A revised Belfast Agreement is needed more than nostalgia for 1998

Like Magna Carta, the Belfast/ Good Friday Agreement has acquired the status of icon of the constitution. This is not altogether in its favour.  A good deal of nonsense is talked about Magna Carta.  Back in 1215, no sooner had the ink dried on the vellum of the fair copy, than bad King John denounced it. But the idea of curbing the unbridled power of the monarch could not be unborn and it finally evolved into government by the rule of law and the exercise of democracy. Or so the legend goes.

The GFA acquired legendary status rather more quickly. It also became a tool kit for nationalist rights and freedoms.  This made it rather less popular with unionists.  It is very popular indeed with the elites who negotiated it and the academics who have made careers out of the continuing peace process. This month they are basking in the glow of times remembered while at the same time wringing their hands and fearing for the Agreement’s very survival.

A simple audit of the state of the Agreement might restore a sense of perspective and give pointers for future action.

Political violence ended to the great benefit of society but its human legacy remains largely untackled. The Northern Ireland parties may never be able to face it.

For republicans in particular the GFA is an accommodation and not a settlement; it contains the seeds of its own replacement.

Equality is legally guaranteed but is asserted in politics to the point of deadlock.  Republicans are acting in the apparent conviction  that rights by their nature should not be politically challenged. How then is a clash of rights to be resolved?  Many unionists believe  they should be more equal than nationalists because this is “Britain ” and they are still in the majority. Would their opinion change if  the majority  becomes nationalist?

Mutual respect is overshadowed by mutual distrust.

Politics is too much the continuation of the war by exclusively democratic means.

The lesson is that both the assertion of rights and  the democratic  process have their limitations and must be accompanied by  working to reach a reasonable level of trust.

Self determination by the people of both parts of Ireland alone on the issue of Irish unity (not involving the British) may be supplanting power sharing as the focus of Northern politics. If so the  prospects for accountable government are in serious trouble.

The UK’s obligation of “rigorous impartiality” (not  applying to Ireland),  is seen by nationalists as compromised by the Conservatives’ confidence and supply agreement with the DUP and UK government’s support for   an amnesty for former security forces.

Other aspects of the Agreement have developed or not developed in ways unforeseen in 1997.

The north-south ministerial council has been underexploited by both unionists and nationalists

Despite the assertion in the GFA, the institutions have operated fitfully rather than “interlocking” as pledged .

Most significantly, Brexit has had the impact of throwing a stone at a windscreen. It has not shattered it but it is difficult to see the way ahead. It has put the British -Irish partnership under strain and has exposed differences of interpretation over the range and extent of the Agreement.

The EU played a marginal role in the Agreement. Yet in the many areas where they apply, EU laws are superior to the laws of Ireland and the UK – until the UK withdraws.  The British-Irish relationship therefore requires some recasting to take account of the consequences of Brexit. The Agreement does not mention the border. It was the EU integrated market that finally opened it.

Equality of status between British and Irish citizenship in Northern Ireland raises the major question of how Irish – and therefore EU – citizen rights are to be protected after Brexit.  Can there be different rights for British and Irish citizens?

Does the issue of citizen rights strengthen the role of the Irish government in Northern Ireland affairs and if so, to what limit?

How is the UK’s “unaffected sovereignty”  able to override even a functioning Assembly, to be reconciled with protecting   EU citizen rights and the British Irish partnership?

The agenda

Brexit

While northern nationalists – and possibly the Dublin parties – continue to condemn Brexit as a disaster the time has probably past when Brexit can be revoked. It is now in their interest to discover a realistic basis for making the best of it as well for as GB.  Why should Ireland alone appreciate the benefits of external trade beyond the EU?

On the face of it the British government have ten weeks to come up with a realistic plan on how to police the border and a further five months to agree terms for the transition. Almost certainly this is hopelessly unrealistic timetable.

The FT reports that the UK government will next month  present  what is now called  “an audacious plan” once dismissed by the EU as “ magical thinking”  for a  “customs partnership”  which would  remove the need for customs checks at the Irish border.  But as the technological challenges involved in the “customs partnerships” are challenging, trade experts say the scheme would take years to introduce, suggesting that Britain and the EU would have to remain aligned on customs for some time after 2021, the end of the transition deal.

The UK would simply mirror the EU’s requirements for imports from the rest of the world. At British ports, the UK would apply EU duties on cars, food and other imports destined for the bloc’s market at the same rate as if the goods had arrived at an EU port, and then pass the money on to Brussels. If the goods were staying in the UK, Britain would apply tariffs depending on its own free-trade deals.

This would require a greater customs and regulatory presence  at Northern Ireland’s ports and airports but  at anywhere except at the actual land border and without disturbing the  internal UK economy from which the UK and Ireland both greatly benefit.

The plan rests on the development of tracking technology to identify the final destination for goods and it is still widely regarded in Brussels as fanciful and probably unworkable

UK  negotiators are also pinning their hopes on Brussels accepting the idea as a simple way of reducing new controls on the Irish border, Dover and other ports.

A second option being considered by Britain — a “streamlined” customs deal based on best practice from around the world — also relies heavily on technology but would not completely eliminate the need for checks at the Irish border. Downing Street said whatever customs deal was struck with Brussels, the British border would be secure on January 1 2021. “We’ll be ready, end of story,” said a spokesperson for Mrs May.

A new ministerial group on Northern Ireland, including chancellor Philip Hammond, Cabinet Office minister David Lidington and Northern Ireland secretary Karen Bradley has been set up to oversee  the planning for the Irish border.

