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Chapter 2

The Evolution of the Agreement

In this section, we will discuss how the text of the Agreement has evolved and been supplemented by a series of further implementing agreements since it was adopted.

The First Assembly: 1998–2003

The first assembly was elected on 25 June 1998. Unionists won 58 seats out of 108 (an absolute majority of 53 per cent), nationalists 42 (38.8 per cent) and others 8. Designates for First and Deputy First Ministers were appointed, but the executive did not take office until 2 December 1999. Thereafter, the executive was suspended on four occasions; in 2000, in August and September 2001 and October 2002 onwards.1

The Northern Ireland Act 1998 was enacted on 19 November 1998 and represents one of the most significant modern constitutional laws of Northern Ireland. John Larkin, Attorney General for Northern Ireland, in referring to sections 1(1) and 1(2) of the Northern Ireland Act 1998 has observed that ‘Northern Ireland is the only region of the UK equipped with a constitutional departure lounge, no possibility of a return journey, and an electoral lock on the entrance to the departure lounge.’2 The Act sets out the current status of Northern Ireland in the UK and allows for a united Ireland by consent of a majority following a border poll. The provisions allowing the Secretary of State to call a border poll by Order also specifically provided that:

4. (1) An order under this Schedule directing the holding of a poll shall specify –

(a) the persons entitled to vote; and

(b) the question or questions to be asked.

(2) An order –

(a) may include any other provision about the poll which the Secretary of State thinks expedient (including the creation of criminal offences); and

(b) may apply (with or without modification) any provision of, or made under, any enactment.3

In December 1998, political agreement was reached between the First Minister designate, David Trimble, and the Deputy First Minister designate, Seamus Mallon, regarding the organisation of Departments and the establishment of North/South implementation bodies and other matters for North/South co-operation.4

On 8 March 1999, the two governments signed four agreements supplementing the British-Irish Agreement of April 1998. The new agreements provided for the establishment of six North/South implementation bodies, a North/South Ministerial Council, a British-Irish Council and a British-Irish Intergovernmental Conference. The Minister for Foreign Affairs, David Andrews, described the signature of the Agreements as ‘a very important milestone in the implementation of the Agreement’.5 At the same time, the Department of Foreign Affairs described the agreements establishing the North/South Ministerial Council, the British-Irish Council and the British-Irish Intergovernmental Conference as being ‘of a purely technical character’ and as providing that these institutions will be constituted and will operate in accordance with the provisions of the Good Friday Agreement.6 However, the Department went on to describe the Agreement establishing the six implementation bodies as ‘more substantial’ and as resulting ‘from intensive negotiations with the British Government, in consultation with the Northern Ireland parties, following on from the political agreement on the identity of these bodies reached on 18 December 1998’.7 The Department noted that each of the four agreements would enter into force on the date of entry into force of the British-Irish Agreement itself, and that legislation before the Oireachtas would be necessary regarding the agreement establishing the implementation bodies.8 On 8 March 1999, the two governments entered into a further agreement to resolve any problems in relation to the implementation bodies agreement:

the Governments acknowledge that it is essential to avoid any problems which may arise from differences in the laws of the two jurisdictions as they apply to the implementation bodies established by their Agreement of 8 March 1999. For this purpose:

(i) the Attorneys-General in the two jurisdictions, or such other representatives as each Government may designate, as appropriate, will consult and co-operate as necessary in order to address any problems which may arise concerning the interpretation and application of such laws to the bodies and will report within six months of the entry into force of the Agreement on whether additional steps should be taken.

(ii) In the event of problems arising from differences in the laws of the two jurisdictions which impede the proper functioning of any of the implementation bodies, the two Governments will consult and cooperate as necessary with a view to taking all appropriate steps to restore harmony.9

In April 1999, the Independent Commission for the Location of Victims’ Remains was established by agreement between the two governments.10 The publication of the Patten report on policing took place in September 1999,11 and, separately, further efforts continued to resolve outstanding issues that remained following the Good Friday Agreement. These were eventually overcome in December 1999, and the executive took office, with the British-Irish Agreement coming into force simultaneously alongside the commencement of the changes to the Irish Constitution.

The day prior to the coming into force of the British-Irish Agreement, Taoiseach Bertie Ahern told the Dáil that ‘the new Articles 2 and 3 encapsulate our modern understanding of constitutional republicanism. The last traces of irredentism are gone. The nation is defined in the most open, inclusive and pluralist manner possible, without coercion.’12 The Taoiseach said that he could not envisage a situation, ‘even where the functions of the Agreement had been interrupted for a considerable time’, in which the parties or the people would wish to revert to the previous wording of Articles 2 and 3, which, he said, ‘were put in place as a form of protest against the legitimacy of partition, after all the safeguards of the 1920/1 Settlement had been cast aside’.13

It is not entirely clear which safeguards the Taoiseach had in mind. Insofar as the provisions of the Government of Ireland Act 1920, which provided for all-Ireland institutions, were cast aside, they were cast aside by agreement between the two protagonists under the 1921 Anglo-Irish Treaty, rather than unilaterally disregarded by the British. The safeguards of the 1921 Treaty, such as the Boundary Commission, were not so much cast aside but proved to be illusory having regard to the fact that the Irish side seemed to have missed the point that the Treaty made clear that the ‘wishes of the inhabitants’ were subject to ‘economic and geographic conditions’14 and not the other way around. Those ‘safeguards’ too were set aside by international agreement. In concluding the speech, Taoiseach Ahern said that:

the setting up of the North/South Ministerial Council and implementation bodies is of particular importance to us. It is not only a reinstatement of an essential element missing from the implementation of the 1921 Settlement. It is also the logical culmination of the initiative on North–South co-operation begun on our side by Seán Lemass and Jack Lynch.

