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'The Belfast Agreement: a practical legal analysis'
by Austen Morgan (2000)



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Text: Austen Morgan ... Page Compiled: Martin Melaugh

The following chapter has been contributed by the author Austen Morgan with the permission of the publisher, The Belfast Press. The views expressed in this chapter do not necessarily reflect the views of the members of the CAIN Project. The CAIN Project would welcome other material which meets our guidelines for contributions.
This chapter is from the book:

Front Cover of Book The Belfast Agreement
a practical legal analysis

Austen Morgan
BSc MA in Law PhD

of Lincoln’s Inn, Barrister
and
Member of the Inn of Court of Northern Ireland

The Belfast Press
London 2000
ISBN: 0-9539287-0-5 (Paperback) 601pp

Front cover and author photo: © Pacemaker Press International Ltd

Orders to:

Local bookshops, or
The Belfast Press Limited
29 Ludgate Hill
London
EC4M 7JE

Web: http://www.austenmorgan.com/

The chapter is copyright of Austen Morgan (2000) and is included on the CAIN site by permission of the author and publisher. You may not edit, adapt, or redistribute changed versions of this extract for other than your personal use without the express written permission of the author, and the publisher, The Belfast Press Limited. Redistribution for commercial purposes is not permitted.


From the back cover:

Front Cover of Book The Belfast Agreement
a practical legal analysis

The achievement of the Belfast Agreement, reached at Stormont on Good Friday 1998, is historic. However, it is widely misunderstood. It is an international agreement between the UK and Irish states, which entered into force on 2 December 1999. It is premissed upon, and promises, a transition from terrorism to democracy. The Belfast Agreement provides essentially for Northern Ireland devolution (with additional north-south and east-west institutions) within the 1920-22 partition settlement.

The Belfast Agreement: a practical legal analysis introduces and annotates each of the eleven sections. The book is in five parts: Introduction (dealing with the two states parties); Constitution; Institutions, Rights etc.; and the load-bearing British-Irish Agreement. The full text of the Belfast Agreement is appended. This is a definitive and unique work. It is indispensable for practising lawyers in both parts of Ireland and Great Britain.

Austen Morgan is a barrister in London and Belfast. He was involved in the negotiation, and implementation, of the Belfast Agreement, and advises a range of clients on its constitutional meaning.

'No one who believes in an open society and the rule of law can be neutral as between democracy and violence ...' Chris Patten, chairman of the commission on policing for Northern Ireland, from the Preface.

'... the lawyer has become a more effective champion of freedom and justice than the terrorist or urban guerrilla.' David Byrne SC, Irish attorney general (1997-99), from the Preface.

 


Contents

Prologue
Preface
Acknowledgements
Table of Cases
Table of Statutes and Other Domestic Legislation
Table of Treaties and Other Documents
Abbreviations
Part 1 INTRODUCTION
1. What is the Belfast Agreement?
2. Public international law
3. Domestic law: the United Kingdom, 1800-1920
4. Domestic law: Northern Ireland, 1921-1998
5. Domestic law: the Irish State, 1922-1937
6. Domestic law: Éire/Ireland, 1937-1998
7. The two states
Part 2 CONSTITUTION
8. Declaration of Support
9. Constitutional Issues
10. Annex A
11. Annex B
Part 3 INSTITUTIONS
12. Strand One: Democratic Institutions in Northern Ireland
13. Annex A
14. Strand Two: North/South Ministerial Council
15. Annex
16. Strand Three: British-Irish Council
17. Strand Three: British-Irish Intergovernmental Conference
Part 4 RIGHTS, ETC.
18. Rights, Safeguards and Equality of Opportunity
19. Decommissioning
20. Security
21. Policing and Justice
22. Prisoners
23. Validation, Implementation and Review
Part 5 THE BRITISH-IRISH AGREEMENT
24. The British-Irish Agreement
THE BELFAST AGREEMENT
Index


PART 1
INTRODUCTION

1
What is the Belfast Agreement?

1.1 This chapter deals with (a) the extant texts; (b) the relationship between politics and law; (c) the relationship between the Multi-Party Agreement (MPA) and the British-Irish Agreement (BIA) of 10 April 1998; and (d) the giving effect to the Belfast Agreement in United Kingdom and Irish law — in order to answer the question: what is the Belfast Agreement?

1.2 The answer is not self-evident or simple. And this is borne out by the public and political discussion of — usually — the Good Friday Agreement since 10 April 1998. There was no appreciation of before and after entry into force on 2 December 1999. Nor was there any apparent awareness of the relationship between international and municipal law in both states. This criticism applies to politically active lawyers in Northern Ireland and in the Republic of Ireland. And not one of the academic viewpoints in the Fordham International Law Journal contains an adequate discussion of the legal status of the Belfast Agreement.

