David Maddox is the political editor of Express Online.






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Kevin and myself always appreciate feedback from listeners, we try to reply when we can, but Aengus Ryan send in a sound file, which is great cos I can include it in the podcast.



I think this is an important question, and I think that some people are thinking about it, but not enough. In particular I’d say that Unionists are not thinking about it, which might be a bit of avoiding thinking about something in the hope it never happens, a bit like whistling past the graveyard.



But we should look at the mote in our own eyes first, because we really aren’t thinking about this, we aren’t preparing. One reason for that is that it might seem like a remote possibility, but that strikes me as making the Brexit mistake, not preparing for a possible outcome that could well happen much faster than we expect, and if that snowball starts rolling, it will be hard to make detailed preparations in the heat of the debate that will bring.



Jim O’Callaghan the Fianna Fáil TD and, I think, leadership hopeful, to be fair to him, has made some proposals. I think the proposals are terrible, such as having the Dáil sit in Dublin and the Seanad in Belfast. But bad as it is, it’s helpful for him to bring this up, because at least people are thinking about practicalities.



But the short answer to Aengus’ question is that this hasn’t really been addressed in any official way since the Good Friday Belfast Agreement.







The terms of that agreement are pretty clear, but not precise. Firstly, calling a border poll is decided by the British Secretary of State for Northern Ireland, so that basically means the decision rests with the British cabinet of the day. The exact text says:



the Secretary of State shall exercise the power under paragraph 1, [that’s 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.



So that word ‘shall’ there is doing a lot of work. In legal terms it’s a requirement. When someone is given discretion in law, the word used is ‘may’, when they have to do something, it’s ‘shall’. But then in the next clause it says ‘if at any time it appears likely to him’. Is that a get-out-of-jail card? Could Chris Heaton-Harris or his successor ignore a stack of opinion polls, stick his fingers in his ears, and say ‘La la, I’m not listening it doesn’t appear likely to me that the vote would pass’.



Maybe, but not really. Because it’s the Secretary of State who makes the decision, not Chris Heaton-Harris. You might think they are the same person, but not quite. When he’s acting in his ministerial role, there is case law that basically means that his decisions have to be rational, and based on evidence.



That doesn’t mean he has to be right, the bar is higher than that. But there is a bar, and basically if he was claiming that something that was irrational, totally unsustainable given the evidence, it is possible that he could be overruled by a court.



But in the real world if there was enough evidence to take a court case forcing a border poll, then there would be other things going on at the same time. You can be sure that there would be intense campaigning on all sides,