It should, however, be noted that the 1921 Treaty only made minimal, purely enabling provisions for North/South executive cooperation,15 so it is not really some sort of lost legacy from 1921 of which Ireland was deprived until 1998.

The Agreement came into force on 2 December 1999, and inaugural meetings then took place for the North/South Ministerial Council,16 the British-Irish Council,17 the British-Irish Intergovernmental Conference18 and other institutions established by the Agreement.

Ongoing political difficulties and issues related to decommissioning and paramilitary activity led to a collapse of the executive on 12 February 2000. In the absence of any legislative provision for suspension, and indeed in the absence of any such provision from the Good Friday Agreement, the Westminster parliament legislated for a suspension of the devolved institutions by enacting the Northern Ireland Act 2000. The fact that there was felt to be a need to bring in the 2000 Act did highlight a central and persistent difficulty of the Good Friday Agreement arrangement; namely, the problem of a satisfactory fall-back provision in the event of the executive not functioning. While there was some complaint at the time that the unilateral nature of the 2000 Act was in breach of the Agreement, that difficulty was perhaps impliedly acknowledged by a later agreement to repeal the Act.

In March 2000, a review of Criminal Justice in Northern Ireland was published. Devolution was restored on 30 May 2000. In November 2000, the UK parliament enacted legislation renaming the Royal Ulster Constabulary as the Police Service of Northern Ireland19 and creating a Northern Ireland Policing Board and district policing partnerships. Difficulties continued, however, and the assembly was suspended, twice, in 2001.

2001 – Weston Park Agreement

On 1 August 2001, the two governments entered into the ‘Weston Park Agreement’,20 a series of proposals to address policing, normalisation, the stability of the institutions and decommissioning, including proposals to facilitate the functioning of the North/South institutions.

In February 2002, Westminster legislation extended the amnesty period for arms decommissioning, up to February 2007 at the latest. In April 2002, the two governments entered into a new international agreement on police co-operation in the light of the Patten reforms and the new policing environment in Northern Ireland.21 In July 2002, Westminster legislation was enacted regarding the Northern Irish justice system.22 It established a Public Prosecution Service for Northern Ireland, a Chief Inspector of Criminal Justice in Northern Ireland and a Northern Ireland Law Commission (which has since fallen into abeyance). It provided that the Attorney General of England and Wales would cease to be Attorney General for Northern Ireland, and that a specific office holder would be appointed jointly by the First and Deputy First Minister.23 The Attorney General would then appoint a Director of Public Prosecutions for Northern Ireland.24 The Act provided that the royal coat of arms would not be displayed in any courtroom or outside any court, except effectively where this had already been done prior to the legislation.25 It also extended legislation regulating the flying of flags on public buildings to include court-houses.26

A further suspension of this assembly occurred in October 2002, following a DUP motion on 8 October 2002, expressing concern at the implications of a raid on the Sinn Féin Offices at Parliament Buildings on 4 October 2002, and of the arrest of three Sinn Féin members on spying charges (one of whom, Denis Donaldson, was subsequently murdered following the dropping of the proceedings and his identification as an informant to the British government).

2002 – Agreement on Continuation of North/South Bodies

Following the suspension of the Northern Ireland assembly on 15 October 2002, the British and Irish governments entered into a further agreement by means of an exchange of letters dated 19 November 2002, which were designed to allow the continued functioning of the North/South bodies in the absence of the assembly and Northern Executive. The letters between the Irish Minister for Foreign Affairs, Brian Cowen, and the British Ambassador, Sir Ivor Roberts, referred to an intention ‘to protect and maintain the achievements of the British-Irish Agreement and Multi-Party Agreement, and to ensure the continuation of the necessary public function performed by the Implementation Bodies during the period of temporary suspension of the Assembly, and pending its restoration’.27

The agreement proposed that decisions of the North/South Ministerial Council on policies and actions relating to the implementation bodies, Tourism Ireland Ltd or their respective functions should be taken by the two governments, and that no new functions should be conferred on the implementation bodies.28 The agreement goes on to provide that in the implementation bodies’ agreement, any reference to a Northern Ireland Minister shall be construed as a reference to the relevant Northern Ireland Department, and any reference to the assembly shall be construed as a reference to the parliament of the United Kingdom.29 The agreement only applies to the suspension commencing in 2002 under the Northern Ireland Act 2000 and not to any possible further future suspensions. The 2000 Act has since been repealed, and the 2002 agreement, therefore, does not seem to have any ongoing meaning. No similar agreement seems to have been entered into to cover the period of the non-functioning executive since 2017. Presumably the thinking is that no such agreement is necessary as non-functioning is distinct from a suspension situation.

