Priority is to establish stable political institutions in Northern Ireland rather than premature holding of border poll.

Submission to the Seanad Public Consultation Committee on the Constitutional Future of the Island of Ireland.

30th September 2022

I welcome this initiative by the Seanad Public Consultation Committee. Nonetheless, I do believe if its work is to make a meaningful contribution to the debate on the “Constitutional Future of the Island of Ireland”, it must take account of the current political realities and also succeed in engaging the representatives of all traditions who inhabit this island in discussing this sensitive and important issue.

The scale of the problem facing those who wish to achieve real political progress not only between both parts of Ireland but also between both Britain and Ireland was painfully illustrated in the results of the recent opinion poll which was published in the Belfast Telegraph on 20th August 2022. The poll was conducted by “Lucid Talk” and there were 3,384 respondents. (The sample size for opinion polls in the Republic of Ireland whose population is three times the size as that of Northern Ireland is usually about 1100).

The two major headline grabbing conclusions were: -

-?????????69% of nationalists believe that there was no alternative to IRA violence before the Good Friday Agreement.

-?????????82% of unionist voters believe that Jeffrey Donaldson should not restore Stormont institutions until the Northern Ireland Protocol is scrapped or significantly changed.

I have never witnessed similar evidence of such polarisation in NI expressed in any opinion poll conducted there during my five-decade long engagement with Northern Ireland politics. It is important to point out that this polarisation did not occur overnight. Regrettably, it has been increasing despite the establishment of the first Power-Sharing Executive under the GFA took office in 2nd December 1999. This is clearly illustrated by the dramatic change and shift in electoral support between Northern Ireland’s political parties.

In 1999, the two parties that secured the office of First Minister and Deputy First Minister were the Ulster Unionist Party and the SDLP. In the 1998 Assembly election the Ulster Unionists won 28 seats in that election and the SDLP won 24 seats. Their combined total was 52 seats in the 108-member Assembly amounting to 48 % of the total seats.

In the same election, the DUP won 20 seats and Sinn Fein won 18 seats. Their combined total was 38 seats amounting to 35% of the total seats.

In subsequent Assembly elections, electoral support for the moderate and centrist unionist and nationalist parties declined significantly resulting in neither the Ulster Unionists or the SDLP being entitled to any of the two Senior posts. Since then, only the DUP and Sinn Fein were entitled to hold the two senior posts in the Executive.

In the recent Assembly election this May, this trend continued with Sinn Fein winning 27 seats (entitling them to now hold the Office of First Minister) and the DUP taking 25 seats resulting in a combined total of 52 seats in a 90 strong Assembly. This represented 58% of the total Assembly seats. The decline in support continued for the Ulster Unionists who won 9 seats and the SDLP who secured 8 seats totalling 17 seats amounting to 19% of the 90 strong Assembly. The Alliance Party had a major breakthrough winning 17 seats.

Even though we are just months away from the 25th Anniversary of the Good Friday Agreement, the reality is that the polarisation had increased and we should try and understand why and attempt to find a way to ensure the GFA achieves what it was supposed to do.

No credible political analyst or historian would dispute the fact that the Good Friday Agreement was an historic achievement. It ended terrorist violence and mapped the way forward for political progress. We are indebted to the then incumbent British and Irish Governments and the local and international actors who played their part in bringing it to fruition. However, in being honest about it, complacency then set in and to some extent, we deceived ourselves about what was actually happening on the ground as evidenced by the conclusions in the recent opinion poll to which I have already referred.

The greatest success of the Good Friday agreement was undoubtedly that it had brought an end to the conflict. However, it had many shortcomings: -

-?????????it failed to deliver any substantial reconciliation measures. Despite the efforts of some committed people, attitudes are as polarised as ever and there has been totally insufficient progress on issues such as integrated housing or integrated education (although a bill on the subject was passed in last session of the NI Assembly).

