Introduction
Since the Protocol on Ireland/Northern Ireland (hereafter ‘the Protocol’) became part of the UK–EU Withdrawal Agreement in 2019, it has emerged as a site of contestation between parties within and between the UK and Europe, and between the UK and USA. In recent months, the UK government has called for a significant change to its terms or its abolition, citing the legal ‘doctrine of necessity’ to attempt to legally renege on parts of the international agreement. This article scrutinizes some of its claims and suggests that ministers are woefully – and perhaps willfully – misunderstanding the Good Friday Agreement in their discourse surrounding the Protocol. It argues that the Agreement, which helped bring the thirty-year conflict known as the ‘Troubles’ to a close, is not in fact under threat in any of the ways narrated by the government.
The background to the suspension of Stormont
Governance in Stormont is made up of two entities: the Executive, comprising ministers appointed by the NI Assembly to run government departments; and the Assembly, comprising Members of the Legislative Assembly (MLAs) which makes laws for the region. Since 3 February 2022, both strands have been in disarray. On 3 February, the resignation of the Democratic Unionist Party’s (DUP) First Minister Paul Givan triggered the collapse of the Executive and threw the Assembly into limbo. On 5 May, Sinn Féin won the Assembly elections and is entitled to the first minister position, but the DUP, which came second, refuse to nominate a speaker or deputy first minister, both of which must happen before governance can be restored. A caretaker administration comprised of Executive ministers, in post since the last mandate, remains in place for 24 weeks. The clock started ticking from the date of the election; when it expires, the Assembly officially collapses.
Flawed narratives of N. Ireland’s history in government protests over the Protocol
Chaos at Stormont has been linked by ministers to the Protocol, a mechanism designed to protect the 1998 Agreement. Initially supported by the UK government as a tool that would replace the original ‘backstop’ and defend the Agreement, the Protocol is now stated by many of the same ministers to be a threat to that Agreement.
In his visit to NI on 16 May, Prime Minister Boris Johnson said the Protocol damaged the Agreement. Writing in the Daily Telegraph he said,
Strand 3 of the Agreement, which promised the “harmonious and mutually beneficial development of the totality of the relationship among the people of these islands”, is not functioning as it must. And Strands 1 and 2 – of equal importance and mutually dependent – are now being negatively impacted too.
Foreign Secretary Liz Truss expanded on these claims in her speech to the House of Commons. She claimed that the Agreement was ‘under strain’ because the Executive was not functioning and ‘the Northern Ireland Protocol does not have the support necessary in one part of the community in Northern Ireland’. She highlighted problems including trade, health, and VAT divergences between NI and GB, claiming that ‘without resolving these and other issues, we will not be able to re-establish the Executive and preserve the hard-won progress sustained by the Belfast Good Friday Agreement’. This argument has been made in several subsequent media appearances. She identified Strand Three – ‘enhanced arrangements for East–West cooperation’ – as a cause for concern, concluding that ‘these practical problems have contributed to the sense that the East–West relationship has been undermined’. (See below on the term ‘East–West’ used here by Truss). Both ministers have now moved forward with their plans to rip up the Protocol; on 15 June 2022, Brussels launched legal action against the UK.
These arguments present direct links between the Protocol and different concerns associated with the Good Friday Agreement – a functioning Stormont, cross-community consent, trade between GB and NI (positioned as Strand Three of the Agreement) and most seriously, the preservation of peace in NI. The implication is that implementation of the Protocol is directly impacting these other issues, making peace harder to maintain.
This article explores the woeful misunderstandings in these characterisations. Policymakers must be aware of them if they are to focus on solving the real issues which NI grapples with today.
The reasons for Stormont’s collapse: a spotlight on the DUP
Taking the collapse of Stormont first. The Executive legally functions through the power-sharing mechanism which holds that the largest Nationalist and Unionist parties must share power together. Two parties alone are responsible for its ability to govern at any one time. Since the election, those parties comprise Sinn Féin and the DUP. The former has said on numerous occasions they are ready to start governing without any preconditions. The latter has refused to nominate a deputy first minister. While the DUP has declared reasons for refusing to govern – in public pronouncements, these almost exclusively rest on abolition of the Protocol – the fact is one party alone is responsible for the Executive’s collapse, whatever one thinks of their claims.
