A brilliantly reasoned but not balanced exploration of future Irish unity referendums

With the division and probable implosion of the DUP following Edwin Poots’ brutal takeover from Arlene Foster, and opinion polls north and south showing Sinn Fein likely to lead the next governments in both jurisdictions, the momentous issue of a future Border Poll – or unity referendum – starts to loom larger. Many of us believe if this comes within the next decade it will lead to dangerous instability on the island, and even a return to violence in the North, but as concerned citizens we have to face into this alarming new reality and consider it with the seriousness it merits.

Last weekend I read a heavyweight 300 plus page report from a group of leading academics from Ireland and Britain under the auspices of University College London’s Constitution Unit with the collective title ‘Working Group on Unification Referendums on the Island of Ireland’. They emphasise that they are “focussed on technical and procedural questions. As a group, we take no view on whether holding such referendums would be desirable or not, or on what the outcomes should be if referendums were to be held.” They also emphasise their belief that such referendums, north and south, are not imminent, but stress it would be “highly unwise” for them to be called without “a clear plan [to be agreed by the two governments] for the processes of decision-making that would follow.” [I should say here that any phrases in square brackets in the middle of quotes are my own].

The report’s authors propose one relatively simple and two much more complex ‘configurations’ of unity referendums. Under the first, a detailed model for a united Ireland would be worked out in advance of the referendums. “This would be done on the initiative of the Irish government, but with the widest possible consultation throughout the island. If majorities in the referendums, north and south, opted for unification on the proposed model, the two governments would then work together on agreeing the terms of transfer of sovereignty.” However, the group believes that the British government would not support this version.

Under the second configuration, the referendums would be held “before detailed proposals for a united Ireland had been established. But two key matters would be agreed in advance, so that voters would would know what to expect. First, a process for working out detailed proposals for a united Ireland would be set out. Second, default arrangements for a united Ireland would be established, which would apply if voters opted for unification but revised arrangements for a united Ireland could not be agreed and approved” [in second referendums, north and south]. The authors say that one default option would be for Northern Ireland “to be absorbed into the Republic under the existing Constitution.”

“If majorities opted for unification, the transfer of sovereignty would not be immediate: detailed arrangements for the form of the united Ireland would be worked on first. Unification would occur either on the basis of an agreed model if one could be approved, or the default arrangements if there were no agreement on a new model or that model were not approved.” The group makes clear that there could be no going back on the fait accompli of unification, even if the proposed new model was not agreed or approved in a second round of referendums.

Under the third configuration, the referendums would again be held before detailed proposals for a united Ireland had been worked out and put before the people. But unlike in the previous version “the transfer of sovereignty would follow relatively soon after majority votes for unification [in the first referendums], and processes for developing the permanent form of a united Ireland would follow after that.”

“In advance of the [original] referendums, three matters would be agreed [between the governments]: the process for agreeing those detailed future arrangements; the interim arrangements that would apply after transfer of sovereignty, until any replacement arrangements were agreed and approved; and the default arrangements that would apply in the event that detailed future arrangements were not agreed and approved. The interim and default arrangements might well be the same.”

If this sounds complicated, that’s because it is. This is a report full of complexity and potential difficulties, a fact recognised by its authors. “There is no easy solution here”, they write. “The difficulty arises from the clash between the principle that sovereignty must be decided by a simple majority [according to the Good Friday Agreement] and the principle that governing arrangements should be arranged consensually [also according to the Good Friday Agreement, in this case for the internal governance of Northern Ireland]. If a majority opts for unification, then the transfer of sovereignty must occur, whether governing arrangements [for a new united Ireland] can be agreed consensually or not.”

This is the report’s central contradiction (as it may be in the 1998 Agreement itself). The working group is absolutely committed to that Agreement’s provision that a simple majority (50% plus one) must be the threshold for unity (they mention it at least 15 times during the course of the report, and even rule out a 52-53% majority to cover any margin of error in polling). They reject Seamus Mallon’s (and my) contention that the governments “should not agree to the holding of a Border Poll unless they were absolutely certain it would lead to a peaceful and stable outcome for the island of Ireland.” They say, correctly, that the Good Friday Agreement “simply stipulates the test as being that a majority in favour of unity appears likely.” They do not even deign to consider Mallon’s view that paragraph 7 of the Review section of that Agreement “makes express provision for review and adjustment” in the event of difficulties arising.

