THE REFERENDUM ROADMAP
There is no agreement on when a referendum on Ireland’s constitutional future should take place but a range of voices across political, academic and civic society, and in the media, agree that detailed preparations should be in place before any vote. Research institutes, universities, government bodies and political parties have already commenced that preparation in papers and reports that set out the different challenges presented by a referendum on unity, and for society in Ireland if it is passed. They include recommendations on the timing and wording of the referendums, North and South, and the need for prolonged discussion and open debate – through citizens’ assemblies, parliamentary committees, a constitutional convention and other forums – about the implications of the vote for all people on the island.
The GFA sets out the strict parameters of the choice: the people of the North can decide to remain in the union with Britain or choose to become part of a reunified Ireland. If the North opts for the latter, the people of the South can agree to accept that decision and to make the necessary constitutional and other arrangements required to make it happen. The vote in each jurisdiction is decided on a simple majority of 50 plus 1 per cent of those who vote. Under the terms of the Agreement, and the UK’s Northern Ireland Act 1998, which gave it legislative effect, the decision on when to call a referendum rests with the secretary of state for Northern Ireland. The Act states that the secretary of state will direct the holding of a poll ‘when it appears likely to him [sic] 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.’
In this respect, the GFA sets out a pathway for unity based on the concept that the people of Ireland, separately but concurrently, should decide their own future. It gives the power to the British government to decide a date for a referendum, while it also provides for a regular poll on unity to take place at a frequency of not more than every seven years. In other words, if the prospect of unity is rejected on the first occasion, voters can be asked to consider it every seven years until the proposal is accepted.
The GFA also envisaged a situation where devolved political structures, agreed during the negotiations for the peace agreement in 1998, could continue after a vote for unity. Thus, the power-sharing executive and the elected assembly that sits at Stormont in Belfast could continue to function after any such vote as a form of local or devolved administration, or for a transitional period, in a united Ireland. Similarly, the British–Irish Intergovernmental Conference (BIIGC), which is separate to and independent of the assembly and other structures of the GFA, could also continue to function as a mechanism for continuing co-operation of the two sovereign governments after a vote for unity.
The GFA does not prescribe the details of the new constitutional arrangements or political structures that would be put in place following a vote for unity. Neither does it, nor could it, specify how the post-unification society would deliver the basic requirements of its citizens in relation to health, education, transport or other public service provision, or on the range of policies, laws, rules and procedures that make for a functioning democratic society.
Instead, following a vote for unification, it will be left to the government of Ireland – which will have sovereignty after the referendum – in consultation with its citizens, to decide what should be done to ensure that the new, unified island maintains the confidence of its citizens in the institutions and laws of the new state. This also applies to the issues that would need to be addressed if voters in the North reject the proposal for a united Ireland and seek to remain part of the UK; then the responsibility would lie with the British government to oversee any required changes in its administration.
Research is continuing on the timing and form of the referendums, as well as on the potential constitutional rearrangements, political structures and policies that might be best suited to accommodate a vote by a majority of people in the North to become part of a united Ireland. However, it is agreed by all of those engaged in this research that the people who are being asked to exercise their right to self-determination should be informed of the constitutional, economic, political and social consequences in advance of the referendums. Some academics have asserted that, while the referendums must be held concurrently, that does not mean simultaneously, nor on the same day, as occurred when the GFA was endorsed by voters, North and South, on 25 May 1998.
On that occasion, voters in the North were asked to agree to the proposals contained within the proposed Agreement (they had received copies of the document in the weeks previous). Voters in the South were also asked to agree to the removal of Articles 2 and 3 of the Irish Constitution, which contained a territorial claim over Northern Ireland, and to replace them with a provision that only a decision reflecting the wish of a majority of voters in the North could end the union with Britain. This principle of consent was balanced by the right to self-determination given to the people of Ireland through concurrent votes, North and South.
Those entitled to vote will be determined by the two governments and some observers believe that the franchise could be extended, as was the case in the 2014 Scottish referendum on independence, to allow all those over the age of 16, and possibly Irish citizens living in other jurisdictions, to participate, given the historic significance of the poll for younger and future generations. Any such extension could require a constitutional amendment in the South in advance of the referendum on unity.
It is evident that the optimum way to a seamless or, at least, less disruptive transition to a unified Ireland is to ensure that voters have a reasonably clear picture of the constitutional arrangements and political structures that will emerge if they choose the unity option. For this reason, it would seem obvious that voters should know in advance what changes are required to be made to the Irish Constitution to facilitate unity, or indeed whether an entirely new one should be constructed. Voters should know in advance what guarantees will be put in place to ensure that the identity of those who will remain British citizens in a united Ireland is protected. Similarly, the GFA anticipated a bill of rights for Northern Ireland, which has not yet been introduced, which could then apply in any new constitutional arrangement.
While some will argue for a minimalist approach to constitutional change, there are others in both parts of the island in political, academic and legal circles, and in civic society, who see the referendums as an opportunity to continue, or accelerate, a more transformative process of social and political change, post-unification. The GFA envisaged such progress to a modern, pluralist society when it required the sovereign government, following unity, to exercise power on the basis of the principles of equality and parity of esteem of both communities. In order for this ambition to be realised, detailed and fact-based research over a significant period of time, and across civic and political society and opinion on the island, is required. Consideration should also be given to how existing rights can be expanded for each citizen, including those from all ethnic, migrant and other minority communities.
As the entire territory of a united Ireland will immediately become part of the EU, without any change to the Treaty of Rome, the new sovereign government will also be a party to the European Convention of Human Rights (ECHR) and the European Court of Justice (ECJ). These and other EU laws and institutions will underpin the human rights, equality and other legislative protections of citizens of the new, united Ireland. In this regard, the citizens of the new state will come under the legislative remit of both the sovereign government of Ireland and of the EU.