Austen Morgan is a barrister in London and Belfast.  He is due to publish 'The Belfast Agreement': a practical legal analysis in November 2000; this is available through his web-site and he is contactable at his e-mail address, or by post at 76 Inderwick Road, London N8 9JY, or by phone at 020 8341 4999 or 07770 947 421.

Introduction

After 30 years of republican and loyalist violence, NI remains a polity in a critical state.  There's a great deal of hope among the assembled white coats; but the questions remain: is there sufficient popular will on the part of the patient to overcome sectarianism?; and do the physicians and surgeons possess the skills to manage the disease if not effect a cure?

Greedy nationalism

A reasonable observer would say that the Belfast Agreement (on which I am about to publish a legal text book) means:

• the end of the Irish territorial claim, and associated nationalist irredentism;

• full practical acceptance of UK sovereignty in NI (with freedom of expression for united Ireland aspirations);

• power sharing, or partnership, devolved government along side Scotland and Wales;

• inclusiveness for terrorists who have crossed the bridge to democracy, with exclusiveness in reserve;

• practical north-south cooperation in a greater these islands context (the BIC) within the EU;

• and a miscellany of rule of law issues: police reform and prisoner releases associated with decommissioning and internal security.

Sinn Féin never signed up to the Belfast Agreement.  Yet it has succeeded (partly due to an unthinking media and a feeble intelligentsia) in portraying itself unctuously as the party of peace.  The republicans, without blushing, represent the Belfast Agreement as transitional to a united Ireland – and talk twaddle about all-Ireland institutions.

By ideological steaming, the republicans succeeded in evading the obligation of decommissioning.  This is most certainly a part of the Belfast Agreement (stemming from the 1993 Downing Street Declaration) .  Even if decommissioning had not been express, disarmament would have been implied by international law (and then UK and Irish domestic law) as a constitutional necessity. 

What of constitutional nationalism, those who opposed political violence in the 1970s and 1980s? 

If Hume-Adams represents the head, the SDLP fish has been rotting tragically since 1993.  In the talks, it looked like UUP agreement with the SDLP would lead to Sinn Féin being left to sink or swim.  Subsequently, Seamus Mallon, as deputy first minister, has put the protection of Sinn Féin above the interests of his party (evident in the way he joined the rush from the Hillsborough declaration of 1 April 1999 on decommissioning and devolution, allowing an isolated Sinn Féin to turn the tables and corner the UUP in July 1999).

As for the Irish government, it has ignored the Belfast Agreement in favour of an increasingly primitive nationalism: see the extraordinary Brian Cowen –aka BIFFO-, whose solidarity with Sinn Féin offends unionists (if not the SDLP).  Fianna Fáil, however, may simply be trying to retain its domestic monopoly as the republican party.  It is truly astonishing that, when Sinn Féin ratted on decommissioning after devolution, Peter Mandelson – faced with hysteria from Dublin – decided to effectively drop the obligation.  This is contrary to the modern child-rearing philosophy (which may also apply to dogs called Bobby): namely that one should reward good boys and girls and not physically punish bad behaviour.

  Sinn Féin left political messes on the ministerial carpet last winter (including the RVH versus City Hospital fiasco).  With the minimal concession of inspection (whose import remains to be assessed), Martin McGuinness and Bairbre de Brún were allowed back unconditionally on 30 May 2000 to do as they want in NI's strange – one minister/one policy – administration.

The greening of Dublin, which persists in trying to achieve practical joint sovereignty, is evident in the following three positions (none of which stems from the Belfast Agreement):

• one, support for the Sinn Féin-inspired residents groups in Derry, Belfast and Portadown (active since the 1994 IRA ceasefire) abusing freedom of peaceful assembly;

• two, calls to implement the Patten report on policing in full, even though the former governor was not even a twinkle in Mo Mowlam eye when NI voted on 22 May 1998;

• three, the question of flags (which also dates from the publication of the Patten report on 9 September 1999).

While the Irish government has also taken a Sinn Féin line on terrorist prisoners in NI, it has (almost certainly) breached its obligation under the Belfast Agreement by refusing to release the McCabe four.

Fortunately, there is a possibility within a year of a new rainbow coalition under John Bruton, working with a second Blair government.  I would recommend the following six changes in NI policy (to accord with the Belfast Agreement):

• one, abandon the support for northern nationalists position in favour of evenhandedness towards all the people of NI;

• two, treat NI as a neighbouring state to state issue, and not an opportunity for domestic nationalist politicking;

• three, operate the framework convention for the protection of national minorities, in NI and the ROI, considering whether NI reforms could also benefit the Irish state;

• four, open a consulate general in Belfast, as in Edinburgh and Cardiff (and allow the Windsor House BIIC secretariat to be moved to Dublin or London or both);

• five, treat the north-south bodies as the international organizations they are, and devote equal energy to east-west practical cooperation;

• six, leave the government of NI to the assembly parties, and concentrate upon the bilateral relations London wishes to construct with Dublin.

