By Brice Dickson
Professor Emeritus, Queen’s University Belfast
Devolution in Northern Ireland does not operate in the same way as in Scotland and Wales. It is not just that the powers transferred to the Northern Ireland Assembly and Executive are not identical to those transferred elsewhere. It is not even that the whole devolution system could be swept away if a referendum were to be held and a majority were to vote in favour of Northern Ireland becoming part of the Republic of Ireland (a comparable referendum threat exists in Scotland).
The fundamental difference is that in Northern Ireland the devolution arrangements must adhere to the provisions of the Belfast (Good Friday) Agreement of 1998. That means that the Executive (i.e. the government) has to be a coalition of political parties in which unionists and nationalists share power.
Obligatory power-sharing, it has to be admitted, has not been easy. In the 287 months between December 1999, when the Northern Ireland Executive first met, and March 2022, when the mandate of the sixth elected Assembly came to an end, the Executive was suspended for 100 months – 35% of the time. The First and Deputy First Minister hold a joint office, so if one of them resigns the other has to leave office too.
Some issues debated in the Assembly and Executive have to be decided on the basis of a ‘cross-community vote’ and that means that 10 out of the 90 Members of the Legislative Assembly are ignored because, being non-aligned ‘others’, their votes are not registered (this mainly disadvantages MLAs from the Alliance Party and the Green Party). Moreover, any group of 30 MLAs can defeat a legislative or policy proposal simply by lodging a ‘petition of concern’, even if all the other MLAs are in favour of it.
The 2022 Assembly election
Sinn Féin collapsed the Executive in January 2017 and it was not restored until January 2020. This followed the New Decade, New Approach agreement, reached between the British and Irish governments and the Northern Ireland parties. It promised a long list of achievements over the coming years but only a few of them were able to be realised before the Assembly completed its mandate in March 2022 prior to elections in May.
In the 2017 elections, the number of unionist MLAs elected was, for the first time ever, fewer than 50% of the total, although unionists were still the largest grouping. It is possible that in 2022 the number of unionist MLAs elected will drop further, to below that of nationalist MLAs. This will mean that it will be the biggest nationalist party, Sinn Féin, which will decide who the First Minister will be.
In such a scenario it is unclear whether the largest unionist party, the Democratic Unionist Party (DUP), will agree to nominate a Deputy First Minister. The fear is that the DUP might prefer to frustrate the operation of the power-sharing arrangements altogether. One of that party’s other main concerns is the operation of the Protocol to the UK’s Withdrawal Agreement with the EU in 2018.
In the eyes of many unionists this creates a border down the Irish Sea because checks have to be made on goods passing from Great Britain to Northern Ireland in case they are destined for the Republic of Ireland, an EU state. Litigation arguing that the Protocol is a violation of the Acts of Union of 1800 (which created the United Kingdom of Great Britain and Ireland) was unsuccessful in the Court of Appeal of Northern Ireland in March 2022, but there may be a further appeal to the UK Supreme Court.
Further devolution or direct rule?
Sectarian squabbling within the Northern Ireland Assembly has to some extent diverted attention away from the issue of whether additional powers should be devolved to Northern Ireland from London. Responsibility for policing and justice was transferred in 2010, but the Assembly still lacks any significant tax-raising or borrowing powers.
Moreover, unlike in Scotland, and to a lesser extent in Wales, there has been little pushback against the national government’s retention of certain powers which were returned to the UK from the EU as a result of Brexit but which have not yet been transmitted onwards to the devolved regions despite the fact that they relate to matters already within the responsibility of those regions.
Ever since 1998, and despite provisions in the St Andrews Agreement of 2006, politicians in Northern Ireland have been conscious of the fact that the default position, if power-sharing arrangements were to collapse completely, would be direct rule from the Parliament and Government in London, a development which would greatly anger nationalists and the Irish Government.
Nevertheless, in recent years the UK Parliament has stepped in to pass laws on issues which MLAs could not agree on, but which required to be made because of international law or commitments in agreements. This is how abortion in Northern Ireland was decriminalised in 2019 and the UK Government has said it will ask Parliament to pass legislation on the Irish language in 2022. In previous years, during the suspension of the Executive, Parliament took the opportunity to pass laws protecting people in Northern Ireland against sexual orientation discrimination and allowing them to enter into same-sex marriages.
The Belfast (Good Friday) Agreement has acquired iconic status over the years because it helped to bring an end to the politically motivated violence in Northern Ireland, but the power-sharing system it created is creaking and may need revising if it is to survive. Although it has been possible since 2016 for an ‘official opposition’ to be recognised in the Assembly, one has to wonder if such a group could ever form an effective counter to the coalition Executive which the 1998 Agreement dictates.
Meanwhile, the consequences of Brexit for Northern Ireland are unclear: trade with the Republic of Ireland has boomed, but the area’s status as a member of both the UK’s and the EU’s internal market has not to date led to any significant economic upturn, only to political turmoil.
