Beyond the Good Friday Agreement

In the Midst of Brexit

Etain Tannam

• Publisher: Routledge
• Year: 2020
• ISBN:
  9780429759666
• Edition: 1
• Topic: Economía
• Subtopic: Desarrollo sostenible

2018 marks the 20th anniversary of the Good Friday Agreement. When it was signed few would have imagined Brexit. This book examines the impact of the Good Friday Agreement on internal and cross-border political and economic cooperation between Northern Ireland, Ireland and Britain, in the context of Brexit. It also examines the impact of Brexit to date and concludes with some scenarios about the longer-term impact of Brexit on the Good Friday Agreement itself and on Northern Ireland's constitutional status.

The volume comprises chapters from leading academics in the fields of Northern Irish and comparative politics who deal with economic and political aspects of the Good Friday Agreement, making an original contribution to the current debates on conflict resolution. It provides a theoretical framework by renowned expert on consociationalism, Brendan O'Leary, as well as a chapter on the British-Irish Relationship in the 21st Century by renowned Northern Ireland specialist John Coakley.

This book was originally published as a special issue of Ethnopolitics.

The Twilight of the United Kingdom & Tiocfaidh ár lá: Twenty Years after the Good Friday Agreement

BRENDAN O’LEARY

ABSTRACT The Good Friday or Belfast Agreement was reached just over 20 years ago. This article introduces a special issue devoted to appraising its subsequent trajectory. It provides a brief resumé of the Agreement’s contents as a peace agreement, and as a regional consociation with confederal and federal possibilities. The outworkings and partial implementation of the Agreement are reviewed against a theoretical appraisal of the circumstances under which consociations decay, organically dissolve, or definitively break down. Northern Ireland is not in these circumstances, yet. The impact of UK’s referendum to leave the European Union (EU) is evaluated as well as ‘the year of the four votes’ in 2016–2017, which have jointly left Northern Ireland without a functioning executive or Assembly, and politically divided over the minority UK Conservative government’s plans to give effect to the referendum result—Northern Ireland voted to remain in the EU, and contrary to some suggestions, joint membership of the EU by the UK and Ireland was integral to the making and design of the 1998 Agreement. Future scenarios are sketched.

Anniversaries are occasions for celebrations or commemorations or both. In 2018 the Good Friday Agreement, also known as the Belfast Agreement, is 20 years old.¹ Currently, it is unknown whether it is to be placed in formaldehyde, renewed with or without significant emendation, or about to die. The Agreement is a consociational text and a peace agreement with federal and consociational characteristics. It sought to resolve a conflict that in its most recent manifestation flowed from the control regime exercised by the UUP (Ulster Unionist Party) that had lasted from the British creation of Northern Ireland until 1972. That regime had been politically, nationally, ethnically, culturally, religiously, and economically discriminatory, disorganizing the cultural Catholic population, largely of Irish native descent, and organizing the cultural Protestants who were largely of British settler descent (O’Leary, 2019a, 2019b).

Finalized in Stormont Castle Buildings on 10 April 1998, the Agreement was endorsed by 8 of the 10 parties that had won seats in elections to the Northern Ireland Peace Forum in 1996, and subsequently was ratified by the citizens of both parts of Ireland in concurrent referendums held on 22 May 1998, endorsed by 94% of those who voted in Ireland, and by 71% of those who voted in Northern Ireland.² Ireland and the UK pledged to be the guarantors in an international treaty.³ ‘The Agreement,’ unless otherwise specified, refers here to the text finalized at the multi-party negotiations chaired by US Senator George C Mitchell and his colleagues, and distributed to all households in Northern Ireland;⁴ the UK legislative enactment of the provisions regarding the internal government of Northern Ireland;⁵ and to the respective legislative enactments of the treaty by the two sovereign governments.

