Resorting to law for violating impartiality won’t end political deadlock but fresh Westminster legislation now just might

It always happens, doesn’t it, that when political deadlock becomes tighter, legalistic arguments become more obsessive.

It’s a hoot to claim that the once great  hero of the GFA  and now  the great scapegoat for all that’s gone wrong anywhere, anytime Tony Blair, conned the poor innocent parties to the St Andrew’s Agreement over an Irish Language Act.  Couldn’t they read? As barrack room lawyers par excellence themselves, couldn’t they recognise a hostage to fortune when they saw it?

What is far more interesting is the neat elision from what the St Andrews’s Agreement states to the enabling Act. The baby is quietly handed over from Westminster to the Assembly. This is  not a new discovery but as far as I know nobody complained at the time.  A good one to hold in reserve for a crisis?

THE ST ANDREW’S AGREEMENT 2006

ANNEX B HUMAN RIGHTS, EQUALITY, VICTIMS AND OTHER ISSUES

The Government will introduce an Irish Language Act reflecting on the experience of Wales and Ireland and work with the incoming Executive to enhance and protect the development of the Irish language. • The Government firmly believes in the need to enhance and develop the Ulster Scots language, heritage and culture and will support the incoming Executive in taking this forward.

 NORTHERN IRELAND ( ST ANDREW’S AGREEMENT) BILL

The  House of Common’s library’s Explanatory Notes of clause 15 ( which can be quoted as evidence in court),  make it clear the UK Government has shifted responsibility for passing an Irish Language Act to the Executive to come up with a “strategy.”

Clause 15: Strategies in relation to Irish language and Ulster Scots language etc

  1. Clause 15 of the Bill inserts a new section 28D into the 1998 Act. Section 28D places a duty on the incoming Executive Committee to adopt a strategy relating to the enhancement and protection of the development of the Irish language and also to adopt a strategy relating to the enhancement and development of the Ulster Scots language, heritage and culture.

 

It is perfectly possible therefore to argue that the British government should now introduce legislation  at Westminster for an Irish Language Act and an NI Bill of Rights, if the Assembly parties cannot agree on a “strategy”. This might actually break the deadlock. Has any party actually asked them to do so in the last few days?  OK, I’m  stretching  a point to the limit.  With their deal in the bag would the DUP consent as a ingenious way out of deadlock? They’d have to vote for it in the Commons and that would be a mite tricky. If they were prepared to vote for it, why not agree  in the talks now?

  

Legal action against  the British  government for alleged breaches  of the Good Friday Agreement may be forthcoming and could  well  damage  prospects of  eventual agreement  in the talks. The Agreement is the nearest we’ve got to a basic law for Northern Ireland within a British system  which is still based on the sovereignty of Parliament rather than a  codified or written constitution. Arguments will continue between the   sovereignty of parliament supporters ( very much today’s Conservatives) arguing for a limited, constructionist view of the Agreement and those who maintain (nationalists and some human rights lawyers) that  changes to government policy cannot be made by the British within the scope of the Agreement  without the approval of its other signatories, the Irish government and the local political parties because the GFA is an international treaty.

These are  quite different constitutional outlooks  which the  two governments  don’t want break out into a dispute. The British say they’re solely responsible for Strand One, Stormont. They may be in law but in practice they want to take Dublin along with them. Dublin has a new problem. After Brexit how are the rights of the EU citizens in the North to be guaranteed? In practice  they aren’t forcing the issue until they see the shape of Brexit and out of vital solidarity with the British. So far, all Gerry Adam’s demands for a more assertive approach from Dublin have been rejected.

In the Irish News the apologist for Sinn Fein’s position Brian Feeney  takes it for granted that the DUP deal with the Conservatives is in breach of the GFA. Leaving aside that this would keep Sinn Fein in a cul de sac, a legal case is being marshalled as the Guardian reports based on the argument of the legal academic Colin Harvey.

References to  extending the military covenant and  complaints about making cases  against ex-soldiers are clearly politically controversial  but here the human rights arguments are not all one one way.

The MoD might argue that the NI Sentences Act of 1998 was discriminatory against soldiers because it did not extend the two-year minimum sentence to soldiers convicted in relation to deaths occurring before 1998.

If  a legal case on equality grounds found in favour of the Army  would Sinn Fein meekly accept it without a  balancing concession ? Of course not. It’s the politics not the law they care about , stupid.

On Brexit the courts did not accept  the wide view that the references to the EU in the GFA meant that the Northern Ireland Assembly had a veto on the application to leave.  Will attempts to argue that the DUP’s deal with the Conservatives  breaches the agreement prove any more successful?    Even more to the point, does anyone seriously think a legal case can scotch the deal and bring the courts into direct conflict with the government?  We are not the United States.

On the fundamental issue, a still sovereign parliament is bound to be able to make arrangements for forming a stable government among any of its members and to disperse tax revenues according to its own rules. Think about it.   Impartiality comes in when the UK government argues that the dispersal of funds is for all the people of Northern Ireland and that is the Assembly’s responsibility. The UK government and the DUP  may therefore have no legal case to answer. This at any rate is the British view.

Far more complicated questions will arise over the prerogatives of Westminster as against the consent required  from the devolved administrations for implementing  Brexit and the process for getting there, especially when some powers to be returned from Brussels are split between them,  But although there is legal content here, almost certainly the issues will be solved politically more than legally.

In the Assembly itself might be possible to make a legal case that petitions of concern are thwarting the will of the majority over same sex marriage? Perhaps.  The reform of Assembly process could solve a lot of problems but so far the political will is absent.

The  basic issue is that Sinn Fein’s vision of “ a rights based society “ cannot rely on  law.  Their preference  for cutting out Westminster as much as possible  and relying more on law than even the Assembly is unrealistic.   They are faced with an existential choice between relying on mass democracy alone (elections on an abstentionist ticket and a border poll) or mixing it with parliamentary democracy and the rule of law.

I see that the notable litigant Raymond McCord  is questioning whether the secretary of state should be the sole person to  decide on a border poll.

My client’s case is that this issue, being of such constitutional importance to the people of Northern Ireland, should not be determined at the discretion of an individual but should be prescribed in policy for the public consumption.

This could be more promising legal territory.

But fundamentally, recourse  to law by political parties or their surrogates on constitutional issues  may appeal as a tactic  to show confidence in their case and put pressure on others. But otherwise  it’s a slow, clumsy and above all unpredictable tool if the protagonist is ultimately serious about reaching a political agreement.  Judicial review is built into the system of government and even allows one minister  to challenge the decision  of another. The whole mindset of resorting to law rather than  working through problems politically has done little for Executive cohesion and building trust.

The problem of a hard border created by the Brexit verdict  and  the  potential solution of Northern Ireland remaining in the EU  produced the perfect formula for widening divisions in fragile relationships.  The future depends a great deal on the Brexit outcomes.

Internally – and it’s a discussion for another day –  the architecture of power sharing  has arguably thwarted the will of ample cross community majorities, while the straight jackets of  the two largest parties’ mutual veto has created the malign logic of breakdown  and prevents the possibility of an alternative  cross community government. Until there’s an appetite for reform, the prospects for a stable Assembly will remain poor.

In a properly  functioning  democracy even for a divided community ,  the safeguards cannot become chains and parties must be willing to lose a vote or  government office and let in another. All cannot win prizes for the prizes to  remain worthwhile.

Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London