In March 2003, the UK parliament legislated to provide for the following assembly elections to be held in May of that year.30

2003 – Joint Declaration

On 1 May 2003, the two governments published a Joint Declaration dealing with normalisation, policing and justice, and rights, equality, identity and community.31 Additionally, a draft agreement relating to monitoring and compliance was published,32 as well as proposals in relation to so-called ‘on the runs’ (i.e., republicans still being sought for extradition, imprisonment or questioning).33

In addition, the Joint Declaration dealt with the issue of the restoration of the political institutions, which were described as ‘the democratic core of the Agreement’.34 The Joint Declaration drew attention to the provision35 in the Agreement envisaging that the Northern Ireland assembly and the Oireachtas should consider developing a joint parliamentary forum.36 Among the initiatives considered by the Joint Declaration was the devolution to the restored assembly of responsibility for policing and justice matters.37 This analysis also contemplated the possible establishment of a North/South implementation body related to justice and policing following such devolution.38 The declaration committed both governments to the establishment of a new independent body to monitor and report on the carrying out of commitments relating to the ending of paramilitary activity and the programme of security normalisation.39

On 15 May 2003, the Westminster parliament legislated to allow for the postponement of the assembly elections, which had been due to take place that month.40 Legislation was enacted by the Westminster parliament in September 2003 to give effect to the agreement on monitoring and to provide for consequential exclusion or censure of politicians where necessary.41 The formal agreement between the two governments setting up the Independent Monitoring Commission was signed on 25 November 2003.42 The Commission was not expressly envisaged by the Good Friday Agreement – a point of objection for republicans – but rather was designed to police the commitments on activities of paramilitary groups and security normalisation by the British government. In the zero-sum logic that sometimes applies in Northern Ireland, some unionists objected to it by reference to the role of the Irish government in the process. The Agreement provided for a power to determine breaches of the pledge of office:

(1) The Commission may consider a claim by any party represented in the Northern Ireland Assembly:

(a) that a Minister, or another party in the Assembly, is not committed to non-violence and exclusively peaceful and democratic means; or

(b) that a Minister has failed to observe any other terms of the pledge of office; or that a party is not committed to such of its members as are or might become Ministers observing the other terms of the pledge of office.

(2) Insofar as a claim under paragraph 1(b) relates to the operation of the institutional arrangements under Strand One of the multi-party Agreement, the claim shall be considered only by those members of the Commission appointed by the British Government ...43

The agreement establishing the commission was later terminated with effect from March 2011,44 as was the agreement establishing the Independent International Commission on Decommissioning.45

The Second Assembly: 2003–2007

Following the November 2003 election,46 the DUP and Sinn Féin emerged as the largest parties representing unionism and nationalism/republicanism respectively, displacing the UUP and the SDLP.47 Sixty unionists were elected. Nationalist representation remained at 42 out of 108 (as before), and others amounted to 6: a unionist gain at the expense of others, in the polarised atmosphere of a suspended executive.

Following this, a review of the Agreement got underway, and a plenary meeting of the review was held at Parliament Buildings, Stormont, on 3 February 2004. In his opening remarks to that meeting, the Minister for Foreign Affairs Brian Cowen stressed that:

As the Secretary of State outlined, it is the two Governments’ view that the fundamentals of the Agreement must remain in place. The review is about the operation of the Agreement … the Good Friday Agreement is both an international treaty and a part of the Irish Constitution. It will come as no surprise to anyone here, therefore, when I say that we take its provisions very seriously.48

He went on to say that the fundamentals of the Agreement were not up for negotiation and that, without being prescriptive, the fundamentals would, in his view, include the constitutional principle of consent, partnership government in Northern Ireland on an inclusive basis, the interlocking institutions of the Agreement including its North/South and East/West dimensions, the entrenchment of human rights and equality for all, the removal of the use and threat of paramilitary violence, the normalisation of security arrangements and the consolidation of the new policing and criminal justice arrangements.

2004 – Agreed Declaration on Citizenship under the Agreement

In the context of proposed changes to the Irish law and Constitution to tighten qualification for citizenship, the Irish government responded to criticisms that such change was in breach of the Agreement49 by agreeing an interpretative declaration with the United Kingdom government in April 2004, which provided that:

the two Governments hereby give the following legal interpretation: that it was not their intention in making the said Agreement that it should impose on either Government any obligation to confer nationality or citizenship on persons born in any part of the island of Ireland whose parents do not have sufficient connection with the island of Ireland: and therefore the two Governments declare that proposal to amend Article 9 of the Constitution of Ireland so as to provide that a person born in the island of Ireland, which includes its islands and seas, who does not have, at the time of his or her birth, at least one parent who is an Irish citizen or is entitled to be an Irish citizen, is not entitled to Irish citizenship or nationality, unless otherwise prescribed by law, is in accordance with the intention of the two Governments in making the said Agreement and that this proposed change to the Constitution is not a breach of the said Agreement or the continuing obligation of good faith in the implementation of the said Agreement.50

It was further provided that the rights of all persons referred to in the provisions of the Agreement51 would be preserved by legislation.52 In short, the ‘declaration’ asserted that their intention in 1998 was not to impose an obligation to confer citizenship on persons born in Ireland who did not have any other sufficient connection with the island of Ireland. The declaration paved the way for the referendum on the 27th Amendment to the Constitution on 11 June 2004, which curtailed the constitutional right to acquire citizenship on the basis of birth in Ireland. This was followed up with a statutory provision restricting such citizenship with effect from 1 January 2005.53

2004 – ‘Comprehensive Agreement’ Following Leeds Castle Talks

In July 2004, a letter was issued to political parties jointly by Secretary of State Paul Murphy and Minister for Foreign Affairs Brian Cowen outlining details the arrangements for of the resumption of talks in September 2004.54 Talks took place on 1 September 2004, and subsequently on 16 to 18 September 2004, at Leeds Castle. On 8 December 2004, further negotiations ended without agreement. Despite this failure, the two Prime Ministers then published the draft Comprehensive Agreement,55 which would have involved decommissioning of all weapons, an agreement that the IRA would instruct its members not to endanger the Agreement, confirmation of decommissioning including photographs, a Sinn Féin Árd Fheis to decide on support for new policing arrangements, devolution of criminal justice and policing powers to the assembly and re-establishment of the institutions by agreement.56

