The effectiveness of the institutions of the Belfast/Good Friday Agreement

In the years leading up to the Belfast/Good Friday Agreement, considerable groundwork had been laid through patient negotiation, compromise, and determination to end the Troubles, a period of conflict which had claimed the lives of more of more than 3,500 people. We commend those who established what would become the pillars of the Agreement and thank them for their contribution to the peace process. The final talks did not exist in isolation, and it is important to recognise that the architecture of peace was achieved through a long and difficult period of dialogue prior to April 1998.

In its 25th anniversary year, we acknowledge the achievement of those who negotiated and agreed the Belfast/Good Friday Agreement, which brought peace to Northern Ireland after three decades of conflict. We recognise the considerable leadership and bravery shown, especially by the leaders of the Northern Ireland parties and peacebuilders, including women’s groups, in Northern Ireland, and commend the constructive and determined attitude shown by the leaders of the British and Irish governments. Twenty-five years on, there is a temptation to see the achievement of peace as an inevitable outcome, but while the foundations were laid in the years leading up to 1998, reaching a settlement with broad consensus was far from a foregone conclusion. As we look to the future, we remain mindful of the hard work that was necessary in order to achieve agreement, and of the fact that in the modern media environment, such an outcome might not have been possible.

The Belfast/Good Friday Agreement is the basis of devolved government in Northern Ireland. Several key provisions are codified in both domestic and international law and it has overwhelming democratic legitimacy—from which is derived a near- universal understanding that Northern Ireland should never again be blighted by violent conflict. It also includes clear imperatives upon the parties in Northern Ireland and the British and Irish governments to regularly review its operation and to take remedial action where necessary to address difficulties in accordance with their treaty obligations.

As we will set out, this inquiry has found that there is scope for reform of the Agreement’s institutions—as is reflected in the findings that follow. It has also found that there is notable public interest in options for reform. We are mindful, however, of the specific provision made for review and remediation within the text of the Agreement, and while we believe our findings go some way to identifying changes that need to be made and areas which require focused and sustained attention, we emphasise that only on the basis of calls for substantive change from people in Northern Ireland can the Government, in partnership with the Government of Ireland, and in partnership with the Northern Ireland parties, take this work forward. (Paragraph 22) 74 The effectiveness of the institutions of the Belfast/Good Friday Agreement

As such, we call upon the Government, in partnership with the Government of Ireland and in close consultation with the Northern Ireland parties, to commission a formal, independently led review (hereafter “the Review”) into the operation of the institutions of the Belfast/Good Friday Agreement. The Review should: • examine the institutions’ ability to provide effective and stable government in Northern Ireland, with broad cross-community inclusion; • explore the extent to which the North/South and East/West bodies have supported effective governance in Northern Ireland and facilitated effective cooperation across these islands; • include mechanisms for substantive consultative engagement with Northern Ireland society; and • make recommendations on how the institutions could be reformed with a defined roadmap for the achievement of those reforms. (Paragraph 23) Strand One - democratic institutions in Northern Ireland

In the 25 years since their inception, numerous attempts have been made at strengthening the viability and stability of the Strand One institutions in complex and challenging political circumstances. The successor agreements—and subsequent legislative alterations to the institutions—serve to illustrate the delicate context in which the institutions operate and the near-constant effort required from the Northern Ireland parties and the British and Irish governments to facilitate their continued existence. We recognise that they have not had all-party consensus or involvement and remain the subject of continued criticism. It is also apparent that it is difficult for the institutions to reform themselves without the input of the British and Irish governments. Nonetheless, the very existence of successor agreements and the changes they have instituted illustrates that reform of the Agreement’s institutions is possible, even if such reform is piecemeal and sometimes lacking in implementation. (Paragraph 40) Strand One - an evaluation

Cross-community safeguards were a fundamental aspect of the Strand One institutions’ design. They recognised and accommodated the politics of a deeply divided, post-conflict society and were undoubtedly fundamental to securing agreement between Unionist and Nationalist parties in 1998. With an understanding drawn from that time, the institutions have facilitated successfully cross-community government and we recognise the continued importance of Unionist/Nationalist representation to the legitimacy of government in Northern Ireland and the wider stability of the region. However, there is an emerging sense that “cross-community” should take account of the growing section of Northern Ireland society which does not identify as either Unionist or Nationalist. In this sense, it is difficult to maintain that the institutions truly deliver cross-community governance when a significant—and growing—number of elected representatives do not enjoy the same powers within the institutions as their Unionist/Nationalist-designating colleagues. (Paragraph 48) The effectiveness of the institutions of the Belfast/Good Friday Agreement 75

