Beyond the Border. Richard Humphreys
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