The December 2004 proposals involved the introduction into the British parliament of legislation to amend a number of aspects of the Northern Ireland Act 1998 and related legislation, which would also provide for the removal of the power of suspension.57 Devolution of policing powers would also take effect by means of primary legislation.58 Emergency legislation would be introduced immediately to establish a Shadow Assembly in December 2004,59 to be followed in January 2005 by the enactment of necessary legislation amending existing legislative arrangements on Strands One to Three.60 Detailed proposed changes to the operation of the Agreement, including changes to the Northern Ireland Act 1998, were set out. These included proposals to enhance collectivity and accountability, including the agreement of a draft programme for government and budget, which would have to be approved by the assembly on a cross-community vote.61

In a key change, the appointment of First Minister and Deputy First Minister, previously to be made jointly, was now to be decoupled, and these were to be nominated separately by the nominating officers of the largest and second largest parties respectively.62 There would be an Institutional Review Committee of the assembly, to keep the operational aspects of the Strand One institutions under virtually permanent review, and there was an explicit commitment to repeal the Northern Ireland Act 2000.

Proposals by both governments for changes in Strands Two and Three were also set out, including a proposal that the Northern Ireland Executive and the Irish government would, under the auspices of the North/South Ministerial Council, appoint a review group to examine objectively the efficiency and value for money of the existing implementation bodies and ‘the case for additional bodies and areas of co-operation within the NSMC where mutual benefit would be derived’.63 Any changes to existing arrangements would require the endorsement of the assembly and the Oireachtas. The executive would encourage the parties in the assembly to establish a North/South Parliamentary Forum, bringing together equal numbers from the Oireachtas and the assembly. In addition, the executive would support the establishment of an independent North/South Consultative Forum appointed by the two administrations and representative of civil society.64

Under Strand Three, the two governments would facilitate the establishment of a Standing Secretariat for the British-Irish Council, and would encourage the Oireachtas, the British parliament and the relevant elected institutions in the British and Irish islands to approve an East/West Inter-Parliamentary framework which would embrace all their interests, following consultation with the British-Irish Inter-Parliamentary Body.65 The proposals went on, unusually, to set out the text of draft statements to be made by the DUP, Sinn Féin, the Independent International Commission on Decommissioning (deference being paid to the independent position of this body by the use of the phrase ‘elements for an IICD statement’66) and – most unusually – a draft statement to be issued by the IRA. Presumably because it is an offence to ‘publish’ any ‘document … issued by or emanating from an unlawful organisation or appearing to be so issued or so to emanate’,67 the two governments sought to fudge what was being done by using square brackets, publishing the proposed IRA statement under the heading ‘[IRA] Statement’.68

The proposals, as they themselves noted, emerged from a process of dialogue, primarily with the DUP and Sinn Féin. The SDLP was quick to express reservations not only about the manner in which these proposals were put together, but also about their content, which they described as an agreement which ‘weakens the principles and protections of the real Agreement – The Good Friday Agreement’.69 Chief among the SDLP objections was the scrapping of the joint election of the two First Ministers. The SDLP also singled out the change to the previous arrangement that no party could veto the other parties’ ministerial appointments, and the new requirement that any party that did not vote to approve an executive could not take seats in it.70 Taoiseach Ahern, speaking at the Seventh British-Irish Council in the Isle of Man in May 2005, said: ‘The review of the Good Friday Agreement was politically accepted by everyone, including the DUP on December 8th … we’ve had the review and the review is finished.’71

However, the precise accuracy of this statement seems to be in doubt in the sense that the proposals do not seem to have been agreed to by all parties.

A further historic step in the process was the announcement by the IRA of the formal end to its armed campaign at 4.00 pm on Thursday, 28 July 2005.72

2006 – Armagh Joint Statement

As events moved into 2006 without a restoration of the institutions, the two governments published so-called ‘Plan B’ proposals,73 which, in new language, referred to the governments’ ‘joint stewardship of the process’. (In 2017, nationalists were to point to the ‘joint stewardship’ language to incorrectly suggest that this involved joint authority. It does not.74) The two governments set out broadly what would happen if the parties failed to restore devolution – an end to funding and the radical notion of an active implementation of the Agreement including ‘a step-change in advancing North–South co-operation’.

10. If restoration of the Assembly and Executive has to be deferred, the Governments agree that this will have immediate implications for their joint stewardship of the process. We are beginning detailed work on British-Irish partnership arrangements that will be necessary in these circumstances to ensure that the Good Friday Agreement, which is the indispensable framework for relations on and between these islands, is actively developed across its structures and functions. This work will be shaped by the commitment of both Governments to a step-change in advancing North–South co-operation and action for the benefit of all.

11. The British Government will introduce emergency legislation to facilitate this way forward. It will set out clearly the limited timescale available to the Assembly to reach agreement. In parallel with the recalling of the Assembly, we will engage intensively with the parties to establish the trust necessary to allow the institutions not only to function but to flourish. There is a great deal of work to be done. The Governments will do all in their power to restore the institutions and return devolved Government to those elected by the people of Northern Ireland. But the final decisions are for the parties. We hope they will seize the opportunity to move forward.75

The assembly was recalled for 15 May 2006, with a proposed final six-month deadline to elect a functioning executive by November 2006.76 A ‘preparation for government’ committee of the assembly began work on the steps required to restore devolution.

