DRAFT

TALKS: SUCCESSOR TO THE AGREEMENT

Introduction

This paper considers what HMG's position might be in negotiating a successor to the Anglo-Irish Agreement. Our primary objectives are perhaps threefold:

First and foremost, to achieve an agreement which has widespread support and brings the Unionists on board without pushing the nationalists over the edge.

Second, to make the changes necessary to take account of the existence of a devolved government in Northern Ireland.

Third, to use the opportunity thus afforded by renegotiation to achieve an agreement which more accurately reflects our own needs six and a half years on.

2. Negotiations will be complicated by the following considerations:

(i) The fact that the preliminary meeting in Strand III formation will be open to observers from each of the parties is likely to create an expectation that such proceedings will in future be subject to scrutiny. This could either inhibit negotiations or turn them into rather unhelpful 'stage-managed' proceedings.

(ii) We need to second guess what will be acceptable to all sides and to avoid either alienating any of them, or encouraging them to take entrenched positions, by revealing our hand too early.

Unionist Position

3. There are few signs, six and a half years on, that there has been any significant weakening in Unionist opposition to the Agreement. HMG might negotiate a new agreement on the basis that provided the Unionists were consulted, and provided it gave them the necessary presentational cover, they would be prepared to accept a continued role for the Irish Government in the affairs of Northern Ireland. But this will not be an easy trick to take. As recently as 9 June the UUP were reiterating in a private paper to HMG that:

(i) They could not accept that the SDLP's sense of identity required the involvement by the Government of the Irish Republic, at any level, in the affairs of any part of the UK;

(ii) The suggestion that the influence of the Irish Republic in the affairs of Northern Ireland would be reduced by the establishment of a devolved administration would not remove the sense of affront that citizens of the UK continued to feel at the continuing imposition of its one-sided provisions.

Irish Government/SDLP Position

4. The Irish Government is already under pressure to amend its Constitution in the interests of a settlement. It is unlikely that it will in addition be prepared to relinquish the special locus which the Agreement has given it in Northern Ireland. Indeed there are indications that it may rather be hoping to increase that role – perhaps along 'Commissioner' lines.

HMG's objectives

5. There follows an article by article analysis of the Agreement suggesting what we might hope to achieve in the course of negotiations. This will of course be very much dependent on trade offs which become apparent in other areas, eg a willingness on the part of the Unionists to concede a role for Dublin in excepted and reserved matters in return for a 'self-contained' internal settlement; or Irish amendment of Articles 2 and 3 in return for continued or enhanced involvement in NI. Although the existing articles of the Agreement are considered in sequence this is not to suggest that we should necessarily be aiming for a simple reworking of the current AIA. We might instead decide that the changes are sufficiently fundamental to require a completely new format. Indeed this might make it easier presentationally to disguise where old provisions have been strategically dropped or new ones introduced.

Preamble

6. Much of the preamble expounds the virtues of motherhood and apple pie and could in theory remain. But to meet Unionist sensitivities about any continuing avuncular relationship we might try to drop specific references to Northern Ireland at this point. It has also been argued that to recognise in a document of this kind the existence of 'two traditions' or 'communities' in Northern Ireland is on the one hand to institutionalise the divide and 'legislate for failure', and on the other to oversimplify the situation. Not all Catholics are nationalists and there are many shades of opinion as to what the future status of Northern Ireland should be, and on what terms. But the wording we have is based on standard SDLP theology and the Irish will not easily be persuaded to drop it.

Article 1

7. When the 1985 Agreement was negotiated it did not prove possible to clinch a deal in which the status of Northern Ireland as part of the UK was explicitly recognised, and Article 1(a) rather skates round the issue. The McGimpsey judgement of May 1990 turned the spotlight on this ambiguity by pointing out that Article 1 of the AIA was not incompatible with the territorial claim in Articles 2 and 3 of the Irish Constitution. In a new agreement we would want an explicit knowledge of NI's status as part of the UK so that the 'constitutional guarantee' is genuinely recognised as such. This will be difficult for the Irish. If they are prepared to countenance amendment to Articles 2 and 3 this may well be in terms of importing gate consent clause from the Agreement rather than doing away with the territorial claim itself. But a new Agreement which fails to clarify the constitutional position will lack serious credibility. Pressing for a more explicit Article 1 (a) as part of an intergovernmental treaty is also a more appropriate way for HMG to make representations on Articles 2 and 3 which taken in isolation would be matters for the Irish rather than a foreign government.

