Friday 23 February 2018

Northern Ireland ~ some notes

"The Good Friday Agreement is under attack.  Can we really risk ditching it?  That is a headline in The Guardian 23rd February.  The answer ought to be a resounding NO.  This post examines why.

Several Members of Parliament are calling into question the Good Friday Agreement (1998) despite the fact that it has been, and remains, the basis of the peace process in Northern Ireland - Huffpost 19th February - "Hardline Brexiteers have been accused of “jeopardising” peace in Northern Ireland after they made dramatic claims the Good Friday Agreement (GFA) was “not sustainable.”  The peace process is far from being an event that took place only in 1998.  Securing a lasting peace settlement in Northern Ireland has required on-going work and is likely to do so for a considerable time to come.

Northern Ireland - which voted 55.8% to Remain in the EU - is facing particular difficulties over Brexit with the possibility of a harder border having to be created between Northern Ireland and the Republic of Ireland.  The GFA operates within the context of EU membership and with a strong requirement for a robust legal structure in place to support political power-sharing and human rights.

There is a long, complex and all-too-often tragic history behind both the development of government within Ireland and Anglo-Irish relations generally.  The period 1969 to 1998 saw in excess of 3500  deaths arising from the conflict in Northern Ireland - see Belfast Child and also this table

The Good Friday Agreement - brokered by Tony Blair’s Government - has been and remains a key factor in bringing to an end years of sectarian conflict in Northern Ireland. It is an international treaty signed in 1998 with the support of most of the Northern Ireland parties, the British Government and the Irish Government. The Democratic Unionist Party (DUP, then led by Ian Paisley, opposed it.  In December 2017, former USA Senator George Mitchell (who helped create the GFA) said that the agreement would not have happened without the EU - BBC News 29th December 2017.

A research paper published in November 2017 by academics at Queen's University Belfast (QUB) asserts that Brexit "poses deep risks for the 1998 Agreement."  The report, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs, found that a hard border between the two Irelands could lead to a breakdown in law, security, trade and politics.

Dr Katy Hayward, who co-authored the paper, said: “Any ‘hardening’ of the Irish border is not just a practical impediment to cooperation and economic growth but also an obstruction to the effective implementation of the Agreement.”   Co-author Professor David Phinnemore also cautioned that working out a deal that works will rely on compromise and flexibility from both sides.  He said: “Brexit is a complex, multi-faceted process. And major concerns exist regarding its implications for Northern Ireland, especially for the border and the Good Friday Agreement.  The challenges are being acknowledged and the eyes of EU and UK negotiators are increasingly focused on Northern Ireland.  Given the commitment of both sides to addressing the ‘unique circumstances on the island of Ireland’, there is no reason to doubt that the challenges can be addressed.”  QUB Professor Chris McCrudden agreed that Brexit threatens to derail the fragile peace that the Good Friday Agreement has held together for two decades.

The report may be read at - UK Withdrawal ('Brexit') and the Good Friday Agreement - Dr Kay Hayward and Professor David Phinnemore - Queen's University, Belfast or, alternatively, at European Parliament.   See also LSE - Brexit - This Brexit juncture is a critical moment for the Good Friday Agreement

The QUB Study is far from being a negative assessment of Brexit and the GFA.  Whilst clearly recognising the risks that Brexit presents to the peace process, the study concludes by noting - "Given the commitment to addressing the ‘unique circumstances on the island of Ireland, the language of ‘flexible and imaginative solutions’ and precedents for differentiation, there is no reason to doubt that the challenges can be addressed. What arrangements will be put will depend ultimately on political will."

Political will is crucial but, at present, "power sharing" in Northern Ireland is at an impasse and the history since the GFA has been marked by several problems in this area.


The Belfast Agreement of 1998 (or "Good Friday" Agreement) begins with an important Declaration of Support in which the participants in the multi-party negotiations state their belief that the agreement offers a truly historic opportunity for a new beginning.  "The tragedies of the past have left a deep and profoundly regrettable legacy of suffering. We must never forget those who have died or been injured, and their families. But we can best honour them through a fresh start, in which we firmly dedicate ourselves to the achievement of reconciliation, tolerance, and mutual trust, and to the protection and vindication of the human rights of all."

The Belfast Agreement was endorsed in a referendum held in Northern Ireland in May 1998. With a turnout of 81.1%, the agreement received 71.1% support.  (A similar poll held in the Republic of Ireland received 94.4% in favour).   Crucially, the Agreement provided that Northern Ireland in its entirety is to remain part of the United Kingdom and "shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll" and this was duly enacted into law when the Agreement was implemented by the Northern Ireland Act 1998 - see section 1.

