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ОглавлениеChapter 1
The Architecture of the Agreement
10 April 1998 saw the adoption of the Good Friday Agreement, also known as the Belfast Agreement. It took the form of two separate documents: a multi-party agreement as a political document was adopted by the talks’ participants, and a legally binding international treaty, the British-Irish Agreement, was signed between the two governments. The relationship between those two documents should be clarified at the outset. The British-Irish Agreement, the legally binding treaty, provides that: ‘The two Governments affirm their solemn commitment to support, and where appropriate implement, the provisions of the Multi-Party Agreement.’1
Thus, while the political agreement is not in itself enforceable as between the political parties, except to the extent that there is legislation to that effect, the two governments are legally obliged to support and ‘where appropriate’ implement the multi-party agreement in its entirety. That does not mean that every aspect of the multi-party agreement requires legislative implementation. While a great deal of it has been incorporated in legislative form, some elements have not – for example, the declaration of support made by the parties is not buttressed by an ongoing legal mechanism to determine whether any particular party is in breach of that declaration.
In certain respects, the Agreement has been amended or not implemented. As far as the amendment in 2006 by the St Andrews Agreement is concerned, or the clarification by the 2004 interpretative declaration, which we will come to, those amendments were specifically agreed to by the two governments and so are a legitimate and lawful adjustment of the British-Irish Agreement, even without the consent of all or any of the political parties.
Insofar as the Agreement has not been implemented – without the consent of both governments – that seems to be potentially a breach of the Agreement. The Northern Irish Attorney General, John Larkin, draws attention2 to references in Strand One of the Agreement to the Northern Ireland assembly being ‘capable of exercising executive and legislative authority’, that it ‘will exercise full legislative and executive authority’ in respect of devolved matters and that ‘the Assembly … will be the prime source of authority in respect of devolved responsibilities’. These references are at variance with the classic constitutional understanding that ‘the supreme executive power of these kingdoms is vested by our laws in a single person, the king or queen’. Thus, the Northern Ireland Act 1998 provides that:
(1) The executive power in Northern Ireland shall continue to be vested in Her Majesty.
(2) As respects transferred matters, the prerogative and other executive powers of Her Majesty in relation to Northern Ireland shall … be exercisable on Her Majesty’s behalf by any Minister or Northern Ireland department.3
But it seems that this can readily be filed under the heading of a drafting matter. The fact that the multi-party agreement did not deem it necessary to spell out the full UK constitutional theory does not mean that the UK is in breach of the Agreement by not recognising the Northern Irish institutions as a source of power independent of the Crown. This is particularly so where the point is one of theoretical nicety rather than of practical significance, and where the Irish side has, so far, raised no issue in this regard.
In short, the fact that the multi-party agreement has been varied and has not been implemented in every respect by legislation does not take from the principle that the commitment to support that agreement embodied in the British-Irish Agreement is legally binding in the absence of any further treaty between the two governments to the contrary. By way of example, a central commitment of the Agreement, in the strongest terms possible, is the requirement of equal respect for the two traditions. Yet this specific commitment has not been given statutory form (other than in specific contexts, such as the declaration required by police constables4). That does not mean that it is irrelevant, or that the UK in all its manifestations is not required to uphold parity of esteem if the Northern Irish parties do not. Indeed, it may be that the absence of such legislation could amount to a breach of the Agreement if the commitment to parity of esteem is not otherwise being upheld. That may be a pertinent issue at the present time following the breakdown of the executive in 2017.
The text of the multi-party agreement is set out under a number of different headings: a declaration of support, constitutional issues, the various strands of relationships, rights, safeguards and equality, security and justice related issues, and validation, implementation and review.
Declaration of Support
The declaration of support with which the Agreement begins acknowledges the principle of mutual respect. It firmly establishes a parity of esteem between the two traditions:
2. [W]e firmly dedicate ourselves to the achievement of reconciliation, tolerance, and mutual trust, and to the protection and vindication of the human rights of all.
