By Lisa Claire Whitten
Research Fellow, Queen’s University Belfast
From Conflict to Peace: The Belfast ‘Good Friday’ Agreement of 1998 – present day
In 1998, the circumstances in and constitutional arrangements of Northern Ireland changed. Following a series of prolonged talks between previously warring parties, the Belfast ‘Good Friday’ Agreement, which was signed on 10 April 1998, heralded a new era of peace for Northern Ireland, one from which it has since progressed in a steady yet fragile manner.
The 1998 Agreement has two parts – a political agreement, agreed between and signed by political parties in Northern Ireland (the ‘Multi-Party Agreement’ (MPA)), and an international legal treaty signed by the governments of the United Kingdom and Ireland (the ‘British-Irish Agreement’ (BIA)), who act as ‘guarantors’ to the substance of the Multi-Party Agreement. Underpinning the 1998 Agreement are a series of statements regarding the constitutional status of Northern Ireland; these were affirmed by all parties and are accordingly set out in the opening sections of both the Multi-Party Agreement and the British-Irish Agreement.
Signatories recognise “the present wish of the majority of the people of Northern Ireland” is to remain in the UK (MPA, Constitutional Issues, 1(iii); BIA, Article 1(iii)) but, if that wish changes, “it is for the people of the island of Ireland alone…to exercise their right of self-determination on the basis of consent…to bring about a united Ireland” (MPA, Constitutional Issues 1(ii); BIA Article1(ii)).
The two guarantor governments agreed: to exercise any sovereign power held at any time in respect to Northern Ireland with “rigorous impartiality” (BIA Article 1(v)); to recognise the birthright of people in Northern Ireland “to identify themselves and be accepted as Irish or British, or both” regardless of the constitutional status of Northern Ireland (BIA Article 1(vi)); and to introduce legislation necessary to recognise the constitutional status of Northern Ireland in the event of any future change in that status. This series of commitments is normally referred to collectively as the ‘principle of consent’.
Based on the principle of consent, the 1998 Agreement sets out an innovative, multi-levelled system for government in Northern Ireland through the three ‘strands’ of the Multi-Party Agreement.
Strand One provides for the creation of new democratic institutions – the Northern Ireland Assembly and the Northern Ireland Executive – to which power is devolved on the basis of a consociational system for power-sharing between Nationalists and Unionists, underpinned by rights-based guarantees. Consociationalism is a system of government that aims to share power between opposing parties – in this case, Unionists and Nationalists – in circumstances of deep division.
Strand Two provides an all-island or North-South dimension through the North South Ministerial Council (NSMC) and North/South Implementation Bodies which enable cooperation between the Irish Government and the Northern Ireland Executive.
Strand Three provides an intergovernmental or East-West dimension through the creation of the British-Irish Council (BIC), designed to facilitate relations between Ireland, the UK, and its regions; and the bilateral, British-Irish Intergovernmental Conference (BIIC) to preserve and strengthen relations between the governments of the neighbouring states.
In the British-Irish Agreement, the two governments “affirm[ed] their solemn commitment to support, and where appropriate implement, the provisions of the Multi-Party Agreement” (BIA, Article 2). As such, and according to the terms of the 1998 Agreement, the Irish Government proposed an amendment to remove the territorial claim to Northern Ireland still contained in the Constitution of Ireland at the time; this was subsequently approved by referendum.
Concurrently, the principal content of the Multi-Party Agreement was transposed into UK law via the Northern Ireland Act 1998 (the 1998 Act). The explicit purpose of the 1998 Act is “to make provision for the government of Northern Ireland” (Long Title); it remains the primary statutory source of constitutional law in Northern Ireland. The 1998 Act was judicially recognised to serve “in effect a constitution” for Northern Ireland, the content of which “must be construed against the background of …the principles laid down by the Belfast Agreement for a new start” (in Robinson, 2002: 11; 25).
The explicit aim of the 1998 Act, alongside its judicial recognition as an effective constitution for Northern Ireland, and one that is to be read in light of the international legal text of the 1998 Agreement, all point to the constitutional distinctiveness of Northern Ireland.
Northern Ireland: A Consistent Constitutional Exception
For the sake of clarity, it is worth underlining that the constitutional arrangements of post-1998 Northern Ireland extend beyond the boundaries of conventional devolution. In particular, the provisions for North-South and East-West cooperation, established under Strand Two and Strand Three of the 1998 Agreement introduced quasi-confederal and inter-governmental requirements for governance in Northern Ireland with facilitating institutions whose existence is underpinned by international law.
This is exceptional in the UK constitutional context. Furthermore, the ‘principle of consent’ provision for a potential change in the future sovereignty of Northern Ireland if agreed by democratic means, alongside the notably malleable idea of nationality (British/Irish/both) by self-identification is not only exceptional in the UK but also internationally.
So far, we have not mentioned ‘Brexit’. Foremost, this Brexit omission is because consideration of the relationship between Northern Ireland’s consistent constitutional exceptionalism and its central, contested position in the process of the UK’s withdrawal from the EU is beyond the scope of this article. Suffice to say, in concluding, the two are not unrelated.
The (controversial) Protocol on Ireland / Northern Ireland, agreed as part of the EU-UK Withdrawal Agreement and given effect domestically via the (amended) European Union (Withdrawal) Act 2018 (s7A), differentiates Northern Ireland from the rest of the UK in very important ways. While, taking the long view, the decision on the part of the UK government to ‘place apart’ Northern Ireland, via the Protocol is not new, the context in which this has been done differs substantially to any other era in Northern Ireland and UK history.
Whereas previous iterations of constitutional experimentation in and for Northern Ireland have occurred on the margins of UK (and Irish) politics. As a consequence of Northern Ireland’s high profile in the process of Brexit, its continued centrality in the wider EU-UK relationship, not to mention its (newly) novel status under the Protocol all suggest that the future constitutional development of the ‘exceptional’ UK region is very likely to have repercussions extending far beyond its recently infamous borders.
For this reason alone, Northern Ireland and its constitutional eccentricities are worthy of attention.