I-CONnect Symposium – Peopling Constitutional Law: Revisiting ‘Constitutional Ethnography’ in the Twenty-First Century – Part IX. Protocols and Rights: Northern Ireland’s Constitutional Conundrums.

—Neil Nory Kaplan-Kelly, University of California -Irvine

The main question I wish to pose is both empirical and practical: what sites and people should we be engaging ethnographically to understand constitutions, ethnography, ethnographies of constitutions and constitutional ethnographies? Put simply, I’m asking how should we as scholars do our work and where can we learn from? And who? One of the most rewarding parts of ethnography as a method is the joy and surprise that happens in the field. What unexpected and new examples can we engage? My own recent experience in the field, working with Northern Ireland’s regional legislature, the Northern Ireland Assembly, know colloquially as Stormont, points to this question in a different way.

Northern Ireland is constantly struggling with its own self-termed “constitutional question”. Indeed, the very existence of the region is based on a constitutional compromise. Should Northern Ireland remain part of the United Kingdom or should the Island of Ireland be unified into one republic? Where will governance occur? What about issues of identity? Since those who support the unification of Ireland are often assumed to be Catholic and those who seek to continue Northern Ireland’s legal relationship with the United Kingdom are mostly assumed to be Protestant. In the wake of Brexit, the UK’s exit from the European Union, issues of borders and sovereignty have become dialogically concerned with the “the Northern Ireland Protocol”, the legal agreement surrounding trade and Northern Ireland’s statutory status that the British Government negotiated with the EU. It is often assumed that constitutions are only documents but as we have discussed today, there is something more to them than political visions or nationalist processes written down.

During my fieldwork in Belfast, Northern Ireland from Summer 2019 until winter 2020, Stormont returned to governing after a political hiatus of over one thousand days without a government. As part of the legislature’s return, I witnessed the development of an ad hoc committee in the Northern Ireland Assembly to commission a report on writing a Bill of Rights for Northern Ireland. While such a document is different from a constitution, the drafting can take on narratives and spirits of constitutional social building. A bill of rights was a key part of the 1998 Belfast/Good Friday Agreement. The Agreement ended the sectarian and political conflict known as the Troubles and was agreed by popular referendum in both Northern Ireland and the Republic of Ireland in 1998.  The committee was made up of members of the regional legislature, the Northern Ireland Assembly, and its reports were non-binding and exploratory. Given the Assembly’s unique leadership structure of consociationalism and power-sharing, a topic that can and has had many a symposium of its own, the Committee was an opportunity for formally conflicting political actors to debate a vision for their peace-based society. Slightly oversimplified the main players on the committee were members from the Democratic Unionist Party, a right-wing and explicitly Protestant party committed to Northern Ireland remaining in the United Kingdom and Sinn Féin, a left-leaning republican and ostensibly Catholic party dedicated to uniting the island of Ireland. Smaller parties like the Ulster Unionist Party, Social Democratic and Labor Party and Alliance Party also participated as pro-rights but relatively skeptical on whether the committee would get anything done. On the surface, this appeared to be an opportunity for conflict transformation and developing a new chapter in Northern Ireland’s Peace Process. However, when the Committee concluded its work and issued a report in February 2022, there was very little progress on drafting a bill of rights and the same issues (identity, governance, and economics) were still unresolved. While I was naively surprised by this and saddened at the lack of a document or reconciliation, many of my interlocutors considered this to be “business as usual” and likened this committee to being another example of political dysfunction and continued social division. However, when looking closely at this situation again, I argue that the committee’s inability to produce a Bill of Rights was rooted in a tension between crucial and intractable constitutional questions. While some members of the committee wanted to discuss what rights a document should contain (such as housing, reproductive rights, and freedom of expression, for example), others wanted to question whether there was a need for a Bill of Rights document at all. Their argument was that Northern Ireland did not need any special legislation or difference protections from the UK. Political dysfunction was still a factor in the committee’s dynamic, especially given the media attention the committee received and how different political parties would present clips from the committee on social media to exalt their own positions or accuse others of “not wanting peace to work.” Yet, I think it is worth taking the more fundamental constitutional questions into account. These questions have larger ethnographic implications. When elected officials come together to make new fundamental laws, which question should they approach first? Does a society recovering from violence need a bill of rights? Or what rights should a society recovering from violence have? In essence, I think this is a case very akin to the sociolegal term “legal consciousness” (see Merry 1990 for example) but from a constitutional perspective. In this constitutional consciousness, we see different actors approach the fundamental issues of government and nationalism from very different starting points. What are our constitutional ideals versus should we have ideals? While this discussion may not create social reconciliation, it gives insight into how divisions happen in society and the fundamental difference in how divisions occur. Similarly, I think there is a lot of insight into political polarization when we focus on the questions and sites that elected officials use to do their work. If parties cannot even agree on what democracy is from the outset, and have a very different vision or consciousness of democracy, how can the symbolic image of society that government creates work? We can understand the power of polarization in politics and society by investigating these questions ethnographically. Thus, I encourage scholars of constitutions and of democracy to not take the legislature for granted in these crucial dialogues.

As Brexit continues to be a messy thorn in every side within politics of the UK and island of Ireland, the Northern Ireland Assembly is currently in stasis. The Democratic Unionist Party is refusing to enter a government with Sinn Féin until the UK government “does away” with the Northern Ireland Protocol. Again, there is a lot of political dysfunctions here which is creating a spirit of polarization, increased bureaucratic confusion, and what my generation terms “pettiness” happening here. But more importantly, there is a larger question about the future of Northern Ireland’s constitutional consciousness. And I look forward to exploring this topic even more.

Suggested citation: Neil Nory Kaplan-Kelly, Protocols and Rights: Northern Ireland’s Constitutional Conundrums, Int’l J. Const. L. Blog, June 30, 2023, at: http://www.iconnectblog.com/i-connect-symposium–peopling-constitutional-law-revisiting-constitutional-ethnography-in-the-twenty-first-century–part-ix-protocols-and-rights-northern-irelands-constitutional-conundrums/