For some of us, there might be acute irony on now hearing purported insistence on adherence to the GFA from those who opposed it or have avoided or resisted the realisation of aspects of its promise, including on rights.
Rather than roll our eyes up at such novel assertions about the centrality of the Agreement, it might be useful to cast our eyes to the Agreement itself. In doing so, we might recognise ongoing shortcomings in its implementation, deviation from some of its carefully framed purposes and construct, in-built limitations which need upgrading, the essential value and balance of its institutional framework and even new relevance (or added reasons) for work across its three Strands in the post-Brexit landscape.
For various good reasons, review procedures were deliberately written into the Agreement, both in overall terms and in respective Strands. Positing use of review mechanisms can be met with caution about inducing a run on the Agreement itself. However, we cannot uphold its promises by ignoring strains on the Agreement including those stemming from previous ‘review’ changes like the St Andrews Agreement as well as the repercussive effects of the Brexit misadventure.
The Agreement deliberately provided for the joint election by the Assembly of consubstantial First Ministers with a titular differential but in every other respect joint and equal. While election required cross-community support, any two members of the Assembly could be jointly nominated and there could be rival joint nominations for the assembly to choose. St Andrews removed this mandating power of the Assembly and privatised the posts to two parties according to seats and respective designations. One effect, as both governments were warned, was to further tribalise Assembly elections into a sectarian ‘first-past-the-post’ for First Minister.
Another effect was to seriously wound the Agreement’s stipulation that the Assembly will be the prime source of authority in respect of all devolved responsibilities. The dismissive arrogance in the declaration after the 2016 Assembly election that ‘the two of us are in charge: that is all anybody else needs to know’ was a factor in others’ choice not to take ministries then. Arrogance also manifested in the resentment against the Assembly attempts towards accountability on RHI expressed in the declaration ‘I have a mandate from the people of Northern Ireland’. The change also weakened the joint nature of the office as well as their sense of accountability.
A return to the factory setting of open joint nomination and joint election of joint First Ministers should be accompanied by a due equalisation of titles to reflect reality. It would also be helpful and healthy to broaden the options for measuring cross-community support for a joint nomination beyond ‘parallel consent’ alone. The Agreement’s other option of a qualified weighted majority of 60% including at least 40% respectively of Unionists and Nationalists voting could also be allowed. So too could an endorsement by two thirds of the Assembly.
The latter measure was accepted in the Northern Ireland Act as sufficient threshold for collectively mandating the calling of an Assembly election (and, in the pending NDNA legislation, for cancelling one about to be triggered). Given that refusal by one party, under the St Andrews deviation, to nominate to one of the joint posts could induce an election and/or the rollover stalemates with ransom-politicking by two parties allowed by the NDNA changes, there is democratic logic to empowering the Assembly and parties at large by returning to joint election and open nomination.
There is not the space here to illuminate the spreadsheet permutations, anomalous applications and perverse implications of sticking with the St Andrews’ aberration in the context of future Assembly elections. Whatever else may be argued about opinion surveys, it might be hoped that recent polling could encourage more parties towards restoring the shared elective power to our Assembly.
Assembly primacy
The Assembly’s intended primacy could be enhanced in other ways. Transparency and scrutiny of budgeting has waned. Shortcomings in strategic oversight should not only be supplemented by ‘expert’ bodies advising the Department of Finance or Executive Office. We need to ensure that welcome moves towards more truly multi-annual budgeting do not entail further erosion of the regularity and quality of budget scrutiny and input by the Assembly and its committees. The long-standing case for an actual Budget Committee in the Assembly becomes even stronger with multi-annual budgets.
As part of more ‘joined-up and followed-up’ scrutiny, each departmental minister should make their own statements to the Assembly to spell out their subsequent detailed spending plans after the overall budget. Nichola Mallon’s example in doing so should not be an exception. Another improvement for followed-through scrutiny would be allowing the Public Accounts Committee to ‘flag’, for a chosen number of years, a budget line for an area on which it has reported and remedial actions have been pledged. These flags would be prompts to ministers and committees to properly assure themselves that lessons have not been forgotten. Given the turnover of ministers, committee membership and MLAs such issue-signalling lengthens the value of Audit Office/PAC work, reduces reliance on presumption and puts a brake on departmental recidivism.
The effective standing of the PAC argues towards the merits of more cross-cutting committees which can call in various departments, with more real-time scrutiny and challenge than even the PAC can effect. Capital expenditure and public procurement are an obvious field for added oversight. The possible interplay of intervention funds and powers created for itself by the current UK Government which might complement, contradict or just complicate Assembly strategic priorities now add to that case.
Similarly, cross-cutting strategic priorities of the Programme for Government (when there is one) might be the oversight remit for designated committees to track performance across relevant departments, challenge pace and back delivery. This is not the place for a manifesto style list but one compelling example would be follow-through on Climate Action commitments and obligations.
The Agreement gave a wide and strong remit for departmental committees but they can fall into ‘jack-of-all-trades’ mode. We did not envisage them taking as many of the committee stages of bills as they do. This could be at the expense of their other qualitative work and limits the prospect of ‘fresh eyes’ scrutiny of clauses. More ad-hoc public bill committees might sharpen scrutiny and the legislative experience of MLAs. Committees would also benefit from improved levels and mixed models of research support.
Undertaking more pre-legislative scrutiny and more post-legislative scrutiny, departmental committees might also be joined by members of the public. Such citizen participation could be a channel for enhancing the public policy influence of women, young people, ethnic minorities, people with disabilities, carers or others whose voices are under-represented in electoral outcomes. This could widen angles of consideration and helpfully season the terms of debate in usefully direct and practical ways.
