A Troubled Constitutional Future

Northern Ireland after Brexit

Mary C. Murphy, Jonathan Evershed

• Publisher: Agenda Publishing
• Year: 2022
• ISBN:
  9781788214148
• Topic: Política y relaciones internacionales
• Subtopic: Constituciones

*** WINNER OF THE 2023 UACES BEST BOOK PRIZE ***

The UK's decision to leave the EU has opened up huge existential questions for Northern Ireland as it marks its centenary. Constitutional conflict in Northern Ireland had been regarded as largely resolved and settled, but Brexit has altered the wider constitutional framework within which the 1998 Good Friday Agreement is situated. With the question of Irish unity gaining renewed and sustained traction, and with trade, relationships and politics across "these islands" in a state of flux, Northern Ireland approaches a constitutional moment.

Murphy and Evershed examine the factors, actors and dynamics that are most likely to be influential, and potentially transformative, in determining Northern Ireland's constitutional future. This book offers an assessment of how Brexit and its fallout may lead to constitutional upheaval, and a cautionary warning about the need to prepare for it.

1

Introduction

Long before Brexit took shape, the UK’s troubled relationship with the EU had left destructive and divisive marks on its internal politics. Deep-rooted and long-held anxieties about the EU’s perceived assault on British sovereignty and identity had spawned Eurosceptic parties, had widened divisions within existing political parties and exerted increasing pressure for a referendum on the UK’s membership of the EU. Countless column inches, extensive media coverage and hours of political debate about the merits and mistakes of the UK’s relationship with the EU had punctuated British politics since its accession and long before the 2016 vote. In the days, months and years after the Brexit referendum, the volume of commentary and critique exploded. In one of the first and best-selling Brexit tomes, Tim Shipman (2016) recounted the extraordinary tale that is the Brexit referendum and its aftermath. It stands as a rigorous and engaging account of that early Brexit period. However, for all its detail, depth and rigour, it is an incomplete and skewed study of the Brexit story because there is little to no consideration of the “Irish question”¹ – the singular issue that would come to dog the UK’s withdrawal from the EU. Shipman’s omission (or oversight) is emblematic of how and why Brexit has led to a constitutional crisis for the UK and produced a constitutional watershed for the island of Ireland. The critical failure by successive British governments to acknowledge or to understand fully the myriad complexities of the UK’s departure from the EU, and its far-reaching political and economic implications for Northern Ireland in particular, created conditions under which some (as of yet undetermined) form of political and constitutional change now seems inevitable.

The 2016 referendum result forced “the Irish question” back to the centre of British politics, heralding a renewed interest in Northern Ireland in “mainland” Britain. Barely discussed during the referendum campaign, Northern Ireland and its border with the Republic of Ireland became the most complex, contested and vexing component of the Brexit withdrawal process (de Mars et al. 2018; Murphy 2018a; Cochrane 2020; McCall 2021). With a majority in Northern Ireland having voted Remain, and facing the prospect of a potentially economically disastrous cliff-edge Brexit, Northern Ireland found itself caught between a British government resolved to leave the EU on the hardest possible terms, an Irish state committed to maintaining an open border on the island of Ireland, and an EU intent on protecting the integrity of its single market.

The Withdrawal Agreement reached in October 2019, and specifically its Protocol on Ireland/Northern Ireland, means that Northern Ireland is now subject to a legal and political infrastructure which will mark it as enduringly distinct: as all the more clearly a “place apart”. Protracted and heated disagreement between the British government and the EU on the implementation of the Protocol has been keenly felt in Northern Ireland, where it has complicated (and challenged) East– West trading arrangements, intensified existing political tensions and led to street-level loyalist violence. This political agitation and violence is linked to intense unionist insecurity and base fears around how Brexit has “mainstream[ed] discussion on Irish reunification” (Harvey 2018). There are deep and enduring differences between unionism and nationalism as to what constitutional formula is appropriate and desirable for Northern Ireland in the long term. As Northern Ireland marks its one hundredth anniversary, the question of its constitutional future has perhaps never been more open ended, nor the debate about Irish unification more salient.

As a moment of deep economic and political uncertainty and instability, the UK’s Brexit legacy has created conditions which may lead to potentially profound constitutional shifts across “these islands”. Brexit has produced a “critical (constitutional) moment” for the UK and Ireland: a window of opportunity for the pursuit and achievement of either a new constitutional arrangement, or an altered constitutional settlement for Northern Ireland. This book documents the genesis and extent of the UK’s Brexit-related constitutional crisis in terms of how it applies to and impacts on Northern Ireland.