Stupid unionism

Stupid unionism is principally the DUP, even though Peter Robinson is one of the most intelligence politicians in NI.  Ian Paisley, now in the early stages of political senility, can be criticized on three grounds: one, his concept of the Ulster people contains few if any catholics; two, his antiquated Britishness helps undermine NI's union with a moderate post-imperial GB; and three, his evangelical protestantism – satirized in Spitting Image – is at complete variance with secular modernity.

  This may help the big man (and Ian Og) among unsophisticated rural Ulster protestants; it does nothing in London, Washington or even Brussels to get the majority community democratic recognition.

Mention should also be made of Robert McCartney: the secular unionist who graces orange anti-Agreement platforms (while taking pride in his distance from paramilitarism); the integrationist who spends more time at Parliament Buildings than Westminster; the democrat who talks about the pro-union vote; and the party leader whose hubris lost him all his assembly colleagues.  McCartney's legal acumen has not lain in constitutional law, and schoolboy reading of Isaiah Berlin hardly makes for intellectual stature. 

As a long-time admirer of Conor Cruise O'Brien, I should comment on his adulation for Robert McCartney.  O'Brien is the Irish state's pre-eminent intellectual.  Some of what he says about a sinister Sinn Féin is true.  But it is an abdication of moral responsibility to seek to realize one's worst fears.  His preferred solution – a united Ireland through unionist surrender in order to deprive Sinn Féin of political victory – casts doubt on O'Brien's recent judgment. But nothing he may say or do in his twilight years will dent the intellectual and cultural stature in Irish history. 

Before leaving stupid unionism, I should comment on the Robinson/Dodds interpretation of the Belfast Agreement.  Peter Robinson, with rotating acolytes in two of the NI departments, did nothing more than exploit a provision of the suspension act.  That makes the DUP the moral equivalent of the political face of republicanism.  It's hardly surprising that the SDLP, and Sinn Féin, have been trying to use the executive committee to control such antics (no inclusiveness there for anti-Agreement unionists).  The ideal non-sectarian solution would be, of course, to impose collective responsibility on the nationalist and unionist extremes, through the construction of a centre-dominated administration: as was envisaged by the architects of the Agreement.

Paisley and McCartney share the cause of politically destroying David Trimble (no pan-unionism there).  Without him, as Senator Mitchell (but not nationalist Ireland) recognize, there would have been no Belfast Agreement. 

However, the 71 per cent 'yes' vote in the NI referendum masked a potentially fatal 50/50 split in the majority community.  The fact that the ROI referendum produced a 94 per cent 'yes' vote on a 56 per cent turnout, proves that the balance of the Belfast Agreement was wrong.  The people of the Republic (if not Fianna Fáil rednecks in the government) cared little about a united Ireland; greater clarity about the meaning of Irish and UK constitutional law would have strengthened the Trimbleistas against the emerging 'no' camp in the referendum.  And allowed the UUP to do better than the 28 seats it obtained in the assembly elections in June 1998.  These (plus the PUP's two) gave David Trimble a bare majority of the 58 designated unionists (which quickly became 29/29 when Peter Weir lost the whip). 

Before David Trimble had become first minister, he had been politically wounded.

Some of the reasons for voting 'no' on 22 May 1998 had, and have, merit.  The assurances of Tony Blair appear to have been accepted by a decisive number of unionists.  Given the labour party refuses to organize in NI, the prime minister will not have to bear any electoral consequences.  The manifesto commitments of the UUP have also come under scrutiny, and David Trimble, if he does not suffer in South Antrim on 21 September, will not be looking to improve his position in the UK general election expected next year. 

However, he should be criticized fairly.  It is too early to say whether the terrorists in government have been reconstructed as democrats.  The key question is: has decommissioning now been replaced with inspection (as Bertie Ahern, but not Tony Blair, says)?  Police reform for peacetime is necessary, and, partly due to Peter Mandelson, there is more of a unionist than nationalist agenda in the Police Bill.  David Trimble had little responsibility for prisoner releases: that was down to Mo Mowlam, and, because they had the opportunity to affect the process, the NI courts.

If David Trimble started with only 50 per cent of the majority community, he now has about half his own party behind him; he leads a minority of the majority.  While stupid unionism is partly responsible, so also is the awe-inspiring Presbyterian democracy (incomprehensible to catholic nationalists) which saw, at one point, a post-dated letter of resignation by the first minister held by the party president.  For a fundamentalist, the issue is simple: David Trimble is not in the right camp.  For anyone interested in practical politics, it is: would NI be in a better position today if the Belfast Agreement had been voted down?  That's a more difficult calculus to made at any point in time.  It depends upon what happens tomorrow and the day after (it being the future, not the past, we have an opportunity to control).

