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What the Belfast Agreement says about a Border poll

The choice the pact poses is binary: remain in the union or join a sovereign united Ireland?

The Belfast Agreement – including the linked changes to the Irish Constitution and the UK Northern Ireland Act, 1998 – is a central point of reference in the developing discussion of a united Ireland.

It provides that the people of Ireland have a right to self-determination, but only on the basis of the concurrent consent of majorities both North and South. A referendum must be held in Northern Ireland if the Secretary of State believes that a majority in favour of unity is likely.

Constitutional issues did not, however, feature much in the negotiation of the agreement. The principles agreed between the Governments in the Downing Street Declaration of 1993 and the Joint Framework Document of 1995 were not challenged by the parties. Other more immediate issues absorbed attention, and it was correctly assumed that voting on a united Ireland was a distant and uncertain prospect. In the final days, amid the fog of war there was no orderly process of textual examination and consolidation.

It would have been counterproductive to try to settle matters which did not need to be addressed at that time, and it is reasonable that on most issues of process the agreement is silent.

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There are, however, some points where greater focus would have been desirable. Setting seven years as the minimum period between referendums (down from 10 in previous legislation) was not debated. The Irish government was given no role in the decision to hold a Northern referendum, which would have seismic consequences for the South, to put it mildly. The decision would in practice surely have to be for the two governments together. Furthermore, exactly how and when Southern consent should be expressed is not nailed down.

On deciding whether a Northern majority was likely to support a united Ireland, thereby triggering a referendum, the sensible approach would be for the Secretary of State to look at all the evidence and make a judgment without the mechanical application of pre-determined criteria. Fortunately, the Northern Ireland courts have ruled to that effect, but have made clear that the duty to take a decision cannot be shirked.

Dates for referendums

It would, however, be very helpful for a decision on the applicable franchise – recently the subject of thorough academic analysis – to be taken earlier.

Setting a date or dates for referendums would need to allow ample, but not limitless, time for public debate. Before making their choice the public should be as well informed as possible. At a minimum, a list of the many issues to be considered post-referendum could be agreed. However, even that must be unlikely, given that unionists would surely not see it as being to their tactical advantage to engage.

Those in favour of a united Ireland, in particular the Irish Government, would have to set out detailed proposals. But there are limits as to how definitive they could be. Some questions could only be answered with the full involvement of the people of Northern Ireland – such as whether devolved institutions should continue, or what measures to recognise their identity unionists themselves would find most reassuring. We know from other votes that economic and fiscal forecasts are often approximate and subjective, and describing plans for public services (merging the NHS into an all-island Sláintecare?) easier than delivering them.

The two Governments would jointly need to explain what would happen next. Assuming that there would be comprehensive negotiations between all concerned, questions would include: would the aim be to amend or replace the Irish Constitution?; the structure, organisation, chairing and timeframe of talks; the role of the British government.

And what would happen if unionist opposition prevented consensus? Blocking agreement after a referendum in the hope that unity would be derailed could not be indulged. A vote for a united Ireland would be disruptive and destabilising. There might be violence. Both governments would nevertheless need to hold their nerve. While acting prudently and sensitively, they would have to make it unambiguously clear that a democratic decision would not be reversed.

The Belfast Agreement opened the way to a new era. It is not, however, a roadmap to possible futures

No matter how skilfully a process was managed, however, it could not disguise the fact that on the core constitutional question the agreement is simple, indeed stark.

The choice it poses is binary: the union or a sovereign united Ireland? Joint sovereignty or other possibilities are not allowed for. The threshold for victory is 50 per cent of those voting, plus one.

Late in a life devoted to constitutional nationalism, Seamus Mallon argued that “the only way we can have peace in Ireland as a whole is when a significant number of people in both Northern communities give their consent to a constitutional settlement”. The counter-argument is that this would be anti-democratic, and by moving the goalposts would provoke a strong nationalist and republican reaction.

What do opinion polls say?

There is a real conundrum. For decades mainstream nationalism has emphasised the need for reconciliation and agreement with unionism as the basis for a new Ireland, and for those who favour a united Ireland to persuade those who do not.

The Downing Street Declaration said that “stability and wellbeing will not be found under any political system which is refused allegiance or rejected on grounds of identity by a significant minority of those governed by it”.

Recent opinion polls confirm that this anti-majoritarian philosophy of persuasion and agreement is widely shared.

Under the agreement a narrow majority could be achieved in favour of a united Ireland without a single self-defined unionist having been persuaded. Of course, as traditional unionist preponderance within Northern Ireland is already no more, and as the decisive votes either way would come from the growing middle ground, this would simply be the outworking of democracy.

The prospect of a united Ireland being achieved in this way is, however, rightly a cause of concern.

It seems to me that supporters of unity who feel like this essentially have three real options. To try to change the majority threshold – this was never canvassed in 1998 and is surely unlikely to win consensus. To follow Mallon and not vote for unity until a significant number of unionists are won over. But is there evidence that this would ever happen? Or, after winning a divisive referendum, to be generous and imaginative in trying to reconcile unionists to the new Ireland - recognising that this might fail.

This issue does not have to be explicitly addressed now. But it is likely that sooner or later it will have to be.

The Belfast Agreement opened the way to a new era. It is not, however, a roadmap to possible futures. Questions it does not address remain to be answered.

Rory Montgomery, a former Irish diplomat, is an honorary professor at the Mitchell Institute, Queen's University Belfast, where he recently gave the inaugural lecture on which this article is based. He is also involved with the Royal Irish Academy/University of Notre Dame Analysing and Researching Ireland North and South (ARINS) project.