The Good Friday Agreement,
Address to the Ireland Institute
Daltún Ó Ceallaigh
(Writer on historical & political affairs)
1 May 2008
This evening, I want to deal with three points. Firstly, I will examine the import of the Good Friday agreement as supplemented by the Saint Andrews accord. Secondly, I will look at the overall significance of partition today. Thirdly, I want to consider how we might progress towards some form of united Ireland.
GOOD FRIDAY AGREEMENT & ST ANDREWS ACCORD
In seeking to evaluate the Good Friday agreement and the Saint Andrews accord, it is necessary to be clear about the legal context in which they arose.
When examining any polity, the most fundamental legal consideration is its constitutional basis. In the case of the six counties, the constitutional position between 1920 and ’73 from the UK viewpoint rested fundamentally on two statutes:
- the Union with Ireland Act 1800 (more popularly known as the Act of Union); and
- the Government of Ireland Act 1920.
In fact, the Government of Ireland Act was a measure of devolution within the United Kingdom as established by the Act of Union.
(There was also the Ireland Act of 1949, following the effective renaming of the Irish State and its departure from the Commonwealth, but that measure was not of the same order as the other two statutes mentioned.)
During the period in question, much attention was given to Section 75 of the Government of Ireland Act. That read in effect from 1922 (following modification by legislation for the Treaty):
“Notwithstanding the establishment of the Parliament of Northern Ireland, or anything contained in this Act, the supreme authority of the Parliament of the United Kingdom shall remain unaffected and undiminished over all persons, matters, and things in Northern Ireland and every part of thereof.” (My emphasis.)
(Originally, this section was worded so as to apply to the whole of Ireland against the backdrop of so-called ‘home rule’ throughout the island, with a southern parliament provided for as well as a northern one.)
In actuality, the Section was unnecessary, because of the Act of Union. Constitutional law expert Brigid Hadfield, captured this point when she wrote: “In the absence of [such] an express statutory formula, Westminster’s powers would, by implication at least, still remain, on the basis of the argument that Westminster, as a sovereign Parliament, cannot thus surrender its sovereignty over an integral part of the United Kingdom.” From a legal point of view, Section 75 is typical of a declaratory statement lest there might be any possible confusion, especially in non-legal minds, between, in this case, devolution and sovereignty, i.e. as to the continuing, overriding authority of Westminster deriving from the Act of Union. From a political point of view, which was probably more motivating for its inclusion, Section 75 served two purposes in its original form in the context of 1920. In respect of nationalists in Ireland, it was effectively saying to them ‘be clear that thus far shalt thou go and no further’. In respect of unionists, it was like saying ‘your place within the United Kingdom is in no way diminished’. For different reasons, therefore, it reasserted the sovereignty of Westminster, which basically rested on what was already asserted in the Act of Union.
As we know, a counter-claim to sovereignty was made in 1937 in the Constitution introduced by de Valera, specifically in Articles 2 and 3. These became the challenge to Articles 1 and 3 of the Act of Union, which had established the United Kingdom of Great Britain and Ireland (later of Great Britain and Northern Ireland, following the effective amendment of the Act of Union by the Irish Free State Acts of 1922, implementing the Treaty). Of course, the reassertion of British sovereignty in Section 75 of the devolutionary Government of Ireland Act was also objectionable from the perspective of Irish nationalists. But the point is that the ending of British sovereignty would have to entail not only the repeal of the reassertion in Section 75, but the repeal of the basic assertion in Articles 1 and 3 of the Act of Union, as part of the repeal of the whole of that statute.
In 1973, in the lead-up to Sunningdale, the Northern Ireland Constitution Act of that year overtook much of the 1920 Act, but left Section 75 basically intact, removing only the reference to the northern parliament, which had been prorogued the previous year.