As for the Assembly, the second half of NI’s governance structure, all parties – except for the DUP and one Traditional Unionist Voice (TUV) MLA – have declared they wish to get back to work. These include other self-declared Unionist parties and parties such as Alliance, which takes no position on the constitutional question but fundamentally wants NI to work. They are unilaterally prevented from doing so by the DUP in their refusal to nominate a Speaker, a precondition for the Assembly to pass laws. As former Speaker Alex Maskey said on 13 May, ‘we can proceed no further’. The DUP blocked the Speaker nomination for a second time on 30 May even when one of the nominees was fellow Ulster Unionist Party (UUP) MLA Mike Nesbitt, despite his Party’s shared dissatisfaction with aspects of the Protocol.
The Protocol is therefore not preventing power-sharing from functioning, nor is there wider political disengagement which should cause concern about governance in NI; fault lies alone with one party whose actions have unilaterally prevented governance from taking place. Understanding their reasons is of course important, but this is an entirely separate problem to suggesting power-sharing is broken.
Does Stormont’s suspension today threaten the Good Friday Agreement?
Stormont has been suspended on five occasions since 1998 (2000, twice in 2001, 2002–07, 2017–20). Sometimes suspensions were triggered by Westminster; on other occasions, by parties in NI. The current dysfunction has been used by government ministers to claim a unique threat is posed to both the Agreement and peace. However, a non-functioning Stormont is almost as much of a reality as an operable one. The BBC estimates that Stormont has only functioned 65% of the time since 2000. In its most recent collapse in 2017–20, no prominent minister claimed the Agreement was under threat or that peace in NI was threatened. What makes this suspension any different?
Why Stormont’s suspension today cannot be viewed as more serious than in the past
There are serious differences between governance in NI today and in the early noughties. It is important to remember what problems it solved in order to understand if those dynamics are likely to happen again, especially given scaremongering about the threat posed to the ‘hard won peace’ in NI.
1) The first Stormont administration
NI was deliberately created under the Government of Ireland Act (1920) to facilitate a Unionist majority. From 1921 until 1972, under the one-party Unionist administration of the Ulster Unionist Party (UUP), political and economic systems were maintained that were fundamentally discriminatory. The region had been created with provisions put in place by Westminster to ensure minorities had political representation within the majoritarian structure it had deliberately created; within ten years however, the UUP had abolished those provisions. The abolition of proportional representation in local, and later general elections, maintained Unionist hegemony and denied minorities representation, impacting most severely on Catholics. Over the course of the twentieth century, power was concentrated in Unionist hands – both in the party but also in the hands of voters – by the creation of gerrymandered local councils, shoring up Unionist votes. Discrimination also took other forms, such as the grossly uneven provision of welfare in gerrymandered areas such as Londonderry/Derry, Fermanagh and elsewhere; and in employment practices. The Nationalist Party, which represented many Catholics, had actively boycotted participating in governance in the early years of the administration, but when party policy changed from 1925, it found it impossible to pass or block legislation. NI was a majoritarian entity designed to serve majority interests. Recurring Irish Republican Army (IRA) attacks from across the border and disapproval of the actions of various ‘Southern’ administrations were seen by Unionists as ample reasons to preserve their unity and dominance, such that every NI government formed until 1972 was Unionist and predominately Protestant.
This was the vital domestic context – grievances of the largely Catholic minority, the Unionist refusal to budge on reforming any of the problems embedded within the majoritarian system, the blind eye turned by successive UK governments to these structural problems, and the wider international context of the 1960s – that brought about the Civil Rights struggles from 1968. The violent clampdown on protesters by the RUC and resulting acceleration of disorder attracted international media attention. Some moderate Unionist ministers tried to reform aspects of the discriminatory system, but their efforts were rejected by the vast majority of the UUP and were arguably too late to stop the grassroots momentum generated by the clash between protestors on the one side and loyalists and police on the other. The UK government found itself at a loss. It sent in the Army in 1969 to ‘maintain the peace’ but with no clear remit of what that might entail; in 1972, it disbanded Stormont.