-?????????equality of respect for the identity and culture of both traditions has yet to be achieved

-?????????a bill of rights was never really considered

-?????????supporters of the violent campaigns of loyalist and republican terrorist organisations continue to glorify and justify their actions and continue to inflict pain and suffering on the families of their victims denying them closure. Furthermore, the “legacy” issue still remains unresolved.

However, the biggest failure of all is the inability to deliver stable political institutions. Solving this latter point would make a contribution to help find solutions to the list of problems that I have just mentioned. The first Power-Sharing Executive under the GFA took office on 2nd December 1999 almost 23 years ago and during this period the Executive has not fully functioned for more than 10 of these 23 years because it has collapsed on at least six occasions – some academics would put the figure as high as nine or ten.

The core problem that exacerbated this instability emanated from the St. Andrews Agreement when the method of electing the Executive was changed - following which the Executive has been led jointly by a First Minister from Northern Ireland’s largest unionist political party and a Deputy First Minister from its largest nationalist party. The first Executive appointed under this new arrangement was led jointly by Ian Paisley and Martin Mc Guinness and this pattern continued thereafter with DUP nominees for First Minister and Sinn Fein nominees for deputy First Minister until the recent Assembly election in May this year.

This carve-up of political power between the two largest parties on both sides of the traditional divide had an inherent weakness. Instead of encouraging them to work together in the common interest of Northern Ireland and its people, it provided each of them with a political “veto” which they both have regrettably used to prevent the Assembly functioning for their own political objectives - Sinn Fein used this power because of the lack of progress on an Irish Language Act and the DUP are currently using it to seek the removal of the Northern Ireland Protocol.

The procedure for electing the Executive under the St. Andrews Agreement needs to be refined to ensure the election of an Executive now and to prevent further collapses of the Assembly and its institutions in the future.

The current British and Irish governments should urgently initiate discussions with all Northern Ireland’s political parties to consider a new method of electing the current Executive and all future Executives. Calling another Assembly election now will resolve nothing. It will result in increased seats for Sinn Fein and the DUP at the expense of the SDLP and Ulster Unionists respectively and the crisis will continue.

One suggestion that I would offer to ensure the full functioning of the Assembly is that the British and Irish Governments should agree to amending the St. Andrews Agreement by adding a “default mechanism” to be implemented in event of either of the two main parties preventing the Power-Sharing Assembly from discharging its powers. In such a scenario, the British Government should invite all parties to engage in negotiations with one another to form a voluntary coalition government which will command a majority in the Assembly and meet the requirement of fulfilling the criteria of having sufficient cross community support to the satisfaction of both the British and Irish Governments. Those parties that prefer not to be part of the coalition government could then serve as the official opposition.

I would like to explain why I have devoted a significant part of this submission up to now in emphasising the imperative need for a stable functioning political institution in Northern Ireland before introducing any proposals for major change to the current constitutional status quo. My reasoning is based on the firm belief that it would be totally unrealistic to expect that any prospect of constitutional change would succeed unless it had been preceded by a Power Sharing Assembly under the GFA that has functioned for a considerable period of time.

With regard to this issue, in relation to the possible holding of a border poll, any review of the GFA which should be convened to achieve the establishment of a Power -Sharing Executive should also clarify the procedures for holding a border poll. The Northern Ireland Act 1998 provides that “if at any time, it appears likely that the majority of those voting would express a wish that NI should cease to be part of the United Kingdom and form part of a united Ireland”, the Secretary of State shall enable a border poll. The current criteria for doing this is vague.

Furthermore, if we are to avoid repeating the mistakes of a century ago, we must recognise that if we establish new political institutions on this island based on simple majoritarianism, we could face a similar fate as happened in Northern Ireland with even more disastrous consequences.

I don’t believe that any moves towards Irish Unification should be based on a simple majority vote in a Border Poll. It should and must obtain cross community consent in Northern Ireland and of course endorsement by the electorate in the Republic of Ireland.

