Reconciling Ireland: Fifty Years of British–Irish Agreements, edited by Richard Humphreys by Irish Academic Press

Edited by Richard Humphreys, BCL (NUI), LLM (NUI), PhD (Dub.), FRSA, FRAS, FZSL, FRGS with forewords by Simon Coveney TD, Minister for Foreign Affairs and The Rt Hon Brandon Lewis, CBE, MP, Secretary of State for Northern Ireland Published with the support of the Reconciliation Fund of the Department of Foreign Affairs

CONTENTS Foreword by Minister for Foreign Affairs �� ix Foreword by Secretary of State for Northern Ireland �� xi

Introduction �� xiii Acknowledgements ��xv

List of abbreviations ��xvi 1 – Sunningdale Agreement, 9 December 1973 �� 1 2 – Anglo-Irish Agreement, 15 November 1985 �� 9 3 – International Fund for Ireland Agreement, 18 September 1986 (In force) �� 19 4 – Downing Street Declaration, 15 December 1993 �� 26 5 – Frameworks for the Future – Joint Framework Documents, 22 February 1995 �� 34 6 – Communiqué on Twin-track Process, 28 November 1995 �� 66 7 – Joint Communiqué, 28 February 1996 �� 69 8 – Ground Rules for Substantive All-party Negotiations, 16 April 1996 �� 74 9 – Independent International Commission on Decommissioning Agreement, 26 August 1997 �� 81 10 – Agreement reached in Multi-party Talks: the Belfast/ Good Friday Agreement, 10 April 1998 �� 87 11 – British–Irish Agreement, 10 April 1998 (In force) �� 128 12 – Agreement establishing the North/South Ministerial Council, 8 March 1999 (In force) �� 134 13 – Agreement establishing North/South Implementation Bodies, 8 March 1999 (In force) �� 138 14 – Exchange of Letters regarding the Implementation Bodies Agreement, 8 March 1999 �� 173 15 – Agreement establishing the British–Irish Council, 8 March 1999 (In force) �� 176 16 – Agreement establishing the British–Irish Intergovernmental Conference, 8 March 1999 (In force) �� 179

17 – Independent Commission for the Location of Victims’ Remains Agreement, 27 April 1999 (In force) �� 182 18 – Exchange of Letters supplementary to the Implementation Bodies Agreement, 18 June 1999 (In force) �� 187 19 – Exchange of Letters amending the International Fund for Ireland Agreement, 27 September & 10 October 2000 (In force) �� 190 20 – Weston Park Agreement, 1 August 2001 �� 195 21 – Exchange of Notes regarding the North/South Ministerial Council and North/South Implementation Bodies, 19 November 2002 �� 203 22 – Joint Declaration, Agreement on Monitoring and Compliance, and Proposals on On the Runs, 1 May 2003 �� 210 23 – Independent Monitoring Commission Agreement, 25 November 2003 �� 241 24 – Interpretative Declaration regarding Citizenship, 19 April 2004 �� 249 25 – Proposals published after Leeds Castle Talks, 8 December 2004 �� 253 26 – Armagh Joint Statement, 6 April 2006 �� 272 27 – Joint Statement and Work Plan, 29 June 2006 �� 276 28 – Exchange of Letters regarding Implementation Bodies, 25 July 2006 (In force) �� 281 29 – St Andrews Agreement, 13 October 2006 �� 285 30 – British–Irish Agreement regarding the St Andrews Agreement, 22 March 2007 (In force) �� 292 31 – Hillsborough Castle Agreement, 5 February 2010 �� 297 32 – Exchange of Notes terminating Independent Monitoring Commission Agreement, 24 & 30 March 2011 (In force) �� 309 33 – Exchange of Notes terminating Independent International Commission on Decommissioning Agreement, 24 & 30 March 2011 (In force) �� 314 34 – Exchange of Notes amending the Implementation Bodies Agreement, 8 & 13 September 2011 (In force) �� 319 35 – Joint Statement regarding British–Irish Relations – The Next Decade, 12 March 2012 �� 323 36 – Stormont House Agreement, 23 December 2014 �� 330 37 – Agreement on Independent Commission on Information . . . . . Retrieval, 15 October 2015 �� 344

38 – A Fresh Start – the Stormont House Agreement and Implementation Plan, 17 November 2015 �� 358 39 – Independent Reporting Commission Agreement, 13 September 2016 (In force) �� 405 40 – New Decade, New Approach, 9 January 2020 �� 411 Index �� 468