Will the EU including Ireland dismiss this plan out of hand in June? With a great show of scepticism,  they won’t.  Dublin already expects that a transition that lasts somewhat beyond  end 2020.

If the June deadline passes smoothly, the two governments ought to be able to get together to explore the practical implications for Northern Ireland internally, north- south trade and managing the border. Because the local parties have a strong vested interest, this could be the cue for the governments jointly to pressurise them to resume the Executive. Over time, together they would launch a process that would revise the Good Friday Agreement to incorporate the new dimensions of the three stranded relationship. The EU may join the UK and Irish governments as a co- guarantor of a revised Agreement.

It was in only August  two years ago that Arlene Foster and Martin McGuiness wrote to Theresa May  

 “We are assured by your commitment that we will be fully involved in the negotiations on the terms of our future relationships with the EU and other countries . We regard this as a fundamental prerequisite of a meaningful and inclusive negotiating process”

 Direct Rule

In the event,  this plea would not have been taken up in the manner intended. Westminster can be assertive when they want to be. The UK government  will take the whole UK out of the EU even if the Scottish government, after invoking  the large Remain majority, refuses to pass a legislative consent (“Sewell”)  motion which the Scotland Act  says would “ usually “ be required. Westminster will argue that  if Brexit is not  “un-usual”, then nothing is.

Conventional direct rule is disliked  for a host of reasons. Although Northern Ireland was always different, it draws attention to the volatility of the whole devolution settlement further exposed by Brexit. It could further blight hopes of restoring Stormont. Direct Rule’s  day was somehow  assumed to be over when the DUP and Sinn Fein signed up fully to power sharing in the St Andrews Agreement.   Already weak on parliamentary scrutiny,  its legitimacy was further weakened by the absence of northern nationalists in last year’s disastrous wipe-out of the SDLP.  Aside from public spending matters, most of the controversial matters in the pipeline are opposed by the DUP now in a pact with the Conservatives, such as an Irish Language Act ; the implementation of the Stormont House Agreement on dealing with the past;  and the issue of rights protection by either a British or a NI Bill of Rights or incorporating the EU Charter of Fundamental Rights into the Withdrawal Bill for Northern Ireland only.

While neither government welcomes the prospect of direct rule, “creeping” or otherwise.    – and Dublin’s  claim that the GFA invalidates it has yet to be argued out  – the government of Northern Ireland should not be allowed to lapse indefinitely.   Whether a future is planned jointly by the BI Intergovernmental Conference  or with Britain proposing first and then consulting Dublin matters a good deal  less than having a plan.

Conor  McGinn’s private member’s  10 minute rule  Bill to introduce same sex marriage is unlikely to pass unless  there is a repeat of the surge across the main parties  in favour of the free abortions in England for women from NI  and it supporters can muster the numbers on a Friday.  Abortion funding was much easier  to achieve  as it involved only a government and not a parliamentary decision which the DUP might oppose.

After the consultation period on the new legal framework on the past finishes in June the government should  release funding for legacy inquests. Although the DUP   might not like it, passage would  in effect implement the consequences of the judgment of the court against Arlene Foster.

The inappropriateness of a professing  law and order party in refusing a funding request from the independent judiciary on the grounds of Sinn Fein “rewriting history, ” should have occurred  to the DUP long before. It was a  truly bizarre reversal of roles when Sinn Fein supported  the funding request after the DUP had obstructed it. They also might consider how “British values” are going by default if they continue to rely so heavily on the unionist folk tradition and  mimicking the Conservative right as prime identifiers of the unionist cause. Even inside their core support, there is an uneasy realisation that their posture contrasts unfavourably with Sinn Fein’s enthusiastic  peace time embrace of the rhetoric of Irish democratic values.

Conclusion

There seems no way to break the Stormont deadlock other than by joint action by the two governments. It provides yet another test for governments whose reputation for statesmanship is a work in progress, like the leaderships of the DUP and Sinn Fein. It means an end to the fitful involvement of recent years with the admittedly benign purpose of allowing political relationships to find their own feet.

Assumptions should be challenged that the chances of restoring Stormont are diminishing and that Brexit complicates them disastrously.

The Irish government should discourage support  for a border poll in five years and certainly not before  the Executive is  firmly  re-established.

The British government should disabuse unionists of the  fantasy that Brexit strengthens the Union and will survive with less nationalist acceptance. This requires engaging with arguments rather than staying aloof.

Counter-intuitively perhaps,  Brexit is the  obvious catalyst for re-forming relationships. Paradoxically, managing the future of Brexit will require  closer north-south and British-Irish relationships, not more distant ones. While the Brexit future will still spring surprises,  what is near certain, even in an age of government by coalition or narrow majorities, is that the main governing parties of whichever stripe in Britain and Ireland will need each other as much if not more than their own nationalist extremes. Just in the background, the issue of steering “the precious, precious  Union” through Brexit intact is more  pressing than achieving a united Ireland.

The joint letter from FM Foster and DFM McGuinness  less than two years ago reads now as if from a different age. But appearances of cosmetic harmony were deceptive at the time and collapsed under the strain of an unimaginable coincidence of testing events-  the RHI scandal, Brexit itself and the rapid decline and death of Martin McGuinness.  It is high time the governments caught up. It may be an advantage that this time, the crisis involves the fundamental  domestic interests of both states, and encouraging that ideas for resolution have come from within the local parties themselves.

The divisive effect of the UK’s departure from the EU presents the governments of the UK and Ireland with a complex crisis almost as compelling as winding up thirty years of violence twenty years ago. The challenge should be met with similar commitment and response.

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