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 First published in Great Britain 2000 by The Belfast Press Limited 29 Ludgate Hill, London EC4M 7JE Copyright © Austen Morgan 2000 The Belfast Agreement CM 3883 Crown Copyright © 1998 The right of Austen Morgan to be identified as the author of this work has been asserted by him in accordance with the Copyright, Designs and Patents Act 1988 British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library ISBN 0-9539287-0-5 Designed and produced for The Belfast Press by Chase Publishing Services Printed in the European Union by Antony Rowe, Chippenham, England CONTENTS v Contents Prologue x Preface xiii Acknowledgements xxiii Table of Cases xxiv Table of Statutes and Other Domestic Legislation xxviii Table of Treaties and Other Documents xxxvii Abbreviations xlv Part 1 INTRODUCTION 1. What is the Belfast Agreement? 3 The extant texts 3 The relationship between politics and law 6 The relationship between the Multi-Party Agreement and the British-Irish Agreement of 10 April 1998 7 The giving effect to the Belfast Agreement in United Kingdom and Irish law 10 2. Public international law 15 The plane of international law 15 States and governments 17 Territorial sovereignty 18 Human rights and self-determination 19 The law of treaties 23 The pacific settlement of international disputes 25 The relationship between international and municipal law in the United Kingdom and Irish states 27 3. Domestic law: the United Kingdom, 1800–1920 30 The union of 1800 and its vicissitudes 30 The constitutional entrenchment of the United Kingdom state in domestic law? 32 The Government of Ireland Act 1920 34 Section 75 of the Government of Ireland Act 1920 36 v vi THE BELFAST AGREEMENT 4. Domestic law: Northern Ireland, 1921–1998 41 Constitutional developments concerning in particular Northern Ireland, 1921–1923 41 The United Kingdom’s Ireland Act 1949 43 Direct rule from London, 1972–1998 (less January–May 1974) 44 5. Domestic law: the Irish Free State, 1922–1937 57 From Southern Ireland to the Irish Free State, 1920–1922 57 A new state? 62 Whither Northern Ireland, 1921–1925? 66 Eamon de Valera undermines the 1921 Anglo-Irish treaty, 1932–1937 71 6. Domestic law: Éire/Ireland, 1937–1998 76 The enactment of Bunreacht na hÉireann, 1937 76 Éire/Ireland a new state? 80 Hibernia Irredenta, the Irish constitutional claim to Northern Ireland 81 Constitutional developments, 1937–1998 85 7. The two states 92 The domestic law name of the United Kingdom state 92 The view of the Irish 94 The domestic law name of the Irish state 95 The view of the United Kingdom 100 Proposing a working solution 102 Part 2 CONSTITUTION 8. Declaration of Support 105 Annotations 105 9. Constitutional Issues 111 Constitutional history 111 Annotations 116 Annex 2 of the British-Irish Agreement 124 Nationality law 124 Annotations 128 The Treacy and Macdonald case 131 Annotations 133 CONTENTS vii 10. Annex A 134 Constitutional history 135 Annotations 137 The legal cession of Northern Ireland 144 Annotations 146 11. Annex B 150 Constitutional history 151 Annotations 156 The Riordan case on Annex B 166 Annotations 169 Has the territorial claim been removed? 179 Part 3 INSTITUTIONS 12. Strand One: Democratic Institutions in Northern Ireland 183 The history of devolution to Northern Ireland 183 Annotations 186 The prime minister’s letter 228 Annotations 230 13. Annex A 251 Annotations 253 14. Strand Two: North/South Ministerial Council 261 An Irish dimension 263 The international dimension 267 Towards the Belfast Agreement 267 Legislation at Westminster 268 Annotations 269 15. Annex 300 History of practical cooperation 300 Annotations 305 After the Belfast Agreement 305 16. Strand Three: British-Irish Council 314 The British-Irish dimension 315 The Nordic Council: an analogy? 317 United Kingdom devolution 319 Annotations 321 viii THE BELFAST AGREEMENT 17. Strand Three: British-Irish Intergovernmental Conference 335 The British-Irish dimension 336 The Nordic Council: an analogy? 338 The prime minister’s speech to the Oireachtas, 26 November 1998 340 Annotations 341 Part 4 RIGHTS, ETC. 18. Rights, Safeguards and Equality of Opportunity 357 Human rights in general 357 Human rights in the United Kingdom and Irish states 358 19. Decommissioning 428 Attempts to solve the Northern Ireland problem 428 The imperative of decommissioning (December 1993– ) 430 The Mitchell international body (December 1995–January 1996) 431 The Independent International Commission on Decommissioning 433 The work of the Independent International Commission on Decommissioning (24 September 1997– ) 436 What is the law on decommissioning? 