As the talks on the restoration of power-sharing have ‘intensified’, the most unhelpful zero-sum prism for measuring any outcomes is the notion that any one party’s ‘demands’ cannot be seen to prevail over others.
Not only does this distract from the merits of each issue, but it also presents the status quo as some sort of level playing field. When it comes to human rights, it is not. Many NI rights-based commitments flowing from the Good Friday Agreement (GFA) and other bilateral agreements of the peace settlement, as well as those in other human rights treaties, languish unimplemented, misimplemented or unenforced. These are internationally legally binding duties that are being breached. The starting point for rights holders (which is everyone) is that we are already ‘losing’ about 15–nil because of repeated failures to implement previous agreements.
The well-known examples of the Irish Language Act and the Anti-Poverty Strategy – both formal commitments in the St Andrews Agreement – join the Bill of Rights for NI, which was promised in the GFA itself, as part of a long list of broken pledges. We do have the
GFA’s ‘Section 75’ an equality duty but it is often overlooked and rarely enforced. As marriage equality votes have highlighted, the Petition of Concern has been turned on its head to block equality initiatives in the Assembly. (In fact, under the GFA each Petition was supposed to trigger committee scrutiny for ‘conformity with equality requirements’ – including with the NI Bill of Rights, without which the Petition cannot fully operate.)
Such better known examples are the tip of the iceberg of other rights-based measures (that engage binding human rights treaty obligations) which were routinely blocked – usually by the DUP – when Stormont was up and running. The numerous micro battles, often unseen on the outside, exhausted all concerned.
These provisions are not some abstract wish list or demand. Rather many were designed as safeguards to counter abuses of power, sectarianism in decision-making, and rights deficits. Working within the existing rules – such as properly applying the equality duty, allocating resources on the basis of objective need, and using the framework of the Bill of Rights – should have protected against the types of practices that contributed to the collapse of the institutions. There is little point in re-establishing devolved government only for it to collapse again for the same reasons.
The official mood music of the talks tends to place emphasis on the NI political parties sorting all this out. This misses the point that it is not ultimately the local parties’ responsibility to ensure implementation of these measures. As some of the parties themselves would point out, they did not sign up to some of the treaty-based commitments in the first place. These commitments are legally binding, but the parties to international agreements are the British and Irish Governments, and it is ultimately their responsibility and duty to implement them. This falls mostly to the UK, given as it has jurisdiction.
St Andrews could not be clearer that the ‘Government’ – (i.e. the British Government not NI Executive) – would introduce an Irish language act. This does not mean the NI Assembly can’t deliver the commitment – all well and good if it does – but when it doesn’t responsibility does not disappear it defaults to Westminster.
The GFA is also clear that an exemption to normal devolution protocols occurs when legislation is needed to implement treaty obligations. The GFA (Strand 1 paragraph 33) explicitly states that Westminster ‘will’ legislate for Northern Ireland when needed to meet international obligations. This has happened before when in 2007 the DUP blocked the transposition of the EU gender directive through Stormont and Westminster quietly legislated on the Assembly’s behalf. Contrast this to the reaction of Tory Ministers last year when the UN treaty-body on discrimination against women (CEDAW) ruled that NI’s 19th century abortion law breached the present day UK’s human rights commitments. The reaction, despite the protestations of many MPs, was to go to great lengths to pretend that this provision of the GFA does not exist, and that only Stormont not Westminster can legislate to remedy the breach. In doing, so London abdicated its responsibilities.
Such a reaction appears echoed in Karen Bradley’s approach to the talks. She appears to take the view that the outstanding issues – most of which are in fact are binding UK government commitments and duties – are nothing to do with her, but just a matter for the parties. The Irish government, as co-guarantor, also has a key role in pressing for UK compliance with the bilateral agreements that it is co-party to.
All of this is complicated by the situation at Westminster. The UK has not really had a government either for the last two years, with the normal legislative process grinding to a Brexit-induced halt. Provisions requiring legislation cannot be realised overnight, but at the very least, the two governments should make clear they will implement their commitments and set out a time bound process for taking them forward.
The success or failure of the current process is not in the hands of the parties alone, the British and Irish Governments have responsibilities too.