The evolving constitution of Northern Ireland*

History, Stephen said, is a nightmare from which I am trying to awake.
- James Joyce, Ulysses

1. Introduction

The “situation” in Northern Ireland has long perplexed those not familiar with its history. The idea of a simple religion-based conflict is undoubtedly the image that has predominated in portrayals of the conflict internationally. But this is to overlook the complexities and subtleties of a problem that has emerged in this part of Ireland over many hundreds of years. The aim of this paper is to provide an overview of the historical and contemporary constitutional politics of Northern Ireland and to make some observations about the future prospects of the region in light of the ongoing “peace process”.

The first part of the paper comprises a brief historical survey sketching Anglo-Irish relations from the latter part of the twelfth century until 1972, the year when Direct Rule of Northern Ireland was transferred from Belfast to London. Such an overview will obviously be inexcusably simplistic to historians but the purpose here is merely to facilitate a basic understanding of the historical aspects of the modern problem. While, as we shall see, religion has played a significant role in perpetuating conflict in Northern Ireland, the problem is unequivocally not solely a religious problem. It can only be understood by invoking a multiplicity of additional conceptual frames: the context of imperialism and colonialism; the distinction between indigenous inhabitant and settler; an economic frame of reference; in terms of political nationalism; as a problem of democracy and majority rule; as a problem of minorities; and as a problem of consensus and legitimacy.¹ Following this historical overview, the paper will proceed to discuss the most significant constitutional developments in Northern Ireland since 1972, in particular the watershed Anglo-Irish Agreement of 1985 and the Northern Ireland Peace Agreement of 1998 (which is also referred to as the “Belfast Agreement” or the “Good Friday Agreement”). Finally, the issue of self-determination in the context of Northern Ireland will be considered, with particular reference to the argument that the trajectory of change in Northern Ireland’s constitutional politics subsequent to 1985 is indisputably in the direction of a united Ireland.

2. Historical Background

Before the outbreak of violent conflict in Northern Ireland at the end of the 1960s, the two most significant moments in Ireland’s relationship with Britain since the latter part of the twelfth century – when the smaller island was conquered, albeit incompletely, by the Norman King of England, Henry II – can be easily identified. They are, firstly, the period subsequent to the Tudor conquest of Ireland, completed in 1603, when the north-eastern corner of Ireland was settled by immigrant Anglo-Protestants and Scots Presbyterians and, secondly, the events surrounding the partition of Ireland in 1920-21.

For the four hundred years after the initial, Norman invasion in 1171, English authority in Ireland, in both political and geographical terms, varied considerably. By the time Henry VIII succeeded to the throne of England in 1509, the English crown had become powerless in most parts of Ireland. Henry VIII undertook in 1534 to subjugate the island and he and his three Tudor successors “pushed their affairs so well that Henry’s daughter Elizabeth was in due course able to pass on to her successor – that is, to James VI of Scotland, who became James I of England – something unique: the undisputed rule of the entire island”.²

The original motivation for the undertaking of this conquest by Henry VIII was two-fold: firstly there was the interest of self-protection based on the fear that domestic rivals or foreign powers might use Ireland as a base for operations and, secondly, it expressed the desire for imperial expansion which subsequently led to Ireland becoming the first field for English colonisation. The former of these was, at the time, intimately connected with the then burning question in Europe: religion. The Reformation and Counter-Reformation saw Europe split into two camps and Protestant Britain and Catholic Ireland typified the divisions throughout the continent. As many commentators have observed, when a difference in religion was added to the differences already existing between the two countries in language, culture and tradition, the complete conquest of Ireland became, from England’s point of view, a pressing political necessity.

Ironically, the most difficult part of the country in terms of the progress English authority was able to make in the course of the Tudor conquest was Ulster, the most northerly of Ireland’s four provinces. Indeed, the Tudor fear of European intervention in Ireland became a reality in 1601 when a Spanish fleet landed on the south coast of Ireland at the behest of the Gaelic rulers of Ulster. The Spaniards, however, were defeated at the Battle of Kinsale in 1601 and “in due course, the hitherto unsubdued Ulster was overrun”.³ By 1603 the Tudor conquest was fully completed and, four years later, Ulster’s Gaelic leaders went into voluntary exile. Their exile, according to Aidan Clarke:

…left Ulster leaderless and the government jubilant.... The exiles had left their people defenceless and presented the government with an ideal opportunity to solve the problem of Ireland’s chief trouble spot. The ideal solution had been known for generations. It was, in a word, plantation…. If the Irish would not become Protestant then Protestants must be brought to Ireland.⁴

From this point on, Ulster developed differently from the other provinces of Ireland. The English project of colonisation took on a much more systematic and ambitious form in the north than was the case elsewhere. The essential difference – and thus the exceptional feature of Ulster – was the dispossession of the native Irish landowners and their replacement by Protestant settlers from England and Scotland. The pattern throughout the rest of Ireland, on the other hand, was for the native population to remain on the land working for a Protestant landlord class:

From the early seventeenth to the early twentieth centuries Protestants comprised the social, economic and political elite of Ireland, but only in Ulster did they constitute an almost self-contained community, a numerical majority at most levels of society instead of an aristocratic and professional minority. In the North they were weavers, farmers, farmhands and merchants instead of being confined to the ranks of clergy, professional men and landowners.⁵

While the rest of Ireland continued to depend economically on the export of unprocessed agricultural products – notoriously the least profitable form of exports – the north-eastern corner of the country developed a strong manufacturing base. The shipbuilding, engineering and linen industries all prospered and benefited from the expanding markets of the growing British Empire. By 1911, of the total value of manufactured goods produced in Ireland, approximately 95% worth was manufactured in and around Belfast.

