By Mark Elliott
Professor of Public Law, University of Cambridge
It’s often said that devolution in the United Kingdom was introduced in the late 1990s. But while that is true in relation to Scotland and Wales, the position is different in relation to Northern Ireland. There, devolution existed for much of the 20th century and was reintroduced in 1999. Understanding the political and historical background is important if we are to understand how devolution works as it does today in Northern Ireland, why it is configured as it is and what sets it apart from the devolution arrangements that we find elsewhere in the UK.
Historical and political context
The history of the island of Ireland, and of its relationship with other parts of the British Isles, is complex and fascinating. It is particularly important to remember that the island has not always been divided in the way it is today between Northern Ireland (which forms part of the UK) and the Republic of Ireland (which is a separate, independent country). Until the early 1920s, no such division existed, and the whole of the island of Ireland was part of the UK. However, in 1920, amid conflict and political turmoil concerning the status of Ireland within the UK, the UK Parliament enacted legislation providing for devolved parliaments in Northern and Southern Ireland.
This was an attempt to extend a degree of independence to Ireland — thereby seeking to meet to some extent the wishes of those who favoured full independence — while retaining Ireland within the UK. But the strategy was far from fully successful, with the new arrangements taking effect (in 1921) only in Northern Ireland. The remainder of Ireland ceased to be part of the UK with the partition of the island and the creation of the Irish Free State (later the Republic of Ireland) in 1922.
Thus, from 1921, Northern Ireland, while remaining within the UK, had its own Parliament and Government. Northern Ireland chose this path by opting out of becoming part of the Irish Free State, reflecting the balance of opinion within Northern Ireland between Unionism and Nationalism (that is, between those who favour remaining within the UK and those who favour joining with the Republic of Ireland).
Devolution remained in place in Northern Ireland until the early 1970s. ‘Direct rule’ from London was introduced in 1974 following the collapse of the devolved administration in Belfast and against the background of ‘the Troubles’ — a period of armed conflict involving Nationalist and Unionist paramilitary groups along with British security forces. Devolution would not resume (in a new form) in Northern Ireland until 1999. When it did, this reflected the outcome of long and delicate negotiations culminating in the Belfast Agreement (or the Good Friday Agreement) on 10 April 1998.
Among other things, this provided for the establishment of a new scheme of devolution involving the creation of a new Northern Ireland Assembly and a Northern Ireland Executive. Domestic legal effect was given to the Belfast Agreement in the UK through the enactment of the Northern Ireland Act 1998 (NIA). Although devolution (in its new form) took effect in Northern Ireland on 2 December 1999, it has not continuously remained in place since then: devolution has been suspended, and ‘direct rule’ reintroduced, on a number of occasions, most notably from 2002 to 2007.
This period of suspension occurred because of disagreement between political parties in Northern Ireland about progress towards the decommissioning of terrorist weapons. There was also a substantial period, from 2017 to 2020, when (following the collapse of the Northern Ireland Executive) government was carried on through a combination of administration by the Northern Ireland Civil Service and legislation enacted for Northern Ireland by the UK Parliament.
Devolution in Northern Ireland today
In some — but, as we will see, not all — respects, the devolution system that applies in Northern Ireland is similar to the systems that apply in Scotland and Wales. As already mentioned, the NIA creates a legislative body (the Northern Ireland Assembly) and an administrative body (the Northern Ireland Executive), establishing institutional structures comparable to those that exist in Cardiff and Edinburgh (and, for that matter, London).
Meanwhile, in line with the approach outlined in our introductory post in this series, the UK Parliament has not relinquished its law-making powers in relation to Northern Ireland — but it does not normally legislate for Northern Ireland on matters lying within Northern Ireland’s powers unless the Assembly agrees to such legislation.
