Speech by Mark Durkan at the British Irish Assocation Conference, Oxford, (5 September 2008)

Speech by Mark Durkan, then leader of the Social Democratic and Labour Party (SDLP), at the British Irish Assocation Conference in New College, Oxford, (5 September 2008).

"When I was recently asked to step into this breach, I was told that this session was to provide some retrospective thoughts 10 years on from the Good Friday Agreement and to speculate on possible future prospects.

Here are 10 Recollections and Reflections

1. The concept of a joint office of equal First Ministers was inspired by the pictures of Seamus Mallon and David Trimble consoling families in Poyntzpass, Co Armagh after the LVF shot dead two best friends – a Catholic and a Protestant – in Canavan’s bar on 3 March 1998, only weeks before the Agreement. The moving story of Damian Trainor and Philip Allen’s friendship touched us like a parable for a new society.

Under the Good Friday Agreement the Ministers had to be jointly nominated - open to all – and jointly elected by the Assembly. The law change from the St Andrews Agreement removed election by the Assembly and replaced it with separate nomination exclusive by two parties. This has contributed to the apparent working sense in the Office of First Minister and Deputy First Minister that they are not really accountable to the Assembly. If anything, as the debates on victims and survivors’ commissioner’s bill showed, they seem to believe the Assembly should now answer to them.

2. The Agreement provided not only for the proportional representation election to the Assembly but also for mandate-related inclusion in the Executive. It was the SDLP who proposed d’Hondt (although open to arithmetic variants) as a means of allocating ministerial appointments whereas others only wanted this form of selection for the filling of committee posts.

We moved to d’Hondt and persuaded others to do likewise on a number of grounds.

· It would provide both an offer and a challenge to everybody regardless of political standpoints or attitudes to the Agreement itself.

· We emphasized and others accepted that for inclusion to properly work, we needed to avoid parties being able – or feeling obliged – to vet or veto each other’s nominations for office.

· D’Hondt could help to secure wider cross-party support for the Agreement. A voluntary coalition model might only be endorsed by the parties who hoped to be in the first government.

· This form of open inclusion could be seen as more stable, with the institutions themselves being less vulnerable because of potential future electoral swings.

· We could argue as we did – and now see – that the Agreement would provide for partnership and co-operation not just between Unionist and Nationalist but also between those who voted yes and those who voted no.

· All of these factors would serve to maximize acceptance in the joint referendum, which was of course the brainchild of John Hume. A narrowly passed Agreement and a tight majority administration was not what we wanted or the community needed.

Therefore inclusion and the means of it run to the core of the Agreement and the scale of its democratic legitimacy. However, we now have parties wanting to by-pass these very inclusion provisions if it comes to appointing an additional minister – in this case for justice and policing. They might mutually agree to veto each other but they have no right to veto another party’s democratic entitlement under the Agreement.

3. The SDLP resisted all attempts to make “decommissioning” a condition of ministerial office in Strand One. We were alarmed when, later, the decommissioning text cross-referred to the exclusion provisions of Strand One. We immediately highlighted the dangers to both governments only to be told by the Irish Government that it was their wording and all would be ok.

At the time parties were told that the language of “using… influence…” on decommissioning was to accommodate Sinn Fein who were saying that clearer mandatory wording would make it harder to them to sell any agreement. We were also told by both Governments that they had “real commitments” from Sinn Fein. Government figures also told parties that the end-date for prison releases of the end of June 2000 was deliberately later than the deadline for decommissioning of May 2000. The contradictory interpretations and stances on these last two points have been echoed in the contested versions of the St Andrews Agreement regarding the devolution of policing and justice.

4. The two governments never proved to be particularly authentic or authoritative as supposed guarantors or interpreters of the Agreement’s provisions. The October 31 1998 deadline – their deadline – for the institutions being fully established was allowed to pass and all the other slippage followed. They opted for stilted choreography and stop-go language crawls rather than clearly assert two clear points:

- That decommissioning was a requirement of the Agreement and needed to happen by its date.

- That decommissioning was not a precondition to the inclusive institutions which should have been established by their specified date.

Tony Blair’s side-letter to David Trimble on the day of the Agreement and his well-intentioned but ill-considered blackboard pledge during the referendum was really the start of this rot.

