Written evidence submitted by Alan Whysall[1], relating to the effectiveness of the institutions of the Belfast/Good Friday Agreement inquiry (GFA0035)













Personal: I was for 35 years until 2015 a civil servant, the bulk of my time in the Northern Ireland Office. I dealt with constitutional and institutional questions through the negotiations that led to the 1998 Agreement, and was in charge of the preparation and passage of the Northern Ireland Act 1998 which gave legal effect to it. I was involved in some of the evolutions of the institutional framework thereafter, and I headed the political side of the NIO before I retired.


Since 2015, I have been founder and trustee of the think tank Pivotal, which aims to encourage better public policy-making in Northern Ireland; and Honorary Senior Research Associate at the Constitution Unit, UCL, where I have written regularly about Northern Ireland constitutional issues. This evidence is offered on a personal basis.[2]


I wrote this Spring about some of the topics the Committee is considering in a (long) paper for the Constitution Unit on Northern Ireland’s Political Future (hereinafter Political Future or PF).


As it records, the institutions, and the Agreement more widely, have had a mixed record of success – when they have functioned at all.


Nevertheless the Agreement has been more successful as a foundation for government in Northern Ireland than anything tried before, and there is no obvious alternative in the foreseeable future. If it does not function, matters may become much worse.


The general theme of Political Future, therefore, is that it is imperative to revive the Agreement and make it function more effectively [PF, chapter 1]. The need is for not only a political deal to move beyond the Protocol issue, but a more far-reaching effort to revive the Agreement’s promise of stable effective government, a reconciled society and a better performing economy. Devolution restored simply on the basis of the deal on the Protocol would not have good prospects of stability or delivery.


Political Future deals in some depth with possible reform of the government institutions to cope with potential political and equity concerns [PF, chapter 9]; and with improving the record on good government, in which institutional change may also have a place [PF, chapter 8]. I will keep this evidence concise, but include page references to fuller discussion in the paper of some issues.


The Committee’s inquiry is particularly welcome because there has never been very much detailed discussion in public of how the institutions function and could be improved [PF, p63]. The expertise tends to lie with a few people in the political system and the institutions. More public debate and technical analysis would be valuable. It might in the past have helped to build more effective and durable structures, and could do so in the future.


More detailed technical work is needed on possible changes. There may be scope for an academic/civil society effort to pursue some of these issues further in the light of the Committee’s report.


This note follows roughly the structure of the Call for Evidence:


1: Achieving cross community involvement

2: Achieving effective government

3: Stability

4: Strand Three

5: Possible reforms to the institutions

6: How reform could be brought about


I would be happy to expand on any of points in this note if it would be helpful.





It had by 1998 long been widely accepted, certainly by the British and Irish governments, that an administration in Northern Ireland had to include representatives of both unionist and nationalist traditions in order to be viable: power-sharing. This was a matter of practical reality, as well as political equity: without such support, an administration would lack popular legitimacy, and would be likely to fail. The arrangements chosen in 1998 recognised the political necessity of the moment.


It can be argued though that the 1998 arrangements also entrench community division in politics indeed the argument was made that at the time. Symbolically, because the Agreement and resulting statutory provision expressly categorise elected representatives into unionist, nationalist and other, and afford the first two groups particular rights. Substantively, because these arrangements may have favoured parties in the first two categories at elections, as the only game in town.


The “other” category did not loom as large numerically in 1998 as now. In the comparatively compressed negotiations in 1998, too little thought was probably given to all the implications of the arrangements.


As the centre ground has grown, the defects appear starker and have greater impact:




Solutions are not obvious, however. It is not clear that an administration in Northern Ireland in Northern Ireland could even now be viable if it lacked either a unionist or a nationalist component[3].





Very little attention was given in the Agreement negotiations to providing for effective government [PF, chapter 8]. They were focused on resolving the political conundrum of accommodating unionists and nationalists within the political system. There was no doubt too ready an assumption that if, with that resolved, devolved government could be established, effective performance would follow. This has not proved to be the case.