In 1801, in order “to promote and secure the essential interests of Great Britain and Ireland, and to consolidate the strength, power and resources of the British Empire”, Britain and Ireland united under the Acts of Union, passed in 1800 by the British and Irish parliaments, into one Kingdom. The legislation abolished the Irish Parliament in Dublin and instead provided for Irish representation at Westminster. The political history of Ireland from that date until the partition of the country in 1920-21 was dominated by two powerful movements on the island, both in direct opposition to each other: Irish nationalism or republicanism, and Ulster unionism or loyalism. The Protestant settlers in the north vehemently opposed the struggle for national independence conducted by the nationalist-Catholic majority on the island. That struggle reached its climax in the early years of the twentieth century when the prospect of limited “home rule” for Ireland almost became a reality. The northern Protestant population, fearing the consequences of becoming a minority in a predominantly Catholic country, resisted and it was this resistance – or “unionist veto” – that resulted in the partition of the island. The Ulster Unionist Party (UUP) and the Ulster Volunteers, an armed militia, were formed and both expressed a key element of Ulster unionism as a philosophy; that element is commonly referred to as the “siege mentality” and was by no means unfounded. As Patrick Buckland observed:

...a siege mentality [requires] besiegers and besiegers there were for Ulster Unionists in the late nineteenth and early twentieth centuries... Like all nationalist movements, Irish nationalism was concerned with territorial unity, the integrity of what was seen as the national territory, rather than Irish brotherhood, and [it] did little to develop a political culture capable of uniting the population of the island.⁶

Ultimately, following the republican Easter Rising of 1916 in Dublin and the beginning of the guerrilla War of Independence (1919-1921) waged by the Irish Republican Army (IRA) against the occupying British forces, the British government introduced the Government of Ireland Act 1920 as an imposed settlement of the Irish question. Entitled “An Act to provide for the better Government of Ireland”, this legislation envisaged two separate legislatures and governments in Ireland, one for six of Ulster’s nine counties which were to form Northern Ireland and the other for the rest of the country which was to become “Southern Ireland”. This legislation was passed by the British parliament – to which both Irish parliaments were to be ultimately subordinate – in the middle of the War of Independence and, understandably, the Act remained a dead letter in the south. The unionists, however, “had now in effect been given what, rather reluctantly, they had come to see as the best deal circumstances would allow”.⁷ The boundary of this new “statelet” was drawn with the intention of ensuring that the Protestant population would be in a majority and that they would also control an area large enough to form an economically viable unit. The optimum land bloc in fulfilment of these requirements was the six-county area in the north-east where Protestants made up approximately 65% of the population. Thus, the area that was assigned to them was “as large as the maintenance of Protestant hegemony would permit”.⁸

In the rest of Ireland, the War of Independence ended with the “Articles of Agreement for a Treaty between Great Britain and Ireland” of December 6, 1921. This provided for the establishment of the Irish Free State in the twenty-six counties south of the border with Northern Ireland. Its provisions had the effect of ensuring that the powers of the Free State were not exercisable with respect to the six northern counties, where the Government of Ireland Act 1920 continued to apply. The Treaty was the cause of a bitter civil war in the Free State (1921-1923) and, although it resulted in a clear victory for the pro-Treaty forces, the divisions of that time still account for the most important political cleavage in the modern Irish Republic (the Free State left the British Commonwealth and became a Republic in 1949). The two political parties that have dominated the Republic’s political landscape – Fine Gael and Fianna Fáil – represent the successor organisations of the pro- and anti-treaty forces respectively, and their hegemony in the political landscape effectively thwarted the development of typical left-right politics in the Republic.⁹ Significantly, the anti-treaty party, Fianna Fáil, have been the dominant political force in Irish politics since the 1930s. In 1937, when they replaced the Free State Constitution of 1922 with the present 1937 Constitution, the latter reasserted – in Articles 2 and 3 – the right of the Irish people to unification and claimed jurisdiction over the whole island of Ireland.¹⁰ These controversial constitutional provisions were to prove a source of ongoing offence to the unionist population in Northern Ireland.

Northern Ireland came into existence, therefore, on the basis of the Government of Ireland Act 1920 and this formed in effect the constitution of the new political entity. This legislation provided for the establishment of the Parliament of Northern Ireland (Section 1) and set forth its legislative power “to make laws for the peace, order and good government of … Northern Ireland” (Section 4). Laws interfering with religious equality were specifically prohibited (Section 5). Northern Ireland was not, however, to become an independent state: the Government of Ireland Act 1920 established a devolutionary system of government for the province. One of the major provisions that delimited the power of the local Parliament was Section 75 of the Act, which provided that all power could concurrently be exercised by the Westminster Parliament and that the Northern Ireland Parliament had no field of exclusive competence.¹¹ Thus the Westminster Parliament retained full authority to legislate for Northern Ireland and to abolish the legislature it had established.¹² In practice, however, authority was firmly in the hands of the unionist majority and was exercised on their behalf by unionist politicians with little interference from Westminster for close on fifty years.