The extant texts

1.3 The immediate origin of the Belfast Agreement was a 65-page typescript ‘Draft Paper’ (plus two pages of contents), circulated to the participants in the multi-party negotiations at Castle Buildings at approximately 00.30 on Tuesday 7 April 1998 (though dated 6 April 1998), under cover of a memorandum from the Office of the Independent Chairmen (Senator George J. Mitchell, General John de Chastelain and Prime Minister Harri Holkeri). This will be referred to as the Mitchell Draft Paper (MDP) of 6 April 1998 in the following chapters.

1.4 The Mitchell Draft Paper has never been published officially. However, a copy has been available on the internet, from the Newshound, since approximately Easter 1998, at: http://www.nuzhound.com.1 I use this text here, to show legally the evolution of the Belfast Agreement.

1.5 The participants at Castle Buildings were next issued at approximately 12.00 on Friday. 10 April 1998 with a 67-page typescript ‘Final Agreement’ (plus two pages of contents) under cover of a memorandum from the independent chairmen. This actual typescript document will be referred to here as the Final Agreement (FA) of 10 April 1998. The independent chairmen indicated that the title meant it was to be a final agreement. The Final Agreement was the text before the last plenary at 17.05 on that day,2 though the prime minister, in his letter to David Trimble shortly before (see Chapter 20), indicated the legal intention of at least one of the BIA signatories.

1.6 There is — for a lawyer — a striking difference between the Mitchell Draft Paper and the Final Agreement. This is the four-article British-Irish Agreement (BIA), which was referred to in the Mitchell Draft Paper at several points3 but was not circulated on 6 April 1998. On 10 April 1998, it turned up as part of the Final Agreement, annexed to what it called the multi-party agreement.4 The Northern Ireland political parties had not been involved in its negotiation.

1.7 The document before the participants in that final plenary of 10 April 1998 became the Belfast Agreement.5 It was also the effective text signed by Tony Blair and Bertie Ahern (though not presented as such to parliament and the Oireachtas until March 1999). This paradox — involving a delay of eleven months — will be explained presently.

1.8 The Belfast Agreement has been published officially6 in the following hard copies:

• 30-page booklet, with coloured front cover, entitled The Agreement: agreement reached in the multi-party negotiations, published by the United Kingdom government (and distributed to Northern Ireland households);7

• 35-page booklet, in two columns, entitled Agreement reached in the Multi-party Negotiations, published by the Irish government (and distributed to Republic of Ireland households). This version included the Irish-language text of the proposed Irish constitutional amendments;

• 30-page document, entitled The Belfast Agreement: an agreement reached at the multi-party talks on Northern Ireland, Cm 3883, presented to parliament by the secretary of state for Northern Ireland on 20 April 1998, and published by the Stationery Office Limited;8

• an Irish-language version of the Irish government’s booklet, available in the Republic of Ireland;

• the same Irish text and format, with the United Kingdom government’s coloured cover (suitably translated), available in Northern Ireland;

• a 44-page blue book, under the title Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland, Cm 4292, Belfast, 10 April 1998, and headed Ireland No. 1 (1999), presented to parliament by the secretary of state for foreign and commonwealth affairs in March 1999, also published by the Stationery Office Ltd;9

• the above, printed as Treaty series No. 50 (2000), presented to parliament by the secretary of state for foreign and commonwealth affairs in May 2000 as Cm 4705, also published by the Stationery Office Ltd;

• and the 49-page10 Irish version, entitled Agreement between the Government of Ireland and the Government of the United Kingdom of Great Britain and Northern Ireland, published in March 1999. This has a similar layout to the United Kingdom version (however, Annex 1 (the MPA) contains, as annex, the BIA).

1.9 In this book, I refer to the English-language edition distributed in Northern Ireland, which is exactly the same less the typographical errors — as the command paper of 20 April 1998 (Cm 3883).11 This is what the people of Northern Ireland voted upon on 22 May 1998. I cross-reference to the blue-book version presented to parliament by the foreign secretary in May 2000 (Cm 4705). I also give page references to the 1999 Irish version (it being impossible to cite a common United Kingdom/Irish edition because of different pagination and the annexing of the BIA to the MPA in the Irish version).

1.10 It has become customary to cite the Belfast Agreement by paragraph numbers within each named section as listed on the contents page, and that practice will be followed here. This will resolve the problem of quoting page numbers in different versions.

1.11 The name ‘the Belfast Agreement’ was given to the United Kingdom command paper, Cm 3883. It is also the term used in the Northern Ireland Act (NIA) 1998, and ‘the Belfast Agreement’ is defined in section 98.12 But where did this title come from? The Mitchell Draft Paper — the origin of the text — had no title.