In May 2006, Westminster legislated to provide for a non-legislative fixed-term assembly (consisting of the same members as the Northern Ireland assembly) to prepare for restoration of devolution. That legislation also provided for repeal of the power to suspend, which had been contained in the 2000 Act.77

2006 – Joint Statement and Work Plan

On 29 June 2006, the two governments published a Joint Statement by Taoiseach Bertie Ahern and Prime Minister Tony Blair,78 which referred to a deadline of 24 November 2006 for restoration of devolution, and separately published a Work Plan and indicative timetable for restoration of devolution.79 The endgame of that Work Plan is of considerable interest in the post-2017 situation. It is as follows:

Either

November

Parties and Governments make final preparations for restoration of the institutions.

• W/B [week beginning] 20 November: last opportunity to amend Standing Orders and introduce Emergency Bill (on changes to the institutions) at Westminster following all-party agreement to restore devolution.

• 24 November: last opportunity for selecting FM/DFM [First Minister/Deputy First Minister] and Executive and affirming pledge of office. By midnight Secretary of State notifies Presiding Officer of intention to make a Restoration Order [effective on Monday 27 November].

• W/B 27 November: Ministers arrive at Departments. Executive meets.

Or

November

• 24 November: Salaries and allowances for MLAs and financial assistance to parties stop.

December

• BIIGC [British-Irish Intergovernmental Conference] at Prime Ministerial-Summit level to launch new British Irish partnership arrangements.

The joint statement also provided that: ‘we also took the opportunity today to review progress on new partnership arrangements that would need to be put in place to ensure our effective joint stewardship of the Good Friday Agreement in the event that devolution does not take place by 24 November. This work continues.’80

In July 2006, Westminster legislation was enacted to provide for, among other things, devolution of policing and justice functions81 – a task that was to require a considerable amount of further legislation before it happened four years later. The legislation also extended the amnesty period for decommissioning from 2007 to 2010.82 July 2006 also saw a further international agreement between the two governments to extend the scope of the EU programmes’ implementation body to cover future programmes.83

2006 – St Andrews Agreement

All-party talks were convened at St Andrews in Scotland in 2006, resulting in an agreement on 13 October 2006. Under the St Andrews Agreement, there were to be a number of changes to the Good Friday Agreement institutions.84 Progress towards devolution of criminal justice and policing was provided for. A series of measures to advance human rights, equality and issues relating to victims were set out.85 There would be a Victims’ Commissioner for Northern Ireland and a forum on a possible Bill of Rights. An Irish Language Act was to be introduced, as well as support for development of Ulster Scots. A financial package for the newly restored executive was also envisaged, as well as a timetable for the restoration of devolution. The St Andrews Agreement provided that ‘in the event of failure to reach agreement by the 24 November we will proceed on the basis of the new British-Irish partnership arrangements to implement the Belfast Agreement’.86

The changes to the Good Friday Agreement included a statutory ministerial code, referral of matters to the executive, amendments to the pledge of office, and repeal of the legislation that had provided for the power to suspend the institutions. Changes were also made in relation to Strands Two and Three, including progressing the North/South parliamentary and civic forums and East/West parliamentary co-operation.

The St Andrews Agreement involved a timetable to devolution combined with confirming republican adherence to the policing institutions and some adjustments to the detail of the Northern Ireland Act 1998. UK legislation was enacted in November 2006 to give effect to the Agreement.87 This created a transitional assembly to prepare for restoration of devolution,88 and included provision for a Northern Irish minister for justice and policing. Importantly for future purposes, it added a new provision regarding the promotion of minority languages:

(1) The Executive Committee shall adopt a strategy setting out how it proposes to enhance and protect the development of the Irish language.

(2) The Executive Committee shall adopt a strategy setting out how it proposes to enhance and develop the Ulster Scots language,89 heritage and culture.

(3) The Executive Committee – (a) must keep under review each of the strategies; and (b) may from time to time adopt a new strategy or revise a strategy.90

Former Foreign Affairs Minister Dermot Ahern has commented:

There was always an understanding that the British government agreed to an inclusion and commitment to an Irish Language Act … But the quid pro quo would be that there would be reciprocal attention given to the whole issue of Scots-Irish.91

The Third Assembly: 2007–2011

The Second Assembly ended never having operated a functioning executive. The Third Assembly was elected on 7 March 2007. It consisted of 55 unionists, 44 nationalists and 9 others.92

On 22 March 2007, the two governments agreed93 on an amendment to the 1998 British-Irish Agreement in order to give effect to the St Andrews Agreement, as follows:

Article 1

The two Governments re-affirm their solemn commitment as contained in the British-Irish Agreement to protect, support and where appropriate implement the provisions of the Multi-Party Agreement.

Article 2

The two Governments affirm their solemn commitment to support, and where appropriate implement, the alterations to the operation of the institutions established under the British-Irish Agreement agreed at St Andrews and as set out in the Annex to this Agreement.

