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Thread: Fifty Plus One

  1. #1
    Politics.ie Member Covenanter's Avatar
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    Default Fifty Plus One

    I had talked earlier with another poster about the issue of fifty plus one not being as clear cut as it might appear in terms of NI immediately being incorporated into the ROI. The article below discusses some of the issues involved. People with a better legal mind than mine may be able to summarise it into layman's terms. My reading is that a precedent has been set so that unionists having become a minority would still have rights under UK law and within the UK, which would mean that they could not simply be dumped out of the UK. I am open to education from anyone who can put a better interpretation on it. Republican trolls need not apply.

    ‘But if the wish expressed by a majority in such a poll is that Northern Ireland should cease
    to be part of the United Kingdom and form part of a united Ireland,’. But has been
    considered above, under section 1(1). The rest of the phrase simply repeats the point made in
    section 1(1). This is to the effect that Northern Ireland would not cease to be part of the
    United Kingdom ‘without the consent of a majority of the people of Northern Ireland voting
    …’. The only addition is the limitation of the alternative to the status quo being a united
    Ireland.
    This may be politically realistic. But it means legally – just as it did under the Northern
    Ireland (Border Poll) Act 1972 – that support for consent in United Kingdom law, cannot be
    translated readily into support for self-determination in international law. The United
    Kingdom arguably has granted the right of internal self-determination to the people of
    Northern Ireland: that is the meaning of devolution. It has certainly not granted the right of
    external self-determination to that section of its people only. The exercise of such a right
    could include a united Ireland, but it could also, in international law, mean a continuation of
    the union, or independence, or some other constitutional arrangement.
    ‘the Secretary of State shall lay before Parliament such proposals to give effect to that wish as
    may be agreed between His Majesty’s Government in the United Kingdom and the
    Government of Ireland.’ The secretary of state, it may be assumed, is the secretary of state
    for Northern Ireland. But, under section 5 and schedule 1 of the Interpretation Act 1978,
    secretary of state means one of her majesty’s principal secretaries of state (and this phrase is
    used in commencement orders).
    Shall lay before parliament is weaker than introduce and support in parliament from 1985,
    and even arguably support in 1973.
    Such proposals to give effect to that wish: wish refers back to the first wish in section 1(2).
    Wish then clearly embraces consent, and is not simply a trigger for a border poll. Such
    proposals is not, it would appear, legislation. And this explains the absence of support.
    As may be agreed between indicates that section 1(2) is dealing, not with legislation at
    Westminster, but with an international agreement. This is a new conception of legal cession
    as regards Northern Ireland. The role of parliament is commensurately less, and that of the
    Irish government greater than was envisaged in 1985. One possible explanation is: what
    would happen if Northern Ireland voted to leave the United Kingdom, and the Republic of
    Ireland did not – under Annex B – vote to accept Northern Ireland, or at least not
    immediately? Legislation at Westminster would not get rid of Northern Ireland. Section 1(2)
    leaves open the option.
    This dovetails with an important decision of the Canadian Supreme Court mentioned in
    Chapters 2 and 9, which – through the common law – could be highly persuasive in United
    Kingdom law. Between 16 and 19 February 1998, as a result of a reference by the governor
    in council, the supreme court considered a possible future secession of Quebec: Reference re
    Secession of Canada [1998] 2 RCS 217. The date of the judgment is 20 August 1998 (four
    months after the Belfast Agreement).
    The first main question considered related to the constitutionality of unilateral secession by
    the national assembly, legislature or government of Quebec.13 The Canadian Supreme Court
    held that this would be unconstitutional. This was because the constitution was more than a
    written text. It embraced other principles, including federalism, democracy, constitutionalism,
    the rule of law and respect for minorities. ‘Those principles must inform our overall
    appreciation of the constitutional rights and obligations that would come into play in the
    event of a clear majority of Quebecers votes on a clear question in favour of secession.’14 The
    Supreme Court held that such a vote required a principled negotiation. There was a
    reciprocal duty – following such an expression of popular will – on the other participants in
    the Canadian confederation to engage in discussions to address any legitimate initiative to
    change the constitutional order. (A unilateral secession, the Supreme Court held, even if
    politically successful, and ultimately legal in international law through recognition,15 could
    not be retrospectively legalized in Canadian law.)
    It is highly arguable that Reference re Secession of Canada is applicable to Northern Ireland.
    The principles of democracy, constitutionalism, the rule of law and respect for minorites are
    just as much a part of United Kingdom law. The house of lords, or the judicial committee of
    the privy council, could well consider them relevant to the principled negotiation of the
    London-Dublin agreement envisaged by section 1(2) of the NIA 1998, in the event of the
    people of Northern Ireland, in a poll held under schedule 1, voting in favour of joining the
    Republic of Ireland.
    http://www.austenmorgan.com/Assets/P..._Agreement.pdf

