The Belfast/Good Friday agreement’s three strands have not outlived their usefulness

Voters in Northern Ireland go to the polls tomorrow to elect a new Assembly. In the weeks which follow, attention is likely to be focused on reviving the Stormont institutions following the recent instability surrounding the Protocol and the resignation of the First Minister. However, the other institutions of the Belfast/Good Friday Agreement, designed to manage the British–Irish and North–South relationships, are underused and underdeveloped. Conor J Kelly and Etain Tannam argue below for the robust use of these strands of the Agreement to provide more constructive forms of political engagement.

The recent collapse of the Northern Ireland Executive and divisions over the Protocol have led to fresh questions about whether the Belfast/Good Friday Agreement has outlived its usefulness. This blog does not aim to defend or criticise the Protocol, but instead shows the continued importance of the 1998 Agreement for a divided society in the Brexit context. In particular, we highlight the continued relevance of the Agreement’s ‘three strands’ for democratic governance in light of the Protocol. Amidst deep concerns over whether it will be possible to form a new Executive after the elections to the Northern Ireland Assembly taking place this Thursday, the importance of these core features of the Agreement needs renewed emphasis.

Although the 1998 Agreement has been a great achievement in bringing about peace, it has been less successful in bringing about stable government. In addition, it has always faced challenges from some unionist critics and those most opposed to the Protocol are also opposed to the Agreement. The recent stand-off between the UK government and European Union on the Protocol has made those critics all the louder. Yet, many of the faults with politics since 1998 lie not in the Agreement itself, but in the failure to implement it robustly.

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The Constitutional Reform Act 2005 led to greater judicial independence: politicians and parliament must continue to support it

As part of an ongoing inquiry, the Lords Constitution Committee has sought evidence as to whether ‘the amendment of the role of the Lord Chancellor by the Constitutional Reform Act 2005 (CRA), and the resulting separation of powers between the judiciary and the Government, [have] been successful’. Robert Hazell argues that the 2005 reforms led to greater judicial independence, a political achievement that requires continuing support from politicians and parliament.

The House of Lords Constitution Committee is currently undertaking an inquiry into the role of the Lord Chancellor and the Law Officers, in which it seeks to answer a number of questions, including whether ‘the amendment of the role of the Lord Chancellor by the Constitutional Reform Act 2005 (CRA), and the resulting separation of powers between the judiciary and the Government, [have] been successful’. Through written evidence, submitted with Professor Kate Malleson, I have attempted to answer that question. Our answers were based upon the main findings and conclusions of a three-year research project on the Politics of Judicial Independence, funded by the AHRC. The research explored the impact of the greater separation of powers introduced by the Constitutional Reform Act 2005 (CRA). Our principal conclusion – as explained in our 2015 book on the subject – was that judicial independence and judicial accountability have emerged stronger, not weaker; but that greater separation of powers requires increased engagement by the judiciary with other branches of government.

The changes made by the Constitutional Reform Act 2005

Until 2005 the head of the judiciary was a Cabinet minister, the Lord Chancellor. In an extraordinary breach of separation of powers, he could also sit as a judge in the UK’s highest court. The CRA removed the Lord Chancellor as head of the judiciary, handing that responsibility to the Lord Chief Justice in line with an agreement struck in the Concordat of 2004. The division of powers between the executive and judiciary was further refined in 2008 in a Framework Document for the management of the Courts Service (revised and updated in 2011 to incorporate the Tribunals Service). The CRA also created a new Supreme Court, and established the Judicial Appointments Commission.

The new politics of judicial independence are more formal, fragmented, and politicised

The old politics were informal, depending on regular meetings between the Lord Chancellor and senior judges; closed, in that these were virtually the only contacts between the judiciary and the government; and secretive, with both sides preserving each other’s confidences. They were also consensual and conservative, in that neither side wanted to change the system. The ‘new’ politics, by contrast, are much more formal. The CRA required more formal structures and processes to handle the relationships between more separate branches of government. We now have the Judicial Appointments Commission, Judicial Appointments and Conduct Ombudsman, and Judicial Conduct Investigations Office: all products of the CRA. The new formal processes include regular meetings between the judiciary and other branches of government, with the innovation of six-monthly meetings between the LCJ and Prime Minister, the introduction of regular meetings with senior officials in parliament, and annual appearances by the LCJ and President of the Supreme Court before the Constitution Committee.

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Partygate illustrates the fundamental constitutional responsibility of government MPs

Boris Johnson and his Chancellor have now been fined for breaking lockdown restrictions. Both have misled parliament over Downing Street parties. These are clear breaches of the Ministerial Code, which should lead to resignation. If the PM refuses to police the Code, says Meg Russell, that constitutional responsibility rests with MPs. A failure to exercise it would seriously undermine both the integrity of, and public trust in, the democratic system.

The Prime Minister and Chancellor of the Exchequer have been issued fixed penalty notices for breaching COVID-19 lockdown rules over parties in Downing Street. This means that they have broken the Ministerial Code on two counts. Paragraph 1.3 emphasises ‘the overarching duty on Ministers to comply with the law and to protect the integrity of public life’. But the police have concluded that the law has been broken. Paragraph 1.3c of the Code then states that:

It is of paramount importance that Ministers give accurate and truthful information to Parliament, correcting any inadvertent error at the earliest opportunity. Ministers who knowingly mislead Parliament will be expected to offer their resignation to the Prime Minister.

But it has been clear for some time that Johnson breached this rule, by repeatedly insisting in the House of Commons that all regulations were followed, and denying knowledge of Downing Street parties, when it subsequently emerged that he had attended such gatherings. Multiple sources have catalogued these denials. Rishi Sunak also said on the parliamentary record that he ‘did not attend any parties’.

But the final line of paragraph 1.3c is the rub. While both of these forms of breach would normally be considered resigning matters, the ultimate keeper of the Code is the Prime Minister himself. He has already faced down criticism over failing to uphold it in the case of bullying allegations against Home Secretary Priti Patel, which led to the resignation of the Independent Adviser on Ministers’ Interests. Both Johnson and Sunak have insisted that they are not going to resign, indicating that the Prime Minister is once again setting aside the Code – this time over multiple breaches, which are highly publicly salient.

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