The Good Friday Agreement,
Partition
&
Irish
Unity
Address to the Ireland Institute
by
Daltún
Ó Ceallaigh
(Writer on historical & political
affairs)
1 May 2008
INTRODUCTION
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.
PARTITION TODAY
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.
CONCLUSION
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.
[ends]