Friday 17 January 2020

Have any of today's angry voices even read the Good Friday Agreement?

The 1998 Agreement means exactly what it says - but what it says is often forgotten, writes Richard Humphreys

PEACE DEAL: Bertie Ahern and Tony Blair after the signing of the agreement in 1998. Photo: John Giles
PEACE DEAL: Bertie Ahern and Tony Blair after the signing of the agreement in 1998. Photo: John Giles

Richard Humphreys

Brexit poses many challenges for Ireland. But maybe it's worthwhile not getting too self-righteous about it. Within living memory, Ireland carried out its own sudden and unilateral withdrawal from an international organisation, one whose work was unthreatening and co-operative - the Commonwealth.

The British Commonwealth we left is not the Commonwealth of today. The word "British" has been dropped, republics are welcome, it has its own flag which has nothing to do with the Union Jack, and there is even the odd member that has never had any institutional link to Britain. Today's Commonwealth would open up new vistas for co-operation with the UK and other countries with which we have a common legal history, not to mention the opportunities for sporting links.

Indeed, Commonwealth membership is deliberately allowed in the 1937 Constitution, in a provision inserted for that purpose. So without commenting in any way on whether that particular idea is a good one or not, it's out there as an option.

It is one of many options to seek to recognise the equal legitimacy of both traditions on the island. That principle of parity of esteem, which is central to the Good Friday Agreement, poses huge challenges for Northern Ireland, Britain and for Ireland.

In the North, inclusive language rights are a necessary consequence of the entitlement to cultural recognition.

In Britain, ancient discriminatory anti-Catholic legislation that is still on the statute book requires review if the Agreement's terms are to be complied with.

Beyond the border book
Beyond the border book

And in Ireland, the question of recognising the British identity still awaits a comprehensive discussion. The New Ireland Forum attempted to examine this issue but was unable to agree a report.

The Good Friday Agreement attempted the historic task of reconciling completely irreconcilable positions. It is meant to protect the rights of those who want a united Ireland, those who want a United Kingdom and those who are not particularly bothered.

However, in the heat of partisan debate, the clear provisions of the Agreement have sometimes been overlooked. But the Agreement means what it says, not what people would like it to mean.

When devolution broke down in Northern Ireland, a range of nationalist voices argued for "joint authority" as the fall-back to Stormont. But that would be a breach of the Agreement. The fall-back to Stormont is UK sovereignty at Westminster, albeit with Irish input through the intergovernmental conference.

On the other side of the aisle, when a meeting of the intergovernmental conference was first mooted, unionist voices argued either that it could not meet at all in the absence of Stormont, or that it could not discuss internal six-county matters. Both of these arguments are misconceived.

Some republican politicians have described Stormont as a "transitional" arrangement, the implication being that internal Northern Irish institutions would be swept away as soon as a nationalist majority vote was achieved in a border poll. But that is not what the Agreement says.

The Good Friday Agreement contains no termination clause. Stormont is here to stay - whatever the constitutional future of the North may be.

If someday a united Ireland comes about, Stormont would continue to legislate for the day-to-day affairs of Northern Ireland. The Dail would play only a fall-back role and legislate in practice on limited matters, much as Westminster does now. The people of Northern Ireland would be entitled to British citizenship in perpetuity. And indeed the border would remain in perpetuity - as an internal boundary into a separate legal system within a wider Ireland.

The test for Irish unity set out in the Agreement has attracted more distortions than a carnival funhouse mirror.

People are fully entitled to say they don't want or don't care about Irish unity, but they should just argue against it on its merits rather than argue that the Agreement doesn't mean what it means.

Some have referred to the principle of unionist consent. There is no such principle, unless you mean in the purely practical sense that unionists currently happen to be a majority in Northern Ireland. But if they ceased to be a majority, their consent for unity is not required by the Agreement.

One columnist wrote recently that Northern Ireland might have to have a second referendum if it voted once to leave the UK. Again that is incorrect. There is no such requirement in the Agreement. And a leading legal textbook, Kelly's Constitution, speculates that a majority "could mean a majority of all those on the electoral register".

Unfortunately, that is manifestly wrong - the Good Friday Agreement itself describes the consent required as that of "a majority of the people of Northern Ireland voting in a poll held for the purpos[e]", subject of course to consent of a majority in the 26-county state as well. A majority means even a margin of one vote.

Indeed the meaning of "a majority" and the test for Irish unity is one of the clearest parts of the Agreement. Confusion about it can only lay the ground for conflict, if not tragedy.

Lawyers can positively contribute to this by clarifying what the Agreement means and not by offering implausible or contorted interpretations.

Irish unity may be a good thing or a bad thing - I am totally neutral on that. But if it is debated within the terms of the Agreement - with strong human rights protections and parity of esteem for both traditions - resolving that ultimate constitutional issue may become that much easier, the temperature may be reduced, and many of the flashpoints and red lines that divide the peoples of the island may not matter so much in the end.

Richard Humphreys is a judge of the High Court. He is also the author of 'Beyond the Border: The Good Friday Agreement and Irish Unity after Brexit', published by Merrion Press this month.

Sunday Independent

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