The 1998 Act created a new system of devolved government for Northern Ireland with a power-sharing formula clearly requiring the various political parties to work together both in a new Assembly with devolved powers and in a power sharing Executive.  In Robinson v Secretary of State for Norther Ireland [2002] UKHL 32, statements in the House of Lords referred to the 1998 Act as a "constitution for Northern Ireland."  At para 11 Lord Bingham said - "The 1998 Act does not set out all the constitutional provisions applicable to Northern Ireland, but it is in effect a constitution" and at para 25 Lord Hoffman said - ".... The 1998 Act is a constitution for Northern Ireland, framed to create a continuing form of government against the background of the history of the territory and the principles agreed in Belfast." The GFA also created other mechanisms for co-operation such as the North-South Ministerial Council.

Power sharing has not been free of problems - see, for example, this page on the Northern Ireland Assembly website where the history of the period 2003-7 is set out.   January 2017 also saw a breakdown of power-sharing which has still not been restored.

Power-sharing following the 2016 NI Assembly election:

The Assembly Election held in Northern Ireland on 5th May 2016 resulted in the Democratic Unionist Party (DUP) becoming the largest party in what was then a 108 seat Northern Ireland Assembly and Sinn Féin was the second largest party. They had 38 seats and 28 seats respectively with a further 42 seats going to other parties or candidates.  Under the terms of the Northern Ireland (St. Andrews Agreement) Act 2006, the First Minister is nominated by the largest party and the Deputy First Minister by the second largest.   Thus, Arlene Foster became First Minister and the late Martin McGuinness became Deputy.

In January 2017, Martin McGuinness  resigned as Deputy First Minister in protest at the "Renewal Heating Incentive" championed by the DUP.  (The RHI scheme is now the subject of an Inquiry under the chairmanship of Sir Patrick Coghlan - Inquiry website).  One outcome of the McGuinness resignation was that a further election was held on 2nd March 2017 in which the DUP obtained 28 seats, Sinn Fein 27 and a further 35 seats to others - (the required Assembly size was now 90 seats as opposed to the earlier 108).  This was a significant political success for Sinn Féin. The outcome of the election was discussed in this article in The Independent 4th March 2017.

Talks aimed at forming an executive have continued from time-to-time since the 2017 election but, so far, without success. (The 2017 General Election accounts for some of the time). The Secretary of State for Northern Ireland made an oral statement to Parliament on 20th February 2018 addressing the latest position in the talks - Statement to Parliament

It appears that the latest talks ended over issues to do with legislation for the Irish language.   The Secretary of State's statement affirms the government's commitment to devolution under the terms of the 1998 Belfast Agreement.  There is a need for certainty about a budget for Northern Ireland and for continuation of salaries for Assembly members.  The government will consult on the implementation of bodies set out in the 2014 Stormont House Agreement and will support the reform of inquests.

A further dimension to the political calculus was added following the 2017 General Election when the DUP entered into a confidence and supply arrangement with the Conservative Party - Previous post    The DUP lost support in the 2017 Northern Ireland Assembly election but won 10 seats in the General Election.  This arrangement has raised serious concerns regarding the necessary even-handedness of the British government in the management of Northern Ireland affairs.

Against the background of Brexit with its particular ramifications for Northern Ireland, there is a clear imperative to have functioning devolution and it is to be hoped that headlines such as - Theresa May has no plan to save power-sharing - are wrong.  A functioning Assembly and Executive ought to give Northern Ireland greater leverage to influence the Brexit negotiations and to avoid the alternative of "direct rule" from London.  The absence of functioning devolution makes the on-going work to gain a lasting peace more difficult and it appears to be crucial that this is restored without much further delay given the likely consequences of failure to do so.

The Good Friday Agreement brought about beneficial constitutional reform to Northern Ireland and these arrangements were adopted by the people of Northern Ireland in the 1998 referendum.  In a very real sense, the arrangements belong to the people of Northern Ireland and ought not to be swept aside by those in Westminster who appear to seek Brexit at almost any price.

Additional links:

BBC News 14th February 2018 - Power-sharing talks collapse at Stormont

Independent 14th February - Arlene Foster says there is 'no prospect' of deal to restore Stromont Government

Westminster involvement in Northern Ireland Governance inevitable - Yahoo News 15th February

Direct Rule is not where we want to be - Tánaiste Simon Coveney - Irish News 16th February

King's Student Journal for Politics, Philosophy and Law - Brexit, the Good Friday Agreement and the Northern Ireland Act 1998

British Academy - The Good Friday Agreement, Brexit and Rights - Professor Chris McCrudden

Centre on Constitutional Change - British withdrawal from the EU: An existential threat to the UK? - Sionaidh Douglas-Scott

The Week - How the GFA brought peace to Northern Ireland and why

  - The National 24th February - "The agreement isn’t just an internal agreement between Northern Irish political parties, it’s also an international treaty between the UK and an Irish state which has the backing of the other 26 EU member countries."

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