8. It has been argued that Article 1 (c), which effectively promises a united Ireland as soon as 51% so wish, is preparing the way for a bloodbath. But it is difficult to see how we could take any other stance without compromising our current adherence to the principle of majority consent. The 51% position would not in any case be reached overnight and it is not inconceivable that even Dr Paisley would in that situation pronounce it a fair cop. Interestingly it is the SDLP other than the Unionists who have so far drawn attention to the problem, principally to argue the case for beginning the transition now to avoid the nightmare scenario. But it is by no means inevitable that the 50% mark will ever be reached, and even if it were, by that time the Agreement might in any case have been recast many times. For now it seems advisable not to start uncontrollable hares by suggesting a departure from the current formula.

Article 2

9. One way of accommodating the Unionist wish for a 'two way' agreement, HMG's wish to avoid any arrangement which would open the way to Irish interference in GB affairs, and the Irish/SDLP wish for a focus on Northern Ireland, might be to make provision in a successor to Article 2 for both East/West and North/South arrangements. A formulation is required which is wide enough to provide Unionists with a figleaf while allowing the Irish to focus if they wish on Northern Ireland but not GB. We might aim for something along the following lines:

'The Anglo-Irish Intergovernmental Council will provide the framework for all contacts between British and Irish Ministers and officials in pursuance of the Anglo-Irish relationship. Within this framework British and Irish Ministers and officials may hold meetings as appropriate. These will also be established, under this framework

(i) a [Council of Ministers] responsible for co-operative action between the Northern Ireland administration and RoI in relation to transferred matters;

(ii) an Intergovernmental Conference concerned with the scope for co-operative action between the two Governments in relation to non-transferred matters."

10. As far as the remit of the new IGC is concerned, we might

(i) try to resist any suggestion that it consider either political matters or the administration of justice (subjects considered later in this paper); but

(ii) retrain its responsibility for security and related matters and legal matters generally; and

(iii) remove cross border co-operation as a discrete item, party to avoid confusion with economic and social co-operation (now the remit of all-Ireland arrangements) and partly on the basis that all matters considered at the IGC are concerned with co-operative action (ie the two way street).

11. There are conflicting signals coming from the Unionists on the their likely position in respect of the future of Article 2(b), which if retained would give the Irish a right to put forward views and proposals on non-transferred matters. While in Sub-Committee they appear to have accepted this as inevitable, the 9 June UUP statement seems to suggest that it would on the contrary be completely unacceptable. This contradiction is probably explained by their position on reciprocity: they can accept that the Irish Government can comment on Northern Ireland provided that they can also comment on GB and the UK can comment on ROI affairs. The solution (canvassed in David Cooke's 4 June paper on Strands 2 and 3) might be a reciprocal consultation right about any policy development or initiative in either jurisdiction with implications for the cross-border or all-Ireland aspects of non-transferred matters. If the Irish could be brought to accept that this would allow them to continue to raise confidence issues without further provision being made (perhaps on the basis that an insensitive security policy would be ineffective and thus have financial implications for their own border policing) so much the better.

Article 3

12. Article 3 on the working and membership of the Conference might largely remain as it is, although we should consider the following.

(i) We should aim to introduce a provision to enable NI Ministers or Committee Chairmen to attend on a regular basis perhaps by invitation. The Irish may well object. The SDLP might get to attend, but the advantage of this might be overshadowed by the prospect of Unionists disturbing the entente. It is also not inconceivable that the Unionists for their part will wish to steer clear.

(ii) The continuance of the Secretariat at Maryfield makes logistical sense but we should not underestimate the strength of the Unionists desire to disband the institution. We may be obliged to consider alternatives.

(iii) We might, taking on board objections over the hitherto covert nature of IGC proceedings, attempt to include in a new Agreement a commitment to greater openness where not incompatible with security considerations. The current brevity of communiqués is such that they may often alert suspicion rather than provide reassurance.

