Beyond the Border. Richard Humphreys
Mallie’s website133 which would have resolved the relevant issues as follows:
• there would be three bills on language, one setting out general principles and two separate Acts dealing with corresponding provisions on Irish and Ulster Scots
• same sex marriage was to be left to the assembly134
• legacy issues were not mentioned135
• the objection to First Minister Foster continuing in the light of the RHI affair was not mentioned.136
In the aftermath of the breakdown of discussions, the DUP called for direct legislation to impose a budget to allow Northern Ireland departments to function (which is what happened), whereas SDLP leader Colum Eastwood stated ‘we can’t allow this British government or this DUP to think that they are going to govern Northern Ireland on their own. That cannot be allowed to happen.’137
In one sense, there is nothing particularly new about the Westminster parliament legislating for Northern Ireland, particularly in the absence of devolved institutions. This has been happening since the Agreement was adopted and is a consequence of the UK’s sovereignty over Northern Ireland, as recognised by the Agreement itself. That power to legislate is, however, subject to two important constraints: first, the right of the Irish government to put forward views and proposals, including on Strand One issues, and second, the requirements of rigorous impartiality imposed by the Agreement itself.
The DUP’s position as of March 2018 was to seek the establishment of a shadow assembly to sit at Stormont until devolution is restored, to scrutinise legislation and Westminster ministerial actions.138
As of March 2018, the Alliance Party was calling for action on a range of fronts:
[O]nly fully inclusive multi-party talks, chaired by an independent facilitator, can re-establish trust between the parties and hold them to account, privately and publicly, for their actions. They also provide the only prospect of delivering an inclusive Executive.
We have proposed transitional Assembly arrangements, running in parallel with the talks, as a step towards the restoration of full devolution …
By reconstituting Assembly Committees, MLAs can start to do the job we were elected to do: to give advice and guidance, scrutinise departmental spending and planning, and develop policy and legislation. Plenary sessions would allow us to progress legislation, via Committee Bills or Private Member’s Bills.
The formation of a cross-party Brexit committee would give NI a voice in the discussions which are shaping our future, whilst the re-constitution of the Policing Board would restore the oversight required to maintain public confidence and accountability in policing …
We have also proposed that Westminster legislate for key devolved matters such as the Irish language and equal marriage which have become a barrier to restoration, erasing some red lines and changing the dynamics of the talks process.
Indeed, this week, the first steps will be taken to introduce a private members bill on Equal Marriage at Westminster. While it has a long way to go yet, it is a major step forward towards the day when LGBT couples in NI will finally be able to say ‘I do’ and get the same recognition and respect under the law as any other married couple. My only regret is that yet again it is Westminster and not Stormont delivering on LGBT rights and equality.
Finally, we have identified reserved matters which Westminster should also progress including, crucially, reform of the petition of concern. That would ensure a restored Assembly could deal effectively with other social policy and equality issues and preventing any one party frustrating the will of the electorate.
The planned Government consultation on the enabling legislation to implement the Stormont House Agreement on legacy, the funding of legacy inquests and the implementation of a pension for the seriously injured should also now proceed without further delay.139
The Sinn Féin position, as articulated by Mary Lou McDonald in March 2018, was that:
Any proposed shadow Assembly would mark a retreat from powersharing and the leadership needed to restore the Good Friday Agreement framework. It would be an unacceptable step backwards, lacking credibility.
The onus is now on the two governments to act and through their joint stewardship to remove the obstacles to restoring the political institutions.
Both governments must now convene the British-Irish Intergovernmental Conference to find a way to implement outstanding agreements and to fully respect the rights of citizens to marriage equality, to language rights and the funding of legacy inquests.
Direct rule is not an option. It was a failure in the past and would be so again.
It’s time to face the real challenge to deliver citizens’ rights and to re-establish the institutions of the Good Friday Agreement.140
The SDLP’s Colum Eastwood proposed the following:
I am calling on the Irish and British governments, as part of the intergovernmental conference, to agree a package of legislation and implement it. I believe that package should include much of the draft accommodation that was agreed between the DUP and Sinn Féin. This package would include legislation for an Irish language Act and an Ulster Scots Act. It should include the establishment of legacy bodies and the release of inquest monies. I am also proposing that it should also include the reform of the petition of concern so that marriage equality can finally be brought to the North.
If these two parties couldn’t bring the deal over the line then the two governments should do it for them. That positive forms part of their governmental duty as guardians and guarantors of the agreement. ... The unionist and nationalist peoples of Ireland can retreat from each other or we can choose to work, live and govern together. As John [Hume] himself would say, the problem hasn’t changed, therefore the solution hasn’t changed. Despite all the difficulties ahead, the Good Friday agreement remains the solution to secure the interests of all our futures. Twenty years on, now is not the time to abandon it – now is the time to defend it.141
The UUP have rejected the Intergovernmental Conference idea,142 and leader Robin Swann has called for UK government intervention:
The Secretary of State has to take decisive action. The Government must consider all options including a voluntary coalition or a Grand Council type Assembly. If that means Direct Rule Ministers temporarily bringing legislative proposals to the committees for scrutiny in order to ensure a role for locally elected politicians, then so be it.
What is clear is that Sinn Féin cannot be allowed to block progress any longer. They have a mandate but they have 27 seats out of 90 and 28 per cent of the vote. They cannot be allowed to dictate to the rest of us. They don’t take their seats in Westminster by choice, if they don’t want to take their seats in the Assembly then they should no longer be allowed to stop those of us who do.143
Chapter 3
The Challenge of Brexit
The Good Friday Agreement presupposes continued EU membership. Indeed, one of the North/South bodies is specifically devoted to implementing EU programmes. However, presupposing membership is not the same thing as requiring membership, and, despite voting to remain in the EU, Northern Ireland finds itself having to submit to the overall majority for a leave vote within the UK as a whole. As it was put by Prof. Jonathan Tonge:
The [Good Friday] Agreement assumes continuing EU membership for both the UK and Ireland but binds neither explicitly to maintaining that membership. [A] 2016 Belfast High Court case1 … ruled that there was nothing in the Good Friday Agreement to prevent the triggering of Article 50. That High Court in Belfast declared in October 2016 that it would be an over-statement to suggest that EU membership was a constitutional bulwark central to the Good Friday Agreement, which would be breached by notification of Article 50. This, the Court asserted, would be to ‘elevate ... [EU membership] over and beyond its true contextual position’. In its January 2017 verdict, the UK Supreme Court2 … upheld the Belfast High Court position: the principle of consent for constitutional change contained in the Good Friday Agreement referred to whether Northern Ireland remained in