- The 1998 Agreement is vague and open to interpretation – and contains no clear details about what should happen if Stormont collapses.
- The Agreement does not expressly forbid direct rule.
- Whether or not “shared sovereignty” is necessary to respect the “multilateral spirit” that led to the Agreement is a matter of interpretation, but such an intepretation does not flow from within the text itself.
- It is fair to suggest that the Agreement doesn’t “open the door” to joint sovereignty – but nor does it close that door either. Joint sovereignty would not amount to a “clear breach”.
- The principle of consent explicitly deals with Northern Ireland’s constitutional position as part of the UK. Whether or not some form of joint sovereignty would clash with this principle would depend on the specifics. It is hard to argue that the concept of joint sovereignty removes this principle entirely.
On April 4, SDLP MP Claire Hanna was quoted in the Irish News, saying:
“[We] should also be clear that one-sided direct rule simply isn’t compatible with the [Good Friday] Agreement and if we reach that point then a new form of shared sovereignty is the only way to respect the multilateral spirit that brought it about.”
In response, DUP MLA Emma Little-Pengelly said:
“There is NOTHING in the Agreement that opens the door to joint sovereignty. Indeed, it would be a clear breach of the Belfast (Good Friday) Agreement and would remove the key consent guarantee it contains.”
The 1998 Belfast/Good Friday Agreement contains many specific proposals for Northern Ireland which are clear and definitive.
It is vague in many other ways, and open to interpretation. It also assumes that the Assembly and Executive will function. The text contains no provisions for what should happen if and when devolved government collapses.
The claims above are largely interpretive. To some degree, they are a matter of opinion. However, while some interpretations are well supported by analysis of the document, others are a stretch – or maybe even plainly wrong.
Regarding Ms Hanna’s claims, there is nothing in the Agreement forbidding “one-sided direct rule” so it is hard to argue that direct rule is incompatible with the text.
It is a matter of opinion whether “shared sovereignty is the only way to respect the multilateral spirit” that led to the Agreement. The document doesn’t forbid joint sovereignty – but nor does it really suggest that this is the “only way” to uphold its founding principles in the absence of a functioning Assembly and Executive.
Regarding Ms Little-Pengelly’s claims, while it is fair to suggest that the GFA doesn’t “open the door” to joint authority, it is also difficult to argue that the text forbids it. As such, joint authority would not be a “clear breach” of its terms.
The principle of consent explicitly relates to NI’s continued constitutional status as part of the UK. How this would apply to any model of joint authority is largely a matter of opinion – and would depend on the specific circumstances of a given model. Claiming that the broad concept of joint authority would “remove the key consent guarantee” is misleading.
The 1998 Agreement is known for being “constructively ambiguous”. It contains both explicit provisions and implicit principles, with the latter open to different interpretations.
The claims made by Ms Hanna and Ms Little-Pengelly centre on the interpretability of the Agreement.
Nowhere does the text of the Agreement contain the terms – or concepts – of “shared” or “joint” sovereignty. Nor does it include instructions for what should happen if/when the devolved power-sharing institutions collapse.
Judging the veracity or otherwise of claims like those above will always be, to some degree, a matter of perspective. Nonetheless, by analysing the most relevant sections of the legal text, assessments of their accuracy can be made.
“[One-sided] direct rule simply isn’t compatible with the [Good Friday] Agreement and if we reach that point then a new form of shared sovereignty is the only way to respect the multilateral spirit that brought it about.” – SDLP MP Claire Hanna
The Agreement assumes that its Strand One institutions will be operational. The text does not address what may or should happen if/when devolved government collapses. It makes no explicit statements regarding the sovereignty, or the responsibilities, of the UK Government to act in devolved matters if Stormont is not operational.
However, the text does state that the power of the “Westminster Parliament” to “make legislation for Northern Ireland… remain[s] unaffected” by its provisions.
This suggests that the principle of “parliamentary sovereignty” (whereby Westminster can make or unmake any rule it so chooses) continues to apply in Northern Ireland – meaning that “one-sided direct rule” is, at the very least, not prohibited by the 1998 Agreement.
The text again makes no explicit mention of “shared sovereignty” but an explicit role is created for the Irish Government; Strand Two of the Agreement establishes the North-South Ministerial Council (NSMC). The NSMC operates on the basis of bilateralism between the authorities on either side of the land border – and therefore itself requires a functioning NI Executive.
Outside of the bounds of the NSMC, the closest the text comes to suggesting a possible role for the Irish Government in the governance of Northern Ireland is in a reference made to its “special interest” in NI.
Under provisions in Strand Three relating to the British-Irish Intergovernmental Conference, the Agreement recognises the “Irish Government’s special interest in Northern Ireland” and mandates “regular and frequent meetings’ to take place on “non-devolved Northern Ireland matters” where these are of “mutual concern” to the Irish and British governments.
What this means is that – similar to the question of compatibility direct rule – the 1998 Agreement does not prohibit the Irish Government having a role in the governance of Northern Ireland in areas where the UK Government retains sovereignty, but neither does it propose this to be the “only way” forward.
And, while Ms Hanna does suggest joint authority is the only alternative to a functioning Assembly that respects “the multilateral spirit” that created the Agreement – rather than the Agreement itself – this is purely a matter of opinion, and is not clearly supported by the text.
“There is NOTHING in the Agreement that opens the door to joint sovereignty. Indeed, it would be a clear breach of the Belfast (Good Friday) Agreement and would remove the key consent guarantee it contains.” – DUP MLA Emma Little-Pengelly
As already outlined, the 1998 Agreement makes no reference to “joint sovereignty” – including its legitimacy or otherwise – and nor does the Agreement make clear what ought to happen if the Strand One institutions collapse.
As set out above, the 1998 Agreement does contain “recognition” of the Irish Government’s “special interest” in Northern Ireland.
It is also worth noting that provisions in Strand Two allow for executive action to be taken on a North-South basis between authorities in Ireland and Northern Ireland without necessitating input or oversight from (central) UK Government.
Whether the text “opens the door” to joint sovereignty is a matter of opinion – but it is hard to assert that the Agreement leaves that door closed, or indeed that joint sovereignty would be a “clear breach” of its terms.
Regarding sovereignty and the ‘key consent guarantee’ the 1998 Agreement explicitly affirms Northern Ireland’s status “as part of the United Kingdom” and guarantees the continuation of this constitutional position unless and until “a majority of the people of Northern Ireland” decide otherwise
It is important to distinguish between the idea of a permanent change in NI’s constitutional status as part of the UK and that of “joint” or “shared” sovereignty in the absence of a functioning devolved government. While the 1998 Agreement makes explicit provision on the former, it is unclear on the latter.
Whether or not “joint sovereignty” would or would not breach the principle of consent is a matter of opinion – and, even then, this would depend on the specific nature of the joint arrangements being proposed.
Stating that the wider concept of joint authority would “remove” the 1998 Agreement’s “key consent guarantee” is, therefore, misleading.