1998 Agreement the North-South Dimension at 25

By: Lisa Claire Whitten

The North-South aspects of the 1998 Agreement contain some of its most constitutionally innovative provisions. Although not often acknowledged as such in the UK context, Strand Two institutions and related provisions introduced a quasi-confederal dimension to the domestic constitutional context, albeit one that is often contingent on the quality of political relations between the two jurisdictions on the island.

As set out in this article, due to the UK’s withdrawal from the EU and the consequential decoupling of the legal orders and policy trajectories on either side of the winding land border, to continue for another 25 years, North-South cooperation will be required to navigate more complexity and less certainty than ever before. 

North-South cooperation: the origins

Strand Two of the Belfast/‘Good Friday’ Agreement (the 1998 Agreement) is one of its more constitutionally innovative aspects. Addressing relations between the two jurisdictions on the island of Ireland, it provided for the creation of a ‘North/South Ministerial Council’ (NSMC) to bring together: 

…those with executive responsibilities in Northern Ireland and the Irish Government, to develop consultation, co-operation, and action within the island of Ireland – including through implementation on an all-island and cross-border basis – on matters of mutual interest within the competence of the Administrations, North and South (S2 para 1).

The 1998 Agreement provided, under Strand Two, for six ‘Implementation Bodies’ to be established to facilitate cooperation in dedicated areas and specified twelve areas where cooperation could take place while also allowing for any others to be considered, in future, by the NSMC. 

Almost a year after the 1998 Agreement was signed, in March 1999, two bilateral UK-Ireland treaties were made which implemented commitments of Strand Two as regards the establishment of, respectively, the North-South Ministerial Council[1] and Implementation Bodies[2]. The treaties entered into force on 2 December 1999; the inaugural meeting of the NSMC took place eleven days later. 

Although not often discussed in such terms, the constitutional novelty of Strand Two institutions and the commitments they are purposed to fulfil are clear. Established by dedicated treaties, the NSMC and N/S Implementation Bodies are, properly understood, creatures of international law; UK law reflects this. 

Under Schedule 2 of the Northern Ireland Act 1998 – which sets out those areas of competence that are retained by the UK government under the devolution settlement – there is a ‘North/South’ carve out to the otherwise ‘excepted’ power to engage in international relations. Provision is made for “the exercise of legislative powers” on the part of NI Ministers “so far as required for giving effect to any agreement or arrangement entered into… in a meeting of the North-South Ministerial Council” or in relation to the activities of any N/S Implementation Body (1998 Act, Sch 2 para 3).

On the basis of their international law underpinning the Strand Two institutions occupy a unique constitutional space in the UK and also internationally. N/S cooperation enables a sub-state entity – Northern Ireland – of a still relatively centralised state to enjoy law-making autonomy with another state – Ireland – within the limits of powers devolved to it, but with guarantees in international law for its continuation. Viewed in this way, in constitutional terms, Strand Two of the 1998 Agreement invokes confederalism, at least in theory.

The realisation of the potential for N/S cooperation is of course constrained by the extent to which Northern Ireland and Ireland want to work together. In this respect, there has tended to be very few major policy initiatives taken forward via N/S institutions since 1998. It is also the case, however, that N/S cooperation has expanded significantly in its first 25 years, particularly in policy areas outside those traditionally associated with political conflict on the island of Ireland and through which practical benefits can accrue to citizens on either side of the land border; one of the outcomes of UK-EU withdrawal negotiations provided the most detailed account of this post-1998 dynamic. 

North-South cooperation: the Brexit problem

Early in the process of UK withdrawal from the EU, avoiding a hard border on the island of Ireland was a shared aim of both sides as was ‘protecting the 1998 Agreement’ including its Strand Two dimension. Presumably in an attempt to discover what this latter aim might mean in substance, the UK and EU in 2017 carried out a joint ‘Mapping Exercise’ to identify the extent of established N/S cooperation and the degree to which it relied on shared EU law and policy frameworks. 

From the 12 areas initially identified in the 1998 Agreement, the UK and EU teams found 142 areas of active cooperation. Of these 54 were classified as ‘directly underpinned by or linked’ to EU law/policy frameworks, 42 as ‘partially underpinned by or linked to’ and 46 as ‘not underpinned by or linked to’ EU law/policy frameworks. 

On the basis of the Mapping Exercise three things were therefore clear (1) North-South cooperation had expanded significantly since 1998 (2) joint UK and IRE membership of the EU had facilitated this expansion (3) existing areas of N/S cooperation were therefore exposed to Brexit and its outworkings. Findings from this Mapping Exercise directly informed the legal text (eventually) agreed between the UK and EU regarding Ireland and Northern Ireland after Brexit, otherwise known as the Protocol. 

