Until last week, remarkably little attention had be paid to how this government views its obligations under “Constitutional Issues” (v) of the Good Friday (Belfast) Agreement:
(v) affirm that whatever choice is freely exercised by a majority of the people of Northern Ireland, the power of the sovereign government with jurisdiction there shall be exercised with rigorous impartiality on behalf of all the people in the diversity of their identities and traditions and shall be founded on the principles of full respect for, and equality of, civil, political, social and cultural rights, of freedom from discrimination for all citizens, and of parity of esteem and of just and equal treatment for the identity, ethos, and aspirations of both communities..
While of necessity if nothing else, assurances of the British government’s impartiality under the GFA have been accepted by the Irish government, controversy about it may yet prove to be an obstacle to the resumption of Stormont.
A very different background from the GFA
In the heady days when the GFA was concluded, peace in Ireland was the big ticket item, devolution for Scotland held the key to thwarting the rise of nationalism, EU membership was controversial only with a few right wingers in a Conservative party crushed by New Labour, and the full scale invasion of Iraq and controversy over the British army’s relationship with a civilian population was some time in the future.
Changed – ( wait for it!) – utterly
So much has changed. Brexit is under way (we think). The challenge to the Union from the SNP has been picked up by a more consciously patriotic Conservative party emphasising the sovereignty of the Westminster parliament over the nationalist ambitions of Holyrood and the further development of a legal rights constitution defined in a European legal framework. Affected by great public sympathy for soldiers fighting frankly losing battles for years in Iraq and Afghanistan, Conservative party opinion and beyond is strongly rebelling against what they think of as Irish republicans trying to settle old scores in Northern Ireland.
The DUP have carefully aligned themselves with this position.
On Brexit, by rejecting membership of the single market and the customs union for any part of the UK, Theresa May created the problem of a return to a hard Irish border, while the EU provided the hypothetically neatest solution by allowing Northern Ireland to remain within the EU as part of a united Ireland achieved by majority consent. Here was the perfect formula for widening divisions in Stormont. In the old days breakdown beyond deadlock might have attracted rather more activity than setting elastic deadlines and delivering trite little soundbites about the importance of sorting themselves out. A framework and suggested agenda for round table talks? A reply to charges of failing to fulfil agreements already entered into? An active chair? Even a neutral chair provided for in the GFA? Even contact with the prime minister?
Sort it out themselves
One problem has been Whitehall’s dear wish to put something called “devolution “into the same box despite tbe obvious diversity and asymmetry of devolution throughout the UK. As devolution has developed, it has been greatly complicated by growing nationalism in Scotland and to some extent in Northern Ireland. To Westminster, greater devolution which they theoretically approve of, carries with it the stalking horse of secession which they passionately oppose. And there is the awkward coincidence , if not uniformity , between nationalism and Remain.
In Northern Ireland the result since the completion of devolution from 2010 has been the huge reluctance of Westminster to interfere in Northern Ireland more than absolutely necessary.
What is Brokenshire about?
Before the arrival of Theresa May’s protegee James Brokenshire, there was similar exasperation with Theresa Villiers, but at least she spent two periods of two months each in intensive talks in 2014 and 15 and finally produced Fresh Start. Unionists generally are probably happy with less intervention as they believe it favours republicanism.
The immediate reasons for a lack of direct engagement since the January breakdown can only be guessed at. Brokenshire has never been tackled on it. But you’d think they’d have wanted to avoid direct rule at all costs and would have tried a bit harder in the meantime.
I haven’t found a satisfactory explanation. Was there a cunning plan to let endless crises burn themselves out? A feeling that he was overwhelmed by veterans in an intense political world beyond his ken and experience? Too much under the influence of Jonathan Caine, his dedicated but strongly unionist spad? Lack of historic memory in a downgraded NIO?
On becoming PM one of Theresa May’s cherished aims was the defence of the “precious, precious Union”. This has had some undoubted success in Scotland.