1.12 The Final Agreement was entitled 'AGREEMENT REACHED IN THE MULTIPARTY NEGOTIATIONS’ (though Annex 1 of the British-Irish Agreement referred to it as the Agreement reached in the Multi-party Talks). And the former title was used in the Northern Ireland and Republic of Ireland versions of the Belfast Agreement.

1.13 ‘The Belfast Agreement’ — I will argue below — is the most appropriate title. But it has had to do battle with ‘the Good Friday Agreement’ and, to a lesser extent, ‘the Stormont Agreement’.

1.14 The originator of the ‘Good Friday’ name is most likely an unidentified Northern Ireland journalist. In his report in the Irish Times on 11 April 1998, Frank Millar — filing from Castle Buildings reported a local broadcaster13 as saying: ‘Think of all the bad days we’ve known here ... This really will be Good Friday.’ The Good Friday Agreement is a catchy journalistic tag. And it was applied spontaneously in a heavily religious culture in Northern Ireland.

1.15 There is an argument that Christian anniversaries should not become political clichés. There is also a view that, in Ireland, talk of Holy Week, and especially Easter Week, has a strong republican connotation and is best avoided.14

1.16 When secretary of state Mo Mowlam presented the Belfast Agreement to parliament ten days afterwards, she chose to use the term ‘the Good Friday Agreement’.15 And so it has stuck (to the extent that, in the early spring of 1999, the anniversary of the Agreement was being proclaimed as 2 April, Good Friday that year16). The United Kingdom government still respects Cm 3883 and the NIA 1998, but, in July 1999, during the abortive attempt to form the Northern Ireland executive, the term Good Friday Agreement’ was defined in a draft international agreement.17

1.17 The Stormont Agreement is of unionist provenance, and has developed in reaction to the nationalist Good Friday terminology.

The relationship between politics and law

1.18 The Belfast Agreement was made apparently by eight political parties — the Ulster Unionist Party, the Social Democratic and Labour Party, Sinn Féin, the Alliance Party, the Progressive Unionist Party, the Northern Ireland Women’s Coalition, the Ulster Democratic Party and Labour18 — and the United Kingdom and Irish governments.

1.19 Politics and law-making were intertwined in 1996-98. The political parties, however, were not assembled as a legislature, or constitutional convention. It was the two governments which played the preeminent legal (and political) role. The Belfast Agreement looks, from the circumstances of its making, very much like a political settlement imposed by the two governments on the political parties. And the text represents a political compromise which, under the Validation, Implementation and Review section, was to be legitimized in the separate referendums of 22 May 1998.19

1.20 The talks’ participants — as they were called — were the political parties and the two governments (the Irish government did not participate formally in Strand One negotiations).20 But the term ‘participant’ was used sometimes by the independent chairmen to mean only the political parties.21

1.21 Thus, the covering memorandum to the Mitchell Draft Paper of 6 April 1998, addressed as usual to ‘All Participants’, noted: ‘many parts of this Draft Paper are based on work done by the two Governments, jointly except in the case of Strand One’. Invoking the participants to engage in intensive discussion and negotiation, the independent chairmen wrote: ‘The Chairmen and the Governments will be available to take part in these discussions. You, the participants, are the owners of this process and it is you who must decide if there is to be an agreement, and, if so, what it is to provide.’

1.22 The organization of the multi-party negotiations, like that of the final plenary on 10 April 1998 (described in the Prologue), has an important bearing on the structure of the Belfast Agreement. Its legal meaning must be sought, not just in the text, but in the context of its production between June 1996 and April 1998.

The relationship between the Multi-Party Agreement and the British-Irish Agreement of 10 April 1998

1.23 The word ‘agreement’ festoons the document of 10 April 1998. First, there is the ‘Agreement reached in the multi-party negotiations’ (pp. 1-26), to which is annexed the ‘Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland’ (pp. 27-30). Second, there is the ‘British-Irish Agreement’ (pp. 2 7-30), which includes Annex 1, the agreement reached in the multi-party talks (pp. 1-26). (The latter term is clearly an inconsistency, most likely a drafting mistake in Castle Buildings, and I will refer here to the multi-party negotiations. This was corrected in the blue-book version of March 1999, and in the 1999 Irish version.)

1.24 The agreement reached in the multi-party negotiations will be referred to henceforth as the Multi-Party Agreement (MPA). This name stems from the BIA.22 The annexed agreement will be referred to as the British-Irish Agreement (BIA). And this name stems from the MPA.23 The two combined are the Belfast Agreement, as is clear from Cm 3883 — and more so from Cm 4705. However, the March 1999 Irish version confuses the matter. The first six pages — with the same layout as the United Kingdom version — are the BIA. Pages 1-37 (as numbered) are Annex 1. Again, the layout follows the United Kingdom version. But then, at pages 38-42, the BIA is annexed to the MPA (a mistake which may reveal uncertainty about what the Belfast Agreement is legally). There follows, on a final, unnumbered page, Annex 2.