Since 1921 Irish republicans have repeatedly pointed to various factors that, they argue, undermine the legitimacy of partition and, thus, the very existence of Northern Ireland. Three of the most prominent arguments in this regard have been: first, that the majority of Irish people during the period prior to partition favoured independence for the whole island and this was made evident by the General Election results in Ireland of 1918; second, that the form of resistance Ulster unionists threatened and prepared to use in the event of an independent thirty-two county state – that is, violent resistance – undermined the constitutional status of the partition; and third, that the Anglo-Irish Treaty of 1921 was, in fact, not a case of agreement reached freely during negotiations but one induced without full consent by British threats of renewed and intensified warfare with the IRA and others involved in the struggle for independence. These arguments often converged on an appeal for the application of the principle of self-determination in the Irish context. The principle had been first applied to the modern international relations context by Woodrow Wilson in his Fourteen Points of January 1918, in which he set out a blueprint for a just and lasting peace in Europe after World War I. The 1918 United Kingdom General Election resulted in the overwhelming defeat of the moderate nationalist Irish Parliamentary Party, which had dominated the Irish political landscape since the 1880s, and a landslide victory for Sinn Féin, the political wing of the IRA, which had never previously enjoyed significant electoral success. Sinn Féin won 73 of the 105 Irish seats, with 26 going to the Unionists.¹³ This expression of electoral support for full independence and self-determination for the island of Ireland was stifled and rejected by means of the subsequent partition process.

The nationalist-Catholic minority who found themselves enclosed within the new boundary expressed the arguments against the legitimacy of partition by refusing to recognise fully the authority of the institutions of government in Northern Ireland. The unionist approach was to seek to defend their hegemonic position by nurturing a society where religious discrimination was built into the system – they openly declared their wish to maintain Northern Ireland as a “Protestant nation for a Protestant people”. The unionist technique was essentially one of domination; widespread discrimination against the minority took place, most notably in the fields of voting and the allocation of housing, the administration of justice, and in both public service and private employment.¹⁴

In this sense, Northern Ireland was fundamentally unstable and its disintegration into violent conflict in the late 1960s, while not inevitable, must be seen as historically understandable. There had been occasional outbreaks of IRA violence, notably a campaign from 1956 to 1962, but there was not widespread support among the minority community for this resistance. However, the ongoing marginalization of the increasingly educated and rights-conscious Catholics in Northern Ireland engendered the rise of a civil rights movement in 1968. The seeds of “the Troubles” (as the conflict in Northern Ireland came to be called from the 1970s onwards) were sown during a period when the minority were not demonstrating opposition to the existence of the state, as they had done intermittently since 1921, but rather seeking to secure equal rights for themselves. In effect, their demands were aimed at bringing Northern Ireland into line with the rest of the United Kingdom. Without describing in detail the events that followed the emergence of the civil rights movement, it need only be said that the forces of extreme unionism (which included some elements within the police force) reacted violently against the movement. When reforms were eventually forced upon Northern Ireland by the British Labour Government of the time, they came too late, later, for example, than the British troops who were sent as a peace-keeping force but who were soon perceived to be acting in a one-sided manner as pawns of unionism. Out of this turmoil emerged the cycle of violence involving the British army and paramilitary republican organisations such as the IRA and its loyalist adversaries. While moderate nationalists have always favoured the constitutional politics of the Social Democratic and Labour Party (SDLP), formed in 1970, radical nationalists regarded the IRA as “entitled to see itself, and to demand to be regarded as others, as the legitimate inheritor of the struggle for civil rights launched in the North in 1968”.¹⁵

Eventually, in 1972, the Unionist government of Northern Ireland resigned (having refused to accept a transfer of responsibility for security from the Northern Parliament at Stormont to Westminster), and the Parliament of Northern Ireland was then prorogued. Britain exercised its powers under Section 75 of the 1920 Act and announced that it was assuming full and direct responsibility for the administration of Northern Ireland until a political solution to the conflict could be devised. The Northern Ireland (Temporary Provisions) Act 1972 introduced the post of Secretary of State for Northern Ireland, the chief executive officer for the province under Direct Rule.

3. Constitutional Initiatives, 1972-1998

After 1972, Northern Ireland became what one commentator called “a kind of adventure playground for constitutional initiatives”.¹⁶ Most of these initiatives had the express aim of restoring some form of devolved government to the province. Despite several different approaches, the constitutional history of Northern Ireland from 1972 until the early 1980s is characterised by a range of unsuccessful efforts in this respect.