FOREWORD BY MINISTER FOR FOREIGN AFFAIRS

Reconciling Ireland is an indispensable reference work for any official or polit ician on these islands, students of the craft of negotiation and all those striving to broker peace in their communities. In Reconciling Ireland, Mr Justice Richard Humphreys has for the first time brought together in one volume five decades of British–Irish agreements relating to Northern Ireland. In the years leading up to the Good Friday Agreement and in the years that followed, it allows us to trace the evolution of the relationship between these islands through these formal milestones, while also casting light on their political origins and wider context. Appraising these agreements in the round affords the reader the chance to adopt a new perspective on fifty years of negotiations. Reconciling Ireland draws out the many common themes of principle underlying all these agreements, which were expressed most comprehensively, and subsequently endorsed so overwhelmingly North and South, in the form of the Good Friday Agreement itself. This volume demonstrates that the peace process was not simply that culminating moment in 1998, but an ongoing process to prepare the ground for that agreement, deliver on it, build on it and realise its wider positive vision. What could never be adequately captured in a compendium of this sort are the mammoth efforts and investment not only by politicians and officials in Northern Ireland and from both governments, but by committed people from all communities that led to each individual agreement. Courageous political decisions were required of the political leaders of all parties in Northern Ireland at different points, and these agreements would not have happened without that courage. The role of our international friends, above all from the United States and the European Union, was critical to the achievement of so many of the agreements collected here. They were valued allies, participants and supporters of the process, and their role should always be remembered with profound gratitude. These agreements were also only possible because of the work consistently being done in civil society and in local communities to advance reconciliation and drive the momentum for change. These then are the views from the summits, often after months and years of patient and arduous climbs, after false starts and perseverance through often very challenging conditions.

RECONCILING IRELAND

These agreements were all difficult compromises, but each one is testament to a tremendous and sustained collective determination to ensure a peaceful future for Northern Ireland. Each one is in itself a resolute rejection of violence to achieve political ends. Each one is an expression of our shared ambition to positively transform relationships within Northern Ireland, on the island of Ireland North and South, and between these islands. In these days, it is deeply encouraging to be reminded that no matter which parties are in government, and no matter what the wider context, there is this driving force we share to find agreement and to take step after step forward. Sometimes small, mostly hard won, but always forward. The Good Friday Agreement called on us to ‘strive in every practical way towards reconciliation and rapprochement within the framework of democratic and agreed arrangements’. That is what we see in this volume, and it remains as important as ever that we continue to dedicate ourselves to that goal. Simon Coveney TD Minister for Foreign Affairs

FOREWORD BY SECRETARY OF STATE FOR NORTHERN IRELAND

Looking back over fifty years of agreements between the UK and Ireland, I am conscious of the dedicated efforts of successive prime ministers, secretaries of state and officials who have worked in the pursuit of peace and stability in Northern Ireland. Just as the security and prosperity of Northern Ireland has been a top priority for successive governments, the development of a strong bilateral relationship between the UK and Ireland, working together as friendly neighbours, has been a vital part of this story. Without the combined and sustained efforts of public servants and elected officials in both countries, the accords commemorated in this book would not have been possible. In recognising the progress made in the early years of this century, we also remember those individuals from across these islands who sacrificed so much for the security of the people of Northern Ireland. It is thanks to their dedication and sacrifice that we are in a much better position today. The Belfast (Good Friday) Agreement is rightly recognised as a key milestone in our recent history. The genius of that agreement – and the reason it remains an exemplar to peacebuilders across the world – lies in its successful balancing of the aspirations of all communities in Northern Ireland and in its commitment to resolving differences using exclusively peaceful and democratic means. The agreement contains important constitutional safeguards and acknowledges rights of the different political traditions in Northern Ireland. But though we rightly look back on the significant progress made in healing divisions in Northern Ireland, we must also recognise the work that remains to be done. Everyone who holds influence in Northern Ireland must strive to promote better understanding between communities as we work in the interests of a shared society. I commend the political leaders of today whose steadfast commitment allows Northern Ireland to flourish and who uphold the hard-won peace of past agreements. The people of Northern Ireland have faced a lot over the last fifty years, but they have always shown resilience and determination in their search for a better future. Whilst there are many challenges ahead, I truly believe it is vital that we move forward together in the spirit of peace and collaboration. In the year of Northern Ireland’s centenary, it is right that we reflect on the events of the past with the appropriate solemnity but also look forward with hope and optimism. I am truly confident that as we progress further into this new decade, we can continue on a path of co-operation. Whilst there will no doubt

xii

RECONCILING IRELAND

be difficult moments ahead, I remain committed to upholding the sentiment in which the agreements in this book were made. Rt Hon Brandon Lewis CBE MP, Secretary of State for Northern Ireland