3. We are committed to partnership, equality and mutual respect as the basis of relationships within Northern Ireland, between North and South, and between these islands …
5. We acknowledge the substantial differences between our continuing, and equally legitimate, political aspirations. However, we will endeavour to strive in every practical way towards reconciliation and rapprochement within the framework of democratic and agreed arrangements. We pledge that we will, in good faith, work to ensure the success of each and every one of the arrangements to be established under this agreement. It is accepted that all of the institutional and constitutional arrangements – an Assembly in Northern Ireland, a North/South Ministerial Council, implementation bodies, a British-Irish Council and a British-Irish Intergovernmental Conference and any amendments to British Acts of Parliament and the Constitution of Ireland – are interlocking and interdependent and that in particular the functioning of the Assembly and the North/South Council are so closely inter-related that the success of each depends on that of the other.
Constitutional Issues
Under the heading ‘Constitutional Issues’, an agreement to provide for self-determination by agreement between a majority in both parts of the island is endorsed:
1. The participants endorse the commitment made by the British and Irish Governments that, in a new British-Irish Agreement replacing the Anglo-Irish Agreement, they will:
(i) recognise the legitimacy of whatever choice is freely exercised by a majority of the people of Northern Ireland with regard to its status, whether they prefer to continue to support the Union with Great Britain or a sovereign united Ireland;
(ii) recognise that it is for the people of the island of Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right of self-determination on the basis of consent, freely and concurrently given, North and South, to bring about a united Ireland, if that is their wish, accepting that this right must be achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland;
(iii) acknowledge that while a substantial section of the people in Northern Ireland share the legitimate wish of a majority of the people of the island of Ireland for a united Ireland, the present wish of a majority of the people of Northern Ireland, freely exercised and legitimate, is to maintain the Union and, accordingly, that Northern Ireland’s status as part of the United Kingdom reflects and relies upon that wish; and that it would be wrong to make any change in the status of Northern Ireland save with the consent of a majority of its people;
(iv) affirm that if, in the future, the people of the island of Ireland exercise their right of self-determination on the basis set out in sections (i) and (ii) above to bring about a united Ireland, it will be a binding obligation on both Governments to introduce and support in their respective Parliaments legislation to give effect to that wish.
The ‘Constitutional Issues’ section went on to record an agreement to rigorous impartiality and to continued recognition of the right of people in Northern Ireland to British citizenship, saying that the participants endorsed the decision of the governments to:
(v) affirm that whatever choice is freely exercised by a majority of the people of Northern Ireland, the power of the sovereign government with jurisdiction there 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;
(vi) recognise the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland.
Draft clauses were set out, to be included in both British legislation and the Irish Constitution. The UK legislation would provide as follows:
1. (1) It is hereby declared that Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll held for the purposes of this section in accordance with Schedule 1.
(2) But if the wish expressed by a majority in such a poll is that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland, the Secretary of State shall lay before Parliament such proposals to give effect to that wish as may be agreed between Her Majesty’s Government in the United Kingdom and the Government of Ireland.
This was given effect to in the Northern Ireland Act 1998. The legislative commitment is simply a requirement to lay proposals before parliament in the event of a border poll resulting in a vote for unity. A statute cannot specifically commit parliament to enact a further statute. The Act went on to say:
1. The Secretary of State may by order direct the holding of a poll for the purposes of section 1 on a date specified in the order.
2. Subject to paragraph 3, the Secretary of State shall exercise the power under paragraph 1 if at any time it appears likely to him that a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland.
3. The Secretary of State shall not make an order under paragraph 1 earlier than seven years after the holding of a previous poll under this Schedule.
Provisions to be inserted into the Irish Constitution included the entitlement to ratify the British-Irish Agreement, provision for cross-border bodies and extra-territorial jurisdiction, and reworded Articles 2 and 3 of the Constitution.
Article 2
It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish nation. That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland. Furthermore, the Irish nation cherishes its special affinity with people of Irish ancestry living abroad who share its cultural identity and heritage.
Article 3
1. It is the firm will of the Irish nation, in harmony and friendship, to unite all the people who share the territory of the island of Ireland, in all the diversity of their identities and traditions, recognising that a united Ireland shall be brought about only by peaceful means with the consent of a majority of the people, democratically expressed, in both jurisdictions in the island. Until then, the laws enacted by the Parliament established by this Constitution shall have the like area and extent of application as the laws enacted by the Parliament that existed immediately before the coming into operation of this Constitution.