Based on an intensive level of engagement over several years with key stakeholders in the Brexit process in the UK, Ireland and the EU, we identify, track and analyse how the perspectives of key political agents across “these islands” have shifted (and in some cases hardened) in relation to Northern Ireland’s constitutional situation. The specific focus here is on how Irish nationalism, Ulster unionism, Northern Ireland’s so-called middle- or centre-ground² and the British and Irish governments have all been impacted by the Brexit crisis; their role in and responses to the constitutional dynamics which Brexit has unleashed; how they have confronted (and will continue to confront) shifting constitutional foundations; what this means for Northern Ireland’s fragile “negative peace”; and how it impacts on relationships on the island of Ireland, and those between Ireland and the UK. By examining the impact and influence of key actors in events during, and perspectives on, Northern Ireland’s “constitutional moment”, this book seeks to document the relationship between choice and consequence: how the decisions and actions of those actors will be causally decisive in shaping Northern Ireland’s future constitutional trajectory.

There is a particular emphasis here on how Brexit has disturbed key elements of Northern Ireland’s post-1998 political settlement, which, prior to 2016, had come to be viewed as largely stable. We explore in detail how the UK’s exit from the EU has challenged the wider constitutional framework within which the 1998 Belfast/Good Friday Agreement is situated. With the question of Irish unity gaining renewed and sustained traction, this book analyses and unpacks the factors and dynamics that are most likely to be influential and potentially transformative in determining Northern Ireland’s constitutional future. Throughout, there is an important cautionary warning about how Brexit, and the existential crisis it has unleashed in and for the UK, produces conditions which, if not timed and managed sensitively, are conducive to upheaval and instability on the island of Ireland. In a situation where substantive (constitutional) change is possible, a range of outcomes exist. Nonetheless, in such moments, the possibility of unintended consequences cannot be discounted, and whatever constitutional path transpires, it is one that will inevitably be contested and will ultimately be irreversible.

“An apparently stable consociational democracy”

Defined by the violence of British colonialism and its legacies, the history of relations between Ireland and Britain is riddled with bloody conflict (O’Leary 2019a, 2019b, 2019c). For centuries, politics on the island of Ireland were defined by unrest, rebellions and uprisings, and marked by hostility between natives and settlers, Protestants and Catholics, unionists and nationalists. In the early twentieth century, a new phase of anti-colonial struggle and instability marked by war, violence and political and constitutional upheaval ended with the partition of Ireland. In the south, what was founded as the Irish Free State eventually became the independent Republic of Ireland. In the six north-eastern counties of Protestant majority, Northern Ireland was founded as a “Protestant state for a Protestant people” within the Union. This devolved “Orange State” (Farrell 1980) entrenched patterns of unionist power and anti-Catholic discrimination which, in the late 1960s, catalysed a prolonged period of political violence known euphemistically as “the Troubles”.

This conflict would endure for more than a quarter of a century, and it hinged, ultimately, on differing unionist and nationalist interpretations as to the legitimacy of the Northern Irish state and its border(s) with the Republic of Ireland: that is, on the foundational question of sovereignty, and of Northern Ireland’s constitutional status. The end of paramilitary violence in Northern Ireland in 1994 changed the political dynamic and facilitated multi-party talks on a new settlement and a new set of institutions and governance arrangements. Those talks produced the 1998 Belfast/Good Friday Agreement, which signalled a route towards a permanent political realignment, underpinned by a series of interdependent and interlocking institutions. The Agreement forms the basis for devolved power-sharing governance in Northern Ireland, within North–South and East–West institutional frameworks (see Table 1.1).

The interlocking strands of the Belfast/Good Friday Agreement do not make for a conventional system of governance based on majoritarian democracy. Rather, it is a system based on consociational principles (see Lijphart 1996), which means that it includes provisions designed to accommodate cross-community power-sharing, minority protections, community autonomy and equality, and weighted majority decision-making on contentious issues (O’Leary 1999). The power-sharing system is based on a process of “designation”, whereby Members of the Northern Ireland Assembly (MLAs) are required to designate as “Unionist”, “Nationalist”, or “Other”. Within the Northern Ireland Executive, the offices of First Minister and Deputy First Minister are shared, with the First Ministerial role going to the nominee from the largest party, and the Deputy First Ministerial role to that of the largest party of the second largest designation.³ The d’Hondt method is used to allocate the remaining ministerial posts according to the number of seats each party has in the Assembly.⁴ This guarantees proportionate representation within the Executive for both unionists and nationalists. Key decisions of the Northern Ireland Assembly require cross-community support, achieved through the use of one of two methods: parallel consent or weighted majority.⁵ Critics argue that these kinds of consociational prescriptions formalize, legitimize, and perhaps even entrench ethnic bloc politics (see, e.g., Dixon 1997; Taylor 2009). The Alliance Party is especially critical of how their choice to designate as “Other” limits the extent of their influence by affording priority to unionist and nationalist ethnic identities (see Farry & Neeson 1998; see also Chapter 5).