North-South cooperation: the (partial) Protocol solution

The stated objective of the Protocol agreed between the UK and the EU is to “address the unique circumstances on the island of Ireland” in the context of Brexit “to maintain the necessary conditions for continued North-South cooperation, to avoid a hard border and to protect the 1998 Agreement in all its dimensions” (Article 1(3)). With this aim, the Protocol addressed Strand Two and North/South relations in two ways: by making arrangements (in Articles 5 to 10) such that, in effect, NI remained in the EU single market for goods and thus the need to implement a physically hard border along the winding 300km long IRE/NI frontier was avoided; and by an ‘in principle’ commitment (in Article 11) requiring its terms to be ‘implemented and applied’ in such a way as to ensure necessary conditions for N/S cooperation outside of those related to the movement of goods are maintained. The second of these begs the question as to the sufficiency of the Protocol in its entirety in maintaining said conditions; for this, the 2017 Mapping Exercise is instructive.

Comparing the list of EU laws that the Protocol makes applicable to in Northern Ireland and those EU laws listed in the 2017 Mapping Exercise as directly or indirectly underpinning North-South cooperation pre-Brexit enables an initial assessment of the extent to which the Protocol meets its objective on North-South cooperation. 

The answer is, in short, “could do better”. While 35 areas of North-South cooperation identified in the Mapping Exercise are fully covered by the Protocol, 33 areas are only partially covered, and 28 areas are not covered. Notwithstanding its objective, the Protocol as agreed therefore maintains, post-Brexit, only some of the pre-Brexit ’necessary conditions for continued North-South cooperation’, not all.

Gaps in the scope of the Protocol as regards N/S cooperation could be addressed in the course of its ‘implementation and application’ via bodies and mechanisms set up to oversee it. As part of its ‘constant review’ of the extent to which the implementation and application of the Protocol (as per Article 11(2)), the Joint Committee could make ‘appropriate recommendations’ to the UK and the EU which may lead to changes in the Protocol for that purpose. The Specialised Committee, established under Article 14 of the Protocol, could play a role here. One of its tasks is to ‘examine proposals concerning the implementation and application’ of the Protocol from the NSMC and North-South Implementation bodies (Article 14(b)) on which basis, the Specialised Committee could make recommendations to the Joint Committee (Article 14(e)). Taken together these provisions create an avenue – from Strand Two institutions to the Specialised Committee to the Joint Committee and then to the UK and the EU – for potential developments regarding the extent to which implementation and application of the Protocol maintains the conditions necessary for North-South cooperation.

Additionally, under Article 4 of the Council Decision ((EU) 2020/135) on the Withdrawal Agreement, it would (at least theoretically) be possible for Ireland and the UK to make bilateral arrangements, including in areas of EU competence, provided these were shown to be “necessary for the proper functioning” of the Protocol. Reading Article 4 of the Council Decision in light of Article 11 of the Protocol and in the knowledge of the latter’s insufficiency in maintaining all necessary conditions for N/S cooperation alone, a future bilateral UK-Ireland or a UKNI-Ireland agreement to address post-Brexit gaps in law/policy frameworks underpinning Strand Two cooperation is possible, although not probable, at least in the short-term. 

It is worth making clear that, notwithstanding the extent of UK withdrawal from the EU’s impact on N/S cooperation, UK-EU mechanisms are not the only means for its development post-Brexit. Following the second subparagraph of Article 11(1) of the Protocol, the UK and Ireland ‘may continue to make arrangements that build on the provisions of the 1998 Agreement in other areas of North-South cooperation’ provided that these respect EU law obligations. This returns us to where we started: the 1998 Agreement. Strand Two institutions remain the primary vehicle by which N/S cooperation exists and can continue to develop post-Brexit, albeit in more challenging, less-than-necessary conditions.

North-South cooperation: a ‘Framework’ for the future

With much fanfare and to some surprise, on 27 February 2023, the UK Prime Minister Rishi Sunak and EC President Ursula von der Leyen announced that a deal on the implementation of the Protocol – hereafter to be known as the ‘Windsor Framework’ – had been reached. 

The provisions of the Framework fall into two categories – those concerning the movement of goods and those concerning governance. Not all of its (extensively detailed) provisions are relevant to this discussion, but some are. 

Regarding goods, the Framework introduces a series of measures designed to ease the burden of checks and controls on GB-NI movements. The primary mechanism by which this is to be achieved is through the introduction of a ‘green-lane and red-lane’ system that differentiates goods based on destination. 