2. Institutions with executive powers and functions that are shared between those jurisdictions may be established by their respective responsible authorities for stated purposes and may exercise powers and functions in respect of all or any part of the island.
The Three Strands
The Agreement considered the ‘totality of relationships’ relating to Northern Ireland in three strands:
• Strand One, relating to matters internal to Northern Ireland.
• Strand Two, North/South matters.
• Strand Three, matters relating to Britain and Ireland as a whole (East/West matters).
Under Strand One, the Agreement provided for a 108-member assembly to ‘exercise full legislative and executive authority’ in respect of devolved functions. A number of safeguards were provided for, including incorporation of the European Convention on Human Rights (ECHR), a possible Bill of Rights for Northern Ireland, a Human Rights Commission and an Equality Commission.5
Key decisions had to be taken on a cross-community basis; that is either by parallel consent from both traditions or 60 per cent support including at least 40 per cent of each tradition. A ‘petition of concern’ could trigger the need for cross-community support, if thirty assembly members so required.6 Executive authority was to be discharged by a First Minister and Deputy First Minister, elected jointly on a cross-community basis, and up to ten ministers.7
Continued UK sovereignty was emphasised by the express statement that the ‘power [of the Westminster parliament] to make legislation for Northern Ireland would remain unaffected’.8 Generally, the UK parliament’s role would be to legislate for non-devolved issues and to ensure that the UK’s international obligations are met in respect of Northern Ireland. In UK constitutional practice (the ‘Sewel convention’), the Westminster parliament does not normally legislate for a devolved matter without the consent of the devolved legislature, by way of a legislative consent motion, but ultimately ‘The United Kingdom Parliament retains authority to legislate on any issue, whether devolved or not.’9
A consultative Civic Forum was to be established.10 It should be noted that the Stormont House Agreement was later to envisage that this would be reconfigured as a ‘civic advisory panel’ on a far more compact basis.11
Strand Two of the Agreement, the North/South dimension, envisaged a North/South Ministerial Council to bring together both executives,12 including by way of establishment of North/South implementation bodies on agreed areas for co-operation.13
The Agreement provided that the assembly and the Oireachtas would consider developing a joint parliamentary forum, bringing together equal numbers from both sides ‘for discussion of matters of mutual interest and concern’.14 Likewise, consideration was to be given to the establishment of an independent consultative forum to represent civic society on both sides of the border.15
The parliamentary body was set up on 4 July 2012 in a watered-down form as the North/South Inter-Parliamentary Association.16 It has ceased to function with the collapse of devolution. The North/South civic consultative forum has never been established. These North/South parliamentary and civic forums were supported by the All-Party Oireachtas Committee on the Constitution in 2002:
The committee strongly endorses the proposal in paragraph 18 of Strand Two of the Good Friday Agreement that the Northern Ireland Assembly and the Oireachtas should ‘consider developing a joint parliamentary forum, bringing together equal numbers from both institutions for discussion of matters of mutual interest and concern …
We also support the establishment of an independent consultative forum ‘representative of civil society, comprising the social partners and other members with expertise in social, cultural, economic and other issues’, as mooted in paragraph 19. Both [this and a parliamentary forum] could make a major contribution to dialogue and mutual understanding between North and South.17
Strand Three of the Agreement, dealing with East/West issues, provided for three new institutions:
(i) a British-Irish Council, to be established under a new British-Irish Agreement to provide for representatives of the sovereign and devolved governments within the UK, as well as the Channel Islands and Isle of Man.
(ii) The Agreement encouraged the elected institutions of the members of the British-Irish Council to develop interparliamentary links, ‘perhaps building on the British-Irish Interparliamentary Body’.18 This was taken up, and that body evolved to become the British-Irish Parliamentary Assembly, consisting of members of the UK and its member parliaments/assemblies, including those of the crown dependencies, as well as the Oireachtas.
(iii) A British-Irish Intergovernmental Conference (BIIGC) was to be established to bring together the British and Irish governments to promote bilateral co-operation.
