On the fourth of February, Nationalists and Unionists agreed to form a new government in Northern Ireland. For five of the seven years since 2017 Northern Ireland has been governed without ministers. Without political decision-makers, civil servants could only work within the lines of existing policy. This had stark consequences for people in Northern Ireland.
On the fifth of February, Prime Minister Rishi Sunak urged the Northern Ireland executive to focus on “day-to-day things that matter to people” rather than on constitutional questions.
On the eighth of February the Secretary of State for Business and Trade, Kemi Badenoch, was reported to have blocked an award made under the Music Export Growth Scheme to Kneecap, a Belfast-based republican rap group. The British Phonographic Industry, the independent trade association that runs the Brit Awards, had put Kneecap forward. A spokesperson for Kemi Badenoch said: “We fully support freedom of speech, but it’s hardly surprising that we don’t want to hand out UK taxpayers’ money to people that oppose the United Kingdom itself.”
Kneecap seeks judicial review. The case raises several legal issues, including the Secretary of State’s duties under s. 6 of the Human Rights Act 1998. This post is focused on one issue in particular: parity of esteem as embodied in the Good Friday Agreement. In the next two sections of this post, we locate the principle in the Good Friday Agreement, then explain what it means and why it should matter to constitutional lawyers. In the final section we consider how this affects the positions of the parties in this case.
What does the Good Friday Agreement Say?
Kneecap’s case raises a question of parity of esteem, a key component of the Good Friday Agreement (GFA.) As we will explain, it is a principle of recognition with a cultural and political dimension. This section locates parity of esteem in the GFA.
We often use “Good Friday Agreement” to refer to separate but related documents. They include a Multi-party Agreement between governments, political parties and other stakeholders; an international Treaty between the United Kingdom and Ireland (the British-Irish Agreement); and the implementing legislation which incorporates those two agreements. Parity of esteem is part of all of them, but it plays different roles in each. This section considers the first two points of this triangle – the final section considers the third.
Article 1(v) of the British-Irish Agreement says that:
“the power of the sovereign government with jurisdiction [in Northern Ireland] shall be exercised with rigorous impartiality on behalf of all the people in the diversity of their identities and traditions and shall be founded on the principles of full respect for, and equality of, civil, political, social, and cultural rights, of freedom from discrimination for all citizens, and of parity of esteem and of just and equal treatment for the identity, ethos, and aspirations of both communities.”
By Article 2 of the British-Irish Agreement, the parties agree to support the Multi-party Agreement, Strand One of which restates the commitment to parity of esteem in the same form set out above. It also records separate and related commitments. They include an agreement to create an Equality Commission “to monitor a statutory obligation to promote equality of opportunity in specified areas and parity of esteem between the two main communities, and to investigate individual complaints against public bodies.” Furthermore, the UK government agrees “to create a statutory obligation on public authorities in Northern Ireland to carry out all their functions with due regard to the need to promote equality of opportunity in relation to religion and political opinion”; and to create a Human Rights Commission responsible for advising on rights “supplementary to those in the European Convention” to reflect “the principles of mutual respect for the identity and ethos of both communities and parity of esteem.” The multiparty agreement explicitly proposes, among the issues for consideration by the Commission “the formulation of a general obligation on government and public bodies fully to respect, on the basis of equality of treatment, the identity and ethos of both communities in Northern Ireland…”.
The formula used in both the Treaty and the Multi-party Agreement is novel. Before the GFA, parity of esteem referred to the need for each community to recognize the other culturally. In his Coleraine speeches in 1993 then Secretary of State for Northern Ireland Sir Patrick Mayhew announced a change of policy. He stressed that “each of the main components of the community will need to be given recognition by the other, and in any settlement each must be accorded parity of esteem, the validity of its tradition receiving unqualified recognition” [‘A Framework for a Just Settlement’, 8. See English, infra]
At that time, many Unionists, including Professor Richard English and Baroness Foster, objected to this new conception of parity of esteem because they thought it confused cultural recognition with political recognition. Most Unionists agreed that nationalists should be granted cultural recognition: there should be parity of esteem for the ethos of both communities. But many did not believe nationalists should be granted political recognition: they argued that the “aspiration” to join an Irish republic did not have the same political value as the Union. As Professor English put it, ‘[f]or the state to accord equal legitimacy on the one hand to a tradition whose instinct and drive is to support and maintain the state and, on the other, to a tradition aiming at some form of dismemberment of the state seems to me fundamentally incoherent’. It is important to note that this argument failed. The peace process did include nationalists (and republicans) as equal partners. The use of the word “aspirations” in the text of the Treaty and agreement is significant. The agreement included a commitment to parity of esteem, not only for the identity of each community, but also for its political aspirations.