Opening such streams of citizen input with Assembly Committees should not be an alternative to reconstituting the Civic Forum. As a minister, I was impressed by the Forum’s deliberative capacity and looked forward to its outrider role in appraising some of our longer-term structural policy challenges in terms that could helpfully frame debate and clarify collective choices. The scale of regional policy challenges we face which need long-term strategies with buy-in and adherence across sectors and interests points to the value of a social partnership ethic in framing such priorities.
The pending NDNA legislation will certainly curtail but not completely cure the serial misuse of the petition of concern. Proper correction would come by remedying the failure in the 1998 Act to reflect the clear terms of the Agreement itself in respect of the special proofing procedure for rights and equality which was explicitly meant to follow a petition. The telling standing intended for the Human Rights Commission and the Equality Commission in that special committee procedure (which could also benefit from citizens sitting alongside MLAs) is still needed. There are now significant holes in the Agreement’s categorical terms on the ECHR via post-Brexit legislation with bigger risks to come from Dominic Raab’s likely fundamental assault on the ECHR/HRA. The failure to deliver a Bill of Rights as posited in the Agreement accentuates such dangers. It may be too much to hope that parties who have opposed ideas of social or economic rights might revise that attitude in light of some of their rights asserting arguments on effects of the Protocol.
A spirit of renewal review needs to extend beyond Strand One and Rights provisions of the Agreement.
Strand Two
In 2016, I observed that the underused bandwidth of Strand Two could be used to answer some of the challenges stemming from Brexit. Maybe more of us who applaud the stated EU commitment to ‘all aspects of the Good Friday Agreement’ should try to be creative about how some of ‘all its parts’ might be used to mitigate some of the issues both now and for the future. Little working attention has been paid to Article 14(b) of the Protocol which invites proposals concerning the implementation and application of the Protocol from the NSMC and the implementation bodies. Rather than withdrawing from NSMC business in pursuit of triggering Article 16, DUP ministers should test what practical options might emerge from triggering Article 14(b).
One valid line in the pretentious open letter from Unionist negotiators of the Agreement referred to provisions in Strands Two and Three not being used. A problem in previous review efforts was the absence of any Unionist interest in expanding the remits or number of implementation bodies or areas of cooperation for new sectoral formats. I recall Sir Jeffrey Donaldson implying in 2019 that some new arrangements in Strand Two might be a way of answering problems that the Backstop was supposed to address. This was revived recently with Doug Beattie indicating a possible interest in a new implementation body.
There could not only be merit in contemplating new bodies; there is a real need to re-point and re-purpose some of the bodies as agreed in 1999. UUP negotiators then were clear that they wanted to have the defensive narrative that most of the implementation bodies’ remits and NSMC sectoral agendas related to EU funding or liaising on EU directives. Brexit adds to the case for reviewing and developing arrangements in Strand Two. For the first time since 1999, there is a potential convergence of interest between Unionists and the rest of us in agreeing some substantive adjustment in Strand Two, which the EU might be able to rely on as vouchable assurance and oversight on relevant single market precepts and/or due compliance, alignment or equivalence across the island with other standards.
Neither should we ignore paragraph 17 of Strand Two which provides for the NSMC to consider the EU dimension of relevant matters, including the implementation of EU policies, programmes or proposals under consideration in the EU framework. It states ‘Arrangements to be made to ensure that the views of the Council are taken into account and represented appropriately at relevant EU meetings’. An EU Working Group reported to the Council plenary meeting in June 2001 where we agreed on further consideration as to how the views of the Council might be appropriately reflected at EU meetings. That work was parked when the institutions came to a halt after ‘Stormontgate’.
This points to a channel of representation for the views of Northern Ireland ministers which can help to answer the charge against the Protocol that nobody from here can have any say in future EU decisions that affect us. It would not be a trap for Unionist ministers as the only views to be reflected from the Council would be as agreed by them. Brexit’s drivers tell us that not one letter of the GFA has been lost by Brexit so we should not ignore this paragraph that takes on new relevance in this new context. Parties in the Assembly should also be taking up the European Parliament’s commitment to upstream engagement with elected representatives here when it considers future legislation. This was amplified by helpful amendment from Barry Andrews MEP recognising the Human Rights and Equality Commissions’ standing as well as Assembly parties.
There is also room for creative thinking and renewal in Strand Three in respect of both the British-Irish Council and the British-Irish Intergovernmental Conference. We should not underestimate the dynamic difference which the active participation of experienced governments in Scotland and Wales could make in a renewal review of the BIC. There is reason to believe that ministers in Edinburgh and Cardiff would be more keen to frame some of their policy engagement with the UK Government in the more equal and inclusive setting of a rebooted BIC than the unsatisfactory format of Whitehall’s Joint Ministerial Committees. Indeed, they may also be jealous of the attendance which the Agreement allows to Northern Ireland Ministers in paragraph 7 of the BIIC text – all of which has been grossly underused and needs new commitments with fresh lateral thinking.
Exploring such an institutional revamp of the Agreement would not prejudice anyone’s position or active debate regarding future constitutional status, either for here or Scotland. Indeed it might be useful to affirm that the British-Irish framework would endure regardless of possible constitutional changes. A renewal review or reviews should be undertaken out of good stewardship a generation on from the Agreement’s negotiation and in the context of the new conditions surrounding the totality of relationships.
We did not reach the Good Friday Agreement by ignoring what each other was saying or simply dismissing problems or prospects that others were raising. However, it is that attitude that has brought Brexit-pushing Unionists to their stated predicament. In the challenges we now face, none of us has been helped by the failure to show due adherence to parts of the Agreement or to actively develop its potential. So it is time for collective, corrective action where my generation does not just stand by the under-fulfilled Agreement but a new generation moves it forward in all of its parts, in all of our interests and for all of our rights.