‘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
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  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.