There is broad consensus that the Strand One institutions are unstable and prone to collapse. The current system of nomination to the positions of First Minister and Deputy First Minister gives, in effect, a single party a veto over Executive formation and thus the continued functioning of democratic government in Northern Ireland. It also prevents the proper functioning of the institutions under Strands Two and Three of the Agreement. There is also consensus that even when functioning, the threat of collapse looms large over the institutions, with a pervasive culture of dispute rather than business-like cooperation. It is also apparent that there is insufficient incentive for parties to avoid exercising their power of veto. The result is a highly temperamental system of government.

In spite of their instability—owed in part to stringent cross-community safeguards— the institutions have shown that they can be effective in terms of legislative output. During periods of relative stability, by that metric the Assembly arguably outperforms its counterparts in Scotland and Wales. Evidence also shows that the institutions have presided over the development of key industries in Northern Ireland. We commend this achievement and recognise that the institutions can constitute an active legislature and that their work has led to good policy outcomes in certain areas.

The Strand One institutions have failed to address a number of critical policy issues in Northern Ireland. There is broad consensus that a deficit of governance has— and continues to have—a detrimental impact on policy development and outcomes. Such a deficit can be rectified only by elected representatives in Northern Ireland, and not by their counterparts in Westminster or civil servants.

While the design of the institutions—primarily through the use of vetoes and a system of mandatory coalition—stymies the effectiveness of government in Northern Ireland, we also recognise that the success of the institutions in turn depends on the political will of the actors who inhabit them and the working relationships between those actors. Structural weaknesses do not make the institutions inherently ineffective, but when compounded with political realities in Northern Ireland, a poor and highly unsatisfactory record is likely. The achievement of good government in Northern Ireland is a process rather than an event, and too often successor agreements have been seen merely as a means to end impasses and not as binding obligations to deliver on promised outcomes. (Paragraph 71) Strand One - options for reform

We understand the cautionary arguments against short-term reform to the process for the election of the Speaker. In previous instances of institutional boycott, the possibility of reforming the thresholds for electing key institutional roles such as Speaker of the Assembly was not seriously considered. This, coupled to the passing of time, is insufficient reason to preclude limited, purposeful intervention to make the institutions more operable in times of crisis for Northern Ireland, when stable and effective government is perhaps needed more than ever. The ability of the Assembly to elect a Speaker is fundamental to this and we see it as a priority that the Assembly has a Speaker in place as soon as possible. (Paragraph 77) 76 The effectiveness of the institutions of the Belfast/Good Friday Agreement

We recommend that the Government, in close consultation with the Government of Ireland and the Northern Ireland parties, legislates to amend the Northern Ireland Act 1998 such that the Speaker of the Northern Ireland Assembly is elected by MLAs on a supermajority basis of two-thirds. This change should take effect as soon as practicable.

Despite what political realities may have dictated in 1998, there is no justifiable reason why the titles of First Minister and Deputy First Minister should not be formally known as ‘Joint First Ministers.’ There is little dispute over the equal powers of the offices and there is consensus that the separate titles can infer a senior and a junior, with potentially distortionary electoral consequences. There is also agreement that the when the Executive Office functions well, the First Minister and Deputy First Minister are seen to be acting jointly in the best interests of Northern Ireland. The misleading titles ascribed to these roles run the risk of positive power- sharing outcomes being diluted. Furthermore, an accurate representation of the jointness of the offices would, 25 years on, reinforce the Agreement’s principle of parity of esteem between the two main communities and send a signal that the Executive Office acts in the interests of them both. This could begin to restore faith in the institutions at a time of crisis.

We recommend that the titles of First Minister and Deputy First Minister be renamed ‘Joint First Minister’. Accordingly, the Government, in close consultation with the Government of Ireland and the Northern Ireland parties, should legislate to amend the Northern Ireland Act 1998 to that effect, with the change coming into force at the beginning of the next Assembly mandate.

