j.1477 7053.1999.tb00482.x (PDF)

Vernon Bogdanor

The British-Irish Council and Devolution
THE BRITISH-IRISH COUNCIL SPRINGS FROM AND IS PROVIDED FOR IN

the Belfast Agreement signed on Good Friday 1998. Its coming into
force depends upon the implementation of the Agreement. The
Council is established, however, not by the 1998 Northern Ireland
Act, which gives legislative expression to the bulk of this Agreement,
but by an international treaty, the British-Irish Agreement, attached
to the Belfast Agreement.
The Belfast Agreement together with the legislation providing
for devolution to Scotland and Wales establishes a new constitutional
settlement, both among the nations which form the United Kingdom,
and also between those nations and the other nation in these islands,
the Irish nation. The United Kingdom itself is, as a result of the
Scotland Act and the Government of Wales Act, in the process of
becoming a new union of nations, each with its own identity and
institutions - a multi-national state, rather than, as many of the
English have traditionally seen it, a homogeneous British nation
containing a variety of different people.
The unitary British state was the expression of a belief that the
non-English sections of the United Kingdom formed part of a single
British nation. Devolution, by contrast, is the expression of a belief
that the non-English parts represent separate nations which choose
to remain within the larger multi-national framework of the United
Kingdom. The unionists of Northern Ireland, however, have rarely
seen themselves in this light as a separate nation - a unionist cannot,
by definition, seek independence from the United Kingdom - but
as part of the British nation. This may pose a problem for unionists
at a time when the very notion of Britishness seems to be dissolving
into its component parts. Perhaps, however, the new Northern
Ireland Assembly and the development of regional government in
the province will lead to the growth of a new regional identity, a
genuine Ulster identity.
It was because the unionists in Northern Ireland saw themselves
as part of the British nation rather than as a separate nation that

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they resisted devolution in 1920. Gradually, however, they came to
perceive that a parliament of their own put them in a strong position
against those who wished to exclude them from the United Kingdom.
The 1998 Northern Ireland Act provides for a different form of
devolution from that established in 1920, one based not on majority
rule but on the principle of power sharing. But, within the context
of devolution to Scotland and Wales, the bi-communal institutions
proposed for Northern Ireland no longer appear as outlandish as
they would in the context of an otherwise unitary state. Perhaps,
then, the new devolution settlement in Northern Ireland can, like
Stormont, but in a very different and fairer way, also be made to
serve the purposes of Unionism.
The purpose of the British-Irish Council is to institutionalize
the new settlement between the different nations forming the United
Kingdom, and between the United Kingdom and the Irish Republic.
Its role is, in the words of the Belfast Agreement,’ ‘to promote the
harmonious and mutually beneficial development of the totality of
relationships among the people of these islands’.
The Belfast Agreement was signed by a Labour government (a
New Labour government) in the United Kingdom and a Fianna
Fail government (a nationalist government) in the Irish Republic.
Yet it offers, in essence, a return to the past, a return to Gladstone’s
original conception of Home Rule in a form suited to modern
conditions. Gladstone’s particular conception of the British-Irish
relationship - a united Ireland enjoying Home Rule within a United
Kingdom of Great Britain and Ireland -was breached in 1920 and
1921 by partition and by secession, and cannot of course be restored.
But the proposals for devolution, together with the North-South
Council, giving institutional form to the Irish dimension, and the
British-Irish Council offer a chance of realizing the underlying
theme of Gladstonian thinking, i.e., recognition both of the various
and distinctive national identities within these islands, and also of
the close and complex links between them, but in a form suited to
modern times. It is perhaps the path which might have been taken
if Westminster had accepted Home Rule in 1886, and the ‘union of
hearts’ had been preserved. The British-Irish Council is an
expression of the belief that the manifold links which exist between
Britain and the Irish Republic can no longer be contained within a
I

Cm.3883, 1998.