Articles 4 and 5

13. Articles 4 and 5 are concerned with transferred matters, the desirability of devolution and the rights of the Irish Government if it should nonetheless prove impossible. They are thus rendered largely redundant upon devolution, although the question remains of whether the Irish Government should retain any remit within the IGC in respect of transferred matters. The 4 June paper recommended that the IGC should consider transferred matters only where ancillary to non-transferred matters. Human rights and the prevention of discrimination per se will principally be the concern of the NI administration, and the Irish should have an interest in such matters within the IGC only in so far as the Secretary of State retains any responsibility.

Article 6

14. As far as appointments are concerned, the Irish should retain a right to put forward views only in so far as these remain the responsibility of the Secretary of State. The list currently given in Article 6 is thus best omitted altogether since it includes both types of appointment. It will be for the NI administration and the Irish Government to agree whether they wish to retain such an arrangement in respect of internal appointments.

15. For our part, we might consider whether there is any scope for introducing an element of reciprocity here by seeking the right to make nominations to Irish bodies with a role in non-transferred matters. It may be preferable for political reasons to have a provision which we have no great interest in activating rather than no provision at all. And the Irish themselves, having discovered through experience that the right to nominate is not the same as the right to appoint, may not object too strongly.

Article 7

16. Paragraph 11 above refers. The Irish right of consultation on security policy, confidence issues or prisons policy is likely to continue in that these will be non-transferred matters, although ideally we would find a formulation which would imply that the interest was reciprocal. This would not be entirely contrived. We do have an interest for example in the way security resources are allocated in the Republic, in the possibility of Garda leaks to PIRA and in the transfer of prisoners. The programme of special measures at Article 7(b) is now largely out of date. The Irish will no doubt have plenty of ideas as to how it might be updated. For our part we might ensure that any new list focuses on initiatives for which both Governments can take responsibility. But we could alternatively argue that we should avoid including in the treaty any elements which will subsequently become outdated, and should concentrate on setting out general aims rather than specific objectives. In the best of all possible worlds this might get us out of the imbroglio created by undertaking on accompaniment in the joint communiqué. But this is unlikely to be a bone which the Irish will easily be persuaded to drop.

Article 8

17. Experience has shown that neither Government is particularly interested in the provisions in Article 8 relating to harmonisation of criminal law. The Irish are no doubt attracted to the idea but have found the task too Herculean to contemplate as yet. This does not mean that they will be happy to drop the idea but we might argue that it brings the agreement into disrepute to have too many provisions which are manifestly not being implemented. Extradition and extra-territorial jurisdiction are a must and it is for consideration whether there would be benefit in introducing further provisions in relation to Council of Europe and EC developments.

Article 9

18. The programme of work to be undertaken by the Chief Constable and Garda Commissioner at Article 9 is now arguably out of date and we might use the opportunity of negotiating a new agreement to set out our more pressing objectives. But the arguments in para 16 equally apply here: we should perhaps restrict the treaty to statements of principle rather than suggesting a narrow focus which might become outdated.

Article 10

19. Economic and social co-operation will largely fall to new North/South machinery. There will of course be wider UK/ROI aspects but these will come under the AIIC umbrella and need not be spelt out in the treaty. Indeed if we begin to specify too closely what bilateral matters might be discussed we may get into a dangerous 'Kilburn' territory. As far as Article 10(a) is concerned the patriarchal role implied by the two Governments seeking international support for both parts of Ireland is perhaps best dispensed with, leaving all-Ireland support (including the IFI) primarily the responsibility of North/South arrangements.

Article 11

20. It may be worthwhile trying to build in a further mechanism for the review of the Conference after a year or two. On the assumption that the negotiations will not go entirely our way it might give us a second bite at getting things changed. And a review mechanism might be one way of discouraging the Irish from trying in the meantime to retain their locus in transferred matters on the basis that a devolved government might prove impossible to sustain.

Article 12

21. As the 4 June paper points out, the Agreement could refer to but not seek to regulate interparliamentary arrangements, which might be expanded to include representatives of the Assembly.

• British Government: Successor to the Agreement (introduced on 1992-06-16 09:00:00 - CREATE - e903380) [This document]

• British Government: Successor to the Agreement (introduced on 1992-06-16 09:00:00 - CREATE - e903380) [This document] [view current proposal at this moment]