Noel Whelan: New plan for Border poll would see agreement ripped up

Last weekend former deputy SDLP leader Seamus Mallon made an important intervention in the debate about whether and how a united Ireland could be achieved. It met with no response from the DUP and a limited response from the wider unionist gene pool. More interestingly, it received a muted response from most nationalists and nasty responses from some Sinn Féin figures.

Mallon summarises his view as follows: “I make what I hope is a generous new offer to unionism as a former constitutional nationalist leader. I have come increasingly to the view that the Good Friday [Belfast] Agreement measurement of a bare majority (50-per-cent-plus-one) for unity will not give us the kind of agreed and peaceful Ireland we seek.” Instead, Mallon suggests that a united Ireland should be achieved on a “parallel consent” principle, whereby there is consent from parties representing both traditions.

Mallon pointed out that the SDLP put this “parallel consent” principle into the section of the Belfast Agreement dealing with the Northern Ireland Assembly in order to protect nationalists from a built-in unionist majority, which might vote as a bloc to undermine their rights in a future Northern Ireland. On this basis, Mallon recommends that the same safeguard be used to protect unionists from a future Border poll narrowly passed without the consent of both traditions.

In order to appreciate the significance of Mallon’s proposal, one has to set it in the context of the terms of the Belfast Agreement itself and the changes made to the Constitution to implement that agreement.

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The Belfast Agreement clearly provides that “the secretary of state shall exercise the power [to call a Border poll] 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”. That poll would also be decided “by majority”. The word majority at all relevant points in the text has its ordinary meaning – which is 50 per cent plus one.

Central tenet

Any adjustment to the threshold, particularly one effectively handing a veto on Irish unity to a majority of those who identify as unionist, would amount to a dramatic rewriting of this central tenet of the agreement. It could be seen as a significant breach of faith by the hundreds of thousands of nationalists who comprised the bulk of the overwhelming majority who voted for the Belfast Agreement.

Mallon contends that the threshold for a unity referendum could and should be raised using the provisions within the Belfast Agreement allowing for its renegotiation by the two governments. Since the United Kingdom does not have a written constitution, the legal adjustment required to raise the threshold for a Border poll in Northern Ireland could, subject to the Irish Government’s agreement, be effected by legislative change at Westminster. Agreeing to such a raising of the threshold would be politically complex, to the say least, for any Irish government irrespective of its make-up or the majority on which it depends in Dáil Éireann.

Mallon contends the threshold for a unity referendum could and should be raised using the provisions within the Belfast Agreement

The constitutional dimension to Mallon’s proposal also presents great difficulties for the Irish Government. On May 22nd, 1998, separate referendums were held in Northern Ireland and Ireland to endorse the Belfast Agreement. However, it is often forgotten that the referendum held in the Republic was a constitutional referendum, which amended our basic law in important ways. Among the new provisions inserted into the Constitution was the following: “It is the firm will of the Irish nation, in harmony and friendship, to unite all the people who share the territory of the island of Ireland, in all the diversity of their identities and traditions, recognising that a united Ireland shall be brought about only by peaceful means with the consent of a majority of the people, democratically expressed, in both jurisdictions in the island.”

Majority meaning

Again the use of the word majority in this constitutional provision means 50 per cent plus one. Changing that would require a referendum all of its own.

The use of the word majority in this constitutional provision means 50 per cent plus one. Changing that would require a referendum all of its own

Setting out, as I do here, the legal and political complexities of the generous offer Mallon urges nationalism to make to unionism is not to disagree with his broader point that proceeding to Irish unity on the basis of a narrowly passed Border poll would be dangerous. I am among those who have repeatedly made the argument that Brexit shows what happens when insufficient care is given to what exactly is being proposed in new constitutional arrangements.

We can all agree that a sophisticated and detailed exploration of what precisely a united Ireland could mean is required before any Border poll. This should include extensive scholarly research, expert legal analysis, exhaustive parliamentary debate and consideration by citizens on the reality of achieving a truly inclusive united Ireland.

Mallon’s remarks are a provocative and thoughtful contribution to that debate not least because they serve to illustrate once again how complex the journey to a united Ireland could be.