The Agreement can only be amended with cross-community support

Eyebrows were raised on the 2nd October when Arlene Foster commented that the Good Friday Agreement wasn’t sacrosanct, hinting that she would like to amend it to accommodate Brexit. Her words been praised but also widely condemned. Leo Varadkar responded by saying that “the Good Friday Agreement is not up for renegotiation” in the Dail.

Anyone paying close attention will notice that Foster’s comments are very similar to statements made by her party colleagues, Jim Allister and Jamie Bryson over the years. Brexiteers like Kate Hoey have also talked about amending the Agreement.

The argument that Brexit breaches the Good Friday Agreement is disputed by lawyers and the DUP itself. Notably, Foster wasn’t specific about the changes she would like to see. There is an ‘Overton window’ feel to her words.The DUP has never gotten over the fact that Northern Ireland voted ‘Yes’ in 1998. The Party doesn’t consider the Agreement to be sacrosanct, probably because it would like to strike down its key principles.

We may have to talk about the scope of the Agreement in future. We should be wary of anyone looking to do so to further their own aims.

It’s true that people who treat the Agreement as untouchable are wrong. It can be amended. The document consists of two parts: the British Irish Agreement, a Treaty between Ireland and the United Kingdom and the Multi-Party Agreement.

The Multi Party Agreement includes a review mechanism which states:

‘If difficulties arise which require remedial action across the range of institutions, or other require amendment of the British-Irish Agreement or relevant legislation, the process of review will fall to the two Governments in consultation with the parties in the Assembly. Each Government will be responsible for action in its own jurisdiction.’

 It is the Treaty that gives the Multi-Party Agreement legal effect. The Northern Ireland Act 1998 puts the Agreement into domestic law. That Act has been amended many time. The most recent change comes from the Northern Ireland (St Andrew’s Act) 2006.

The Agreement is transitional and meant to move Northern Ireland away from violence and towards stability. It isn’t out of the question to imagine that, one day, we could collectively decide that we’ve outgrown the Assembly. Future generations may want a different system of government. Change is possible if there is cross community support and the buy in of all the political parties.

There is a chance that Brexit could lead to reform of the Assembly. If Northern Ireland gets special arrangements we will need to have a  conversation about the viability of our institutions. If the Assembly needs to take on a larger remit, the status quo may have to change to facilitate that. Even in the event of ‘no-deal,’ we may need different provisions.

As we go another week without a government, amending the Agreement to legislate for reform also seems necessary. Tackling the petition of concern, for instance, feels like a priority. Many people are wary of the Assembly returning and continuing as normal.

Whatever happens, we can’t have those conversations in a bubble. We need to be mindful of the significance of the Agreement and what it stands for.

Foster’s comments are concerning because she appears to be having an internal conversation with unionism. There is no acknowledgement that any change to the Agreement must be done with consensus and support from other unionists, nationalists, republicans and others. Amending the Agreement without that support is dangerous and would cause irreparable damage. Worryingly, I suspect that people who support unilateral amendments don’t care about the consequences of their actions.

On their own heads, be it.  Anti-Agreement unionists have always failed to recognise that the Good Friday Agreement includes safeguards and protections that serve them well.  Power sharing means unionists will always be in government alongside nationalists and republicans. The petition of concern gives unionists a veto over legislation. Equality laws protect both nationalists and unionists. The institutions are built to facilitate orange and green; so much so that they are criticised, rightly in my opinion, for reinforcing division.

Anti-agreement unionists don’t know how good their position is. Unionism’s lost majority in the Assembly should focus minds.

The Agreement is not something we can throw away lightly. Its opponents, especially those fond of talking about the ‘will of the people’, need to recognise that they have no authority to amend anything. They may not like it, but the Agreement brought about a new era in Northern Ireland where we must take everyone into consideration.

Sarah is a writer and lawyer from Belfast.