T H E BRITISH-IRISH COUNCIL AND DEVOLUTION

289

formal framework which, in theory at least, makes the two countries
as foreign to each other as Russia and Brazil.
Membership of the Council, however, is not confined only to
nations. The initial members of the Council will be Britain and
Ireland, the devolved bodies in Northern Ireland, Scotland and
Wales, and, ‘when established, and if appropriate, elsewhere in the
United Kingdom’, but also representatives of three British Crown
dependencies which are not part of the United Kingdom, the Isle
of Man, Guernsey and Jersey. These dependencies of course do not
regard themselves as separate nations. The provision for
representing devolved bodies ‘elsewhere in the United Kingdom’
is, presumably, intended to allow for the possibility of devolution in
England. Such devolution could take the form either of an English
Parliament or of English regional assemblies - see the section on
the British-Irish Council and England, pages 29 1-4, below.
The British-Irish Council is to meet at summit level, twice a year,
and in specific sectoral formats on a regular basis, with each of the
participants being represented by an appropriate minister. The
Council will be primarily consultative and might consider issues
such as transport links, agriculture, environmental and cultural
issues, health, education and approaches to the European Union. It
is open to the Council to agree upon common policies, but it cannot
bind individual members who can choose to opt out o r not
participate in such common policies. There will in addition be
encouragement to build complementary interparliamentary links
between the members, perhaps on the lines of the British-Irish
Interparliamentary Body.

THE BRITISH-IRISH COUNCIL AND THE NORDIC COUNCIL

The British-Irish Council is modelled in part on the Nordic Council
whose members are Denmark, Finland, Iceland, Norway and Sweden,
together with three autonomous areas - the Faeroes and Greenland
which are part of Denmark, and the Aaland Islands which are part
of Finland. The Nordic Council has achieved a considerable degree
of integration but, by contrast with the European Union, has not
impinged upon the sovereignty of its members. The British-Irish
Council will share with the Nordic Council a feature unusual if not
unique amongst international bodies in not being composed

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exclusively of sovereign states. In the case of the Nordic Council,
however, the autonomous regions do not participate in the same
manner as the sovereign states and do not enjoy full voting rights.
Nevertheless they enjoy a great deal of influence as the member
states feel a sense of obligation towards them. The presidency of
the Nordic Council of Ministers is held only by the member states,
but the presidency of the Nordic Council itself, which is an
interparliamentary body, rotates annually and so a member from
one of the autonomous areas holds the presidency in three years
out of eight. It is not yet clear whether the British-Irish Council
will operate in a similar manner with annual rotation of the
presidency among its eight members, or whether the presidency
will remain the prerogative of the two member states.
The contrasts between the Nordic Council and the British-Irish
Council seem, in any case, rather more important than the
similarities. The success of the Nordic Council results from longstanding common cultural ties, a consensus built up around a broadly
social democratic ideology, and a skill at defusing tensions. These
are not qualities which have been very evident in Northern Ireland.
The Nordic Council began as an informal body of parliamentarians in 1952. The Council of Ministers was not formed until 1971.
The urge to cooperate thus originated with parliamentarians, representatives of the people. With the British-Irish Council, by contrast,
cooperation is beginning at executive level and will, it is hoped, be
followed later by interparliamentary cooperation. This symbolizes
an important difference. The Nordic Council was the product of a
consensus. Conflicts between the various member states had been
resolved some time before it was established. The British-Irish
Council, by contrast, hopes to create a consensus not only amongst
legislators but also amongst peoples, so as to resolve a long historical
and ongoing conflict. Moreover, a main aim of the Nordic Council
has been international rather than domestic - to increase the
influence of the Nordic countries in the world. The main aim of
the British-Irish Council, by contrast, is likely to be concerned with
securing and bolstering the settlement embodied in the Belfast
Agreement.
Further, the composition of the two Councils and the relative
weight of the devolved bodies within them are quite different. Five
of the eight members of the Nordic Council are sovereign states of
not dissimilar size. Only two out of the eight members of the British-

THE BRITISH-IRISH COUNCIL A N D DEVOLUTION

291

Irish Council, however, are sovereign states, and one of them has a
population of 56 million, while the other has a population of less
than four million. The Nordic Council, moreover, began as a body
comprising just the sovereign states. The autonomous areas joined
later, the Faeroes and the Aaland Islands in 1970 and Greenland in
1974. The Faeroes and Greenland return just two members each
out of 179 to the Danish parliament, while the Aaland Islands return
just one member out of 200 in the Finnish parliament. The devolved
areas of the United Kingdom, by contrast, return 20 per cent - 130
out of 659 - of the Members of Parliament, and have considerable
weight in the British political system. They are, moreover, very
different areas, comprising one nation, Scotland, which from 1999,
will have legislative control over its domestic affairs, another nation,
Wales, which from 1999, will, have control over secondary legislation
affecting its domestic affairs, and a divided province, Northern
Ireland, which does not conceive of itself as a nation at all.

