What Brexit means for 20-year-old agreement

Tony Blair and Bertie Ahern sign the Good Friday Agreement on April 10, 1998. Picture: Dan Chung.

Brexit, whatever it achieves for the UK, does little for Ireland and runs the risk of deepening divisions on the island, writes Richard Humphreys.

The Good Friday Agreement, signed 20 years ago, was meant to mark a new start to relationships within these islands. But the promise of the agreement is under challenge as never before.

    At least five significant areas of uncertainty may lie ahead.

  • The most immediate uncertainty is Brexit and the challenges it may pose for relationships on the island and for the invisible border.
  • After Brexit, there are fears that there may be attempts in Britain to repeal the Human Rights Act.
  • In Northern Ireland, Stormont remains gridlocked, the key Good Friday institutions are not functioning and the rights and equality commitments have not been fully implemented.
  • Even if devolution is restored, there are no guarantees to prevent a future collapse.
  • And at the end of the process lies the debate on the ultimate constitutional uncertainty as to the final status of Northern Ireland, either in a united Ireland or a United Kingdom.

The decision by a majority of the UK electorate to leave the EU — outvoting the local majorities to remain in Northern Ireland, Scotland, Gibraltar, and Greater London — threatens many of the intangible benefits of the agreement.

The Good Friday Agreement is about co-existence, building bridges, overcoming differences, softening borders.

Brexit, whatever it achieves for the UK, does little for Ireland and certainly runs the risk of deepening divisions on the island.

For the DUP that was perhaps one of the attractions — putting blue water between themselves and the mistrusted republic. But that approach runs the risk of backfiring — Brexit has significantly changed the debate on Irish unity.

That issue is no longer a black and white clash of identities, UK vs Ireland. It is now about whether the people of Northern Ireland want to be part of what is seen as an inward-looking UK or an outward-looking EU, with all of the rights that go with that.

Whether Irish unity is a good thing or a bad thing can be left to political debate. But Brexit has transformed the terms of the discussion.

In the short term, all sides are agreed as to the need to avoid a hard border. How this will be achieved is still being discussed but strong regulatory alignment, at least within the island of Ireland if not between Ireland and the UK, seems likely to be a key element of the ultimate agreement.

Once Brexit has taken effect, from March 2019, there are concerns that the political forces that delivered British withdrawal from the EU will move on to a new agenda to endeavour to repeal the Human Rights Act.

That would be a clear breach of the Good Friday Agreement. The agreement commits Britain to incorporating the European Convention on Human Rights into UK law.

Replacing it unilaterally with a purely British bill of rights, with no link to European law, would violate one of the central rights commitments of the 1998 agreement.

Making the European convention part of the law has been a huge change in mindset with the UK, and to a lesser extent in Ireland.

It means that the debate on whether laws and actions comply with European human rights law can be discussed in domestic courts, rather than just in Strasbourg. It would be a major step backwards for the protection of human rights if that link were to be broken.

In Northern Ireland, meanwhile, the gridlock in Stormont continues. Here, there is an imperative need to return to the wording of the agreement and ensure its full implementation.

On the one hand, the unique power-sharing arrangements envisaged by the agreement mean that political parties must operate it in good faith. It is a breach of the agreement for them to pull out of government merely due to political disagreements.

On the other hand, the agreement also commits all participants to upholding equality of rights between the two traditions. That is set out in the strongest possible language in the agreement. That inevitably means that some form of legal protection for the Irish language will have to be enacted.

It is totally unsustainable to have the commitments to parity of esteem side by side with minimal status for Irish — for example, take the statutory prohibition that exists at present banning any language other than English from being used in Northern Irish courts.

The commitment to parity of esteem also poses significant questions for both Ireland and the UK more broadly. To what extent is Ireland recognising the British identity? Would there be merit in reconsidering the concept of allowing British citizens to vote in referenda, as proposed in the 1980s?

Would membership of the Commonwealth be worth considering, seeing as it has now changed so completely and become so much less threatening to republican identities since Ireland left it in 1949?

And on the British side, much antiquated anti-Catholic legislation remains on the statute book. This sends an unhealthy, even destructive message to those in Northern Ireland who trade on superiority and discrimination.

Going beyond the current impasse, there will come a point when the structural weaknesses of the agreement will have to be looked at. The agreement has two clear weaknesses. First of all, it makes it far too easy for a minority to block legislation.

If Stormont was allowed to legislate on a simple majority basis (like the Dail does), a huge range of issues such as the Irish language, LGBT rights, and other matters would simply be taken off the table.

Rights-based legislation would simply be passed. Instead, a blocking mechanism which was intended to protect rights has become a means of preventing the enactment of rights. That is a recipe for gridlock and stalemate into the indefinite future.

The second, even more serious, weakness of the agreement is that it is all-too-easy for one of the major parties to simply pull down the institutions at any time and prevent them from re-starting. In such a situation, all parties other than the major ones are rendered irrelevant.

Again, what started as a protection for minorities and rights has become a mechanism for stagnation. There is no good alternative to devolution — the alternative is simply British rule with Irish advisory input, assuming the British side wants to hear that advice. On recent evidence that is not entirely obvious.

Nobody has yet come up with a better alternative to the agreement so it is certainly not time for it to be scrapped or anything like it. But at some stage there must be an opportunity to review and improve it in order to anticipate and head off problems into the future.

Finally, at the end of the road of constitutional debate lies the ultimate question — should Northern Ireland remain as is or become part of a united Ireland?

While I would stand on the neutral sidelines on that issue, it is important — indeed essential — that the debate on possible unity takes place within the terms envisaged by the agreement. Two points are noteworthy: When is unity appropriate, and what sort of unity are we talking about?

As to when unity might happen, the agreement is clear — the mechanisms for unity are the clearest parts of the agreement. A border poll happens when the UK Northern secretary so decides — and she must call one when she thinks it will pass.

The decision of a simple majority of those present and validly voting is decisive — 50% plus one, subject to a similar vote in the South.

There is no requirement for a super-majority. There is no requirement for unionist consent or parallel consent.

But as to what sort of unity are we talking about, the agreement rules out the old-style, four green fields nationalism. It requires recognition of the British identity into the future, including an ongoing right to British citizenship for the people of Northern Ireland.

And above all the agreement has no termination clause. So it remains in force even if unity is achieved. That means a power-sharing executive and assembly indefinitely into the future.

If there ever was a majority for unity, life would continue as normal in Stormont. MPs would go to Dublin as TDs rather than to Westminster, but Dublin’s role in legislating for the North would be quite limited, much as Westminster’s is now.

Whether Brexit, unity, or any other changes are a good or a bad idea can be left to political debate. But in all the change and uncertainty, the agreement must be explained and upheld.

The key to negotiating the huge challenges ahead is to keep the agreement’s terms firmly in mind — the protection of rights for all, equality between the traditions, and strong protective institutions that can weather constitutional change.

If Northern Ireland as a functioning entity can be allowed to bed down, if rights can be afforded to all, and if the agreement is upheld and implemented, maybe the stale deadlock of the clash of constitutional identities may not matter so much in the end.

Richard Humphreys is a judge of the High Court. His latest book, Beyond the Border: The Good Friday Agreement and Irish Unity after Brexit is out now from Merrion Press.

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