2) The Agreement and power-sharing principle
Throughout the thirty-year conflict, power-sharing was the only real solution the UK government had for ‘managing’ NI. It was presented in different ways at different times: in Sunningdale in 1973, then in the Anglo-Irish Agreement of 1985, and lastly in the 1998 Agreement. The first two attempts at power-sharing failed for various reasons; only the last was successful.
The 1998 Agreement made fundamental changes to NI’s governance structure to ensure that neither the 1921–72 regime, nor the recent conflict, could happen again. Power-sharing was implemented not to maintain the peace, as is commonly misremembered, but to ensure that no one party could ever again hold the reins of power and discriminate against the significant ‘other’ minority. Maintaining the peace was an important outcome of that process; not the sole reason behind it.
Though the road to power-sharing has been rocky, the principle has been embedded in governance since 2000. On 5 May 2022, both Nationalist and Unionist parties won 35 seats each; so-called ‘non-aligned’ voters won 20. Power-sharing has been the mechanism that services most voters, ensuring neither ‘side’ can dominate the ‘other’. However, with the binary principle embedded in voter choice, it is unsurprising that NI’s divided ‘groups’ give the illusion of rarely changing their political stripes.
The creation of power-sharing institutions was coupled with reform of policing and justice, all of which happened within a handful of years. More than 90% of the RUC were Protestant and unambiguously Unionist. Now, the Police Service of Northern Ireland (PSNI) has defined quotas to ensure such uneven representation cannot happen again. None of these bodies are threatened by the Protocol, nor are they threatened by a non-functioning Stormont. The structural discrimination that helped spark the Civil Rights movement no longer exists and is almost impossible to recreate given the protective mechanisms within the Agreement.
3) What about violence and paramilitarism?
There are important contextual issues to keep in mind about violence and paramilitarism. It took until 2005 for the Provisional Irish Republican Army (PIRA) – the main republican organization – to decommission, a major part of the UUP’s demands in the peace negotiations. Dissident republicans rejected the political process and Good Friday Agreement, and continue to foment violent activity. According to MI5, they pose ‘the most significant threat to national security in Northern Ireland’. However, the legitimacy for dissident republicanism is severely diminished by mass nationalist support for the Agreement and abolition of structural discrimination, Sinn Féin’s support for both the Agreement and NI’s institutions, and generally greater representation of Catholics in positions of influence. The British Army is no longer on the streets for dissidents to foment arguments and actions against, nor is there an obviously sectarian police force for them to target. Practical ‘enemies’ for the republican movement to build a campaign against are no longer there, even if the British state is still identified as the ideological ‘enemy’.
It is more difficult to assess the threat posed by loyalist violence. Loyalist paramilitaries aren’t usually viewed as a national security concern because their actions, however heinous, are not seen to threaten the integrity of the state, unlike those of dissident republicans. This is amply clear on MI5’s website, which describes loyalist activity as inciting ‘public order challenges’. The rationale for loyalist violence has always been more difficult to determine than that of republicans, who are ideologically committed to the establishment of a united Ireland. It is therefore less clear how the various structural and political changes that have taken place since the Agreement have influenced loyalist paramilitarism. We know there was some adherence to the decommissioning programme set out in the Agreement. Similarly, UK state bodies, which at times supported loyalists during the Troubles, have been disbanded. Loyalists can no longer rely on the wider UK state to assist their agitation.
Violence can still happen, as demonstrated by the murder of Lyra McKee in Derry in 2019 and loyalist riots at Lanark Park in 2021. However, drawing a direct link between the violence of the Troubles and that of recent years is problematic. The ‘hard-won peace’ has been maintained because of significant changes to NI since 1998 – changes which are difficult to reverse because of the Agreement. Confusing the violence of the Troubles with that of recent years is to diminish the unique circumstances that prefigured the conflict and to descend into the more problematic narrative that violence is sociologically embedded in NI society; a problem that supposedly cannot be fixed.
4) A changing international context
The international context that facilitated paramilitarism has also changed. Tacit support for dissident republicanism in America isn’t acceptable in a post-9/11 world where fighting ‘terrorism’ has since been a central strand of the USA’s foreign policy. The fundraising generated from Irish-American groups such as NORAID (Irish Northern Aid Committee) to assist the Provisional IRA and other republican groups during the Troubles is a thing of the past, given America’s clear support for upholding the Agreement, which US representatives did so much to bring about.
