"The Good Friday Agreement and Brexit: reflections on the future in a year of commemoration"
The Good Friday Agreement is radically oriented to the future, looking far ahead and setting out procedures for the management of change in the event of the deepest shift of all, a transfer of sovereignty from the United Kingdom (UK) to Ireland. In this sense at least the GFA is a more fundamental document than the Brexit treaty, setting out principles that apply irrespective of which state has sovereign control. Its orientation to the future is most evident in its provisions for a referendum on Irish reunification and in setting out some of the parameters for a reunified Ireland, but it is also present in its setting out of an agenda for cross-border cooperation that sets a minimum baseline but no maximum, providing open-ended possibilities for the strengthening of cross-border relations, if the Northern Ireland Assembly and Executive were to agree.
The Agreement’s provision for a border poll on unification, North and South, dominates the current conversation on constitutional and all-Ireland aspects of the Agreement. But the way in which the Agreement thinks beyond this singular moment and that binary choice between union and unity is even more important. The Agreement transcends the question of union or unity by setting out terms that will apply to Northern Ireland whether it is part of the United Kingdom or the Republic of Ireland. Regardless of the outcome of a referendum ‘the power of the sovereign government with jurisdiction there shall be exercised with rigorous impartiality on behalf of all the people in the diversity of their identities and traditions and shall be founded on the principles of full respect for, and equality of, civil, political, social and cultural rights, of freedom from discrimination for all citizens, and of parity of esteem and of just and equal treatment for the identity, ethos, and aspirations of both communities’.
Every standard to which the British government has been held in the name of equality, rights and parity of esteem in recent years has set the parameters for the Irish government in the future, establishing ground rules for minority protection in any future unified state. If the flag of the United Kingdom cannot be flown over Police stations in Belfast now then the Irish flag cannot fly over them in the future. If the police force has to maintain symbolic neutrality between the two traditions now, and ensure that the force is not dominated by one community, that will have to continue if Ireland is ever reunified. It envisages a time when the majority may become a minority and establishes minority rights that can be availed of by unionists. This dual character of the Agreement’s minority protections is already evident in political practice. As conservative-minded unionists find themselves increasingly fending off social changes backed by a socially liberal majority in the North the minority veto, the ‘petition of concern’ that was intended to allow a minority to block legislation that threatened core values is now much more frequently used by unionists than by nationalists. With unionists currently representing a parliamentary minority in Northern Ireland for the first time since it was created in 1921, we can expect minority safeguards to become ever more strongly identified with, and utilised by, unionists, even if reunification never occurs.
One of the most unexpected twists in the past year is the way in which prominent unionist politicians have taken strong ownership of the Agreement. The Agreement was rejected and opposed by the DUP in 1998, but senior party members now invoke it as a kind of unionist backstop, a fundamental document that rules out any changes in the relationship between Great Britain and Northern Ireland as the UK leaves the European Union. DUP MP Jeffrey Donaldson, who refused to endorse the GFA in 1998 and left the UUP over the issue opposes the backstop agreement between the UK and the EU aimed at preventing a hard border in Ireland on the basis that it is ’a fundamental breach of the Good Friday Agreement’
The UUP too invokes the GFA as a kind of foundational document of the unionist cause. When DUP leader Arlene Foster suggested recently that the GFA might be modified UUP leader Robin Swann said her comments were “strategically short-sighted” because the Agreement was “the best settlement for unionists and should be sacrosanct”.
In the climate of uncertainty created by the concurrence in Northern Ireland of a pro-remain majority and a non-unionist majority that supports special EU status of some kind, the GFA has been seized on by unionist representatives as a guarantor of no change in the regulation of movement of goods or people between Great Britain and Northern Ireland. Unionists, nationalists and others all insist that the GFA sets, or should set, the limits of reorganised relationships between the UK and the EU in relation to Northern Ireland, albeit from opposite ends of the argument. It reinforces that sense of the GFA as being in some ways a more fundamental and more future-oriented document than Britain’s exit treaty with the EU.