As in Scotland and (now) Wales, a line is drawn between matters on which the devolved Assembly can legislate (known as ‘transferred matters’ in Northern Ireland) and those on which only the UK Parliament can legislation (‘excepted matters’). Transferred matters include health, education, employment, agriculture, social security, local government, environmental issues, transport, and justice and policing. Excepted matters — responsibility for which remains with Westminster — include the constitution, international relations, defence, immigration and national security.
However, while this framework is similar to the arrangements that apply in Scotland and Wales, the Northern Ireland scheme is different in an important respect — namely, the existence of a third category of matters, known in relation to Northern Ireland as ‘reserved matters’. In Scotland and Wales, reserved matters can be dealt with only by the Westminster Parliament (and thus equate to what are called ‘excepted matters’ in relation to Northern Ireland).
However, in Northern Ireland, while responsibility for reserved matters generally remains with the Westminster Parliament, the Northern Ireland Assembly can legislate on such matters if it gets permission from the UK Government. Reserved matters in Northern Ireland include firearms, financial services, broadcasting, international trade, consumer safety and intellectual property.
Special features of devolution in Northern Ireland
There are also other, larger differences between the scheme of devolution that applies in Northern Ireland and those that are found in Scotland and Wales. In this regard, three points in particular are worth noting.
First, it is important to understand that devolution in Northern Ireland is not a purely internal UK matter and, correspondingly, that it is not governed exclusively by domestic (UK) law. This is because, as noted above, devolution in Northern Ireland is underpinned by the Belfast Agreement. The Belfast Agreement is in part a Multi-Party Agreement — providing, among other things, for devolution in Northern Ireland — involving not only the Governments of the UK and the Republic of Ireland but also Northern Ireland political parties. The Belfast Agreement also comprises the British-Irish Agreement: an international treaty in which the two Governments commit to implementing the Multi-Party Agreement.
The upshot is that the UK is bound in international law, by virtue of its treaty obligations under the British-Irish Agreement, to provide for devolution in Northern Ireland. This means, in turn, that devolution in Northern Ireland is (uniquely among the UK’s devolution schemes) underpinned — and required — by international law.
As a result, the idea, explored in our introductory post, that devolution can — in theory — be abolished at the whim of the sovereign UK Parliament must be reappraised in relation to Northern Ireland. While the UK’s treaty commitments do not diminish the Westminster Parliament’s powers as a matter of domestic law, they limit its room for manoeuvre if it wishes to avoid placing the UK in breach of its international obligations.
Second, the Northern Ireland Executive operates in a way that sets it apart from other governments in the UK. Elsewhere, elections to legislatures — such as the Senedd Cymru (Welsh Parliament), the Scottish Parliament and the UK (Westminster) Parliament — determine which political party or parties get to form the relevant government on the basis of a simple majority.
In contrast, Northern Ireland has a ‘power-sharing executive’. This means, in effect, that there must be a coalition government, with power shared between Nationalist and Unionist parties: for example, if (as at present) the First Minister is a member of a Unionist party, the Deputy First Minister must be a Nationalist.
Meanwhile, certain matters require not simply majority, but cross-community, support within the Northern Ireland Assembly, meaning that such matters must be supported by a certain percentage of Nationalists and Unionists. These arrangements are intended to ensure the legitimacy of the government of Northern Ireland by securing support that transcends traditional political divisions between Unionists and Nationalists.
Third, the NIA contains provisions about Northern Ireland’s constitutional status that find no equivalent in the devolution legislation that applies to Scotland and Wales. Section 1 of the NIA states that Northern Ireland ‘in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland’ in a referendum. But it also goes on to say that if, in such a referendum, a majority were to favour a united Ireland, the UK Government would be obliged to lay before the UK Parliament proposals giving effect to that wish.
Moreover, the UK Government is legally required to call a referendum if it ‘appears likely’ that a majority would favour a united Ireland. No such referendum has yet been held, but the existence of this mechanism — which puts Northern Ireland’s constitutional future front and centre in its devolution settlement — sets it apart from all other parts of the UK and attests to the unique political history and constitutional position of Northern Ireland.