But passionate support for the Union is contradicted by the perception of indifference towards Northern Ireland. Was Northern Ireland added to the Union commitment only for form’s sake? Or from a vague belief that it would come all right in the end, aided perhaps by Dublin’s closer engagement with Brexit consequentials for the North?
To Brokenshire, could a policy of pro-active, prescriptive intervention with proposals for a new agreement only have been conceived of as tilted towards the DUP, while impartiality meant an absence of intervention altogether, beyond the occasional blow of a referee’s whistle?
It was very revealing what secretary of state Brokenshire said about some of the contentious areas:” they’re devolved “ as if that closed the subject, separating them out and leaving them to the apolitical chairmanship of civil service chief Malcolm McKibbin . The politics of Northern Ireland recognises no real difference between devolved and not devolved.
In the NIO’s favour, it could be asked: in the Robinson period, over Red Sky “corruption,” Swish Family Robinson, scrapping the Maze peace centre, serial DUP ministerial withdrawals over SF/IRA responsibility, flegs protests, etc., what was there to get a grip of through mediation?
Brokenshire therefore may have thought that the breakdown over RHI against the background of Brexit was purely SF opportunism and would have to work its way through to some conclusion. There’s a case for believing that.
Peace process no longer paramount?
On the other hand, HMG and Brokenshire seemed wilfully to ignore the NI implications of policies in a way which compromised the concept of impartiality held by Tony Blair’s chief GFA diplomat Jonathan Powell, the nationalist parties and the Irish government.
In January he complained about Troubles inquiries focusing too much on the army. This was enthusiastically echoed by the DUP in circumstances where nationalists were claiming HMG was using the catch-all of national security to block such inquiries. Why did he not leave it to others to intervene with this very Tory patriotic view? Inevitably Gerry Adams rejected him as a mediator because he was a “player”. This was either a crass error, or a British red line. If the latter, it is following the dangerous track of the Defence select committee’s report recommending a statute of limitations for the army. If that progresses without extending immunity much further, Stormont looks doomed.
Long before the infamous Conservative manifesto and the Manchester and London atrocities, Theresa May as home secretary fought hard to restrict the rights protection afforded to Islamicists by standards set by the European Convention on Human Rights. She finally settled on a review of the Human Rights Act and the ECHR after Brexit, even though they are entrenched in the GFA and any change is strongly opposed by Dublin and the legal establishment in GB.
In these two areas hitherto thought crucial to the peace process, the UK government has shown either a stunning lack of awareness or a new determination to resort to a more distinctively British system which is plainly at odds with the context of the GFA.
Rumbling legal and constitutional differences between Britain and Ireland are being exploited by Gerry Adams but have so far been suppressed by the two governments by mutual consent.
Stepping up the pace
At least in the last few days, negotiations have followed the more familiar pattern of separate talks with each party followed by a round table after the presentation of a summary paper. Would this have happened without the pressure of a DUP deal at Westminster and a new Taoiseach keen to make a splash?
The lack of media attention to it in the present turmoil has meant that the UK government has been lucky to get away with so little scrutiny so far, at least until the prospect of a DUP deal brought Northern Ireland out of deep in the wings to a moment centre stage.
Brexit and the importance of the British-Irish relationship
There is basic agreement among the UK and Irish governments and the Stormont parties over wishing to preserve the essence of the status quo of an open border, free trading and virtually interchangeable citizenship throughout the British Isles. The Irish government will argue for a long transition period for the UK as whole and for the North to remain closely aligned to the single market with some kind of bespoke customs arrangements. Hopes are high that the British-Irish relationship, albeit under minority governments, will survive and even strengthen on opposite sides of the Brexit negotiations. It remains the best guarantee of stability in Northern Ireland and all the more so , if Stormont becomes little more than part of a framework on which to hang periodic turnout battles designed to lead to a border poll sometime over the next few years. The people of Northern Ireland deserve more than that.