INTRODUCTION

The agreements collected in this volume are the work over half a century of the two governments – led on the Irish side by the Taoiseach of the day, working in close collaboration with the Ministers for Foreign Affairs and Justice, and their respective officials, and on the UK side by the Prime Minister and Secretary of State for Northern Ireland and their sets of officials – and the Northern Irish political parties. Editing that work has been a very modest task by comparison, selecting those of most pivotal importance and adding short contextual notes. But the agreements themselves stand as monuments to the work of leaders on all sides, and above all of unheralded public servants in both governments and in Northern Ireland. The history of British–Irish co-operation in relation to Northern Ireland is sometimes obscured by a parallel story of conflict and crisis. But looking back over nearly fifty years of Anglo-Irish co-operation since Sunningdale, there is much to celebrate. The two governments have frequently been bold and far-seeing, with other interested parties tragically taking time to catch up. Sunningdale itself, rejected by republicanism and brought down by unionism, was ultimately adopted in recast form through the Good Friday Agreement. So much conflict could have been forestalled had it been embraced at the time. The Anglo-Irish Agreement, again rejected by pan-unionism, transformed the narrow internal perspective of the problem and was again recast and substantially incorporated in the Good Friday settlement, with the Irish dimension and the right to put forward views and proposals incorporated in the British–Irish Intergovernmental Conference. Most recently, negotiations between the Democratic Unionist Party and Sinn Féin in 2018 could not be brought across the line, and required considerable further work in a broader process convened by the governments and involving the five largest parties, finally culminating in agreement in January 2020. Close co-operation by the governments to implement the Good Friday Agreement and related agreements will be fundamental to negotiating the wider challenges that lie ahead. Peacefully navigating future debates will require not only fairness and good faith from both governments but also immense patience, diplomacy and flexibility. The publication of this record of nearly fifty years of intergovernmental agreement gives solid ground for optimism that the two governments will meet those challenges. This compilation of agreements was inspired by a handbook presented to me over a quarter of a century ago when, as a ministerial adviser at the margins of

xiv

RECONCILING IRELAND

the Irish delegation, I attended the start of multi-party talks in Castle Buildings in June 1996. The Anglo-Irish Division of the Department of Foreign Affairs had put together ten key agreements and documents in a single convenient 122-page volume entitled All-Party Negotiations Background Documents June 1996 for the information of delegation members. This work is the descendant of that important volume. That and many other dedicated efforts towards political agreement, peace and reconciliation by the Irish government that I witnessed first-hand at that time made a deep impression on me. The present work brings together major British–Irish agreements and related documents over the past fifty years, whether legal or political, including some that are not currently in force. Most are agreements between or involving the governments, and include some agreements between political parties to which the governments acted as midwife. Readers might note that I have endeavoured to keep the versions in this volume as close as possible to the official versions, and therefore have not generally corrected any issues of inconsistency or grammar in the officially available text. Finally, I should emphasise that any commentary, views or analysis accompanying the text of the agreements is mine alone, and does not carry any implication regarding the views of the governments. The information as to the current legal status of agreements is stated as of 1 March 2021. Richard Humphreys 1 March 2021

1 Sunningdale Agreement, 9 December 1973

On 30 March 1972, the old single-party-rule UUP (Ulster Unionist Party)dominated Stormont institutions were suspended. Direct rule from Westminster was introduced. In March 1973, the British government published a white paper proposing a new assembly to be elected by proportional representation (PR). The Northern Ireland Assembly Act 1973 implemented this proposal, providing for multi-member constituencies with between six and eight members, corresponding to each Westminster constituency. In June 1973, elections to a new Northern Ireland Assembly took place, and in November 1973, agreement was reached for the formation of a voluntary three-party coalition involving the UUP, SDLP (Social Democratic and Labour Party) and Alliance. At a conference from 6 to 9 December 1973 at the Civil Service College, Sunningdale Park in Berkshire, involving members of the Northern Ireland Executive (designate) (the main parties, UUP and SDLP and Alliance being led by Brian Faulkner, Gerry Fitt and Oliver Napier respectively) and the two governments (led by Prime Minister Edward Heath and Taoiseach Liam Cosgrave), a historic communiqué (known as the Sunningdale Agreement) was issued. The agreement provided for any change to the status of Northern Ireland to be by consent, a British agreement to support any such consent if given, a Council of Ireland involving a council of ministers bringing together both governments on the island and a consultative assembly involving both legislatures on the island. Provision was also made for cooperation on criminal-justice matters. Action was taken on foot of that aspiration with the establishment of a Law Enforcement Commission, which reported in 1974, leading to the enactment of the Criminal Law ( Jurisdiction) Act 1976 facilitating trial of cross-border offences. On 17 December 1973, former Fianna Fáil Minister and Aontacht Éireann chairman Kevin Boland brought proceedings in the High Court of Ireland seeking to have the agreement declared unconstitutional. The proceedings were dismissed, as was an appeal, and judgments were delivered in the Supreme Court on 1 March 1974. The judgment of Chief Justice FitzGerald was,