1.25 There are two ways — I submit — of looking at the Belfast Agreement. One, as printed, pages 1-26, followed by pages 27-30. The MPA was accepted by seven of the eight political parties in the final plenary on 10 April 1998. But did the two governments also assent to this agreement? And were the political parties implicated in the BIA by virtue of the last-minute annexing in the FA? The answers are, respectively, yes and no.

1.26 But they can only be explained through the second way of looking at the Belfast Agreement; starting with pages 27-30, and then, through Annex 1, reading pages 1-26. This is the structure in the blue-book version of March 1999 (and also in the 1999 Irish version). The BIA is legally a treaty, or international agreement, made between two contracting states, and signed by the United Kingdom government and the Irish government. Annex 1 is, according to international law, part of the text of the BIA: article 31(2) of the 1969 Vienna convention on the law of treaties.

1.27 The Belfast Agreement then is a legal text, and it takes the form of an international agreement. The Belfast Agreement is the BIA. And it has two parties; the two states — not the political parties. This has consequences when it comes to construing the Belfast Agreement in United Kingdom or Irish courts. ‘Acts which ratify a treaty or other international agreement, or give its provisions the force of law [as does the Northern Ireland Act 1998 among others], or otherwise relate to it, form a distinct class of growing importance akin to the class of constitutional Acts.’24

1.28 But what is the MPA, which, after all, is called an agreement? This is, at best, a political or moral agreement between the political parties (or at least those who assented on 10 April 1998). The two states are legal parties, but only through Annex 1, and only to the extent that the content of the MPA contains obligations binding on the states parties — after entry into force — in international law (as is clear from article 2 of the BIA).25 Indeed, the MPA is characterized as ‘a comprehensive political agreement’ in paragraph 2 of Constitutional Issues.

1.29 The political parties are not parties to the BIA, since that is for contracting states alone. The MPA is, therefore, the political face of the Belfast Agreement (less the BIA).

1.30 Put differently, the Belfast Agreement — which comprises the MPA plus BIA — can be read two ways: politically (pp. 1-26 and pp. 27-30 — though the latter pages are redundant); and legally (pp. 27-30 and pp. 1-26 — where the former are crucial). When the Belfast Agreement is being referred to politically, it is the MPA without the BIA. The legal lace of the Belfast Agreement is the BIA, to which is annexed the MPA — or simply the BIA.

1.31 The Belfast Agreement has, since 10 April 1998, been disputed in the main by political parties. However, it has to be interpreted legally, if it is to be of any constitutional use. In this case, it is necessary to distinguish: obligations on one or both contracting states; text which is not legally binding in international law (but may, once incorporated in United Kingdom and or Irish law, bind a government or actual or potential office holder); and general principles of international law, which operate upon the text to become implied in the Belfast Agreement.26

1.32 David Byrne SC, the Irish attorney general at the time of the Belfast Agreement, discussed these issues in a wide-ranging address to the American Bar Association (International Law and Practice Section) in Toronto on 3 August 1998. (This was published subsequently in the Fordham International Law Journal, discussed in the Preface.)

1.33 ‘Lawyers for the parties, primarily the two governments’, he wrote, ‘reduced the matters agreed upon by the parties into two legally enforceable and interdependent agreements: the Multi-Party Agreement, to be signed by all parties, and the British-Irish Agreement, solely between the two governments.’27 The drafting of the Belfast Agreement is admitted, but the political parties and the two governments have been elided as (legal?) parties. It is not explained that the MPA is only legally enforceable by virtue of its annexing to the BIA (and that the two states parties are not bound by everything therein: article 2 of the BIA). The reference to the signing of the MPA by all the parties is a slip.

1.34 Later, in a section headed ‘Giving Legal Effect to the Agreement’, the Irish attorney general describes the MPA correctly as ‘a political agreement, expressed in the language of political negotiation’. ‘We were, however, anxious to give the Agreement as authoritative a standing as possible ... Therefore, side-by-side at the multi-party negotiations, the governments framed an agreement between them.’ This is the BIA. However, the relationship between the political and legal agreements is not adequately delineated: ‘The Agreement reached in the multi-party talks forms an annex to the British-Irish Agreement, and conversely, the British-Irish Agreement was annexed to the Multi-Party Agreement.’28

1.35 To conclude generally, the Belfast Agreement comprises the MPA and the BIA: a political agreement (namely the MPA); and a legal agreement (the BIA) — with the latter containing a legal (in international law) annex. The two annexings are different.

