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. It should be read in conjunction with the papers already submitted Strands 2 and 3, the Constitutional Issue and Articles 2 and 3 of the Irish Constitution. Our primary objectives are perhaps as follows:

First and foremost, to reach agreement on a new and more broadly based agreement or structure which has widespread support amongst both Unionist and nationalist parties and communities, is conducive to a comprehensive political accommodation in Northern Ireland and avoids damage to our relations with the Republic of Ireland. 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.

Second, to maintain a framework for effective co-operation between the two Governments, particularly in respect of the security situation.

Third, to make the changes to the Agreement necessary to take account of the existence of a devolved government in Northern Ireland and of any new institutional arrangements for co-operation and consultation established between any new political institutions in Northern Ireland and the Irish Government.

Fourth, 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 need for restricted sessions with the Irish Government while maintaining links with the parties and being sufficiently frank to avoid either side disowning the process.

Unionist position

3. While the outward manifestations of Unionist objection to the Agreement have lessened over the years, 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. Their acquiescence in a new Agreement could, however, be secured provided that they were consulted in advance over its terms, provided that any new document was in a sufficiently different format from the new 1985 Agreement to resist accusations of having climbed down from their opposition to the Agreement, and probably provided that the Irish Government amended Articles 2 and 3 of their Constitution. On this basis they could be prepared to accept continuing machinery for intergovernmental consultation in matters which remain the responsibility of the Secretary of State. But this will not be an easy trick to take. Their own 'British Irish Agreement' put to HMG in 1988 envisaged a special locus for ROI in NI affairs only to the extent that Northern Ireland representatives would have 'periodic contacts as part of a UK team in meeting Republic of Ireland Ministers concerning non-transferred functions.' And 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.

This should not perhaps be taken wholly at face value, but it does reveal the essential position. The main message may be that any new all-Ireland institutions should not have more than a consultative role. But the Unionists will also be pressing for better balance in inter-governmental arrangements.

Irish Government/SDLP Position

4. The Irish Government is already under pressure to amend its Constitution from all parties except Fianna Fail [sic], where sentiment lies in exactly the opposite direction. The extent to which it will in addition be prepared to relinquish the special locus which the Agreement has given it in Northern Ireland will depend on what is agreed as an alternative. It will be readier to accept changes if there is agreement in Strand 2 on some form of all-Ireland Council and agreement is reached in Strand 1 on specific provisions for the minority community.

HMG's objectives

5. The position which HMG might adopt in Strands 2 and 3 was examined in an earlier paper (4 June). 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. 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 should aim to drop specific references to Northern Ireland at this point. We need to be careful, both in any new preamble and 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. To recognise in a document of this kind the existence of 'two traditions' or 'communities' in Northern Ireland is arguably 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. One advantage to HMG in the distinction drawn in the current preamble between 'those who aspire to a sovereign united Ireland achieved by peaceful means and through agreement' and 'those who wish for no change in the present status of Northern Ireland' has been the helpful construction it has enabled us to put on Article 1(a) where the status of Northern Ireland is not defined. But this would no longer have the same importance if we succeeded in our objective of getting an explicit Article 1(a).

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 because this could not be done without amending Articles 2 and 3 of the Irish Constitution and the Irish Government concluded that the deal on offer was not sufficient for them to carry a referendum on amendment. Article 1(a) therefore 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 require an explicit acknowledgement 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. But a new Agreement which fails to clarify the constitutional position will lack credibility and it is hard to conceive of any new Agreement which did not contain it gaining widespread acceptance. This would in turn jeopardise, possibly fatally, the chances of a successful outcome to the Talks process. And Article 1(a) is in tactical terms the right way for HMG to broach the question of Articles 2 and 3 with the Irish.

8. We might also consider whether to secure an explicit acknowledgement that the constitutional status of Northern Ireland as part of the UK could and should (not merely 'would') only change with the consent of a majority of the people of Northern Ireland. It was constitutional considerations which prevented the Irish from agreeing to this in 1985.

9. The maintenance of Article 1(c) is likely to be a nationalist/Irish Government sine qua non for improvement in Article 1(a). It may be best to make it clear at the outset that we envisage the maintenance of this link. It has been argued that this article, which effectively promises a united Ireland as soon as 50% + 1 so wish, does not take account of the notion that if Irish unity is to be sustained it should have the support of a majority of both main parts of the community in Northern Ireland. 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 50% 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 rather than the Unionists who have so far drawn attention to the problem. 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. If in the event the 50% + 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. But for now it seems advisable not to start uncontrollable hares by suggesting a departure from the current formula.

Article 2

10. 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 on 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. There will also be established, under this framework

(i) a [Council of Ministers - on whatever is agreed in Strand 2 - we should not pre-empt this] 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.

There will be a reciprocal consultation right about any policy development or initiative in either jurisdiction with implications for non-transferred matters.

11. The AIIC umbrella formulation used in 1985 is maintained. Elaboration can be undertaken at whatever length is appropriate to meeting Unionist concerns to make provision for the conduct of the totality of relations. HMG's interests do not require (and may be inhibited by) detailed provision in the treaty for the conduct of East/West relations. One compromise would be to deal with this in a communique to accompany the agreement.

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 might aim to introduce a provision to enable NI Ministers or Committee Chairmen to attend on a regular basis perhaps by invitation. We should wish to retain the ability to discuss matters privately with the Irish Government, with no local politicians present. But as the 4 June paper noted, there would be advantage for HMG in having Northern Ireland spokesmen, especially if that included Unionists, present at Conferences to give local views on matters under consideration and to demonstrate that there really are two sides to most arguments. It also seems desirable that the arrangements for liaison between HMG and the local administration about the interests of the latter in non-transferred matters should be mirrored by arrangements taking account of their legitimate interest in the cross-border or all-Ireland aspects of such matters. An additional spin-off might be that it would help to encourage the SDLP to represent minority interests in as broad a field as possible, on their own (ie without the Irish Government). On some matters (eg EC matters) the three authorities might need to enter a tripartite formation but this might be under the auspices of North/South arrangements rather than the IGC.

(ii) The continuance of the Secretariat at Maryfield makes logistical sense but we should not underestimate the strength of the Unionist desire to disband the institution. A resolution of the constitutional difficulties may help, perhaps by providing a basis on which we could persuade the Unionists to regard the Secretariat as a piece of only slightly abnormal diplomatic machinery. But we may be obliged to consider alternatives. An Irish Consular Office in Belfast for example might be acceptable to all sides if Articles 2 and 3 were amended and a Council of Ministers provided an all-Ireland consultative forum. But there might be problems in constructing the necessary 'Chinese walls' if the same mechanism were to serve both North/South and East/West arrangements.

(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. Article 5 is also concerned with the protection of human rights and the prevention of discrimination. The Secretary of State and/or Westminster may retain some responsibility for human rights insofar as they are the guarantors of any Bill of Rights or other entrenched human rights provisions. At this level the Irish could certainly retain an interest. But particular anti-discrimination laws (eg Fair Employment) which were transferred should be the concern of NI institutions.

Article 6

14. As far as appointments are concerned, it is for consideration whether the Irish should retain any right to make nominations, even when the Secretary of State's responsibilities are concerned. Under a devolved arrangement the minority's interests would ideally by represented by the local institutions (including the Panel) without recourse to the Irish. Local institutions (including the Panel) should have at least equal rights with the Irish, but if both were able to put forward views this would effectively "double-bank" the minority.

Article 7

15. The Irish right of consultation on security policy, confidence issues or prisons policy would continue under the formulation suggested in paragraph 10. This reciprocity could be useful to HMG. 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 includes 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. We should certainly oppose any attempts to persuade us to include a commitment to a 100% accompaniment of all or designated Army patrols. We might further suggest specific machinery to deal with security matters.

Article 8

16. Since the Agreement was signed neither Government has shown much interest in the provisions in Article 8 relating to harmonisation of criminal law and the possibility of mixed courts. But Mr Nally's recent comments to HMA Dublin (which may or may not have the Irish Government's backing) revealed that they may have an interest in pursuing the idea of linkages between the judiciaries, perhaps entailing judges from North/South sitting in each other's courts on an all-Ireland basis, and the joint appointment of judges. 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

17. 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 if 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. If it is considered necessary to set out in detail current specific elements for inter-governmental discussion, consideration could be given to doing so in an accompanying communiqué.

Article 10

18. 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 the unwelcome territory of Irish intervention in GB affairs. As far as Article 10(a) is concerned the two Governments might continue to have a role in seeking international support for both parts of Ireland although the administration of the IFI might become primarily the responsibility of North/South arrangements.

Article 11

19. It may be worthwhile trying to build in a further mechanism for the review of the Conference after a year or two. 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. But it may be necessary to incorporate 'default' clauses so that the agreement itself would not fall if any new institutions were to collapse.

20. Another possibility would be to time limit the Agreement to a pre-specified number of years to balance the need for both flexibility and stability.

Article 12

21. As the 4 June paper points out, the Agreement could refer to but not seek to regulate interparliamentary agreements, which might be expanded to include representatives of the Assembly. The Irish Government may however be looking for an exclusively North/South parliamentary tier if Mr Nally's recent comments are representative.

• British Government: Successor to the Agreement 19.06.1992 (introduced on 1992-06-19 09:00:00 - CREATE - e932910) [This document]

• British Government: Successor to the Agreement 19.06.1992 (introduced on 1992-06-19 09:00:00 - CREATE - e932910) [This document] [view current proposal at this moment]