Table 1.1 The three strands of the Belfast/Good Friday Agreement (1998)

Stand	Characteristic	Institutions
Strand 1	Internal	A directly elected 108-member* Northern Ireland Assembly operates on a cross-community basis with full legislative and executive control over “transferred matters” (and some reserved matters).
Strand 2	North–South	The North/South Ministerial Council (NSMC) comprises representatives from the Irish government and the devolved Northern Ireland administration. It meets in sectoral and plenary format “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” (Strand 2, para 1).**
Strand 3	East–West	The British–Irish Council comprises representatives from the UK and Irish governments; representatives of the devolved administrations in Scotland, Northern Ireland, and Wales; and representatives from the Isle of Man and Channel Islands. It was established “to promote the harmonious and mutually beneficial development of the totality of relationships among the peoples of these islands” (Strand 3, para 1). It aims to reach agreement on cooperation on matters of mutual interest*** and does so through discussion, consultation and the exchange of information. In addition, the Agreement creates the British–Irish Intergovernmental Conference (BIIGC) which brings together the British and Irish Governments to promote bilateral cooperation at all levels on all matters of mutual interest within the competence of both governments.

Notes: * The size of the Northern Ireland Assembly was reduced to 90 members in 2016.

** The Belfast Agreement stipulates a range of areas for North–South cooperation and implementation: agriculture, education, transport, environment, waterways, social security/social welfare, relevant EU programmes, inland fisheries, aquaculture and marine matters, health, urban and rural development. The work of the NSMC is supported by a series of all-island implementation bodies – one such body is the Special EU Programmes Body (SEUPB) which oversees cross-border EU funding programmes.

*** The Belfast Agreement is less prescriptive in relation to areas of BIC cooperation, when compared to the NSMC. However, the Agreement does suggest that suitable areas for early discussion may include transport links, agricultural issues, environmental issues, cultural issues, health issues, education issues and approaches to EU issues. The work of the BIC has since expanded to 11 work sectors.

Source: Adapted from Murphy (2018a: 5).

The achievement of relative peace and stability in Northern Ireland after 1998 was linked to “a particular conjunction of underlying circumstances which laid the conditions for agreement” (Coakley 2008: 110). These included a sense of fatigue and stalemate among combatants; an openness to compromise among nationalists and unionists in Northern Ireland; determined engagement by the British and Irish governments; and the role played by external brokers (most especially the US, but also the EU). As violence dissipated and the peace process bedded down, the institutions created by the Belfast/Good Friday Agreement produced “an apparently stable consociational democracy” (ibid.: 110).

Public and political interest in Northern Ireland subsequently abated, as the “Irish question” which had – to a lesser or greater extent – helped to shape British politics in the twentieth century was roundly felt, finally, to have been settled. Despite being a historic achievement, however, the 1998 Agreement did not signal the end of the Northern Ireland peace process. The new institutions and political arrangements certainly stabilized relations within Northern Ireland, on the island of Ireland and between the UK and Republic of Ireland, but they did not entirely eradicate the basis for division and disagreement between the unionist and nationalist ethno-political blocs. Indeed, for the first two decades after 1998, Northern Ireland’s distinctive ethnic dual party system – in which party politics is polarized around a profound constitutional cleavage and ethnonational parties compete for votes within their own blocs rather than across the community divide – stubbornly endured (see Mitchell 1991, 1995, 1999). It had been hoped (and even assumed) that the consociational character of the 1998 Agreement would (gradually) lead to the dissipation of strong communal identities (and parties) (see, e.g., McGarry & O’Leary 2004). Instead however, evidence of ethnic outbidding – where more assertive and strident ethnonational parties outflank their more moderate rivals (see, e.g., Horowitz 1985) – saw the Democratic Unionist Party (DUP) and Sinn Féin electorally overtake the Ulster Unionist Party (UUP) and the Social Democratic and Labour Party (SDLP).⁶

Until recently, the persistent appeal of ethnic parties, combined with the polarizing effect of the ethnic dual party system, exerted a stifling squeeze on Northern Ireland’s “middle ground”, preventing its electoral growth and limiting space for the expression and representation of identities other than unionist or nationalist. In the aftermath of the Brexit vote and in the context of increased electoral gains for middle-ground parties (and the Alliance Party of Northern Ireland (APNI) in particular), there are some initial signs that traditional voting patterns and dynamics in Northern Ireland may be mutable in ways that are consequential for when and how the constitutional question might be addressed in Northern Ireland, and with what outcome.

Although the 1998 Agreement sought to de-escalate and demilitarize constitutional conflict, it did not ultimately resolve (nor did it seek to finally resolve) the question of Northern Ireland’s long-term constitutional status. Instead, it made the final resolution of this question contingent on the will of the majority, in accordance with the “principle of consent”. Northern Ireland remains a part of the UK insofar as, and for as long as, this is the will of the majority of its citizens. If, at any time, it appears likely that a majority in Northern I...