The Agreement provided that:
In recognition of the Irish Government’s special interest in Northern Ireland and of the extent to which issues of mutual concern arise in relation to Northern Ireland, there will be regular and frequent meetings of the Conference concerned with non-devolved Northern Ireland matters, on which the Irish Government may put forward views and proposals. These meetings, to be co-chaired by the Minister for Foreign Affairs and the Secretary of State for Northern Ireland, would also deal with all-island and cross-border co-operation on non-devolved issues.19
The implication, therefore, is that where devolution is not operating, the British-Irish Intergovernmental Conference acts as a forum in which the Irish government can put forward its views and proposals on any matters relating to Northern Ireland. That is presumably what the Taoiseach conveyed by his comment in November 2017 that:
As I have done at previous meetings, I said to Prime Minister May that the Government could not accept a return to direct rule as it existed prior to the Good Friday Agreement and that if Sinn Féin and the DUP failed to form an administration, the Government I lead would expect the Good Friday Agreement to be implemented without them.
That means convening the British-Irish Intergovernmental Conference, as if nothing is devolved then everything is devolved to that conference.
I indicated to her I would seek a meeting in the new year of the British-Irish Intergovernmental Conference so British and Irish Ministers could meet to plot a way forward for Northern Ireland in the absence of the elected representatives in Northern Ireland being able to form an administration.20
The Taoiseach clarified these remarks in December 2017, by saying that: ‘The Good Friday Agreement speaks of a British-Irish governmental conference, which is not joint rule because obviously the legislative powers remain at Westminster, but it does involve real and meaningful involvement of the Irish Government.’21
It is possibly worth adding the gloss that direct rule ‘as it existed prior to the Good Friday Agreement’ is not hugely different from the position where the Irish government can put forward views and proposals, because that was so under the Anglo-Irish Agreement of 1985. Direct rule pre-1985 was, it must be emphasised, quite different from direct rule since then. In March 2018, Tánaiste and Minister for Foreign Affairs and Trade Simon Coveney told the Dáil of his discussions with Secretary of State Karen Bradley on this issue:
I told Ms Bradley that I would like her to consider a British-Irish Intergovernmental Conference. I felt it would be appropriate at this stage to have that structure enacted so both Governments could formally discuss the various options they need to consider around a budget for Northern Ireland, how we take our next steps getting a devolved Government back up and running in Northern Ireland and other practical issues that can and should be raised on an east–west basis between the two Governments. I have not yet had a response to this proposal.22
Unionist reaction to these comments has been to reject the idea that non-devolved matters included internal matters where devolution had ceased to function, with unionist commentator Newton Emerson contributing a particularly inaccurate piece to that effect in March 2018, calling this an ‘extraordinary blunder’ and ‘tearing the agreement up’.23 In an earlier piece, Emerson went even further, suggesting that:
the agreement’s mechanism for such meetings is the British-Irish Intergovernmental Conference ... Far from being triggered by a collapse of Stormont, it is only meant to operate in parallel with Stormont – both represent two of the three interlocking strands of the agreement, with the third being the North–South Ministerial Council … The agreement says that in the absence of devolution, the conference cannot operate at all. When devolution is operating, BIIGC’s remit is restricted to bilateral relations and powers that are not devolved, and only then to discussing those powers, not exercising them. The UK retains full sovereignty.24
On sovereignty, he is clearly right. On the lack of status of the British-Irish Intergovernmental Conference, not so. The North/South Ministerial Council, as a ‘Strand Two’ North/South body, is dependent on there being a functioning assembly.25 But the Intergovernmental conference is a ‘Strand Three’, East/West body, and operates independently of whether devolution is functioning or not. Similarly, the other main East/West body, the British-Irish Council, has met continuously despite periods of no government in Stormont. To prove the point, the British-Irish Intergovernmental Conference has previously met on many occasions during Stormont suspension. For example, the assembly was suspended between October 2002 and May 2007, and in that period the Conference met seventeen times, on:
1. 22 October 200226
2. 18 December 200227
3. 20 May 200328
4. 2 July 200329
5. 18 September 200330
6. 22 January 200431
7. 21 April 200432
8. 7 July 200433
9. 15 December 200434
10. 2 March 200535
11. 27 June 2005 (summit-level meeting between heads of government)36
12. 19 October 200537
13. 1 February 200638
14. 2 May 200639
15. 25 July 200640
16. 24 October 200641
17. 26 February 200742
