During his first official visit to Northern Ireland as Prime Minister, Andy Burnham declared that a referendum on Irish unity was “off the table”. His immediate priorities, he explained, were public services, the cost of living and the effective operation of devolved government.
The remark produced sharply different reactions. Nationalist politicians accused Burnham of attempting to remove a right guaranteed by the Belfast/Good Friday Agreement, while unionist representatives welcomed the apparent rejection of a referendum. Underlying these conflicting political reactions was a fundamental uncertainty over what a UK government may properly take “off the table” under the post-1998 settlement.
Northern Ireland Secretary Chris Bryant subsequently narrowed the meaning of the statement. Burnham, he said, was referring only to whether a border poll would be discussed or held “now” and during that visit. Bryant also confirmed that both he and the Prime Minister remained committed to every part of the Good Friday Agreement, including its border-poll provisions.
That clarification places the Government on firmer constitutional ground. Burnham can argue that a referendum should not presently be held. What he cannot do, through political declaration alone, is exclude the mechanism through which Northern Ireland’s constitutional status must be determined. The controversy therefore remains instructive: it demonstrates why precision matters when ministers speak about constitutional powers that do not belong entirely to the government of the day.
A referendum unlike the others
There is an understandable political logic behind Burnham’s position. After the divisions associated with Brexit and the Scottish independence debate, a new Prime Minister may have little appetite for another constitutional referendum. He is also entitled to believe that attention should be directed towards public services and the operation of devolved government.
A border poll, however, is not simply another referendum that the UK government may offer or refuse according to its political priorities.
The contrast with Scotland is important. The political demand for a second Scottish independence referendum remains contested, but the relevant question of legislative competence has been substantially settled. In Reference by the Lord Advocate [2022] UKSC 31, the Supreme Court held that legislation for such a referendum would relate to reserved matters and therefore fall outside the Scottish Parliament’s competence unless the devolution settlement were modified.
Northern Ireland is governed by a different constitutional design. The Belfast/Good Friday Agreement and the Northern Ireland Act 1998 expressly provide a route by which its status may change. Under section 1 of the Act, Northern Ireland remains part of the United Kingdom and cannot cease to be so without the consent of a majority voting in a poll. If a majority supports Irish unity, the Secretary of State must lay before Parliament proposals agreed between the UK and Irish Governments to give effect to that choice.
The legislation therefore protects Northern Ireland’s existing position without treating it as constitutionally final. It guarantees the continuation of the Union while that commands majority consent and preserves a lawful means of leaving it if consent changes.
Discretion and duty
The mechanism for holding a referendum is contained in Schedule 1 to the 1998 Act. Paragraph 1 provides that the Secretary of State may direct the holding of a poll. Paragraph 2 states that the Secretary of State must exercise that power if, at any time, it appears likely that a majority of those voting would favour Northern Ireland leaving the UK and forming part of a united Ireland.
The distinction between those provisions is central. As the Northern Ireland Court of Appeal explained in Re McCord[2020] NICA 23, paragraph 1 confers a discretion, while paragraph 2 imposes a duty. The first involves an assessment of whether holding a poll would be in the public interest. The second concerns the likely preference of a majority of voters.
Most importantly, the Court held that the paragraph 2 duty arises even if the Secretary of State does not consider a referendum to be in the public interest. Concerns about division, pressure on public services or distraction from day-to-day government may legitimately inform the discretionary decision under paragraph 1. They cannot displace the mandatory obligation once the likelihood test is satisfied.
A government may therefore decline to initiate a referendum because it considers one unnecessary or unhelpful in present circumstances. It may not maintain that position regardless of whether the conditions specified by Parliament later arise.
Whose decision is it?
The statutory responsibility belongs to the Secretary of State for Northern Ireland rather than formally to the Prime Minister. In political practice, a decision of this magnitude would inevitably involve Downing Street and the Cabinet. The Prime Minister appoints the Secretary of State and shapes the government’s wider constitutional policy.
That influence does not alter the legal allocation of the function. The relevant assessment must still be made by the Secretary of State under the 1998 Act. A prime-ministerial statement cannot replace the statutory test or bind the Secretary of State against applying it as circumstances change.
The Act does not identify the evidence that should determine whether majority support for unity appears likely. It specifies no decisive opinion poll, election result, demographic measure or combination of indicators. This uncertainty has led to repeated calls for Westminster governments to publish criteria for the decision.
In McCord, however, the Court of Appeal rejected the claim that the Secretary of State was legally required to adopt such a policy. The assessment was described as an evaluative political judgment shaped by prevailing circumstances, rather than a simple empirical calculation. Opinion polls and election results may be relevant, but so too may economic conditions, social attitudes and other developments capable of changing voting intentions.[1]
The Court regarded flexibility as constitutionally important. A fixed policy might prevent the Secretary of State from responding appropriately to unforeseen events or attach permanent significance to evidence whose value varies over time. This does not establish a freestanding duty of continuous monitoring. It does mean that the Secretary of State cannot bind themselves against making the statutory assessment when changing circumstances require it.