The Treaty therefore requires the UK and Ireland to do something unusual: they must valorise both the wish to stay within the UK, and the wish to leave the UK. This means the UK must act impartially towards people who wish the Union of 1800 and the partition of 1920 to continue, and also towards people who want to see those things undone. It might even have to act impartially towards people who want the “partition of 2020” to be undone, if that is the identity, ethos and aspiration of the Unionist community. Seen this way, parity of esteem might very well require the Secretary of State to “hand out taxpayers’ money to people [who] oppose the United Kingdom itself”.
This is a striking idea, and an unusual one. If we are right, it has an important bearing for other multinational constitutional settlements, notably Spain. People who sympathise with Badenoch’s decision may find it unsettling. But in light of its nature, and its centrality to the structure of the GFA, parity of esteem is strangely understudied, a situation exacerbated by the different ways in which the principle is thought about. In the next section, we examine two ways to think about the meaning of parity of esteem, before proposing a third which, we think, better encapsulates the purpose, meaning, and effect of the principle.
What does Parity of Esteem Mean?
Some people use parity of esteem to mean “parity.” For example, in his contribution to The Law and Practice of the Ireland-Northern Ireland Protocol, Colin Murray says that “Commitments to … protecting the ‘EU rights, opportunities and benefits’ of those people of Northern Ireland who had asserted their Irish citizenship might have appeared to reflect commitments to non-diminution of 1998 Agreement rights. If special protections were created for this particular group, however, this would collide with … parity of esteem.” He gives examples such as the continuation of Erasmus exchanges and the European Health Insurance card. If a Northern Irish person ceased to have access to these schemes then this would “collide with parity of esteem.”
We prefer not to use parity of esteem in this way. We do not need this particular idea to know that people from either community have equal rights, status and citizenship, or that restrictions on rights must not be discriminatory in effect, because the whole of the GFA embodies that idea. We think parity of esteem means something more specific than this. As we suggest above, it is a principle of political and cultural recognition.
A second way to think about parity of esteem might see it as requiring each community to contribute to important decisions. Paragraph 5 of Strand One of the GFA seeks to ensure “that all sections of the community can participate and work together successfully in the operation of these institutions and that all sections of the community are protected”. The principle is embodied in s. 42 of the Northern Ireland Act, which provides for a supermajority requirement in circumstances which present a concern to one or other community. The problem is these procedures effectively grant a veto to each community. The effect is, of course, to preserve the status quo, so in respect of the central question of political aspiration, this account cannot give parity to each community.
This approach appears to be embodied in the Safeguarding the Union command paper, an important step to bringing the DUP back to Stormont The paper is explicitly presented as ‘the outcome of negotiations with the DUP’ (p 14). It stresses the UK Government’s respect for parity of esteem and underlines the legitimacy of the desire for a united Ireland. But it also says “the Government is committed to strengthening Northern Ireland’s place in the Union’ and that ‘we will never be neutral on this issue’ (p 68). This is not obviously compatible with the principle of political recognition explained in the previous section.
Following the publication of the Command Paper, the Secretary of State for Northern Ireland, Chris Heaton-Harris expanded on this theme. Richard Drax MP invited the Secretary of State to assure the House that ‘Northern Ireland will always be part of the United Kingdom’. Heaton-Harris said ‘it is very important to outline the parts of the [GFA] that allow for all these things to happen, and any change would absolutely depend on the consent of both communities at the time’ [emphasis added].
The government’s position seems to be that any decision on Northern Ireland’s future has to be made on a cross-community basis: that each community has a veto over any change. However, this is not what either the Treaty or the Northern Ireland Act 1998 provide. In fact, it confuses two separate parts of the treaty and two separate procedures under the Act. Decisions about Northern Ireland’s constitutional future are categorically not decisions for each community – they are decisions for both communities together. Section one of the 1998 Act says Northern Ireland shall not cease to be part of the United Kingdom “without the consent of a majority of the people of Northern Ireland voting in a poll held for the purposes of this section.’ It is not the case that ‘any change would absolutely depend on the consent of both communities’ because that would preserve the status quo and so make one community’s political aspirations more equal than the others. It would mark a return to the approach recommended by Baroness Foster before the GFA, when parity of esteem meant cultural recognition without political recognition.