The one initiative during this period that envisaged some recognition of the “Irish dimension” to the problem, that is, “the need for some built in link with the Republic to accommodate nationalist identity, while giving due recognition to the identity and rights of the unionist majority”,¹⁷ was the 1973 Sunningdale Conference initiative. It approached the problem of Northern Ireland not only on the basis of the internal dimension (where power-sharing was envisaged) but also giving due consideration to the North-South dimension – that is, the relationship between the Republic of Ireland and Northern Ireland, based on which a consultative Council of Ireland was to be established. Although this initiative was underpinned by British guarantees that the people of Northern Ireland had the right to determine their own future on the basis of a simple majority, unionist opposition to the new distribution of power and their perception of the Council of Ireland as a device to lure them towards a unitary Irish state forced the collapse of the power-sharing executive in May 1974, after only four months of operation. The event that actually brought about the collapse was a general strike by unionist workers throughout the province. In effect, the strike was a mass mobilisation in support of the “unionist veto” on any change or initiative that might pose a threat to Northern Ireland’s constitutional position within the United Kingdom. This veto had first been employed in the period leading up to the partition of the island in 1920-1921 and the failure of the Sunningdale initiative demonstrated to all concerned that, at this stage at least, it remained intact.

By the early 1980s, various other attempts to devolve power to Northern Ireland had also failed. The leading example is the “rolling devolution” project of 1982. A Northern Ireland Assembly was elected under the Northern Ireland Act 1982 but no agreement could be reached on the devolution of any powers to it. At that stage, when hope of an internal, Northern Ireland political solution had dried up and the province had become the most militarised zone in Western Europe, the focus of attention began to shift away from the internal dimension and towards the Anglo-Irish dimension. What has become known as “the Anglo-Irish process” involved direct negotiations between the Irish and British governments concerning the “totality of relationships” within the two islands. The Anglo-Irish process began at the same time as resurgence in the support for, and legitimacy of, Sinn Féin and the IRA. This resurgence was due both to the hunger strikes in 1981, when ten Republican prisoners protesting in a Northern Ireland prison refused food until they died, and to a general restructuring and re-organisation of the nationalist movement. In the 1983 General Election in the United Kingdom Sinn Féin polled 13.4% of the total Northern Ireland vote. This resurgence effectively posed, as W. Harvey Cox put it, “complementary threats to Dublin and London”.¹⁸ Both London and Dublin were concerned by the undermining of the constitutional political processes in Ireland and the threat to security posed by the growing legitimacy of IRA violence. In April 1983, the Irish government established an All-Ireland Forum in which all the constitutional nationalist parties on the island came together and attempted to regain the initiative from the paramilitaries. The result was the publication in May 1984 of the New Ireland Forum Report. The primary influence it had on the Anglo-Irish process was to place the London administration under some pressure to respond.¹⁹ It was after the publication of the Forum Report that serious negotiations began between London and Dublin with a view to signing an international agreement on Northern Ireland.

The Anglo-Irish Agreement was signed in November 1985. This Agreement marked an extremely important watershed in Anglo-Irish relations. Since 1972, as noted above, several attempts had been made to employ constitutional devices and legal arrangements to return peace and stability to the province. All but one of these, the Sunningdale initiative, had concentrated solely on the internal (Northern Ireland) dimension. The Anglo-Irish Agreement approached the problem from an entirely new perspective: it is based, as its title suggests, on the Anglo-Irish or East-West dimension. There was no Northern Ireland party to this Agreement and, instead, it recognises the “Irish dimension” from the perspective of London and not Belfast. In addition to this unique feature of the Agreement, its importance is equally apparent when we consider the generally accepted view that the whole history of relations between the two islands could “hardly show a moment of more warm and genuine accord between a government in Westminster and the representatives of the majority in the island of Ireland”.²⁰

The Anglo-Irish Agreement had two essential elements: agreement as to the status of Northern Ireland and the establishment of an Anglo-Irish Intergovernmental Conference. The former of these is dealt with in Article 1 while the Conference is the concern of the remainder of the thirteen-article Agreement. Article 1 of the Agreement concerns the “Status of Northern Ireland” and comprises joint undertakings by the two governments: Article 1(a) stated “that any change in the status of Northern Ireland would only come about with the consent of a majority of the people of Northern Ireland”; Article 1(b) recognised that “the present wish of a majority of the people of Northern Ireland is for no change in the status of Northern Ireland”; and Article 1(c) declared that “if in the future a majority of the people of Northern Ireland clearly wish for and formally consents to the establishment of a united Ireland, [the two governments] will introduce and support in the respective Parliaments legislation to give effect to that wish”. Observers have agreed that the Republic’s open endorsement of Britain’s constitutional guarantee to the unionists in Article 1(b) was made as a large and meaningful enough concession to enable the unionists to live with the rest of the Agreement, that is, the Anglo-Irish Intergovernmental Conference. More significantly, Article 1(c), as W. Harvey Cox has suggested, marked a small but definite shift by Britain towards parity of status for nationalist aspirations alongside unionist ones: “Now Britain would not merely impede, but would actually facilitate, constitutional moves towards a united Ireland, if and when the majority desire it.”²¹

The other major development that occurred during the 1980s, as Tom Hadden has observed, was that it eventually became clear that the British and Northern Irish security forces could not defeat the IRA and that the paramilitaries on either side were unable to achieve their political objectives through violence; the resulting war weariness on all sides thus gave added impetus to the search for a political settlement.²² In the early 1990s the underlying objective of the British and Irish governments changed: instead of attempting to isolate the paramilitary organisations in Northern Ireland, they sought to bring the political representatives of the IRA and other paramilitary bodies into the democratic process. By 1993, political negotiations had reached a stage whereby the policy of the British government that Northern Ireland may determine its own future within the limits of constitutional democracy became further entrenched in the Joint (Downing Street) Declaration of the Irish and British governments. This document also indicated the willingness of the British government to negotiate openly with all those committed to the democratic process and of the Irish government to abandon its constitutional claim – in Articles 2 and 3 of the 1937 Constitution – over Northern Ireland in the context of a satisfactory political settlement. This took the ongoing process to such a point that in August 1994 the IRA declared a ceasefire. All other major paramilitary groups and organisations – on both sides of the divide – ultimately followed suit. The preceding 25-year cycle of violence had claimed over 3,000 lives out of a population of approximately 1.5 million.