RECONCILING IRELAND

however, unhelpful to the atmosphere in which the agreement was received, in that he held that the acknowledgement of the status of Northern Ireland was as to its de facto status only. The President of the High Court, Mr Justice O’Keefe, said in effect that the State was entitled as of right to jurisdiction over Northern Ireland under the constitution. While other judges provided narrower grounds for the decision, the overall outcome of the litigation was seen as weakening the credibility of the agreement. The new executive took office on 1 January 1974. The reaction to the agreement was military, political and industrial. The Sunningdale Agreement was vehemently opposed by significant strands of unionism and loyalism. An Ulster Army Council was established involving the UDA (Ulster Defence Association) and UVF (Ulster Volunteer Force) to oppose it, and a pan-unionist United Unionist Ulster Council was set up which successfully contested the following Westminster election on an antiagreement platform. The final blow was a general workers’ strike called by the Ulster Workers Council in May 1974 that led to the resignation of the Chief Executive Brian Faulkner and the collapse of the executive on 28 May 1974. It was to take a quarter of a century before the damage was repaired. SDLP Deputy Leader Seamus Mallon famously described the Good Friday Agreement as ‘Sunningdale for Slow Learners’, and the key elements of the Sunningdale communiqué were ultimately implemented in the 1998 Agreement through the principle of unity by consent; the agreement by the governments to support the decision of a majority of the people of Northern Ireland; implementation of the European Convention on Human Rights (ECHR); policing reforms; the power-sharing executive; and the establishment of North–South executive bodies, Ministerial Council and Parliamentary Association. The Sunningdale communiqué was a political agreement rather than a bilateral treaty. Paragraph 6 envisaged that it would be followed by a treaty, but this never happened.

Sunningdale Agreement, 9 December 1973

Communiqué issued following the Sunningdale Conference: Tripartite agreement on the Council of Ireland 1. The Conference between the British and Irish Governments and the parties involved in the Northern Ireland Executive (designate) met at Sunningdale on 6, 7, 8 and 9 December 1973. 2. During the Conference, each delegation stated their position on the status of Northern Ireland. 3. The Taoiseach said that the basic principle of the Conference was that the participants had tried to see what measure of agreement of benefit to all the people concerned could be secured. In doing so, all had reached accommodation with one another on practical arrangements. But none had compromised, and none had asked others to compromise, in relation to basic aspirations. The people of the Republic, together with a minority in Northern Ireland as represented by the SDLP delegation, continued to uphold the aspiration towards a united Ireland. The only unity they wanted to see was a unity established by consent. 4. Mr Brian Faulkner said that delegates from Northern Ireland came to the Conference as representatives of apparently incompatible sets of political aspirations who had found it possible to reach agreement to join together in government because each accepted that in doing so they were not sacrificing principles or aspirations. The desire of the majority of the people of Northern Ireland to remain part of the United Kingdom, as represented by the Unionist and Alliance delegations, remained firm. 5. The Irish Government fully accepted and solemnly declared that there could be no change in the status of Northern Ireland until a majority of the people of Northern Ireland desired a change in that status.

The British Government solemnly declared that it was, and would remain, their policy to support the wishes of the majority of the people of Northern Ireland. The present status of Northern Ireland is that it is part of the United Kingdom. If in the future the majority of the people of Northern Ireland should indicate a wish to become part of a united Ireland, the British Government would support that wish.

RECONCILING IRELAND

6. The Conference agreed that a formal agreement incorporating the declar ations of the British and Irish Governments would be signed at the formal stage of the Conference and registered at the United Nations. 7. The Conference agreed that a Council of Ireland would be set up. It would be confined to representatives of the two parts of Ireland, with appropriate safeguards for the British Government’s financial and other interests. It would comprise a Council of Ministers with executive and harmonising functions and a consultative role, and a Consultative Assembly with advisory and review functions. The Council of Ministers would act by unanimity, and would comprise a core of seven members of the Irish Government and an equal number of members of the Northern Ireland Executive with provision for the participation of other non-voting members of the Irish Government and the Northern Ireland Executive or Administration when matters within their departmental competence were discussed. The Council of Ministers would control the functions of the Council. The Chairmanship would rotate on an agreed basis between representatives of the Irish Government and of the Northern Ireland Executive. Arrangements would be made for the location of the first meeting, and the location of subsequent meetings would be determined by the Council of Ministers. The Consultative Assembly would consist of 60 members, 30 members from Dáil Éireann chosen by the Dáil on the basis of proportional representation by the single transferable vote, and 30 members from the Northern Ireland Assembly chosen by that Assembly and also on that basis. The members of the Consultative Assembly would be paid allowances. There would be a Secretariat to the Council, which would be kept as small as might be commensurate with efficiency in the operation of the Council. The Secretariat would service the institutions of the Council and would, under the Council of Ministers, supervise the carrying out of the executive and har monising functions and the consultative role of the Council. The Secretariat would be headed by a Secretary-General. Following the appointment of a Northern Ireland Executive, the Irish Government and the Northern Ireland Executive would nominate their representatives to a Council of Ministers. The Council of Ministers would then appoint a Secretary-General and decide upon the location of its permanent headquarters. The Secretary-General would be directed to proceed with the drawing up of plans for such headquarters. The Council of Ministers would also make arrangements for the recruitment of the staff of the Secretariat in a manner and on conditions which would, as far as is practicable, be consistent with those applying to public servants in the two administrations.