Northern Ireland has many social, economic and public service challenges that are not being adequately met[4]. Even during periods when the institutions have been fully functional, they have not given adequate attention to these issues, nor been willing to make necessary difficult decisions.


Why? There are constructively minded politicians in all parties, but they operate within an environment that makes things difficult:



The Agreement envisaged that incoming ministers would develop shared objectives: the Executive and Assembly would each year prepare a Programme for Government and a budget. The Northern Ireland Ministerial Code puts an obligation on ministers to participate in preparing the Programme.


But there has never been any significant political, media or public traction behind the Programme for Government process, and performance against past Programmes has often been limited. The 2017-2022 Executive never agreed a Programme at all. The process of government has been without strategic direction. Nor did that Executive agree a budget for this financial year before it collapsed in February, and there has been substantial overspending.


The New Decade, New Approach agreement, by which devolution resumed in 2020, attempted to improve performance by committing the Executive to developing strategies on a range of social and economic issues. But we have had many strategies; and even if they are prepared, they do not themselves deliver outcomes. Indeed they may contribute to the widespread scepticism about the Executive around Northern Ireland (“Belfast once launched ships, now we launch strategies”).


The think tank Pivotal was established to help draw attention to the need to deal more effectively with issues like health and the skills gap; and ultimately to help change the political culture. There was no such organisation in existence at the time in Northern Ireland.


The Fiscal Council, established following the 2020 agreement, has begun usefully to illuminate some public finance and policy issues.


But these are so far operations of limited scope.


It is important in itself that the problems we face are more effectively dealt with, for obvious reasons to do with public well-being, and future prospects; but also (see next section) for the stability of the institutions and the survival of the Agreement.


The effectiveness and certainly the public standing of the institutions has also come under challenge at times because of issues over standards and competence [PF, page 58, 62]. Such lapses themselves may be a challenge to the viability of the Agreement institutions. It is hard to be confident that sufficient has been done to avoid them in the future.





The institutions have clearly been anything but stable. As is widely documented, they have not been in place at all for almost 40% of the time since they were first established in 1999. And during significant periods when they were formally in operation, they have been shaky to the point that the business of government was seriously disrupted. This was so, for example, during the flags dispute that began in 2012; the stand-offs over welfare a couple of years later; and more recently, before the First Minister resigned, precipitating collapse, in February this year.


This instability is to some degree the consequence of the high threshold of support required of a Northern Ireland administration (as compared to systems of government elsewhere), essentially that it must be widely acceptable across the community.


Such is the pattern of party support that in some circumstances, parties may conclude that they can abandon the Executive without losing the backing of their members or voters – perhaps even that they need to do so in order to retain it. And voters generally at present are disenchanted with the institutions, so they may see their absence as no great loss.


It is an extraordinary phenomenon of Northern Ireland politics, particularly in recent years, that many have apparently come to believe accountable effective government is an optional extra – hence the tolerance of the period when civil servants ruled from 2017 to 2020. In the long term, this does great damage.


The wider significance of the pursuit of effective institutions is that if they were more popular among the public, they would also be more stable. If they were delivering essential reform – were seen to be significantly reducing health service waiting lists, for example – pulling them over might carry a greater electoral sanction. And those working within them might find their work more rewarding, politically and personally, and be less willing to see them disappear.


Hence effective government is essential to the survival of the Agreement project.





It is of the first importance that the British and Irish governments work effectively together to promote constructive politics in Northern Ireland. They have generally been the motor of constructive political change in Northern Ireland. The Northern Ireland political system, though it has evolved in various ways, still appears unable by itself to manage without their contribution. But this contribution has often been lacking in the last few years, with London and Dublin at odds over Brexit and its consequences.


What does this say about the role of formal institutions established by Strand Three? It may be hard to argue convincingly that there is a direct relationship between meetings of formal structures and the quality of working relations. At a number of times when the two governments have operated most effectively together, there have been few formal meetings of the British Irish Intergovernmental Conference (not least because they antagonised some unionists). And holding such meetings does not guarantee that the governments will work effectively together: at times, in my experience, the agenda at formal meetings of this sort has been chosen so as to avoid conflict. They may agree on what is easily agreed on.


