27 February 2018

Will Brexit scupper the Good Friday Agreement?

By Owen Polley

The Good Friday Agreement has become a running theme in Britain’s prolonged, rancorous debate about Brexit. Some remainers say that it is incompatible with leaving the European Union, the Irish government repeatedly invokes the accord to promote its own interests and now several influential leavers imply that the agreement should be scrapped altogether. People in Northern Ireland can be forgiven a little cynicism about this sudden, intense interest in our political setup. Ulster’s Twitter users quickly appended the hashtag #hottakesni to a fresh slew of opinion pieces generated outside the province, that offer judgements on the importance or redundancy of the Belfast Agreement.

Certainly, many claims are made of the document, which is famed for its “creative ambiguity”, but few are backed up by references to the actual text. It’s worth asking, does Brexit really undermine the Good Friday Agreement or, given that talks to restore power-sharing broke down again last week, has the peace deal outlived its usefulness?

The brief answers are “no” and “no”, but, predictably, they are subject to qualifications and provisos.

Two legal cases have already challenged the UK government’s right to impose Brexit on Northern Ireland and both were quickly rejected by the courts. The Supreme Court found that there was no need to consult the Stormont Assembly before Article 50 was triggered, and ruled that the Good Friday Agreement governed the province’s constitutional position in the UK, but was not relevant to its membership of the EU.

The accord does not form a legal impediment to Northern Ireland leaving the European Union with the rest of the country.

A more subtle argument suggests that Brexit changes the “context” that allowed the peace process to progress and therefore contravenes the “spirit” of the agreement. You may even hear it asserted that the border was dismantled as part of the Good Friday deal. That’s usually a deliberate attempt to confuse security arrangements, put in place when terrorists regularly moved back and forward across the frontier, with the customs border, that largely disappeared after the formation of the single market.

It’s impossible to deny that the context in Northern Ireland 2018 is different from the context back in 1998, in all sorts of ways. However, Irish nationalists and the Dublin government, with whom many remainers are making common cause, prefer to focus on hazy concepts like the spirit of the accord and loose interpretations of its passages on identity, rather than more concrete provisions on sovereignty.

The very first meaningful clause in the Belfast Agreement determines that its signatories recognise “the legitimacy of whatever choice is freely exercised by a majority of the people of Northern Ireland with regard to its status”. This is the first of several parts of the text that put the “principle of consent”, which determines that the region must remain a full part of the UK until its people choose otherwise, at the centre of Northern Ireland’s political system.

For that reason, it may seem surprising that prominent leavers, like Daniel Hannan, Owen Paterson and Kate Hoey, have recently criticised the agreement in fairly robust terms. Yet it’s not entirely clear if these critics are arguing for reform, to make the Northern Ireland Assembly and Executive work better, or whether they want to ditch cross-community power-sharing altogether.

There has been a furious reaction to their views, particularly from those who oppose Brexit, but it’s impossible to argue that the Good Friday institutions are currently working well, given that the province has been without a government for over 13 months. During the checkered history of devolution, lots of moderate figures in Northern Ireland, unionist and nationalist, argued that some of the “ugly scaffolding” put in place by the agreement should be removed.

Some progress was made toward that goal during the last Assembly, which passed a bill tabled by the independent MLA, John McCallister, allowing smaller Stormont parties to leave the Executive and form a recognised opposition. Unfortunately, it’s difficult to see how the broader tenets of mandatory coalition or “parallel consent”, which requires controversial decisions to be endorsed by majorities of both unionists and nationalists, could be replaced in the foreseeable future.

If there were a popular mood to start unpicking Northern Ireland’s plentiful political agreements, it would be better to start with the St Andrews accord that rebooted devolution in 2007, under the dominance of the DUP and Sinn Fein.

That deal altered the way the First Minister is nominated – changing the criteria from the leader of the largest designation (ie, unionist or nationalist) to the leader of the largest party. It locked in place a perpetual, sectarian headcount between the two biggest parties during elections and killed the competitiveness of Northern Irish politics. A recent wide-ranging analysis of the province’s election results since 1969 shows graphically how St Andrews marginalised rivals of the DUP and Sinn Fein.

It’s understandable that unionists have become cynical about the Good Friday Agreement, as republicans continue to refuse to operate the power-sharing institutions it established and make all sorts of outlandish claims that it restricts British authority in Northern Ireland. And you can see why leavers have become hostile to an accord that their opponents believe is a type of silver bullet, destined to kill Brexit stone dead.

Yet, unlike the St Andrews deal, the actual text reinforces the moral argument that Northern Ireland must be treated as a full part of the United Kingdom, just like all its other constituent parts.

In the constitutional clauses that form the core of the document, the signatories acknowledged that “the present wish of a majority of the people in Northern Ireland, freely exercised and legitimate, is to maintain the Union and, accordingly, that Northern Ireland’s status as part of the United Kingdom reflects and relies upon that wish; and that it would be wrong to make any change in the status of Northern Ireland save with the consent of a majority of its people”.

The current threat to that principle comes, not from implementing Brexit, but from the idea that Northern Ireland might stay in the Customs Union or the Single Market while the rest of the UK leaves. Similarly, it is undermined by the notion that some form of joint sovereignty with Dublin could be introduced, if a deal cannot be reached to restore the Stormont Assembly and a power-sharing government.

Either of those measures, supported by many nationalists and the Irish government, would run directly counter to the democratic, constitutional choice made by the people of Northern Ireland. They are incompatible with the Belfast Agreement.

Owen Polley is a writer, consultant and co-author of An Agenda for Northern Ireland After Brexit.