We think parity of esteem, instead, connotes a durable and ongoing commitment to impartiality between nationalists and unionists. The core of the principle is an acknowledgement that the UK must exercise its sovereign power in Northern Ireland without discriminating on grounds of political aspiration, among other factors. As we explain in the next section, this affects the factors the government can lawfully take into account when making decisions that affect people in Northern Ireland.
It might seem that the obvious beneficiary of the principle is the nationalist community, but we think the principle is broader than this, in at least three ways. First, political developments over the last seven years mean the Unionist community’s approach to the Union is not always aligned with that of the UK government. Second, Unionists are now a minority at Stormont for the first time: they need parity of esteem now in a way they did not in 1997. Third, the GFA is phrased specifically to allow for its principles to continue in operation in a united Ireland. Just as parity of esteem makes it clear that Nationalists are part of the body politic, it also ensures that Unionists will be part of any future body politic.
We acknowledge that our account of parity of esteem poses deeper questions connected to wider debates about liberalism and multiculturalism. What exactly does this duty of impartiality demand? Is it “state neutrality”, “benign indifference”, or something else? We cannot explore this issue adequately in a post of this scope, but in any event, we do not need a fully-fledged theory of political liberalism to explain why this decision was unlawful.
In light of this understanding of the principle of parity of esteem, it is not surprising that the UK would hand outUK taxpayers’ money to people who oppose the United Kingdom. Large numbers of UK “taxpayers” in Northern Ireland and Great Britain “oppose the United Kingdom” in the sense that they do not share the constitutional aspirations of the current UK government. But in Northern Ireland, parity of esteem precludes the government from disadvantaging those who ‘oppose the United Kingdom’ in this way.
The legal positions of the parties
We have argued so far that parity of esteem is an important constitutional principle. But is it a legal principle?
In Re: McMahon’s application for JR [2018] NIQB 74 the claimant challenged the flying of the union flag outside Omagh courthouse. She sought a declaration that the underlying Regulations breached the “guarantee of parity of esteem” in the Good Friday Agreement “enacted in the Northern Ireland Act 1998” and a further declaration that the regulations were beyond the power of the Secretary of State, because they were issued without regard to the “guarantee” of parity of esteem.
Keegan J dismissed the application. She said the “concept of parity of esteem is not defined in the Agreement itself, nor is there any reference to it in the Northern Ireland Act.” She underlined “the lack of political consensus on this issue.” She favored the view “that parity of esteem comes within the broad principles of equality, fairness and respect as applied to the two communities in Northern Ireland.” She made it clear that it was “artificial” to “disaggregate parity of esteem as a separate consideration of principle from the overriding objective contained in Article 1(v) of the Agreement.” That commitment to equality “must be framed by virtue of the fact that Northern Ireland would remain part of the United Kingdom pending a decision by the people in relation to this. There has been no change to this constitutional position.” She held that the requirement in the empowering Order to have regard to the Belfast Agreement was broad, and that the Secretary of State had met it (all at [22]).
A unanimous Court of Appeal ([2019] NICA 29) agreed with her decision. With reference to an earlier challenge to the same Regulations on grounds of a lack of “impartiality” (see Murphy [2001] NIQB 34) it said:
The flying of flags on a small number of selected days over Omagh courthouse does not disrespect the applicant or her community or any part of her community or provide additional respect to the Unionist community or its members. It prefers neither one community over another nor does it hold one individual in higher esteem than another. It is not discriminatory. It simply reflects the constitutional position of Northern Ireland as part of the United Kingdom…
Both of these cases concern primary legislation that obliged the Secretary of State to have regard to the Belfast Agreement. So far as we can establish, Kemi Badenoch had no such duty in Kneecap’s case. Cases such as Murphy and McMahon appear to present a very substantial obstacle to the invocation of parity of esteem in Kneecap’s case.
The problem with the claimant’s argument in McMahon and Murphy is they misunderstand the role parity of esteem plays in the constitutional order. There is no scope to argue that parity of esteem is a free-standing head of review. We make no such argument. But neither is “the separation of powers” a free-standing head of review. Nor “fairness” (see e.g. R. (Gallaher Group) v Competition and Markets Authority [2018] UKSC 25). Like the separation of powers, parity of esteem shapes and justifies legal rights and duties and it guides judges in the interpretation of legal rules. We argue that this is a good thing. The principle of parity of esteem helps judges to nurture and to protect the fragile political settlement in Northern Ireland.