However, over time, some people came to see the relevant juxtaposition as being simply that of Articles 2 and 3 of the Irish Constitution, on the one hand, and Section 75 of the Government of Ireland Act, on the other. It was as though the Act of Union had somehow disappeared or had been overtaken in the 1920s. For example, the historian Nicholas Mansergh in his last book posed the query of "Whatever happened to the Act of Union - … ". He said this "was put to three eminent jurists in 1987. They suggested that the Union had been repealed in the Act of 1920, the Irish Free State Constitution Act and the Agreement Act of 1925 [i.e. about the boundary]." (The jurists were not named.) But, apart from being wrong in detail, if they had merely consulted Halsbury’s Statutes (i.e. for the consolidated statutes of Westminster), they would have found the statement about the Act of Union that “it remains as a statutory warrant for the continued incorporation of Northern Ireland within the United Kingdom." And this lack of clarity was to surface again in the run-up to and at the negotiations in Stormont in Holy Week of 1998. The historian Thomas Hennessey, in his book about the peace process, said that, approaching and during the talks concerning the Good Friday agreement, “the Irish government” suffered from “a fundamental misunderstanding of British constitutional law in overestimating the significance of Section 75 of the Government of Ireland Act and not realising that the true bedrock of the United Kingdom continued to be the Act of Union.” There is reason to believe that this is correct, at least by way of pretence if not sincere belief, because of the assessment that the British might be got to amend or delete Section 75, but could not be easily prevailed upon to directly address the Act of Union for fear of enraging unionists.
Given that backdrop, I return to the Good Friday agreement. It was said, apparently by Séamus Mallon, that the agreement was ‘Sunningdale for slow learners’. In fact, this is historically, politically and legally inaccurate. That is because, for the first time, provision was made in British constitutional law, specifically in the Northern Ireland Act 1998 (which supplanted the Act of ’73), for the secession of the six counties from the United Kingdom and their incorporation in a united Ireland, if a majority voted for that in a poll in the north. That goes well beyond a pledge in a communiqué of 1973 and the reiteration of that in an agreement of 1985 (i.e. the Anglo-Irish Agreement). It meant that, for only the second time in the 20th century, the Act of Union, which was supposed to endure ”for ever after”, had implicitly and definitely been amended. Moreover, the ’98 Act, after then repealing what was left of the Government of Ireland Act (therefore including Section 75), embodied, for the first time, an explicit, albeit indirect, cross-reference to the Act of Union insofar as it was stated that “this Act shall have effect notwithstanding any other previous enactment.” Hadfield concedes that this clause could have such a significance. The point was got by Paisley during his speech to the House of Commons at the second reading of the Northern Ireland Bill when he said about this cross-reference: “That goes back to the 1800 Act of Union and before that. … An axe has been taken to the root of the Union.” Furthermore, the Act reflects, in Part V, the amendments to the Irish Constitution which introduced new Articles 3.2 and 29.7 to provide for an all-Ireland Ministerial Council and all-Ireland Implementation Bodies (the latter being an altogether new phenomenon).
No such constitutional moves were made in 1973 or ‘85. And they have the effect of diminishing, although obviously not eliminating, British rule over the six counties. Again, Hadfield should be quoted: “these bodies may be perceived as diluting the Union …”. Constitutional lawyer Gerard Hogan has also written that what was involved was “that the United Kingdom and Ireland will share sovereignty in respect of the functions exercised by these bodies and this, in its own way, is a novel development in international relations.” The reason is that, in contrast to the Government of Ireland Act, to devolve power within a State is one thing, while to cede powers over a State (or part of it) to institutions beyond the State is quite another. As Professor Brendan O’Leary has pointed out, the nearest analogy is with the EU: “The North/South Ministerial Council will function much like the Council of Ministers of the European Union …”. International lawyers Bell and Cavanaugh refer to the result of “a new supra-state structure”. As Hennessey says, another expression of this is “a third level of government in Ireland” and went on to maintain that the “Agreement established an intergovernmental confederal relationship between Northern Ireland and the Republic of Ireland.”
O’Leary also brings out clearly the changes in the nature of the Union resulting from Good Friday 1998. “Does the Agreement simply fall within the rubric of devolution within a decentralized unitary state? Arguably not. Two Unions make up the United Kingdom - the Union of Great Britain and the Union of Great Britain and Northern Ireland. The constitutional basis of the latter union is now distinctly different than the former.” In his recent article in The Irish Times, Dennis Kennedy summed up the position of Northern Ireland as being a “semi-detached” part of the United Kingdom. In other words, it has ceased to be simply attached, and the task of nationalists is to complete the process towards being detached. Or as Nigel Dodds of the DUP put it in ‘98: “the Northern Ireland recognised in this document is a different one from the Northern Ireland that I knew prior to this Agreement. This is a Northern Ireland in transition to a united Ireland.”