The change in nomination procedure for the offices of First and Deputy First Ministers resulting from the St Andrews Agreement in 2006 undermined the core principles of the Agreement. The offices are held jointly and their powers are equal. The nomination procedure instituted in 1998 was designed to reflect this and the Assembly’s position as the prime source of authority in Northern Ireland. It is also clear that the present system of nomination enables either of the two largest Assembly parties to prevent the formation of an Executive by refusing to nominate for the position to which they are entitled, with no means of overcoming the instability this creates. We also recognise that to revert to the pre-2007 arrangement of a cross-community vote to elect the First and Deputy First Ministers would also likely result in an effective veto for either of the two largest parties. However, there is precedent within the Agreement for key votes in the Assembly to be taken on a supermajority basis, rather than through either parallel consent or weighted majority, to demonstrate a form of cross-community support for nominees.

Therefore, we recommend that the Government, in close consultation with the Government of Ireland and the Northern Ireland parties, legislates to amend the Northern Ireland Act 1998 such that the two holders of the office of Joint First Minister are elected by the Assembly on a supermajority basis of two-thirds, with nominations open to any two MLAs of any two parties who run on a joint slate. This change would take effect from the beginning of the next Assembly mandate.

We note with interest various proposals for reforming the broader system of Executive formation. We believe that there is scope for a system which will allow The effectiveness of the institutions of the Belfast/Good Friday Agreement 77 for greater cohesiveness within a coalition but are acutely aware of the potential drawbacks of departing from ‘mandatory’ coalition as we currently see under d’Hondt. While mandatory coalitions can be unwieldy and impede the development and implementation of an Executive’s agenda, we consider it more important to Northern Ireland’s political stability in the short term to at least have an Executive in place in the first instance—hence our previous recommendation to broaden the criteria through which First Ministers can be appointed, without whom no further ministerial portfolios can be allocated. As such, we recommend that the Government incorporates into the Review a full evaluation of how the present system of Executive formation might be reformed to increase coalition cohesiveness while maintaining cross-community representation.

We note with interest the lively discussion both within and without this inquiry regarding the future of community designation and its application to voting procedures in the Northern Ireland Assembly and Executive. As already acknowledged, Northern Ireland has changed since 1998 and the understanding employed by the Agreement of what should constitute cross-community government is in need of an update. There is merit in removing designations and, with safeguards, introducing, for example, qualified majority voting to ensure support throughout the Assembly. However, Northern Ireland remains a society with sectarian divisions and we believe that it would not be appropriate for us to pass judgment on the future of the overall role that community designation plays in the institutions. While we believe reforms can—and should—soon be made which could improve the stability of the institutions in the short to medium term, we recommend that the Government incorporates into the Review a full evaluation of the effect of community designation in facilitating effective, stable and—in the broadest sense—cross-community governance in Northern Ireland.

We are aware of work already underway to strengthen the behaviours and working practices within the Strand One institutions. We concur with the argument that institutions can only be made effective by those who inhabit them and in this regard we endorse efforts to improve behaviours and best practice among MLAs in both the Assembly and Executive, as well as practical suggestions to improve the smooth and effective functioning of government in Northern Ireland. We recognise that improvements can only come with sustained attention over time, and so we recommend that the Government incorporates into the Review a module on how the behaviours and working practices of the Strand One institutions could be improved, with a view to developing a programme dedicated to upholding the Agreement’s core principles of good faith, trust and mutual respect and delivering good government in the best interests of all in Northern Ireland.

The Northern Ireland parties have a fundamental role in shaping the future of the institutions to which they are elected by the people of Northern Ireland. As co- guarantors of the Agreement, however, the British and Irish Governments have an immutable obligation to nurture and support what is still a young and developing system of government, mired by structural complexities and operating in the context of sectarian division. Over the past 25 years, this is not an obligation that has always been met. Therefore, in light of the current impasse and the body of evidence presented in this report, we urge the Government to renew its commitment to the Belfast/Good 78 The effectiveness of the institutions of the Belfast/Good Friday Agreement Friday Agreement in Northern Ireland by commissioning the independently led Review of its institutions, as set out in our earlier recommendation, and to act swiftly upon further recommendations made in this report. (Paragraph 106) Strand Two - North/South institutions

We note with concern the weight of evidence which suggests that the potential for the Strand Two institutions to deliver meaningful cooperation on the island of Ireland for the benefit of all its citizens, North and South, has not been realised. However, we also commend efforts which have seen pragmatic cooperation outside of the formal structures of the institutions, with the benefits that have resulted. Nonetheless, we conclude that cooperation is best achieved through regular, formal, substantive participation in structures dedicated purely to the purpose of cooperation for mutual benefit, and we call for a renewed commitment on the part of the parties of Northern Ireland to realising the possibilities Strand Two created. To this end, we recommend that the Government incorporates into the Review a comprehensive evaluation of the structure and working practices of the NSMC and the implementation bodies, including the necessity or otherwise of the ministerial veto on attendance, such that maximum participation from the two administrations can be achieved and meaningful results delivered. (Paragraph 119) Strand Three - East/West institutions