I totally support the views of the late Deputy First Minister, and former deputy leader of the SDLP, Seamus Mallon on this point which he expressed on page 181 of the book “A Shared Home Place” which he co-authored with Andy Pollak: -

“It is sensible to work on the assumption that the two governments would not agree to the holding of a Border Poll unless it would lead to a peaceful and stable outcome for the island of Ireland……. It is clear that some kind of understanding between the two Governments and the major parties in Northern Ireland about the likely outcome of such a poll and the actions to be taken in its aftermath would have to be in place before anyone would even contemplate holding such a vote.

Because of past experiences, therefore, I would suggest that the holding of a border poll should be triggered by a request from a future NI Assembly provided it is approved by two thirds of its members. If such a threshold is to be achieved it would require the support and consent of a significant number of unionist assembly members.

I would also like to point out another past mistake from which we must also learn. This mistake was not of our making but it had disastrous consequences not only for Northern Ireland but the island as a whole and relationships between Britain and Ireland. This mistake happened, not a century ago but several years ago and of course this was the holding of a referendum on Brexit by our nearest neighbour. This decision, despite its importance was preceded by little or no attempt to inform the electorate about the real issues that were involved or the consequences that would flow from whatever decision they would eventually make.

Therefore, prior to any border poll taking place, we must ensure that the electorates in both parts of Ireland are fully informed beforehand, and I don’t mean on the eve of the poll itself. ?Even though political realties may indicate that it will be sometime before it is realistic to hold a border poll, there is no reason why the process of educating them should not take place now!

Up to now, the campaign for a border poll has consisted mainly of sloganizing but has offered no detail, or substance or how it can be achieved. Additionally, opinion polls conducted in this part of Ireland, have shown little willingness to make any concessions to the unionist tradition or British identity. These have shown a clear unwillingness to change the tricolour or our national anthem, or even to guarantee positions in an all-Ireland government for unionists. (see Red C opinion poll in Sunday Business Post 28th November 2021). We have to persuade unionists that any all-Ireland settlement will not be a cold place for unionists as Northern Ireland had been for nationalists. This would be totally counterproductive. Those who campaign for a border poll must prove that they will actually support the principle that the unionist tradition will be treated respectfully and equally in any future all- Ireland arrangement.

For the reasons just mentioned, it is therefore of vital importance that the debate is inclusive, and informed.

And for that reason, I think the academic community should lead it – but not in a prescriptive way.

The British and Irish governments should fund an inter-university project involving Universities from Northern Ireland, the Republic of Ireland and Britain. Their task should be to provide a detailed analysis of the options without coming to conclusions about any particular one of them. I am well aware that a number of universities and other bodies and individual academics are involved in different projects relating to Ireland and its future. However, what they are doing and the valuable information they accumulate does not necessarily reach the general public who will actually make the final decision in any future border poll. I would say it probably doesn’t even arrive on the desks of parliamentarians in Britain and Ireland. Additionally, I believe it would be better if this research, expertise and analysis was co-ordinated under one academic umbrella.

The project could be set specific areas of research under the various political/institutional/constitutional options for example

Firstly, within the current constitutional structure consideration of proposals to strengthen all -Ireland co-operation in the educational, health, social and economic fields etc

Secondly, and obviously the main one under an all-Ireland constitutional arrangement

-?????????Exploring governance options like a unitary state, federal state, confederal state

-?????????Then how each of these options would be financed including funding of pensions and defence

-?????????What necessary legislative and structural changes would be required

-?????????Proposals for protection for the rights of minorities in the government, culture, citizenship etc

-?????????A Proposal for a political right of appeal

?

Thirdly, continued monitoring of further possible shocks that would impact on the process as Brexit did e.g. Scottish Independence. If this were to happen (and thinking outside the box) would there be merit in considering a structure involving NI, ROI and Scotland as a Western Arc of the European Union and adopting similar inter parliamentary structures as those that operate under the Nordic Council etc.?

The object of this rolling academic project would be to present their papers to the Dail, the Northern Ireland Assembly and Westminster for consideration by their relevant committees.

They should also be presented simultaneously to public bodies, civil society and the media

All of these actions would be intended to inform the public and encourage a constructive and ongoing debate well in advance of any border poll that might eventually take place.

Ends.