Nevertheless, these institutions, and BIIGC in particular, serve important purposes.


First, a symbolic one: they are a reminder that British-Irish cooperation is essential to the well-being of Northern Ireland – a lesson, arguably, that has been forgotten in London, where in recent years there has been less understanding of, and priority accorded to, Northern Ireland issues. (This is perhaps beyond the scope of the Committee’s current inquiry, but I have written about it recently and would be happy to expand[6]).


Second, institutions like BIIGC help develop relations between ministers and officials each side. Interpersonal relationships can be of great importance, and opportunities to build them may be particularly needed when UK and Irish ministers no longer meet through European structures.





This section looks at potential changes to the Northern Ireland institutions (with links to further discussion in Political Future).


The list of reforms considered is by no means comprehensive. I mentioned earlier the absence of analysis of the institutions, and I do not think that anyone has undertaken a full and detailed study of the possibilities here, including the potential learning from institutions elsewhere. So we need further work and discussion.


And institutional tweaks do not provide all the answers to our current political difficulties. As discussed further in the next section, change is needed in the wider political environment if the institutions are to be successful. But institutional reform may help, both in achieving political viability and equity; and also effectiveness.


I look at the potential changes under five headings:

  1. One reform widely canvassed is replacing the system of designations within the institutions as a guarantee of cross community acceptability, by a requirement of weighted majorities; but that is difficult.


  1. There are other potential reforms that might facilitate political agreement and better accommodate changing voting patterns.


  1. Experience this year suggests that the current choreography of forming an Executive, not least the timetable, should be looked at again.


  1. And there are other potential changes that might help the central institutions deliver good government.


  1. There is benefit in encouraging greater civic society engagement in public discourse.


A. Designations/weighted majority


A number of parties, with a variety of motives, would replace the system by which Assembly members designate themselves as nationalist, unionist or other for purposes of key (cross community) votes in the Assembly, and Executive selection. [PF, page 65, 70]. Most recently, proposals have been put forward in a paper by the Alliance party.


Instead, it is generally proposed that weighted majorities in the Assembly (and potentially Executive) would be required for key votes, and perhaps for the purpose of ensuring an element of cross community acceptability in the Executive.




In the present electoral landscape, such steps would be highly contentious, however[7].


For some they would be unacceptable in principle, and there would be questions about the legitimacy of so fundamental change to the Agreement structures, which were widely endorsed politically, and backed by referendums, in 1998.


As regards the operation of such a system, the key issue would be the threshold of support required. All parties, but especially the two largest, might understandably be anxious to retain their veto – so would argue for a weighted majority in excess of the 65% or two thirds often proposed: in the current Assembly, 75% would give either main party a veto.


For most of those who propose this change, though, overcoming vetoes is the objective. People of that outlook might nevertheless agree that the majority should be set at a level such that on key votes the support of at least some unionists and some nationalists would be required.


An arrangement of this kind would nevertheless still be politically fraught. A smaller unionist or nationalist party uniting with other parties, in opposition to the largest party in its camp, might come under extreme political pressure.


Indeed any change to the system of designations would carry political risks.


But such changes may offer the prospect in current circumstances of reviving devolution, and should not therefore be ruled out (see next section).


B. First Ministers, and other possible areas of reform


The other main area of contention is the offices of the First Minister and deputy First Minister [PF, pages 63, 68].


There is an admirable case in principle for these posts, if they remain, to be titled “Joint First Minister” (a case supported, it appears, at various times by all the main parties except the DUP). Their powers are joint and equal, and there is no logic in one of them being designated “deputy”. The existence of differently styled posts distorts the electoral system. It appears this styling was adopted to accommodate the sensibilities of unionists in 1998[8].


Therein lies the political difficulty: many non-unionists would understandably see it as inequitable that these titles were accepted while they gratified unionists, but had to be changed once they led to a non-unionist becoming (notional) top dog. There may thus be scope for much negotiation over this. But in the abstract changing the titles would be worthwhile and healthy, and consistent with the Agreement’s principles of equality and parity of esteem for different identities.


It is increasingly suggested there should be a boycott-proof system for selecting the FM and DFM. Alliance[9], for example, argue that if the party eligible to nominate either the FM or DFM declines to do so – which at present prevents an Executive being formed the right to nominate should move to the next largest party in the Assembly. This approach would, though, be likely to lead to either unionists or nationalists not being at the top table, which in present circumstances means the Executive would struggle for acceptability.


Some favour returning to electing the FM and DFM on a joint slate with cross community support, the original Agreement system replaced in 2007 [PF p63, 68]. Proponents argue that this approach is symbolic of the principle of collaboration change appears to have been favoured by the DUP precisely because it avoided them having to vote for a Sinn Féin candidate. It avoids the distortions that the struggle to be largest party, and thus choose the First Minister, have imposed – though that argument would be of less force if the titles were changed, as above. And, whatever the arguments about the legitimacy of other changes that may be proposed (see next section), this is the system that was approved by the parties and then voters in 1998.


These two changes could be combined. Something like the second (with a weighted majority threshold) might be necessary if designation were abolished.


The question also arises, though, how many Heads of Government there should be [PF, p70]. The current system is predicated on a unionist/nationalist duopoly. It can certainly still be argued that, for acceptability, there need to be both a unionist and nationalist at the top table.


But with the “other” category growing, and Alliance the third largest party, there is a case in the abstract for their representation through a third joint First Minister (perhaps if the proportion of others in a particular Assembly exceeded a set level). A further argument for such a change is that the present system might at some stage, if Alliance became the largest single party, or “other” the largest designation, displace the unionist or nationalist from the top table, which would pose serious challenges to stability.


This is no one’s first choice, and makes the system still more liable to obstruction – there would have to be consideration of some mechanism to overcome vetoes. But in default of agreement on wider reform, this may be the obvious way of acknowledging the rights of the “other” category. If such a change were accepted, the logic would also suggest giving the “other” designation a veto in cross community votes.


Ideally of course, and not least in the interests of coherent leadership, Northern Ireland might revert to having a single First Minister. But the difficulty in the present political environment of finding an acceptable figure probably rules this approach out for the foreseeable future.


There are many other areas of possible reform: these issues, as I argue, merit closer study than they have had. For example:





C. Timetable and process for formation of an Executive


The arrangements for Executive formation as enacted by Parliament earlier this year [PF, Chapter 2] on foot of the New Decade, New Approach deal, and given effect subsequently, are open to criticism. They allow 24 weeks for the formation of an Executive immediately after an election, or 48 weeks if a First Minister and Deputy First Minister withdraws from an Executive once established. During that period, the Executive cannot meet, and controversial and crosscutting decisions cannot be taken. Caretaker ministers (if any are in place) remain in charge of departments, but with limited authority, as we have seen.


The period allowed for Executive formation seems gratuitously long, and carries the implication that being without effective government for almost a year is a tolerable state of affairs.


And, as we saw in October, the caretaker ministers lose office at the point a new election becomes due, leaving a serious vacuum in governmental power.


This is in principle strange: under the earlier arrangements, as at Westminster, ministers remained in place until after a new Assembly election. Civil service authority to make any decision until new Ministers are appointed is extremely limited and doubtful (hence the reinforcement of their powers in the recent Executive Formation Act – but this legislation is intended to be temporary: similar provisions enacted in 2018 were repealed). This may make coping with urgent issues during an election difficult.


A shorter period for Executive formation and more satisfactory provision for caretaker government during elections appears to be needed.


D. Effectiveness


Securing more effective government i in large part a matter of culture, and the evidence from Pivotal makes proposals here. But institutional reforms may have a place.


Political Future (page 61) put forward a number of suggestions. One was for a publicly funded body with a degree of independence from the Executive of the day, to stimulate more effective discussion, and action, around economic, social and public service priorities. It might organise debate around these questions, and make recommendations; it might produce draft Programmes for Government for approval by the Executive, and monitor their implementation.


Setting up another quango has too often been a token Northern Ireland response to a problem, and this one would need to be carefully planned. But there is a need for a powerful voice able to present for debate important questions of public policy, and offer authoritative analysis and policy options unconstrained by immediate political pressure. The Institute for Government Report on Northern Ireland, Governing without Ministers[11] of 2019, makes a similar suggestion for “buttressing institutions” to support policy development and implementation.


But it is also highly desirable that there are further contributions to public policy among actors outside government: a non-state contribution to policy making is valuable, and has been distinctly lacking in Northern Ireland.


E. A greater civic society contribution


Indeed there is scope for a greater civic society contribution more widely, and in particular in shaping the future of politics and the institutions (PF, pages 38-9).


The Civic Forum mandated by the Agreement might have been a channel for this contribution, but some in the Executive appeared to have little time for it, and it quickly died. A successor body established under the Stormont House Agreement of 2014, the subject of renewed commitments in New Decade, New Approach in 2020, seems to have fared little better.


Potentially, people outside mainstream politics may have a significant contribution to make in support of constructive politics. Many, though, hesitate to put their heads above the parapet, because they risk incurring the hostility of people in political life, which may be distinctly uncomfortable.


Such voices need encouragement. And if this is not offered by devolved administrations, as has been the case so far, then the governments in London and Dublin, in pursuit of their role of sustaining constructive politics, might provide it.





This section considers how change might be brought about, and prospects for breaking deadlocks – such as we have now, following the DUP withdrawal from the First Minister post, or as happened in 2017 when Sinn Féin withdrew.


As a starting point, it would be much preferable to get all communities as fully on board as possible for political advance. Political Future and subsequent blogs discussed ways in which this might be done. Without such a foundation, any devolved government is liable to be fragile.


What is needed is to get the Agreement working again, ensure the institutions deliver, recreate political momentum; indeed to revive the hopes that led many in 1998 to put aside traditional political concerns and support the Agreement. It requires close collaboration between the British and Irish governments – indeed it requires a marked change of attitude, and an increased understanding, in London.


I have argued[12] that time as well as political priority are needed for such an approach: it needs a political process that involves all the main Northern Ireland interests, and the EU and US, and is capable of changing political attitudes. The final deadline of 19 January set by the Executive Formation Act just passed seems unrealistic, and it would be more plausible to seek a way forward by the middle of the year (after the local government elections – making the target the revival of the Agreement in its quarter-centenary year, rather than the exact anniversary in April). There are prizes to be had for statesmanship here, all roundbut it is essential that London has a clearer plan, and shows greater commitment, than we see now.


But if the widely agreed resumption of devolution cannot be achieved in such a timescale then something needs to be done. There are no good arrangements, and no arrangements consistent with the Agreement, for governing Northern Ireland without devolution [Political Future, Chapter 3].


The legitimacy of direct rule would be seriously challenged by many; and the Irish government role in making representations about its conduct through the British Irish Intergovernmental Conference (clearly set out in the Agreement, though also clearly falling short of joint authority) would be immensely controversial.


On the other hand it would be highly irresponsible to leave Northern Ireland without effective governmentwith civil servants taking day-to-day decisions and occasional interventions from London.


This is the situation we have just returned to. Between 2017 and 2020, the system stumbled along with increasing elements of “creeping direct rule” from London, but the damage to Northern Ireland’s well-being is likely to have been substantial (forgone investment, creaking public services, etc).


It is hard to see how with the challenges facing government at present the arrangements just established can be viable for very long at all, even with the reinforcement of civil service power embodied in the recent Executive Formation Act [13]. It places civil servants in an intolerable position, required to make highly political decisions, and its legitimacy may be seriously challenged, politically and also legally. London, however reluctant, may find itself being required to step in to a much larger degree.


What can be done?


The Agreement has no express amendment provision. Nevertheless, it clearly envisages that change may be necessary, notably in its provisions for review; and there have in fact been a succession of changes throughout its life (PF page 66). The governments have generally sought agreement for change among both the unionist and nationalist traditions or at least relied on them to acquiesce in it, whilst avoiding taking unpopular responsibility for the change[14].


