Traditionally in Northern Ireland (or NI) mention of constitutional change has meant only one thing: United Kingdom (UK) vs United Ireland (UI). Known simply as ‘the constitutional question’, the issue to which this juxtaposition points – whether or not a majority of the people in Northern Ireland ought to or shall ever opt to leave the UK in favour of (re)joining Ireland – has defined its history and dominated its politics.
Today, as Northern Ireland greets yet another month without functioning government institutions, any mention of its constitutional challenges normally refers to the fragility of its power-sharing system of devolution and the propensity of Stormont to collapse. At time of writing, the Northern Ireland Executive and Assembly have been in operation just 40.5% of the time since they were established in the wake of the Belfast ‘Good Friday’ Agreement of 1998 (the 1998 Agreement).
Taken together – the traditional dominance of ‘the constitutional question’ and the (all too) clear constitutional challenges facing its still-collapsed power-sharing institutions – could reasonably be assumed to be on the agenda of any discussion of Northern Ireland and its issues.
However, while not discounting the enduring importance of the potential for constitutional change that would arise from a ‘border poll’ nor seeking to relegate the pressing importance of restoring the NI Executive and NI Assembly, neither of these ‘constitutional issues’ are the focus of this blog.
Instead, my aim is to set out three lesser-discussed constitutional and governance issues with which Northern Ireland must contend, but that often linger under the radar of news headlines due to the (understandable) predominance of the aforementioned topics.
The following non-exhaustive account of contemporary constitutional issues highlights the [1] inherent complexity [2] diversification of contestation and [3] unusually central position that NI and the UK as a whole must address if the people of Northern Ireland are to experience stable and effective government in future.
[1] Inherent Complexity.
Arrangements for government in Northern Ireland are complex. Insomuch as the 1998 Agreement architecture is multileveled and interdependent, complexity is arguably an intentional design feature of the post-conflict NI constitution. Against this backdrop, the decoupling of the UK and European Union (EU) legal orders that resulted from the UK’s withdrawal from the EU (‘Brexit’) has reinforced and exacerbated existing complexity in the NI system.
In the post-Brexit context, Northern Ireland acts as the touching point between the internal markets and regulatory regimes of the EU and the UK. This has the potential to be beneficial or burdensome – likely both.
Under the Protocol on Ireland / Northern Ireland, also known as ‘the Windsor Framework’ (hereafter Protocol/Windsor Framework), NI is required to stay aligned with a specified body of EU laws where the rest of the UK is not. This introduces the possibility and probability of intra-UK divergence along a Great Britain (or GB) to Northern Ireland (or East-West) axis. At the same time, for areas outside the scope of the Protocol/Windsor Framework, the lack of requirement for NI to stay aligned with EU laws after Brexit introduces the possibility and probability of divergence along an Ireland to Northern Ireland (or North-South) axis.
Importantly, the extent to which divergence occurs along these ‘North-South’ and ‘East-West’ axes, and the nature of its effect on Northern Ireland, will largely depend on choices made outside its recently (in)famous borders. The policy trajectories of the UK government read alongside the policy trajectories of the EU (and therefore Ireland) in relevant areas can be expected to determine the degree and effects of divergence experienced in Northern Ireland – managing this new reality within those (in)famous NI borders will be challenging.
When fully implemented, the specific changes brought in under the Windsor Framework can be expected to make the already complex governing environment of post-Brexit Northern Ireland even more so. Subject to trader authorisation procedures and market surveillance, the Windsor Framework permits certain retail agri-food goods, imported from GB, to be sold in NI even if they don’t meet EU standards in some areas. Additionally, the ‘Stormont Brake’ procedures – which form part of the Windsor Framework package of measures – create an obligation on politicians and officials in Northern Ireland to monitor the evolution of EU law and policy on a scale never before required, and in areas that are not necessarily devolved in NI. If/when triggered, the Stormont Brake procedures – particularly those which relate to amendments or updates to EU rules on standards of goods – can be expected to create a ‘dual divergence’ scenario in NI albeit one that is limited to the specific policy area or sector affected by the exercise of the Stormont Brake.
Why does this complexity matter for the NI constitution and its challenges?
In short, complex systems are hard to manage, this raises very difficult questions regarding the capacity and resources of the NI and/or central UK government to effectively implement and administer the novel arrangements in/for post-Brexit Northern Ireland. An absence of fully functioning devolution only exacerbates this complexity challenge.
Legal complexity also has political implications. Ensuring legislation and the institutions that make it can function effectively is not just about the development of good public policy, it is also an issue of legitimacy. If the legislation that applies in Northern Ireland results in negative or perverse outcomes due to its inherently complex set up, this will do little to ease the concerns of those already opposed to, or skeptical of, its unique post-Brexit arrangements.
[2] Diversification of Contestation.