Although there were to be setbacks – including the necessity for a second IRA ceasefire (in 1997) after the ending of the first (in 1996) – the Northern Ireland Peace Agreement was concluded following multi-party negotiations on Good Friday, 10 April 1998.²³ The parties to the Agreement included the two governments, the SDLP and Sinn Féin, three unionist parties (the Ulster Unionist Party, the Popular Unionist Party and the Ulster Democratic Party) and three smaller centre parties (the Alliance Party, the Women’s Coalition and the Labour Coalition). Two unionist parties (the Democratic Unionist Party and the UK Unionist Party), who together represented just less than half the unionist voters, refused to sign the Agreement and continued to oppose its endorsement in the ensuing referendum. Despite this the Agreement received 71 per cent approval in Northern Ireland and 95 per cent approval in the Republic of Ireland in the subsequent referenda held on 22 May 1998.

The Good Friday agreement is a complex document and it is not intended to undertake a detailed analysis of its contents in this paper, but a summary of its main points is essential to grasping the nature of the current situation. Article 1 again emphasises a right of self-determination – or the principle of consent – in Northern Ireland: it is accepted that at present the majority of people in Northern Ireland wish to remain in union with the rest of Great Britain, but states that the British government agrees that if a majority there in the future wish to secede in order to become part of Ireland, then the British Parliament will put in place legislation to achieve that end. Beyond this reiteration of the fact that the people of Northern Ireland must decide their own future for themselves, Jonathan Stevenson has described the linchpin of the Agreement as a quid pro quo: “the Irish Republic’s repeal of the territorial claim on Northern Ireland, once enshrined in Articles 2 and 3 of [the Irish Constitution of 1937], in exchange for an institutionalised voice in governing the province through ‘cross-border bodies’”.²⁴

In recognition of the IRA ceasefire and the nationalist parties commitment to reunification, the Agreement provides for a North-South Ministerial Council and also a number of other cross-border bodies, some with executive powers. Articles 2 and 3 of the Republic of Ireland’s 1937 Constitution were in turn replaced by referendum with new provisions that preserve the concept of an Irish “nation” but also acknowledge, at least by implication, the principle of consent with regard to Northern Ireland’s future constitutional status.²⁵ The Agreement includes a lengthy section on human rights and equality: it brought about the establishment of a strengthened Human Rights Commission and an Equality Commission in Northern Ireland and a new Human Rights Commission in the Republic. Legislation was also enacted, pursuant to the Agreement, providing for a number of “confidence building measures”: these included the release of all prisoners of paramilitary groups who maintained ceasefires, an international commission to oversee the decommissioning of weapons by all paramilitaries and independent reviews of policing and the criminal justice system.

In relation to the critical issue of the governance of Northern Ireland, the Agreement established a 108-member Northern Ireland Assembly and a power-sharing executive on the basis of communal consent and proportionality. The practical effect is that a 60% majority of representatives from either nationalist or unionist parties have a power of veto. The power-sharing aspect of the Agreement encountered severe difficulties and eventually devolution was suspended in 2002 by the British government. In Assembly elections held in 2003, the main unionist party that opposes the Agreement, the Democratic Unionist Party (DUP), superseded the pro-Agreement unionist party, the UUP, as the leading unionist party. Despite ongoing attempts to negotiate further settlements and despite the IRA declaring the definitive end of its armed struggle in 2005, the DUP’s ongoing rejection of the Agreement and its dissatisfaction with the decommissioning process in particular meant that the Assembly remained suspended until May 2006. At that time, the British and Irish governments demanded that the Assembly agree on the formation of a power-sharing executive. If that fails, the two governments have stated that they would then work on partnership arrangements to implement the Good Friday Agreement.

4. Future Prospects

Notwithstanding the problems currently facing the Peace Process, and excepting intermittent internal loyalist feuding, peace in Northern Ireland has, to all intents and purposes, been established and maintained. What the future holds is another question. As we have seen, the 1980s in general and the 1985 Anglo-Irish Agreement in particular marked a turning point in terms of how London and Dublin approached constitutional issues in Northern Ireland. The declarations as to the status of Northern Ireland in Article 1 of the 1985 Agreement have been acknowledged by virtually all commentators as highly significant. At the time, many expressed the view that the trajectory of change in Northern Ireland’s constitution subsequent to 1985 would be in the direction of a united Ireland, given the fact that a right of self-determination in Northern Ireland had now been recognised in an international agreement. For example, the constitutional lawyer, Claire Palley, proposed the following radical interpretation of Article 1:

[I]t is clear that in about 35 years Protestant and Catholic populations will be approximately equal. Whereas currently some pragmatic Catholics are Unionists benefiting economically from Northern Ireland’s UK status, narrowing economic disparities between the UK and the Republic are, after 35 more years of EEC membership, unlikely to outweigh nationalist sentiment. Accordingly, the required consent for re-unification will be forthcoming. Indeed, its arrival may well be accelerated by increased Protestant emigration when Northern Ireland’s destiny becomes apparent…. [O]n the point whether a policy of pursuit of change without consent is permissible or whether there is an undertaking not to pursue such a policy, the Article is little more than an affirmation of mutual belief as to what is likely to transpire. In short the Agreement puts the Unionists on notice that reunification of Ireland will inevitably be enacted on an as yet undetermined date. ²⁶

Palley’s interpretation was also the interpretation of many unionists: for example, a leading member of the DUP, referring to Article 1 and to the Intergovernmental Conference’s role and functions, commented: “The Anglo-Irish Agreement effectively ended the Union as we knew it. What form that Union will take in the future depends on the actions of the British government. I would have thought that it was fairly obvious that the Anglo-Irish Agreement was part of a process that was to lead Northern Ireland out of the Union.”²⁷

There are a number of reasons why it may well be the case that Britain wishes that Northern Ireland’s right to secede from the Union would be exercised: any strategic or military importance that Northern Ireland might have had has become almost inconsequential since the end of the Cold War; in economic terms, disengagement from Northern Ireland would be highly attractive: by 1998, the province depended heavily on Britain’s annual subvention of nearly £3 billion;²⁸ and successive polls have indicated that only a minority of British people are in favour of continued integration with the United Kingdom, with the majority supporting either independence or Irish unification. Thus, “the legitimation that unionism depends on – recognition from Westminster that [Northern Ireland] is constitutionally British – is not forthcoming”.²⁹

The view that the right of Northern Ireland to secede from the Union will in fact be exercised – at some future point in time – is based not only on the acceptance by the British government since 1985 of the existence of a right to secede but also on a range of other factors. There is, most obviously, the issue of demography. Between 1921 and 1971 the proportion of Protestants to Catholics remained constant at roughly two to one, with the higher Catholic birth rate being offset by higher levels of emigration. As fairer employment policies were eventually imposed under British rule, the proportion of Catholic nationalists has gradually increased. Claire Palley estimated that in about 2010 (35 years after the 1985 Anglo-Irish Agreement) the Protestant and Catholic populations in Northern Ireland would be approximately equal; in fact it is now widely expected that it will be about 2020 before the two communities will become roughly equal in numbers. These population trends are reflected in recent voting figures, which also indicate “that the two main communities of nationalist and unionists remain firmly committed to their separate identities and aspirations and that the people in between with no strong communal affiliation are too few to be politically significant”.³⁰ Although the process may take longer than some had expected, these trends support the view that ultimately a majority of people in Northern Ireland will support a united Ireland.

In addition to the demographic prospects in Northern Ireland, changes in the Republic of Ireland may also contribute to Irish unification. The Protestant population in the north have always feared submergence in a nationalist-Catholic state; in a united Ireland, according to this perspective, they would be in a minority and their religion, their way of life, and their economic interests would be endangered. But the conservatism and intolerance traditionally associated with the Catholic Church is becoming increasingly irrelevant in Ireland. European Union-driven economic and social liberalization has, in the words of one observer, “helped meld the republic’s dominant Catholic and tiny Protestant middle classes. Ireland is still a resolutely Catholic country, but an increasingly tolerant and cosmopolitan one”.³¹ Moreover, although the Republic of Ireland has traditionally been beset by economic difficulties, times have changed in this regard too: the Republic’s “Celtic tiger” economy is now one of the most productive and fastest growing in the world. The drive toward European integration and unity – and the expected effect on national borders and the notions of sovereignty that underpin them – is also cited as supporting Irish unification in some form.³²
While many argue that the legal principle of self-determination could and should still be applied to the island of Ireland as a whole, the fact remains that considerable confusion surrounds the principle,³³ and it is doubtful that the lens of self-determination is of any real value in ascertaining a way forward in the present all-Ireland context. Although the island was colonised, and although State practice during the decolonisation period of the twentieth century consistently affirmed the right of peoples everywhere to self-determination, Northern Ireland’s colonisation, as we have seen, involved the extensive plantation or settlement of Protestants during the seventeenth century, and not only did that minority entrench itself on the island, it has continued to exist on the island as part of the United Kingdom for nearly a century. In contemporary Northern Ireland there thus exists, untypically, a double minority: the Catholic-nationalist community is a minority in Northern Ireland, but the Protestant-unionist population is a minority in the island of Ireland as a whole.³⁴ The region has been likened to situations like those in South Tyrol, Kashmir, Cyprus and Sri Lanka in that it constitutes an “ethnic frontier zone” in which the populations of adjoining states are intermingled and in which the members of one or other community feel that they belong to the adjoining state despite their geographical position.³⁵ It may be that self-determination discourse can help to shed light on aspects of the Northern Ireland conflict, but it has also been remarked that the Good Friday Agreement’s treatment of self-determination presents particularly demanding questions for international lawyers: it “acknowledges the double minority [and] has been drafted so as to protect the rights of the nationalists and the unionists, not just the present nationalist minority”.³⁶ In terms of self-determination, what might be called the “double minority dilemma” will only be overcome when substantial demographic change occurs in Northern Ireland.

