At the heart of much of the problems around Article 12 of the 1921 Anglo-Irish Treaty, which provided for a Boundary Commission to determine the contours of the border on the island of Ireland, was its ambiguity.
This allowed for many different interpretations that were exploited by British governments as well as the British-appointed chair of the Boundary Commission, Justice Richard Feetham, which ultimately resulted in the border by late 1925 remaining as it was drawn up under the Government of Ireland Act 1920.
There is also an ambiguous clause in the Good Friday Agreement that has the potential to cause great harm. Schedule 1 (2) states that the British Secretary of State for Northern Ireland “shall exercise the power” to call a border poll “if at any time it appears likely to him that a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland”.
This leaves the fate of a border poll being called in the hands of British governments to act fairly and impartially – something, as shown in the past, that cannot be guaranteed.
While the Boundary Commission clause in 1921 was viewed as a major concession to Sinn Féin, the details and wording proved to be disastrous for the party, and particularly for northern nationalists close to the border.
Article 12 stipulated that if Northern Ireland opted not to join the Irish Free State, which it did at the first opportunity in December 1922, a commission would determine the border “in accordance with the wishes of the inhabitants, so far as may be compatible with economic and geographic conditions”.
The clause was riddled with ambiguities. No timetable was mentioned or method outlined to ascertain the wishes of inhabitants, how exactly economic and geographic conditions would relate to popular opinion, and which would prove most important. The areas and sizes of the units (small areas like district electoral divisions or entire counties) to be considered for transfer were not decided upon. Could Free State territory be transferred as well as northern territory? No plebiscite was asked for.
Another fatal anomaly from an Irish nationalist perspective was that the Boundary Commission, unlike those held in Europe around the same time, did not have an independent chairperson, and with its vague wording, the ambiguities were to be determined by a British-appointed judge. With the Irish Free State and Northern Ireland commissioners cancelling each other out, the decision by the Sinn Féin plenipotentiaries not to contest the British appointment of the judge proved decisive. Feetham was a British-born, South African-based judge with conservative political views. Unsurprisingly, all of his interpretations and decisions favoured the unionist over the nationalist case. In nationalist circles he became known as ‘Feetham-Cheat’em’.
It resulted in the commission recommending minimal transfers to the Free State but also transfers from the Free State to Northern Ireland. Once this was leaked in November 1925 by the Morning Post newspaper, the Irish Free State government rushed over to London to have the report shelved, resulting in the border remaining as it was, as it is today.
The criteria for the secretary of state to call a border poll now under the Good Friday Agreement are also vague and open to different interpretations.
It does not help too when secretaries of state are ignorant of the Good Friday Agreement, as Chris Heaton-Harris recently demonstrated in the House of Commons when he claimed that a vote for a united Ireland “absolutely depends on the consent of both communities”. It absolutely does not. There is no ambiguity that the requirement is for a majority of those voting in Northern Ireland to determine the outcome of a border poll.
While Heaton-Harris cannot re-write the Good Friday Agreement, worryingly he, and his successors, have great latitude to prevent a border poll from happening, perhaps “for decades to come”, if we are to believe the UK-DUP “Safeguarding the Union” deal.
According to Eamonn Mallie in his recently published memoir, Eyewitness to War and Peace, “the idea that a Northern Ireland Secretary of State should be the arbiter as to when a border poll should take place was anathema to some senior IRA personnel” at the time of the signing of the Good Friday Agreement. Mallie also wrote that the SDLP’s Mark Durkan clarified for him: “The reason why this matter was left in the hands of a secretary of state… was because the parties could not politically agree criteria for or when a border poll should be called.”
As no clarification has been provided by secretaries of state since, we are still in the dark on what criteria are needed for a border poll to be held. Is it based solely on polls, many of which are unreliable? Is it based on census results? Is it based on MLA seats, Westminster seats, in essence the performance of nationalist-leaning parties in elections, even though people vote for candidates and parties for a multitude of reasons?
It does not help too when secretaries of state are ignorant of the Good Friday Agreement, as Chris Heaton-Harris recently demonstrated in the House of Commons when he claimed that a vote for a united Ireland “absolutely depends on the consent of both communities”
The ambiguity has led to different narratives being promoted, as the ambiguity surrounding the Boundary Commission did 100 years ago, with those supporting Irish unification claiming a border poll is within touching distance and those opposing claiming it is generations away, if it ever happens.
Although the Boundary Commission was stacked against nationalists and always unlikely to deliver a solution satisfactory to nationalists, it could have prevented some of the rancour that followed the completion of its report in 1925 by reaching an agreement on the interpretation of Article 12 at the outset amongst the three commissioners, once it convened in late 1924.
To remove much of the current confusion and speculation, the same can happen now by the British government declaring, in consultation with the Irish government and political parties in Northern Ireland, exactly the criteria needed to allow for a border poll to take place.