The negotiations in practice (1999)
Full article text
The formal negotiating process that led to the Belfast Agreement on 10 April 1998 was unusually long. The twenty-two months it lasted from 10 June 1996 provided many opportunities to try different mechanisms and assess how they helped negotiations to move forward. The mechanisms were not new in themselves but the participants were occasionally able to use them in innovative ways to overcome obstacles when the talks became bogged down. At other times individual parties persisted in supporting specific procedures which seemed to protect their interests and as a result for long periods little progress was made and the talks appeared to be going nowhere.
The talks got off to an acrimonious and inauspicious start with sessions dominated by the issue of rules of procedure. The unionist parties were resentful that the British and Irish governments had published a set of ground rules on 16 April and appointed the three independent chairs without consulting them. They argued that this set the precedent for the governments to control the talks. Consequently the first day was characterised by delay and uncertainty as the unionist UUP, DUP and UKUP parties rejected both the ground rules and the appointment, in particular, of former US Senator George Mitchell as the senior independent chair. The arguments regarding the rules were more than just pedantic points about procedural preferences. They were about the working ethos of the process and its political potential.
Doubt and suspicion were heightened by the unfamiliar format for negotiations which was designed to ensure the involvement of up to ten parties as mandated in the election of May 1996, including those with even very marginal electoral support. Provision was made for Sinn Féin’s inclusion in the negotiations at the invitation of the Secretary of State for Northern Ireland on the basis of a reinstatement of the IRA ceasefire.
There was anger and embarrassment as the independent co-chairs were not allowed to assume their duties. Media attention focused on unionist resistance to the appointment of Mitchell and their insinuations about his intended role. However, he and his colleagues were installed when the UUP, having made its point that it would resist any suggestion that proposals could be imposed on the parties, rested its objection. In return the two governments accepted that the talks participants would negotiate and agree rules of procedure for the negotiations themselves.
Those preliminary negotiations were conducted without agreed rules, with Mitchell effectively managing the proprieties with the confidence of all the parties. At this stage no time constraints were imposed on contributions in plenary meetings, and many arguments were long-winded and repetitive. It was inevitable that some parties would labour their attitudes to the ‘peace process’ and background events in this induction period of the negotiating process.
The independent chairs facilitated these negotiations more actively than they facilitated the substantive negotiations. They sought proposals from parties, provided comparative tables to guide discussion and used bilateral meetings to ease things forward. As total compromise did not emerge voluntarily, Mitchell ended up shuttling and brokering with his own compromise drafts on the still disputed points. Under the rules for the rest of the negotiations that he helped to establish, Mitchell did not play as direct or decisive a mediation role again.
The arguments revolved around the role and remit of the independent chairs; how comprehensive the agenda could be; whether or not parties had the right to raise issues free from veto; the principle of inclusion of parties ‘related’ to paramilitary groups on ceasefire; whether or not decommissioning was to be a ‘term of entry’ for Sinn Féin; and the construction of a mechanism to secure agreed decisions where consensus proved impossible. The formula adopted was ‘sufficient consensus’ which stated that a decision could be adopted if a majority of the representatives of each community, unionist and nationalist, were in agreement.
The adoption of agreed rules represented a more significant achievement than was recognised. It followed a very difficult summer with crises over Orange Order (the Protestant society linked to the UUP) parades and the resulting resignation of the SDLP from the unionist-dominated Forum, the elected body which had been established to provide a pool from which the negotiating teams were drawn.
The manner in which the rules were adopted is worthy of note. Even with the parties’ own adjustments and compromises and the mediation of the independent chairs there was still no unanimity over all areas of the rules. However, the DUP accepted a procedure under which the section of the rules on decision-making by sufficient consensus would be voted on first. This method was then applied to the other sections of the rules which meant that the DUP could record its opposition but not block procedures which it did not like – what Peter Robinson of the DUP termed a ‘good loser’ approach.