One commentator has argued that the Union must be preserved because “the alternative to preserving it would be catastrophe for the inhabitants of the province, catastrophe for which we on [mainland Britain] could not escape a large share of the responsibility.”³⁷ This is a direct reference to the prospect of civil war in Ireland initiated by the unionist minority (following the severing of the link by Britain) and motivated by their refusal to submit to any form of unitary Irish state. The militant streak of unionism has always made it clear that the Protestant community would do whatever was necessary to prevent a United Ireland – their threats have included violent resistance and the possibility of a unilateral declaration of independence (UDI). This particular argument for the preservation of the Union, as Irish nationalists have repeatedly argued, is fraught with contradictions. Not only has nationalist violence always earned denunciation from British governments, it has also always been met by reaffirmations of non-submission to this violence. On the other hand, the threat of violence on the part of the unionists has not always received the same degree of denunciation and, instead, at least according to this argument, is offered as a justification for the preservation of the Union. Given the ongoing peace in particular, this perspective will surely lose any force as time goes by. Those who advocate disengagement from Northern Ireland by the British government have always done so on the understanding that the nuts and bolts of disengagement should be known in advance to all concerned even if particular groupings refused to co-operate in drawing up a settlement. The traditional nationalist view has been that such a policy should involve short notice (the lifetime of one British government is usually suggested), it should be an irreversible decision, and the British government should continue to subsidise the province for an agreed period. At the present time, however, discussions of such details are unnecessary. Northern Ireland will remain a part of the United Kingdom for some time to come, but it is very unlikely that it will do so indefinitely.

Tim Murphy
Fæddur 22. desember 1967
Gistidósent við Félagsvísinda- og lagadeild Háskólans á Akureyri.
Menntun: B.C.L. (N.U.I., 1988), LL.M. (Warwick, 1989), Ph.D. (Maynooth, 2002).

Endnotes

* This essay is based on a paper presented to a conference on “Self-determination in Practice” organised and hosted by the Faculty of Law and Social Sciences at the University of Akureyri (8 November 2005).

1. See C. Palley, “The Evolution, Disintegration and Possible Reconstruction of the Northern Ireland Constitution” (1972) 1 Anglo-American Law Review 368 at 368-374.

2. G. A. Hayes-McCoy, “The Tudor Conquest” in T. W. Moody and F. X. Martin (eds.), The Course of Irish History (Cork, Mercier, 1984), p.174.

3. ibid., p.188.

4. A. Clarke, “The Colonisation of Ulster and the Rebellion of 1641” in T. W. Moody and F. X. Martin (eds.), op. cit., p.190.

5. P. Buckland, A History of Northern Ireland (Dublin, Gill and Macmillan, 1981), p.2.

6. ibid., p.9.

7. K. Theodore Hoppen, Ireland Since 1800: Conflict and Conformity (London, Longman, 1989), p.139.

8. ibid.

9. For a discussion of the significance of “civil war politics” in the Republic and, in particular, its relevance to the question of Northern Ireland, see, for example, P. O’ Malley, The Uncivil Wars: Ireland Today (Belfast, Blackstaff, 1983), pp.17-60 and R. Sinnott, “The North: Party Approaches and Party Images in the Republic” (1986) 1 Irish Political Studies 15.

10. Article 2: “The national territory consists of the whole island of Ireland, its islands and the territorial seas.” Article 3: “Pending the re-integration of the national territory, and without prejudice to the right of the Parliament and Government established by this Constitution to exercise jurisdiction over the whole of that territory, the laws enacted by that Parliament shall have the like area and extent of application as the laws of Saorstát Éireann [the Irish Free State] and the like extra-territorial effect.”

11. Section 75: “Notwithstanding the establishment of the Parliament of Northern Ireland or anything contained in this Act, the supreme authority of the Parliament of the United Kingdom shall remain unaffected and undiminished over all persons, matters and things in Northern Ireland and every part thereof.”

12. It has been noted that given the British constitutional principle of Parliamentary supremacy, this authority did not in fact depend on the inclusion of Section 75 in the 1920 Act. See E. C. S. Wade and A. W. Bradley, Constitutional and Administrative Law (London, Longman, 1985), p.74.

13. The aftermath of the elections saw the convention of an extra-legal parliament in Dublin – the First Dáil – by the elected Sinn Féin candidates, and the outbreak of the War of Independence (1919-1921).

14. See M. Farrell, The Orange State (London, Pluto, 1980) and B. Rowthorn and N. Wayne, Northern Ireland: The Political Economy of Conflict (Oxford, Polity, 1988), pp.28-38.

15. E. McCann, War and an Irish Town (London, Pluto 1980), p.129.

16. P. Arthur, “The Question of Ireland” (1984) 3 Government and Opposition 336 at 336.

17. W.H. Cox, “Managing Northern Ireland, Intergovernmentally: An Appraisal of the Anglo-Irish Agreement” (1987) 40 Parliamentary Affairs 80 at 82.

