By Lisa Claire Whitten
Research Fellow, Queen’s University Belfast
Northern Ireland is, and always has been, a constitutionally unique UK region. Indeed, as this account of its history suggests, Northern Ireland has often played the part of an exception that disproves, or at least challenges, the constitutional rules and norms that apply elsewhere in the UK.
It follows that Northern Ireland has also frequently been depicted as ‘a place apart’ in analyses of and debates about the UK constitution. While, perhaps, understandable, this ‘placing apart’ tendency can also be problematic if and when it prevents the particularities of Northern Ireland from being recognised and accommodated in UK-wide constitutional discussion and development.
With this in mind, the aim of this article is to provide a (very brief) overview of the constitutional history of Northern Ireland and, in concluding, to underline the importance of attending to the unique constitutional arrangements of this most ‘exceptional’ UK region going forward.
Northern Ireland: A (Very Brief) Constitutional History
Since it was created in 1921, Northern Ireland has been a place of constitutional contestation. In the early 1920’s, the de-stabilization of a union that had existed between Great Britain and Ireland since the Acts of Union 1800, led to the creation of two new constitutional settlements on the island of Ireland – a devolved parliament under the authority of Westminster in Northern Ireland, and an independent Irish Free State in what later became the Republic of Ireland.
The new institutions for devolved government in Northern Ireland were set up under the Government of Ireland Act 1920 (the 1920 Act). The 1920 Act was intended to create two legislatures – one for Northern Ireland in Belfast and one for Southern Ireland in Dublin – and to apply across the whole island of Ireland. However, following the Irish War of Independence (1919 – 1921) and the truce reached between the British Government and Irish Nationalists in the Anglo-Irish Treaty of 6 December 1921, the provisions of the 1920 Act were implemented in Northern Ireland alone.
Although often referred to in the singular, three acts were passed to achieve the same purpose: the Union with Ireland Act 1800 c 67 passed in Westminster; the Act of Union (Ireland) 1800 c.38 passed in Dublin; and An Act for the Union of Great Britain and Ireland 1800 which was signed by both parliaments.
Under the 1920 Act, the Westminster government retained supremacy over Northern Ireland (s6) and excepted powers in a stated list of areas that included matters of the Crown, the military and foreign relations (s4). Outside of explicitly excepted matters, the new legislature was given “power to make laws for the peace, order and good government” of Northern Ireland (ibid). In practice, the competencies of the bicameral Northern Ireland Parliament and Government included education policy, planning, local government, law and order, civil and criminal law, minor taxation, appointment of local magistrates and judges, and in health and social services.
Executive powers were located in the Prime Minister for Northern Ireland – leader of the largest (invariably Unionist) party – who presided over a same-party Cabinet. Partly due to electoral law reforms made by the Northern Ireland Government in the late 1920’s, the governing architecture of Northern Ireland, in effect, facilitated indefinite rule by a Unionist, largely Protestant, majority, at the expense of a Nationalist, largely Catholic, minority. In the words of Northern Ireland’s first Prime Minister, this was “a Protestant Parliament and Protestant State”.
With a Prime Minister, a Cabinet, and a Parliament all subject to very limited scrutiny by Westminster, Northern Ireland operated from 1920–72 with all the trappings of a ‘mini-state’. Its status was without parallel in the British Commonwealth at the time – it was neither a dominion nor a colony – but an integral part of the United Kingdom yet one with a separate legislature and an executive that derived from, and operated in accordance with, one codified constitutional text: the 1920 Act.
From Self-Rule to Direct Rule: The Troubling Years of 1969 – 1998
Government in Northern Ireland continued in a state of relative stability, under the terms of the 1920 Act, implemented by successive Unionist leaders, until 1968. When a series of civil rights demonstrations, organised that year, led to clashes between largely Catholic/Nationalist demonstrators, largely Protestant/Unionist counterdemonstrators, and the Royal Ulster Constabulary (RUC) police force, that relative stability began to breakdown.
Following interventions from Westminster, the first era of self-rule in Northern Ireland, and first experiment in devolved governance in the UK, ended in March 1972 with the resignation of the Unionist Government and resultant collapse of the Stormont Parliament amid a seemingly inexorable slide into civil war.
Efforts were made to establish a new system of devolved government, but none proved successful. In the wake of failure to reinstitute devolution, the UK government brought in a system for ‘interim’ direct rule under the Northern Ireland Act 1974 which made provision for ‘temporary’ direct rule until the next devolutionary scheme could be agreed.
Under the 1974 Act legislation for Northern Ireland was passed by Order in Council for all matters previously reserved or transferred under the 1920 Act. In practice, this meant most laws that applied in Northern Ireland took the form of secondary legislation, made via a procedure that did not allow for amendment, and left almost no room for parliamentary scrutiny. The power to determine the policy direction of new legislation in previously devolved areas was vested in the Secretary of State for Northern Ireland and five junior British government ministers; scrutiny of their powers happened in Westminster on a limited basis.
This system of direct rule that had been justified by the UK government because of (granted) very exceptional circumstances, and with the intention that it would not last, became the blueprint for the governance of Northern Ireland for over two decades.