Although I have argued elsewhere that the 1998 referenda throughout Ireland did not amount to untrammelled self-determination for the Irish people, it can be accepted as at least partially correct what Bell and Cavanaugh have observed: “While British legislation has only ever contemplated the two options of full Irish or British sovereignty, the Belfast [or Good Friday] Agreement with its all-Ireland vote lifts this from being merely government policy to an exercise of self-determination, and in doing so significantly reshapes both the options.” They also state that the reference to the determinant of “the people of the island of Ireland alone” in the Good Friday agreement “reaffirms the continued involvement of the people of the Republic of Ireland, and not just its government, in future major decisions on the Constitutional status of the North.”
It should also be noted that the provision in ’98 for the secession of the six counties from the United Kingdom only allows for that to take place in favour of a united Ireland in contrast to the ‘73 legislation, which allowed for the possibilities of repartition or independence for the north. The point about secession and Irish unity should not be underestimated; I know of no other State in the world that has written into its constitution a provision for the secession of part of its territory and integration into another State.
But there are other differences which might be highlighted between Sunningdale and Good Friday. They include the Equality Commission, Human Rights Commission (HRC), Joint Committee of HRCs, the Commission on Policing, a Review of the Criminal Justice System, the Civic Forum, and an all-Ireland Consultative Forum of Civil Society. Moreover, the European Convention on Human Rights has been incorporated in northern Irish law, the Charter for Regional or Minority Languages of the Council of Europe has been ratified, a Bill of Rights is being completed, and an all-Ireland Charter of Human Rights is to be considered by the HRCs’ Joint Committee. It has also been observed by Bell and Cavanaugh that “the agreement also includes what we suggest is a group right that takes the ‘minority rights’ and protection beyond negative or positive non-discrimination rights.”
A particularly important contrast between the ’73 and ’98 accords is that, in respect of the Northern Ireland Assembly and the all-Ireland Ministerial Council, each is a condition of the other; thus the possibility of the Council being shelved in favour of the Assemby, as happened in 1974, no longer exists. Secretary of State Peter Mandelson underlined this point in 2000. “The 1973 accord acknowledged the importance of the ‘Irish dimension’ and took some steps - notably the setting up of a Council of Ireland - towards strengthening Irish involvement in Northern Ireland. Now, we no longer think in terms of an ‘Irish dimension’, to be tacked on to internal Northern Ireland policies.”
As one political scientist (Rick Wilford) has observed, the remark about Good Friday being ‘Sunningdale for slow learners’ is “as misleading as it is diverting, since the Agreement is a much more subtle and inclusive bargain than was reached at Sunningdale … ” Also a European Studies expert (Stefan Wolff) has said: “ … there are … significant differences between them [Sunningdale and Good Friday], both in terms of content and the circumstances surrounding their negotiation, implementation, and operation.” More pertinently, it has been said (by lawyers Paul Mageean & Martin O’Brien): “In one sense, it could be argued that mainstream unionism could only lose in the talks and the question was really how much would be lost.”
With regard to the St Andrews agreement, Peter Robinson suggested recently in The Irish Times that it had supplanted the Good Friday agreement. In fact, that is a nonsense, but a necessary nonsense for the DUP in order to rationalise its ultimate acceptance of the political architecture of the Good Friday agreement and to try to placate the diehards in the party. In reality, what was involved at St Andrews was principally a set of some functional modifications in the context of a review clause in the Good Friday agreement itself.
I want now to scrutinise the amendments of the Irish Constitution in respect of Articles 2 and 3 and, in the course of that, record the positive influence which the pro-Articles 2 and 3 lobby had on them. But, firstly, it should be made clear that many of us in that lobby never adopted the stance that there should be absolutely no change in the Articles - there is always more than one way of saying the same thing. In fact, I published two republican redrafts in 1993 and ’96 respectively.