  2. #2
    Politics.ie Member McSlaggart's Avatar
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    Both the UK and Ireland laws are set in a European framework thus their is no issue just a simple single vote is sufficient to pass.
    Last edited by McSlaggart; 25th January 2013 at 05:43 PM.

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    Politics.ie Member Covenanter's Avatar
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    Quote Originally Posted by McSlaggart View Post
    Both the UK and Ireland laws as set in a European framework thus their is no issue just a simple single vote is sufficient to pass.
    Er, what?

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    Politics.ie Member McSlaggart's Avatar
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    Quote Originally Posted by Covenanter View Post
    Er, what?

    The GFA set up under the "European Court of Human Rights" thus all that is needed in a vote is a simple majority.

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    Politics.ie Member Covenanter's Avatar
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    Quote Originally Posted by McSlaggart View Post
    The GFA set up under the "European Court of Human Rights" thus all that is needed in a vote is a simple majority.
    Is it indeed? Your brief interpretation of the GFA is much appreciated, but can you give a summary on the article that I posted please? Preferably not a summary of what Jarry told you down at the local GAA hall.

  6. #6
    Johnny Boy
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    It is a legal interpretation by a single barrister i.e. his own particualr spin. But then that is what barristers do for a living - effectively they are spin doctors for their clients, and, for example, those tasked with getting child murderers off the hook, will try their best to do so, and will not be troubled by the morality of doing so.
    This is just a lawyer's spin. It wouldn't be too difficult to find another barrister to dismiss this as tripe, even a unionist one, if the fee was attractive enough.
    The only way we will ever know is if a pro-Irish unity referendum is won by nationalists and they test it out in the courts. But realistically, if or when that ever comes to pass, the British government will be gratefully showing us the door, and were there to be a legal challenge, the PM would simply have a quiet word with the presiding judge suggesting that he sends the plaintiffs packing, with a seat in the Lords as the carrot for doing his bidding.

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    Politics.ie Member McSlaggart's Avatar
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    Quote Originally Posted by Covenanter View Post
    can you give a summary on the article that I posted please?
    The GFA agreement give equal status to British identity and Irish Identity.

    Northern Ireland is only with the UK on the basis that it is assumed that their is a majority in the region who want it that way. This is an established bilateral agreement signed in a European context.

    Thus the status and the terms of status change has already been agreed by all parties including the people of "Northern Ireland in a vote.

  8. #8

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    Quote Originally Posted by Covenanter View Post
    Is it indeed? Your brief interpretation of the GFA is much appreciated, but can you give a summary on the article that I posted please? Preferably not a summary of what Jarry told you down at the local GAA hall.
    Jesus man, all the guy is doing is trying to help you. Just cos you don't like the simple fact of the matter doesn't mean you can give him abuse. 50 + 1% is what is needed. That is why republicans are so sure that they will win at some point.

    Remember, republicans only need to win once. Unionists must continue to win in every single referendum without fail for the next God knows how many centuries.

  9. #9
    Politics.ie Member between the bridges's Avatar
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    what happens if there's a draw...
    Nec Aspera Terrent..Is Tuaisceart-Éireannach mé. Má tá meas agat ar mo chultúr, beidh meas agam ar do chultúr.

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    Politics.ie Member SgtBilko's Avatar
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    Quote Originally Posted by Protestant/Catholic=Irish View Post
    Remember, republicans only need to win once. Unionists must continue to win in every single referendum without fail for the next God knows how many centuries.
    Who's to say that there will ever be more than one Border Poll?

    If Irish Nationalists get a bloody nose (as expected) and poll around 25%.....it'll be a long time before the matter ever raises it's ugly head again (if ever).

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