It's more difficult to wrestle with the pan-nationalist consensus by working the institutions (Trimble), than uttering principles and platitudes from the sidelines (Paisley and McCartney).  Sinn Féin is a disciplined revolutionary organization, the SDLP a popular nationalist party, and the Irish government has the prestige of a sovereign state.  The UUP is reputed to have ruled – or misruled – NI for 50 years.  Looking at the party today, I think I need to revise that period of history.  The UUP and SDLP are about equally matched as amateurs in government (though the better ministers are emerging on the nationalist side).  The Irish government is not far from being a paper tiger.  And Sinn Féin does make mistakes.  It only takes an equal but opposite democratic force – based genuinely in the majority community, and not solely among exotic refugees from catholic nationalism - to ensure that the risk of terrorists in government does not become the subversion of the rule of law.

Big daddy NIO

Lord [William] Armstrong once referred to the civil service as the hidden bit of the constitution, and Peter Hennessy coined the phrase 'the permanent government of Britain'; the NIO, with its country cousins, is the permanent government of NI. 

Practising the revisionism I mentioned earlier, NI was run by faceless bureaucrats from 1921 (and not unionists out to get nationalists), with London keeping Belfast on a long lead.  No constitutional lawyer has spotted that powers in Belfast, unlike in Dublin, were not given to ministers accountable to parliament.  With direct rule in 1972, the officials came to the fore (rarely troubled by visiting British ministers).  Devolution was meant to be about the transfer of power from the centre of the UK to the periphery, but the country cousins – on a new long lease from London – still run the province.  The departments were allowed to retain their powers.  The head of the NICS presides over the permanent secretaries in a weekly cabinet of officials: no terrorists there, and no abstaining anti-Agreement unionists. 

These are the officials who advised the two Sinn Féin ministers, on extremely dubious legal grounds, that they could use the royal prerogative not to fly the union flag on the sovereign's designated days.  I suspect they didn't advise Peter Robinson and Nigel Dodds about rotating ministers in the DUP's two departmental preserves.

This raises the question of what the NIO's strategy is?  I don't happen to believe that it is trying to construct a united Ireland, which is why I'm not a stupid unionist.  However, a mixture of English protestant guilt, post-imperial managing of decline, international embarrassment about British rule (and unionism), and personal cowardice has led – as the Cadogan Group argued – to a repeated acceptance of nationalist definitions of the problem (though the Brits, few of whom go native, are generally intolerant of lyricism as a substitute for practicality). 

The integration of these islands was abandoned irrevocably in 1919 as part of the partition settlement.  GB then dispensed with unionist rule in 1972.  It accepted the need for an Irish dimension at the same time.  And power-sharing devolution has remained the policy throughout.  The republicans are revolutionary separatists, who stepped into a political crisis in 1969-70; the aim of policy was initially to get them out: it then became weaning them off violence.  The Belfast Agreement is Sunningdale mark II, but with the difference that the focus is no longer the centre but the extremes.  The Agreement is, however, a great deal less green than Sunningdale; which raises the question: what did the IRA gain, and its volunteers die for, between 1972 and 1997 – a restored Stormont assembly? 

Charles Haughey talked about NI being a failed political entity, but the Irish state (one barely remembers) called the IRA subversives, banned them from the airwaves, and violated human rights just as much as John Bull.  The biggest 'appeasers' have been in Dublin.  The strategy of boxing the republicans in has involved, less the resolute imposition of democratic norms, and more the joining in a general anti-British strategy: thus the sinister way Sinn Féin, as long as it has not gone back to full-scale war,  has driven NI policy in Dublin.

  The UK state has been driven, not directly by Sinn Féin/the IRA, but by the Irish state (which London persists in considering crucial to any solution).  Is London engaged in appeasement?  It is difficult to resist the answer 'yes'.  The aim of policy is an end to violence, especially in GB and particularly in the City of London (though I don't want to contribute to republican mythology – such as the Canary Wharf bomb – reproduced by stupid unionism).  That's why we have the baroque constitution of the new NI (with not one but three strands), designed to distract republicans from what they do best.  If the asinine behaviour of the DUP in the assembly keeps Sinn Féin there playing martyrs to the cause, Tony Blair and Gordon Brown will consider £9b well spent.  If Martin McGuinness and Bairbre de Brún behave like good ministers (leaving the Derry butcher boy less time to run his private army), the NIO will tell the world devolution is working well in NI.

