Beyond the Border. Richard Humphreys
to all those who assisted me with my original work on this issue for my Ph.D. thesis in Trinity College, Dublin, with the previous book and with the present one. I am particularly grateful to Dr Mary McAleese, Former President of Ireland, for her very kind Foreword. Her monumental commitment towards building relationships across the divide on the island of Ireland makes it a huge privilege to have had her encouragement in outlining the need for accommodation that is mandated by the Agreement. Rebecca Halpin was heroic enough to review successive drafts with her usual exceptional diligence; as always, without her help I would have been in severe difficulty. Conor Graham, Fiona Dunne, Myles McCionnaith and all of the team at Merrion Press have been wonderful publishers and have supplied just the right mixture of carrot and stick to get me moving on delivering the manuscript. Heidi Houlihan did wonderfully thorough copy-editing. Thanks also to Peter O’Connell Media, and to Fionbar Lyons for the index. I am very grateful to all those who looked at some or all of the draft, including the energetically multi-talented former Attorney General Paul Gallagher SC and the prolific Conleth Bradley SC. Seán Mac Cárthaigh also very kindly lent an observant eye and afforded some characteristically mordant observations. Thanks also to those who shared their thoughts on some of the issues, including Ruth Taillon, Director of the Centre for Cross-Border Studies. John Larkin QC, Attorney General of Northern Ireland, one of the island’s leading public intellectuals, drew my attention to some legal academic matters and I am very grateful to him for that. Gwen Allman of The Company of Books provided helpful practical feedback. Nicole Scannell-O’Leary, Carmel-Deirdre Humphreys and Eve Humphreys have provided valued encouragement and assistance throughout.
Chapter 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