Sunningdale Agreement, 9 December 1973

8. In the context of its harmonising functions and consultative role, the Council of Ireland would undertake important work relating, for instance, to the impact of EEC membership. As for executive functions, the first step would be to define and agree these in detail. The Conference therefore decided that, in view of the administrative complexities involved, studies would at once be set in hand to identify and, prior to the formal stage of the conference, report on areas of common interest in relation to which a Council of Ireland would take executive decisions and, in appropriate cases, be responsible for carrying those decisions into effect. In carrying out these studies, and also in determining what should be done by the Council in terms of harmonisation, the objectives to be borne in mind would include the following: (1) to achieve the best utilisation of scarce skills, expertise and resources; (2) to avoid in the interests of economy and efficiency, unnecessary duplication of effort; and (3) to ensure complementary rather than competitive effort where this is to the advantage of agriculture, commerce and industry. In particular, these studies would be directed to identifying, for the purposes of executive action by the Council of Ireland, suitable aspects of activities in the following broad fields: (a) exploitation, conservation and development of natural resources and the environment; (b) agricultural matters (including agricultural research, animal health and operational aspects of the Common Agriculture Policy), forestry and fisheries; (c) co-operative ventures in the fields of trade and industry; (d) electricity generation; (e) tourism; (f ) roads and transport; (g) advisory services in the field of public health; (h) sport, culture and the arts. It would be for the Oireachtas and the Northern Ireland Assembly to legislate from time to time as to the extent of functions to be devolved to the Council of Ireland. Where necessary, the British Government will cooperate in this devolution of functions. Initially, the functions to be vested would be those

RECONCILING IRELAND

identified in accordance with the procedures set out above and decided, at the formal stage of the conference, to be transferred. 9. (i) During the initial period following the establishment of the Council, the revenue of the Council would be provided by means of grants from the two administrations in Ireland towards agreed projects and budgets, according to the nature of the service involved. (ii) It was also agreed that further studies would be put in hand forthwith and completed as soon as possible of methods of financing the Council after the initial period which would be consonant with the responsibilities and functions assigned to it. (iii) It was agreed that the cost of the Secretariat of the Council of Ireland would be shared equally, and other services would he financed broadly in proportion to where expenditure or benefit accrues. (iv) The amount of money required to finance the Council’s activities will depend upon the functions assigned to it from time to time. (v) While Britain continues to pay subsidies to Northern Ireland, such payments would not involve Britain participating in the Council, it being accepted never theless that it would be legitimate for Britain to safe-guard in an appropriate way her financial involvement in Northern Ireland. 10. It was agreed by all parties that persons committing crimes of violence, however motivated, in any part of Ireland should be brought to trial irrespective of the part of Ireland in which they are located. The concern which large sections of the people of Northern Ireland felt about this problem was in particular forcefully expressed by the representatives of the Unionist and Alliance parties. The representatives of the Irish Government stated that they understood and fully shared this concern. Different ways of solving this problem were discussed; among them were the amendment of legislation operating in the two jurisdictions on extradition, the creation of a common law enforcement area in which an all-Ireland court would have jurisdiction, and the extension of the jurisdiction of domestic courts so as to enable them to try offences committed outside the jurisdiction. It was agreed that problems of considerable legal complexity were involved, and that the British and Irish Governments would jointly set up a commission to consider all the proposals put forward at the Conference and to recommend as a matter of extreme

Sunningdale Agreement, 9 December 1973

urgency the most effective means of dealing with those who commit these crimes. The Irish Government undertook to take immediate and effective legal steps so that persons coming within their jurisdiction and accused of murder, however motivated, committed in Northern Ireland will be brought to trial, and it was agreed that any similar reciprocal action that may be needed in Northern Ireland be taken by the appropriate authorities. 11. It was agreed that the Council would be invited to consider in what way the principles of the European Convention on Human Rights and Fundamental Freedoms would be expressed in domestic legislation in each part of Ireland. It would recommend whether further legislation or the creation of other institutions, administrative or judicial, is required in either part or embracing the whole island to provide additional protection in the field of human rights. Such recommendations could include the functions of an Ombudsman or Commissioner for Complaints, or other arrangements of a similar nature which the Council of Ireland might think appropriate. 12. The Conference also discussed the question of policing and the need to ensure public support for and identification with the police service throughout the whole community. It was agreed that no single set of proposals would achieve these aims overnight, and that time would be necessary. The Conference expressed the hope that the wide range of agreement that had been reached, and the consequent formation of a power-sharing Executive, would make a major contribution to the creation of an atmosphere throughout the community where there would be widespread support for and identification with all the institutions of Northern Ireland. 13. It was broadly accepted that the two parts of Ireland are to a considerable extent inter-dependent in the whole field of law and order, and that the problems of political violence and identification with the police service cannot be solved without taking account of that fact. 14. Accordingly, the British Government stated that, as soon as the security problems were resolved and the new institutions were seen to be working effectively, they would wish to discuss the devolution of responsibility for normal policing and how this might be achieved with the Northern Ireland Executive and the Police. 15. With a view to improving policing throughout the island and developing community identification with and support for the police services, the

