ISBN: 978-1-903903-89-6 Published by: The Constitution Unit School of Public Policy University College London 29-31 Tavistock Square London WC1H 9QU Tel: 020 7679 4977 Email: [email protected] Web: www.ucl.ac.uk/constitution-unit ©The Constitution Unit, UCL 2020 This report is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, hired out or otherwise circulated without the publisher’s prior consent in any form of binding or cover other than that in which it is published and without a similar condition including this condition being imposed on the subsequent purchaser. Contents List of Figures ............................................................................................................................. ii List of Tables .............................................................................................................................. ii Working Group Members ......................................................................................................... iii Working Group Secretariat ....................................................................................................... iv Acknowledgements .................................................................................................................... v Executive Summary ................................................................................................................... vi Part 1 Starting Points 17 Introduction .................................................................................................................... 2 Political and Historical Context ..................................................................................... 12 The State of Opinion on Referendums on the Unification Question ........................... 33 Legal Context ................................................................................................................ 54 Criteria for Assessing Possible Processes...................................................................... 67 Part 2 Decision-Making Processes 73 Processes of Decision-Making: Overview ..................................................................... 74 Delineating the Two Referendum Options ................................................................... 87 Deciding to Call a Unification Referendum in Northern Ireland ................................ 108 Possible Referendum Configurations ......................................................................... 134 Processes from Start to Finish .................................................................................... 151 Part 3 Referendum and Campaign Regulation 168 Regulating Referendums: General Considerations, and Thresholds .......................... 169 The Referendum Franchise ......................................................................................... 174 Determining the Referendum Questions ................................................................... 183 Campaign Conduct Rules ............................................................................................ 193 Conclusion ................................................................................................................... 214 List of Oral and Written Evidence .......................................................................................... 219 Legal Sources Cited ................................................................................................................ 223 Bibliography ........................................................................................................................... 225 i List of Figures Figure 1. Summary of referendum processes xiii Figure 3.1. Support for a united Ireland in Northern Ireland, since 1989 42 Figure 3.2. Support for a united Ireland in Northern Ireland, since 2013, by 43 method Figure 3.3. Factors affecting decision on how to vote in a unification 45 referendum Figure 3.4. Attitudes in Great Britain towards Northern Ireland’s constitutional 45 future Figure 3.5. Attitudes towards unification in the Republic of Ireland since 1970 46 Figure 3.6. Demographic breakdown of consultation responses 48 Figure 10.1 Summary of referendum processes 152 List of Tables Table 1. Possible Referendum Configurations xii Table 2.1. Results of the 1973 referendum in Northern Ireland 16 Table 5.1. Summary of Criteria 71 Table 9.1. Possible Referendum Configurations 137 Table 9.2. Performance of Configuration 1 against the Criteria in Chapter 5 140 Table 9.3. Performance of Configuration 2 against the Criteria in Chapter 5 142 Table 9.4. Performance of Configuration 3 against the Criteria in Chapter 5 143 Table 9.5. Performance of Configuration 4 against the Criteria in Chapter 5 146 Table 9.6. Performance of Configuration 5 against the Criteria in Chapter 5 148 Table 9.7. Summary of the Performance of Configurations against the Criteria 149 in Chapter 5 Table 14.1. Comparison of referendum campaign regulations in the UK and 194 Ireland Table 14.2. Spending limits in recent referendums in the UK 197 ii Working Group Members Dr Alan Renwick is chair of the Working Group and Deputy Director of the Constitution Unit. He is an expert on elections, referendums, and deliberative democracy, his recent work focusing particularly on how to foster more informed and deliberative discourse in politics. He led the 2017 Citizens’ Assembly on Brexit and was Research Director for the Independent Commission on Referendums in 2017–18. Prof. Oran Doyle is Professor in Law at Trinity College Dublin. He is an expert on Irish and comparative constitutional law, and his book The Irish Constitution: A Contextual Analysis was published by Hart in 2018. In 2016–17, he was a constitutional law advisor to the Irish Citizens’ Assembly. In 2019–20, he was a visiting scholar at the University of Pennsylvania. Prof. John Garry is Professor of Political Behaviour at Queen’s University Belfast and Director of QUB’s Democracy Unit. His research interests focus on electoral and deliberative democracy, his most recent book being Consociation and Voting in Northern Ireland. He recently led a major study of deliberative democracy in Northern Ireland on the topic of ‘Brexit and the border’. Dr Paul Gillespie is Senior Research Fellow and the Deputy Director of the Institute for British–Irish Studies in the School of Politics and International Relations at University College Dublin, and a long-standing columnist with the Irish Times. He specialises in Irish–British relations and European integration. He is co-editor of Britain and Europe: The Endgame, An Irish Perspective, published by the Institute of International and European Affairs in Dublin. Prof. Cathy Gormley-Heenan is Professor of Politics and Deputy Vice-Chancellor (Research and External Affairs) at Ulster University. She is an expert on Northern Irish politics and the politics of peace processes and divided societies, and has published a notable range of articles and reports on Northern Ireland’s peace walls. She has also been a regular political commentator for the BBC. Prof. Katy Hayward is Professor of Political Sociology and a Fellow in the Senator George J. Mitchell Institute for Global Peace, Security and Justice at Queen’s University Belfast. Having long-standing expertise on the impact of the EU on the Irish border and peace process, she is currently a Senior Fellow of the ESRC-funded UK in a Changing Europe initiative, focusing on Brexit and Northern Ireland/the Irish border. Prof. Robert Hazell is Professor of Government and the Constitution at UCL and was the founder and first Director of the Constitution Unit from 1995 until 2015. He is an expert on the UK constitution, including devolution and inter-governmental relations. He led the Unit’s early work on the possibility of Scottish independence, and has long maintained an interest in independence and unification referendums. Dr David Kenny is Assistant Professor of Law at Trinity College Dublin. He is an expert on Irish and comparative constitutional law, and is co-author of the recent 5th edition of Kelly: The Irish Constitution, the leading text on Irish constitutional law. He has given evidence on Irish constitutional reform to parliamentary committees and the Citizen’s Assembly. His iii research interests include referendums and the constitutional implications of Brexit for Ireland. Prof. Christopher McCrudden is Professor of Human Rights and Equality Law at Queen’s University Belfast, William W. Cook Global Law Professor at the University of Michigan Law School, and a Fellow of the British Academy. He is an expert on human rights law and power-sharing, his current research focusing on the foundational principles underpinning human rights practice. Prof. Brendan O’Leary is Lauder Professor of Political Science, University of Pennsylvania, and World Leading Researcher, Visiting Professor of Political Science, and Mitchell Institute International Fellow at Queen’s University Belfast. He is an expert on power-sharing, deeply divided places, and the history of Northern Ireland. His latest publications include a three- volume study called A Treatise on Northern Ireland, published in April 2019. Dr Etain Tannam is Associate Professor of International Peace Studies at Trinity College Dublin. She is an expert on Irish–Northern Irish cross-border cooperation and on British– Irish intergovernmental and diplomatic cooperation, with particular emphasis on Brexit’s impact. She is currently writing