Neither the British-Irish Agreement nor the Multi-party Agreement is fully incorporated into domestic law. As we note above, the Multi-Party Agreement sets out, as Annexes, draft clauses to be incorporated into domestic law, along with more general commitments to legislate in a range of areas, including human rights and the obligations of public authorities. But incorporation is subtle, and in the UK “there is no rule specifying the precise legislative method of incorporation.” (R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2004] UKHL 55, [42] (Lord Steyn))
There is a duty, where possible, to interpret both legislation and the common law in the light of the UK’s international obligations. (AG and Guardian Newspapers [1990] 1 AC 109 (House of Lords), 283; A v Secretary of State for the Home Department (No 2), [27].) Parity of esteem can clearly be taken into account in this way by the courts in respect of both legislation and common law in Northern Ireland. In Allister ([2022] NICA 15, [215]) the Court of Appeal note that in construing s 1(1) of the Northern Ireland Act, “the interpretive context is provided by the 1998 Agreement although not itself part of the domestic law.” The court then set out the principle of parity of esteem. The same court makes the same point, again with explicit reference to parity of esteem, in McCord ([2020] NICA 23, [72]). And this is exactly what the Court of Appeal is doing in McMahon. When they say flags “do not disrespect” one community or “prefer” one community, and do not “discriminate” or hold a community “in higher esteem” what they are doing is interpreting and giving effect to the principle of parity of esteem as we have described it above.
What, then, are the relevant legal duties through which the background principle of parity of esteem works in Kneecap’s case? Section 76 of the Northern Ireland Act makes it unlawful for a public authority “carrying out functions relating to Northern Ireland” to discriminate against a person on the ground of political opinion. A Minister of the Crown is a public authority for the purposes of s 76(7)(a) and the court may issue an injunction or grant damages as a remedy. This duty works alongside the common law rules on irrelevant considerations. When she blocked the grant, the Secretary of State based her decision on a reason she should not even have considered: Kneecap’s aspiration for a united Ireland.
Working through legal duties such as these, parity of esteem forbids this sort of partisanship. It connects to a separate equality duty in s 75 of the Northern Ireland Act, to have due regard to the need to promote equality of opportunity, and “good relations” between “persons of different religious belief [and] political opinion”. The Secretary of State for Business and Trade is listed in the relevant schedule of public authorities to which this duty applies. But as of May 2023, the Department had not been designated as subject to the duty – as would be required under s.75. Nor is the Department of Business and Trade included as one of the public authorities which must have due regard to the ‘national and cultural identity principles’ added to the Northern Ireland Act by the Identity and Language (Northern Ireland) Act 2022, inserting a new section 78F. If we think parity of esteem is important, we might ask “why not”?
Conclusion
It is not surprising that the UK government should “hand out taxpayers’ money to people who oppose the United Kingdom”. What is surprising is that the Business Secretary gave this reason for her decision. There are many legally defensible reasons why she might withhold the grant. She might have made reference to the offensive and controversial nature of Kneecap’s lyrics. “Get Your Brits Out”, for example, is a fictional account of a night of drinking and drug-taking with senior members of the DUP. If the Secretary of State was equally outraged by both loyalist and republican rappers then this would be compatible with parity of esteem. Instead, she made esteem (and funding) conditional on support for her own aspiration for Northern Ireland. Her decision ignores the principle of parity of esteem and the legal duties that it imposes in this context.
But there might be a second, deeper reason for concern. We might hope that the Secretary of State was suitably advised on her legal duties by government lawyers before she issued a press release in this exact form four days after Northern Ireland re-established power sharing. Perhaps she chose to make this point, at this time, regardless of any legal or litigation risk, and of the obvious alternative grounds for the same decision. If so, then it was a reckless and opportunistic decision, as well as an unlawful one. Ministers really ought to focus on day-to-day things that matter to people.
Ewan Smith, Associate Professor of Public Law, UCL Law.
Tom Flynn, Lecturer, Essex Law School.
(Suggested citation: E. Smith and T. Flynn, “Parity of Esteem? Ní Cheapaim!”’, U.K. Const. L. Blog (4th March 2024) (available at https://ukconstitutionallaw.org/))
