Stormont: from rights-based safeguards to political vetoes – has the intention of the Good Friday Agreement been turned on its head?

Abstract

In a speech at the time of the 1998 Good Friday Agreement (GFA), Mary Robinson, then United Nations High Commissioner for Human Rights, remarked that the new Agreement was ‘conspicuous by the centrality it gives to equality and human rights concerns’. The GFA expressly provided that Executive and Legislative authority was to be ‘subject to safeguards to protect the rights and interests of all sides of the community’. Such safeguards included the codified incorporation of the European Convention on Human Rights (ECHR) into Northern Ireland law, undertaken through the Human Rights Act 1998 and the devolution statute. The GFA also provided for an ECHR+ ‘Bill of Rights for Northern Ireland’, envisaged as a similar set of objective human rights legal safeguards binding in a similar manner. In turn, these were to link into the flagship safeguard over the legislature – the ‘petition of concern’ (PoC) – the tabling of which was to trigger an Ad Hoc Committee on Conformity with Equality Requirements to scrutinise conformity with the ECHR and Bill of Rights. The GFA also led to Northern Ireland public authorities being bound by what became the ‘section 75’ equality duty, envisaged as an objective policy appraisal tool to equality impact assess whether proposed policies risked discriminatory detriment against nine protected grounds, and if so to prompt consideration of alternative policies.
This article will reflect, over a quarter of a century on, as to the fate of these commitments and subsequent developments. The Bill of Rights was never legislated for and remains outstanding. The PoC was ‘mis-legislated’ for to the extent it has never once been able to trigger the specialist committee. During the 2011–2016 mandate it became the veto of choice, being tabled over 100 times, including to block rights and equality-based measures. To a chorus of criticism from the Council of Europe, the ‘section 75’ duty also regressed following the invention and integration of ‘good relations’ impact assessments within its paradigm, which in turn provided a blocking mechanism for rights-based policy deemed politically contentious. Furthermore, a new veto over ministerial decision-making was introduced by the St Andrews Agreement, not grounded in objective-rights based criteria but rather on whether a decision was ‘significant’ or ‘controversial’. This ‘St Andrews Veto’ required such decisions to be taken by the full Northern Ireland Executive, with three ministers able to compel a ‘cross-community’ vote, and as such was used to veto proposals on same-sex marriage, reproductive rights and minority language rights. In 2014, legal certainty over a new minority rights veto in local councils (‘call in’) was also set back when a PoC blocked definitional secondary legislation. This increased the risk of call in becoming a further political veto over rights.
Combined, these developments prompt the question as to whether the intention of the GFA has been turned on its head. This article will further explore the experience of each of the mechanisms (ECHR/Bill of Rights; PoC; St Andrews Veto; Executive Agenda Veto; call in; equality impact assessments and the ‘good relations’ duty; and the revised Ministerial Code) and their impact on the governance and viability of Stormont.