RECONCILING IRELAND

governments concerned will cooperate under the auspices of a Council of Ireland through their respective police authorities. To this end, the Irish Government would set up a Police Authority, appointments to which would be made after consultation with the Council of Ministers of the Council of Ireland. In the case of the Northern Ireland Police Authority, appointments would be made after consultation with the Northern Ireland Executive which would consult with the Council of Ministers of the Council of Ireland. When the two Police Authorities are constituted, they will make their own arrangements to achieve the objectives set out above. 16. An independent complaints procedure for dealing with complaints against the police will be set up. 17. The Secretary of State for Northern Ireland will set up an all-party committee from the Assembly to examine how best to introduce effective policing throughout Northern Ireland with particular reference to the need to achieve public identification with the police. 18. The Conference took note of a reaffirmation by the British Government of their firm commitment to bring detention to an end in Northern Ireland for all sections of the community as soon as the security situation permits, and noted also that the Secretary of State for Northern Ireland hopes to be able to bring into use his statutory powers of selective release in time for a number of detainees to be released before Christmas. 19. The British Government stated that, in the light of the decisions reached at the Conference, they would now seek the authority of Parliament to devolve full powers to the Northern Ireland Executive and Northern Ireland Assembly as soon as possible. The formal appointment of the Northern Ireland Executive would then be made. 20. The Conference agreed that a formal conference would be held early in the New Year at which the British and Irish Governments and the Northern Ireland Executive would meet together to consider reports on the studies which have been commissioned and to sign the agreement reached.

2 Anglo-Irish Agreement, 15 November 1985

A significant summit meeting between Taoiseach Charles J. Haughey and Prime Minister Margaret Thatcher on 8 December 1980 announced the setting up of joint inter-governmental studies which in time led to an Anglo-Irish Intergovernmental Council that was formalised by a heads of government meeting on 6 December 1981. Despite such progress, the background context was continued political stalemate, ongoing direct rule, continued violence, republican activism in the aftermath of the 1981 hunger strikes and the absence of any effective proposal to facilitate accommodation of both traditions in government in Northern Ireland. The New Ireland Forum was established in May 1983, bringing together all main constitutional nationalist parties on the island to report on future constitutional arrangements. Its report was published on 2 May 1984, the headline proposal being three alternative versions of Irish unity – a unitary state, a federal state or joint authority. On 19 November 1984, the Prime Minister Margaret Thatcher said at a press conference that each of these options was ‘out’. Ultimately, however, the argument for an ‘Irish dimension’ to Northern Irish governance, in order to accommodate constitutional nationalism, was persuasive, with the distinctive feature of the Anglo-Irish Agreement being the right of the Irish government to put forward views and proposals in relation to non-devolved matters in Northern Ireland. The agreement was signed at Hillsborough Castle in November 1985 by Taoiseach Garret FitzGerald and Prime Minister Margaret Thatcher. While broadly welcomed across the aisle in the UK, it was opposed on the grounds of being insufficiently reflective of republican aspirations by Fianna Fáil, Sinn Féin and others including Jeremy Corbyn MP. Simultaneously it was denounced as Irish interference in the UK by pan-unionist opinion. Unionist protests were, however, ineffective, and the agreement remained a cornerstone of Anglo-Irish relations. Indeed, the fact that unionist objections were faced down marked a significant break from the historical pattern whereby lawful decisions were set aside due to unionist protest, most recently in relation to Sunningdale. The basic elements and

RECONCILING IRELAND

dynamics of the 1985 agreement continue in being in the form of the 1998 agreement. The agreement was challenged in the Irish courts by the McGimpsey brothers of the Ulster Unionist Party, which resulted in a decision of the Supreme Court on 1 March 1990 upholding the agreement. However, that decision reasserted a nationalistic interpretation of Articles 2 and 3 of the Constitution of Ireland as a claim of legal right, with unity described as a constitutional imperative. The provision allowing the Irish government to put forward views and proposals in the interests of the minority community (viewed in Northern Irish terms) was seen as in no way an abandonment of the majority community (in Northern Ireland) and hence was not discriminatory. The Anglo-Irish Agreement was a bilateral treaty between the governments. It was terminated by Article 3 of the British–Irish Agreement of 1998. Treaty References: Irish Treaty Series: 1985 ITS 2. UK Treaty Series: 1985 UKTS 62, Cmnd. 9690. UN Treaty Series: 1413 UNTS 197, No. 23668.

Anglo-Irish Agreement, 15 November 1985

Agreement Between the Government of Ireland and the Government of the United Kingdom Done at Hillsborough on 15 November 1985 Notifications of Acceptance exchanged on 29 November 1985 Entered into force on 29 November 1985 The Government of Ireland and the Government of the United Kingdom: Wishing further to develop the unique relationship between their peoples and the close co-operation between their countries as friendly neighbours and as partners in the European Community; Recognising the major interest of both their countries and, above all, of the people of Northern Ireland in diminishing the divisions there and achieving lasting peace and stability; Recognising the need for continuing efforts to reconcile and to acknowledge the rights of the two major traditions that exist in Ireland, represented on the one hand by those who wish for no change in the present status of Northern Ireland and on the other hand by those who aspire to a sovereign united Ireland achieved by peaceful means and through agreement; Reaffirming their total rejection of any attempt to promote political objectives by violence or the threat of violence and their determination to work together to ensure that those who adopt or support such methods do not succeed; Recognising that a condition of genuine reconciliation and dialogue between unionists and nationalists is mutual recognition and acceptance of each other’s rights; Recognising and respecting the identities of the two communities in Northern Ireland, and the right of each to pursue its aspirations by peaceful and constitutional means; Reaffirming their commitment to a society in Northern Ireland in which all may live in peace, free from discrimination and intolerance, and with the opportunity for both communities to participate fully in the structures and processes of government;