The decision also remains subject to public-law controls. McCord emphasised that the Secretary of State must reflect honestly upon the available evidence and act with “rigorous impartiality” in the context of the people of Ireland’s right to self-determination.
What does “off the table” mean?
Bryant’s clarification makes the scope of Burnham’s original statement decisive.
If the Prime Minister meant that the Government would not discuss or pursue a referendum during that visit, the position is legally unremarkable. The 1998 Act does not require a poll merely because Irish unity is being actively debated, nationalist parties have requested one or some surveys indicate increasing support.
Similarly, the Government may decide that the present circumstances do not justify exercising the paragraph 1 discretion. Its preference to concentrate on public services and effective devolution can properly form part of that public-interest judgment.
A categorical refusal extending into the future would be different. The words “at any time” in paragraph 2 make the statutory arrangement responsive to political change. An administration could not lawfully decide that no poll would be contemplated throughout its period in office, whatever view the Secretary of State later formed about the likely result.
The Government may conclude that the statutory threshold has not been reached. It cannot decide in advance that the threshold will not be assessed.
On Bryant’s account, this was not what Burnham intended. His clarification converts a potentially sweeping declaration into a limited statement about current policy. Substantively, that is consistent with the 1998 Act. The need for the clarification nevertheless shows how readily political language can obscure the distinction between postponing a constitutional question and purporting to remove the process through which it must be answered.
Political preference and rigorous impartiality
The requirement of rigorous impartiality adds an important dimension to the debate. The UK government is not required to be politically indifferent to Northern Ireland’s place in the Union. Ministers may favour its continuation and campaign for that outcome in any future referendum.
Administering the mechanism of consent is a different function. The Good Friday Agreement recognises the legitimacy of whichever constitutional choice is freely made by a majority in Northern Ireland. It also affirms that sovereign power must be exercised with rigorous impartiality and with respect for the identities, traditions and aspirations of both communities.
In McCord, the Court applied that principle directly to the Secretary of State’s border-poll functions. Rigorous impartiality does not require the Government to abandon its political view. It requires the statutory decision-maker to administer the process without using public power to secure an advantage for one constitutional aspiration over the other.
The Court illustrated the point through the seven-year rule. A Secretary of State could not call a premature referendum solely to obtain a vote for remaining in the UK and thereby delay another poll for seven years while support for the Union was diminishing. Formal compliance with the power would not cure a purpose inconsistent with impartial administration of the consent mechanism. Establishing an improper purpose does not require a direct confession of bad faith from ministers. In judicial review, courts assess the decision against its wider context: an improper motive could be inferred if parliamentary statements, internal guidance, or a total lack of polling evidence show that the poll was called strategically to secure the seven-year bar rather than to reflect public demand.
This distinction separates governmental preference from control over constitutional possibility. A government may advocate the Union, but it does not own the process through which the people of Northern Ireland may choose between the available outcomes.
Consent as a source of stability
Burnham’s emphasis on everyday government reflects a legitimate concern that an ill-prepared referendum could destabilise Northern Ireland’s institutions. A poll held without adequate planning or a clear account of what unity would entail might intensify division rather than settle it.
Yet stability and consent are not opposing principles. Consent is itself one of the settlement’s principal sources of stability. It reassures unionists that Northern Ireland’s status cannot change without majority support, while assuring nationalists that unity remains achievable through peaceful and democratic means.
Describing a border poll as permanently unavailable would disturb that balance. It would present a guaranteed constitutional route as something Westminster could withhold. Saying that the conditions do not presently justify one preserves the existing balance by leaving both the current status and the agreed means of changing it intact.
A question deferred, not removed
None of this establishes that a referendum must now be held. The Secretary of State retains considerable latitude in assessing public opinion, and McCord recognises the need for a flexible response to changing and unpredictable events. Significant questions also remain about the timing, franchise, wording and sequencing of any future poll. As the House of Commons Library has noted, neither the Agreement nor the Act specifies how likely majority support should be measured or whether voters should decide on a developed model of unity rather than the principle alone.
Bryant’s intervention confirms that the Government has adopted the constitutionally safer position: a border poll is not being pursued now, but the provisions governing one remain operative. That clarification does not make the original controversy insignificant.A Prime Minister may prefer not to approach the question and may argue that the relevant conditions have not arisen. What a government cannot do is predetermine that they never will. Northern Ireland remains part of the United Kingdom unless and until its people decide otherwise, but the possibility of making that decision is itself part of the settlement.
Darryn Nyatanga.
Dr Darryn Nyatanga is a constitutional law scholar whose research focuses on executive power, devolution, and constitutional change in the United Kingdom. He holds a PhD from the University of Liverpool.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.
[1] Re McCord [2020] NICA 23, para 98.