I've always considered the problem of incorporating Sinn Féin as being based on three clear propositions.  If it is still attached to violence, it should have no place in a democratic government.  If it is crossing the bridge from terrorism to democracy, then the onus is upon the republicans to prove they are reformed characters.  If it has genuinely given up the armalite and ballot box strategy, its 20 representatives are entitled to their say among the 108 MLAs. 

If – the key question – the UK government believes the republicans have given up violence, why does the NIO persist in making concessions?  Much government policy reveals that the IRA is still a threat, and/or that ministers act as if there were. 

An infantile disorder

  The 'class of '68' was a general anti-authority revolt by baby boomers in a number of leading states.  In GB, it acquired power in education, the media and the community and voluntary sector.  It took control of the labour party after the Wilson and Callaghan governments, producing Bennism and Ken Livingstone's GLC.  Mrs Thatcher turned on these political neophytes in 1986, gratifying them with the status of victim.  But it was new labour, and a younger generation of meritocrats, that finished off loony leftism after the 1987 and 1992 electoral defeats.  One of the executioners was the prince of darkness.  The so-called social movements, who squandered town hall resources, destroying the very idea of public services, showed that, when the plug was pulled, the community had no need or desire for many of these voluntary organizations.

NI was different.  There was no political centre, which might have helped the rising catholic middle class integrate.  Guilty protestants often became more anti-unionist.  The NIO perforce had to create local leaders, with quangos and funding, to run NI.  When Sinn Féin started to use the ballot box, it became necessary to incorporate so-called community workers (republican and then loyalist).  Fellow travelling became almost respectable, and Sinn Féin learned the value of what Stalin had called useful idiots. The IFI brought funds from overseas, and the first IRA temporary ceasefire produced European peace money.  A veritable nomenclatura was created on the western edge of Europe, at the point at which apparatchiks were being scattered with the collapse of communism. 

This social caste is parasitic upon the state (a state with a strong masochistic bent).  Attempts to measure the voluntary and community sector's contribution to alleviating social exclusion, or generating genuine productive activity, are not welcomed.  The nomenclatura has become an independent force in NI, concerned essentially with its own preservation.

Leading lights were swept into the EC and the NIHRC by the Belfast Agreement, its moderate provisions in this area being inflated by the nomenclatura into a communalist equality agenda.

The EC, of course, has respectable origins in fair employment and other anti-discrimination legislation.  But catholic allegations of discrimination continue to be integral to national aspirations, and those by women, ethnic minorities etc. associated with feminism and other nationalist ideologies.  Discrimination does exist, and should be deal with legally and administratively.  But the operation of the labour market, to say nothing of the global economy generally, is more complex than these visionary social engineers appear to believe. 

Though the Belfast Agreement prescribed an integrated EC, the biggest lobby of parliament during the NI Bill was from the various sectors of the equality industry: they all wanted to preserve their own patches.  This even continued after Westminster legislated.  Though the EC is a public body, governed by anti-discrimination legislation, it jumped on partisan Patten bandwagon, arguing enthusiastically – no doubt as a precedent - for reverse discrimination to the police.  An argument that such 50/50 catholic/protestant recruitment will be contrary to European law (which has been accepted by the government) was pooh poohed by the EC.  The NIO, faced with tribal range, and trying to cover up Patten, and its own, mistake, is now pretending to seek amendments in the relevant anti-discrimination directive awaited by unprotected groups throughout the EU.

The NIHRC is a new body.  But it was created by Mo Mowlam on the basis of the fellow-travelling CAJ.  This was in spite of parliamentary assurances that the Commission would be representative of the community as a whole.  Nationalists have long tried to internationalise NI, the better to weaken UK sovereignty incrementally.  The CAJ, and now the NIHRC, promotes what they call international human rights, oblivious of the nature of international law and its relationship with municipal law (as the NI courts are showing).  The NIHRC has refused to campaign on the right to life, even though 80 to 90 per cent of the murders in NI in the last 30 years were carried out by paramilitaries, the majority by the IRA.  It is also opposed to freedom of peaceful assembly, because the loyal orders could possibly use the HRA 1998 against the residents groups exploiting territorial segregation.

The voluntary and community sector will also dominate the Civic Forum, due to be announced shortly. 

Following the assembly elections in June 1998, the NIO was more concerned about the Civic Forum, and about giving it the Senate chamber at Stormont.  And this in a polity wracked by terrorist violence, where the priority should have been the elected representatives; self-government is badly needed.  Fortunately, the assembly took the view that people who had failed to get elected, or declined to stand, would not be a superior house.  Nevertheless, the nomenclatura will have just under a third of the seats in the Civic Forum (18 of 60); the social partners are to have 14 seats between them, with all other sectors of civil society sharing a further 22 seats.

Conclusion

Some navigational notes: