TALKS: PAPER ON SUCCESSOR TO THE AGREEMENT

1. Thank you for copying to me your note of 16 June to Mr Cooke covering a draft paper on objectives for a successor to the Anglo-Irish Agreement. I have also seen copies of HMA's, Peter Bell's, Graham Archer's, and David Hill's responses of 17 June.

2. In general, I think it would be wise to start with a clean sheet in terms of what we wish to achieve by way of a new agreement, and then compare it with the 1985 model. Otherwise, as we seem to in places, we may be too ready to modify our objectives at this stage in the light of experience and known positions adopted over the last six years by the Irish Government in relation to the current Agreement.

3. I have a number of comments to make both on your draft paper, and the views which have been expressed on it.

Paragraph 1. I agree with Graham Archer's proposed amendment to the first tiret subject to the following further amendment. Add after "agreement or structure", "which has widespread support amongst both Unionist and Nationalist parties and communities and avoids damage to.....". This would chime in well with Peter Bell's thinking. We might also add: "Since this is likely to require Irish moves to amend Articles 2 and 3 of their Constitution, this should also be amongst our primary aims."

Paragraph 2. I think the present formulation is rather unwieldy and prefer the version suggested by Graham Archer.

Paragraph 3. The position of the Unionists both in relation to the Agreement and on the Talks generally is not wholly clear, though I think that your formulation is closer to the mark that Graham Archer's. As I perceive it, the outward manifestations of objection have lessened, but both the essential hurt at non-consultation and objection to (as they see it) Irish Government involvement (at least while Articles 2 and 3 are in place) remain unabated. The Unionist letter of 9 June should not perhaps be taken wholly at face value, but it does reveal the essential position. I am happier with Peter's formulation, although I would add a third proviso in the second sentence along the lines that "..... and probably on the basis that the Irish Government amended Articles 2 and 3 of their constitution".

Paragraph 4. The Irish have not indicated any desire to have a "Commissioner" role. The conversation which the Secretary of State had with Noel Dorr on Tuesday of this week confirmed that the Irish Government were not necessarily committed to John Hume's model.

Paragraph 5. The question of "trade-offs" might prove to be more complex than as stated. Unlike David Hill, I do not recall the DUP explicitly acknowledging the continued role for the Dublin Government in the non-transferred field, though I do agree that what Peter Robinson had to say on the subject, albeit in an elliptical way, could be so interpreted. The trade-offs you suggest therefore seem to be broadly right, but we should be ready for the unexpected from all sides.

Paragraph 6. I agree that the preamble can serve a useful purpose. But I do think that we need to be careful, both in any new preamble and in any new articles, to play down any explicit role for the Irish Government as protector of Catholic and nationalist interests in Northern Ireland, since the effect of the 1985 Agreement in this area is widely viewed as having tended to entrench, not heal, community divergences. Moreover, I would not put too much weight - in this section or in any other part of a new agreement - on the thought that the Irish will not easily be persuaded to drop the current wording. They may indeed be hard to shift, but we must avoid that attitude which starts from the proviso that the Irish always have the moral high ground and so we must always concede. The reality is that we have substantial moral, political and economic authority on the question of Northern Ireland which we should be ready to deploy skilfully. Equally the Irish must recognise that there has to be give and take in these negotiations.

Paragraph 7. Notwithstanding HMA's argument, I agree that Article 1(a) is in tactical terms the right way for HMG to broach the question of Articles 2 and 3 of the Irish Constitution with them. Changes in Articles 2 and 3 are a realistic requirement, rather than a mere desideratum: I agree with Peter Bell's redraft. I also share David Hill's strong preference for "could" and "should".

Paragraph 8. I have sympathy with those who have expressed the view that the simple 50% plus 1 majority was in hindsight a mistake. Nevertheless, I agree that it would not be advisable to start uncontrollable hares by suggesting any departure from the current formula. If in the event the 50% plus 1 mark were reached we would presumably have to put some weight on the words "clearly wish for" used in the text of the current Agreement. My argument for a review in 20 years (see last para below) would also be relevant and helpful in meeting the sort of argument that (pace David Hill) the SDLP have advanced.

Paragraph 9. David Hill's point is well made here in relation to (i) and (ii).

Paragraph 10. I can see no prospect of the position suggested here being realistic, unless the SDLP were comfortable not just that their position was assured in relation to the exercise of transferred powers but also that they could exercise influences over HMG's conduct of non-transferred powers: but then the Unionists would probably not accept what they would see as imbalance. I think we ought not to venture (i) at all.

On (iii), distinctions plainly have to be made between security and economic/social co-operation (which will have reverted to local institutions). We equally clearly want the IGC to deal with cross-border security.

Paragraph 12(i). We must be very careful not to perpetuate the perception that the minority has two supporters' clubs (Irish and SDLP), while the Unionists are on their own (ie, without HMG). On the other hand we should, throughout a new agreement, encourage the SDLP on their own (ie, without the Irish Government) to represent minority interests in as broad a field as possible. This may need some brokering, and attendance at conferences may provide a basis for doing so. We should also acknowledge in this section that on some matters the three authorities might need to enter a tripartite formation in respect of certain issues as previously discussed in earlier exchanges.

Paragraph 12(ii). A possible alternative which we are obliged to consider is the possibility of an Irish Consular Office in Belfast which might be acceptable to all sides if Articles 2 and 3 were amended and a Council of Ministers provided an all-Ireland consultative forum.

Paragraph 13. The concept of "transferred matters only where ancillary to non-transferred matters" remains unclear. While this seems right in principle, the paper would benefit from identification of some practical examples.

Paragraph 14. I do not entirely agree with the first sentence of this paragraph. Under a devolved arrangement the Secretary of State no longer has a role in the majority of public appointments, and it will be for the new political institutions, possibly including the Panel, to decide these without recourse to the Irish. Where the Secretary of State retains responsibility for public appointments, eg the Police Authority, should the minority's interests not be represented by the local institutions (including the Panel) having a right to put forward views and proposals, without being reinforced by an Irish input? Alternatively, local institutions (including the Panel) should have at least equal rights, though this "double-banks" the minority. As to the last sentence, is HMG content to leave appointments arrangements as an internal matter? - we need to take a position on any Irish rights too.

Paragraph 15. This paragraph seems to be returning to the old reciprocity argument where, as David Hill points out, we have no interest in getting involved with matters which are properly the concern of the Irish Government, although a new local administration will have an interest in cross-border matters with all-Ireland interests in the transferred field.

Paragraph 20. While I see the attraction of a review mechanism, I am inclined to the view that we should time limit any new Agreement to 15-20 years. This was an idea put forward by Colm Larkin (McSharry's Chef de Cabinet, close to the SDLP) in a paper which was circulated earlier this month to the Talks Team. This has the merit of stability on the one hand while allowing for changes in political sentiment to be reflected in fresh arrangements on the other. As such it could appeal to both sides (and we have some grounds in the origin of the idea for believing that the SDLP might buy it). Equally it allows for the gradual process which might play against the risks inherent in 50% plus 1.

• David Fell: Comments on Successor to the Agreement Paper 18.06.1992 (introduced on 1992-06-18 09:00:00 - CREATE - e932904) [This document]

• David Fell: Comments on Successor to the Agreement Paper 18.06.1992 (introduced on 1992-06-18 09:00:00 - CREATE - e932904) [This document] [view current proposal at this moment]