Beyond the Border. Richard Humphreys
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