If the Agreement dies in the near future it will have lasted longer than the average written constitution of a sovereign state (Elkins, Ginsburg, & Melton, 2009). Reasonable observers—and there are some—would have to code it as a partial success because it has played a major role in consolidating the end of significant ethno-national violence and counter-insurgency operations; in facilitating the reform of policing and judicial institutions; in embedding equality and anti-discrimination law; and in eventually opening a decade of continuous if contentious power-sharing between the Democratic Unionist Party (DUP) and Sinn Féin (O’Leary, 2019c).⁶

As the Agreement’s third decade begins, it is equally possible, however, that three of its key institutions—the Northern Ireland Assembly and Executive, and the North-South Ministerial Council—will go into suspended animation, officially or otherwise. If that happens, they are not likely to re-emerge until after the UK’s exit from the European Union (EU), which has been fitfully, and chaotically, underway since the summer of 2016, or, until the DUP’s ‘supply and confidence’ agreement with the minority Conservative government, in existence since the summer of 2017, comes to an end.⁷ Current negotiations suggest that UKEXIT from the EU will begin in January 2021, following the EU–UK agreement to accept a transition until December 2020 during which the UK will remain governed by EU law but not participate within EU institutions.⁸ The third possibility would lead to the renewal and emendation of the Agreement: there is a case for some minimal changes, consistent with the Agreement’s own provisions for review and amendment, following arguments anticipated elsewhere (McCrudden, McGarry, O’Leary, & Schwartz, 2016), and there will have to be some amendments because of UKEXIT.

The Content: Consociation Plus

Strand One of the multi-party and intergovernmental negotiations produced internal consociational arrangements for Northern Ireland (O’Leary, 1999). A cross-party, cross-national, cross-community power-sharing executive was established in Belfast, based on a dual premiership—two first ministers differ only in their titles, and not in their powers—and a cabinet formed through the d’Hondt allocation rule (McEvoy, 2015; O’Leary, Grofman, & Elklit, 2005). Proportionality rules determine executive formation (d’Hondt), the electoral system used to return the Assembly (STV-PR), the Assembly’s committee structure (d’Hondt), and the restructured Northern Ireland Police Service and Policing Board (Doyle, 2010; McGarry & O’Leary, 2004). Cultural autonomy had earlier been placed on an equal footing in one key domain in 1992: all schooling systems are equally and proportionally funded (Fontana, 2017). The two sovereign governments pledged to govern with rigorous impartiality regarding rights, religion, and culture, whether Northern Ireland remained within the UK, or reunified with Ireland. The Agreement contained multiple veto-provisions to prevent simple majoritarian dominance. Cross-community consent legislative rules in the Assembly require either concurrent majorities of registered unionists and nationalists for the passage of laws (‘parallel consent’) or a qualified majority of at least 60%, including at least 40% of registered nationalists and unionists, respectively (‘weighted majority’). These rules may be triggered by a petition of concern, signed by 30 Members of the Legislative Assembly (MLAs).⁹ A two-thirds resolution among all MLAs may trigger an extraordinary general election before the Assembly’s statutory four-year term expires. This rule was agreed in preference to a proposal that the UK Secretary of State should have the power to dissolve or suspend the Assembly—a sign of the local parties’ commitment to their self-government. Subsequently, to suspend the Assembly in February 2000, the UK Secretary of State, Peter Mandelson, had to pass fresh primary legislation, the Northern Ireland Act 2000, through the Westminster parliament, and outside the remit of the Agreement, but the Suspension Act was repealed as part of the making of the St Andrews Agreement in 2006—and had never been recognized by Ireland’s government.

The Agreement was not just consociational, however (McGarry & O’Leary, 2006a; 2006b; O’Leary, 1999), and departed from Arend Lijphart’s prescriptions in important respects; e.g. the Northern Assembly does not use list-PR for elections but rather STV-PR, and was designed to operate within overarching confederal and federalizing arrangements (or at least possibilities). The external dimensions of the Agreement, flowing from Strands Two and Three of the negotiations, produced the North-South Ministerial Council, the British-Irish Council, and the British-Irish Intergovernmental Conference. The Agreement was made with, and by, the leaders of national, and not just ethnic or religious communities; majorities in two simultaneous and separate referendums in different polities endorsed it; and it was the first consociation endorsed in concurrent referendums in different states. There were prospects of shared authority in the oversight arrangements agreed between the patron states, though these have since been downplayed. A novel model of ‘double protection’ was sketched, though it remains to be fully implemented: upon accomplishment, identical protections of rights and institutions would prevail in Northern Ireland whether it remained within the UK or reunified with Ireland; differently put, there was to be a functional equivalence in human, minority, cultural and political rights on both sides of the land border across Ireland.