18. ibid., at 83.

19. See K. Boyle and T. Hadden, “How to Read the New Ireland Forum Report” (1984) 55 Political Quarterly 402.

20. A. Kenny, The Road to Hillsborough: The Shaping of the Anglo-Irish Agreement (Oxford: Pergamon, 1986), p.101.

21. W.H. Cox, op. cit., at 89.

22. T. Hadden, “The Peace Process in Northern Ireland”, Paper presented to the United Nations Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, Working Group on Minorities, 7th Session, 14 to 18 May 2001, pp.4-5; available at http://www.greekhelsinki.gr/bhr/english/special_issues/CEDIME-unwgm2001/G0112129.doc.

23. Cm.3883; available at http:/www.nio.gov.uk/agreement.htm.

24. J. Stevenson, “Peace in Northern Ireland: Why Now?” (Fall 1998) Foreign Policy 41 at 46.

25. The replacement provisions were inserted in 1999. Article 2: “It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish Nation. That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland. Furthermore, the Irish nation cherishes its special affinity with people of Irish ancestry living abroad who share its cultural identity and heritage.” Article 3: “1. It is the firm will of the Irish Nation, in harmony and friendship, to unite all the people who share the territory of the island of Ireland, in all the diversity of their identities and traditions, recognising that a united Ireland shall be brought about only by peaceful means with the consent of a majority of the people, democratically expressed, in both jurisdictions in the island. Until then, the laws enacted by the Parliament established by this Constitution shall have the like area and extent of application as the laws enacted by the Parliament that existed immediately before the coming into operation of this Constitution. 2. Institutions with executive powers and functions that are shared between those jurisdictions may be established by their respective responsible authorities for stated purposes and may exercise powers and functions in respect of all or any part of the island.”

26. C. Palley, Agenda article, The Guardian, 20 January 1986. Even prior to the 1985 Agreement, Palley had argued that “United Kingdom governments aim, in the short run, to diminish terrorist violence and foster inter-community reconciliation. In the mid-term, they seek withdrawal of troops from Northern Ireland and the transfer to Northern Ireland institutions of governmental powers on a basis agreed by both communities, thereby diminishing Westminster involvement and responsibility. In the long run, they wish to disentangle Great Britain from Ireland. They accept that Northern Ireland enjoys the right to self-determination, and would, if inter-community cooperation in devolved government came about, acquiesce in Northern Ireland remaining part of the United Kingdom. However, some form of reunification, to settle the recurring nuisance of Irish nationalist claims, would be preferred, provided this would result in a peaceful Ireland.” “Ways Forward: The Constitutional Options” in D. Watt (ed.), The Constitution of Northern Ireland: Problems and Proposals (London, Heineman, 1981), p.185.

27. P. Robinson, “Around the Table” (with J. Alderdice, A. Currie and K. Maginnis), Fortnight, November 1987.

28. J. Stevenson, op. cit., at 44. When the Government of Ireland Act 1920 came into force, it was expected that Northern Ireland - where the great proportion of industrialization in Ireland had taken place - would generate far more wealth than it consumed. Section 23 of the 1920 Act provided for an annual contribution from Northern Ireland to help finance the military and other expenses involved in running the rest of the British Empire. It soon became obvious, however, that Northern Ireland could not meet its obligations and the amount paid to Britain fell rapidly. By 1938 Britain had agreed to subsidize the costs of running Northern Ireland and it has done so ever since. Of great significance for the Northern Ireland economy was the major transformation that occurred in the 1950s and the 1960s when local industry was run down and the province became dominated by multinational firms. With the advent of violent conflict, however, this process went into reverse, with multinationals reducing their activities or pulling out altogether. The resulting crises in the local economy, coupled with spiralling security costs, led to the incremental increase in the official subvention from the British government.

29. G. Delanty, “Negotiating the Peace in Northern Ireland” (1995) 32 Journal of Peace Research 257 at 261. See also, F. Cochrane, “Any Takers? The Isolation of Northern Ireland” (1994) 42 Political Studies 378.

30. T. Hadden, “The Peace Process in Northern Ireland”, p.5.

31. J. Stevenson, op. cit., at 45. It should be remarked that in light of the cultural and socio-economic changes that have taken place in the Republic of Ireland over the past twenty years, the suggestion that the country is “still … resolutely Catholic” is highly questionable. See, for example, M. Kenny, Goodbye to Catholic Ireland (London, Sinclair-Stevenson, 1997).

32. Indeed, one observer has gone so far as to suggest that, when the point is reached whereby Irish unification is a real possibility, “it may well be that the nation-state will have vanished from the face of Europe”. G. Delanty, op. cit., at 264.

33. See H. Quane, “The United Nations and the Evolving Right to Self-determination” (1998) 47 International and Comparative Law Quarterly 537.

34. See K. Boyle and T. Hadden, Northern Ireland: The Choice (London, Penguin, 1994).

35. See F. Wright, Northern Ireland: A Comparative Analysis (Dublin, Gill and Macmillan, 1988).

36. G. Gilbert, “The Northern Ireland Peace Agreement, Minority Rights and Self-determination” (1998) 47 International and Comparative Law Quarterly 943 at 949-950.

37. A. Kenny, op. cit., p.136.