While there are new and serious problems on the geopolitical horizon, it is difficult to predict how this messy, evolving picture might assist NI’s remaining paramilitaries, but it seems extremely unlikely that the region could ever command the ideological importance it once did from the 1970s–90s. Civil Rights, Marxism, socialism, anti-imperialism, the politics of race and Cold War divides were just some of the international discourses and ideologies in currency during the Troubles, and international actors offered material and financial support to various ‘sides’ in the conflict due to perceived ideological alignment. Dictatorial regimes such as Colonel Gaddafi’s in Libya, which partly funded the Republicans, and revolutionary groups in Cuba and elsewhere, saw common cause with the NI conflict in the battles between socialism and capitalism, imperialism and anti-imperialism, and republicanism versus absolutism. Those battles are a thing of the past even if new ‘Cold Wars’ loom on the horizon.
National ‘freedom’ to be achieved through armed struggle, one strand of Irish republicanism, does garner public support today even in Britain, but only in contexts where people’s liberties are wholly quashed by imperial-like regimes, such as in Myanmar and Ukraine. The support for the Agreement by large swathes of republicans, plus the unfettered freedoms civilians in NI have compared to elsewhere in the world today, demonstrate that dissident republicans will find it hard to generate ideological allies for their ‘cause’. The political thought of loyalists has never been extremely well-developed, but in a context where British people are less certain themselves about the value of the Union and are willing to cast a critical eye over the politics of race embedded in the former British Empire, it is unlikely they will find the support they once did in either Britain or the Commonwealth. In sum, while it is difficult to state with any confidence the likelihood of violence erupting due to ongoing controversies over the Protocol, there are sufficient contextual differences between the Troubles era and today to question if such violence could be anything like as widespread or, in the case of republicanism, command the legitimacy it once did.
Debunking the alleged threats posed to the Agreement by the Protocol
(i) The issue of ‘cross-community consent’
Strand One of the Agreement deals with the issue of cross-community consent, flagged by both the prime minister and foreign secretary as the object threatened by the Protocol. However, the actual wording of Strand One suggests there has been considerable misunderstanding on their part. Strand One is exclusively about ‘democratic institutions in Northern Ireland’ and is made up of clauses specific to the Assembly and Executive; in all of these, the Assembly has exclusive authority over cross-community consent, defined as (i) either parallel consent, i.e. a majority of those members present and voting, including a majority of the unionist and nationalist designations present and voting; (ii) or a weighted majority (60%) of members present and voting, including at least 40% of each of the nationalist and unionist designations present and voting. It is thus a devolved matter. The legal roles specified for Westminster are to scrutinize the role of the Northern Ireland Secretary, to ‘legislate for non-devolved issues’, and ‘to legislate as necessary to ensure the United Kingdom’s international obligations are met in respect of Northern Ireland’ (Strand One, No. 33a-c).
‘Cross-community consent’ is therefore the preserve of the NI Assembly and concerns internal relations. It is not for the UK government to interfere with nor any other co-guarantor. It is exclusively about institutions, not policies.
If it were about policies (which it is not), there are in any case numerous examples when the Westminster government ignored cross-community consent to pass legislation. In the 2016 Brexit referendum, NI voted to remain by 56:44 per cent. ‘Consent’ was not taken into consideration by the government, which proceeded with Brexit on a national, majoritarian basis. In 2019, Westminster forced through abortion legislation for NI when Stormont was once again collapsed, bringing NI into line with the wider UK despite protests by the DUP, which held the first minister position at the time. More recently, Westminster introduced the Legacy and Reconciliation Bill, offering an amnesty for Troubles-related offences. It is one of the few policies opposed by all groups in NI without exception, yet the government presses ahead with the legislation, railroading over ‘consent’. On none of these occasions did ‘consent’ matter to the UK government in its setting of policy. This is fundamentally because consent does not apply to policy.
Yet now the government is using the ‘consent’ issue in the name of national considerations to renege on policy – this time, on an international agreement – even though the principle is a devolved matter and has nothing to do with policy.
