Professor Oran Doyle:

I thank the committee for the invitation. Irish unification requires referendums, North and South. However, who would be allowed to vote? Christopher McCrudden from Queen’s University, David Kenny from Trinity and myself looked at the franchise rules on both sides of the Border to try to work out what the franchise for referendums would likely be and how the franchises on either side would match up with each other.

We felt that in the South it is almost certain that the existing constitutional amendment franchise would be used. This includes Irish citizens over the age of 18 ordinarily resident in the State. The real focus and where there are possibilities for taking different approaches is in Northern Ireland. The Belfast Agreement refers to the people of Northern Ireland but does not say who they are for the purpose of voting in the referendum. It is left to the Secretary of State for Northern Ireland to determine who gets to vote.

There are two basic ways of doing this. The Secretary of State could use one of the existing franchises in Northern Ireland or could design a new one. There are two existing franchises, namely, the Stormont franchise and the Westminster franchise. The main difference is that the Stormont franchise includes EU citizens while the Westminster franchise does not. It is possible this might change post Brexit, but it is not straightforward to change it. The main choice among existing franchises is whether to include EU citizens. Alternatively, the Secretary of State could choose to design a new franchise. Doing so, however, would involve engaging in many contentious issues around citizenship, residency and age requirements. Decisions on all these issues would be viewed through the prism of the forthcoming referendums. Each side would wonder whether expanding the franchise was going to make it more likely that they would win or lose. Therefore, there is a real risk that the debate over the franchise would become a proxy fight over the substantive issue itself, perhaps distracting attention from the important planning issues that must be engaged in. It could also undermine the perceived legitimacy of any outcome if one side felt it was secured by changing the franchise rules.

Therefore, in our work, while acknowledging the strong arguments existing for a more inclusive franchise, we recommended that the better approach would be to go with one of the two existing franchises that apply, either the Stormont franchise or the Westminster franchise. This might at least give more respect for the outcome if people felt they already had a way of deciding on who gets to vote on important issues and they would just use that way. The other issue we examined were anomalies or apparent anomalies that might emerge when we match up the franchises on both sides of the Border. It is much easier for prisoners to vote in the South than it is in the North. Irish citizens would get to vote on the referendum in Northern Ireland, but British citizens would not get to vote on the referendum in the South. Some people might think that is inconsistent. There is also the possibility that people might be able to vote in both jurisdictions, for example, if they were resident in Dundalk and west Belfast simultaneously, which is quite possible and legitimate. People in that situation would then be voting in referendums on both sides of the Border. Is this an anomaly that should be addressed? We left those questions open and did not provide answers.