Through cross-community agreement, the Assembly was entitled to expand its powers; and, with the consent of the UK Secretary of State and the Westminster Parliament, the Assembly may legislate for any function within Westminster’s jurisdiction. According to the UK’s legal orthodoxies, maximum feasible devolved self-government was therefore within the scope of the local decision-makers. The Northern Ireland Act 1998 permits the Assembly to expand its autonomy regarding reserved matters, which included the criminal law, criminal justice, and policing. In 2010 policing and the administration of justice were included among its functions, prompted by the two sovereign governments but at the insistence of Sinn Féin.¹⁰ If the Agreement had been fully implemented, and its potential to expand regional autonomy exploited, then most discretionary public policy in Ireland, north and south, would have been made without direct British ministerial involvement. The London Treasury’s budgetary allocation has remained crucial, however, in a region which remains much less economically developed than Great Britain or sovereign Ireland.

Interim Evaluations

The long and turbulent record of implementing and attempted renegotiation of the Agreement has been the subject of several studies (O’Leary, 2019c; Ó Dochartaigh, 2015; Todd, 2013, 2017). In this journal it has been argued that Northern Ireland’s novel consociational design, especially its executive, worked better than many had expected, and significantly better than various centripetal arrangements that have been tried or proposed in Northern Ireland and elsewhere (McCulloch, 2013; McGarry & O’Leary, 2015). This judgment remains robust despite all current difficulties.

1998–2016. Despite significant teething difficulties, the DUP’s participation in the new institutions was one measure of the Agreement’s promise of endurance. The DUP quickly switched from outright opposition to seeking to renegotiate the Agreement, offering itself in the June 1998 Assembly election, as unionists’ ‘best guarantee’ that their interests would be protected in the new regime (DUP, 1998). The party thereby proclaimed its intent to act as ‘an ethnic tribune party’ (Mitchell, Evans, & O’Leary, 2009). The DUP took the ministerial portfolios to which it was entitled, though it later began to rotate nominees through the cabinet in protest at the failure of the IRA to decommission it arsenal. But it would formally work the Agreement, after the Saint Andrews Agreement of 2006 made some minor amendments, the most significant being the abolition of the concurrent majority requirement to elect the First Minister and Deputy First Minister with the endorsement of both registered nationalists and unionists.¹¹ Since then, registered nationalists, unionists, and others, have been free to vote for their own leaders, and have had no formal right to veto other parties’ choices of leaders. The executive design has throughout incentivized hard-liners to win ministries and the two premierships by partially moderating their platforms and accommodating one another (Mitchell et al., 2009). Negotiations over the placements of ministers in specific portfolios, in principle, were not required because the parties’ shares of portfolios, and their choices among them, were determined by the automatic proportional and sequential provisions of the d’Hondt allocation rule.

Most of the Agreement’s specifically peace-related provisions were eventually implemented: ceasefires, decommissioning, followed by the substantive disbanding of major paramilitary organizations (notably the IRA); the early release of paramilitaries from jail provided their organizations remained on cease-fire; and highly significant police and judicial reforms (cultural Catholics are now a bare majority of justices on the high court). Police reform would have gone further had the Conservative Secretary of State Owen Patterson not decided in 2011 to end the rigorous quota on recruitment of cultural Catholics at a proportion of 50%. That quota, and other significant reforms, had made significant inroads into transforming the previously partisan police force into a representative service.

The North-South Ministerial Council, as expected, has proven more significant than the British-Irish Council, but cannot be judged to have played a tra...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Contents
• Citation Information
• Notes on Contributors
• 1 The Twilight of the United Kingdom & Tiocfaidh ár lá: Twenty Years after the Good Friday Agreement
• 2 Intergovernmental and Cross-Border Civil Service Cooperation: The Good Friday Agreement and Brexit
• 3 The Irish–Northern Irish Economic Relationship: The Belfast Agreement, UK Devolution and the EU
• 4 The EU’s Influence on the Peace Process and Agreement in Northern Ireland in Light of Brexit
• 5 Brexit, Bordering and Bodies on the Island of Ireland
• 6 The British–Irish Relationship in the Twenty-first Century
• 7 Postscript: New British Questions or 2019 And All That!
• Index