RECONCILING IRELAND

Have accordingly agreed as follows: A. STATUS OF NORTHERN IRELAND Article 1 The two Governments (a) affirm that any change in the status of Northern Ireland would only come about with the consent of a majority of the people of Northern Ireland; (b) recognise that the present wish of a majority of the people of Northern Ireland is for no change in the status of Northern Ireland; (c) declare that, if in the future a majority of the people of Northern Ireland clearly wish for and formally consent to the establishment of a united Ireland, they will introduce and support in the respective Parliaments legislation to give effect to that wish. B. THE INTERGOVERNMENTAL CONFERENCE Article 2 (a) There is hereby established, within the framework of the Anglo-Irish Intergovernmental Council set up after the meeting between the two Heads of Government on 6 November 1981, an Intergovernmental Conference (hereinafter referred to as “the Conference”), concerned with Northern Ireland and with relations between the two parts of the island of Ireland, to deal, as set out in this Agreement, on a regular basis with (i) political matters; (ii) security and related matters; (iii) legal matters, including the administration of justice; (iv) the promotion of cross-border co-operation. (b) The United Kingdom Government accept that the Irish Govern ment will put forward views and proposals on matters relating to Northern Ireland within the field of activity of the Conference in so far as those matters are not the responsibility of a devolved

Anglo-Irish Agreement, 15 November 1985

administration in Northern Ireland. In the interest of promoting peace and stability, determined efforts shall be made through the Conference to resolve any differences. The Conference will be mainly concerned with Northern Ireland; but some of the matters under consideration will involve cooperative action in both parts of the island of Ireland, and possibly also in Great Britain. Some of the proposals considered in respect of Northern Ireland may also be found to have application by the Irish Government. There is no derogation from the sovereignty of either the Irish Government or the United Kingdom Government, and each retains responsibility for the decisions and administration of government within its own jurisdiction. Article 3 The Conference shall meet at Ministerial or official level, as required. The business of the Conference will thus receive attention at the highest level. Regu lar and frequent Ministerial meetings shall be held; and in particular special meetings shall be convened at the request of either side. Officials may meet in subordinate groups. Membership of the Conference and of sub-groups shall be small and flexible. When the Conference meets at Ministerial level an Irish Minister designated as the Permanent Irish Ministerial Representative and the Secretary of State for Northern Ireland shall be joint Chairmen. Within the framework of the Conference other Irish and British Ministers may hold or attend meetings as appropriate: when legal matters are under consideration the Attorneys General may attend. Ministers may be accompanied by their officials and their professional advisers: for example, when questions of security policy or security co-operation are being discussed, they may be accompanied by the Commissioner of the Garda Síochána and the Chief Constable of the Royal Ulster Constabulary; or when questions of economic or social policy, or co-operation are being discussed, they may be accompanied by officials of the relevant Departments. A Secretariat shall be established by the two Governments to service the Conference on a continuing basis in the discharge of its functions as set out in this Agreement. Article 4 (a) In relation to matters coming within its field of activity, the Conference shall be a framework within which the Irish Government and the United Kingdom Government work together

RECONCILING IRELAND

(i) for the accommodation of the rights and identities of the two traditions which exist in Northern Ireland; and (ii) for peace, stability and prosperity throughout the island of Ireland by promoting reconciliation, respect for human rights, co-operation against terrorism and the development of economic, social and cultural co-operation. (b) It is the declared policy of the United Kingdom Government that responsibility in respect of certain matters within the powers of the Secretary of State for Northern Ireland should be devolved within Northern Ireland on a basis which would secure widespread acceptance throughout the community. The Irish Government support that policy. (c) Both Governments recognise that devolution can be achieved only with the co-operation of constitutional representatives within Northern Ireland of both traditions there. The Conference shall be a framework within which the Irish Government may put forward views and proposals on the modalities of bringing about devolution in Northern Ireland, in so far as they relate to the interests of the minority community. C. POLITICAL MATTERS Article 5 (a) The Conference shall concern itself with measures to recognise and accommodate the rights and identities of the two traditions in Northern Ireland, to protect human rights and to prevent discrimination. Matters to be considered in this area include measures to foster the cultural heritage of both traditions, changes in electoral arrangements, the use of flags and emblems, the avoidance of economic and social discrimination and the advantages and disadvantages of a Bill of Rights in some form in Northern Ireland. (b) The discussion of these matters shall be mainly concerned with Northern Ireland, but the possible application of any measures pursuant to this Article by the Irish Government in their jurisdiction shall not be excluded. (c) If it should prove impossible to achieve and sustain devolution