It is simply a misconception to suggest that the Conference falls when the assembly falls. It is true that the Declaration of Support states that:
it is accepted that all of the institutional and constitutional arrangements – an Assembly in Northern Ireland, a North/South Ministerial Council, implementation bodies, a British-Irish Council and a British-Irish Intergovernmental Conference and any amendments to British Acts of Parliament and the Constitution of Ireland – are interlocking and interdependent and that in particular the functioning of the Assembly and the North/South Council are so closely inter-related that the success of each depends on that of the other.43
But that is not the same thing as saying that if the assembly ceases to function all other bodies also cease to function. Acts of Parliament and the Irish Constitution are mentioned in this respect as well, and it can hardly be the case that the Constitution falls away (and we revert to the old Articles 2 and 3) every time the assembly is deadlocked. All that is committed to is that the ‘success’ of the Conference and other arrangements ‘depends on that of’ the assembly, and vice versa. That may well be so, but it does not mean that it is not lawful for those other institutions to operate. The language in relation to the North/South Ministerial Council is significantly stronger – that ‘one cannot successfully function without the other’. Emerson simply misunderstands the Agreement in this respect. The separate idea that the British-Irish Intergovernmental Conference cannot discuss devolved matters if there is no functioning devolution is also misconceived. If devolution has ceased to operate, then the exclusion for devolved matters from the functions of the Conference can hardly be said to be operative. There is no error in the interpretation of the Agreement that underlies the point made by Tánaiste Coveney. But misunderstandings continue. DUP leader Arlene Foster went even further again:
In keeping with the principle of consent and the three-stranded approach it is not appropriate for the Irish Prime Minister to outline future political steps relating to Northern Ireland and a resumption of talks … Whilst we will work with the Irish government on appropriate issues, the political process is an internal matter and should be taken forward by Her Majesty’s Government.44
Unfortunately, this is clearly incorrect having regard to the text of the Agreement. The British-Irish Intergovernmental Conference is specifically given the following function: ‘The Conference will contribute as appropriate to any review of the overall political agreement arising from the multi-party negotiations but will have no power to override the democratic arrangements set up by this Agreement.’45
Rights, Safeguards and Equality of Opportunity
Turning to the section headed ‘Rights, Safeguards and Equality of Opportunity’, the Agreement provided for incorporation in law of the ECHR, and of a specific set of rights, including the right ‘to seek constitutional change by peaceful and legitimate means’.46 A Northern Ireland Human Rights Commission was to be established by Westminster legislation,47 as well as a statutory Equality Commission.48 The Irish government was to consider incorporation of the ECHR also, and to establish an Irish Human Rights Commission.49
Of some importance, the Irish government was also to ‘continue to take further active steps to demonstrate its respect for the different traditions in the island of Ireland’. There was also to be a joint committee of representatives of the two human rights commissions.50 Commitments were made regarding linguistic diversity in relation to Irish and Ulster Scots, and specifically:
4. In the context of active consideration currently being given to the UK signing the Council of Europe Charter for Regional or Minority Languages, the British Government will in particular in relation to the Irish language, where appropriate and where people so desire it:
• take resolute action to promote the language;
• facilitate and encourage the use of the language in speech and writing in public and private life where there is appropriate demand;
• seek to remove, where possible, restrictions which would discourage or work against the maintenance or development of the language.51
Security and Justice Matters
The Agreement went on to deal with matters concerned with the peace process – decommissioning, security, and policing and justice. An independent commission was to make recommendations for future policing arrangements,52 and for a review of the justice system.53 Provisions for the accelerated release of certain prisoners were also provided for.
Validation, Implementation and Review
Under the heading of ‘Validation, Implementation and Review’, the two governments agreed to sign a new British-Irish Agreement replacing the 1985 Anglo-Irish Agreement.54 Referenda were to be held on 22 May 1998, North and South. In those referenda, 71 per cent of people in the North voted to support the Agreement, as did 94 per cent of people in the South. While the Agreement is not without flaws, and indeed has had its critics both at the time and since, it is fair to suggest that, as an empirical proposition, nothing has been put forward as an alternative that stands any realistic prospect of commanding greater support.