1.36 And that is why the Belfast Agreement is the most appropriate colloquial name for the legal text. The BIA was ‘done in two originals at Belfast on the 10th day of April 1998’.29 (The political parties signed nothing; the prime minister and secretary of state and taoiseach and Irish foreign minister, on behalf of their governments, signed on vellum.30) It is customary to use the place of adoption, or signing, of an international agreement for its name — for example, the 1990 Dublin convention of the European Community on refugees (though confusion may sometimes be caused by placenames).

1.37 Placename can be seen in the blue-book version of March 1999 (Cm 4292), where there is the heading ‘Ireland No. 1 (1999)’, and a reference to ‘Belfast, 10 April 1998', followed by the phrase '[The Agreement is not in force]'. This was to remain the position until 2 December 1999.

The giving effect to the Belfast Agreement in United Kingdom and Irish law

1.38 Treaties are agreements in international law. And they bind states. How they are made is a matter of international law. But there is also a role for domestic law: determining the competence of governments (or ministers) to make such international agreements. Ratification, where applicable, is a process in international law.31 However, there may well be domestic law dealing with the matter.

1.39 First, the United Kingdom state. The power to make treaties belongs to the crown. It is exercised by the executive using the royal prerogative. Ministers are generally accountable to parliament, but the legislature has no role in treaty making or ratification. However, under the Ponsonby rule,32 where a treaty is awaiting ratification, parliament must be notified by the presentation of a command paper (the form in which the agreement is first published); ratification may not take place (except in cases of urgency) until the passage of 21 parliamentary days, time notionally to arrange and hold a (consultative) debate if so desired by parliament.

1.40 There was no provision for ratification in the BIA: article 4(2) is about conditions precedent. As noted above, Mo Mowlam presented the Belfast Agreement to parliament on 20 April 1998. Her short introduction — covering less than four columns of Hansard — took the form of a ministerial statement. Questions took less than 90 minutes.33 There was no vote. This was compatible — whatever the intention of the government — with the Belfast Agreement being in United Kingdom law a treaty signed on 10 April 1998.34

1.41 However, there was a second presentation, this time by the secretary of state for foreign and commonwealth affairs, in March 1999. Following the signing of four supplementary treaties on 8 March 1999 in Dublin — dealing with the North/South Ministerial Council (NSMC), the British-Irish Council (BIC), the British-Irish Intergovernmental Conference (BIIC) and six implementation bodies — the BIA proper was presented to parliament, with the MPA annexed, in the blue-book version as Cm 4292 (the other four treaties being Cm 4293-6).35 The explanatory memorandum accompanying the BIA described its purpose as ‘to underpin the commitments made by the British and Irish Governments as participants in the multi-party negotiations concluded in Belfast on 10 April 1998’. Referring to the MPA annexed, the memorandum stated: ‘the two Governments undertake in this Agreement [the BIA] to implement their commitments under the Multi-Party Agreement’.36

1.42 The entry into force of the BIA on 2 December 1999 went unnoticed in United Kingdom law.37

1.43 It is not clear why the United Kingdom government waited nearly a year before presenting the BIA proper to parliament. After all, it had been signed on 10 April 1998. The most likely explanation is that London (and Dublin?) wanted to legitimize the MPA as a multi-party agreement, and not advance politically the —correct — legal view that the only binding agreement was the treaty of 10 April 1998.

1.44 The United Kingdom state was bound in international law by the Belfast Agreement. It was not, of course, a part of United Kingdom law. The government, as a result of the state’s international obligations, and before the Belfast Agreement entered into force, sought to implement it mainly, but not exclusively, through the NIA 1998 (this will be considered principally in Chapters 12 and 13).

1.45 Second, the Irish state. Article 29 of the 1937 constitution of Eire/Ireland, Bunreacht na hÉireann (BNH), deals with international relations. Section 5 covers international agreements:

1. Every international agreement to which the State becomes a party shall be laid before Dáil Éireann.
2. The State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by Dáil Éireann.
3. This section shall not apply to agreements or conventions of a technical and administrative character.

Laying before and approving (where the terms of the agreement involve a charge upon public funds38) are the two necessary procedures.

1.46 On 21 April 1998, Dáil Éireann approved the Belfast Agreement. This met apparently the requirements in article 29 of the constitution.39 The following day, Seanad Éireann also approved the Agreement.40 However, the first decision (under the constitution, the second is not necessary) should be considered further. Was it the political face of the Belfast Agreement or the legal one that was approved?