This adhocracy begat a working indifference to some of the Agreement’s key provisions and principles. For example at Leeds Castle, in the so-called comprehensive Agreement of December 2004 and in the draft legislation in the run-up to St Andrews the two governments were providing for the SDLP and UUP to be excluded from Ministerial Office if we did not vote for the DUP and Sinn Fein nominations for First and Deputy First Minister. They were prepared to completely violate the Agreement’s promise of democratic inclusion as the price of a deal between the two largest parties. It was only the SDLP’s own negotiations with the DUP before we got to St Andrews which stopped this.

5. Despite Seamus Mallon’s persistent efforts, other parties, for different reasons, did not want to negotiate the policing issue. This necessitated the creation of an independent commission as part of the Agreement. The success of the new beginning to policing has vindicated the Patten Commission and reflects well on the leadership of the PSNI, the Policing Board (not least its independent members) and the good work of the Police Ombudsman’s office. The SDLP, especially our Policing Board members, can take credit for driving the implementation of Patten. We resisted flawed legislation from Peter Mandelson and insisted on the pace and pattern of change set out by Patten. The SDLP helped to ensure, against the odds, that the new policing arrangements, for some time, were actually the most successful working feature of the Agreement. Although we did this under attack – often sinister in tone and even gesture from Sinn Fein and physical threat and attack from dissident republicans.

6. I have always seen the devolution of justice and policing powers to the Assembly as the consummation of the new political dispensation and the new beginning to policing. Without it we will not have the completion of the Agreement or Patten. We should make it happen as soon as possible.

MLAs will not be members of a true legislative assembly until they have responsibility for criminal law.
Devolution can achieve more and perform better if policing and justice services join, share and engage with other key service providers and planners under devolved policy making and budget planning.
At present the real and active threat to police personnel, to peace and democracy is coming from so called dissident republicans. Political uncertainty and threats of instability are grist to their vicious mill. Parties in the Assembly must not allow differences and difficulties around the devolution of justice and policing to be exploited for these groups’ sinister purposes. We need to marshall the collective mandate of the Assembly to disarm them of the twisted logic they are using to recruit young people and rationalize their violence as they use the Provo-speak about “British Police” and “Crown Forces”.

Of course, with devolution we have to protect the Patten structures such as the Policing Board and the strong role of the Independents as well as diverse parties. Policing and justice must never again be allowed to appear to be accessories of any political interest or the property of any party. That is why the operational limits of ministerial authority have to be understood and the degree of devolution already granted under Patten to the chief constable and the Policing Board appreciated. Furthermore, there must be no room for either cynical patronage or political discrimination in the appointment of the minister.

7. The suggestions that d’Hondt should be ignored in the appointment of a Justice Minister are made on the basis that Sinn Fein and the DUP have the numbers to impose this. This would by-pass the Agreement’s vision and provisions in favour of a new majority rule. Such an abuse of power is an act of political discrimination against the SDLP.

As we commemorate the 40th anniversary of Civil Rights, people should be vigilant against a new regime disposing of inclusive democratic provisions just as PR was abolished by Unionist-dominated Stormont first in local elections and then for the parliament itself. What we have been hearing from the likes of Martina Anderson and others is an example of a new gerrymandering mentality – redrawing lines to put others down and to keep them down. OPTIONAL (This attempt to deny a party its entitlement to another ministry, if there is to be one, comes on top of Sinn Fein and the DUP inflating their strength at the Executive table by adding their junior ministers. The SDLP and the UUP did not do this out of respect for the Agreement and the Executive’s composition.)

8. Recalling the Civil Rights Movement, not just its challenge for equality of opportunity but its appeal for a quality of democracy we remember that the old Stormont regime had a self-image that ours was a homely wee democracy. We should be wary of such delusions about the new Stormont with its tendency towards Executive control. While the Assembly has not been overworked with Bills and many of these are karaoke legislation, it should cause some concern that we are seeing such a reliance on accelerated passage.

Departments and Ministers delay and delay in producing decisions, then legislation to go with them is deemed urgent because of their arbitrary deadlines. We have seen this with the controversial and confused victims and survivors’ commission legislation and on local government boundaries. Not only was the Assembly denied its proper consideration by the removal of the committee stage, all relevant public interests were denied their right to give evidence and offer additional alternative ideas.