On 27 March 2007, UK legislation was enacted to extend the date for restoration of devolution to May 2007.94 In accordance with this timetable, devolution was restored on 8 May 2007. On 24 May 2007, Westminster legislation was enacted providing for a Northern Ireland minister responsible for policing and justice.95 In March 2009, more detailed UK legislation was enacted to provide for a department with policing and justice functions.96

2010 – Hillsborough Castle Agreement

The Hillsborough Castle Agreement of 5 February 2010 set out measures on a number of problematic issues. Further legislation was envisaged on parades. A working group was proposed to improve executive functioning and delivery. Outstanding executive business was to be progressed, and a further working group was to progress matters outstanding from St Andrews. The agreement would pave the way for devolution of policing and justice functions. Financial commitments for Northern Ireland were also contemplated. Justice and police powers were eventually devolved on 12 April 2010.

On 1 May 2010, the two governments entered into an agreement on criminal justice97 which involved a structure for North/South Ministerial Meetings on Criminal Justice Co-Operation98 as well as a Working Group on Criminal Justice Co-operation at official level.99 This effectively replaced a previous similar agreement of 2005.100

The Fourth Assembly: 2011–2016

The Fourth Assembly was elected on 5 May 2011. It returned 56 unionist members (51.8 per cent), 43 nationalists (39.8 per cent) and 9 others. This represented a net gain of one seat for unionism from nationalism.

A minor adjustment to the cross-border bodies agreement was made in September 2011 in an exchange of notes between Minister Eamon Gilmore and Ambassador Julian King, to take into account new Irish departmental structures.101

Talks led by US diplomat Richard Haass and Prof. Meghan O’Sullivan, which included the issues of flags and emblems, parades and dealing with the Troubles-related legacy, ended with a draft text but without agreement in December 2013,102 although it was felt that the draft proposals formulated would be of use in later talks,103 and indeed this proved to be the case.

In March 2014, Westminster legislation was enacted providing for disqualification of MPs and TDs from the assembly and allowing the assembly to enact legislation altering its own size.104 The Act also extended the life of any given assembly from four to five years.105 In addition, it provided for procedures for the appointment of the Justice Minister.

2014 – Stormont House Agreement

Following on from the Haass proposals, the Stormont House Agreement of 23 December 2014 provided for a Commission on Flags, Identity, Culture and Tradition, which was ultimately established in June 2016.106 The Commission has been dealing with issues such as the possible regulation of bonfires and the flying of the Union flag on public buildings. In that regard, Sinn Féin has said:

Our policy, on flags on public buildings is that of equality or neutrality ie for to fly both national flags or no flag to be flown at all in line with the concept of parity of esteem and recognition, as outlined in the Good Friday Agreement of both main identities, Irish, British or both.107

The Stormont House Agreement went on to provide for regulation of parades,108 and set out specific measures to deal with legacy issues. These included an Oral History Archive, and measures on victims, including a pension for victims. There was to be a Historical Investigations Unit to take forward investigations into outstanding Troubles-related deaths.109 An Independent Commission on Information Retrieval (ICIR) was to be established. An international agreement to do so was signed on 15 October 2015.110 The agreement establishing the ICIR would come into force following ratification,111 which would involve the enactment of relevant legislation.112 That legislation has yet to materialise. An Implementation and Reconciliation Group would oversee these developments. These victims’ measures have yet to be implemented,113 a matter of serious concern to the Victims and Survivors Commissioner.114

Significant changes were made to the Strand One institutions, including a reduction in the size of the assembly and executive, and in the number of government Departments. Constitutional changes under the Stormont House agreement included a provision entitling parties to opt out of government and to take part in a formal opposition. The agreement provided for quarterly reviews and six-monthly progress reports on implementation.

A compact civic advisory panel was envisaged to replace the Civic Forum.115 However, it could be contended that the civic dimension of the Agreement is a key element in bringing disparate communities together, and it is not immediately easy to see how a far smaller panel can do this more effectively than the wider Forum envisaged by the Agreement.

There was language about ‘the need for respect for and recognition of the Irish language in Northern Ireland, consistent with the Council of Europe Charter on Regional or Minority Languages’.116 A lack of consensus on a Bill of Rights was noted, in which context: ‘the parties commit to serving the people of Northern Ireland equally, and to act in accordance with the obligations on government to promote equality and respect and to prevent discrimination; to promote a culture of tolerance, mutual respect and mutual understanding at every level of society’.117

2015 – ‘A Fresh Start’ Agreement

Difficulties in implementing the Stormont House Agreement and ongoing concerns about paramilitarism, which destabilised the executive, then led to a further round of talks in 2015 culminating in A Fresh Start – the Stormont Agreement and Implementation Plan of 17 November 2015, which included provisions on tackling paramilitarism, financial matters, welfare and tax issues, financial support from the governments and implementation of the Stormont House Agreement.

The 2015 Fresh Start Agreement provided for measures to tackle paramilitarism and organised crime, including a Joint Agency Task Force between police and customs North and South,118 which was subsequently established.119

An international body was to be set up to report on ending paramilitarism.120 A subsequent international agreement between the two governments formally established the body as the Independent Reporting Commission on 13 September 2016, and this was followed by UK121 and Irish122 legislation.

