendments would likely have been better and the result for the Government and for the Irish Constitution more favourable. With any luck, these lessons will be taken on board for the Government’s promised, but still elusive, Constitutional Convention.

* This was proposed as a means of overruling a Supreme Court decision that restricted the power of the Oireachtas (parliament) to hold inquiries. In the Abbeylara decision (Maquire v. Ardagh [2002] IESC 21) the Supreme Court held that the Oireachtas has no inherent power to conduct inquiries that make adverse findings of fact against individuals, and can only do so where a specific power is conferred by statute or the Constitution.

The text of the potential ouster clause ran: ‘It shall be for the House or Houses concerned to determine with due regard to the principles of fair procedures, the appropriate balance between the rights of persons and the public interest for the purposes of ensuring an effective inquiry’.