THE BRITISH-IRISH COUNCIL AND ENGLAND

There is one striking absentee from the British-Irish Council, the
largest of the national units in these islands - England - containing
46 million of the 60 million people whom the Council will represent.
For membership of the Council is to depend upon constitutional
status, and England has no constitutional status. ‘Smile at us’, G. K.
Chesterton wrote in his poem, The Secret People, ‘pay us, pass us, but
do not quite forget; for we are the people of England that never have
spoken yet’. England has never spoken because, constitutionally,
England does not exist. Indeed it has been said that ‘England is a
state of mind, not a consciously organized political institution’.*There
has been no English parliament since 1536. There is no English Office
comparable to the Scottish, Welsh or Northern Ireland Offices, the
‘English’ministers being so only because their non-English functions
have been hived off to the territorial departments. The ‘English‘legal
system comprises both England and Wales. The Treaty of Union which
the Scots claim to have agreed with the ‘English’in 1707, was agreed,
certainly, with the English state, but this at the time comprised both
the English and Welsh people.
Richard Rose, Understandingthe United Kingdom, Harlow, Longman, 1982, p. 29.

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GOVERNMENT AND OPPOSITION

England is hardly mentioned in the Scotland Act, the Government
of Wales Act or the Northern Ireland Act, and yet England is, in
many respects, the key to the success of devolution. This is because
any devolution settlement has to be acceptable not just to the Scots
and the Welsh but also to the English who return 529 of the 659
Members of Parliament to Westminster and who constitute 85 per
cent of the population of the United Kingdom. The success of
devolution will depend in large part upon whether English opinion
believes it to be a fair and equitable settlement.
Devolution will accentuate an already existing constitutional
imbalance in favour of Scotland and Wales. They already have their
own Secretaries of State pressing their case at cabinet level; they
are over-represented in the House of Commons by comparison
with England; and there is a good case for arguing that Scotland
at least benefits more from public spending than those English
regions whose GDP per head is lower. Those living in the more
under-privileged regions of England, such as the north-east or the
north-west, may already regard themselves as second class because
they have no territorial ministers able to argue their case in cabinet.
After devolution, they may come to believe that they are third
class, since they have no assemblies either. It is by no means clear
that a constitutional imbalance which has up to now been accepted
will continue to be accepted once the devolved bodies are in
operation.
Scottishness and Welshness, and in the nineteenth century,
Irishness, were formed partly in opposition to Englishness, but for
the English, the terms ‘British’ and ‘English’ have often been used
interchangeably. Walter Bagehot’s great book, analysed by generations of students, was called The English Con~titution,~
although there
had been no English constitution since the time of the Union with
Scotland in 1707.
The notion of Britishness is becoming more fragile than it was a
generation ago. But what then is Englishness? England has long
been the stumbling-block for supporters of devolution in the United
Kingdom. For England, since the time of the Union with Scotland
in 1707,has resisted integration, but has been unsympathetic to
federalism. It is the supposedly unified and homogeneous nature

First published 1865-67.

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293

of England which has been primarily responsible for the preservation
of the unitary state. It is largely for this reason that England has not
until now sought devolution. Until it does, governments have taken
the view that it ought not to have devolution thrust upon it. For
there could be no justification in requiring England to accept
devolution against its wishesjust because there has been devolution
to Scotland and Wales. To force devolution upon England, far from
assuaging resentment against Scotland and Wales, could well
intensify it.
In February 1998, however, the Conservative leader, William
Hague, called for changes to be made in the government of England,
following devolution to Scotland and Wales. He put forward as
suggestions an English Grand Committee or an English Parliament.
There is already in fact provision in the standing orders of the House
of Commons, for a Standing Committee on Regional Affairs, a kind
of English Grand Committee, comprising all MPs sitting for English
constituencies - 529 of the 659 members of Parliament - together
with five additional members. That Committee, however, has not
met since 1978 for the very good reason that it proved to be nothing
more than a cumbrous talking shop.
In January 1998, the Eurosceptic Conservative back-bencher,
Teresa Gorman, moved a private member’s bill calling for a
referendum on Hague’s other proposal, an English parliament. The
main purpose of such a parliament would be to resolve the
constitutional dilemmas to which asymmetrical devolution gives rise.
Yet it would be pointless to ‘resolve’ these dilemmas by a massive
upheaval in England unless that was also desired for other reasons,
and unless it served to make government more effective. An English
parliament, however, would yield a form of ‘Home Rule All Round’
which would be highly unbalanced in population terms. Indeed an
English parliament could hardly avoid becoming a real rival to
Westminster. ‘A federation consisting of four units - England,
Scotland, Wales and Northern Ireland - would’, the Royal
Commission on the Constitution declared in 1973,
be so unbalanced as to be unworkable. It would be dominated by the

overwhelming political importance and wealth of England. The English
Parliament would rival the United Kingdom federal Parliament; and in
the federal Parliament itself the representation of England could hardly
be scaled down in such a way as to enable it to be outvoted by Scotland,
Wales and Northern Ireland, together representing less than one-fifth of
the population. A United Kingdom federation of four countries, with a