Of course today’s Executive invests far more in spin, PR and consultation than the old Stormont regime. But this should not dull us to the need for an effective representative legislative which not only produces, scrutinizes and amends legislation but also more effectively challenges the planning and delivery of policy. This should be part of the democratic dividend of the Agreement not just the fact of local ministers working with their civil servants.

Not only does government not know best, the political system does not always know best. That is why the Civic Forum was written into the Agreement and is still needed to reach and reflect issues and ideas that cannot best express themselves through the channels of government and political procedure. I believe a reconstituted Civic Forum can serve as a policy outrider for the democratic process, opening up pathways on challenging issues like social exclusion and a shared society.

9. North/South – East/West

The fact that there is now a cross-party acceptance of the Agreement’s three-strand structures should allow us to move to develop the North/South and East/West agendas more productively. The political vulnerability or sensitivities which capped and tethered these arrangements should no longer limit thinking.

Of course the SDLP will continue to argue for more North/South implementation bodies as well as for enhanced remits for the existing ones. Similarly, we need to widen and deepen the areas of cooperation provided in the Agreement. I have also been advocating the creation of some all-Ireland funds under the North/South Ministerial Council, something like our island’s own version of EU structural funds and other programmes.

In fairness, Brian Cowen and Bertie Ahern took this as far as they could by providing unallocated reserves in the National Development Plan for all-Ireland development, but we need to go further with identifiable funding programmes with clear purposes and priorities because we know that private sector, third sector and public sector bodies will come forward with positive and cost-effective measures.

There is no reason why we should not similarly look to create something like the INTERREG fund for these islands through the British-Irish Council. This could foster and support effective worthwhile cooperation and pilot initiatives between regional and local government and social partners in different parts of these islands. I have believed for a long time that the British-Irish Council should have its own Secretariat who should be promoting and monitoring not just engagements by all eight administrations in full Council mode but also bilateral and multilateral projects and programmes. There are issues which should be addressed using the BIC. The need for a marine management framework which would offer consistency and coherence across all the administrative boundaries can be seen in the UK Marine Bill provisions. Marine management does not just affect fishing and aquaculture but transport and logistics, energy, tourism and the environment. Another example is communications. The folly of us being about to end up with two different digital platforms in Ireland and the poor precedent it sets for future waves of technology change is not just a North/South matter.

10. A formula for ‘sufficient consensus’ was a necessary confidence measure in the agreed rules for the Talks. Therefore, it was not exceptional that such cross-community decision-making protections were also built into the institutions which resulted from those negotiations. As with d’Hondt, the referendum and the need to persuade and reassure was a strong consideration.

I remember, at the time, saying that the system of designation was necessary because of what we were coming from but should not be necessary where we were going. I argued that such measures with their arguably sectarian or sectional undertones should be bio-degradable, dissolving in the future as the environment changed. Most, if not all of us, had such future adjustments in mind when we wrote the review mechanisms into the Agreement.

As we move towards a fully sealed and settled process we should be preparing to think about how and when to remove some of the ugly scaffolding needed during the construction of the new edifice.

We need to reflect on the dangers of the decision-making protections acting as decision making prevention on more and more important issues. The possibilities for political realignment with new or changing party offerings in the future could be stunted by permanent reliance to the present degree on designation. If we are serious about a truly shared future then we have to allow for truly shared politics where parties can – and have to – appeal across the traditional divides. The fault-line in our society will still be there but it should not determine the party political cleavage for future generations.

Protections of rights, interests and identities will still be needed but not only for, or only as, either unionists or nationalists. In the stance-off over other issues recently, little attention is being paid to the rut that the Bill of Rights debate is stuck in. There are those who dismiss the need for such a bill or for it to be robust and extend to some social and economic issues. Maybe they and the rest of us need to start thinking about how a sound Bill of Rights in Northern Ireland might offer more productive and articulate protection for all our rights in a new democratic society than vote-locks and tit-for-tat vetoes in perpetuity. ‘One man-one vote’ was the start of a journey – made longer and harder than it needed to be. ‘One side- one vote’ should not be the final destination of that journey."

ENDS