However, when the ‘anti’ lobby really got going about 35 years ago, the demand of some in that camp was for deletion of the Articles. That has not happened. Alternatively, they tried to reword the Articles in various ways which would have removed from them their national democratic content. Let us consider the new wordings in that light.
Article 2 now effectively holds that there is an Irish nation which exists throughout the island of Ireland, even if there are also those on the island who either say they are not part of the nation or do not want to be so politically.
Article 1 (and this is important) remains unaltered and says: “The Irish nation hereby affirms its inalienable, indefeasible, and sovereign right to choose its own form of Government … ”
Article 3 gives up the claim by the Oireachtas and Irish Government to a right of jurisdiction over the six counties. (In fact, the orthodox republican stance never recognised such a right of a ‘Free State’ parliament and administration.) The Article then goes on to envisage a united Ireland arising from consent of a majority of the people “in both jurisdictions”. In fact, this is compatible with the principle that the valid constituency for determining the political future of Ireland is the island, while acknowledging the reality that the people are spread across two jurisdictions. It would have been different if the phrase in quotation was “in each jurisdiction”, which was in earlier drafts but changed in later ones.
The reference to a “firm will of the Irish nation” to unity in the new Article 3 is also important and again links in with both the definition of the nation as stretching throughout the island and the continuing mention in the Preamble about seeking to have “the unity of our country restored”. It can be held that there is thus still a constitutional imperative to strive towards unity.
In summary, Articles 1 to 3, as they now stand, assert that there is an Irish nation extending across the 32 counties with a right to sovereignty and can be construed as stating that the people of Ireland are entitled to establish a united Ireland by decision of a majority thereof. If, in practice, that can be attained along with northern majority consent, well and good, but at least a principle has thus been upheld in the face of the six-county gerrymander.
My belief is that, when current papers of State and of various individuals are opened up in decades to come, it will be seen that what has just been described would not have occurred had it not been for the pro-Articles 2 and 3 lobby. At the end of the day, and in all the circumstances prevailing, I would suggest that that lobby discharged its duty to its country with reasonable success.
I might just conclude on all of these dimensions of the agreement by quoting Gerry Adams who said: “When I hear some wiseacres saying that the Good Friday Document is ‘Sunningdale for slow learners’, I think of the wee unionist woman who said recently that it was in fact a ‘United Ireland for slow learners’.” In fact, ‘Sunningdale for slow learners’ was really an expression of bitterness on the part of some elements in the SDLP at the rise of Sinn Féin and the achievement of significantly more in ’98 than was attained in ’73.
More philosophically, one might say that the Good Friday agreement was an example of the ever-present dialectic between philosophy and possibility, leading to the synthesis of incremental progress. It was also a demonstration of imaginative anti-imperialism and intelligent republicanism.
Now, for the overall significance of partition today.
First of all, partition was never simply just a line on the map or a question of who exercised sovereignty over the six counties. It was also about religious-cum-political discrimination in jobs, housing, and allocation of communal resources; about gerrymandering, abolition of PR, lack of one person one vote, and the maintenance of a one party statelet; about lack of free speech and expression, and restriction of civil liberties generally; about the police being the paramilitary wing of the unionist party; about the curtailment of Irish cultural identity and the attempted imposition of British identity. All these things have largely gone. It was also about the denial of the all-Ireland framework and that has been addressed, although much remains to be done. The nominal sovereignty of Britain over the six counties remains, but partition in the deeper sense has been hollowed out. Moreover, as has already been stated, the Ministerial Council and Implementation Bodies have established the principle of all-Ireland government, immediately entailing at least a diminution in the de facto sovereignty of Britain over the six counties.
As for the actual possibility of securing a majority for unity of 50%+1 in a poll in the six counties, a number of factors could arise. Fertility of ‘Catholics’ and ‘Protestants’, policy of the British (could they eventually be moved towards a positive pro-unity stance?), emigration of unionists, immigration of nationalists, and persuasion of and demoralisation among unionists. In the latter instance, unionists are aware of the attitude of most British people towards them and many have become disillusioned with the British government in its dealings with the north, even if there has not been a declaration of intent to disengage. This could affect participation in a poll and there are already signs that unionists are voting less and less. Such disillusionment could also incline some unionists, to an extent depending on social class or business interests, to contemplate a united Ireland, which would be short of a unitary Irish Republic. Therefore, it is not inconceivable at some point in the future that the confluence of all these factors could produce a majority of 50%+1. And, we have to remember, that that is all that is required; not a majority of the people (which includes those below voting age), not a majority of the electorate, not a majority of unionists, but a majority of those voting.
