Court of Appeal: ‘Constitutional value of flexibility’ not maintained by publication of border poll policy
The Court of Appeal in Northern Ireland has dismissed an appeal related to the issue of a border poll on a united Ireland.
Raymond McCord sought judicial review of the refusal or failure of the Secretary of State for Northern Ireland to have a policy specifying the circumstances in which he would direct the holding of a border poll, which Mr McColl claimed was a breach of the Good Friday (Belfast) Agreement.
He alleged that there was insufficient clarity and transparency in relation to the mechanism for directing a border poll on a united Ireland under the relevant provisions of the Belfast Agreement which were enacted in section 1 of the Northern Ireland Act 1998. Mr McCord sought an order that the Secretary of State for Northern Ireland publish a policy setting out the circumstances in which he would direct the holding of a border poll.
Schedule 1 to section 1 provides that “the Secretary of State may by order direct the holding of a poll for the purposes of Section 1 on a date specified in the order”. It further states that the Secretary shall exercise that power “if at any time it appears likely to him that a majority of those voting would express a wish that Northern Ireland shall cease to be part of the United Kingdom and form part of a United Ireland”.
In June 2017, Mr McColl made an ex parte application for leave to apply for judicial review pursuant to Order 53, Rule 3 of the Rules of the Court of Judicature (Northern Ireland) 1980. The relief sought centred around the Secretary of State’s “failure or refusal to have a policy which sets out the circumstances in which the respondent will order the holding of a (border) poll”. In the section of the Order 53 statement which asked for the “particulars of any claim to rights under the European Convention on Human Rights”, Mr McColl entered “none”.
Mr McColl’s application for judicial review was dismissed by Sir Paul Girvan. The judge said that there was no general common law requirement for public bodies to publish guidelines establishing how statutory powers will be exercised, the factors which will be taken into account or the sources of evidence. He said that the Northern Ireland Act contained neither an implied nor express duty to do so.
Applying Re Porter  NIQB 10, he stated that in exercising the discretionary power to hold a border poll, it is for the Secretary to determine those factors in forming the necessary political judgment. He said that the decision not to publish a policy was a rational one, as the pre-determination of the factors to be considered might prove unduly restrictive and not in the public interest.
Mr McColl appealed to the Court of Appeal.
Lord Justice Benjamin Stephens, giving the judgment of the court, noted the “longstanding conflict over the partition of Ireland”. The resulting conflicts arising from the aspirations of nationalists and unionists “have led to many tragedies with a deep and profoundly regrettable legacy of suffering. A resolution to this aspect of the conflict was found in the Belfast Agreement dated 10 April 1998.” That agreement set out that a United Ireland “must be achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland”. The status of Northern Ireland cannot change without the consent of a majority of its population.
The court noted, as per Malone v United Kingdom (1985) 7 EHRR 14, that where ECHR rights are engaged, the requirement that an interference “is in accordance with the law” may require publication of a policy. However, they held that this was of no relevance to the appeal, as Mr McColl had not relied on any ECHR rights in his Order 53 statement.
The court said that, as a matter of domestic administrative law, where a public authority has formulated and applies a policy, it should be published. They found that this did not arise as there was no policy and therefore there was nothing to be published. By way of illustration the court cited B v Secretary of State for Work and Pensions, where Lord Justice Stephen Sedley noted the requirement to publish a policy which already existed.
The court said that it is for Secretary of State for Northern Ireland “to decide what is, or is not, relevant to the decision-making process depending on the prevailing circumstances”. The judges ruled that neither the 1998 Belfast Agreement nor the Northern Ireland Act contained any such requirement that a policy be published by the Secretary of State. The judges said that the decision as to who should vote “is also a political judgment as to what is acceptable or appropriate in our community”.
Such considerations might include an evaluation of potential factors which might impact on the poll. Such things may be changes in social attitudes in Ireland and Northern Ireland, taxation structures in both jurisdictions, Brexit and cross-border trading in Ireland. This might include an evaluation of agreements made between the European Union and the United Kingdom.
The exercise of the powers surrounding a border poll are a matter of “political judgment in the context of differing and unpredictable events”. Lord Justice Stephens cited the example of the lowering of the voting age in Scotland to 16 years: “We accept that this may have a considerable impact on the outcome of a border poll. The present voting age in Northern Ireland is 18. However, there may be a changing consensus in the island of Ireland as to the appropriate voting age which would form a component of determining what voting age was in the public interest in relation to a border poll.”
The judge considered that the that the decision on a united Ireland reached in Northern Ireland may or may not be the same as in the Republic “but that whatever decision is made in the Republic of Ireland might be a factor to be taken into account” by the Secretary of State for Northern Ireland.
The court noted JR80’s Application  NICA 58 citation of Lord Thomas Bingham’s judgment in Robinson v Secretary of State for Northern Ireland and others  NI 390 where he categorised the Northern Ireland Act “as in effect a constitution whilst recognising that it did not set out all the constitutional provisions applicable to Northern Ireland”.
A “flexible response” was necessary in interpreting the Act. The “constitutional value of flexibility” could not be maintained “by the publication of a policy as to present views in relation to voting age or in relation to any other present decision as to demographics”.
The appeal was dismissed.
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