1.47 The motion agreed on 21 April 1998 was that: ‘Dáil Éireann hereby welcomes and approves the terms of the Agreement reached in the Multi-Party Negotiations in Belfast on 10 April, 1998, copies of which were laid before Dáil Éireann on 15 April 1998.’ The 35-page Dublin text referred to above — the MPA plus BIA — was laid on 15 April 1998. But does ‘the Agreement’ specified in the motion refer to the MPA (to which was annexed the BIA), or to the BIA (to which the MPA was annexed)? There seems to be an ambiguity. In favour of the former interpretation is the fact that the taoiseach, in moving earlier the second stage of the constitutional amendment bill, had said: ‘I am laying before the House a settlement for peace in Northern Ireland ... [t]he political Agreement concluded between all the participating parties on Good Friday, 10 April ... .'41 In favour of the latter interpretation is the reference to terms of the Agreement in the motion. On balance, and despite the fact that the taoiseach in his speech ranged outside the constitutional amendment shortly to be put to the people (being taken simultaneously), it is most unlikely that Dáil Éireann approved the terms of the Belfast Agreement — understood legally — on 21 April 1998.

1.48 This is confirmed by parliamentary events nearly a year later. On 8 March 1999, the secretary of state, Mo Mowlam, and the Irish minister for foreign affairs, David Andrews, signed at Dublin Castle the four treaties (which have been mentioned above) supplementing the Belfast Agreement.42 (These treaties will be considered in Chapters 15, 17 and 18.) It was at this point (8 March 1999), that the government chose to lay the Belfast Agreement (the BIA with the MPA annexed) before Dail Éireann. The following day, all five treaties were approved by Dáil Éireann.43 In a speech immediately afterwards, the taoiseach referred to the Good Friday Agreement (increasingly the preferred name in the Republic) as a treaty.44 There was no similar laying before Seanad Éireann, even though the bill — called the British-Irish Agreement Bill — dealing with three of the treaties, was rushed there on 11 March 1999.

1.49 It is not clear why the Irish government waited eleven months to lay (what it called) the Good Friday Agreement before Dáil Éireann as required by article 29 of the constitution. It may have been part of the plan to legitimize the MPA, and avoid admitting that there was only one legal agreement with two parties. Perhaps Dublin was waiting for political agreement on the implementation bodies (the subject of the most extensive 8 March 1999 treaty). More likely, the Irish government made a legal mistake on 21 (and 22) April 1998 about ‘the Agreement reached in the Multi-Party Negotiations’. This suspicion is reinforced by the argument that, at that point, no one in Dublin was thinking about further treaties,45 so there was no possible combined future occasion for having the Belfast Agreement legally approved in accord with the constitution.

1.50 This mistake about political and legal faces — may have been compounded by the preamble to the four supplementary treaties of 8 March 1999:

Having regard to Article 2 of the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland done at Belfast on 10th April 1998 (the British-Irish Agreement), and the Multi-Party Agreement reached at Belfast on 10th April 1998 (the Multi-Party Agreement), annexed to the British-Irish Agreement ...

This is the United Kingdom version only. The presence of the commas before and after the reference to the MPA (especially the second one) distinguish it from the BIA. (There are no commas in the Irish versions of the NSMC, BIIC and BIC treaties; they appear, however, in the implementation bodies treaty.) It may be implied by these preambles that the MPA is a separate legal agreement, with (legal) parties and legal obligations. This is suggested further by the way the MPA is specified separately in each treaty as if if were another legal agreement.46

1.51 This, admittedly, is countered with the reference in the preambles to the MPA being annexed to the BIA, which gives it legal effect.

1.52 The entry into force of the BIA on 2 December 1999 was noticed in Irish law. This was largely because of the constitutional changes consequent upon Annex B to the Constitutional Issues section (see Chapter 11).

1.53 Article 4(2) of the BIA (discussed in Chapter 24) required the United Kingdom and Irish governments to notify each other in writing of the completion of the requirements for the entry into force of the Belfast Agreement. Entry into force was to be upon the receipt of the later of the two notifications.

1.54 The United Kingdom government agreed to participate in a televised ceremony at Iveagh House in Dublin, the Irish department of foreign affairs. Peter Mandelson (who had replaced Mo Mowlam on 11 October 1999) attended early on 2 December 1999. He exchanged notifications with David Andrews, the Irish foreign minister. In his short address, the secretary of state referred to the new ‘British-Irish Treaty’.47 Shortly after 10.30, the taoiseach announced to the Dáil that the BIA had entered into force (this applied also to the supplementary agreements of March 1999).48

 


Footnotes:

1 Plus articles by Ed Maloney (Sunday Tribune, 19 April 1998) and Gary Kent (Newsletter, 1 May 1998 and Fortnight, May 1998) on the differences between the Mitchell Draft Paper and the Final Agreement. back to text
2 There is a photograph of Senator Mitchell holding this text after the final plenary, between pages 86 and 87 of his book: Making Peace, London 1999. back to text
3 Paragraph 1 of Constitutional Issues; Annex B; paragraph 1 of Strand Two; the first paragraph 1 and the second paragraph 1 of Strand Three; paragraph 1 of Validation, Implementation and Review. back to text
4 First recital of the preamble of the BIA. back to text
5 Typographical errors were mysteriously added subsequently: on what became page 16, the heading and subheading were altered; on what became page 29, an ‘of Ireland’ appeared below the full name of the United Kingdom state. back to text
6 The Northern Ireland Office made the agreement available on the internet: http:// www.nio.gov.uk. There were several newspaper versions, including by the Irish Times on 11 April 1998. This is available on the internet on a special page at http://www.nuzhound.com. back to text
7 There is only one difference with the Irish government’s version (other than the presence of the Irish-language text of the proposed Irish constitutional amendments): in Annex B of Constitutional Issues in the latter, the date of the BIA (10 April 1998) has been added. This difference applies to the Irish-language version in Northern Ireland, meaning there is a formal inconsistency between the two United Kingdom versions distributed in Northern Ireland. The difference has been corrected in the March 1999 blue-book version. back to text
8 The number Cm 3883 had been included in paragraph 2 of the Validation, Implementation and Review section of the Mitchell Draft Paper. back to text
9 This is the same as Cm 3883 with two differences: the MPA has been annexed to the BIA (and is structured as follows: BIA, pp. 1-6; MPA [Annex 1], pp. 7-43; Annex 2, p. 44); the layout has been improved, with each section starting on a new page. back to text
10 The numbered pages relate only to Annex 1 (pp. 1-42). back to text
11 This is similar to the version the MPA with the BIA annexed — published under ‘Treaties, Agreements and Related Documents’, in volume XXXVII, number 4, of International Legal Materials, in July 1998. A composite was made from the NI0 website (visited 13 April 1998) and that of the department of the taoiseach (visited 27 May 1998). back to text
12 ‘The agreement reached at multi-party talks on Northern Ireland set out in Command Paper 3883.’back to text
13 Attempts to identify this individual have failed so far. back to text
14 Thus, the Irish Times of 11 April 1998, playing with nationalist historiography, headed its front-page leader ‘Easter 1998’. back to text
15 House of Commons, Hansard, 6th series, 310, 479-82, 20 April 1998. back to text
16 Even by the prime minister: Belfast Telegraph, 10 March 1999. back to text
17 Schedule, containing The Way Forward joint statement of the United Kingdom and Irish governments of 2 July 1999, to a draft letter from the secretary of state for Northern Ireland to the Irish foreign minister, placed by the foreign and commonwealth office in the library of the house of commons on 13 July 1999. Interestingly, the Good Friday Agreement was defined as the MPA only. back to text
18 This has no connection with the (British) Labour Party, which was elected to office in Mayback to text
1997. back to text
19 In the first, consultative, referendum on that date, on an 81.1 per cent turnout in Northern Ireland, 71.12 per cent voted ‘yes’ to the Agreement, and 28.88 per cent voted ‘no’; 676,966 electors to 274,879. The electorate was voting on the full text of the Belfast Agreement. The United Kingdom government hailed the result as a simple 71 per cent says ‘yes’. Unfortunately, as was to be seen in the assembly elections, most of the ‘no’s came from the majority, unionist, community. The pro-nationalist (in many unionist eyes) nature of the Agreement was reinforced by a second referendum on 22 May. in the Republic of Ireland. In the Republic, people voted only on the constitutional amendment, though copies of the Agreement were distributed to households. On a 56.3 per cent turnout there, 94.39 per cent voted ‘yes’ to 5.61 per cent ‘no’; 1,442,583 southern electors to 85,748. back to text
20 Ground Rules for Substantive All-Party Negotiations, Cm 3232, 16 April 1996, rule 10. back to text
21 Draft Record of Opening Plenary Session, Wednesday 12 June 1996, p. 2. back to text
22 Preamble, first recital. back to text
23 Paragraph 1 of Constitutional Issues; Annex B; paragraph 1 of Strand Two; the first paragraph 1 and second paragraph 1 of Strand Three; and paragraph 1 of Validation, Implementation and Review. back to text
24 F.A.R. Bennion, Statutory Interpretation, 3rd edn, London 1997, p. 127. Ratification here is incorrect. back to text
25 An instance of a Northern Ireland Civil Service misunderstanding is: an assembly member asked the minister for health, social services, and public safety to state the legal authority for the use of the Irish language in her department; the minister answered: ‘The authority for this is derived from the Good Friday Agreement.’ (Northern Ireland Assembly, Official Report, 9 June 2000, pp. WA5-6) This is an inadequate legal reply. back to text