The irony in this interpretative U-turn is even more striking given the government’s position in a High Court case in March 2022 which contradicts its current position. The government argued – and more importantly, the Court of Appeal in Northern Ireland ruled – that international relations are an excepted (i.e. non-devolved) matter. The consent principle, if it did apply to policy (which it does not), therefore has no bearing on international law. In fact, the only deference to ‘consent’ in both the original Protocol and in this judgement was one specific item. Article 18 of the Protocol stipulates that the Assembly is required to vote every four years on the continued application of Articles 5-10. However, the government explicitly decided that the ‘cross-community’ principle was so exclusively internal to the Assembly that it did not apply to this vote. A simple majority – rather than one that adheres to ‘cross-community consent’ – is all that is required to maintain or scrap the Protocol. Article 18(5) states ‘Where the decision reached in a given period was on the basis of a majority of Members of the Northern Ireland Assembly, present and voting, the subsequent period is the 4 year period following that period, for as long as Articles 5 to 10 continue to apply. Where the decision reached in a given period had cross-community support, the subsequent period is the 8-year period following that period, for as long as Articles 5 to 10 continue to apply.’ [in Further Reading, see Article 18(5)]. This was upheld in the Court of Appeal judgement [Allister et al, item 248].
The government’s use of ‘consent’ to protest the Protocol therefore has no actual historical or legal basis in the Agreement, the Protocol itself, or later judgements. Cross-community consent is a specific devolved process applicable in a designated range of circumstances. It isn’t a general principle to be deployed (or not) by the UK government depending on when it happens to be politically expedient to do so.
(ii) Misunderstanding ‘East–West relations’ in Strand Three of the Agreement
In the Commons, the foreign secretary stated that the ‘East–West relationship has been undermined’ by the Protocol. Yet Strand Three of the Agreement, which deals with East–West relations, is between the Republic of Ireland and GB, not between NI and GB, which is how the foreign secretary interpreted it. Conversely, Strand Three is exclusively about the British–Irish Council and the creation of a British–Irish Intergovernmental Conference. While the irregular meetings and questionable effectiveness of these bodies might be causes for concern, these issues can hardly be tied to the Protocol. The other areas of the Agreement – Rights, Safeguards and Equality of Opportunity; Decommissioning; Security; Policing and Justice; and Prisoners – are either resolved or are processes that continue to work. And the North–South Ministerial Council, highlighted in Strand Two, seems to have met regularly since its inception, so has hardly been ‘negatively impacted’ as the prime minister separately claimed.
Debunking the claim that the Protocol threatens the Good Friday Agreement
The question must be asked whether the Good Friday Agreement is actually threatened by the Protocol? In relation to its actual terms – as opposed to the confections implied by various ministerial statements – there is little evidence to suggest that it is.
With this in mind, one might recall the 1993 Downing Street Declaration – an important statement by the then Conservative Prime Minister John Major and Taoiseach of the Republic of Ireland Albert Reynolds – which paved the way for the 1998 Agreement. In paragraph four, John Major stated:
The Prime Minister, on behalf of the British Government, reaffirms that they will uphold the democratic wish of a greater number of the people of Northern Ireland on the issue of whether they prefer to support the Union or a sovereign united Ireland. On this basis, he reiterates, on behalf of the British Government, that they have no selfish strategic or economic interest in Northern Ireland. Their primary interest is to see peace, stability and reconciliation established by agreement among all the people who inhabit the island, and they will work together with the Irish Government to achieve such an agreement, which will embrace the totality of relationships… [emphasis my own]
Boris Johnson, Liz Truss, and other ministers are in flagrant violation of this Declaration. The irony in their claim that the Protocol threatens the ‘hard won peace’ in NI is that it is they who have broken their commitment to the peace process of the 1990s that the Conservative Party did so much to bring about.
The real issues for policymakers to focus on
This paper has demonstrated how the use of the Good Friday Agreement in protests over the Protocol is a political construction that bears no relation to the historical reality of why the Agreement was signed or its internal content. This amounts to policy by spin in a matter that is far too important for such an opportunistic approach, riding rough-shod over both history and law. Policymakers should instead focus on the real issues rather than politicized misrepresentations:
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