Provision was also made by the Fresh Start Agreement for financial reforms, welfare and tax issues, and financial support. A civic advisory panel was to be set up with only six members, limited to consideration of only two issues per year.123 Ultimately, this is a far cry from what was originally envisaged by the Agreement in terms of a civic forum. The Centre for Cross-Border Studies has been critical of the lack of structure for meaningful civic engagement:

This long list of failed or inadequate proposals and arrangements for the inclusion of civic voices in the political process both reveals a core problem with politics (rather than with political institutions) and suggests a possible alternative for a Northern Ireland voice in UK–EU negotiations …

Northern Ireland political arrangements include a long list of failed attempts to establish a meaningful forum for the inclusion of civic voices from outside the toxic bi-polar model of political relationships. Despite the fact that consecutive political agreements have provided for such fora (where civic views could be considered in relation to key social, cultural and economic issues), problems have been encountered with each of those.124

It would be hard to disagree with the proposition that the watering-down of the Civic Forum was a major deviation from the 1998 Agreement. Perhaps a more considered look at the pros and cons of involving the wider civic society through a broadly-based Forum, with a North/South counterpart, in the manner envisaged in 1998, could be worthwhile.

In the wake of the Fresh Start Agreement, the First Minister Peter Robinson stood down as DUP leader on 18 December 2015. He was succeeded in both roles by Arlene Foster. Legislation was introduced at Westminster, enacted on 4 May 2016, to give effect to the Stormont Agreement and Implementation Plan.125

The Fifth Assembly: 2016–2017

The Fifth Assembly was elected on 5 May 2016. Again, 56 unionists were elected (51.8 per cent), but only 40 nationalists (37 per cent), as well as 12 others – a net gain of 3 for others from nationalism. Taking advantage of the Stormont House Agreement, the SDLP, UUP and Alliance opted out of government and formed an official opposition.

Shortly after the assembly was elected, the Brexit referendum took place on 23 June 2016. A clear majority of voters in Northern Ireland supported remaining in the EU, 56 per cent to 44 per cent. All major parties supported remain, other than the DUP. The majorities for remain in Northern Ireland, Scotland and Gibraltar (and indeed Greater London) were, of course, outweighed by a majority for leave across England and Wales. We will discuss the implications of Brexit for discussions of Irish unity in a later chapter.

The executive lasted only eight months. Deputy First Minister Martin McGuinness resigned in the context of the controversy over the Renewable Heat Incentive (RHI) Scheme. Other issues became mixed up in the resignation decision, as discussed below. A judge-led inquiry into the RHI scheme was announced on 24 January 2017 but, before its work got underway, the controversy precipitated a further election.

The Sixth Assembly: 2017 Onwards

The Sixth Assembly was elected on 2 March 2017. Pursuant to the Stormont House Agreement, this was the first election to the reduced-size chamber, now at 90 members rather than 108. However, the composition of the assembly significantly changed. Unionism now only carried 40 seats, or 44.4 per cent, the first time in the history of Northern Ireland that it had lost its absolute majority. That loss of a majority is in itself a huge staging post towards possible altered constitutional futures for the island. Nationalism returned 39 members (43.3 per cent), only 1 less than unionism. Others numbered 11. To compound the shock, the DUP returned only 28 members, 2 less than the 30 required to trigger a petition of concern. Thus, it lost its right to block legislation on its own, as it can no longer invoke the procedure for cross-community support without the help of other members. To put this seismic change into context, one would need to compare it with the first election to the Northern Irish House of Commons in 1921. At that election, 40 unionists were elected and 12 nationalists, a unionist supermajority of 76.9 per cent to 23.1 per cent. Within a century – and in Ireland one has to think in terms of centuries – that gap has closed to touching distance.

The new context where neither bloc has an absolute majority, and where thus the balance of power lies with ‘others’, puts a very new emphasis on the ‘petition of concern’, which is now, to an extent, a mechanism for deadlock rather than counter-majoritarian protection. Newton Emerson’s view is that:

What has become redundant at Stormont is not powersharing but vetoes – the petition of concern at Assembly level and the ability of either main party to bring government down at Executive level.

These vetoes were very much intended as protections from majoritarianism in a Northern Irish context. In a new era without majorities, all they do is let both sides block each other, frustrating any possible consensus.126

The Sixth Assembly failed to elect an executive, with disagreement ultimately centring on four major issues:

• the unresolved RHI controversy

• Irish language legislation

• matters relating to victims, including funding for legacy inquests into Troubles-related deaths127

• marriage equality legislation.

On 27 April 2017, the Westminster parliament enacted amending legislation128 to extend (on a one-off basis) from 14 to 108 days the period for election of a First Minister and Deputy First Minister.129

Matters were further complicated by a snap UK General election on 8 June 2017, which resulted in the loss of all Westminster seats for the SDLP and the UUP, as well as the loss of the Conservative government majority at Westminster. The UK government was then compelled to enter into a Conservative–DUP confidence and supply agreement on 26 June 2017, to facilitate the formation of a minority government at national level. While the agreement provided for continued adherence to the Good Friday Agreement, it also provided for the ongoing commitment of the Conservative Party to Northern Ireland remaining part of the UK. The dependence of the UK government on one actor in the Northern Irish scene, the DUP, is seen by some as potentially limiting the options that are likely to be pursued to achieve political progress in the Northern Irish context. An application to seek leave for judicial review of the confidence and supply agreement was dismissed in October 2017.130

In the absence of a functioning assembly, in November 2017, the Westminster parliament voted through a budget for Northern Ireland up to 31 March 2018.131

Talks to resolve the impasse between the DUP and Sinn Féin ended without agreement in February 2018. The issue of Irish language legislation was particularly contentious and, in that regard, Sinn Féin suggested that they had reached an ‘accommodation with the leadership of the DUP’ who then ‘failed to close the deal’ with their membership.132 A draft text has been made available on Eamonn Mallie’s website133 which would have resolved the relevant issues as follows:

• there would be three bills on language, one setting out general principles and two separate Acts dealing with corresponding provisions on Irish and Ulster Scots

• same sex marriage was to be left to the assembly134

• legacy issues were not mentioned135

• the objection to First Minister Foster continuing in the light of the RHI affair was not mentioned.136

In the aftermath of the breakdown of discussions, the DUP called for direct legislation to impose a budget to allow Northern Ireland departments to function (which is what happened), whereas SDLP leader Colum Eastwood stated ‘we can’t allow this British government or this DUP to think that they are going to govern Northern Ireland on their own. That cannot be allowed to happen.’137

In one sense, there is nothing particularly new about the Westminster parliament legislating for Northern Ireland, particularly in the absence of devolved institutions. This has been happening since the Agreement was adopted and is a consequence of the UK’s sovereignty over Northern Ireland, as recognised by the Agreement itself. That power to legislate is, however, subject to two important constraints: first, the right of the Irish government to put forward views and proposals, including on Strand One issues, and second, the requirements of rigorous impartiality imposed by the Agreement itself.

The DUP’s position as of March 2018 was to seek the establishment of a shadow assembly to sit at Stormont until devolution is restored, to scrutinise legislation and Westminster ministerial actions.138

As of March 2018, the Alliance Party was calling for action on a range of fronts:

[O]nly fully inclusive multi-party talks, chaired by an independent facilitator, can re-establish trust between the parties and hold them to account, privately and publicly, for their actions. They also provide the only prospect of delivering an inclusive Executive.

We have proposed transitional Assembly arrangements, running in parallel with the talks, as a step towards the restoration of full devolution …

By reconstituting Assembly Committees, MLAs can start to do the job we were elected to do: to give advice and guidance, scrutinise departmental spending and planning, and develop policy and legislation. Plenary sessions would allow us to progress legislation, via Committee Bills or Private Member’s Bills.

The formation of a cross-party Brexit committee would give NI a voice in the discussions which are shaping our future, whilst the re-constitution of the Policing Board would restore the oversight required to maintain public confidence and accountability in policing …

We have also proposed that Westminster legislate for key devolved matters such as the Irish language and equal marriage which have become a barrier to restoration, erasing some red lines and changing the dynamics of the talks process.

Indeed, this week, the first steps will be taken to introduce a private members bill on Equal Marriage at Westminster. While it has a long way to go yet, it is a major step forward towards the day when LGBT couples in NI will finally be able to say ‘I do’ and get the same recognition and respect under the law as any other married couple. My only regret is that yet again it is Westminster and not Stormont delivering on LGBT rights and equality.

Finally, we have identified reserved matters which Westminster should also progress including, crucially, reform of the petition of concern. That would ensure a restored Assembly could deal effectively with other social policy and equality issues and preventing any one party frustrating the will of the electorate.

The planned Government consultation on the enabling legislation to implement the Stormont House Agreement on legacy, the funding of legacy inquests and the implementation of a pension for the seriously injured should also now proceed without further delay.139

The Sinn Féin position, as articulated by Mary Lou McDonald in March 2018, was that:

Any proposed shadow Assembly would mark a retreat from powersharing and the leadership needed to restore the Good Friday Agreement framework. It would be an unacceptable step backwards, lacking credibility.

The onus is now on the two governments to act and through their joint stewardship to remove the obstacles to restoring the political institutions.

Both governments must now convene the British-Irish Intergovernmental Conference to find a way to implement outstanding agreements and to fully respect the rights of citizens to marriage equality, to language rights and the funding of legacy inquests.

Direct rule is not an option. It was a failure in the past and would be so again.

It’s time to face the real challenge to deliver citizens’ rights and to re-establish the institutions of the Good Friday Agreement.140

The SDLP’s Colum Eastwood proposed the following:

I am calling on the Irish and British governments, as part of the intergovernmental conference, to agree a package of legislation and implement it. I believe that package should include much of the draft accommodation that was agreed between the DUP and Sinn Féin. This package would include legislation for an Irish language Act and an Ulster Scots Act. It should include the establishment of legacy bodies and the release of inquest monies. I am also proposing that it should also include the reform of the petition of concern so that marriage equality can finally be brought to the North.

If these two parties couldn’t bring the deal over the line then the two governments should do it for them. That positive forms part of their governmental duty as guardians and guarantors of the agreement. ... The unionist and nationalist peoples of Ireland can retreat from each other or we can choose to work, live and govern together. As John [Hume] himself would say, the problem hasn’t changed, therefore the solution hasn’t changed. Despite all the difficulties ahead, the Good Friday agreement remains the solution to secure the interests of all our futures. Twenty years on, now is not the time to abandon it – now is the time to defend it.141

The UUP have rejected the Intergovernmental Conference idea,142 and leader Robin Swann has called for UK government intervention:

The Secretary of State has to take decisive action. The Government must consider all options including a voluntary coalition or a Grand Council type Assembly. If that means Direct Rule Ministers temporarily bringing legislative proposals to the committees for scrutiny in order to ensure a role for locally elected politicians, then so be it.

What is clear is that Sinn Féin cannot be allowed to block progress any longer. They have a mandate but they have 27 seats out of 90 and 28 per cent of the vote. They cannot be allowed to dictate to the rest of us. They don’t take their seats in Westminster by choice, if they don’t want to take their seats in the Assembly then they should no longer be allowed to stop those of us who do.143