438 The negotiation of the Belfast Agreement 440 The Belfast Agreement in general 441 Moving goalposts 443 Decommissioning since the Belfast Agreement 449 20. Security 461 Security in the Northern Ireland troubles 461 21. Policing and Justice 476 Policing and justice in the Northern Ireland troubles 477 22. Prisoners 497 United Kingdom precedents for the release of terrorist prisoners 497 The United Kingdom government paper, ‘Prisoners and the Political Settlement’ (20 April 1998) 498 The prime minister’s referendum pledges 499 The Northern Ireland (Prisoners) Act 1998 501 The Republic of Ireland 504 Problems with prisoner releases 517 CONTENTS ix 23. Validation, Implementation and Review 525 The other review provisions 540 Part 5 THE BRITISH-IRISH AGREEMENT 24. The British-Irish Agreement 545 Precedents for the British-Irish Agreement 545 A new British-Irish agreement? 546 What is the Belfast Agreement? 547 THE BELFAST AGREEMENT 563 Index 597 x THE BELFAST AGREEMENT Prologue The 10 April 1998 – Good Friday in the Christian calendar – dawned cold and grey at Castle Buildings, a nondescript civil-service building at Stormont on the eastern edge of Belfast. Inside were the United Kingdom and Irish premiers, the Rt. Hon. Tony Blair MP and Bertie Ahern TD, and the leaders of eight Northern Ireland political parties; outside, there was a growing global media village. A midnight deadline had passed without any puffs of white smoke signalling agreement. An astute observer would have spotted an invigorated John Hume MP MEP, leader of the nationalist Social Democratic and Labour Party (SDLP), touring the press tents, following a meeting in the early hours with the Rt. Hon. David Trimble MP, leader of the Ulster Unionist Party (UUP). The same person might have noticed the Sinn Féin leaders, Gerry Adams and Martin McGuinness (both abstentionist MPs1), avoiding media opportunities. There was no sign of the Rev. Dr Ian Paisley MP MEP, leader of the Democratic Unionist Party (DUP): he had walked out of the all-party negotiations, as they were then called, the previous July (with Robert McCartney QC MP of the United Kingdom Unionist Party (UKUP)); and had been banned overnight by the secretary of state, the Rt. Hon. Marjorie ‘Mo’ Mowlam MP, from the grey-hutted press centre in the car park at Castle Buildings. Inside, the armies of advisers, supporters and others in the parties’ rooms continued to watch the watchers, on the televisions supplied to the talks’ participants by the Northern Ireland Office (NIO). There was no sign of the two heads of government for much of the day. Then, in the late afternoon, Alistair Campbell, the prime minister’s press secretary, came out to brief the media; a document had been agreed finally after nearly two years of talks, covering apparently – what were called – the Strand One (internal United Kingdom2 ), Strand Two (north-south) and Strand Three (east-west) institutions, plus constitutional issues and a miscellany of matters dealing with terrorism and democracy. Inside Castle Buildings, in the fourth-level conference room (where a pooled television camera had been installed to broadcast a short ceremony), the United States chairman, Senator George Mitchell, with his colleagues, General John de Chastelain of Canada, and Prime Minister Harri Holkeri of Finland, opened the final plenary of the negotiations at 17.05. The prime minister and the taoiseach were also in attendance, with their government delegations. The chairman asked if there were any amendments to the multi-party agreement, final copies of which had been distributed to all parties that morning. Sinn Féin 1 Application 39511/98: McGuinness v United Kingdom (8 June 1999, unreported), European Court of Human Rights. 2 Conceived originally as internal Northern Ireland relations. x PROLOGUE xi stated it had a number of concerns, which were annexed subsequently to the summary record of the session.3 The Northern Ireland Women’s Coalition (NIWC) also had an issue of concern.4 Senator Mitchell then proceeded to a vote on the final agreement, under procedural rule 34. Sinn Féin stated that it would not be voting, as it had to report back to its ard chomhairle (or national executive). ‘It said that it would let the Chairman know the outcome of its deliberations in due course.’ The UUP explained that it would be reporting to the Ulster Unionist Council on 18 April 1998. The United Kingdom government, followed by the Irish government, assented to the multi- party agreement. Each party, in alphabetic order, was then asked to vote. The Alliance Party, Labour,5 the NIWC and the Progressive Unionist Party (PUP) did so in favour. Sinn Féin said it would register its vote when instructed to do so. The SDLP, Ulster Democratic Party (UDP) and UUP (referring to its caveats) voted last in favour of the agreement. The chairman declared that sufficient consensus (under the rules of the talks) had been achieved. The prime minister and taoiseach then thanked the independent chairmen. They thanked the Northern Ireland parties.