A crucial part of the initial discussions was the arranging of a suitable environment for negotiations, including the division of issues between different meetings, the representation of parties, and the structuring of the meeting room. Since the Brooke talks in 1991 it had been accepted that there were three sets of relationships which should be dealt with in separate strands: Strand One dealing with internal relationships within Northern Ireland; Strand Two with relations within the island of Ireland; and Strand Three with UK–Irish relations. Consequently five ‘formats’ were named in the Rules of Procedure: Plenary, the three Strands, and a Business Committee. Under Rule 5 liaison sub-committees on confidence building and decommissioning were eventually established in order to separate out topics which threatened to undermine the ability of the parties to work together.
The Plenary format (chaired by Mitchell) as well as Strand Two and the Business Committee (both chaired by General de Chastelain) involved all the parties and both governments. Strand One (chaired by the British government) did not include the Irish government. Strand Three negotiations were between the two governments with arrangements for consultations with the other parties. To an outsider these arrangements may seem pedantic and immaterial, but the parties were attempting to establish a working environment that reflected their positions. For example, the unionists attempted to merge Strand Two and Strand Three so that they would participate in the discussions between the British and Irish governments while the SDLP and the governments wanted to retain the concept of separate and equal consideration of each Strand.
The term ‘format’ is also used to describe the form of the negotiations arrangements which deal with the numbers involved and the style and shape of meetings. UK legislation had provided for the larger parties to have three negotiating seats each and the smaller parties two, with all parties entitled to three people in support. The two governments each had three negotiating seats and five people in support. The three independent chairs also had their support staff (up to five in practice) and there were civil service note takers working under the direction of the independent chairs. This meant that formal negotiating meetings were relatively large. With the DUP and UKUP walkout on the entry of Sinn Féin there ended up being sixty-eight at the plenary sessions.
In these circumstances there was not really a negotiating table but a chamber with a large square of tables, two rows of seats and a lot of space in the middle. Contributions had to be by microphone for acoustical as well as procedural reasons.
The ‘top’ side of the square was occupied by the independent chairs flanked by the British and Irish governments. The parties were seated in alphabetical order and the chair, for a long time, took submissions from the parties in alphabetical rotation, always starting with the Alliance Party. For the purposes of the talks the DUP used its full title, the Ulster Democratic Unionist Party, thereby securing a later turn in a round.
Problems did not derive from the number of parties involved and unproductive bilateral meetings show that having a smaller number of parties would not necessarily have improved communication. Indeed earlier talks involving four parties suffered from a similar syndrome.
The large number of parties in fact helped communications on several counts. The negotiations were more inclusive, with the widest span of democratic representation ever involved. This helped to differentiate the process from previous failed initiatives and underlined that ‘ownership of the process’ was not just for the larger parties. The multi-party negotiations were in keeping with the likely composition of any new elected institutions which were expected to comprise more than just the bigger parties. The larger number of parties helped with the problem of language in the negotiations. In previous negotiations parties had tended to be very precious about their own terminology and quite jealous or suspicious about the language of others. In practice the larger number of parties generated a wider range of language and induced more flexible attitudes to innovative and variable terminology.
The fact that the Opening Plenary ran from June 1996 until September 1997 could not be blamed on the format of the negotiations but on the attempts of parties to advance their aims by controlling the topics for discussion. Such considerations lay behind the unionist insistence that no substantive negotiations could begin until they were satisfied on the issue of decommissioning. An alternative proposal that the Opening Plenary should only ‘address’ rather than ‘resolve’ the issue was not accepted.
The following weeks and months saw the strongest manifestation of ‘variable geometry’ – the concept of flexibility in the shape and size of meetings. Bilateral discussions between the UUP and the SDLP and later trilateral discussions involving the Alliance managed to produce a working paper on decommissioning on which there was, even according to UUP sources, ninety per cent agreement. At the same time bilateral discussions had produced agreement between the SDLP and the UUP on a possible Comprehensive Agenda for the substantive negotiations which was designed to reassure each party about the intentions of the other. The Alliance Party was also willing to support this proposal. When the Opening Plenary finally concluded on 24 September 1997 the Procedural Motion contained the SDLP/UUP/ Alliance proposed Comprehensive Agenda and relied heavily on the ‘unagreed’ decommissioning paper.