Contrary to unionist arguments that the Agreement essentially freezes relations across the border and the Irish Sea, the open-ended references in the GFA to cross-border bodies and possible future expansion of North-South cooperation implicitly allow for the kind of reordering of relationships between the Republic and the North of the kind that would be involved in special EU status for Northern Ireland. The all-Ireland and cross-border dimensions of the Agreement have never advanced much beyond the minimum requirements set out in the Agreement. The inertial drag of two separate administrations jealously guarding boundaries and budgets has been reinforced by permanent unionist resistance to any but the narrowest and most minimal of measures. Unionist negotiators managed to limit the functions of the North/South Ministerial Council, restricting the implementation bodies to marginal areas, but nonetheless the Agreement text is radical in its open-endedness. It mandates the North/South Ministerial Council ‘to use best endeavours to reach agreement on the adoption of common policies, in areas where there is a mutual cross-border and all- island benefit, and which are within the competence of both Administrations, North and South’ and while it makes positive and detailed mention of cooperation on just a few limited areas, it also leaves opens up an important path for the expansion of cooperation: ’Any further development of these arrangements to be by agreement in the Council and with the specific endorsement of the Northern Ireland Assembly and Oireachtas, subject to the extent of the competences and responsibility of the two Administrations’. At the time of the Agreement this effectively allowed unionists a veto over any expansion beyond that mentioned in the Agreement because they were a majority in the Executive and Assembly. But it also opened up space to move towards all sorts of intermediate stages between the status quo and possible reunification if the Executive were ever to support such moves. The only limits set are the limits on the competency of the Northern Executive and the Irish Government. If a Northern Executive sought to expand those competences in order to cooperate more closely with the Republic of Ireland Westminster might find it difficult to resist.
The Northern Executive, if it ever gets up and running again, has huge latitude to build much stronger and more integrated relations with the Republic of Ireland regardless of the outcome of a border poll, to transform the relationship and connections between the two parts of Ireland within the Agreement without taking that step of reunification. In this, it maintains the spirit of the original Government of Ireland Act of 1920 that envisaged partition as a temporary expedient to prevent civil war and provided for a Council of Ireland to draw the two jurisdictions closer together again. But what does this matter if the main unionist parties still seek to minimise links? The difference is that unionists now form a minority in the Northern Ireland Assembly at Stormont as well as a minority of voters for the first time since Northern Ireland was established in 1921. The non-unionist parties who now form a majority in the Assembly, including both nationalists and centre-ground parties such as Alliance and the Greens, have built an increasingly robust alliance on a range of issues in recent years, most prominently on same-sex marriage and (in a slightly less united way) abortion reform. They are particularly strongly of one voice in supporting strong and close relations with the EU. In addition then to the electoral majority for ‘Remaining’ in the EU there is a majority in the Assembly for pro-EU positions on a range of issues including, most importantly, the quest for a kind of special status for Northern Ireland. With a majority now in both the Northern Ireland Assembly and in the wider population supporting a reordering of relationships between Britain, Ireland and Northern Ireland in the light of Brexit, that large grey area between the status quo and reunification has become a much more charged and important political space.
While a majority in the North don’t support reunification, a majority of both the electorate and the parliament support changes to the North’s relations with Great Britain and the Republic of Ireland that would allow it to remain strongly linked to the Republic, even at the cost of some divergence from Great Britain. The Assembly and Executive have not functioned since the collapse of the Executive in January 2017 but if they were in operation now the DUP, probably backed on most of these issues by the UUP, would be suffering one defeat after another on issues surrounding relations with the EU and the Republic of Ireland, forced to resort routinely to exercising a minority veto using the petition of concern. We are entering an era in which stronger cross-border relations and the realisation of the potential of the Agreement for closer relations and common policies between Ireland North and South, will be associated with majority opinion in the Northern electorate and the Northern Assembly. The struggle to win a take-it-or-leave-it border poll is not the most important challenge to unionism in the coming years. Much more immediately challenging is the prospect of finding themselves over and over again resorting to the minority veto to block majority preferences on relations with the Republic of Ireland and the EU.
This is an especially tricky prospect for the unionist parties because majoritarianism has been central to Unionist ideology, identity and normative arguments since Northern Ireland was established nearly a hundred years ago. To be in the position of repeatedly blocking majority preferences in the assembly will be uncomfortable. The Unionist parties have taken comfort from recent polls on a united Ireland, especially those that indicate that fewer than a third of voters would opt for unity (although some polls show that almost half would, in certain circumstances). But a much more immediate and serious challenge to the unionist political position is evident in the answers to other questions in these polls. The 2017 Northern Ireland Life and Times survey showed robust majority support for staying in the UK, but also found a very strong majority saying they were ‘in favour of Northern Ireland entering a political and economic alliance with the Republic of Ireland if it would help jobs and the economy. Only 16% disagreed. If unionist parties rigidly oppose movement towards closer relations with the Republic of Ireland reunification will provide the only escape route from a permanent unionist minority veto on the strengthening of cross-border relations that are now simultaneously relations with the European Union as a whole.
