This week marks the 25th anniversary of the momentous Belfast/Good Friday Agreement (GFA) that – among other things – helped to bring to a close the violence of “The Troubles” and established a series of new, interlocking institutions to govern Northern Ireland. It has not been smooth-sailing for the new Northern Ireland Assembly and the power-sharing Executive, with the latter having been not functioning for nearly 40% of its 25-year existence. That is over 3000 days without a working government. For most with a devolved government, this would be unthinkable – yet Northern Ireland is not most others, and the Belfast/GFA and the devolution framework it introduced is still widely celebrated as a remarkable achievement. This post will examine how devolution has progressed since the Agreement and how successful it has been throughout this period.
The Northern Ireland Act 1998 and the devolution framework:
The GFA was incorporated into UK legislation through the Northern Ireland Act 1998. This did not introduce devolution to Northern Ireland, as Mark Elliott notes: “There, devolution existed for much of the 20th century and was reintroduced in 1999”. Northern Ireland had been the only part of the UK to have experienced devolution prior to this, and much of its unique settlement is now due to the fact that it has been built on an existing framework for devolution which dates back to 1921.
The Act provides for an Assembly which is unicameral, and elected through a method of proportional representation called the single transferable vote. The Assembly was first elected in June 1998 with a promisingly impressive turnout of nearly 70%, and met for the first time the following month. It met in ‘shadow form’ until December 1999, when executive and legislative powers were formally transferred from Westminster. The other key aspect of the new devolved institutions in Northern Ireland was the consociationalist Executive – a government set up to enable power-sharing across deeply divided democracies. Heading the freshly formed NI Executive in 1998 were First Minister David Trimble (UUP) and Deputy First Minister Seamus Mallon (SDLP).
To examine the progress of devolution in Northern Ireland, it is worth looking at the framework contained in the Act more closely. Herein, three categories of legislative powers exist – excepted, transferred and reserved. Excepted matters are subjects reserved to Westminster, such as the constitution, international relations and national security – theoretically, these could be transferred by primary legislation, but that is highly unlikely. Transferred matters are those which the Assembly can legislate for, though due to the principle of parliamentary sovereignty, this is not an exclusive right and the UK Parliament can also legislate in these areas. Reserved matters function as an intermediate category, as they are subjects which can be transferred by Orders in Council to the Assembly provided there exists cross-community consent. This now includes subjects such as broadcasting and consumer safety, and previously included policing and justice.[1]
This is a unique setup, as Scotland and Wales do not have a third intermediate category and even the terminology does not translate exactly – with Scottish and Welsh ‘reserved’ matters being the same as Northern Ireland ‘excepted’. When introducing the Northern Ireland Bill for a second reading, Lord Dubs warned that “the similarities may be deceptive”. This is characteristic of the inconsistent approach to devolution across the UK, with much of it done in a piecemeal and ad hoc manner, even though the key pieces of legislation were passed relatively close together.
A final unique aspect to the Northern Ireland devolution settlement is that it is underpinned by an international treaty (the British-Irish Agreement) and is not a purely internal UK matter. Mark Elliott explains that this means “that devolution in Northern Ireland is (uniquely among the UK’s devolution schemes) underpinned — and required — by international law.” In this regard, it is on a much surer-footing than the equivalent legislatures in Wales and Scotland.
The progression of devolution since 1998:
Lib Dem MP Lembit Öpik summarised one standard opinion at the time of the Northern Ireland Act 1998, stating: “The reserved powers provide the House with the chance to delegate more responsibilities to the Assembly as time goes on. I would expect us to default to the assumption that we will hand over more responsibilities as quickly as we can.”
The very existence of a ‘reserved’ category of powers would indicate a surprising openness towards further devolution, despite the deep instability of the region. But how has this developed in the 25 years since?
While papers may bemoan that Northern Ireland is now far from the “heady days” of the GFA, it is worth noting that those days didn’t last long – the new Executive was first suspended just 2 months after it gained formal legislative powers. Multiple short suspensions followed in 2001 and early 2002, before a total collapse in October 2002.
As a result of the Northern Ireland Assembly’s longest suspension (lasting from October 2002 to May 2007), multi-party talks were held in 2006 and the St Andrews Agreement was published. This set out a path to full devolution of policing and justice, alongside an outline for a more stable power-sharing arrangement. This was not quick to progress, and it was only in 2010 with the signing of the Hillsborough Agreement that most policing and justice powers were transferred to the Assembly. While the requirement for cross-community consent on the matter had been achieved, it was apparent that the transfer was the result of the stability and success of the Executive.
In December 2014, then-Chancellor George Osborne announced his intention to transfer powers over Corporation Tax to the Northern Ireland Assembly, and this was legislated for in the Corporation Tax (Northern Ireland) Act 2015. The UK Government has said it will commence the devolution once a restored Northern Ireland Executive demonstrates that its finances are on a sustainable footing (which it has not yet done).
While there have been changes to the Scottish and Welsh devolution settlements (the latter most notably in 2011), others have noted that in Northern Ireland “more than any other part of the United Kingdom, devolution remains a process”.[2] But from the long list of ‘reserved’ powers that could be transferred with cross-community consent, nothing else has been attempted or even seriously considered.
Nevertheless, bearing in mind how often the Executive has been suspended, and the often-fraught politics when it is functioning, it is perhaps remarkable that there have been further major transfers of powers at all. Looking at the situations in which they were devolved and the conditions attached, however, it appears that the UK Government has used the further devolution of powers as a political enticement to help restore power-sharing in Northern Ireland – with varying results. It is thus an imperfect measure for looking at how successful devolution has been.
In many aspects, it can be argued that devolution to Northern Ireland post-1999 has not been successful – the Executive and Assembly have spent years suspended and struggling, and the UK Parliament still legislates more frequently for Northern Ireland than it does for Scotland or Wales. Yet, in its most crucial goal, that of preventing further violence, it has triumphed.
Furthermore, despite the difficulties, the Northern Irish people have not turned their backs on the devolved institutions. The 2022 Assembly elections garnered a relatively reassuring turnout of 63% (only slightly below the 2019 General Election number). Ron Davies’ much-used quote that “Devolution is a process, not an event” is still relevant, and the process is very much ongoing.
Kelly Shuttleworth.
Kelly Shuttleworth is a PhD student looking at constitutional conventions across the UK, New Zealand and Canada at the University of Auckland. She is a contributing writer for the Constitution Society. Prior to this, she worked at various research organisations in the UK, including the Institute for Government and the Bennett Institute for Public Policy, focusing primarily on devolution issues.
This blog is the second of five written for the Constitution Society to mark the 25th anniversary of the Belfast/Good Friday Agreement.
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] For a more comprehensive list, see: House of Commons Library, ‘Devolution in Northern Ireland’, Research Briefing CBP8439, https://researchbriefings.files.parliament.uk/documents/CBP-8439/CBP-8439.pdf
[2] Jonathan Bradbury and James Mitchell, “Devolution and Territorial Politics: Stability, Uncertainty and Crisis”, Parliamentary Affairs, 55:2, 2002, p.311