Beyond the Border. Richard Humphreys
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.
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)