Anglo-Irish Agreement, 15 November 1985

on a basis which secures widespread acceptance in Northern Ireland, the Conference shall be a framework within which the Irish Government may, where the interests of the minority community are significantly or especially affected, put forward views on proposals for major legislation and on major policy issues, which are within the purview of the Northern Ireland Departments and which remain the responsibility of the Secretary of State for Northern Ireland. Article 6 The Conference shall be a framework within which the Irish Government may put forward views and proposals on the role and composition of bodies appointed by the Secretary of State for Northern Ireland or by Departments subject to his direction and control including the Standing Advisory Commission on Human Rights; the Fair Employment Agency; the Equal Opportunities Commission; the Police Authority for Northern Ireland; the Police Complaints Board. D. SECURITY AND RELATED MATTERS Article 7 (a) The Conference shall consider (i) security policy; (ii) relations between the security forces and the community; (iii) prisons policy. (b) The Conference shall consider the security situation at its regular meetings and thus provide an opportunity to address policy issues, serious incidents and forthcoming events. (c) The two Governments agree that there is a need for a programme of special measures in Northern Ireland to improve relations between the security forces and the community, with the object in particular of making the security forces more readily accepted by the nationalist community. Such a programme shall be developed, for the Conference’s

RECONCILING IRELAND

consideration, and may include the establishment of local consultative machinery, training in community relations, crime prevention schemes involving the community, improvements in arrangements for handling complaints, and action to increase the proportion of members of the minority in the Royal Ulster Constabulary. Elements of the programme may be considered by the Irish Government suitable for application within their jurisdiction. (d) The Conference may consider policy issues relating to prisons. Individual cases may be raised as appropriate, so that information can be provided or inquiries instituted. E. LEGAL MATTERS, INCLUDING THE ADMINISTRATION OF JUSTICE Article 8 The Conference shall deal with issues of concern to both countries relating to the enforcement of the criminal law. In particular it shall consider whether there are areas of the criminal law applying in the North and in the South respectively which might with benefit be harmonised. The two Governments agree on the importance of public confidence in the administration of justice. The Conference shall seek, with the help of advice from experts as appropriate, measures which would give substantial expression to this aim, considering inter alia the possibility of mixed courts in both jurisdictions for the trial of certain offences. The Conference shall also be concerned with policy aspects of extradition and extra-territorial jurisdiction as between North and South. F. CROSS-BORDER CO-OPERATION ON SECURITY, ECONOMIC, SOCIAL AND CULTURAL MATTERS Article 9 (a) With a view to enhancing cross-border co-operation on security matters, the Conference shall set in hand a programme of work to be undertaken by the Commissioner of the Garda Síochána and the Chief Constable of the Royal Ulster Constabulary and, where appropriate, groups of officials, in such

Anglo-Irish Agreement, 15 November 1985

areas as threat assessments, exchange of information, liaison structures, technical co-operation, training of personnel, and operational resources. (b) The Conference shall have no operational responsibilities; responsibility for police operations shall remain with the heads of the respective police forces, the Commissioner of the Garda Síochána maintaining his links with the Minister for Justice and the Chief Constable of the Royal Ulster Constabulary his links with the Secretary of State for Northern Ireland. Article 10 (a) The two Governments shall co-operate to promote the economic and social development of those areas of both parts of Ireland which have suffered most severely from the consequences of the instability of recent years, and shall consider the possibility of securing international support for this work. (b) If it should prove impossible to achieve and sustain devolution on a basis which secures widespread acceptance in Northern Ireland, the Conference shall be a framework for the promotion of co-operation between the two parts of Ireland concerning cross-border aspects of economic, social and cultural matters in relation to which the Secretary of State for Northern Ireland continues to exercise authority. (c) If responsibility is devolved in respect of certain matters in the economic, social or cultural areas currently within the responsibility of the Secretary of State for Northern Ireland, machinery will need to be established by the responsible authorities in the North and South for practical co-operation in respect of cross-border aspects of these issues. G. ARRANGEMENTS FOR REVIEW Article 11 At the end of three years from signature of this Agreement, or earlier if requested by either Government, the working of the Conference shall be reviewed by the two Governments to see whether any changes in the scope and nature of its activities are desirable.

RECONCILING IRELAND

H. INTERPARLIAMENTARY RELATIONS Article 12 It will be for Parliamentary decision in Dublin and in Westminster whether to establish an Anglo-Irish Parliamentary body of the kind adumbrated in the Anglo-Irish Studies Report of November 1981. The two Governments agree that they would give support as appropriate to such a body, if it were to be established. I. FINAL CLAUSES Article 13 This Agreement shall enter into force on the date on which the two Governments exchange notifications of their acceptance of this Agreement. IN WITNESS WHEREOF the undersigned, being duly authorised thereto by their respective Governments, have signed this Agreement. DONE in two originals at Hillsborough on the 15th day of November 1985

For the Government of Ireland

For the Government of the United Kingdom

Gearóid Mac Gearailt

Margaret Thatcher