As with Strand Two, we recognise the importance of Strand Three to the overall character and successful functioning of the Agreement. Ostensibly—and evidenced by the way in which they have largely been used—the institutions under Strand Three serve to provide structures to support the operation of the Strand One institutions. This is indeed an important function, but it is a limited understanding of the role and potential of Strand Three, which the Agreement clearly saw as providing opportunities to discuss and agree mutual cooperation across these islands, and not merely as a support mechanism for one territory. We welcome the recent rapprochement between the British and Irish governments, but we stress the ready-made opportunity which the Strand Three institutions provide to share insights and understanding, to cooperate on policy issues for mutual benefit and, in essence, to constitute a bedrock of support for each constituent territory against future challenges.

As such, we recommend that the Government increase the level of Prime Ministerial attendance at meetings of both the BIIGC and BIC, with relevant Cabinet Ministers attending in addition or deputising as necessary, and incorporate into the Review a comprehensive assessment of how Strand Three could be better utilised to tackle shared policy issues for the benefit of the United Kingdom and its constituent nations and territories. (Paragraph 134) Public opinion

It is clear from our own commissioned research—and that undertaken by others— that there is widespread public dissatisfaction with the stability and effectiveness of the Strand One institutions. There is also evidence of growing dissatisfaction with The effectiveness of the institutions of the Belfast/Good Friday Agreement 79 the emphasis placed on cross-community safeguards in the institutions, despite a recognition that these measures were a fundamental element of the Agreement. On that account, a measure of caution is still shown toward a drastic departure from those arrangements, with mixed levels of knowledge on the possible options for reform. Nonetheless, there is clear and compelling evidence that much of the public are further ahead of, and more open to change than, much of the political class. As such, we conclude that, given the right support, a formal informed public debate is essential to the substantive development of the Agreement’s institutions, and there is significant majority support for reform of some kind to the Strand One institutions. (Paragraph 147) Routes forward

We understand the logic in waiting for the institutions to get back up and running before embarking on a significant review and/or reform process. If the position of the two Governments and the majority of the Northern Ireland parties is that some measure of stability has to precede the Review—which as we have set out must be comprehensive and systematic—then we would accept that. However, we contend that there will be no perfect time to embark on a reform process and the fact remains that it is unclear when the institutions will return. In view of the danger presented by increased separation of opinion between the political classes and the general public, we urge the Government to take heed of the groundswell of opinion that is moving towards institutional change, act upon our recommendations to bolster the institutions’ viability in the short to medium term, and make preparations for the Review as soon as possible thereafter. Furthermore, given the recent history of collapses of the institutions, a review remains desirable after restoration to increase their stability and reduce the risk of future breakdowns.

Given the limited further evidence we received on the specific issue of ascribing legal and democratic legitimacy to any substantive reforms made to the institutions, we recommend that expert consultation on this issue should also form part of the Review. We also emphasise that the prospect of review and reform should not include any possibility of reversion to a time before the Agreement. With overwhelming legal and democratic legitimacy, it remains the only viable basis for government in Northern Ireland. The question at hand is when, and by what means, its necessary and foreseen evolution should be instituted.

The potential for meaningful, substantive engagement with civic society has already been formally acknowledged by both governments and the Northern Ireland parties as a means of finding a pathway through Northern Ireland’s most intractable issues. Citizens’ assemblies have the potential to empower people to find solutions and reach across deep divides in a way which politicians—except perhaps in the case of events leading up to Good Friday 1998—rarely can. We regret that past provisions made for formal civic engagement have largely failed to get off the ground, but we are encouraged by the commitment made in New Decade, New Approach toward the idea’s rejuvenation.

Accordingly, we urge the Government to begin preparations for establishing a Northern Ireland Citizens’ Assembly. Its first undertaking should be to examine, alongside the 80 The effectiveness of the institutions of the Belfast/Good Friday Agreement Review, the issues of institutional reform discussed in this inquiry and it should aim to report its findings to the Review authority before any such body concludes its work. (Paragraph 162) The effectiveness of the institutions of the Belfast/Good Friday Agreement 81