The fact that a Westminster election was pending seemed to further inhibit some parties for the first few months of 1997. Aware of a likely change of government, the UUP, along with other unionist parties, now stressed the differentiation between ‘decommissioning’ and ‘the terms of entry for Sinn Féin’. Tedious and pedantic as the differentiation seemed to some, it indicated that David Trimble was trying to establish a justification for remaining in talks in the event of the admission of Sinn Féin after a second IRA ceasefire.
The ‘sufficient consensus’ rule caused a significant problem in the way it was applied in the Opening Plenary. The independent chair was reluctant to convene meetings or set business without sufficient consensus for this course of action. This made it impossible even to discuss issues on the basis of ‘taking note without voting’. Extending the sufficient consensus requirement to even relatively mundane matters of procedural management served to compound the sense of gridlock and heighten the frustration.
One shared tactic to avoid difficulties in dealing with specific substantive issues was to review widely all the issues or ‘surf the agenda’. When the ‘substantive negotiations’ finally started in October 1997, the chairs decided to take each of the Strand One and Strand Two agenda items in turn, normally meeting one day per Strand each week. The intention was to allow parties to air and share all the issues that mattered to them and to gain some measure of the approach being taken by others. Parties were invited to submit papers on each item on which they were entitled to speak in the large negotiating format.
The parties’ contributions and exchanges centred more on what they were not prepared to compromise rather than on what they were willing to accept. With limited written submissions from some, conflicting historical analyses and a shortage of actual proposals this ‘surfing the agenda’ exercise had little substantive value. It did, however, mark some sort of graduation in the negotiation process with parties starting to get a sense of how serious others were about given issues. Some significant points were made and with some passion. The importance of good listening was now more apparent and relevant – at least to some.
Everyone agreed on the need to get the negotiations to move up a gear or two but not on how to achieve this. Proposals tended to be about getting stuck into an issue or locking on to one Strand to get some substance established. It was not just the agenda that mattered but format, with all parties seeming to agree on the limited value of the big room sessions.
In early 1998 signs of ‘chemistry’ became evident as parties and personalities got back to each other’s points or ideas in other than negative tones. It is not entirely clear why this was so but a number of developments may have helped. Responding to the difficulties during and before the recess, the two premiers in January prepared their own ‘heads of agreement’ paper similar to the ‘key issues’ drafts on the table before the recess. The aim was to give the resuming negotiations some measure of focus as the proposed May deadline came closer.
At this stage the smaller negotiating format was used but with only two assistants allowed in support of the two representatives per party. Some parties fielded different negotiators according to the issue under discussion with the effect of giving mixed messages at times. Parties canvassed their various proposals, concepts and models but, more importantly, with some tactical exceptions, they explored each other’s ideas, seeking further explanations or offering explanations for their own reservations or objections. The SDLP and UUP eventually had language proofing sessions where they could identify and explain for each other their sensitivities about the sort of terms they were respectively using or likely to use. These sessions lapsed into discussions of substance but this was hardly a problem in the circumstances.
Sessions in London and Dublin (three days in each city) in this period were dominated by the exclusion of the UDP in London and Sinn Féin in Dublin because of breaches in the ceasefires. Although the intended benefits of a change of scenery were not realised, one of the most significant and poignant personal contributions of the talks process was made in London by Reg Empey of the UUP when he struggled to show some appreciation of the attitudes and calibre of the republican negotiators, and asked for something similar for unionism. The genuineness of the terms in which he spoke had an impact on the other parties that they tried to reciprocate. In bilateral talks, as well as rehearsing arguments on the issues, parties were sharing constituency sensitivities and exchanging thoughts on how the negotiations could be advanced to a productive climax.