Regarding governance, the Framework provides for a series of new mechanisms designed to ensure greater NI involvement in bodies and processes associated with its implementation. Including, for example, commitments on the part of the EU to conduct workshops, briefings, and consultations for Northern Ireland stakeholders on any areas of law or policy of relevance to its unique arrangement for participation in and alignment with the EU market. Undoubtedly the governance provision in the Framework that generated the most headlines is the so-called ‘Stormont Brake’; this aspect is also most pertinent to N/S cooperation and its future. 

The constitutionally innovative Stormont Brake procedure comes in two types – one related to ‘amendments and replacements’ of EU rules on the regulation of goods that apply in Northern Ireland, and one related to the potential addition of new EU acts to the scope of the Framework. In both cases, MLAs will be able, subject to fulfilment of certain conditions, to ‘notify’ the UK government of their concerns regarding an update or amendment to EU law due to apply in Northern Ireland and/or regarding the lack of cross-community consent for the ‘application’ of a new EU act proposed to be added to the scope of the Framework. If, under the Stormont Brake procedures, the UK government accepts as legitimate MLAs ‘notification of concern’ (about an update) or lack of consent (for an addition) it can, acting in the Joint Committee, request the EU to initiate a ‘brake’ to the relevant update or addition – meaning that the new EU law provision would not take effect in Northern Ireland. 

By implication, if either form of the Stormont Brake is initiated its result will be automatic divergence between Northern Ireland and Ireland in areas within the scope of the Framework and therefore within the scope of established N/S cooperation. 

Operationalisation of the ‘Stormont Brake’ process(es) domestically came in the form of an amendment to the NI Act 1998 via the Windsor Framework (Democratic Scrutiny) Regulations 2023. Under the terms of this (still draft) statutory instrument, in the event that there is not cross-community consent in the NI Assembly for the addition of a new EU act to the scope of the Framework, relevant UK Ministers are still empowered to consent for that EU act to be added if they discern ‘exceptional circumstances’ to be in play. One of the mandatory facets of this discernment is whether or not the addition of the new act would introduce a new regulatory border GB to NI. One of the prohibited facets of this discernment is any remedial measures the EU may or may not take as a result of any non-addition. 

The collective provisions of the Framework therefore have the potential to, in practice, result in a reversal in the trajectory of N/S cooperation on the island of Ireland. 

On this issue, the UK Framework Command Paper is explicit, it states: 

“The Government recognises that these changes do create a different legal and practical context on the island of Ireland, with substantial and likely increasing divergence between Northern Ireland and Ireland over time – building, of course on the in-built capacity for divergence in the vast majority of areas outside the Protocol including environmental law, professional qualifications, employment law, procurement, immigration, banking, data, and a wide range of services and other rules” (para. 55).

Read in light of the 1998 Agreement, UK government policy on it, and the initially agreed text of the Protocol itself, this extract from the WF Command Paper amounts to either a remarkable U-turn in UK policy as regards N/S cooperation or a stunning example of policy amnesia on the part of central government. Regardless, from a Strand Two perspective, the inauguration of the Framework constitutes an acceleration in the disruptive dynamic begotten by Brexit overall. 

Towards an uncertain future

On the cusp of its second 25 years, Strand Two of the 1998 Agreement is not in good health. The NSMC is not in operation because the devolved Strand One Northern Ireland institutions are not in operation. At the same time, the decoupling of the legal and policy trajectories of the UK and Ireland that resulted from Brexit, has pushed N/S cooperation into a new, complex, and contingent paradigm. 

The Protocol only partially fulfilled its aspiration for N/S cooperation by providing the necessary conditions for some but not all areas of established cooperation to continue post-Brexit. As a consequence, efforts to continue or develop Strand Two of the 1998 Agreement in its second 25 years will be required to navigate a level of complexity never before seen. With the introduction of the Framework and with it the option for the NI Assembly to elect not to align with the EU/Ireland in areas of established N/S cooperation, the future of Strand Two is perhaps less certain than at any time since 1998. 

Yet, notwithstanding the challenges it faces, the considerable expansion of substantive N/S cooperation in its first 25 years is a little-told success story in the wider tale of the still-processing peace that exists on the island of Ireland. This alone is reason for hope – the present obstacles to the continuation of cooperation are significant but they are not, necessarily, insurmountable. Doing so will require much greater attention on this oft-overlooked constitutionally innovative strand of governance in the UK, and unfortunately that does not appear to be forthcoming. 

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.
 

This blog is the fourth 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] Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland establishing a North/South Ministerial Council (2000) Treaty Series No. 53

[2] Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland establishing Implementation Bodies (2000) Treaty Series No. 51