Laws and treaties are rarely repealed, annulled or loudly declared dead. They simply lapse into abeyance and fade away. The same is now happening in classic whimper-not-bang fashion to the Belfast Agreement.
The agreement has legal force as Westminster legislation, primarily the Northern Ireland Act 1998, and as a treaty between London and Dublin. Both are being breached not just with increasing frequency but – more tellingly – with increasing indifference.
A landmark in obsolescence was apparently reached last week when secretary of state Karen Bradley imposed a Stormont budget through Westminster.
This was a major unprecedented breach of the 1998 Act, but it produced only a shrug of the shoulders, even from republicans, with Sinn Féin’s former Stormont finance minister declaring his party “relaxed” about what he conceded was an instance of direct rule.
The Irish Government, which has similarly called direct rule unacceptable, acquiesced without a word of protest.
Bradley's budget was deliberately cautious, and followed a year of lesser financial interventions by her predecessor James Brokenshire. Action was unavoidable to keep public services running after the collapse of February's Stormont talks, so it was easy to dismiss last week's legal breach of the agreement as just another regrettable necessity.
The real landmark was Bradley’s post-budget statement this week to the House of Commons.
Updating MPs on the Stormont crisis, she reaffirmed the principles of the Belfast Agreement – then announced the British government would consider “different arrangements” to devolution until an executive is restored, and invited the Northern Ireland parties “and others” to make proposals on how “local decision-making and scrutiny on a cross-community basis might be achieved”.
Managed jointly
This came close to quietly declaring the Belfast Agreement dead. Half the clauses in the 1998 Act relate to the precise operation of the Stormont executive and assembly. Tweaking just a few of those clauses after devolution last collapsed required the 2006 St Andrews agreement and its associated Acts of parliament – a careful and inclusive process managed jointly by London and Dublin.
Yet Bradley’s statement has unilaterally put the whole lot up for casual renegotiation, entirely at London’s behest, without even the decency of a legislative order to keep it grounded in the law.
The Belfast Agreement has three supposedly equal and interlocking “strands” – Stormont, the North-South institutions and the East-West institutions.
Bradley assured the Commons that in parking strand one “we will continue to work closely with the Irish Government in full accordance with the three-stranded approach”.
This claim does not add up. Irish Ministers form half of the other two strands, and Dublin has joint ownership, via the treaty, of the whole structure. London cannot unpick one strand on its own.
Like Brokenshire, Bradley is stretching devolution to save it by avoiding the formal introduction of direct rule. No matter how well intentioned, this is clearly counterproductive once the laws and treaties underpinning devolution are stretched to the point of being obviously broken.
Radical departure
The implication of Bradley’s call for a local scrutiny arrangement is a consultative assembly reviewing decisions taken by British ministers. This has been widely noted without any evident controversy despite being a radical departure from the agreement.
There might appear to be a precedent in the form of the shadow and transitional assemblies that met after the Belfast and St Andrews agreements to prepare for the formation of an executive. However, both those assemblies were given a firm legislative basis through the Northern Ireland Act, and both were created after agreements to form an executive.
If a shadow assembly is created specifically because there is no agreement it will inevitably become the new agreement – with no guarantee of ever delivering an executive. Northern Ireland’s politicians could be quite happy with a forum for complaint and divisive argument without the responsibility of governing.
A more accurate precedent for such an improvised consultative assembly might be the rolling devolution experiment of the 1980s.
In 1982, Margaret Thatcher's secretary of state James Prior reopened Stormont to scrutinise direct rule, with the intention of moving to full devolution. Referred to with wonderful aptness as the Prior Assembly, it was a fiasco: nationalist boycotted it, unionists grandstanded in it and Ian Paisley eventually had to be carried out of it by the police, kicking and screaming that RUC officers would be burned out of their homes.
Persuaded that devolution alone was not the answer, Thatcher signed the 1985 Anglo-Irish Agreement, giving Dublin a consultative role in Northern Ireland – the very thing falling by the wayside now.
Treaty mechanism
The Taoiseach said this week that Dublin would suggest its own proposals, and “whether it is done through the auspices of the British-Irish governmental conference or not is not the most important thing” – although the conference is the treaty mechanism to do it.
For this to be forgotten, for none of it to have any legislative basis and for nobody to bat an eyelid says it all.
Less than two years ago judges were still grandly interpreting the Belfast Agreement as “the constitution of Northern Ireland”. At this rate, two years from now, it could look as archaic as the law against eating the queen’s swans.