The government-ordained 9 April deadline was needed. With the deadline in place parties began to press on the issues which had not been substantively pursued in the negotiations to date. They stressed issues and ideas of particular importance to them such as policing, prisoners, civic forum, decision-making and safeguards, and the UUP returned to the decommissioning question. It was recognised that policing could not be properly addressed in that negotiating context and that some form of commission should deal with it. Predictably, most parties went into public relations overdrive in this period which added to the impression of intractability.
However, what was needed was reflection on what was being said and on options that would as far as possible meet the requirements of the parties. For example, an informal ‘homework club’ evolved within the SDLP in which a small group of party members met to discuss options, test them against party requirements and against those of other parties, redraft them for better acceptability and workability and even produce alternative versions to have in reserve for the conclusive negotiations. SDLP party member Seamus Mallon told this group at the time to ‘let the others draft their press releases, we have to draft an agreement’.
The rapid development of proposals at this stage is exemplified by the emergence, only weeks before the deadline, of the concept of a binary office of First and Deputy First Minister, in which all functions would be exercised jointly. There was also concern that key decisions in the proposed assembly should have cross-community support. This led to a proposal for the adoption of ‘parallel consent’ under which a majority of both unionists and nationalists would be required for such decisions.
The real challenge now was how to bring the negotiations, imperfect as they were, from all the different Strands into one arena so that one agreement could be decisively negotiated. An interim deadline of 3 April 1998 was set for the independent chairs to produce a paper that would be a draft agreement for final negotiation. Mitchell held further private meetings with individual parties to explore their proposals before completing the draft. At this stage he was doubtful about the inclusion of specific ideas which might not obtain broad support, and parties were concerned that the draft might not reflect their ideas. Following its meeting with Mitchell, the SDLP was somewhat worried that he was not encouraging about its Strand One proposals on ‘parallel consent’ and other related safeguards in relation to decision-making and their proposal for a joint office of First and Deputy First Minister. He made it clear that, as with Strand Three, the Strand Two section of his paper was being prepared by the two governments.
- The negotiations will operate on the basis of consensus. If it appears to the Chairman, after a reasonable period of discussion, that there is no unanimity, he may follow one or more of the courses of action set out below: (a) consult with the participants, with a view to putting forward a solution that he believes will secure agreement; and/or, (b) invite the participants to set up a broadly representative working group, including nominees of both Governments (or of the British Government alone in the case of Strand One issues); and/or, (c) obtain the agreement of the participants to refer the matter to an agreed group of experts for advice, requesting a report within an agreed specified period.
- It will also be open to the participants, acting solely by agreement and only at their instigation, and subject to the provisions set out in paragraph 37 below, to refer the matter to the forum for consideration, requesting a report.
- If, after the participants have considered any further proposals arising from one or more of the courses of action set out above, there is no unanimity on a particular proposition, the Chairman may propose that negotiations proceed on the basis that the proposition has been approved by sufficient consensus, as defined in paragraph 34.
- Sufficient consensus may apply to all decisions taken in any format.
- A proposition would be deemed to have sufficient consensus when supported by participating political parties which, taken together, shall have obtained a majority of the valid votes cast in the elections held on 30 May 1996 and which between them represent a majority of both the unionist and nationalist communities in Northern Ireland respectively and which also constitute a majority of the participating political parties. With the exception of Strand One, both Governments must endorse the particular proposition for it to be deemed to have sufficient consensus.
- Where it does not prove possible to achieve either unanimity or sufficient consensus, the Chairman will work, in consultation with the participants, to remove obstacles to the reaching of agreement, or, with the agreement of the participants, may decide to move on to the next item on the agenda.
- The negotiations will proceed on the principle that nothing will be finally agreed in any format until everything is agreed in the negotiations as a whole. Subject to this principle, it would nevertheless be possible, solely on the basis of agreement among the participants, to proceed on the assumption of contingent agreement on any individual aspect of the negotiations.