Beyond the Border. Richard Humphreys
Council of Europe Charter on Regional or Minority Languages’.116 A lack of consensus on a Bill of Rights was noted, in which context: ‘the parties commit to serving the people of Northern Ireland equally, and to act in accordance with the obligations on government to promote equality and respect and to prevent discrimination; to promote a culture of tolerance, mutual respect and mutual understanding at every level of society’.117
2015 – ‘A Fresh Start’ Agreement
Difficulties in implementing the Stormont House Agreement and ongoing concerns about paramilitarism, which destabilised the executive, then led to a further round of talks in 2015 culminating in A Fresh Start – the Stormont Agreement and Implementation Plan of 17 November 2015, which included provisions on tackling paramilitarism, financial matters, welfare and tax issues, financial support from the governments and implementation of the Stormont House Agreement.
The 2015 Fresh Start Agreement provided for measures to tackle paramilitarism and organised crime, including a Joint Agency Task Force between police and customs North and South,118 which was subsequently established.119
An international body was to be set up to report on ending paramilitarism.120 A subsequent international agreement between the two governments formally established the body as the Independent Reporting Commission on 13 September 2016, and this was followed by UK121 and Irish122 legislation.
Provision was also made by the Fresh Start Agreement for financial reforms, welfare and tax issues, and financial support. A civic advisory panel was to be set up with only six members, limited to consideration of only two issues per year.123 Ultimately, this is a far cry from what was originally envisaged by the Agreement in terms of a civic forum. The Centre for Cross-Border Studies has been critical of the lack of structure for meaningful civic engagement:
This long list of failed or inadequate proposals and arrangements for the inclusion of civic voices in the political process both reveals a core problem with politics (rather than with political institutions) and suggests a possible alternative for a Northern Ireland voice in UK–EU negotiations …
Northern Ireland political arrangements include a long list of failed attempts to establish a meaningful forum for the inclusion of civic voices from outside the toxic bi-polar model of political relationships. Despite the fact that consecutive political agreements have provided for such fora (where civic views could be considered in relation to key social, cultural and economic issues), problems have been encountered with each of those.124
It would be hard to disagree with the proposition that the watering-down of the Civic Forum was a major deviation from the 1998 Agreement. Perhaps a more considered look at the pros and cons of involving the wider civic society through a broadly-based Forum, with a North/South counterpart, in the manner envisaged in 1998, could be worthwhile.
In the wake of the Fresh Start Agreement, the First Minister Peter Robinson stood down as DUP leader on 18 December 2015. He was succeeded in both roles by Arlene Foster. Legislation was introduced at Westminster, enacted on 4 May 2016, to give effect to the Stormont Agreement and Implementation Plan.125
The Fifth Assembly: 2016–2017
The Fifth Assembly was elected on 5 May 2016. Again, 56 unionists were elected (51.8 per cent), but only 40 nationalists (37 per cent), as well as 12 others – a net gain of 3 for others from nationalism. Taking advantage of the Stormont House Agreement, the SDLP, UUP and Alliance opted out of government and formed an official opposition.
Shortly after the assembly was elected, the Brexit referendum took place on 23 June 2016. A clear majority of voters in Northern Ireland supported remaining in the EU, 56 per cent to 44 per cent. All major parties supported remain, other than the DUP. The majorities for remain in Northern Ireland, Scotland and Gibraltar (and indeed Greater London) were, of course, outweighed by a majority for leave across England and Wales. We will discuss the implications of Brexit for discussions of Irish unity in a later chapter.
The executive lasted only eight months. Deputy First Minister Martin McGuinness resigned in the context of the controversy over the Renewable Heat Incentive (RHI) Scheme. Other issues became mixed up in the resignation decision, as discussed below. A judge-led inquiry into the RHI scheme was announced on 24 January 2017 but, before its work got underway, the controversy precipitated a further election.
The Sixth Assembly: 2017 Onwards
The Sixth Assembly was elected on 2 March 2017. Pursuant to the Stormont House Agreement, this was the first election to the reduced-size chamber, now at 90 members rather than 108. However, the composition of the assembly significantly changed. Unionism now only carried 40 seats, or 44.4 per cent, the first time in the history of Northern Ireland that it had lost its absolute majority. That loss of a majority is in itself a huge staging post towards possible altered constitutional futures for the island. Nationalism returned 39 members (43.3 per cent), only 1 less than unionism. Others numbered 11. To compound the shock, the DUP returned only 28 members, 2 less than the 30 required to trigger a petition of concern. Thus, it lost its right to block legislation on its own, as it can no longer invoke the procedure for cross-community support without the help of other members. To put this seismic change into context, one would need to compare it with the first election to the Northern Irish House of Commons in 1921. At that election, 40 unionists were elected and 12 nationalists, a unionist supermajority of 76.9 per cent to 23.1 per cent. Within a century – and in Ireland one has to think in terms of centuries – that gap has closed to touching distance.
The new context where neither bloc has an absolute majority, and where thus the balance of power lies with ‘others’, puts a very new emphasis on the ‘petition of concern’, which is now, to an extent, a mechanism for deadlock rather than counter-majoritarian protection. Newton Emerson’s view is that:
What has become redundant at Stormont is not powersharing but vetoes – the petition of concern at Assembly level and the ability of either main party to bring government down at Executive level.
These vetoes were very much intended as protections from majoritarianism in a Northern Irish context. In a new era without majorities, all they do is let both sides block each other, frustrating any possible consensus.126
The Sixth Assembly failed to elect an executive, with disagreement ultimately centring on four major issues:
• the unresolved RHI controversy
• Irish language legislation
• matters relating to victims, including funding for legacy inquests into Troubles-related deaths127
• marriage equality legislation.
On 27 April 2017, the Westminster parliament enacted amending legislation128 to extend (on a one-off basis) from 14 to 108 days the period for election of a First Minister and Deputy First Minister.129
Matters were further complicated by a snap UK General election on 8 June 2017, which resulted in the loss of all Westminster seats for the SDLP and the UUP, as well as the loss of the Conservative government majority at Westminster. The UK government was then compelled to enter into a Conservative–DUP confidence and supply agreement on 26 June 2017, to facilitate the formation of a minority government at national level. While the agreement provided for continued adherence to the Good Friday Agreement, it also provided for the ongoing commitment of the Conservative Party to Northern Ireland remaining part of the UK. The dependence of the UK government on one actor in the Northern Irish scene, the DUP, is seen by some as potentially limiting the options that are likely to be pursued to achieve political progress in the Northern Irish context. An application to seek leave for judicial review of the confidence and supply agreement was dismissed in October 2017.130
In the absence of a functioning assembly, in November 2017, the Westminster parliament voted through a budget for Northern Ireland up to 31 March 2018.131
Talks to resolve the impasse between the DUP and Sinn Féin ended without agreement in February 2018. The issue of Irish language legislation was particularly contentious and, in that regard, Sinn Féin suggested that they had reached an ‘accommodation with the leadership of the DUP’ who then ‘failed to close the deal’ with their