Beyond the Border. Richard Humphreys
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