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federal Parliament and provincial Parliaments in the four national capitals,
is therefore not a realistic proposition.‘
Moreover, an English parliament would do nothing to remedy
over-centralization and lack of democratic accountability which
constitute much of the case for devolution. Were an English
parliament to be set up, there would still be a need to disperse
power within England. So an English parliament, while it might
resolve some of the constitutional anomalies of asymmetrical
devolution, would not resolve the problem to which devolution is
proposed as an answer. Devolution in England, therefore, if it is to
serve the same ends as devolution in Scotland and Wales, must be
devolution to the English regions, not to an English parliament. It
is for this reason no doubt that, in the preface to the White Paper,
Scotland’s Purli~rnent,~
Tony Blair indicates that his government’s
‘comprehensive programme of constitutional reform’ involves as
well as ‘a ‘Scottish Parliament and a Welsh Assembly’ ‘more
accountability in the regions of England’. ‘The Union’, the document
goes on to say, ‘will be strengthened by recognising the claims of
Scotland, Wales and the regions with strong identities of their own’.
Great Britain, then, consists, for the purposes of devolution, not of
three nations, but of two, together with the English regions.
There are, however, no ministers for the English regions as there
are ministers for Scotland and Wales and, by contrast with the
Scottish and Welsh Offices, the regions are not directly represented
in the cabinet. The new Department of the Environment, Transport
and the Regions, created by the Labour government in 1997 and
headed by John Prescott, is not a ministry of the regions in this
sense since it does not enjoy, as the Scottish, Welsh and Northern
Ireland Offices do, functional responsibilities for such matters as
education and health, which remain with departmental ministries.
The English regions will therefore not be represented in the BritishIrish Council unless and until they seek devolution for themselves.
While there is some prospect of devolution in the north of England,
there is little prospect of its occurring in the foreseeable future in
the south-east. Indeed, in much of England, the regions are little
more than ghosts.

‘ Crnnd. 5460, para. 531.
Cm. 3658, 1997.

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THE BRITISH-IRISH COUNCIL AND THE TRANSFORMATION OF
THE BRITISH STATE

If there ever were to be regional government in England, it could
complicate and perhaps even emasculate the working of the BritishIrish Council. For the creation of, say, eight English regional
authorities would have the effect of swamping the Council with the
English regions. The Council would then become hopelessly
overloaded. The Irish government might well argue that the Irish
regions - Connaught, Leinster, Munster and the three Ulster
counties which are part of the Republic - should also be represented
in the Council. The Scots in turn might argue that their own regions,
the name for the upper tier of local government in Scotland until
the reorganization of local government in 1996, should also be
represented in the Council. Were the British government to claim
that London was a region, the Irish government might well claim
that Greater Dublin was a region. The possibilities for complication
and confusion seem endless. It would seem best therefore if the
question of whether and in what form there ought to be devolution
in England were to be completely dissociated from the question of
how England should be represented on the Council. The travails of
England ought not to be allowed to complicate the workings of the
Council. Perhaps the best solution to the problem would be for
England to be represented by a specific minister, for example, the
Secretary of State for the Environment, Transport and the Regions.
Indeed, when the Department of the Environment was first
established in 1970, it was apparently at one time contemplated that
it should be called the Department for England.6
The creation of the British-Irish Council, then, is occurring at
the same time as a profound process of transformation of the British
state. That process is likely to increase the power and influence of
the non-English parts of the United Kingdom, those areas which
used to be labelled, rather patronizingly, as the Celtic Fringe. In a
speech made in April 1998, the junior Welsh Office minister, Peter
Hain, suggested that the Council would reflect ‘the new evolving
constitutional arrangements and the new reality that we are all
regions of Europe’, and that the British-Irish Council, dominated
as it was likely to be by what he called the ‘peripheral regions’ of
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