Since its establishment, Northern Ireland has been defined by contestation over its diverging aspirations for its constitutional future and the national identities of ‘two communities’ defined by them. This is not a revelatory point. However, while its current trajectory appears not to be deviating entirely from the historical norm, it is worth noting that contemporary NI is in a process of diversification of issues within this category of (all too deeply rooted) political contestation.
Concerning this diversification, two linked observations can be made: the first on political identities and the second, which follows from it, on the substance of divisions.
On political identity: since 1998 the electoral map of Northern Ireland has changed. While in the Assembly elections of 1998, eight out of 108 seats (representing 9%) went to candidates who did not designate as either Unionist or Nationalist; in the Assembly elections of 2022, eighteen out of 90 seats (representing 20%) went to candidates who did not designate as either Unionist or Nationalist. What this means is that, although the majority of political representatives in Northern Ireland do still fit into a Unionist vs Nationalist binary, there has been a substantial and consistent growth in support for those who fit into neither of the ‘two main communities’ named in the 1998 Agreement.
This has implications for the premise that underlies power-sharing government in Northern Ireland, one that is fuelling ongoing discussions – often led by the non-aligned Alliance Party – about the need to change the designation system and its implications.
Without directly entering the debate on institutional reform regarding designation, it is worth noting that if,
as electoral and demographic indicators suggest, a growing number of individuals continue to align with neither a Unionist nor Nationalist identity in Northern Ireland, this will create a corresponding discrepancy between the identity of its population and its structure of government. This diversification of political identities matters when we consider the substance of division in Northern Ireland.
Logically, the larger the section of the NI electorate that do not strongly identify as either Nationalist or Unionist, the more concerns regarding non-identity orientated issues – including but not limited to economic wellbeing, public service delivery, government efficiency, individual rights – can be expected to come to the fore. Additionally, and linking back to the previous observation about the complexity and general messiness of the post-Brexit legislative context of NI, the outworking of the process of UK withdrawal from the EU has raised issues that were not previously prominent in NI politics. These include macro-level issues such as trade diversion, supply chain integration, regulatory divergence, and free-trade agreements; as well as more micro-level or specific concerns such as the supply of human and veterinary medicines, sourcing of seeds for planting, the supply of agricultural machinery, its market in second-hand cars etc. etc.
These issues matter for and relate to the constitutional present and future of Northern Ireland because, frankly, the government of NI under the 1998 Agreement architecture is very fragile. By design, the 1998 Agreement was structured to mitigate conflict between opposing identities – the system of governance it established, particularly in Stormont, is not one that is well-suited for managing an inherently complex legislative environment such as that which, post-Brexit, it is required to handle.
[3] Unusual Centrality
Historically, Northern Ireland has been a peripheral place within the UK and in an international context. This is not to suggest that NI has been ignored altogether for at certain times it has been recipient of considerable global analysis and attention for a place so small. Instead, it is to underline the fact that, in the domestic setting, often what has happened in NI has not been considered to have implications for what happens in the UK as a whole or in its other constituent parts.
Brexit has changed this.
With Northern Ireland after Brexit now occupying a unique position both within and between the internal markets of both the UK and the EU, any hitherto established trend of ‘blind spotting’ NI in UK politics is potentially more consequential than it has been.
The obligations of the UK under the Protocol/Windsor Framework and the enforcement mechanisms that come with it – up to and including the continued jurisdiction of the Court of Justice of the European Union – read alongside the effective interdependence of the UK-EU Withdrawal Agreement and the UK-EU Trade and Cooperation Agreement add up to an historically novel and central position for Northern Ireland in UK-EU relations… at least potentially.
Following the conclusion of the Windsor Framework and consequential easing of tensions between the UK and EU, it is important not to overstate the pivotal position of NI in the post-Brexit era. Nonetheless, it is also the case that Northern Ireland today is the primary point of connection between the internal market of the UK and the single market of the EU – this is likely to have constitutional consequences going forward.
Conclusion
As a consequence of recent constitutional changes that are short of and without prejudice to ‘that’ constitutional question (UK vs UI), Northern Ireland is a place of legislative and constitutional complexity wherein the established lines of political division and identity are diversifying (and fast); moreover, these dynamics are playing out in the changed context of its newly pivotal position in EU-UK relations.
The stakes for managing the much-discussed and the lesser-discussed constitutional issues that Northern Ireland now faces are thus higher than they have historically been. This also makes them worthy of attention, perhaps more than they are often granted on the UK-wide stage.
Lisa Claire Whitten.
Dr Lisa Claire is a Research Fellow on the ESRC-funded project ‘Governance for ‘a place between’: the
Multi-Levelled Dynamics of Implementing the Protocol on Ireland / Northern Ireland’ based at Queen’s University Belfast.
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.