Would the governments be entitled to make changes in order to break a deadlock – specifically in present circumstances, to permit constitution of a government without DUP support?


There are good arguments that they would (PF, p67).  The Agreement was concluded on the basis that parties would work together. Otherwise provision might have been made for breaking a deadlock – and a number of parties, including the DUP at one stage, argued for making the institutions more fully proof against boycott. The difficulty in the absence of the institutions of providing effective government, and the danger of increasing political instability, strengthen the arguments.


The future of the entire Agreement is in the balance without restored institutions.


Nevertheless, there are risks in such changes: as suggested earlier, an administration formed without the support of a majority of one tradition would be on a shaky foundation, practically and in principle. And the legitimacy of change to an Agreement reached with cross community support and endorsed in referendums, endorsed by a limited range of opinion, would be much questioned.


But there would be a stronger case, if effective political negotiation proved ineffective, for temporary provision aimed at restoring devolved government. What that might be would depend on the political circumstances of the time, but this is a suggestion.


If, following a further Assembly election, an Executive could not be promptly formed under the current rules, then a temporary arrangement, whose principal rationale would be to secure the establishment of functioning government in the short term, might come into effect.


That could be based on weighted majority voting, at least for the first Minister /deputy First Minister/multiple joint First Minister positions, and for Assembly and Executive votes where cross community support is at present required: with supporting changes necessary to ensure an Executive so formed could function efficiently and pass its essential legislation.


In parallel, political negotiations might take place aimed at securing a permanent solution. Indeed there should probably now be negotiations on revising the institutional framework in any event, given the criticism that has been subjected to.


Whether an Assembly operating under this dispensation would be allowed to run its full term would be for debate – given that it would be a departure from the Agreement, it might last for a shorter period. But that period should be long enough for a meaningful negotiation on a revised permanent system.





Such an approach would at least keep the prospect of constructive politics alive. The risk, well illustrated by Northern Ireland’s history, is that in a political vacuum the most unconstructive forces are strengthened.


It should be a high priority for the Government and for Parliament to ensure that that does not happen in the quarter-centenary year of the Agreement. They should apply all their efforts, rather, to ensure that the original promise of the Agreement is at last able to be fulfilled.


December 2022



[1] Honorary Senior Research Associate, Constitution Unit, University College London.

[2] Pivotal is also submitting evidence to the Committee. I commented on a late draft and generally agree with it. I have also seen drafts of evidence being offered by Professor Alan Renwick and Conor Kelly at the Constitution Unit, and by Professor Etain Tannam at Trinity College Dublin, and I also generally agree with them.

[3] Rory Montgomery, a distinguished retired Irish diplomat who was a counterpart of mine in the 1998 negotiations, has drawn attention to the difficulties in a recent article.

[4] Various reports by Pivotal among others, including this one, have laid out areas of failure – as well as some successes.

[5] I have no personal experience of the Strand Two institutions, since the Northern Ireland Office did not participate in them, and so have not addressed that part of the Call for Evidence. Their absence is a serious challenge to the political balance of the Agreement, however, and to developing mutually beneficial cooperation, especially in border areas. Some of my comments in the section on Strand Three about the role of intergovernmental institutions may be relevant here too.

[6] See PF chapter 4, and this blog.

[7] This article is a recent survey of party views.

[8] PF, page 68

[9] again in their paper Sharing Power To Build A Shared Future, June 2022

[10] Northern Ireland (Ministers, Elections and Petitions of Concern) Act 2022 section 6

[11] p53

[12] In this blog of 15 November.

[13] Andrew McCormick, a former Northern Ireland Permanent Secretary, outlined in two blogs early in December the difficulties the system now faces, and possible solutions.

[14] There may be some disagreement on the role of the Irish government here. Traditionally, they have remained out of the detail of institutional issues – the Strand One section of the Agreement was negotiated initially in a group in which they were not present. But they were present in plenary meetings where the overall architecture and balance of the Agreement were discussed; and the review provisions relevant here envisage "the process of review [falling] to the two Governments in consultation with the parties in the Assembly”. Realistically, they would need to be closely involved.