Alex Kane: Karen Bradley's border poll talk both stupid and deliberately provocative

She is well aware that unionists – and not just the DUP – are worried about the precise legal/constitutional status of the ‘backstop’; and that’s because it is cloaked in uncertainty. On Friday she had the chance to address those worries in an interview with the BBC’s Mark Devenport. She also had a chance to address them earlier in the week when the issue was raised at Cabinet.

But here’s what she said in her interview to Mark: “I do know what my obligations are under the Belfast/Good Friday agreement with regards to the principle of consent and the right of the people of Northern Ireland to determine their future and their constitutional status; and I’m aware of those obligations as secretary of state.”

Not one word, not one single word of reassurance to unionists. Not one sentence, let alone a paragraph to let them know that their worries were unnecessary. Just a threat to the DUP: if you don’t vote for the Withdrawal Agreement on Tuesday – even if it still contains the backstop – then don’t be surprised if I may have to consider the possibility of a border poll fairly soon. It was a stupid thing to say in the circumstances. More worryingly, she was being deliberately provocative. She knew exactly what she was saying and how it would be interpreted.

The power to call a border poll does lie with the secretary of state, although it would never be exercised without the authority of the prime minister and Cabinet. Here’s the relevant passage from the 1998 Act: ‘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. Subject to paragraph 3, the Secretary of State shall exercise the power... 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.’

The key word in all of this is ‘likely.’ It’s a very loose, open to all sorts of interpretation word (‘such as might well happen or be true’ is one definition). A secretary of state could, for example, argue that, a) unionists no longer have a majority in the Assembly; b) in the last few elections unionists (defined as those parties or candidates who make it clear they are unambiguously pro-Union) have not polled an overall majority of the votes cast; c) recent opinion polls suggest that a particular Brexit deal, or no deal at all, would increase support for Irish unity.

On that evidence alone a secretary of state could make a reasonable case that if there was a border poll it ‘might well happen’ that the pro-Union side would lose. The issue has been discussed in previous Cabinets and all of these points will have been made. Mrs Bradley didn’t/couldn’t deny that the issue of a border poll was raised again at Tuesday’s cabinet.

Whatever one thinks of Theresa May – and I’m no fan – she does not want to go down in history as the prime minister who oversaw the unravelling of the United Kingdom. Her concern – and every prime minister’s concerns are focused on the ‘national interest’ – is that a no deal or ‘hard’ deal increases the pressure for a border poll. And while it seems likely to me that such a poll would see a win for the pro-Union side, nothing can be taken for granted.

Karen Bradley will not have made the unilateral decision to raise the issue of a border poll. She was told to do so by the prime minister: and Mrs Bradley is the sort of politician who will always do what she is told. The trouble is, once that particular card has been played it is very difficult (although not impossible) to remove it from the table.

But, as I’ve already said, threatening the DUP is probably not the wisest thing to do at this point (especially when, as I think is the case, the overwhelming majority of the pro-Union community supports them on the backstop issue). Mind you, I think the DUP weakened its own hand by saying that it would probably vote for Mrs May in a vote of no confidence, even if she fails to get through a Withdrawal Agreement which still includes the backstop. How many times does she have to ‘betray’ (their word) them before they turn on her?

The DUP believes that the backstop undermines the constitutional integrity of the United Kingdom. That’s a fair point to make, given the fact that there is very little clarity about its duration, or when and how it can be abandoned. The latest calculation the DUP has to make is how serious the prime minister – or her potential successor, either Conservative or Labour – is about a border poll. Given the upending of local dynamics caused by Brexit I think it would be an extraordinarily ‘courageous’ prime minister or taoiseach (and I’m pretty sure Dublin would have an input to the debate) who would decide to call a border poll amidst the present chaos.

That said, we are reaching the end of the poker game and all hands will have to be revealed fairly shortly. The DUP’s is not as strong as it needs to be at this point; and Leo Varadkar has overplayed his. But there’s still everything to play for. The key player, of course, remains the House of Commons and I still suspect that Parliamentary sovereignty (which, ironically, Brexiteers set so much store by) will, in the end, come down in favour of a very soft landing.