TOWARDS A UNITED IRELAND
Next, I turn to the issue of how we might in fact progress structurally towards some kind of united Ireland.
What we have to contemplate is how we can move towards that objective in the circumstances that we now find ourselves in. Of course, it is important to consider what we mean by a united Ireland. There is more than one model on the agenda, as became particularly apparent at the time of the New Ireland Forum. Confederal, federal, and unitary models have been suggested, apart from joint sovereignty or authority. Even republican Sinn Féin does not insist on a unitary Irish Republic, as is evident from its Éire Nua policy, whatever about the realism in the detail and implementation of that. Realistically, we need to reflect on how we might advance on the basis of the constitutional structures on the island, either in existence or due to come into existence, such as the Parliamentary Forum. In this connection, I should like to look at both the Good Friday Agreement and Bunreacht na hÉireann.
At an all-Ireland level, the Good Friday agreement provides for a Ministerial Council, a Parliamentary Forum (yet to be set up) and Implementation Bodies. There is also provision for other all-Ireland phenomena such as a forum of civil society; however, the first three provisions correlate structurally to three of the basic essentials of a sovereign state; viz. a government, a legislature and a civil service. The fourth essential is a judiciary, and I shall return to that in a moment.
The removal of British sovereignty from Ireland could take place at the three levels of the Good Friday agreement concerned. The powers which the British government continues to exercise over the six counties could be transferred to the Ministerial Council. The role of the British parliament could be transferred to the Parliamentary Forum. The activities of the British civil service in respect of the north could be transferred to expanded and enhanced Implementation Bodies. What would then need to be additionally put in place would be an all-Ireland Court to deal with legal cases arising from the activities of the other three all-Ireland institutions, and an appropriate judicial transfer from Britain would have to take place to that as well. (Actually, there is a precedent for this in the Government of Ireland Act 1920 which established a High Court of Ireland that functioned and heard cases for a brief period.) Of course, these transfers could proceed according to what political scientists call the criterion of gradualism. That is to say, that, if they cannot be done all at once, then let us see how step by step progress can be made in the desired direction.
To complete what would be in effect a federal process, there would have to be, in like manner, transfers from the Irish Government, Oireachtas, Civil Service and Judiciary to the all-Ireland structures concerned.
Other questions would remain to be addressed such as head of state, flag and anthem. But these are mainly symbolic and should be relatively easy to deal with in comparison with the other aspects.
At the end of all, what this would mean would be the evolution of a federal or confederal Irish State of two component parts, namely 6 and 26 counties. Not very many people realise that the 1937 Constitution in fact provides for something similar to this in Article 15.2.2 , although that was linked to the idea of simply transferring British powers to the Dáil, and so on.
It might be said that, in either instance, the artificial unit of the six counties would be left intact. However, to paraphrase Wilde, historical outcomes are rarely pure and never simple. A federal Ireland of two units, respectively 26 county and 6 county, with power-sharing etc enduring in the latter, would be a residue of history. It would also involve taking possession of the boundaries of interference and making them serve our own ends. Yet, such an arrangement need not be regarded as permanent. Over time, with the building of confidence and the wisdom of experience, a more streamlined, and what some might consider a more coherent, arrangement could emerge and the two-unit Ireland described be viewed as transitional or – a United Ireland, Mark I.
Finally, there is a very human dimension to the entirety of what I have been discussing, and should never be forgotten. The tasks ahead of us involve being sensitive to people as well as being aware of laws and structures, especially given our fraught and tragic history. As Jean-Paul Sartre once said: when the concrete has been made abstract, inhumanity becomes possible. And we have had our fair share of inhumanity on this island. If I may, this time, paraphrase Brendan Kennelly, we must all of us, in respect of our fellow Irish men and women, while not becoming morally neutral, accept the uncertainty of attempted understanding in place of the certainty of inherited condemnation.