26 As the Supreme Court of Canada said: ‘The Constitution is more than a written text. It embraces the entire global system of rules and principles which govern the exercise of constitutional authority. A superficial reading of selected provisions of the written constitutional enactment, without more, may be misleading. It is necessary to make a more profound investigation of the underlying principles animating the whole of the Constitution, including the principles of federalism, democracy, constitutionalism and the rule of law, and respect for minorities. Those principles must inform our overall appreciation of the constitutional rights and obligations that would come into play in the event that a clear majority of Quebecers vote on a clear question in faviour of secession.’ (Reference re secession of Quebec [1998] 2 SCR 217, 220) back to text
27 Page 1207. back to text
28 Pages 1208-14. back to text
29 It is interesting that the subtitle of the command paper — an agreement reached at the multiparty talks on Northern Ireland — used the phrase in Annex 1 of the BIA. back to text
30 Neither the prime minister nor taoiseach, under article 7(2) of the 1969 Vienna convention on the law of treaties, had to produce full powers. The general practice with bilateral treaties today is to dispense with full powers if the other side has not requested them. It is not known if the secretary of state had full powers issued by the foreign secretary, but her signature added nothing to the prime minister’s. The Irish foreign minister did not require full powers, and his signature added nothing to the taoiseach’s. back to text
31 Provided for in article 14(1) of the 1969 Vienna convention on the law of treaties. back to text
32 House of Commons, Hansard, 5th series, 171, 2001-4, 1 April 1924. See also, House of Commons, Procedure Committee, Second Report: parliamentary scrutiny of treaties, HC 210, 19 July 2000, which argued for a role for select committees. back to text
33 House of Commons, Hansard, 6th series, 310, 479-500, 20 April 1998. back to text
34 The 1985 Anglo-Irish Agreement, in contrast, was the subject of a two-day debate on a motion to approve, which was carried by 473 votes to 47 (House of Commons, Hansard, 6th series, 87, 749-830, 886-974, 26-27 November 1985). The upper house approved without a vote (House of Lords, Hansard, 5th series, 468, 797-887, 26 November 1985). This had been provided for in paragraph 6 of the joint communiqué; the agreement was not to enter into force — under article 13 — until afterwards. Article 13 did not amount to ratification. back to text
35 All five command papers are dated March 1999. back to text
36 Available on the FCO website: http://www.fco.gov.uk. back to text
37 Domestic legislation referred to Cm 3883 not Cm 4292: Northern Ireland Act 1998 (Appointed Day) Order 1999, SI 1999/3208. The BIA was referred to by the secretary of state for Northern Ireland during the debate on the Order: House of Commons, Hansard, 6th series, 340, 254, 30 November 1999. back to text
38 The State (Gilliland) v Governor of Mowitjoy Prison [1987] IR 201, 236 per Finlay CJ. back to text
39 Dáil Éireann, Official Report, 21 April 1998. back to text
40 Seanad Éireann, Official Report, 22 April 1998. back to text
41 Dáil Éireann, Official Report, 21 April 1998; see also, his speech the following day to theback to text
Seanad: Seanad Éireann, Official Report, 22 April 1998. back to text
42 Agreement between the Government of the United Kingdom of Great Britain and Northern
Ireland and the Government of Ireland establishing Implementation Bodies (Cm 4293);
Agreement between the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland establishing a North/South Ministerial Council (Cm 4294);
Agreement between the United Kingdom of Great Britain and Northern Ireland and the
Government of Ireland establishing a British-Irish Intergovernmental Conference (Cm
4295);
Agreement between the Government of the United Kingdom of Great Britain and Northern
Ireland and the Government of Ireland establishing a British-Irish Council(Cm 4296). back to text
43 Dáil Éireann, Official Report, 9 March 1999. The title of the 10 April 1998 agreement was reversed, the government of Ireland being put first. back to text
44 Dáil Éireann, Official Report, 9 March 1999. back to text
45 Article 2 of the BIA established the NSMC, BIC and BIIC (and the implementation bodies). Paragraph 10 of Strand Two of the Belfast Agreemeiit referred to the two governments making ‘necessary legislative and other enabling preparations’ after decisions about the bodies, suggesting that they were still seen in April 1998 as being of statutory origin: see the speech of the taoiseach to the Dáil and the Seanad. back to text
46 NSMC, article 2; Implementation Bodies, article 3(2); BIC, article 2; BIIC, article 2. back to text
47 Irish Times, 3 December 1999. back to text
48 Dáil Éireann, Official Report. back to text

 


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