Similarly they reject Trinity College Dublin political scientist Professor Michael Gallagher’s suggestion that a ‘super-majority’ threshold for unity might be adopted “in order to ensure that, within Northern Ireland, a proposal cannot be passed with the support of just one community even if it is almost unanimously opposed by the other community.” He argues for a threshold of perhaps 60% in favour of unity. Another respondent warns that a unity referendum “should need a 60/40 majority to avoid reopening the Troubles. A 1-2% majority would lead to civil war.”

But the group are unmoved. “The simple majority threshold for deciding sovereignty is not a contingency of the 1998 Act, but a requirement of the underlying principle of equal treatment of the options on the ballot paper. Any qualified majority threshold would make it harder to change the status quo and would therefore favour the status quo. On the basic, binary question of sovereignty, that could not be justified.”

A second problem with the working group’s overall stance is their almost complete indifference to what might happen in Northern Ireland in the event of a unity referendum being defeated (outside a few paltry paragraphs). This is a group of academics – eight out of the 12 are Irish – who seem almost exclusively interested in the process of movement towards unity. There is almost nothing in this report about the reformed structures and processes that might be necessary to keep the North as a fair and functioning region of the United Kingdom in the event of such a defeat. Unfortunately, the only recognisably unionist person on the group, emeritus Professor Arthur Aughey of the University of Ulster, had to withdraw from it on health grounds.

Poor old unionists! Even this high-level group of academics can’t bring itself to include a unionist perspective. This may be a brilliantly argued piece of analysis by a distinguished group of political scientists, lawyers and sociologists. I have the utmost respect for the work of people like Professor Brendan O’Leary of the University of Pennsylvania, Professors Christopher McCrudden and Katy Hayward of Queen’s University Belfast, and Dr Alan Renwick (the group’s chair) and Professor Robert Hazell of University College London. But didn’t one of them think it prudent to point out that this major lacuna in their work leaves them (or at least the Irish members of the group) open to charges of pro-nationalist partiality?

I agree that it is probably impossible to involve unionists in discussions about the future shape of a united Ireland in advance of any unity referendum: before the actualisation of what they will see as a cataclysmic threat to their British identity, they will simply refuse to engage. But it does not help that the group appears to dismiss lesser versions of unity – federalism, confederalism, joint authority, some continued post-unity involvement of Britain in the North – so summarily.

Do they really believe that their third referendum configuration – no detailed model of unity before the referendum, followed by a quick transfer of sovereignty and the details of the new society and its structures to be worked out afterwards – would be a process “to encourage and facilitate the participation of unionists in the design of a united Ireland”? Would that beleaguered community not be more likely to feel betrayed, abandoned and trapped in an alien society they wanted nothing to do with? And in those circumstances would civil resistance and boycott of the new institutions not be a more likely response – if not violence?

Despite these reservations, I recognise that this is an important, if flawed, contribution to a vital debate which is now beginning. I will return to it in another blog in the near future. Other weaknesses I will highlight then include the wisdom of putting forward very detailed proposals for a unity referendum at a time when the nationalist electoral vote in Northern Ireland is stuck at around 39%; the extraordinarily complex and potentially destabilising nature of the referendum and post-referendum processes suggested by the report; the total absence of any mention of that element in unionism (sometimes called loyalism) which may use the significant delays identified by the authors as necessary for the implementation of those processes to try to halt or reverse them; the near-impossibility – recognised by the authors – of reconciling the clash between referendum voters having a clear and informed choice of the options before they cast their vote and the inclusivity needed to ensure that all communities (notably the unionists) have an input into developing those options; and the too brief treatment of the “major difficulties” and “significant practical upheavals” that unity will bring in policy areas like taxation, public administration, health and welfare, education, the law and policing.

However, I still commend this report to all interested policy-makers and seriously interested citizens in the Republic of Ireland, Northern Ireland and Britain. At the same time I urge them to keep their critical faculties well-honed. In their concluding paragraph the authors express pleasure that the great majority of those consulted for this exercise “have recognised our work as reasoned and balanced”. Marvellously reasoned – yes. Balanced – no.

I do not expect this major piece of work to be widely read or understood (or intelligently summarised and analysed by the media) in my home place in the first of those jurisdictions. Here I concur with Bob Collins, a rare public figure who knows both the Republic and the North well (as a former head of RTE and of the Northern Ireland Equality Commission). He says: “I don’t detect the slightest sense in the Republic that the emergence of a united Ireland would alter people’s lives in the slightest respect, and that worries me deeply.”

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